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Fallowfield Dev. Corp. v. Strunk

ELR Citation: 23 ELR 20119
Nos. Nos. 89-8644, 90-4431, (E.D. Pa., 04/07/1992) Summary judgment

The court holds that landowners' summary judgment motions in response to residential developers' actions pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Pennsylvania Hazardous Substances Control Act (HSCA), and common-law theories, are precluded by the existence of a genuine issue of material fact as to whether hazardous waste has been removed from the property. The court also denies a counterclaim alleging that the developers' actions were the proximate cause of the landowners' injuries, since causation must be determined by the jury. The developers alleged that the landowners withheld information about the presence of hazardous waste on the property when they sold the land to the developers. The court first holds that the landowners did not meet their burden of proving the absence of a continuing violation and, thus, a genuine issue of material fact exists as to whether hazardous waste remains on the property.

The court rejects the landowners' request for summary judgment on the developers' attorney fees claim under the HSCA, because the Act's relevant language applies to continuing violations; a condition that is still at issue. The court also denies summary judgment on the strict liability claim and holds that the credibility of the parties' expert witnesses must be assessed by the jury. The court, differentiating between recission based on misrepresentation and recission based on the mutual intent of the parties, holds that cases in the former category are equitable and allow the court flexibility in determining the proper form of relief. Since recission based on misrepresentation is at issue, the court denies defendants' request for summary judgment. The court also holds that the developers' claim for punitive damages survives a summary judgment attack, because punitive damages are recoverable in an action for fraud. Finally, the court holds that whether plaintiffs' actions were the proximate cause of defendants' injuries must be decided by a jury.

[A previous decision in this litigation is published at 21 ELR 21404.]

Counsel for Plaintiffs
Clare M. Diemer
Cohen, Shapiro, Polisher, Shiekman & Cohen
PSFS Bldg., 12 S. 12th St., 22d Fl., Philadelphia PA 19107
(215) 922-1300

Counsel for Defendants
William J. Devlin
Montgomery, McCracken, Walker & Rhoads
Three Pkwy., 20th Fl., Philadelphia PA 19102
(215) 665-7200