demolition of a particular building which the regulations seek to control. The owner of the demolition operation is the owner of the building since it owns the source from which the pollution emanates.
Interpreting the asbestos regulations to apply to the owner of a building being demolished also furthers the purposes of the Clean Air Act by insuring that owners of property act responsibly in disposing of their buildings. The regulations prevent the owner of a building from avoiding liability for hazardous substances present in a building by merely contracting with another party to demolish the building. Amstar's third affirmative defense is entirely without legal merit and will be stricken.
Amstar's fourth affirmative defense states that "by operation of the terms of the contract between Amstar and Geppert, all buildings to be demolished at the refinery, including any asbestos in them, were owned and controlled solely by Geppert Bros. Inc." The contract, attached as an exhibit to Amstar's answer to the complaint, provides that Geppert will demolish certain "improvements" on Amstar's property and in return will be entitled to the proceeds of the sale of any salvagable materials. Amstar argues that since Geppert was entitled to the proceeds from the sale of the material salvaged from the demolished buildings that Geppert, not Amstar, owned the buildings and that therefore Geppert, not Amstar, was the owner of the demolition operation. This argument is incorrect both in terms of its assumptions as to the legal effect of the contract and as to the applicability of the regulations.
The contract in no way constitutes an agreement to sell the buildings to be demolished to Geppert. The contract is titled "Agreement between Owner and Contractor." Amstar is identified as the "owner" of the premises in question. Amstar entered into the contract to "cause the demolition of certain improvements" located on its property. See Agreement Between Owner and Contractor, para. B. Amstar retained full ownership of the property. Geppert was only entitled to the proceeds from the sale of salvagable material from the buildings. Obviously this entitlement would only arise after Geppert had demolished the buildings, as it was obligated to do in the contract. Geppert could not in any sense be said to have owned the buildings. Amstar contracted with Geppert to demolish the buildings, not to buy them and thus Amstar, as a matter of law, was the owner of the buildings even after signing the contract with Geppert.
Furthermore, the purpose of the asbestos regulations in question is to insure that buildings containing asbestos are demolished in such a way as to minimize the release of asbestos dust into the air. In furtherance of this goal, the regulations impose obligations on both the owner of the building and the operator of the demolition project. It is clear that Amstar, as owner of both the buildings and the property, contracted with Geppert to demolish and remove the buildings from the property. It would defeat the purposes of the regulations to allow Amstar to avoid its obligations under the regulations merely because it gave Geppert rights to the salvagable material from the buildings. Thus, Amstar's fourth affirmative defense, based on its contract with Geppert, will be stricken.
Amstar's fifth affirmative defense is an equitable defense based on alleged wrongdoing by the United States government which led to Amstar having to close its refinery and demolish the buildings. Amstar argues that because the United States' trade policies forced Amstar to go out of business and to demolish the buildings, Amstar cannot be held liable to the United States for any air pollution caused by the demolition. Amstar also argues that the government's hands are somehow unclean because the government has adopted regulations which make Amstar liable for the demolished buildings. I find these arguments to be entirely irrelevant to Amstar's obligation, as the owner of the buildings, to insure that the buildings were properly demolished. The argument is totally without merit. Thus, I will strike Amstar's fifth affirmative defense as irrelevant, wholly ineffective and frivolous.
The final challenge raised by the government is to Amstar's counterclaim. Amstar seeks its litigation expenses as well as punitive damages and injunctive relief in its counterclaim. In its brief opposing the government's motion to strike, Amstar states that its counterclaim, is not a tort claim, but rather is an action for costs under 28 U.S.C. § 2412. I thus find it difficult to see how Amstar could be entitled to punitive damages or injunctive relief on its counterclaim. To the extent that Amstar in fact did intend to bring a tort claim for either abuse of process or wrongful use of a civil proceeding, such claim must be dismissed. A claim of abuse of process requires as an essential element either an arrest or seizure. Sheridan v. Fox, 531 F. Supp. 151, 154 (E.D. Pa. 1982). Neither of these elements has been alleged in the present case and thus any claim for abuse of process must be dismissed. A claim of wrongful use of a civil proceeding, while not requiring an arrest or seizure, does require as an essential element that the allegedly improper proceedings have been terminated in favor of the party bringing the wrongful use of civil proceeding claim. Sheridan, 531 F. Supp. at 154. Since the civil action against Amstar has not been concluded, Amstar obviously cannot yet meet this requirement and thus any claim for wrongful use of a civil proceeding must also be dismissed. Similarly any claim for attorney's fees and costs against the government under 28 U.S.C. § 2412(b) can only be brought by a prevailing party. Thus, since no aspect of Amstar's counterclaim is properly before the court at this time, I will dismiss Amstar's counterclaim without prejudice.
Upon consideration of the United States' motion to strike three affirmative defenses brought by defendant Amstar and to dismiss Amstar's counterclaim and Amstar's response thereto,
It is Ordered that the United States' motion is granted and Amstar's third, fourth and fifth affirmative defenses are struck and Amstar's counterclaim is dismissed without prejudice.