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CHAMBERS DEV. CO. v. BROWNING-FERRIS INDUS.

January 13, 1987

CHAMBERS DEVELOPMENT COMPANY, INC., Plaintiff,
v.
BROWNING-FERRIS INDUSTRIES , BROWNING-FERRIS INDUSTRIES OF PENNSYLVANIA, INC., WILLIAM CURTIS, CLIFFORD BRIGHT, EDWARD BENKO, WILLIAM PITTMAN, LOUIS MAZZARO, DAVID HUMPHREYS, ANTHONY PHILLIP, JR., MAZZORO COAL & DISPOSAL CO. INC., RAYMOND NICOLETTI and CAROL MAZARRO NICOLETTI, Defendants



The opinion of the court was delivered by: WEBER

 This complex litigation involves allegations of antitrust and RICO (Racketeer Influenced and Corrupt Organizations) Act violations as well as pendant state claims. Discovery has been completed, and pretrial motions together with briefs and evidentiary materials have been filed and responded to by the parties, and are ready for determination by this court. We will decide at this time only those motions for summary judgment which deal with the claims brought by plaintiff, Chambers Development Company, against defendants, BFI and BFI-PA, because the court has previously ordered that claims against individual and counterclaim defendants be tried separately.

 Motions for summary judgment, pursuant to F.R.Civ.P. 56, should be granted only when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Adickes v. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). All favorable inferences are to be drawn to the benefit of the non-moving party. Hollinger v. Wagner Mining Equipment Company, 667 F.2d 402, 405 (3d Cir. 1981). Even where the preponderance of the evidence appears to lie on the moving party's side, if an issue of material fact is found to exist, the case must be permitted to proceed to trial. Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981).

 CHAMBERS' MOTION FOR SUMMARY JUDGMENT REGARDING JURISDICTION OVER BFI

 Plaintiff has moved for summary judgment on the issue of this court's exercise of personal jurisdiction and venue over BFI. Plaintiff has supported this motion with extensive evidentiary materials and an in depth factual basis for such a finding.

 Defendant opposed the motion with evidentiary materials and arguments attempting to establish a disputed factual issue for trial. Defendant also argues that a determination of this issue on summary judgment will not affect significantly the amount and kind of evidence that will be produced at trial, and therefore little, if any, narrowing of issues would be accomplished by a summary determination. We believe that this is the case. Further it appears that defendants have established that there is a dispute over the inferences we should draw from the substantial evidence which plaintiff presents. For these reasons, we will deny plaintiff's motion.

 BFI/BFI-PA'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON CHAMBERS' DAMAGE CLAIM

 BFI and BFI-PA have moved for partial summary judgment on plaintiff's claim for damages incurred by the allegedly unnecessary landfill construction, engineering and other operations required by the Department of Environmental Resources (DER) for the purpose of preventing off-site migration of methane and lechate at Chambers' Monroeville landfill. BFI bases its motion on the following facts which appear to be undisputed:

 
1. In May 1978 DER and Chambers entered into a Consent Agreement and Order which would require certain work by Chambers to deal with the problem of off-site migration of methane and lechate.
 
2. This Consent Agreement and Order has not been vacated or modified, and is still in effect.
 
3. Chambers has not taken any administrative or state court action to set aside or modify the Consent Order.
 
4. Chambers is claiming as part of its damages in this action expenses for work done under the Consent Agreement.

 BFI argues that Chambers cannot recover for expenses incurred in complying with a valid state consent order, and asks for partial summary judgment on this basis.

 Chambers proposes that this court make an analogy in which BFI would be considered to have tortiously interfered with a contractual relationship between the DER and Chambers, whereby DER agreed to leave Chambers alone if it complied with the law. We do not think that such an analogy can properly be made on these facts. Chambers also argues that the Consent Agreement should be seen as the settlement of a dispute between Chambers and DER, that does not affect Chambers' ability to proceed against BFI who ...


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