knew or should have known that its waste was being disposed at a landfill not licensed to receive those substances.
Taking, as we must, the allegations in the complaint as true, the Plaintiffs have clearly stated a claim under Section 427B of the Restatement (Second) of Torts, since the generators' liability is not dependent upon ownership of the property or upon any degree of control over the work performed, nor is there any requirement that plaintiff have the status of an independent contractor. Instead, liability may attach on the sole ground that the Defendants, when employing the contractor, had reason to recognize that the trespass or nuisance was likely to result if the work was done in the usual manner. See Restatement (Second) of Torts Section 427B, comment (b).
Perhaps a large degree of the dispute on this count stems from the "nuisance" label the parties have placed on this claim. Defendants point out that a private nuisance has traditionally been viewed as a person's unreasonable use of his own property which causes damage to another's legitimate enjoyment of his right of person or property--and here, the Generator Defendants do not own the landfill. Nonetheless, the Court finds that Plaintiffs have stated a tort claim against the Generators under Section 427B; despite the dispute which underlies the count's "nuisance" label. For the foregoing reasons, the Generator Defendants' motion to dismiss this count will be denied.
STATUTE OF LIMITATIONS
The Defendants assert that the state law claims, Counts 2 through 5, should be dismissed because they are barred by the relevant Statute of Limitations. In support of this argument, the Defendants cite Title 42 Pa. C.S.A. § 5524 (4) and (7) as establishing that a two-year limitations period applies to Plaintiffs' claims.
In response, the Plaintiffs point out that subsection (7) of the applicable statute was added by an amendment on December 20, 1982, to take effect in 60 days or on February 20, 1983. Plaintiffs further point out that Section 403 of the Act of 1982, December. 20 P.L. 1409, No. 326, expressly provided that the amendment to Section 5524 "shall apply only to causes of action which accrue after the effective date of this Act." Plaintiffs argue that the complaint in the case at bar states that the cause of action accrued generally in 1979, and therefore, Section 5524 (7) does not apply.
Defendants point out that even if the court determines the 6-year Statute of Limitations is applicable to some claims, those claims are still barred. The Defendants argue that the amended complaint establishes that Plaintiffs learned of the problem surrounding the landfill in 1979, but did not file this action until 1986, approximately seven years later.
The Plaintiffs recognize this problem and suggest three alternate theories to preclude the Statute of Limitations from barring their claims: (1) that the Statute is tolled by the discovery rule; and (2) that the Statute is tolled by Defendants' concealment of their actions; and (3) that the Defendants' actions and omissions constitute a continuing tort.
Plaintiffs allege that the Statute of Limitations should be tolled because they could not have ascertained the identity of the Generator Defendants in the exercise of reasonable diligence. Plaintiffs recognize that under Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 471 A.2d 493 (1984), the burden is on an injured party once he discovers the cause of his injuries to determine within the statutory period the party's whose negligence or breach of duty were responsible for the event or condition. Plaintiffs maintain, however, that the burden of determining the negligent party is not absolute, and that an exception to the rule should exist to provide that obstacles that are so overwhelming to preclude discovery even in the exercise of reasonable diligence would toll the Statute under Cathcart. Thus, the Plaintiffs seek a ruling that where the Plaintiffs could not, in the exercise of reasonable diligence, identify a Defendant within the statutory period, the claim is therefore tolled.
The Defendants, on the other hand, assert that since the Plaintiffs admit that they were aware of the alleged improper disposal of hazardous waste at the landfill and the dangerous condition as early as 1979, the Statute cannot be tolled under the discovery rule. More specifically, Defendants maintain that the Plaintiffs are under a duty to use all reasonable diligence to inform themselves of the facts upon which a potential action may be based, and that the lack of knowledge on the part of the Plaintiffs is insufficient to toll the running of the Statute of Limitations. The Defendants maintain that the Plaintiffs' contention that the Statute is tolled if Plaintiffs are confronted with overwhelming obstacles which preclude the discovery of all defendants is not representative of Pennsylvania law on the subject.
As a general rule, the Statute of Limitations begins to run in a tort case when the cause of action accrues, meaning the date the injury is sustained. The "injury is done when the act heralding a possible tort inflicts damage which is physically objection and ascertainable." See Larthey by Larthey v. Bland, 367 Pa. Super. 67, 532 A. 2d 456, 458 (1987) citing Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). In the event the statutory period expires, a party may only bring suit if he can establish that an exception to the general rule applies which tolls the Statute of Limitations.
In Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468 (1983), the Pennsylvania Supreme Court indicated an exception to the general rule:
The -discovery rule- is such an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause . . . the salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury. The court presented with an assertion of applicability of the 'discovery rule' must before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action. (emphasis in original)
In Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 136-37, 471 A.2d 493 (1984) (en banc) the court in explaining the discovery rule, set forth the applicable standard as whether "the plaintiff knows or reasonably should know: (1) that he had been injured and (2) that his injury has been caused by another party's conduct." However, Plaintiffs need not know that they have a cause of action or that the injury was caused by another party's wrongful conduct. See Chandler v. Johns-Manville Corp., 352 Pa. Super. 326, 330-31, 507 A.2d 1253 (1986); Price v. Johns-Manville Corp., 336 Pa. Super. 133, 137-39, 485 A.2d 466 (1984). Instead, "once [a plaintiff] possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim." Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 44, 482 A.2d 1067 (1984) (emphasis in original) (quoting Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 288, 450 A.2d 681 (1982)). See also Urland v. Merrell-Dow Pharmaceuticals, 822 F.2d 1268, 1275 (3d Cir. 1987). The Court in Anthony v. Koppers Co., 284 Pa. Super. 81, 89, 425 A.2d 428 (1980) noted that the "application of the rule has been based upon the recognition that if a party, despite the exercise of diligence, cannot ascertain his injury, the statute of limitations should not run against his claim."
Moreover, the burden is on the injured party, once he discovers the cause of his injuries to determine within the statutory period (unless there is fraud or concealment), the party or parties whose negligence or breach of duty was responsible for the injuries. In that regard, the Court in Cathcart, supra, found that "an allegation of mere difficulty in identifying Defendants was not sufficient to toll the running of the Statute of Limitations . . . ." Id. at p. 139.
In light of the above, this Court finds that the alleged inability of the plaintiff to identify parties responsible for the cause of an injury is insufficient to invoke the discovery rule. Instead, the discovery rule only tolls the Statute of Limitations up until the point when a person realizes or should realize that he has been injured by another party's conduct. There is nothing in the rule that provides for the further tolling of the Statute until every responsible party can be identified. To the contrary, the Court in Cathcart expressly stated that it was the burden of the injured party to determine whose conduct caused the damages. See also Trieschock v. Owens Corning Fiberglas Co., 354 Pa. Super. 263, 511 A. 2d 863, 866 n. 3. (1986).
The above holding is supported by a number of federal courts which interpreted the discovery rule in the context of the Federal Torts Claim Act. In an analogy to these federal cases, we note that in Bickford v. Joson, 368 Pa. Super. 211, 533 A. 2d 1029 (Pa. Super. 1987), the court found that the discovery rule under Pennsylvania law closely parallels the Supreme Court's expression of the rule as it pertains to the Federal Torts Claim Act. See United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979). In Kubrick, the Supreme Court indicated that the accrual of a claim would be delayed until the injured party learns of both the fact of his injury and its cause. This language is identical to the Pennsylvania Supreme Court's characterization of the discovery rule components simply as the inability despite reasonable diligence to determine "the injury or its cause." Pocono International Raceway v. Pocono Produce, Inc., 503 Pa. 80, 86, 468 A.2d 468 (1983). The question then becomes whether "cause" is known when the immediate physical cause of the injury is discovered or when the responsible party who caused the injury is discovered. In Dyniewicz v. United States, 742 F.2d 484 (9th Cir. 1984), the Ninth Circuit considered this question. Writing for the Court, then Circuit Judge Anthony M. Kennedy stated:
Discovery of the cause of one injury . . . does not mean knowing who is responsible for it. The "cause" is known when the immediate physical cause of the injury is discoverable.