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October 18, 1988


The opinion of the court was delivered by: VAN ANTWERPEN


 I have before me MOTION OF THIRD PARTY DEFENDANT NATIONAL ROLLING MILLS, INCORPORATED, TO DISMISS THIRD PARTY COMPLAINT (filed May 26, 1988), and MOTION OF NATIONAL ROLLING MILLS, INCORPORATED, TO DISMISS PLAINTIFFS' AMENDMENT TO AMENDED COMPLAINT (filed August 16, 1988), and National Rolling Mills, Incorporated's memoranda in support of the motions. For the reasons given below, I am denying both motions to dismiss but will order Cockerhams to provide a more definite statement of their third-party complaint, and am allowing plaintiffs Con-Tech Sales Defined Benefit Trust and Synthes (U.S.A.) thirty (30) days to file amendments to their Amended Complaint.

 In simplified form, the parties are as follows: Con-Tech Sales Defined Benefit Trust and Synthes (U.S.A.) (collectively "plaintiffs") are the purchasers of parcels of land near the intersection of Ship Road and Lincoln Highway in Exton, Pennsylvania (the "parcels"). Gilbert Cockerham and McCoy R. Cockerham, individually and trading as M & G Cockerham (collectively "Cockerhams"), operated a waste disposal business and allegedly deposited hazardous wastes on the parcels. Richard T. Hannig and Louis R. Palitz, trading as Hannig and Rudolph ("Hannig and Rudolph"), sold the parcels to plaintiffs. National Rolling Mills, Incorporated ("NRM") is the alleged generator of the allegedly hazardous waste, and contracted with the Cockerhams for the disposal of that waste. The Pennsylvania Department of Environmental Resources ("DER"), not a party to this action, is the agency of the Commonwealth of Pennsylvania responsible for dealing with hazardous waste.

 Again in simplified form, the history of this action is as follows: On May 15, 1986, the plaintiffs purchased the parcels from Hannig and Rudolph, with the intention of constructing office buildings. During excavation, the allegedly hazardous wastes were discovered and DER was notified. After inspection and analysis, DER directed removal of the contaminated soil. This has been done at an alleged cost, as of March 10, 1988, of $ 1,600,000. These are the alleged "Response Costs". In addition, plaintiffs have suffered unspecified consequential damages.

 The essential procedural history of this action is as follows: On August 18, 1987, plaintiffs filed a complaint against Cockerhams and Hannig and Rudolph. On October 5, 1987, Cockerhams filed a motion to dismiss and for a more definite statement. On October 29, 1987, Hannig and Rudolph filed motions to dismiss and for a more definite statement. On December 12, 1987, Cockerhams withdrew their motion for a more definite statement. On February 22, 1988, I denied both motions to dismiss and the remaining motion for a more definite statement, but granted leave to amend the complaint. On March 10, 1988, an Amended Complaint was filed. On March 31, 1988, Hannig and Rudolph answered the amended complaint and filed a cross-claim against Cockerhams. On April 5, 1988, Cockerhams answered the complaint and filed a counter-claim against plaintiffs and a third-party complaint against NRM. On April 18, 1988, plaintiffs replied to Cockerhams' counter-claim. On April 25, 1988, Cockerhams answered Hannig and Rudolph's cross-claim and filed a cross-claim against Hannig and Rudolph seeking indemnification or contribution. This cross-claim has not been answered. On May 26, 1988, NRM filed a motion to dismiss Cockerhams' third-party complaint; this was answered by Cockerhams on June 7, 1988. The active motions before me are NRM's motions to dismiss Cockerhams' third-party complaint and plaintiffs' amended complaint.

 Plaintiffs have made claims against all defendants under the federal Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"), the Pennsylvania Solid Waste Management Act, 35 P.S. § 6018.101 et seq. (West Supp. 1988) ("SWMA"), and Pennsylvania common law under theories of negligence, public nuisance and civil conspiracy. In addition, they brought a common law complaint against Hannig and Rudolph for failure to disclose a latent defect. Cockerhams' third-party complaint against NRM alleges misrepresentation of the nature of the waste consigned to Cockerhams by NRM.

 The issues before me are whether Cockerhams, in their third-party complaint, and plaintiffs, in their amendment to amended complaint, have alleged causes of action on which relief may be granted. Fed.R.Civ.P. 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(f) provides that "All pleadings shall be so construed as to do substantial justice." Under Fed.R.Civ.P. 12(b)(6), "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibbon, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 NRM has moved to dismiss Cockerhams' third-party complaint on the grounds that it is barred by the Statute of Limitations and that, being based on fraudulent misrepresentations, it fails to plead fraud with the particularity required by Fed.R.Civ.P. 9(b). The two issues are inter related because the particularity required to satisfy Rule 9(b) might also satisfy the requirements for tolling the Statute of Limitations.

 In their third-party complaint against NRM, Cockerhams allege that throughout the period of their contractual relationship, from the mid 1960's until January, 1979, employees of NRM assured them that the wastes were "treated", "perfectly safe" and "non-hazardous". They further allege that they relied on these representations, and that NRM was the only possible source for hazardous wastes they may have dumped on the parcels. These allegations sound as a claim for misrepresentation under Pennsylvania common law, although the complaint does not say so. There is also an implied claim for indemnification under CERCLA, but that claim is not stated nor is the plaintiffs' amended complaint explicitly incorporated by reference.

 In order to state a claim for fraud, the allegation must comply with Fed.R.Civ.P. 9(b), which says:

"(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."

 Among the things not alleged are the names, or even the positions of the NRM employees who made the alleged misrepresentations, how and when Cockerhams discovered the misrepresentations or any effort by Cockerhams to protect against misrepresentation.

 The when and how of discovery of misrepresentation is crucial to Cockerhams' case because the third-party complaint was filed some nine years and four months after the last alleged misrepresentation, three years and four months beyond the applicable Statute of Limitations, 42 Pa. Con. Stat. Ann. § 5527, A. J. Cunningham Packing Corp. v. Congress Financial Corp., 792 F.2d 330, 332 (3d Cir. 1986).

 Under Pennsylvania law, as stated in Bickell v. Stein, 291 Pa. Super. 145, 435 A.2d 610, 612 (1980):

". . . as a general rule the start of the statutory limitation on an action in tort may be delayed by plaintiff's ignorance of his injury and its cause, until such time as he could or should have discovered it by the exercise of reasonable diligence. Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895); Anthony v. Koppers Co., Inc., 284 Pa. Super. 81, 425 A.2d 428, 431-435 (1981) (and cases cited therein); Gee v. CBS, Inc., 471 F. Supp. 600, 617 (E.D. Pa., 1979).
The plaintiff has the burden of justifying any delay beyond the date on which the limitation would have expired if computed from the date on which the acts giving rise to the cause of action allegedly occurred. He must allege and prove facts which show that he made reasonable efforts to protect his interests and which explain why he was unable to discover the operative facts for his cause of action sooner than he did. Patton v. Commonwealth Trust Co., 276 Pa. 95, 99, 119 A. 834 (1923)."

 NRM has prayed for the alternative remedies of dismissal pursuant to Fed.R.Civ.P. 12(b) (6) or a more definite statement under Fed.R.Civ.P. 12(e). Since, upon review of the record in this matter, I am convinced that Cockerhams may have bases to state a better case than they have done so far, I will grant the latter and allow Cockerhams thirty (30) days to file a more definite statement of their third-party complaint.

 NRM has moved to dismiss the amendment to the amended complaint on the grounds that: (1) There is no cause of action under CERCLA because there has been no release or threatened release of a hazardous substance from a facility (NRM's emphasis); (2) plaintiffs have no cause of action under SWMA because there is no private cause of action under SWMA and there is no recovery under SWMA against a generator of hazardous waste who does not also dispose of it; and (3) plaintiffs have not sufficiently alleged a common law cause of action for negligence, public nuisance or conspiracy.

 NRM, paraphrasing Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1278 (D. Del. 1987), aff'd., 851 F.2d 643, 1988 U.S. App. LEXIS 8921 (3d Cir. 1988, as amended July 28, 1988), gives the following elements for a CERCLA claim by an individual claimant under § 9607 (NRM memorandum, page 7):

"1. NRM arranged for the transport or disposal of hazardous substances;
2. NRM's hazardous substances were disposed of at ...

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