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).