neither plaintiff nor defendant is entitled to summary judgment as to any HSCA claim.
Count IV of Tri-County's Amended Complaint alleges negligence per se in violating statutory requirements. The bulk of this count consists of allegations that Clow violated the SWMA (Pennsylvania Solid Waste Management Act). Additionally, Tri-County alleges violations of the HSCA and avers that "the policies of both the SWMA and HSCA are furthered by allowing violations of those statutes to serve as the basis for a claim of negligence per se."
In support of its motion for summary judgment defendant Clow correctly notes (1) that the SWMA does not create a private right of action for the recovery of money damages; Fleck v. Timmons, 374 Pa. Super. 417, 543 A.2d 148, 152 (1988); and (2) that a plaintiff cannot circumvent the lack of such a private cause of action by initiating a cause of action for negligence per se based on SWMA violations; Lutz v. Chromatex, Inc., 718 F. Supp. 413, 426 (M.D. Pa. 1989). Defendant declines, however, to address or even to note Count IV's alternative reliance on the existence of alleged HSCA violations. Neither does defendant Clow consider whether Count IV would be a viable count in the event that a private cause of action exists under HSCA.
Insofar as this Court has held that a private cause of action exists under HSCA, the rationale of Lutz v. Chromatex, supra, does not apply to Count IV. Accordingly, based on Fleck, supra, and Lutz, supra, this Court will grant summary judgment for defendant on Count IV only to the extent that Count IV relies upon SWMA violations.
Defendant Clow next contends that the common law negligence tort claims contained in Count IV, as well as the additional tort claims in Counts V, VI, VII and VIII, are time barred because they are based on tortious conduct and were not brought within the applicable two year Pennsylvania statute of limitations.
In so arguing defendant Clow acknowledges that, under Pennsylvania's "discovery rule," the statute is tolled until the plaintiff discovers, or should by reasonable diligence have discovered, the injury at issue. See, e.g., Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 135-36, 471 A.2d 493, 500 (1984) (en banc). Clow maintains, however, that plaintiff's common law causes of action were still not timely filed because the uncontested evidence establishes that plaintiff was aware of its "injury" well prior to September 10, 1988, two years before the September 10, 1990 commencement of this action.
Since the common law claims were initiated more than two years after the discovery of the waste, this Court must determine the validity of Tri-County's reliance on Piccolini v. Simon's Wrecking, 686 F. Supp. 1063, 1075 (M.D. Pa. 1988) in support of its argument that an "actor's failure to remove from land in the possession of another a thing which he has tortiously . . . placed on the land constitutes a continuing trespass for the entire time during which the thing is on the land. . ." (emphasis in original).
The cases considering Pennsylvania's continuing trespass doctrine are not entirely consistent.
Under Pennsylvania law, however, the critical distinction is whether the injury is permanent and effects a permanent change in the condition of the land, or whether the action concerns separate and recurrent injuries which cannot be ascertained or estimated so as to be brought in a single action. Piccolini, supra, at 1076-1077; Sustrik v. Jones & Laughlin Steel Corp., 413 Pa. 324, 327, 197 A.2d 44 (1964).
Crucial factors which must be considered in distinguishing between "permanent change" on the one hand, and "'temporary', 'transient or 'recurring' injury" on the other, are (1) the "ascertainability or predictability of the injury involved" and (2) "the question of the regularity of the incidents . . ." Graybill v. Providence Township, 140 Pa. Commw. 505, 593 A.2d 1314, 1316-1317 (1991). Thus, in Graybill, where it was impossible to know how many incidents of flooding would occur, or what the severity of those incidents would be, the court found a continuing trespass. This case, however, does not present such a scenario and, therefore, does not involve a continuing trespass. The depositing of the waste was a completed act at the time that the property was conveyed. Further, it effected a permanent change in the condition of the land for which an accurate assessment of the total damages was possible. See e.g. County of Allegheny v. Merrit Constr. Co., 309 Pa. Super. 1, 454 A.2d 1051 (1982); compare Graybill, supra. Thus, since plaintiff did not initiate the actions brought in Counts IV-VIII within two years of the discovery of the waste, they are barred by the statute of limitations. Summary judgment in favor of defendant will be granted as to those counts of the Amended Complaint.
Finally, Clow seeks summary judgment on the indemnification claim in Count X of the Amended Complaint solely on the ground that "Tri-County's alleged damages were caused by its own misconduct rather than by the actions of Clow."
Specifically, Clow argues that DER's investigation and subsequent remediation order were the product of Tri-County's own misbehavior in early 1988 when it mishandled barrels containing waste. This argument is without merit. As plaintiff points out in its brief in opposition to Clow's summary judgment motion:
The fact that DER's action against Tri-County was the immediate result of Tri-County's alleged misconduct in handling the barrels should not obscure the fact that Tri-County's private cause of action against Clow is a product of Clow's having buried the materials in the first place.
(emphasis in original). Summary judgment will not be granted on the indemnification claim.
The third motion before the Court is Tri-County's motion to strike defendant's jury trial demand. In this motion plaintiff correctly notes that there is substantial authority holding that there is no right to a jury trial on CERCLA restitution claims which are equitable in nature. E.g. United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726 (8th Cir. 1986); Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377 (E.D. Cal. 1991); United States v. Mottolo, 605 F. Supp. 898 (D.N.H. 1985) (collecting cases); United States v. Tyson, 22 E.R.C. (B.N.A.) 1471 (E.D. Pa. 1984); United States v. Wade, 653 F. Supp. 11. 13 (E.D. Pa. 1984). Defendant challenges the logic and analyses of the courts that have decided this issue and maintains that CERCLA response claims are not equitable in nature. This Court, however, will not re-examine or re-evaluate the extensive and well settled authority holding that there is no right to a jury trial on CERCLA response claims.
In response to plaintiff's motion to strike the jury demand, defendant Clow, who moved for summary judgment as to all of plaintiff's common law claims, next contends, based on Molthan v. Temple University, 778 F.2d 955, 961 (3d Cir. 1985), that the right to a jury trial exists as to all of plaintiff's claims because the right to a jury trial exists as to the common law negligence, misrepresentation and strict liability claims.
Despite the grant of summary judgment on the negligence, misrepresentation and strict liability claims, defendant would remain entitled to a jury trial under Molthan if there is a right to a jury trial on either the indemnification claim or the pending HSCA (Hazardous Sites Cleanup Act) claims.
With respect to the indemnification claim there is without question a right to a jury trial under Pennsylvania law. Indemnity in Pennsylvania is a common law action which has been described as a "right which ensures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable . . ." Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 506 A.2d 868, 871-872 (1986), quoting and reaffirming Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). As such, unlike matters which were traditionally tried in the equity courts, an indemnification claim is a claim as to which there is a right to a jury trial. Since there is a right to a jury trial on an indemnity claim, this Court will apply Molthan and, based thereon, will deny plaintiff's motion to strike the jury trial request made by defendant.
As a result of Molthan's application, this Court need not decide the novel question of whether there is a right to a jury trial on the pending HSCA claims which constitute a private cause of action. However, even if it were ultimately determined that this Court incorrectly applied Molthan and that no right to a jury trial exists on HSCA response cost claims, the result would be no different.
Under the circumstances of this case, the Court deems this case as an appropriate one for an advisory jury pursuant to Rule 39(c) of the Federal Rules of Civil Procedure. For this additional reason, the motion to strike the jury trial request will be denied.
The final motion before the Court is the motion of Clow, filed pursuant to Rule 26(b)(4)(A) of the Federal Rules of Civil Procedure, to compel the deposition of plaintiff's expert James Smith.
The question of whether to permit such a deposition is a matter within the sound discretion of a trial Court which is particularly well advised to grant such a motion where, as here, expert testimony will be critical and the expert's report is generalized. See, e.g., Dennis v. BASF Wyandotte Corp., 101 F.R.D. 301, 303-304 (E.D. Pa. 1983); Butler v. Yamaha Motor Co., Ltd., Civil Action No. 89-1380 (E.D. Pa. 1991) (1991 U.S. Dist. LEXIS 15846).
Based on the pleadings and the record, and most especially on the critical importance of expert evidence in this case, this Court believes that the interests of justice will be best served by granting defendant's motion and allowing a deposition of plaintiff's expert pursuant to restrictions as contemplated by Rule 26(b)(4)(A). Dennis, supra ; Butler, supra. As a pre-condition, however, defendant Clow must agree to make its expert available for deposition by plaintiff, should plaintiff wish to conduct such a deposition. No expert witness deposition shall exceed four hours, without leave of Court. The depositions shall be concluded within 20 days of the accompanying Order. Finally, any party electing to depose the opposing party's expert pursuant to this Order shall pay the expert a reasonable fee for his time. Dennis, supra, n.3 at 304.
An appropriate order follows with respect to all pending motions.
AND NOW, this 8th day of May, 1992, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of plaintiff Tri-County Business Campus Joint Venture for summary judgment is DENIED;
(2) the motion of defendant Clow Corporation for summary judgment is GRANTED as to Counts IV-VIII of the Amended Complaint and is OTHERWISE DENIED;
(3) the motion of plaintiff Tri-county Business Campus Joint Venture to strike defendant's jury trial demand is DENIED; and
(4) the motion of defendant Clow Corporation to depose plaintiff's expert James Smith is GRANTED, subject to the terms and conditions set forth in the accompanying Memorandum of the Court.
BY THE COURT:
Harvey Bartle IV