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ROHRBACH v. AT&T NASSAU METALS CORP.

June 21, 1994

SHARON ROHRBACH, et al., Plaintiffs,
v.
AT&T NASSAU METALS CORP., et al., Defendants


McClure, Jr.


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

June 21, 1994

 BACKGROUND:

 This is an environmental contamination case filed August 31, 1989 in which ten individual plaintiffs have asserted claims against defendants American Telephone and Telegraph Company (AT&T); AT&T Nassau Metals Corp. (AT&T Nassau); Lurgan Corporation (Lurgan); Joseph Brenner and C&D Recycling, Inc. (C&D Recycling). Lurgan operated a recycling center adjacent to plaintiffs' properties in Foster Township, Luzerne County, Pennsylvania from 1966 through 1978. In 1978, the facility was sold to C&D Recycling, which operated it until 1984, when all operations ceased. The property was the site of a clean-up effort spearheaded by the Environmental Protection Agency (EPA).

 During the years it was in operation, the facility's primary function was reclaiming materials (primarily lead and copper) from coated telephone cable supplied by AT&T. This was done pursuant to consignment contracts with an AT&T subsidiary.

 Plaintiffs allege federal causes of action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq, (CERCLA) (Count I) and the Racketeer Influenced and Corrupt Organizations Act, (RICO) 18 U.S.C. §§ 1961 et seq. (Counts III, IV and V), as well as pendent state claims under the Pennsylvania Hazardous Sites Cleanup Act (PaHSCA), Pa. Stat. Ann., tit. 35, §§ 6020.101 to 6020.1305 (Supp. 1992), (Count II) and for negligence (Count VI), *fn1" strict liability (Count VII), nuisance (Count VIII), trespass (Count IX), intentional infliction of mental and emotional distress and injury (Count X), and negligent infliction of mental and emotional distress and injury (Count XI). *fn2"

 Before the court is the motion by AT&T and AT&T Nassau for partial summary judgment against all adult plaintiffs on the state-law claims. Movants contend that the state-law claims should be dismissed as time-barred. (Since the motion seeks partial summary judgment against only the adult plaintiffs, "plaintiffs" as used hereinafter refers only to the adult plaintiffs. The facility in question shall be referred to as "the site." "Movants" shall refer to defendants AT&T and AT&T Nassau.)

 DISCUSSION:

 I. STANDARD OF REVIEW

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added).

 
. . . The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra at 323 and 325.

 Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).

 In addition to the foregoing principles of summary judgment, we have previously issued an order which read in part as follows:

 
6. All motions for summary judgment or partial summary judgment shall be accompanied by appendices containing documents cited in support of the party's position. All references in supporting or opposing briefs shall be supported by a reference stating the exact location in the supporting appendices where the information may be found. Failure to comply with this requirement will result in the court deeming the point cited unsupported by evidence in the record, a consideration the court will weigh accordingly in deciding whether to grant or deny the motion in question.

 Order #2 dated September 29, 1992, at 2-3 P 6 (record document no. 381).

 II. MATERIAL FACTS NOT GENUINELY IN DISPUTE

 The following facts have either been admitted by plaintiffs or have not been shown to be genuinely in dispute as outlined above:

 1. Plaintiffs filed their complaint on August 31, 1989.

 2. Lurgan ceased operations at the site in or about 1978.

 3. C&D ceased operations at the site, at the latest, in early 1984.

 4. Between the late 1970's and late 1984 or early 1985, plaintiffs observed the burning and chain-sawing of toxic materials.

 5. The burning was observed by each of the plaintiffs.

 6. On one occasion, Sharon Rohrbach smelled smoke throughout her house, and thought that there was a fire in the electrical wiring.

 7. On the same occasion, Sharon Rohrbach thought that "it was like dark waves of smoke were engulfing the house."

 8. She drove to the site, and was certain that it was the source of the smoke because she saw dark smoke emanating from the site, "bellowing, bellowing, bellowing, like they were burning tires."

 9. Sharon Rohrbach observed such smoke on a number of occasions, and the neighbors collectively complained to the local magistrate.

 10. Gary Rohrbach also observed the smoke, though never on his own property.

 11. Dean Oberst first observed smoke on his property in 1977 or 1978.

 12. Dean Oberst believed that smoke and other particles had blown from the site onto his property, and he went to the site to complain to the operators.

 13. Dean Oberst was told that burning at the site was done at night without afterburners, and he learned in the newspapers of the fires originated by the site.

 14. During the time that Lurgan owned the site, Deborah Oberst observed smoke, and family members would notify Lurgan that the smoke was causing problems.

 15. Deborah Oberst tried to take pictures of the smoke and other activities at the site because she knew that if the smoke "cross[ed] the property boundaries," she could prove that ...


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