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DOMBROWSKI v. GOULD ELECS.

December 31, 1996

JOHN DOMBROWSKI, et al., Plaintiffs,
v.
GOULD ELECTRONICS, INC., Defendant.



The opinion of the court was delivered by: CONABOY

 Presently before the Court is the "Motion for Partial Summary Judgment of Defendant, Gould Electronics, Inc. (hereinafter "Gould"), to dismiss claims of David and Linda Miller for Diminution in property value and loss of use and enjoyment of property as set forth in Counts II, III and IV of Complaint pursuant to Rule 56(b) of the Federal Rules of Civil Procedure" (Doc. 62). Through this motion, Gould contends that the statute of limitations has run in regards to Plaintiffs', Linda and David Miller, negligence, nuisance and trespass claims (Counts II, III and IV respectively). For the reasons as set forth infra, we shall grant Gould's motion and shall dismiss Counts II, III and IV as they pertain to Plaintiffs David and Linda Miller.

 FACTUAL AND PROCEDURAL BACKGROUND

 Factual Background

 From approximately 1962 to 1980, the Marjol Battery Company (hereinafter "Marjol") owned and operated a battery crushing and lead processing plant in the Borough of Throop, Lackawanna County, Pennsylvania (hereinafter "the site"). The site was located within a residential neighborhood. In 1982, Gould merged with Marjol, became the owner of the site and continued operations on the site until 1982. *fn1"

 As a result of the business activities at the site, the site became contaminated with lead and other hazardous materials, and lead by means of leakage, seepage, runoff, emission and/or erosion had contaminated the surrounding air and groundwater, as well as the soil of the neighboring residences. In accordance with state and federal environmental departments and their policies, the site has undergone and is still undergoing clean up measures in order to remedy the hazardous condition of the site.

 Within the complaint, the plaintiffs, including the Millers, contend that as a result of the operations of the site, "the stigma attached thereto" and the "widespread media coverage thereof, the value of each adult plaintiffs' property has been substantially diminished." (Id.). The plaintiffs also allege that they have experienced a "loss and/or impairment of the beneficial use and enjoyment of their homes and properties, all to their great detriment." (Id.). The complaint itself is grounded in state environmental law and common law principles of negligence, nuisance and trespass. *fn2"

 Discovery has been progressing at a productive pace in this matter. At times, the parties have found it necessary to file dispositive motions pertaining to certain issues. Presently before the Court is such a motion, as Gould claims that Plaintiffs David and Linda Miller's "property claims", nuisance and trespass claims are barred by Pennsylvania's statute of limitations. *fn3"

 DISCUSSION

 Standard of Review

 Pursuant to Fed. R. Civ. P. 56(c), a motion for summary judgment will only be granted if there is no genuine issue of material fact and if the moving party is entitled to relief as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-8, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1985). A fact is "material" if proof of its existence or nonexistence would effect the outcome of the lawsuit under the applicable law in the case. Anderson, 477 U.S. at 248. An issue of material fact is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir. 1987).

 In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). A moving party is entitled to a judgment as a matter of law if the nonmoving party does not make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1985).

 Once the moving party has satisfied its burden of identifying evidence which demonstrates an absence of a genuine issue of material fact, Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988), the nonmoving party is required by Fed. R. Civ. P. 56(e) to go beyond the pleadings by way of affidavits, depositions or answers to interrogatories in order to demonstrate specific material facts which give rise to a genuine issue. Celotex, 477 U.S. at 324. When Rule 56(e) shifts the burden of proof to the nonmoving party, that party must proffer evidence to show the existence of every element essential to its case which it bears the burden of proving at trial. Equimark Commercial Finance Co. v. CIT Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).

 A. THE MILLER'S NEGLIGENCE THEORY: THE "PROPERTY CLAIMS"

 Gould contends that the plaintiffs' negligence claim is barred by Pennsylvania's statute of limitations, as the plaintiffs' praecipe for writ of summons was not filed within the prescribed two (2) year time limit. We agree.

 Generally, "the true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion." Argust v. Mackey General Contracting, 390 Pa. Super. 183, 187; 568 A.2d 255, 257 (1990). Pursuant to Pennsylvania law, any action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional or otherwise tortious conduct or any other action or proceeding sounding in trespass must be commenced within two (2) years. 42 Pa.C.S.A. § 5524(a)(7) (West & 1996 Supp.). "In the event the statutory period expires, a party may only bring suit if he can establish that an exception to the ...


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