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January 29, 1997

GOULD, INC., Plaintiffs,
A & M BATTERY AND TIRE SERVICE, et. al., Defendants.

The opinion of the court was delivered by: CONABOY

 Presently before the Court is Defendants Hudson Scrap Metal, Inc. and Jacob Sher's Motion for partial summary judgment against Plaintiff Gould, Inc.. (Doc. 1417). The defendants (hereinafter collectively referred to as "Hudson Scrap") contend that Hudson Scrap "is not a responsible person under section 107(a)(3) of CERCLA with respect to used batteries it brokered for indirect sellers." (Doc. 1418, p. 7). *fn1" Furthermore, Hudson Scrap also contends that its liability should be reduced from 95% to 5%, representing the amount of scrap batteries sent to the site by Hudson Scrap. For the reasons as set forth infra, we shall deny Hudson Scrap's motion.


 The facts surrounding the operation of the Marjol Battery Plant in Throop, Lackawanna County, Pennsylvania (hereinafter "the site") are known to all parties involved, the factual history can be found in the reported case of Gould, Inc. v. A & M Battery & Tire Service, et. al., 933 F. Supp. 431 (M.D. Pa. 1996). However, for the purposes of addressing the present motion, a brief recitation of the facts pertinent to Hudson Scrap is as follows.

 Hudson Scrap is a wholesale scrap dealer, "concentrating on the purchase and sale of recyclable products, particularly non-ferrous metal, such as scrap lead, stainless steel, aluminum, copper and brass." (Doc. 1419, Exh. 2, pp. 1-2, P 3). It was considered a "premier broker" in the area, conducting its brokering service within a one hundred and fifty mile boundary of its operations, (Doc. 1419, Exh. 3, p. 59), as well as Marjol's biggest broker, conducting approximately 95% of its brokerage work for Marjol. (Doc. 1419, Exh. 5, p 227).

 As a broker, Hudson Scrap "would perform a service, [working] as the middle man through Marjol [who] would pick up the batteries and [Hudson Scrap] would pay [its] customers. [Hudson Scrap] worked on a one percent profit margin on a load of batteries." (Id.). Once Hudson Scrap knew of an indirect seller who was in need of disposing batteries, it would call the site, inform it that there were batteries that needed to be disposed, and suggest a time for pick up. (Doc. 1419, Exh. 3, p. 64). Contact personnel at the site would then contact the indirect seller and finalize the plans for pick-up. (Doc. 1419, Exh. 3, p. 65). Finally, Marjol would pay Hudson Scrap for its services, including Hudson Scrap's mark up cost.

 Hudson Scrap openly admits and does not contest that it performed the brokering service. However, Hudson Scrap argues that a broker, "as a matter of law", cannot be liable under CERCLA.


 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 v. Commercial Finance Co. v. CIT Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).

 When reviewing a motion for summary judgment, the court must decide whether or not there is a genuine issue of material fact which must be resolved at trial or whether the evidence is so one-sided that one party will prevail over the other. Groff v. Continental Insurance Co., 741 F. Supp. 541 (E.D. Pa. 1990). "Where factual controversies exist, disputes over material facts that might affect the outcome of the suit under the governing law will probably preclude the entry of summary judgment." Metro Transportation Co. v. North Star Reinsurance Co., 912 F.2d 672, 678 (3d. Cir. 1990).

 We note that Hudson Scrap states in its brief in support of its motion that "this Court has significant opportunity to advance settlement of this case by granting Hudson Scrap's motion." (Doc. 1497, p. 6). Summary judgment determines whether or not there is a genuine issue of material fact that requires the case to proceed to trial. While settlement negotiations may follow the grant or denial of summary judgment, the court's focus is on the question of the existence of material fact disputes.

 Hudson Scrap, relying heavily on the unreported Illinois case of CP Systems, Inc. v. Recovery Corp. of Ill., 1994 U.S. Dist. LEXIS 5901, 1994 WL 174162 (N.D. Ill. 1994), contends that it is not a "responsible person" under ยง 107(a) of CERLCA with respect to used batteries it brokered for indirect sellers. Specifically, Hudson Scrap contends that its dealings with its scrap dealing customers do not meet any of the specific tests for arranger liability. *fn2" We state at the onset that we do not find the CP Systems decision persuasive, as it was essentially based upon a Rule 12(b)(6) standard. Furthermore, in a previous motion presented to the Court by defendant Denver Construction Corporation t/a Lukens Metal and Harold Strauss in his own capacity, also a broker, (Doc. 1133), we denied a similar motion by Order of Court dated June 17, 1996 (Doc. 1292), stating that "this Court has previously determined that a party that sells junk batteries to a battery-breaking ...

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