United States District Court, E.D. Pennsylvania
a groundwater contamination dispute between neighboring
owners of industrial properties in Bethlehem, Pa. The
plaintiff, Atlantic Holdings Limited, filed claims against
the defendants, Apollo M s, Ltd. and Apollo M s, Inc., under
state and federal law.
defendants filed a motion for partial summary judgment on the
plaintiff's four state law tort claims,  arguing that
Pennsylvania's two-year statute of limitations precludes
these claims. Each side briefed the matter and presented its
case at a hearing on Nov. 28, 2017. Taking into consideration
the parties' briefings and oral arguments, I will deny
the defendants' motion because there are genuine issues
of material fact as to whether Atlantic knew or should have
known, more than two years before filing its 2014 lawsuit, of
contamination on its property stemming from Apollo's
a Pennsylvania company, operates a commercial storage
facility on its property, which it purchased in 1997. (Compl.
¶¶ 4, 9, Doc. No. 1.) Apollo, also a Pennsylvania
company, purchased its neighboring property seven years
earlier, in 1990, and operates a steel manufacturing
facility. (Id. ¶ 12.) Atlantic's property
is “immediately adjacent to, and downgradient
from” Apollo's. (Id. ¶ 10.) Atlantic
alleges that its groundwater has become polluted by
hexavalent chromium and TCE, pollutants that migrated from
the defendant's property. (Id. ¶¶
plaintiff claims that the presence of these pollutants on its
property “was confirmed in an October 2012
environmental covenant” between the defendants and the
Pennsylvania Department of Environmental Protection
(“PADEP”), which “imposed certain use and
activity limitations on Defendants' property” and
properties impacted by the migrating groundwater pollution.
(Id. ¶¶ 15-16.)
around 2012, the defendants offered to “close three
existing, inactive wells” on the plaintiff's
property. (Id. ¶ 19.) Curious as to why the
defendants would make such an offer, the plaintiff hired
American Analytical & Environmental Inc.
(“AAE”) to assess the situation. (Id.
¶ 20.) AAE did so and provided Atlantic with a report in
Feb. 2013, which explained that hexavalent chromium and TCE
had migrated from underneath the defendants' property to
Atlantic's. (Id. ¶ 21.) AAE also informed
Atlantic that the covenant between the defendants and the
PADEP prevented Atlantic from using the groundwater
underneath its property and required PAEDP approval to
initiate the use of its existing but inactive wells.
(Id. ¶ 22.) This restriction on the
plaintiff's property is significant because the plaintiff
had planned to install a geothermal heating system, which
would use the well water. (Id. ¶ 24.)
the plaintiff contends that the Feb. 2013 AAE report, which
it commissioned after the defendants offered to pay to close
its wells, triggered the tolling of the statute of
limitations, the defendants argue in their motion for partial
summary judgment that the statute of limitations began
running either in 2004 or 2007, thereby barring the four
state tort claims.
plaintiff initiated this dispute in the Lehigh County Court
of Common Pleas on Oct. 1, 2014. (Defs.' Mot. for Partial
Summ. J. 1, Doc. No. 27.) Eventually, Atlantic discontinued
its state court claims and initiated this federal lawsuit on
Nov. 30, 2016. (Id.) On Aug. 16, 2017, Apollo filed
a motion for partial summary judgment on the plaintiff's
four Pennsylvania common law tort claims, arguing that the
state statute of limitations had run. (Doc. No. 27.) On Sept.
11, 2017, Atlantic filed its response. (Doc. No. 30.) And on
Oct. 3, 2017, Apollo filed its reply. (Doc. No. 31.) At a
hearing on Nov. 28, 2017, the parties argued their respective
sides of the dispute. The issue is now ripe for decision.
shall grant summary judgment where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is “material” if it would affect the outcome
of the case under applicable law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed issue
is “genuine” if it would allow a reasonable
fact-finder to return a verdict in favor of the nonmoving
party. Id. Summary judgment is appropriate when the
nonmoving party fails to provide evidence “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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
party seeking summary judgment must inform the court of the
basis for its motion and identify the portions of the record
that demonstrate “the absence of a genuine issue of
material fact.” Id. at 323. Relevant portions
of the record include “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials.” Fed.R.Civ.P. 56(c)(1). Alternatively,
the moving party can show “that the materials cited [by
the nonmoving party] do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Id.
determining whether to grant summary judgment, a court must
draw “all justifiable inferences” in favor of the
nonmoving party and must conclude not whether “the
evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented.”
Anderson, 477 U.S. at 252, 255.
defendants contend that partial summary judgment in their
favor is warranted because Pennsylvania's statute of
limitations bars the plaintiff's four tort claims-
negligence, trespass, nuisance, and strict liability (counts
V-VII). (Defs.' Mot.) Based on the following analysis, I
find that summary judgment is not proper because the statute
of limitations determination hinges on questions of material
fact that a jury must decide.
imposes a two-year statute of limitations on “tortious
conduct, ” which encompasses the four claims noted
above. See 42 Pa. C.S. § 5524(7) (2017). It is
well established that federal courts must apply state
statutes of limitation to state law claims. See Guaranty
Trust Co. of N.Y. v. York, 326 U.S. 99, 110 (1945).
Pennsylvania's Statute of Limitations and the Discovery
Pennsylvania Supreme Court thoroughly articulated the
application of and exceptions to Pennsylvania's statute
of limitations in a 2005 negligence case. See Fine v.
Checcio,870 A.2d 850 (Pa. 2005). Generally, limitations
periods in Pennsylvania begin tolling “when the
plaintiff could have first maintained the action to a
successful conclusion.” Id. at 857 (citing
Kapil v. Ass'n of Pa. State Coll. and Univ.
Faculties, 470 A.2d 482, 485 (1983)). The discovery rule
is an exception to this general principle; it tolls the
limitations period while a party “who has not suffered
an immediately ascertainable injury is reasonably unaware he
has been injured.” Id. at 858 (citing
Hayward v. Med. Center of Beaver Cty., 608 A.2d
1040, 1043 (1992), abrogated by Fine, 870 A.2d 850).
When this discovery rule exception ...