In a recent case from the United States District Court for the Western District of Pennsylvania, the court granted a partial motion to dismiss the plaintiff’s common law claims because they were deemed time-barred under Pennsylvania law.  Iorfido v. Domtar Paper Company, LLC et al., No. 23-156, 2024 WL 1346641 (W.D. Pa. Mar. 29, 2024).  The lawsuit stemmed from a paper mill’s ongoing emissions of lime particulate matter that allegedly harmed plaintiff’s property.  The court dismissed the common law claims as obviously barred by the two-year statute of limitations as pled in plaintiff’s complaint.

The case related to a paper mill that had been operating continuously pursuant to an air permit since 2000.  In his complaint, the plaintiff alleged that his property, which was in vicinity to the mill, was exposed to “chronic unauthorized emissions of lime particulate matter” which polluted the air, and settled on the ground, buildings, and vehicles at the plaintiff’s property.  After initially providing reimbursement for the plaintiff’s cleanup efforts on his property, the paper mill company discontinued payments and the plaintiff continued to address the contamination at his own cost. 

Plaintiff filed his complaint on May 25, 2023, alleging federal Clean Air Act and Pennsylvania Air Pollution Control Act violations in addition to nuisance and trespass claims, for which the plaintiff sought injunctive relief, civil penalties, and monetary damages.  The paper mill company filed a partial motion to dismiss the third count of plaintiff’s complaint for failure to state a claim, arguing that the plaintiff’s common law claims were time-barred because they were raised more than two years after the initial lime pollution event. 

The court agreed with the paper mill company and dismissed the common law claims, reasoning that under Pennsylvania law, “[w]hen the statute of limitations begins to run for causes of action for trespass and nuisance depends on whether the wrong is permanent or continuing.”  To make this determination, courts look to a variety of factors, including: 1) “the character of the structure or thing which produces injury”; 2) whether “the consequences of the [trespass/nuisance] will continue indefinitely”; and 3) whether the “past and future damages may be predictably ascertained.”

As to the first factor, the court concluded based upon the allegations in the complaint that the mill was a permanent fixture, and that it was reasonable to expect its operations to continue indefinitely in view of the air permit authorizing its emissions.  Consequently, and with regard to the second factor, the court reasoned that lime pollution events were expected to continue indefinitely and that their periodic occurrence did not preclude a finding of permanence.  Finally, the court found that the lime pollution events were not so irregular and unpredictable as to prevent ascertainment of the plaintiff’s past and future damages in a single action.  Accordingly, the court determined that the lime pollution events were permanent in nature.

Because the pollution events were deemed “permanent,” the relevant date for statute of limitations purposes was the date the pollution first occurred, rather than the date of each successive pollution event.  On the face of the complaint, the plaintiff had alleged that the pollution events began in 2020.  Therefore, the court held that plaintiff’s common law claims were barred by the two-year statute of limitations. 

The court’s decision is a rare illustration of an affirmative defense being used successfully to dismiss a claim at the motion to dismiss stage in federal court.  The defendant in the case now avoids any potential compensatory and punitive damages for the common law claims, as well as any additional discovery relating thereto.

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