ASPDIN et al v. FOGGIA et al

Filing 19

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 10/13/2011. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CRAIG ASPDIN, et al.,
Plaintiffs,
v.
STANLEY FOGGIA, et al.,
Defendants.

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CIVIL ACTION NO. 10-6490 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
Plaintiffs, Craig Aspdin, Vivian Aspdin, and C&V Management
Company, LLC (“Plaintiffs”), brought this action against
defendants, Stanley Foggia and Patricia Foggia (“Defendants”),
claiming that Defendants fraudulently concealed defects in real
property (the “property”) Plaintiffs purchased from Defendants,
specifically, petroleum hydrocarbon contamination associated with
an Underground Storage Tank (“UST”) removed from the property in
2000.

(Dkt. entry no. 1, Compl.)

Plaintiffs allege that the

contamination caused (1) an oily sheen on the surface of an inground swimming pool on the property, and (2) petroleum-type
odors pervasive in and around the property.

(Id. at 5-6.)

Plaintiffs seek rescission of the contract of sale for the
property, money damages for the cost of repairs to the property,
and money damages based on strict liability.

(Id. at 6-9.)

Defendants now move to dismiss the Complaint for failure to
state a claim upon which relief can be granted, pursuant to

Federal Rule of Civil Procedure (“Rule”) 12(b)(6).
no. 11, Mot. Dismiss.)

(Dkt. entry

Defendants contend that (1) the alleged

defects were disclosed to Plaintiffs, such that they cannot state
a claim for fraudulent concealment, and (2) use and maintenance
of a UST for home heating oil, as a matter of law, is not an
ultrahazardous activity subject to strict liability.
no. 11, Def. Br. at 7-8.)

(Dkt. entry

Plaintiffs oppose the motion.

(Dkt.

entry no. 12, Pl. Br.)
The Court exercises subject matter jurisdiction pursuant to
28 U.S.C. § 1332, and determines the motion on the briefs without
an oral hearing, pursuant to Local Civil Rule 78.1(b).

The

Court, for the reasons stated herein, will deny the motion.
BACKGROUND
Plaintiffs entered into a Contract of Sale with Defendants
on April 9, 2007, wherein they agreed to purchase the property
for $425,000.00.

(Compl. at ¶ 24 & Ex. A, Contract of Sale.)

Closing occurred on or around May 10, 2007.
B, Deed.)

(Id. at ¶ 25 & Ex.

Plaintiffs allege that after the transfer of title of

the property, they began to observe an oily sheen on the surface
of the property’s in-ground swimming pool.
29.)

(Id. at ¶¶ 26-27,

When Plaintiffs replaced the liner of the swimming pool,

they noticed that the bottom of the liner had been painted black,
and “petroleum-type odors pervasive at the pool area, as well as
. . . in and around their home and yard.”

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(Id. at ¶ 28.)

Plaintiffs allege, on information and belief, that (1)
Defendants caused a 550 gallon UST to be removed from the
property in October 2000; (2) post-excavation soil samples showed
significant petroleum hydrocarbon contamination; (3) remediation
efforts, including groundwater extraction, soil excavation, and
the placement of monitoring wells, were made in 2002; and (4)
groundwater samples were collected from the monitoring wells in
November 2002 and March 2003.

(Id. at ¶¶ 14, 17-20, 23.)

Plaintiffs further allege that environmental testing performed at
their request in February 2009 confirmed the defects alleged.
(Id. at ¶ 32.)

Plaintiffs posit that Defendants “concealed,

covered, and/or coated areas of the Property and/or the Pool to
prevent Plaintiffs . . . from discovery of the contamination.”
(Id. at ¶ 34.)
DISCUSSION
I.

Rule 12(b)(6) Standard
A court may dismiss a complaint pursuant to Rule 12(b)(6)

for “failure to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6).

In addressing a motion to dismiss a

complaint under Rule 12(b)(6), the court must “accept all factual
allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine, whether under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.”

Phillips v. Cnty. of Allegheny, 515 F.3d

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224, 233 (3d Cir. 2008).

At this stage, a “complaint must

contain sufficient factual matter, accepted as true to ‘state a
claim to relief that is plausible on its face.’

A claim has

facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).

“[W]here the well-pleaded

facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged--but it has
not ‘show[n]’--that the ‘pleader is entitled to relief.’”

Iqbal,

129 S.Ct. at 1950 (quoting Rule 8(a)(2)).
The Court, when considering a motion to dismiss, may
generally not “consider matters extraneous to the pleadings.”

In

re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997).

An exception to this general rule is that the Court

may consider (1) exhibits attached to the complaint, (2) matters
of public record, and (3) all documents that are integral to or
explicitly relied upon in the complaint without converting the
motion to dismiss into one for summary judgment.

Angstadt v.

Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004) (citation
omitted).
Defendants have provided the Certification of Marc Gaffrey,
their attorney, in support of their motion.

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The Certification

contains four exhibits:

a copy of the Complaint (Gaffrey Cert.,

Ex. A); a document titled “Seller’s Property Condition Disclosure
Statement” (id., Ex. B, Disclosure Stmt.); an email exchange
between Stanley Foggia and Plaintiffs’ agent, dated May 7-8,
2007, regarding Plaintiffs’ request for a reduction in the
purchase price of the property due to the necessity of repairs to
the chimney, driveway, and pool liner (id., Ex. C, Emails); and a
letter dated May 7, 2007, from Plaintiffs’ attorney regarding
Plaintiffs’ receipt of an inspection report and advising that the
attorney would, after reviewing the report with Plaintiffs,
forward a letter regarding items that Plaintiffs would like
addressed by Defendants (id., Ex. D, 5-7-07 Letter).
Plaintiffs have also attached exhibits to their “Verified
Objection to Defendants’ Motion to Dismiss,” including:

(1) a

letter from Synergy Environmental Inc., dated April 5, 2009,
reporting the results of the soil sampling at the property to
Plaintiffs (Ex. A); (2) a “Pool Inspection” (Ex. B); and (3) a
May 8, 2007 follow-up letter from Plaintiffs’ attorney advising
that Plaintiffs would accept a $10,000 purchase price reduction
if Defendants did not retain licensed professionals to make
repairs to the chimney, driveway, and pool (Ex. C).

(Dkt. entry

no. 12.)
The Court finds all of these documents, except the Complaint
and the exhibits attached thereto, wholly inappropriate for

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consideration on a motion to dismiss.

The two documents attached

to the Complaint–the Contract of Sale, and the Deed–are not at
issue, and may properly be considered at the current procedural
posture.

However, the emails and letters, inspection reports,

and particularly the alleged “Disclosure Statement” clearly
constitute “matters outside the pleadings,” and are not
explicitly referred to in the Complaint.

To the extent

Defendants suggest that the Disclosure Statement is a matter of
public record, their argument relies on the unsupported factual
inference that “the condition of the property had not changed
since the signature of the Disclosure Statement,” which is
inappropriate at this juncture.

(Dkt. entry no. 17, Def. Reply

Br.)
The Court will therefore exclude these exhibits from
consideration.

As no party has suggested that the Court convert

the motion to one for summary judgment, pursuant to Rule 12(d),
the Court declines to do so sua sponte at this time.
II.

Fraudulent Concealment Claims
Defendants’ arguments that the fraudulent concealment claims

must be dismissed for failure to state a claim rely entirely on
the existence and content of the Disclosure Statement.
Br. at 16, 19.)

(See Def.

Defendants assert that because the Disclosure

Statement disclosed the removal of the UST and subsequent

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remediation of the property, Plaintiffs cannot maintain that
these facts were intentionally concealed.

(Id. at 16.)

As the Court has excluded the Disclosure Statement from
consideration in deciding the instant motion to dismiss, the
relief Defendants seek must be denied.

Even if the Court were to

convert the motion to one for summary judgment, the purported
“Disclosure Statement” is challenged by Plaintiffs as (1) “not
. . . signed by Plaintiffs” and (2) “dated December 2005,” which
is significant because the closing of the sale of the property
occurred in May 2007.

(Pl. Br. at 3-4.)1

Accordingly,

Defendants’ motion insofar as it seeks dismissal of the
fraudulent concealment claims will be denied.
III. Strict Liability Claim
Defendants rely on the Disclosure Statement in support of
their argument that the strict liability claim must be dismissed
because Plaintiffs voluntarily assumed the risk of disclosed
defects.

(Def. Br. at 17-19.)

For the reasons discussed above,

we reject this argument.

1

See also Pl. Br. at 8 (“[T]he disclosure statement used as
an exhibit by the Defendants in their non-verified pleading was
never reviewed or executed by Plaintiffs. The signatures
indicated on the disclosure statement are not those of the
Plaintiffs and the document is dated December 2005.”). The Court
makes this observation without prejudice to Defendants to later
move for summary judgment, following the procedures set forth in
Rule 56(c) and Local Civil Rule 56.1.
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Defendants also contend that, as a matter of law, the use of
an underground storage tank for home heating oil is not an ultrahazardous activity to which strict liability may attach.

(Id. at

21 (citing Biniek v. Exxon Mobil Corp., 818 A.2d 330 (N.J. App.
Div. 2002).)2

In Biniek, the court, in deciding a motion for

summary judgment, determined that storage of gasoline using USTs
was not subject to the doctrine of abnormally dangerous activity,
and the defendant could not be held strictly liable for its role
in either the supply or storage of gasoline at the site in
question.

818 A.2d at 598-602.

The Biniek court observed:

With respect to these claims of strict liability, New
Jersey has adopted the doctrine of abnormally dangerous
activity. This doctrine imposes liability on those
who, despite social utility, introduce an extraordinary
risk of harm into the community for their own benefit.
Although the law will tolerate such hazardous conduct,
the risk of loss is allocated to the enterpriser who
engages in it. To determine the doctrine’s
applicability, New Jersey has adopted the principles
set forth in the Restatement of Torts, 2d. . . .
[W]hether an activity is abnormally dangerous is to be
determined on a case by case basis. In considering the
issue, a court is guided by the following factors:
(a)

(b)

existence of a high degree of risk of
harm to the person, land, or chattels of
others;
likelihood that great harm would result

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We observe that New Jersey courts have abandoned the
terminology “ultrahazardous activity” in favor of “abnormally
dangerous activity.” See In re Complaint of Weeks Marine, Inc.,
No. 04-494, 2005 WL 2290283, at *4 (D.N.J. Sept. 20, 2005)
(citing Dep’t of Envtl. Prot. v. Ventron Corp., 468 A.2d 150, 157
(N.J. 1983)).
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(c)
(d)
(e)
(f)

therefrom;
the inability to eliminate those risks
through the exercise of reasonable care;
the common usage of the activity;
the appropriateness of the activity; and
the value of the activity to the
community.

Id. at 598-99 (citing Restatement (Second) of Torts
(“Restatement”), § 520 (1977)) (internal citations omitted).
The parties do not address the Restatement § 520 factors for
determining whether an activity is abnormally dangerous.
Plaintiffs, however, contend that the Biniek case is factually
distinguishable, insofar as it concerned USTs at a public
gasoline service station as opposed to a private residence.
Br. at 9.)

(Pl.

Plaintiffs’ argument only highlights what Weeks

Marine instructs:

although the question of whether an activity

is abnormally dangerous is ultimately a question of law to be
resolved by the Court, the Restatement “explicitly considers a
weighing of facts in evidence, instead of making a decision based
upon the pleadings alone,” such that the analysis “is more
appropriately undertaken on a more complete record,” and not at
the motion to dismiss stage.

Weeks Marine, 2005 WL 2290283, at

*5 (citing Restatement § 520, comment l).

Accordingly, the Court

will deny the part of the motion seeking to dismiss the strict
liability claim as premature at this juncture.

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CONCLUSION
The Court, for the reasons stated supra, will deny
Defendants’ motion to dismiss.

The Court will issue an

appropriate order separately.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge

Dated:

October 13, 2011

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