Brief this case into facts, rule, policy and procedural history:

Philadelphia Electric Company v. Hercules, Inc.

United States Court of Appeals, Third Circuit,

Jr., Circuit Judge. This is an appeal from a final judgment of the district court in favor of Philadelphia Electric Company ("PECO") and against Hercules, Inc. ("Hercules") in the amount of $394,910.14, and further ordering Hercules to take all appropriate action to eliminate pollution on a property owned by PECO in Chester, Pennsylvania. The case was tried to a jury on theories of public and private nuisance. For the reasons set forth in the opinion that follows, we will reverse the judgment against Hercules on PECO's claims, and vacate the injunction. ***[Prior to October 1971, the property in question, "the Chester site," had been owned by the Pennsylvania Industrial Chemical Corporation ("PICCO"), where it operated a hydrocarbon resin manufacturing plant. PICCO sold the facility to "Gould" in 1971. Gould sold the site to PECO in 1974. PECO had owned an adjoining site and had full opportunity to inspect and investigate the condition of the property. Subsequently Hercules, Inc. became the successor to PICCO, expressly assuming all debts, obligations and liabilities. This action is therefore held properly brought against Hercules. The court treats the relationship between 913defendant Hercules and plaintiff PECO as "that of a vendor and remote vendee of land." It holds that the sale of the site was subject to the rule of caveat emptor, being between two commercial corporations with no misrepresentation or concealment and full opportunity to inspect.In 1980 the Pennsylvania Department of Environmental Resources ("DER") discovered that resinous materials similar to those once produced by PICCO were seeping into the Delaware River and directed PECO to develop and act on a plan to eliminate the situation. In all PECO spent or lost almost $400,000.PECO brought suit against Hercules for the damages and an injunction requiring defendant to abate any further pollution. The district court granted both. The suit is based on private nuisance, public nuisance and indemnity.]Restatement (Second) of Torts 821D defines a "private nuisance" as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." The briefs and arguments, as well as the district court's opinion, 587 F. Supp. at 152-54, give much attention to the questions of whether the condition created by Hercules on the Chester site amounted to a nuisance, and whether Hercules remains liable for the nuisance even after vacating the land. For the purposes of our decision, we may assume that Hercules created a nuisance, and that it remains liable for this condition. See Restatement (Second) of Torts 840A. The crucial and difficult question for us is to whom Hercules may be liable.The parties have cited no case from Pennsylvania or any other jurisdiction, and we have found none, that permits a purchaser of real property to recover from the seller on a private nuisance theory for conditions existing on the very land transferred, and thereby to circumvent limitations on vendor liability inherent in the rule of caveat emptor. In a somewhat analogous circumstance, courts have not permitted tenants to circumvent traditional limitations on the liability of lessors by the expedient of casting their cause of action for defective conditions existing on premises (over which they have assumed control) as one for private nuisance. [Cc] In Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34 (1937), [c] the Supreme Court of Pennsylvania held that the doctrine that a landlord not in possession may be liable for injuries resulting from a "condition amounting to a nuisance" is confined to "the owners or occupants of near-by property, persons temporarily on such property, or persons on a neighboring highway or other places."6 [C] Recovery on this theory was not available to tenants or their invitees: "A breach of duty owed to one type of persons cannot make cause of action in favor of a person not within the class. A plaintiff must show that as to him there was a breach of duty." [C] 326 Pa. at 152, 191 A. at 38. 914Similarly, under the doctrine of caveat emptor Hercules owed only a limited duty to Gould and, in turn, to PECO. PECO concedes that this duty was not violated. PECO cannot recover in private nuisance for the violation of a duty Hercules may have owed to othersnamely, its neighbors.We believe that this result is consonant with the historical role of private nuisance law as a means of efficiently resolving conflicts between neighboring, contemporaneous land uses. *** Neighbors, unlike the purchasers of the land upon which a nuisance exists, have no opportunity to protect themselves through inspection and negotiation. The record shows that PECO acted as a sophisticated and responsible purchaserinquiring into the past use of the Chester site, and inspecting it carefully. We find it inconceivable that the price it offered Gould did not reflect the possibility of environmental risks, even if the exact condition giving rise to this suit was not discovered. ***Where, as here, the rule of caveat emptor applies, allowing a vendee a cause of action for private nuisance for conditions existing on the land transferredwhere there has been no fraudulent concealmentwould in effect negate the market's allocations of resources and risks, and subject vendors who may have originally sold their land at appropriately discounted prices to unbargained-for liability to remote vendees. *** Such an extension of common law doctrine is particularly hazardous in an area, such as environmental pollution, where Congress and the state legislatures are actively seeking to achieve a socially acceptable definition of rights and liabilities. We conclude that PECO did not have a cause of action against Hercules sounding in private nuisance.The doctrine of public nuisance protects interests quite different from those implicated in actions for private nuisance, and PECO's claim for public nuisance requires separate consideration. Whereas private nuisance requires an invasion of another's interest in the private use and enjoyment of land, a public nuisance is "an unreasonable interference with a right common to the general public." Restatement (Second) of Torts 821B(1). An action for public nuisance may lie even though neither the plaintiff nor the defendant acts in the exercise of private property rights.11 As William Prosser once wrote: "There are, then, two and only two kinds of nuisance, which are quite unrelated except in the vague general way that each of them causes inconvenience to someone, and in the common name, which naturally has led the courts to apply to the two some of the same substantive rules of law. A private nuisance is narrowly restricted to the invasion of interests in the use and enjoyment of land. It is only a tort, and the remedy for it lies exclusively with the individual whose rights have been disturbed. A public nuisance is a species of catch-all low-grade criminal offense, consisting of an 915interference with the rights of the community at large, which may include anything from the blocking of a highway to a gaming-house or indecent exposure. Although as in the case of other crimes, the normal remedy is in the hands of the state, a public nuisance may also be a private one, when it interferes with private land. The seeds of confusion were sown when courts began to hold that a tort action would lie even for a purely public nuisance if the plaintiff had suffered 'particular damage.'" Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 999 (1966).[In] analyzing the public nuisance claim, we are not concerned with the happenstance that PECO now occupies the very land PICCO occupied when it allegedly created the condition that has polluted the Delaware River waters, or that the continuing source of that pollution is located on that land. The question before us is whether PECO has standing to bring an individual action for damages or injunctive relief for interference with a public right.Restatement (Second) of Torts 821C(1) provides: "In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference."The same requirements apply to individual plaintiffs seeking injunctive relief. Restatement (Second) of Torts 821C(2); Prosser, supra, 52 Va. L. Rev. at 1006. PECO argues that the expense it incurred in cleaning up the offending condition constituted the harm requisite for standing to sue for public nuisance. We disagree. Though pecuniary harm certainly may be harm of a different kind from that suffered by the general public, see Restatement (Second) of Torts 821C comment h,14 we find in this case no allegation or evidence that PECO suffered this harm "exercising the right common to the general public that was the subject of interference." The public right that was interfered with was the right to "pure water". [C] PECO does not allege that it used the waters of the Delaware River itself, or that it was directly harmed in any way by the pollution of those waters. Thus, this is not a case "where an established business made commercial use of the public right with which the defendant interfered." [C] If PECOas a riparian landownerhad suffered damage to its land or its operations as a result of the pollution of the Delaware, it would possibly have a claim for public nuisance. But the condition of the Chester site was not the result of the pollution, it was 916the cause of it. DER required PECO, as owner of the Chester site, to remove the sources of the pollution. PECO has been specially harmed only in the exercise of its private property rights over the Chester site. PECO has suffered no "particular damage" in the exercise of a right common to the general public, and it lacks standing to sue for public nuisance.***We emphasize that our decision today should not be interpreted as standing for the general proposition that a party that contaminates land, or the successors to its assets, can escape liability by the expedient of selling the land. To the contrary, it would seem that there are many avenues by which such a party may be held accountable.20 We hold only that in this case the purchaser of that land, PECOthough we recognize that it acted as a responsible corporate citizenhad no cause of action against the vendor's successor, Hercules, for private nuisance, public nuisance, or common law indemnity.For the foregoing reasons, the injunction requiring Hercules to clean up the Chester site will be vacated, and the judgment of the district court on PECO's claims against Hercules will be reversed.