NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

CRAIG ASPDIN, et al., : CIVIL ACTION NO. 10-6490 (MLC)

:

Plaintiffs, : MEMORANDUM OPINION

:

v. :

:

STANLEY FOGGIA, et al., :

:

Defendants. :

 :

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

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Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Dkt. entry

no. 11, Mot. Dismiss.) 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. (Dkt. entry

no. 11, Def. Br. at 7-8.) 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. (Id. at ¶ 25 & Ex.

B, Deed.) 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. (Id. at ¶¶ 26-27,

29.) 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.” (Id. at ¶ 28.)

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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. The Certification

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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. (See Def.

Br. at 16, 19.) 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.) Accordingly, 1

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.

 See also Pl. Br. at 8 (“[T]he disclosure statement used as 1

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).) In Biniek, the court, in deciding a motion for 2

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) existence of a high degree of risk of

harm to the person, land, or chattels of

others;

(b) likelihood that great harm would result

 We observe that New Jersey courts have abandoned the 2

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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therefrom;

(c) the inability to eliminate those risks

through the exercise of reasonable care;

(d) the common usage of the activity;

(e) the appropriateness of the activity; and

(f) 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. (Pl.

Br. at 9.) 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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