Lerro v. Thomas Wynne, Inc.

• Decision Date: 16 March 1973
• Citation: 301 A.2d 705,451 Pa. 37
• Parties: Louis J. LERRO and Marian G. Lerro, Plaintiffs, and Borough of Narberth et al., Intervening Plaintiffs, v. THOMAS WYNNE, INC., Defendant, and Shirley Uffner, Executrix of the Estate of Raphael Uffner, Deceased, et al., Additional Defendants. Appeal of THOMAS WYNNE, INC.
• Court: Pennsylvania Supreme Court

Page 705

301 A.2d 705

451 Pa. 37

Louis J. LERRO and Marian G. Lerro, Plaintiffs and Borough of Narberth et al., Intervening Plaintiffs, v. THOMAS WYNNE, INC., Defendant and Shirley Uffner, Executrix of the Estate of Raphael Uffner Deceased, et al., Additional Defendants Appeal of THOMAS WYNNE, INC.

Supreme Court of Pennsylvania.

March 16, 1973.

[451 Pa. 38] Cassin W. Craig, Wisler, Pearlstine, Talone, Craig & Garrity, Norristown, Thomas H. Goldsmith, Goushian, Mooridian & Goldsmith, Philadelphia, for appellants.

Henry A. Frye, Sp. Counsel, Bala-Cynwyd, for intervenor, Borough of Narberth.

Alonzo R. Horsey, Township Sol., Norristown, for intervenor, Lower Merion Township.

John C. Bonner, Norristown, for appellees, Louis J. Lerro, and others.

Robert E. Slota, Bryn Mawr, for additional defendants, Shirley Uffner, Executrix of, etc. and Lena Cottler.

McTighe, Koch, Brown & Weiss, Norristown, for Louis J. Lerro and Marian G. Lerro.

John E. Forsythe, Philadelphia, for Lower Merion Township.

OPINION

MANDERINO, Justice.

This is an appeal by Thomas Wynne, Inc., a defendant in the court below, from a decree in favor of the plaintiffs in an equity action. Thomas Wynne, Inc., is a Pennsylvania corporation which owns and operates an apartment house in Lower Merion, Montgomery County, Pennsylvania. Between 1963 and 1968, large quantities of fuel oil leaked from a corroded 10,000 gallon tank buried in the ground on appellant's property. The tank supplied fuel oil for the heating of the apartment house. As a result of the corrosion, holes developed in the tank, and the fuel oil seeped into the ground and flowed underground through adjoining properties into Indian Creek. Petroleum odors emanated from the Creek. The fuel oil caused a discoloration of the sides of the raceway of the Creek, a discoloration of the water, and adhered to the clothing and shoes of children playing in the Creek, resulting in a tracking of oil into homes. The flow of the seeping oil into the stream created a definite, visible, and noticeable problem.

The original plaintiffs in the action below were Louis J. Lerro and Marian G. Lerro. Other plaintiffs intervened in the action. All of the plaintiffs are nearby residents and property owners through whose property Indian Creek flows and who were affected by the presence of the fuel oil in the Creek. Additional defendants in the court below did not appeal since the court's final decree ran only against the appellant.

The lower court permanently enjoined the appellant from polluting the east branch of Indian Creek, located in Montgomery County, with oil. The decree further ordered that the appellant take the necessary measures to insure that the oil beneath the surface of defendant's property did not find its way into the east branch of Indian Creek, and that a program be initiated for the removal of the oil from the ground. The lower court did not decide the question of damages which was left for proof at a later date.

The lower court concluded that the appellant was negligent in (1) failing to inspect the oil tank at reasonable intervals; (2) failing to detect the loss of large quantities of fuel oil; and (3) failing to turn off a steam feed line connected to the oil tank. The lower court also concluded that the appellant was liable, alternately, even assuming the absence of negligence, for creating a public nuisance, which, according to the lower court, did not require a finding of negligence so long as there was a causal connection between the appellant's conduct and the harm.

Since the record more than adequately sustains the lower court's conclusion that the appellant was negligent in failing to inspect the oil tank at reasonable intervals, there is no need to consider the lower court's alternate theories of negligence or the alternate theory of liability without fault based on the public nuisance theory.

Appellant claims that as a matter of law it was erroneous for the lower court to conclude that appellant was negligent in failing to inspect the tank at reasonable intervals. We disagree and find no basis for disturbing the lower court's findings and conclusion. Our scope of review in examining the findings and conclusions of the lower court sitting without a jury is...