Fleck v. Timmons

• Decision Date: 09 June 1988
• Citation: 543 A.2d 148,374 Pa.Super. 417
• Parties: Theodore R. FLECK and Mary E. Fleck, Appellants, v. Frank E. TIMMONS and Susan E. Timmons, and McCleary Oil Co. Inc., Appellees.
• Court: Pennsylvania Superior Court

Page 148

543 A.2d 148

374 Pa.Super. 417

Theodore R. FLECK and Mary E. Fleck, Appellants, v. Frank E. TIMMONS and Susan E. Timmons, and McCleary Oil Co Inc., Appellees.

Superior Court of Pennsylvania.

Argued April 7, 1988.

Filed June 9, 1988.

Eugene E. Dice, Harrisburg, for appellants.

Sally Jo Winder, Shippensburg, for Timmons, appellees.

Jeffrey B. Rettig, Harrisburg, for McCleary, appellee.

Before BROSKY, MONTEMURO and JOHNSON, JJ.

MONTEMURO, Judge:

This appeal concerns a civil action commenced by Theodore R. and Mary E. Fleck, appellants, against Frank E. and Susan E. Timmons, appellees, and McCleary Oil Company Inc. ¹ The record reveals that appellees own and operate a convenience store and gas station located on Cumberland Highway, Orrstown, Pennsylvania. Appellants reside in a house which is located directly across the highway from appellees' convenience store and gas station. The sole source of water supply for appellant's home is a well. This well is located in the front of appellants' home, between their home and Cumberland Highway.

In their amended complaint, appellants alleged that on or about November 30, 1984 they noticed a "strong odor of gasoline in their drinking water." R.R. at 40a. They further alleged that their "well water is contaminated to the point where it is not usable for drinking, washing, cooking, or any purpose other than flushing toilets. Additionally, the concentration of gasoline in the well water is such as to pose a threat of fire or explosion in the Fleck household." Id. at 42a. It is undisputed that in September of 1983, appellees purchased property adjacent to their convenience store and gas station from the Guy T. Kilmore Estate. This property included an abandoned gasoline service station and three underground storage tanks (hereinafter "Kilgore tanks"). On November 27, 1984, at the request of the appellees, McCleary Oil pumped approximately 645 gallons of kerosene into the Kilgore tanks. ² It was established that prior to pumping of any kerosene into the Kilgore tanks, appellees, specifically Mr. Timmons, removed with the aid of a hand pump approximately 100 gallons of gasoline which had been left in the tanks by the previous owner.

Appellants' lawsuit against both the appellees and McCleary Oil is based on the contention that when McCleary Oil pumped kerosene into the Kilgore tanks on November 27, 1984, this pumping resulted in the pollution of their well water. ³ Appellants averred the following:

16. One or all of the three underground storage tanks [the Kilgore tanks] in which Mr. Timmons maintained gasoline and into which Mr. Timmons caused kerosene to be pumped as described herein, were leaking, and this leakage caused contamination of groundwater and the permanent destruction of the well water serving Plaintiff's house.

16. (a) The underground storage tanks [the Kilgore tanks] were excavated and removed on June 24, 1985. They were found to be badly corroded and had holes through the metal of which they were constructed. At the time they were excavated, the tanks contained petroleum products containing benzene, toluene, exylene, trimethyl benzene, methyl nephthalene, and other similar chemicals. These chemicals are hazardous and constitute hazardous waste.

R.R. at 40a and 41a. ⁴ As to the appellees and as to McCleary Oil, appellants sought to support their claim for relief upon a variety of legal theories. They contended that appellees were negligent in filling the Kilgore tanks "given their age, condition, and period of time during which they had not been used." R.R. at 42a. Appellants also alleged, inter alia, that the conduct of the appellees in filling the Kilgore tanks had violated state regulations governing the maintenance of underground storage tanks, as well as various provisions of the Pennsylvania Clean Streams Law ⁵ and Pennsylvania's Solid Waste Management Act. ⁶ Appellants also set forth theories of liability sounding in absolute liability and nuisance. Appellants asserted causes of action against McCleary Oil which were substantially the same.

The jury trial commenced in the instant case on August 26, 1986. After the close of appellants' case, the trial court granted McCleary Oil's motion for a directed verdict. Following the completion of the trial, the jury returned a verdict in favor of the appellees, finding that the appellees had been negligent but that their negligent conduct was not a substantial factor in bringing about the pollution of appellants' well water supply. Timely post-trial motions were filed and denied by the trial court on September 25, 1987. Appellants seek our review of the following issues:

1. Whether the trial court erred in refusing to charge the jury on the applicability of a rebuttable presumption of liability created by Section 611 of Pennsylvania's Solid Waste Management Act?

2. Whether the trial court erred in entering a directed verdict in favor of McCleary Oil?

3. Whether the trial court erred when it limited the scope of the testimony of expert witness Mr. Jeffrey Molnar?

We find no error on the part of the trial court in the present case and, accordingly, we affirm.

Pennsylvania's Solid Waste Management Act, "SWMA", regulates the storage, transportation, treatment, and disposal of municipal waste, residual waste, and hazardous waste. Our concern in this case centers upon hazardous waste. Hazardous waste is defined in the SWMA as follows:

any garbage, refuse, sludge from an industrial or other waste water treatment plant, sludge from a water supply treatment plant, or air pollution control facility and other discarded material including solid, liquid, semi-solid or contained gaseous material resulting from municipal, commercial, industrial, institutional, mining, or agricultural operations, and from community activities ...

35 P.S. § 6018.103. The SWMA, and its accompanying detailed regulations, provide for a comprehensive regulation of the handling of hazardous wastes within the Commonwealth of Pennsylvania. This act requires that persons or municipalities who generate, transport, treat or dispose of hazardous wastes comply with the licensing and permit regulations of the Department of Environmental Resources of the Commonwealth of Pennsylvania (hereinafter "DER"). See 35 P.S. § 6018.403 and 6018.501; 25 Pa.Code 75.262-282. Provisions of the SWMA also require, inter alia, the maintenance of adequate records concerning the handling of hazardous wastes, the use of appropriate containers and labels, the development of contingency plans for effective action to abate hazards, and the immediate notification of the DER in the event of any spill or accidental discharge. See 35 P.S. § 6018.403.

Appellants in the instant case urge us to find that the trial court erred when it refused to charge the jury as to the following section of the SWMA:

Presumption of law for civil and administrative proceedings

It shall be presumed as a rebuttable presumption of law that a person or municipality which stores, treats, or disposes of hazardous waste shall be liable, without proof of fault, negligence, or causation, for all damages, contamination or pollution within 2,500 feet of the perimeter of the area where hazardous waste activities have been carried out. Such presumption may be overcome by clear and convincing evidence that the person or municipality so charged did not contribute to the damage, contamination, or pollution.

35 P.S. § 6018.611. This section of the SWMA (hereinafter "Section 611") is part of Article VI of the SWMA. Article VI is entitled: "Enforcement and Remedies." ⁷ When Article VI is read in its entirety, it is clear that our legislature intended to provide the DER with "wide-ranging enforcement tools" so that the SWMA would, in reality, have the means to accomplish the invaluable ends for which it was enacted: the prevention of harm to public health and the preservation of our environment. Katcher, Hazardous Waste Management under Act 97, 86 Dick.L.Rev. 665, 684 (1982). ⁸ Article VI begins by declaring that any violation of the SWMA or any "rule or regulation ... order ... term or condition of any permit ..." of the DER constitutes a public nuisance. 35 P.S. § 6018.601. The Article then sets forth the variety of ways in which the DER is authorized to enforce the provisions of the SWMA:

For example, civil and criminal penalties may be imposed ... in amounts up to $500,000 per day for certain criminal hazardous waste related violations. In addition, violators may be liable for the cost of abating pollution resulting from their violations. DER may issue administrative enforcement orders, including oral orders to persons engaged in hazardous waste treatment or disposal activities that jeopardize the public health, safety, or welfare, as well as seek injunctive relief and the forfeiture of contraband. To aid in enforcement efforts, DER is given the right to enter any solid waste facility to conduct inspections and official investigations, and to take samples. DER may also procure a search warrant, upon probable cause, to enter any other property for the purposes of official investigations.

Katcher, supra at 684. Throughout Article VI of the SWMA, the legislature consistently states that it is the "department", the DER, which shall be responsible for pursuing the specific remedies and enforcement techniques set forth in Article VI. For example, in 35 P.S. § 6018.602(a), the act specifically provides that "the department may issue orders to such persons and municipalities as it deems necessary to aid in the enforcement of the provisions of this act." It is also "the department" which is authorized by the language of Article VI to pursue injunctive relief for violations of the SWMA and to assess civil penalties for such violations. 35 P.S. §§ 6018.604 and 605. It is the "department" which is to recover the costs of abating a public nuisance. 35 P.S. § 6018.613. Thus, the SWMA, by its...