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Home My WebLink About04-5240 Paul 1. Bruder, Jr., Esquire PA /.D, No 74412 RHOADS & SINON LLP One South Market Square. 12th Floor Harrisburg. PA 17101 717,2335731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY, Plaintiff VS. SEABOARD TANK LINES, INC., Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 Phone: 717.249.3166 490745.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 01../ - ~:2..4b Olu'~l~~ A VISO USTED HA SIDE DEMANDADO/A EN CORTE, Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notiticacion de esta Demanda y A viso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si usted falla de tomar accion como se describe anterionnente, e1 caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en 1a demanda 0 cualquier otra reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad u otros derechos importantes para usted, USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABOGADO INMEDlATAMENTE, SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO. LLAME 0 VA Y A A LA SIGUlENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 Phone: 717,249.3166 Paul J. Bruder, Jr., Esquire PA 1.0. No. 74412 RHOADS & SINON LLP One South Market Square, 12th Floor Harrisburg, PA 17101 717.233.5731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW VS. NO. D-I - .Q4.'b C!.~~lT~ SEABOARD TANK LINES, INC., Defendant COMPLAINT Plaintiff, Susquehanna Area Regional Airport Authority ("SARAA") by and through its counsel, Rhoads & Sinon LLP, files the within Complaint and in support states as follows: PARTIES 1. Plaintiff SARAA is a joint municipal authority organized and existing under the laws of the Commonwealth of Pennsylvania, which members include Cumberland, Dauphin and York Counties, the cities of Harrisburg and York, Fairview and Lower Swatara Townships. SARAA has a place of business at One Terminal Drive, Middletown, Dauphin County, Pennsylvania 17057. 2. Defendant Seaboard Tank Lines, Inc. ("Seaboard" or the "Defendant") IS a Pennsylvania corporation with an address of 125 Monaghan Avenue, Dunmore, P A 18512. 3. SARAA owns and operates the Capital City Airport III Fairview Township, Cumberland County, Pennsylvania. JURISDICTION AND VENUE 4. This Honorable Court has jurisdiction over the parties and venue is appropriate because the cause of action arose in Cumberland County, the property at issue is in Cumberland County, SARAA owns the property at issue in Cumberland County, and the Defendant does, or in the past has done, business in Cumberland County. BACKGROUND 5. SARAA owns the property at issue and operates the property as a public airport. 6. On October 22, 2002, Defendant, through employees or independent contractors, was delivering unleaded gasoline to third-party customers in a gasoline tanker truck, which carried approximately 2,000 gallons of petroleum fuel product. 7. During delivery activities, Defendant took a wrong turn and in to process of turning around, Defendant's truck backed into a fence, which punctured one of the compartments of the tanker. This resulted in the release of approximately 1,000 gallons of unleaded gasoline onto the surface of the ground on or in the vicinity ofSARAA's property. 8. Emergency response action was undertaken by SARAA, Defendant, and various municipal and private entities, including agents of the host municipality, Fairview Township. 9. Unleaded gasoline contains the chemical compound methyl-t-butyl ether ("MTBE"). This chemical compound is unique to unleaded gasoline. 10. Sampling of a nearby groundwater monitoring well, previously placed on the site by SARAA as part of a state-sanctioned remedial effort, revealed high concentrations of MTBE subsequent to the October 22, 2002 spill of unleaded gasoline. The plume of contamination is likely migrating in a southwesterly direction. II. Defendant initially commenced remedial actions, but has since abandoned them, and therefore SARAA is undertaking or will undertake remedial activities and seeking a release of liability from the Pennsylvania Department of Environmental Protection under the Pennsylvania Land Recycling and Environmental Remediation Standards Act, 35 P.S. S 6021.101 et seq. 12. By letter dated September 13, 2003, SARAA notified Defendant and the Department of Environmental Protection that Defendant had violated and was in continued violation of Pennsylvania law, and the Department of Environmental Protection did not commence, nor is it currently pursuing, a civil action against Defendant. COUNT I - CLEAN STREAMS LAW. 35 P.S. &691.1 01 et seQ. 13. SARAA incorporates by reference the averments contained in Paragraphs 1-12 above as if fully set forth herein. 14. Through its conduct, Defendant allowed a discharge of pollutants onto the SARAA property, which pollutants have impacted groundwater under the property, thereby causing or contributing to the contamination of groundwater and surface waters of the Commonwealth. 15. Such discharge of pollutants into waters of the Commonwealth by Defendant was not authorized by permit or by the rules or regulations of the Pennsylvania Department of Environmental Protection. 16. Defendant's unauthorized and unpermitted release of pollutants, which pollutants have impacted groundwater and surface waters of the Commonwealth, violates the Pennsylvania Clean Streams Law, Act ofJune 22, 1937, P.L. 1987, No. 394, as amended, 35 P.S. 9 691.1, et seq. WHEREFORE, Plaintiff, Susquehanna Area Regional Airport Authority demands judgment against Defendant, Seaboard Tank Lines, Inc., and an Order requiring Seaboard to remediate the affected property to Pennsylvania Statewide Health Standards, together with punitive damages, attorney and consulting fees, interest, costs of suit, and delay damage, if applicable. COUNT II - HAZARDOUS SITES CLEANUP ACT ("HSCA"), 35 P.S. &6020.101 et. seq. 17. SARAA incorporates by reference the averments contained in Paragraphs 1-16 above as if fully set forth herein. 18. Defendant is a ''person'' as that term is defined in Section 103 of the Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 P.S. 96020.103. 19. Defendant's delivery truck is a "site" as that term is defined in Section 103 of HSCA, 35 P.S. 96020.103. 20. Defendant is a "responsible person" as that term is defined in Section 103 of HSCA, 35 P.S. 96020.103. 21. Defendant is an "owner or operator" as that term is defined in Section 103 of HSCA, 35 P.S. 96020.103. 22. The substance present in soil and/or groundwater on SARAA's property is a "hazardous substance" or "contaminant" as those terms are defined in Section 103 ofHSCA, 35 P.S.96020.103. 23. Defendant caused or allowed a release of a hazardous substance, which IS unlawful conduct pursuant to Section 1108 ofHSCA, 35 P.S. 96020.1108. 24. SARAA has experienced property damage as a result of the release of hazardous substances. 25 Defendant is liable for response costs caused by the release or violation ofHSCA. 35 P.S. 96020.1101. 26. SARAA has incurred and will incur in the future response costs as a result of the release and unlawful conduct by Defendant. WHEREFORE, Plaintiff, Susquehanna Area Regional Airport Authority demands judgment against Defendant Seaboard Tank Lines, Inc., for all past and future response costs incurred by Plaintiff, and an Order requiring Seaboard to remediate the affected property to Pennsylvania Statewide Health Standards, together with punitive damages, attorney and consulting fees, interest, costs of suit, and delay damage, if applicable. COUNT III - NEGLIGENCE 27. SARAA incorporates by reference the averments contained in Paragraphs 1-26 above as if fully set forth herein. 28. Defendant owed SARAA a duty to conduct fuel transport and delivery activities in a manner so as not to damage SARAA's property. Operators of fuel delivery trucks are under a duty to use ordinary care to protect the people and property in the vicinity of the delivery activities from the types of hann ordinarily resulting from such activities, and have a duty to properly operate fuel delivery trucks to avoid dangers from occurrences such as punctures or leaks in the tankers. 29. By operating the delivery vehicle in a manner that caused the vehicle to hit a nearby fence, and by allowing contaminants or hazardous substances to escape from the delivery vehicle, Defendant breached its duty of ordinary care in its operation of the delivery vehicle. 30. As a result of Defendant's unreasonable and negligent conduct, SARAA has incurred, or will incur, damages consisting of costs of remediation, attorney and consulting fees, and unnecessary expenditures oftime and effort. 31. As a direct and proximate result of Defendant's negligence, SARAA has suffered or will suffer economic loss, including costs of interim remedial activities, permanent remedial activities, attorney and consulting fees. WHEREFORE, Plaintiff, Susquehanna Area Regional Airport Authority demands judgment against Defendant, Seaboard Tank Lines, Inc., for costs of remediation that exceeds the jurisdictional amount requiring arbitration pursuant to Pennsylvania Rule of Civil Procedure 1021 ( c), together with punitive damages, interest, attorney and consulting fees, cost of suit, and delay damages, if applicable. COUNT IV- PRIVATE NUISANCE 32. SARAA incorporates by reference the averments contained in Paragraphs 1-31 above as if fully set forth herein. 33. Defendant intentionally and unreasonably interfered with SARAA's use and enjoyment oflegitimate property rights. 34. As a result of Defendant's unreasonable and negligent conduct, SARAA has incurred, or will incur, damages consisting of costs of remediation, attorney and consulting fees, and unnecessary expenditures oftime and effort. WHEREFORE, Plaintiff, Susquehanna Area Regional Airport Authority demands judgment against Defendant, Seaboard Tank Lines, Inc. for costs of remediation that exceeds the jurisdictional amount requiring arbitration pursuant to Pennsylvania Rule of Civil Procedure 1021(c), together with punitive damages, interest, attorney and consulting fees, cost of suit, and delay damages, if applicable. COUNT V - PUBLIC NUISANCE 35. SARAA incorporates by reference the averments contained in Paragraphs 1-34 above as if more fully set forth herein at length. 36. Through its conduct, Defendant allowed a discharge of pollutants onto the SARAA property, which pollutants have impacted groundwater under the property, thereby causing or contributing to the contamination of groundwater and surface waters of the Commonwealth. 37. Such discharge of pollutants into waters of the Commonwealth by Defendant was not authorized by permit or by the rules or regulations of the Pennsylvania Department of Environmental Protection. 38. Defendant's unauthorized and unpermitted release of pollutants, which pollutants have impacted groundwater and surface waters of the Commonwealth, is a violation of the Pennsylvania Clean Streams Law, 35 P.S. ~ 691.1, et seq" and thus, constitutes a public nuisance. 39. By releasing or allowing a release of a hazardous substance, and by violating Section 1108 ofHSCA, Defendant has caused a public nuisance. 35 P.S. ~6020.11 0 I, 40. SARAA has suffered a harm of a kind different from that suffered by other members of the public. 41. SARAA has an interest in the property that has and continues to be adversely affected by the pollution caused by the Defendant. SARAA has incurred or will incur damages as a result of Defendant's conduct. No other members of the public have suffered similar harm. 42. Defendant's negligence, carelessness and recklessness is the legal cause of the invasion in SARAA's interest in the private use and enjoyment of the property, and such invasion is actionable under the rules controlling liability for negligence or reckless conduct, as well as for abnormally dangerous conditions or activities. 43. As a result of Defendant's unreasonable and negligent conduct, SARAA has incurred or will incur damages consisting of remediation costs, attorney and consulting fees, and unnecessary expenditures of time and effort. WHEREFORE, Plaintiff, Susquehanna Area Regional Airport Authority demands judgment against Defendant, Seaboard Tank Lines, Inc., for costs of remediation that exceeds the jurisdictional amount requiring arbitration pursuant to Pennsylvania Rule of Civil Procedure 102 I (c), together with punitive damages, interest, attorney and consulting fees, cost of suit, and delay damages, if applicable. COUNT VI - TRESPASS 44. SARAA incorporates by reference the averments contained in Paragraphs 1-43 above as if fully set forth herein. 45. Defendant, through its conduct, has interfered with SARAA's interest in the property by causing pollutants to enter SARAA's property. The release of pollutants from Defendant's delivery vehicle has caused the migration of the contaminated groundwater throughout SARAA's property and has, therefore, physically entered the property and caused hann. 46. As a result of Defendant's conduct, SARAA has incurred damages, or will incur damages, consisting of remediation costs, attorney and consulting fees, and unnecessary expenditures oftime and effort. WHEREFORE, Plaintiff, Susquehanna Area Regional Airport Authority demands judgment against Defendant, Seaboard Tank Lines, Inc., for costs of remediation that exceeds the jurisdictional amount requiring arbitration pursuant to Pennsylvania Rule of Civil Procedure 1021(c), together with punitive damages, interest, attorney and consulting fees, cost of suit, and delay damages, if applicable. Respectfully submitted, RHOADS & SINON LLP Dated: October 18,2004 bY..~~ PA J.D. 77412 One South Market Square, 12th Floor Harrisburg, P A 1710 I 717 .233.5731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority VERIFICATION I, A/0/l Ie.~ I T(, In my capacity as ,']) I (PC Lor (rf A" if). L; on of Susquehanna Area Regional Airport Authority, depose and say, subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY Date: ,of'4/03 Title: ~ "'l.. 7V c1 ~ #- ff- . ..t::, 0\ ~ ~ ~ ~~F ~ t --L.... f ( ~ ':. Paul J, Bruder, Jr., Esquire PA I.D. No, 74412 RHOADS & SINON LLP One South Market Square, 12th Floor Harrisburg, PA 17101 717.233.5731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY, Plaintiff VS. SEABOARD TANK LINES, INC., Defendant DATE OF NOTICE: November 29,2004 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, P A CIVIL ACTION - LAW NO. 04-5240 TO: Seaboard Tank Lines, Inc., 125 Monaghan Avenue, Dunmore, PA 18512 IMPORT ANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, P A 17013 Phone: 717.249.3166 Dated: November 29, 2004 542064,1 NOTICIA IMPORTANTE USTED EST A EN REBELDIA PORQUE HA F ALLADO DE TOMAR LA ACCION REQUERIDA EN ESTE CASO. A MENOS QUE USTED TOME ACCION DENTRO DE LOS PROXIMOS DIEZ (10) DIAS DE LA FECHA DE ESTA AVISO, SE PUEDE DICTAR UN F ALLO EN CONTRA SUY A SIN LLEV ARSE A CABO UNA VISTA Y USTED PUEDE PERDER SU PROPIEDAD Y OTROS DERECHOS IMPORTANTES. USTED DEBE LLEV AR ESTE DOCUMENTO IMMEDIATAMENTE A SU ABOGADO. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGAR UNO, VA Y A 0 LLAME A LA OFICINA ABAJO INDICADA PAR<\. QUE LE INFORMEN DONDE PUEDE CONSEQWR A YUDA LEGAL. CUMBERLAND COUNTY BAR ASSOCIA nON 32 South Bedford Street Carlisle, PA 17013 Phone: 717.249.3166 Respectfully submitted, RHOADS & SINON LLP ~) by: /- ~r,Jr., One South Marke quare, 12th Floor Harrisburg, PA 17101 717.233.5731 CERTIFICATE OF SERVICE I hereby certify that on November 29,2004, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Seaboard Tank Lines, Inc. 125 Monaghan Avenue Dunmore, PA 18512 Jr~ ~ V' '. 0 lOooo,;) 0 c,;:> c: c.'":> " ,J..- ~..... Z -I ~TJ n"1 -, C) -.--1) C~7 r' ..,c f 11 r'= -,., (1'1 -rr" W -" )) ~2 I n J'; 0 00 r:::; :-1'1 -';-j ::> V .1,.. _q ....' ~ 9,::'') ;;~ l:5rfl 3> r~ ._--( d:::: c.n ~~.~~ ... ~ POST & SCHELL, PoCo BY: JOHN W. DORNBERGER lD. #: 69293 240 GRANDVIEW AVENUE CAMP HILL, P A 17011 (717) 731-1970 ATTORNEYS FOR DEFENDANT SEABOARD TANK LINES, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY CNIL ACTION - LAW Plaintiff, NO: 04-5240 v. SEABOARD TANK LINES, INC., Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Seaboard Tank Lines, Inc., relative to the above-captioned matter. POST & SCHELL, PoCo Datej2- / (-! 1J 1 Attorney for Defendant Seaboard Tank Lines CERTIFICATE OF SERVICE I, John W. Dornberger, Esquire, hereby state that I havt;~ this day caused to be served a true and correct copy of the foregoing Entry of Appearance upon the persons and at the addresses below named, by U.S. Mail, First-Class, postage prepaid: Paul J. Bruder, Jr., Esquire Rhoads & Sinon, LLP One South Market Street 12th Floor Harrisburg, P A 17101 POST & SCHELL, P.c. Dated: December 6, 2004 'c, ,'~,"'", " " lil!;qj~,..1'Vff-?!l ~>.l"~liH,1.1 ,j ~.' c, r--;) c-) C'","", .;,;- c:) 1',1 r;'"J \ \,i) 1..-.- ", , -:":',t. c\ -\1 --\ -.- (;-1~::~ -nfl' ~')y I_)i '.,~;J -~--~\, ~ 'C:' :-n J:- ('.) SHERIFF'S RETURN - OUT OF COUNTY ...." CASE NO: 2004-05240 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUSQUEHANNA AREA REGIONAL AIRP VS SEABOARD TANK LINES INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SEABOARD TANK LINES INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LACKAWANNA County, Pennsylvania, to serve the within COMPLAINT & NOTICE On November 17th, 2004 , this office was in receipt of the attached return from LACKAWANNA Sheriff's Costs: Docketing Out of County Surcharge Dep Lackawanna Co 18.00 9.00 10.00 28.40 .00 65.40 11/17/2004 RHOADS & SINON :~~ Sheriff of Cumberland County Sworn and subscribed to before me this 6'e:-- day of (l~ / .J{JIJ ..; A . D . (I. Q. ~ ~ ~~rothonotary"~ In The Court of Common Pleas of Cumberland County, Pennsylvania Susquehanna Area Regional Aifport Authority VS. Seaboard Tank Lines Inc. 04-5240 civil No. Now, October 20, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize t.~e Sheriff of Lackawanna County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ,~ .'i~ .,. .,.. ~r /~' ~~<~"-( ~~..... ~.."".,;;."'" 4''!'' ~;~ ._: ...' ~ ",~';-d~.,-,,,,,:,,;,-:::~,.'"'1:,,.. r;f"" ,/>"'..,c -,,:,--:~....Ji7 f' <:' - """.1' ~,J""_"''''''''' ~ Sheriff of Cumberland County, P A Affidavit of SerVice Now, ,20_, at 0' clock M. served the within upon at by handing to copy of the original a and made known to the contents thereof. So answers, Sheriff of County, P A Sworn and subscribed before me this _ day of ,20_ COSTS SERVICE MILEAGE AFFIDA VIT $ $ SHERIFF'S RETURN - REGULAR /' '- U ('(\ )~~_' :\ ro" :',' ,r'\,' . . .... CASE NO: 2004-00556 T ....,1, ;-.- ,~,h -5J.'L) COMMONWEALTH OF PENNSYLVANIA: COUNTY OF LA~K~WANNA SUSQ.AREA REGIONAL AIRPORT AUT VS SEABOARD TANK LINES INC. GLENN CAPMAN , Deputy Sheriff of Lackawanna County County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT was served upon SEABOARD TANK LINES INC the DEFENDANT , at 0002:10 Hour, on the 25th day of October 2004 at 125 MONAHAN AVE. DUNMORE, PA SUSAN RASIELESKI/PERSON IN by handing to CHARGE a true and attested copy of NOTICE AND COMPLAINT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: '-l. 0 Docketing ~. O~u .00 Service 'i--... 00 Affidavit ~ D .00 Surcharge '.00 .00 .00 So Answers: Gi5n~ Deputy eriff 00/00/0000 Sworn and Subscribed to before me this day of A.D. , ! NOT RIAr SEAL ) FRANCES 01 RtENZO, NOTARY PUBLIC ,~ITY OF SCRANTON, LACKAWANNA COUNTY , MY COMMISSION EXPIRES JULY 23, 2006 , . POST & SCHELL, P.C. BY: TERRY R. BOSSERT I.E. # 17670 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG,PA 17101 (717) 731-1970 A TIORNEYS FOR DEFENDANT SEABOARD TANK LINES, INC. Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW NO: 04-5240 SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY v. SEABOARD TANK LINES, INC., Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant, Seaboard Tank Lines, Inc., relative to the above-captioned matter. POST & SCHELL, P.C. ~ By: b~~ /(i)vf;) Terry R. Bossert, Esquire I Attorney for Defendant Seaboard Tank Lines Date: June 15,2005 , . . . CERTIFICATE OF SERVICE I, Janet T. McGarvey, an employee of Post & Schell, P.C., hereby state that I have this day caused to be served a true and correct copy of the foregoing Entry of Appearance upon the persons and at the addresses below named, by U.S. Mail, First-Class, postage prepaid: Paul J. Bruder, Jr., Esquire Rhoads & Sinon, LLP One South Market Street 12th Floor Harrisburg, PA 17101 POST & SCHELL, P.C. Dated: June 15,2005 Byc;;.n,f~ /1!elb~ anet T. McGarvey .~ o c :-:::' ", ..I -<, ...., = "'> <.on '- c..-: :..::: ~ ,-' :t-n ,n,,= -~'1 \].~ -;'pll' c)c~ --1.:.:r-, "n '~;~ ~,\ , ~) :~\ -~ ::q -~, cr\ -r:~ _. ., - r;? f') I.!) - POST & SCHELL, P.C. BY: TERRY R. BOSSERT I.D. #: 17670 17 NORTH 2ND STREET, 12TH FLOOR HARRISBURG, PA 17101 (717) 731-1970 ATTORNEYS FOR DEFENDANT SEABOARD TANK LINES, INC. SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Plaintiff, NO: 04-5240 v. SEABOARD TANK LINES, INC., Defendant. PRELIMINARY OBJECTIONS OF DEFENDANT SEABOARD TANK LINES, INC. TO PLAINTIFF'S COMPLAINT Defendant Seaboard Tank Lines, Inc. ("Seaboard"), by and through its undersigned counsel, Post & Schell, P,C., hereby submits these Preliminary Objections to Plaintiff's Complaint, and in support thereof, avers as follows: 1. On or about October 19, 2004, Plaintiff Susquehanna Area Regional Airport Authority ("Plaintiff') filed a Complaint asserting claims for violation of the Clean Streams Law, violation of the Hazardous Sites Cleanup Act, negligence, private nuisance, public nuisance and trespass against Defendant following the alleged release of gasoline from Defendant's gasoline tanker truck onto property owned by Plaintiff. 2, Plaintiff's Complaint alleges that on October 22,2004, an employee of Defendant was driving Defendant's gasoline tanker truck and punctured a compartment after hitting a fence causing the release of approximately 1,000 gallons of gasoline on the ground or in the vicinity of Defendant's property. 3. Plaintiff avers that emergency response action was undertaken by Plaintiff and Defendant as well as various municipal and private entities. 4. According to the Complaint, sampling of a previously placed monitoring well revealed a high concentration ofmethyl-t-butyl ether. 5. Each count of Plaintiff's Complaint includes a request for an Order requiring Defendant to remediate to the property, together with punitive damages, attorney and consulting fees, interest, costs of suit and delay damages. DEMURRER TO COUNT 1-- CLEAN STREAMS LAW CLAIM 6. The Pennsylvania Clean Streams Law ("CSL") ~ 601 (c), 35 P.S. 9 691.60l(c) provides that a person adversely affected may commence an action to compel compliance with the Act or its implementing regulations, 7. Plaintiff's Complaint fails to allege any provisions of the Clean Streams Law or its implementing regulations that are currently being violated and for which Plaintiff seeks to compel compliance. 8. The CSL does not authorize a private party to recover damages, punitive or otherwise, nor to obtain any relief other than compelling compliance with the Act. 9. Plaintiff's Complaint fails to state a cause of action under the Clean Streams Law for which the relief requested can be granted. WHEREFORE, Defendant Seaboard Tank Line Inc. respectfully requests that this Honorable Court dismiss Plaintiff's Complaint brought under the Clean Streams Law with prejudice. -2- DEMURRER TO COUNT II -- HAZARDOUS SITES CLEANUP ACT CLAIM 10. The Hazardous Sites Cleanup Act ("HSCA") states that a person shall be responsible for a release ofa "hazardous substance." 35 P,S, 96020,701(a). II. HSCA defines the term "hazardous substance" to exclude "petroleum or petroleum products, including crude oil or any fraction thereof." 35 P.S. 96020.103. 12. Plaintiffs Complaint alleges that there has been a spill of unleaded gasoline, a petroleum product. 13, As Plaintiff has failed to allege that Defendant is responsible for the release of a hazardous substance, it is unable to sustain a claim under the HSCA. WHEREFORE, Defendant Seaboard Tank Lines, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs claim for violation of the Hazardous Sites Cleanup Act with prejudice. DEMURRER TO COUNT V - PUBLIC NUISANCE 14. Plaintiff seeks relief based upon allegations that the Defendant's actions constituted a public nuisance. 15. The allegations in paragraphs 40 and 41 of Plaintiffs Complaint, if true, relate more appropriately to a private nuisance claim. 16. Taking those allegations as true solely for the purposes of this demurrer, Pennsylvania law does not recognize a private action based upon a public nuisance. 17. Plaintiff s Complaint fails to state a valid cause of action for relief based upon a public nuisance. WHEREFORE, Defendant Seaboard Tank Lines, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs claim for relief under Count V - Public Nuisance. -3- DEMURRER TO COUNT VI -- TRESPASS CLAIM 18. Pursuant to Pennsylvania law, a trespass is committed when one intentionally enters land in possession of another or causes a thing to do so, James v. Wagner, 425 Pa.Super, 102, 624 A.2d 166 (1993). 19. Intent means that either the actor desires to cause the consequences of his act, or he believes those consequences are substantially certain to result from it. United Services Auto Ass'n v. Elitzsky, 358 Pa.Super. 362, 517 A.2d 982 (1986). 20. In the instant matter, there is no allegation that Defendant intentionally caused the gasoline to enter the property of Plaintiff nor was it alleged that Defendant believed that consequence was substantially certain to result from his act of taking a wrong road and attempting to turn around his truck. 21. Plaintiff has failed to allege facts sufficient to support its trespass claim and it should be dismissed with prejudice. WHEREFORE, Defendant Seaboard Tank Lines, Inc. respectfully requests that this Honorable Court dismiss Plaintiffs claim for trespass with prejudice. DEMURRER TO PUNITIVE DAMAGE CLAIMS 22. Pursuant to Pennsylvania law, in order to establish and maintain a claim for punitive damages, the plaintiff must show that the conduct was outrageous in nature and that it demonstrated intentional, willful, wanton or reckless conduct. SHV Coal v. Continental Grain, 526 Pa. 489,587 A.2d 702 (1991). 23. Punitive damages are used to punish and deter sociably harmful conduct committed with a very high degree of culpability. Allstate Ins. Co. v. A.M. Pugh Associates, 604 F.Supp. 85, 99 (M,D.Pa. 1984). -4- 24. The courts in Pennsylvania look upon punitive damages with disfavor stating that their only function is to provide an added penalty when an actor clearly does something that society would deem morally repugnant. Cochetti v. Desmond, 572 F.2d 102 (3d Cir. 1978). 25. Plaintiff's Complaint does not meet the threshold of demonstrating that any action attributable to Defendant was intentional, wanton, willful or reckless. 26. In this instance, Plaintiffs allegations amount to a breach of the duty of ordinary care by Defendant's driver who, according to the Complaint, took a wrong turn, was in the in the process of turning around and backed into a fence causing the spill. 27. Accordingly, Plaintiffs have failed to show that the act, or failure to act, was intentional, reckless or malicious or that Defendant knew or should have known that his conduct had a high likelihood of substantial harm to others, 28. Plaintiff's request for punitive damages should be stricken from the Complaint entirely, WHEREFORE, Defendant Seaboard Tank Lines respectfully requests that this Honorable Court dismiss all claims for punitive damages with prejudice. DEMURRER TO CLAIMS FOR ATTORNEYS FEES AND COSTS IN THE NEGLIGENCE, PRIVATE NUISANCE AND TRESPASS CLAIMS 29, Under Pennsylvania law, a plaintiff is not entitled to seek an award of attorney's fees unless permitted to do so by a statute applicable to the allegations. 30. Plaintiff's claims for negligence, private nuisance and trespass anse under ordinary tort law and, as such, Plaintiff is not entitled to attorneys fees and costs for these causes of action. -5- WHEREFORE, Defendant Seaboard Tank Lines, Inc., respectfully requests that this Honorable Court dismiss with prejudice Plaintiff's prayer for attorney's fees and costs from the negligence, private nuisance and trespass claims. POST & SCHELL, P.C. ~ r~'<- Terry R. Bossert, Esquire LD. #17670 John W. Dornberger, Esquire LD. #69293 17 North 2nd Street, 12'h Floor Harrisburg, PA 17101 77 //' By: Attorneys for Defendant Seaboard Tank Lines Date: \o\c<-h~ \ -6- CERTIFICATE OF SERVICE I, Carol Lee Neitzel, an employee of Post & Schell, P.C., hereby state that I have this day caused to be served a true and correct copy of the foregoing Preliminary Objections of Defendant Seaboard Tank lines, Inc. to Plaintiff's Complaint upon the persons and at the addresses below named, by U.S. Mail, First-Class, postage prepaid: Paul J. Bruder, Jr., Esquire Rhoads & Sinon, LLP One South Market Street 12th Floor Harrisburg, PA 17101 POST & SCHELL, P.C. By: ~Jc1itJ Carol Lee Neitzel Dated: June 22, 2005 () "-, 0 c::";) C C-~ <1 1..:..0""1 -I :r :n rll 1--- .on 1:-"1 N CJ u-' ':.-') () ~J :", -v'"J ,--', T1 =.i::; () l"',) <':;I-n <~ "" en :"b -z <-'" .-<: Paul J. Bruder, Jr., Esquire PA!.D, No, 74412 James 1. Jarecki, Esquire Attorney 10. No. 89580 RHOADS & SINON LLP One South Market Square, 12th Floor Harrisburg, PA 17101 717,233,5731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff CIVIL ACTION - LAW vs. NO. 04-5240 SEABOARD TANK LINES, INC., Defendant PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTIONS FILED BY DEFENDANT SEABOARD TANK LINES. INC. Plaintiff, Susquehanna Area Regional Airport Authority (hereinafter "SARAA"), by and through its counsel, Rhoads & Sinon LLP, hereby files the following Answer to Preliminary Objections filed by Seaboard Tank Lines, Inc. (Defendant). 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. DEMURRER TO COUNT I - CLEAN STREAMS LAW CLAIM 6. The allegations set forth in paragraph 6 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 7. The allegation set forth in paragraph 7 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is 570022.1 necessary, these allegations are denied. The Complaint at paragraph 7 states that there is an ongoing violation of the Clean Streams Law, namely the ongoing contamination of waters of the Commonwealth caused by acts ofthe Defendant, which Plaintifrs Complaint seeks to have Defendant remediate. 8. The allegations set forth in paragraph 8 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 9. The allegations set forth in paragraph 9 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. WHEREFORE, Plaintiff Susquehanna Area Regional Airport Authority respectfully requests that this Honorable Court overrule Defendant's Preliminary Objection with respect to Count!. DEMURRER TO COUNT II - HAZARDOUS SITES CLEANUP ACT CLAIM 10. The allegations set forth in paragraph 10 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 11. The allegations set forth in paragraph 11 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 12. The allegations set forth in paragraph 12 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. Denied further that unleaded gasoline, once it becomes unfit for its intended purpose and enters the environment, continues to be a "petroleum product", but rather becomes a hazardous waste. 13. The allegations set forth in paragraph 13 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. WHEREFORE, Plaintiff Susquehanna Area Regional Airport Authority respectfully requests that this Honorable Court overrule Defendant's Preliminary Objection with respect to Count II. DEMURRER TO COUNT V - PUBLIC NUISANCE 14. The allegations set forth in paragraph 14 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 15. The allegations set forth in paragraph 15 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 16. The allegations set forth in paragraph 16 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 17. The allegations set forth in paragraph 17 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. WHEREFORE, Plaintiff Susquehanna Area Regional Airport Authority respectfully requests that this Honorable Court overrule Defendant's Preliminary Objection with respect to CountV. DEMURRER TO COUNT VI - TRESPASS CLAIM 18. The allegations set forth in paragraph 18 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 19. The allegations set forth in paragraph 19 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 20. The allegations set forth in paragraph 20 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 21. The allegations set forth in paragraph 21 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. WHEREFORE, Plaintiff Susquehanna Area Regional Airport Authority respectfully requests that this Honorable Court overrule Defendant's Preliminary Objection with respect to Count VI. DEMURRER TO PUNITIVE DAMAGE CLAIMS 22. The allegations set forth in paragraph 22 to Defendant's Preliminary Objections are conclusions oflaw to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 23. The allegations set forth in paragraph 23 to Defendant's Preliminary Objections are conclusions oflaw to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 24. The allegations set forth in paragraph 24 to Defendant's Preliminary Objections are conclusions oflaw to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 25. The allegations set forth in paragraph 25 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 26. The allegations set forth in paragraph 26 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 27. The allegations set forth in paragraph 27 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 28. The allegations set forth in paragraph 28 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. WHEREFORE, Plaintiff Susquehanna Area Regional Airport Authority respectfully requests that this Honorable Court overrule Defendant's Preliminary Objection with respect to Punitive Damages. DEMURRER TO CLAIMS FOR ATTORNEYS FEES AND COSTS IN THE NEGLIGENCE. PRIVATE NUISANCE AND TRESPASS CLAIMS 29. The allegations set forth in paragraph 29 of Defendant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. 30. The allegations set forth in paragraph 30 ofDefi:mdant's Preliminary Objections are legal conclusions to which no response is necessary or required. To the extent that a response is necessary, these allegations are denied. WHEREFORE, Plaintiff Susquehanna Area Regionalllirport Authority respectfully requests that this Honorable Court overrule Defendant's Preliminary Objection with respect to Claims for Attorneys Fees and Costs in the Negligence, Private: Nuisance and Trespass Claims. Respectfully submitted, RHOADS & SINON LLP Dated: July 7, 2005 by: j) ~~~ ~der, Jr., sqUIre PA J.D. 77412 James J. Jarecki, Esquire J.D. No. 89580 One South Market Square, 12th Floor Harrisburg, P A 1710 1 717.233.5731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority .. . , . CERTIFICATE OF SERVIC~ I hereby certify that on this \ ~ day of J"" \r---' 2005, a true and correct copy of the foregoing Answer to Preliminary Objections was served by means of United States mail, first class, postage prepaid, upon the following: Terry R. Bossert, Esquire Post & Schell, P.C. 17 North 2nd Street, 12th Floor Harrisburg, P A 17101 r~ f, \~ (j ~ .,-,/ D 'f;~ , .....> = = <OJ' <- c.::: r-' <-:: ::-~ -< -, w o 'Tl -I ::r::::n n1 r:: -0 P:; -n"'~ ()J') \ ~:""- -:J: -;k ~~~~ ;;~~ ~:.:::?\ ~.~ -ry =;.: ~) o Paul J. Bruder. Jr., Esquire PA I.D, No, 74412 RHOADS & SINON LI.P One South Market Square, 12th Floor Harrisburg, PA 17101 717,233,5731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW SUSQUEHANNA AREA REGIONAL AIRPORT AUTHORITY, vs. NO. 04-5240 SEABOARD TANK LINES, INC., Defendant PRAECIPE TO SETTLE. DISCONTINUE & END TO THE PROTHONOTARY: Kindly mark the above-captioned matter SETTLED, DISCONTINUED & ENDED, with prejudice as to Defendant Seaboard Tank Lines, Inc. Respectfully submitted, RHOADS & SINON LLP Dated: July 18, 2006 by: Pa J. B der, Jr., E PA LD. 7412 One South Market Square, 12th Floor Harrisburg, PAl 71 0 1 717.233.5731 Attorneys for Plaintiff, Susquehanna Area Regional Airport Authority 615882.1 r". 1"-,) , r:;:;: ~~ c;-;;< C>-.. ---* -r i~-il '-.0 f:~;, f"" ,-