HomeMy WebLinkAbout95-06469
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THOMAS K. HERRINGTON and
JUDY L. HERRINGTON,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
AERO OIL, INC.,
Defendant
95-6469 CIVIL TERM
PRE-TRIAL CONFERENCE
A pre-trial conferenoe was held in the ohambers
of Judge Oler on Wednesday, Ootober 21, 199B. Present on behalf
of the PlaintiffS were G. Bryan Salzmann, Esquire, and Norma
Lukaos, Esquire. Pres~nt on behalf of Defendant was Ralph D.
Oyler, Esquire.
This is a negligenoe actio~ brought by Plaintiff
home owners against a heating/oil oompany for allegedly faill.ng
to disoover an oil leak in Plaintiffs' heating system. Detenses
inolude (a) the absence of negligence and (b) contributory
negligence.
This will be a jury trial in which each side,
pursuant to an agreement ot oounsel, will have tour peremptory
ohallenges for a total of eight. The estimated duration of
trial is three days.
with respect to issues in the case, it is noted
that Plaintiffs are not claiming punitive damages. Briefs are
requested trom counsel at least five days prior to com~encement
of the torthcoming trial torm on the
is.us. of (1) whether an owner. of property may express an
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opinion on 10.. of market ValUII and (:I) whether the mhdng
evidence rule (and reeulting charge to the jury) ift applioable
to thi. ca.e with regard to a certain pip. which Plaintiff.
apparently di.po.ed of and which evidently oontained a hole
where oil had leaked.
It i. noted that Defendant ha. reque.ted ~
continuance in thi. ca.e for the purpose of permitting it,
expert to te.t a sample of water for oil contamination in the
Plaintifh' well, and for the purpo.. of receiVing a report from
it. expert. It appears that the expert has peen less than
diligent in responding to requests by Defendant's oounsel for
completion of his report. In addition, Defendant's counsel has
indicated that a medioal problem may result in his being
unavailable for trial during the week of November 9, 199~. The
Court ha. indicated that, in v~ew of the oppo.ition of
Plaintiff.' counsel to the continuance requeet and the age of
the case, it would not grant II continuance on the first two
grounds but would grant ~ continua~ce for medical reasons in the
event that Defendant's counsel represents that he will pe
unavailable for trial for such reasons.
With respect to settlement neqotiatio~s, it doe.
appear that there is a possibility of settlement of this oase,
or at least of an agreement that the case be continued on the
basis of a partial resolution.
By the Court,
, Jr., Jr.
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IN THE COURT Oil COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLV ANIA
CIVIL DIVISION
THOMAS K. HERRINGTON and
JUDY L, HERRINGTON,
Plaintiffs
: No, 95-6469
vs.
AERO OIL COMPANY,
Defendant
: JURY TRIAL DEMANDED
Bll.LE
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AND NOW, thi8_~r~L. day oftJllvllIIlI<<ir, 1998, upon consideration of the
atlllched Motion, a RULE is issued upon the defendant to show Clluse. ifany they have,
why the relief requested therein should not be I!ranted,
RULE RETlJRNAULI!. _.,l~ days al\er service,
BY THE COURT:
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IN HIE COURT OF COMMON I)LEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DI,VISION
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THOMAS K. HERRINGTON AND
JUDY L, HERRINGTON,
Plaintiffs
: NO. 9~-6469
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AERO OIL, INC.,
Defendant
MOTION TO COMPEL WATER SAMPLE
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Defendant, by its attomey, Ralllh Oyler, Esq., makes the following request for
relief:
I. This case arises out of a leak of home heating oil onto the property of the
plaintiffs allegedly occurring on or about Janual)' 199:1.
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2, At the prc-trial conferelll:e, defcndant indicated that it wished to take a water
SBIIIple from the well located on plaiJllitTs' premises, It was hoped that a SBIIIple might
facilitate settlement of the claim.
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3. Defendant has requested the opportunity to take ,such a sample via telephone
conversation of Wednesday, October 28,1998, with plaintiffs' counscl.
4, Plaintiffs' counsel indicated that he could not agrce to allow defendant access
to plaintiffs' property to take said sample.
~. Defendant believes that it is entitled to take a sample since the level of
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conlaminotioll ofpluillllllil' property III cenlmllo the cluirll,
WHEREFORE, defendunl pl'llYlllhill Honorllble Court gronl defendont Ihe righl to
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obtain a IlBlI1ple of woler from the welllocoled on defendunl's properly at 0 Iillle mUlually
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convenienllo Ihe pnrties.
RespeclliJlly submitted,
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al D. q9 r, Ellq,
Alt . ley for efendont
1.0. 43570
31 Soulh Washinglon Street
Gettysburg, PA 17325
(717)337-3111
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THOMAS K. HERRINGTON and : IN THE COURT OF COMMON PLEAS OF
JUDY L. HERRINGTON, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
: No. 95-6469
VS.
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I CIVIL ACTION - LAW
Defendant : JURY TRIAL DEMANDED
AERO OIL; INC"
AND NOW, this
day of
,1998, Defendant's
Motion to Compel Water SllIl1ple is hereby denied.
BY THE COURT,
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THOMAS K. HERRINGTON IInd
JUDY L. HERRINGTON,
PllllnllfT
: IN TIll! couln OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No. 95-6469
vs.
: CIVIL ACTION p. LAW
AERO OIL, INC"
Delenllllnl
: JURY TRIAL DEMANDED
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Pllllnllllil, Thomlls K. IInd Judy L. Iferringlon, by 1I/1111hrough lhelr allomey, G.
Bryan Sldzlllllllll, Esquire of Salzmann & DePaulls, P,C,. l1Ie lhls Respollse 10
Defendanl's MOllon 10 Compel Willer Sample LIS follows:
I, Denied. It is specifically denied lhm this clIse arises oul of II leak of home
healing oil onto the propel1y of lhe PlllhllllTs IIl1egedly occurring on or about Janulll')'
1995. To the contrllry, PlllilllllTs have IIl1eged thllt the lellk of home heating oil onto lhelr
property occurred in December 1994 since lhe Pllllnlllls firsl nOliced II smell of oil on or
IIbout December 25, 1994.
2. Admllled in purt, denied in part, It is admillcd lblll allhe pre-lrilll conference,
Defendant indlcllted II desire 10 obtllin II Willer sllmple frollllhe welllocllled on Plainliffs'
premises. It Is specificlllly denied lhal any wllter sample lhus obtained would facilitale
selllemenl of the c1l1im liS any results of II waler sanlple would nol aITtct Plaintiffs'
decision to sellle the c1l1im. By way of further response, Defendant Aero hl18 not made a
written oITer to sellle this Illatter at this lime. Therefore, lhere are no I18surlll1ces thaI
selltemenl would be facililaled.
3, Adl11ll1ed,
4, Adl11II1Cd, By WilY of t'u11hcr rCHpollsC, 1'lullllllTs wlll 1101 ullrec 10 II110w
Delelldlllll IIcceS6 10 1'11I11I1111il' properly 10 IlIke II wuler slll11ple sillcc Delelldunl hud
IIlUple Iil11c 10 seck such II Slll11ple durlllg discovery IInd l'ulled 10 IIVlIlllhCl11selveH of Ihal
opportunlly,
5. Dellied. Dcfelldwlt'S IIl1egllllollslll I'urllllrllph 5 COlIslltule concluslolls of IlIw
to which no responHe Is required. To Ihe exlcnl II rcsponsc IH required, It is specifically
dellled Ihllt Defendunl Is enlltled 10 IlIke II swuple since the level of conllllUillation of
Plaintiffs' property Is central to Ihe cllIll11, To Ihe conlrury, the Pllllnllffs IISsert Ihat there
is a previous sllmple of the well known 10 Dcfelldllnt Aero which evidences
conlllmlnllllon oflhe well.
WHEREFORE, Ihe PllllnllCfs, Thol11l1s K. WId Judy L. Herrlllgton, request Ihls
Honornble Court to deny Defelldanl Ihe right to oblllln II Wilier swuple from 1'llIllIlIffs'
well,
Respeclfully submllled,
Sallmunn & Del'au!is, I'.c.
Date: 11./, /...,
By'
1580 Gabler Road
P.O. Box 276
Chlllllbersburg, I' A 1720 I
(717) 263-2121
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1 hereby certify Ihlll onll1ls 31ll day of December, 1998. I served IllruCllllld con'CCl
copy of the foresoing PlalnlilT,' Response to Motion 10 Compel Waler Sample by ftnl cl8l1
mllll, poslage pre-paid 10 Ihe following:
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Ralph D. Oyler, Esquire
31 Soulh Woshinglon Slreet
Oellysburg, P A 1732S
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Sal7.lI1l11ln & DePaulls. P.C.
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By: )f:e.LIJ J! Lj/~.lfe/lJ '
Leah A. Miller
I.egal Secrelary
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306, 311/ 461 A.2d 600 (1983)/ the Court permitted the plaintiff to
plead new eupporting facta after the statue of limitationa had run
becauae the original complaint included general allegatione of
negligence. In Its opinion, the court stated that if the defendant
did not understand how it failed to IIse due care and caution, it
ahould have filed a preliminary objection in the nature of a
requeet for a more specific pleading or moved to atrike the
complaint.
In the caee sub judice the plaintiffs' allegations of
negligence are set forth l.n paragraph 21 of its complaint.
Subparagraphs (a) and (e) are vague, and subparagraph (f) is a
"catch-all" allegation.
If defendant does not object to these
allegations now, it may be faced with liberal amendments after the
running of the statute of limitations. 'fherefore, these specific
allegations should be stricken, and plaintiffs should be required
to specifically plead all allegations of negligence now.
2. Has plaintiff alleged facts sufficient to state a claim
for a private nuisance?
The rule iSI
"Under Pennsylvania law, nul.sance is an unreasonable,
unwarrantable, or unlawful use by a person of his won
property, which causes injury, damage, hurt,
.inconvenience, annoyance, or discomfort to one in the
legitimate enjoyment of his reasonable righte of person
or property." ~eal v. Dent. of Arm)!, 852 F.SupP. 327,
337 (M.D.Pa. 1994).
In the case sub judice/ the plaintiffs have not alleged that
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th$ detdndant took some ~ction on its own prQpert~ which had an
effect on theira. f'oL' example, plaintiffs have not alleged that
the defendant allowed cinders from neighborinq smokestacks to
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polluto their proIJerty.
Rather, plaintiffs havl3 alleged that
defendant allowed the discharge of heating oil from a tank located
on their own property. This is not a private nuisance, County III
should be dismissed.
Respectfully submitted,
Datedc June 24, 1996
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THOMAS K, HERRINGTON AND
JUDY L. HERRINGTON,
Plaintiff
I IN THE COURT OF COMMON PLBAS OF
CUMaBRLANO CQUNTY, PENNSYLVANIA
NO. 95-6469
VB.
CIVIL ACTION - LAW
JURY TRIA[, DEMANDED
AERO OIL, INC.
Defendant
PLAINTIFFS' BRIBF IN OPPOSITION
10 DBr~ANT'S PRELIMINARY OBJECTIONS
AND NOW, this 9th day of )\,ugust, 1996, c:omes the PlaintiffS
Thomas K. Herrington and Judy L. Herrington, by and through their
attorney, G. Bryan Salzmann, Esquire, of the law fi~n of Salzmann &
DePaulis, p,C, and files this Brief in Opposition to Defendant's
preliminary Objections in the above captioned matter as follOWS'
I. PROCEDURAL HISTORY
On May 8, 1996, Plaintiffs Thomas K. Herrington and Judy L.
Herrington (hereinafter "Plaintiffs") filed a Complaint against Aero
Oil, Inc, (hereinafter "Defendant"). On May 28, 1996, Defendant
Aero Oil, Inc. filed preliminary Objections to PlaintiffS'
Complaint. On June 17, 1996, Plaintiffs filed a Response to
Preliminary Objections. On July 24, 1996, PlaintiffS' counsel
listed Aero Oil/s preliminary Objections to Plaintiffs' complaint
for Argument Court. Oral argument was schedule for AUgust 14, 1996.
On Au~~st 6, 1996. Plaintiffs were served with Defendant Aero Oil's
Brief in support of its PreLiminary Objections to Plaintiffs'
complaint, Thie Brief is fiLed in opposition to Defendant Aero
Oil's preliminary Objections to Plaintiffs' Complaint.
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IX . 8'1'1.'1'- 01' FAC'1'i
On or about December 25, 1994, Plaintiffs contaot.ed Defendant
regardin~ the smell of oil in their home located at 6 Wood Lane,
Carlisle, Cumberland County, Pennsylvania. The Defendant alid/or
Defendant's representative informed Plaintiffs that their hot water
tank was leaking causing water to mix ~rith oil on the floor. On or
about J'anuary 3, 1995, Defendant and/or Defendant's representative
replaced the Pll\intiffs' hot water tank, At. the same time
Plaintiffs told Defen~ant and/or Defendant's representative that the
oil smell was stronger and that the smell must be caused by a
problem other than the hot water tank. Defendant and/or Defendant's
r.epresentative subsequently cleaned the Plaintiffs' chimney and
furnace and placed odor. powder on the floor in an unsuccessful
attempt to eliminate the oil smell. During the cleaning of the
furnace, an undetermined amount of oil was released.
On or about January 6, 1995 Defendant and/or Defendant's
representative filled Plaintiffs' outside oil tank without any
further inspections or repairs. Approximately two days later, the
Plaintiffs reported to the Defendant and/or Defendant's
representative that an oil fitting on the hot water tank was leaking
and that the oil smell was much worse. Plaintiffs were told by the
Defendant and/or Defendant's representative that they could not
repair the leak until the following day and to place a pan under the
leak to catqh the leaking oil. On or about January 9, 1995,
Defendant and/or Defendant'S representative repaired the leaking oil
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Htting on the hot water tank and placed additional odor powder on
the floor. On or about January l2, 1995, Plaintiffs reported to
Defendant and/or Deeendant's representative that their house had no
heat and hot water and that the strong oil smell continued. The
Defendant and/or Defendant's representative inspected the
Plaintiffs' furnace, hot water heater, oil tank and also the oil
tllnk service line located under the Plaintiffs' home. The Defendant
and/or Defendant' a representative discovered that the oil tank and
service l.ine to the oil tank were leaking and had caused an
undetermined amount of oil to seep out of the Plaintiffs' oil tank
contaminating the ground and groundwater under the Plaintiffs' home,
The Defendant and/or Defendant's l:'epresentative repaired the oil
tank service line and refilled the Plaintiffs' oil tank and
restarted the oil and hot water heaters.
Plaintiffs have brought this action against Defendant Aero Oil
due to the negligence of the Defendant and/or Defendant's
representative which resulted in the contamination of Plaintiffs'
ground and groundwater. The Defendant and/or Defendant's
representative and interfered with ~laintiffs' exclusive possession
of said property. In addition. the acts and omissions of the
Defendant and/or Defendant's representative have created a nuisance
condition in and on the Plaintiffs' property. Plaintiffs have
already incurred significant costs for the unsuccessful repair
services and lost oil provided by Defendant and/or Defendant's
representative and cleanup costs for the contaminated ground and
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groundwater, Purthermore, PlaintiHIil have lIuffered the 1011II ot thl!
market value of their property, and tht! inoonvenhnr.:e and dillruption
of their daily lives.
Defendant Aero Oil has f Hed preliminary Obj ect ionll which lIuk
to dismiss CQunt II I of Plaint if fs' Complaint on thll blUl is that
Pla1ntil!fs' Complaint fails to state a privatQ nuillilJlCe claj,m upon
which rel:1ef may be granted, In addft ion, Defllndant hall requelIted
this Honorable Court to order Plaintiffs to make t.h~ir Complaint
more specific in Count I I paragt'llph 21, regarding the ne<jligenclI
claim.
III. ARGUMENt
A. Defendant Aero Oil'. Pr.llmiDI~Obi.ct1on' .hould b.
1111mheed for rliling to coll\lt1v with ('.....h.rland County
Lgal Rule. :110-6 aDd ".1.0:..1...
Plaintiffs listed Defendant's Preliminary Objections for oral
argument to be held on Augullt 1.1, 1'.1%, According to Rule 210-6 of
the Rules of Court of thl! 9th Judicial Difltrict, Cumberland County,
Pennsylvania, "The party seeking the urder shall furnish these
briefs and .erve a copy of the brief upon oppolling coullllel or any
unrepresented party twelve (12) days before the dat.e set for
argument." (Emphasis supplied) .
Plaintiffs did not receive Defendant'S brief in lIupport of itll
Preliminary Objections untll August 6. 1996 via regular mail,
Plaintiffs should have received the Defendantll brief on August 2,
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1996, i~ accordance with Rule 210-6, Local rules state the relief
for nr,m- compliance in filing unt imely briefS as I "If the party
seeking the order has not filed timely brief in accordance to the
time limitation~ of this rule, the court may deny the relief sought
on that basis alone." Rule 210-6 of the Rules of Court of the 9th
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Judicial District, cumberland County, pennsylvania. In addition,
Local rule 210-8 states that "Argument may be denied to counselor
any party who fails to comply with rule 210-6." Therefore,
PliJ,intiffS requests this Honorable Court to dismiss Defendant's
preliminary Objections for failure to adhere to the aforesaid court
rules. In the alternative, PlaintiffS request this Honorable Court
to deny argument on the Preliminary Objections to Defendant, Aero
Oil in this matter.
B.
T~;~ ;~~~;.,s~~~;~ ~~~~e~~rd an issues in Defendant's
pit At were not briefed in Defendant's
B;i;f in Suggort of its Preli~inarv Ob1ections.
Defendant raised several issues in its Preliminary Objections
that were not addressed in Defendant'S Brief in support of its
preliminary Objections. Rule 210-7 states that "Issues raised, but
not briefed, shall be deemed abandoned." Rules of Court of the 9th
Judicial District, cumberland County, Pennsylvania.
Paragraphs 1 and 3 regarding insufficient specificity of
pleading of Defendant'S preliminary Objections should be deemed
abandoned since Defendant did not raise these issues in its Brief in
support of its preliminary Objections, In addition, paragraph 4 of
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Defendant'a PrQliminary Objections is not at issue sinoe plaintiffs
agreed to stipulate to the deletion of paragraph 21(Pl from its
Complaint. (See Plaintif fs' Responue to li'r..liminary Obj ections,
paragr.aph 4) .
Paragraph 1 of Defendant'B Preliminar.y Objections states that
the Defendant is unable to aBI:et.tain till! nature 'Jf the negligence
claim and prepare a rflsponaiv<Il ple/lll1WI. The Peflllldant'rJ Brief in
support of its Preliminary Qb:j act. iOll11 doeu nIl\'. rj) illl' thi13 issue, In
its brief, Defendant only Clall1HJ tlM\'. lI11bpiHIl',Jraphs (al and (el of
paragraph 21 of Plaintiffs' Complaint lira Vllglll9 IUld d01ll1'l not state
the Defendants are unabl.e to ascort,1in tlhl natlll'e of the claim and
prepare a responsive pleading, 1'hal;'Jforlll, t.hira Court should only
review subparagraphs (a) and (e) as I:a i, lIll!.1 and br ieted by the
Defendant.
Paragraph 3 of. Defendant' Il PrnllminlH'y Object ions should also
be deemed abandoned since Pefendant'lI Brief in support of its
Preliminary Objectionu failu to r.aisu I:hiu issue, paragraph 3
states that plaintiffS have faillH1 tll ,.I11ege factl'l which explain why
the Defendant had any reason to warn the PlaintiffS about the
leaking oil, Defendant' Il Bd',l! cl'Mrl,/ fails to address this claim,
Therefore, this Court Uhllllld Likawioq disregard this issue.
In addition, Dafelldant' II r3rll~f in Bupport of its preliminary
Objections requests tha Court. to strike subparagraph (f) from
Plaintiffs' Complaint, Paragraph 21. However, PlaintiffS have
already stipulated in itu Reu[lllnSEl to preliminary Objections to
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delete Jilaragraph 21 (f), Therefore this iflflllEl has already been
addrsusd without need for the Court's J.ntervention.
C. Count I of Plaintitfs' ComDlaint~ich inco;porata. all
factual ,varments contain.~ in the COmDlain~. adaauataly
.tata. a cause of action in neqliqence aaainst Defendant
Aaro Oil. Inc. which ~s not overbroad and not in violation
of Pa. R.C.P. 1019(a).
Pa, R,C.P, 1019(a) states: "The material facts on which a
cauae of action or defense is based shall be stated in a concise and
sununary form." Defendants argue in their Brief in support of its
Preliminary Objections that Plaintiffs' allegations of negligence
are inadequate with respect to subparagraphs (a) and (e) in
paragraph 21 of Plaintiffs' Complaint. In subparagraph (a),
Plaintiffs have alleged that the negligence of the Defendant
conaisted of a failure to propetly maintain and service the
Plaintiffs' hearing oil system, In paragraph 15 of Plaintiffs'
Complaint, Plaintiffs state material facts that on or about January
12, 1995, Defendant and/or Defendant's representative inspected and
repaired the oil tanl< service line located under the Plaintiffs'
house. However, this was after Defendant and/or Defendant's
representative filled the oil tanl< on or about January 6, 1995
without any further inspections or repairs and after concluding that
the oil smell was first a result of a leaking hot water tank then
the Plaintiffs' chimney and furnace (See paragraphs 4 and 7 of
Plaintiffs' Complaint). Defendant failed to inspect and repair the
oil tank service line, the ultimate cause of the oil smell and oil
7
. . ,
...."
leak, prior to filling the oil tank. As a result of Defendant's
failure to maintsin and service Plaintiffs' heating oil system,
sPecifically, the oil tank service line, the Defendant negligently
oaused the discharge of oil into the ground and contLlmination of
Plaintiffs' groundwater. These facts ar.e sufficiently set froth in
Plaintiffs' Complaint.
In addition, Defondant states in its Brief that subparagraph
(e) of paragraph 21 of Plaintif.fs' Complaint is vague. In
subparagraph (e) Plaintiffs allege that Defendant failed to warn
Plaintiff of an unreasonably dangerous condition on Plaintiffs'
property. Plaintiffs have sufficiently pled facts that support this
allegation in its Complaint. As previous allegations in the
Complaint are incorporated into Count I, Defendants h~ve sufficient
f.acts in order to answer Plaintiff~' Complaint.
Paragraph 11 of Plaintiffs' Complaint states that "On or about
January 8, 1995, Plaintiffs were told by Defendant and/or
Defendant's representative that the Defendants could not repair the
leak until the next day and to place a pan under the leak to catch
the leaking oil. Defendant did not warn Plaintiff of the
possibility of the dangerous condition of oil contamination to
Plaintiffs' property. Furthermore, Defendant had not determined
that the prior attempts to repair the oil tank were successfuJ. prior
to filling the oil tank with oil and did not warn Plaintiffs of any
dangerous conditions that may have resulted if the repairs to the
oil tank were unsuccessful (See paragraph 9 of Plaintiffs'
8
, '. I
.... . .
Complaint). Material facts on which a negligence cause of action is
based has been stated in Plaintiffs' Complaint. Therefore,
Defendant's motion for a more specif ic pl.eading as to Count I of
Plaintiffs' Complaint should be denied.
D. Count III of Plainti!IJ~m9laint. which incorDorata. all
taQtual averments conta~.ned in the COlllDlaint. adeq}1ately
.tate. a cause of acti9n in private nuisance aaa~ALt
Defendant ~o Oil. Inc.
Where dQubt exists as to whether a demurrer should be
sustained, doubt should be resolved ill favor of overruling the
demurrer. Mahoney v. Furches, 503 P.a. 60, 468 A.:ld 458 (1983). If
any material fact remains in dispute, judgment should not be entered
on a demurrer. ~ramlau Corn. vs. Delaware Countv, 223 Pa. Super.
272, 299 A.2d 335 (1972). Preliminary Objections in the nature of a
demurrer admits all well pleaded facts, along with all reasonable
inferences therefrom and may not be sustained unless it is clear on
the face of the pleading that law will not permit the recovery
sought, and all doubts must result in favor of overruling the
demurrer. Id.
Defendant Aero oil has averred that it is not liable to the
Plaintiffs under a private nuisanc~ action since the Plaintiffs have
not alleged the Defendant took some action on its own property that
affected the Plaintiffs' property (Defendant's Brief, page 2).
Section 821(B) of the Restatement (2nd) of Torts has been adopted by
Pennsylvania courts. Dembel vs. SChleqel, 478 A.2d, 11, 14-15 (Pa.
9
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Super. 1984). (citing Waschak 'IS. Moffot, 1.09 A.2d 10 (Pa. 1954).
Section 822 of the Restatement of Torts provides that a party is
liable for private nuisance if his conduct is a legal cause of an
invasion of another's interest in the private use and enjoyn\ent of
land and the invasion is either (a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under rules controlling
liability or reckless conduct, or for abnormally dangerous
conditions or a~tivities. Restatement (2nd) of Torts ~822. The
Restatement of Torts refers to the extent of an invasion necessary
to insu~e liability as "there is liability for a nuisance only for
those to whom it causes significant harm, of a kind that would be
suffered by abnormal person in the cOlnmuni:y by property in normal
condition and in use for a normal purpose." Restatement (2nd) of
Torts !i822.
The language contained in ~822 of the Restatement (2nd) of
Torts should extend to Plaintiffs' because Defendant's condu.ct was a
legal cause of an invasion of tte Plaintiffs' interest in the
private use and enjoyment of their property. SincF.l it is not clear
on the face of the pleading that law will not permit the recovery
sought, Defendant's demurrer to ~ount III of Plaintiffs' Complaint
should be overruled.
XV. CONCLOSION
For the reasons sat forth herein, PlaintiffS Thomas R.,
Herrington and Judy L. Herrington respectfully request this
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THOMAS K. H~RRINGTON and
JUDY L, H~RR!NGTON,
Plaint if f
IN THE COURT OF COMMON PLEAS OF
CUMB~RLAND COUNTY, PIilNNSYLVANIA
NO. 95-6469
vs.
AERO OIL, INC.
Defendant
CIvn, AC'rtON . LAW
JURY 'PRIAL DEMANDED
CONPLAW
1. Plaintiffs Thomas 1<' Herrington and Judy L. Herrington are
adult individuals residing at 6 Wood I,ane, Carlisle I Cumberland County,
Pennsylvania.
2. Defendant Aero Oil, Inc., J.a a Pennsylvania Corporation having
a business address located at 816 W. High Street, Carlisle, Cumberland
County, Pennsylvania.
Defendant Aero Oil, Inc. regularly conducts
business within Cumberland County, Pennsylvania.
3. On or about December, 25, 1994, plaintiffs contacted Defendant
regarding the smell of oil in Plaintiff' a home located at 6 Wood Lane,
Carlisle, Cumberland County, Pennsylvania.
4. On or. abour, December 25, 1994, Defendant and/or Defendant's
representative informed Plaintitfa that their hot water tank was leaking
causing water to mix with oil on the floor.
5. On or about January 3, 1995, Defendant and/or Defendant's
representative replaced the Plaintiff's hot water tank.
6. On or about January 3, 1995, Plaintiffs told Defendant and/ox'
Defendant's representative that the smell of oil in the house was
stronger and that the smell must be caused by a problem other than the
hot water tank.
7. on or about January 3, 1995, nefendant and/or Defendant's
representative cleaned the plaintiff's chimney and furnace and placed
odor powder on the floor in an unsuccessful attempt to eliminate the
strong oil smell.
8. On or about January 3, 1995, an undetermined amount of oil was
released during the cleaning of the furnace.
9. On or about January 6, t995, Defendant and/or Pefend~,nt's
representative, without any further inspections or repairs, filled the
outside oil tank.
10. On or about January 8, 1995, plaintiffs reported to Defendant
and/or Defendant's representative that an oil fitting on the hot water
tank was leaking and that the oil smell in the house was much worse.
11. On or about January 8, 1995, plaintiffS were told by Defendant
and/or Deferdant's representative that they could not repair the leak
until the next day and to place a pan under the leak to catch the
leaking oil.
12. On or about January 9, 1995, Defend 'nt and/or Defendant:' s
representative repaired the leaking oil fitting on the hot water tank
and placed additional odor powder on the floor for the continued strong
oil smell,
13. On or about January 12, 1995, plaintiffs reported to Defendant
and/or Defendant's representative that their house had no heat and hot
water and that the strong oil smell continued.
14. On or about January 12, 1995, Defendant and/or Defendant's
representative inspected the plaintiff's furnace, hot water heater and
oil tank.
15. On or about January 12, 1995, Defendant and/or Defendant's
representati va inspected and repaired the oil tank servJ.ce line looated
under the Plaintiff's house.
16. On or about January 12, 1995, Defendant and/or Defendant is
repres~ntative refilled the Plaintiff's oil tank and restarted the oil
Bnd hot water heaters.
1? As a result of the leaking oil tank and service line to the
oil tank, an undetermined amount of oil seeped out of Plaintiff's oil
tank contaminating the ground and groundwater under the Plaintiff's
home.
16. As a result of this contamination, Plaintiffs have sustained
damages caused by the events described herein as follows I
(A) Loss of the market value of their real property.
(8) Costs of the unsuccessful repair services and lost oil
provided by Defendant.
(C) Cleanup costs for the contaminated ground and ground
water.
(D) Inconvenience and disruption of their daily liVes.
COtJN'!,' I
NBGr..IGIlNCB
19. Paragraphs 1 through 16 are incorporated herein by reference
as if fully set forth.
20. The discharge of oil into the ground and the subsequent
contamination of plaintiff's well were caused solely by the negligence
of the Defendant, its servants, agents and/or employees.
2~. The n~gligence of the Defendant, its servants, agents and/or
employees oonsisted of the following I
(1\) Failure to properly maintain and service the
Plaintiffs' heating oil system.
(B) Failure to discover and properly repair the leaking oil
tank service line.
(e) Failing to determine whether prior repair attempts on the
oil tank were successful prior to filling the oil tank
with oil.
(D) Creation of an unreasonably dangerous condition on
Plaintiffs' real property.
(8)' Failure to warn Plal.ntiffa of said unreasonably dangerous
condition.
(F) Such other negligent acts and omissions as will be
ascertained in the course of discovery.
22. Defendant's negligence was committed in wanton, reokless and
outrageous disregard for. the rights, safety and health of the
Plaintiffs.
23. I\s a result the negligence of Defendant, its servants, agents
and/or employees, Plaintiffs have suffered damages caused by the events
described herein as follows I
(A) Loss of the market value of their real property.
(B) Costs of the unsuccessful repair services and lost oil
pt'ovided by Defendant.
(e) Cleanup C09ts for the oontaminated ground and ground
water.
(D) Inoonvenienc" and disruption of their daily lives.
NOW THEREFORE, E'laintiffs sellk a award of oompensatoI'y, damages
against Defendant in the amount in excess of Twenty Thousand Dollars
($20,000.00) together with costs, attorney's fees, and interest as
r.llowed by law.
S:0UN'l' :n
'1'RBSPASS ACTION
24. Paragraphs 1 through 24 are incorporated herein by reference
aa if fully set forth.
25. Defendant permitted the release of heating oil into the ground
and groundwater on Plaintiffs' property,
26. By said release of oil, Defendant has trespassed upon
Plaintiffs' real property, interfered with Plaintiffs' exclusive
possession of said property and caused Plaintiffs to suffer damages as
follows I
(A) Loss of the market value of their real property.
(B) Costs of the unsuccessful repair services and lost oil
provided by Defendant.
(el Cleanup costs for the contaminated ground and groundwater.
(D) Inconvenience and d.isruption of their daily lives.
NOW THEREFORE, Plaint.i.ffs seek an award of compensatory damages
against Defendant in an amount in excess of Twenty Thousand Pollars
($20,000.00) together with costs, attorney's fees and interest as
allowed by law.
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VIlRIrICATIOK
I, JUdy L. Herrington, have read the foregoing CCjlmplaint and hereby
affirm that it is true and correct to the best of my personal knowledge,
information and belief. This Vlirification and statement is made Dubject
to the penalties of 19 Pa.C.S. Section 4904 relating to unsworn
falsification to authoritiest I verify that all the statements made in
the foregoing are true and cot'rect and that false statements may subj ect
me to the penalties of 18 Pa.C.S. Section 4904.
~~. 8u-~:~Lh..
d L. Herring n
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CIRTI,ICATI 0' 81,VICI
AND NOW, this 8th day of May, 19~6, I, G. Bryan salzmann, Esquire,
an attorney in the law firm of Salzmann & DePaulis, P.C. hereby oertify
that I Bent a true and Qorrect copy of the foregoing dooument by sending
a copy of the same certified mail, return receipt r.equested,, to the
following I
R. W. Wolfe
Aero Oil, Inc.
816 W. High street
Carlisle, PA 17013-2799
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:). Phintitf hIlS tailed to alleqa facts which
explain why th8 Defendant hed any reason to be expected to
warn the Plaintiff about lllaking oil.
4. In paragraph 21(F) Plaintitf inappropriately
alleq8s liability for "such other negligent acts and
omissiono as will be asoertained in the course of discovery. II
WHEREFORE, the DefQndant respeotfully moves the oourt
for its order requiring Plaintiff to make his oomplaint more
speoifio in the following respeots and partioularsl
1. With respeot to paragraph 21 (A) of Baid pleading,
to show and set forth how the Defendant failed to
properly maintain and servioe the Plaintiff's
Heating oil System beyond the faots allQged or to
limit the negligenoe olaim to the December 1994 and
January 1995 ~ates of service.
2. With respect to paragraph 21 (E) to show Why
Defendant had a duty to warn the Plaintiff and how
the Defendant failed to warn the Plaintiff.
3. With respeot to paragraph 21 (F) to either establish
what other neglig~nt acts and omissions are at
question or strike paragraph 21 (F) in its entirety
from the oomplaint.
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II. DEMURRER TO COUNT II:t
1. In Count III of the Plaintiff's oomplaint,
Plaintiff fails to state facts constituting a oause of aotion
"
again.t this Defendant upon whioh retiaf may be granted.
a. The faots so alleged do not show requisite
ele.ent. of . privata nui.snoe.
WHBREFORE, Defendant respeotfully requests the court to
di.mi.. Count III in the Plaintiff'. oomplaint for failure to
.tat. a olaim upon which rel1.ef may be granted.
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Re.peotfully submitted,
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ler, Esquire
r i:)t,(fMMt
31 South Washington street
Gettysburg, PA 17325
(717) 337-3111
IDI 43570
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CERTIFICAT~ OF SERVICE
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I, Karen Hetlin, Legal Assistant tor Ralph O. Oyler,
Esquire, do hereby certify that on May 31, 1996, a true and
correot copy' of Defendant's preliminary Objeations "'ere
mailed to the following via first-class mail, postage
pre-paid I
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G.Bryan Salzmann, Esquire and
Ann F. Depaulis, Esquire
P. o. Box 276
1580 GablQr Road
Chambers~urg, PA 17201-0276
Counsel for (>104,dif.t
Oatel May 31, 1996
BYI I~n
Legal Assistant
Ralph Oyler, Esquire
Attorney for Plaintitts
,
,
IN THE COURT OF COMMON PLEAS OF
CUMBBRLAND COUNTY, PRNNSYLVANIA
CIVIL ACTION - LAW
THOMAS K. HERRINGTON
and JUDY L, HERRINGTON,
Plaintiff
No. 95-6469
Jury Trial Demanded
va,
ABRO OIL, INC.,
Defendant
Filed on Behalf of
Plaintiffs I
Ann F. DePaulis, Bsq.
Pa, I.D. ~ 56106
15ijO GRbler Rd.
Chambersburg, PA 17201
(1771) 263-2121
2933 North Front Street
Harrisburg, PA 17110
(717) 232-9420
a.SPONS. TO pa.LIHINARY OBJBCTIOU~
IUld now, this 17th day of June, 1996, comes the Plaintiffs
by and through their counsel, Salzmann and DePaulis, P.C., to
file this Response to Preliminary Objections in the above
captioned matter, as follows:
I. INSU"ICIBNT SPBCI'ICITY 0' PLEADING
1. Denied. It is denied that the Plaintiffs make broad
allegations of negligence in Paragraph 21 of Plaintiffs'
Complaint. Furthermore, the alleged negligent actions of the
Defendant are sufficiently set forth in Plaintiffs' Complaint so
as to enable the Defendant to ascertain the nature of the
negligence olaim and prepare a responsive pleading,
2. Denied. It is denied that Plaintiffs set forth
general allegations of negligence without limitations to specific
dates. Furthermore, the dates of the alleged negligence are
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suffioiently set forth in Plaintiffs' Complaint.
~. Denied. It is denied that Plaintiffs have failed to
set forth facts explaining why Defendant had reason to expeot to
warn the Plaintiffs about leaking oil. Furthermore, the facts
let forth in Plaintiff.s' Complaint alleged numerous lervioe calls
and repairs performed by the Defendant and/or Defendant's
representative at the Plaintiffs' home. PlaintiffS further
allege in their Complaint that Defendant and/or Defendant's
representatives were well aware of the oil smell permeating the
house and the leaking oil.
4. Plaintiffs agree to stipulate to the deletion of
paragraph 21(F) which set forth allegations of liability for
"suoh other negligent acts and omissions as will be ascertained
in the course of discovery."
WHBREFORE, the Plaintiffs respectfully moves this Court for
an order denying Defendant's Preliminary Objections and denying
Defendant's request for a more specific pleading as to Count I of
the ~laintiffs' complaint.
XI. DBKURRRR TO COUNT III
1. Denied. It is denied that Plaintiffs' Complaint fails
to state facta constituting a cause of action against Defendant
upon which relief may be granted.
2. Denied. It is denied that the facts so alleged in
Plaintitfs' Complaint do not show requisite elements of a private
nuisance action.
WHBREFORE, Plaintiffs respectfully request this Court to
deny Defendant's Preliminary Objections and Demurrer to count III
of Plaintiffs' Complaint.
Respeotr.ully sUbmitted,
Salzmann & DePaulis, P.C.
~r ~P~s_
G. B~yan Salzmann, Esquire
I.D. jf6193S
Ann F. DePaulis, Esquire
I.D. 1156106
PO Box 276
1580 Gabler Road
Chambersburg, PA 17201
(717) 263-2121
Dated~
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I, Norma LUkacs, Law Clerk for Salzmann & DePaulis, P.C., do
her,by oertify that on June 17, 1996, a true and cQrrect oopy of
Plaintiffs' Response to Preliminary Objections were mailed to the
following via first-class mail, postage pre-paid!
Ralph D, Oyler, Bsquire
31 South Washington Street
G~ttysburg, PA 17325
Counsel for Pefendant
il
Pate! June 17, 1996
ay! "'7I!a11'~1 ~ '(j,;JetCIJ
"lforma Lukacs
Law Clerk
Salzmann & Pepaulis, P.C.
Attorneys for plaint~ffs
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II. Denied, DofendwlI does nol recall mokhll! sudl slalemenlll,
12, Admlltod in pll1, II is admitted thaI defendwlt repaired the leaking ollllttinl! 011 tho walllr
hOllor. II is denlllll dIal odor powder Willi used onlhat lICcllllion,
13. Admilled in plll1 It is admilled dIal plaintiffs report~'Ii Ihllllhoy had no heat. WId no hot
walllr. DofendWlI does not recall allY collverBalion conceminll the smell of oil al the lime of said Initial
report.
14, u 16, Admilled,
17. Denied, It Willi nolIhe oil tWlk thAI wlllIleakinll, Rother. the supply line wlllIleakinll, As
to the remainder of the aVemlo:llt. defendwll. ofter rellllonable investiglllion, is Wilhout knowledge or
information sufficienl to fomlll belief IllI to the truth of the llvennenl WId proof is demwlded,
18. Denied, After reasonable investiglltioo defendlUlt is without knowledge or information
sufficient 10 form a beliefllll to the trudl of the averment lUId prooris dernlUlded, Additiooally, it is
denied dIal plaintiffs alleged dwnalles are recoverable,
19, No Wlswer is neceSSlII)IlO parallraph 19,
20. Denied, It is denied that defendWlt wlllInelllillenl in WlY lI1W1ner whatsoever, or that
plainliffs' well or property Willi conlWllinaled,
21. Deni~.d, It is denied Ihat defendwll wlllInellligenl in WlY mlUlner whatsoever,
22. Denied, It is denied that defendwll was negligent in WlY rnlUlller whatsoever. or thai its
conduct was "WWlloo. reckless Wid oUlrilllcous".
23, Denied. After a reasonable investigation. defendWll is without knowledge or infonnatioo
sufficient to form a bllliefas to the truth of tile averment lUId proof!s demWlded, Additionally.
2
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THOMAS K. HERRINGTON and
JUDY L. HERRING'fON,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUN1"i, PENNSYLVANIA
NO. 95 -6469
CIVIL AC'fION - LAW
JURY TRIAL, DEM/\NDJl:D
vs.
MlRO OIL, INC.
Defendant
PLAINTIFFS' RESPONSE TO
pEFENDANT A~RO OIL. INC.' S NEW MAT'fE~
/\NO NOW, Plaintiffs, Thomas K. Herrington and Judy L,
Herrington (hereinafter "plaintif.fs"), by and through thl!ir
attorney, G. Bryan Sal~mann, Esquire, of Bal~mann & Depaulis, P,C.
files this Response to Defendant Aero Oil, Inc.'s New Matter as
follows I
30. Denied. It is specifically denied that Defendant Aero
oil, Inc. owed no duty to Plaintiffs.
31, Denied. It is specifically denied that Plaintiffs are
barred by any applicable statute of limitations.
32. Denied. It is specifically denied that Plaintiffs
consented to Defendant's entry onto their property.
33. Denied. It is specifically denied that plaintiffs assumed
the risk, or are otherwise comparatively or contributorily
negligent.
CERTIFIC~E OF ~~RVICE
I hereby oertify that I have, this ,~ day of Septembor, 1996
lent a true and oorrect oopy of the foregoing Plaintiffs' Relponse
to Defendant Aero Oil, Ino.'s New ~atter via United States Mail,
first olass, postage prepaid addressed to R~lph E. Oyler, Esquire,
:1 South Washington Street, Gettysburg, PA 17325.
Salzmann & DePaulis, P.C.
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL l)IVISION
I
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THOMAS K. HBRRINQTON AND
JUDY L. HERRINGTON,
Plaintiffs
NO. 915-6469
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vs.
"
AERO OIl" INC.,
Defendant
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PRAECIPE
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TO THE PROTHONOTARY OF CUMBERLAND COUNT11
PleasQ file the attached original verifioation of
Thompson T. Washburn in the abovo-captioned CBse. The Answer
in the above-captioned case had previously been verified by me
as counsel to Aero Oil, Inc.
Respec,t: ully
Dated I September 18, 1996 BYI
R 1 l(
Attorn
31 So', W ington street
Gettysburg, PA 17325
(717) 33:l-:nU
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HlIJTlngton VI. Aero 011 Co,
~RIFICATIOt,l
I, Thomplon T. Washburn, Manager of Aero 011 Company, and being
authorized to do 80, do verify that the matters, faots and statements set forth In
the Answer filed in this case are true and correct to the best of my knowledge,
Information and belief, I understand that false statements herein are made
sUbJeot to the penalties of 18 Pa.C,6. 6ec,4904 relating to unsworn falsification
to authorities,
Dated:-3 I,l (<1lD
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IN THE COURT ()II COMMON PL.EAS
CUMDERL.ANDCOUNTY.I>>ENNSYLVANIA
1 CIVIL IJIVISION
AERO OIL COMPANY.
Defendant
: JURY TRIAL. DEMANDED
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THOMAS K. HERRINGTON and
JUDY I.. HERRINGTON,
Plaintiffs
: No, 95.6469
vs,
DEFENDANT'S MOTION FUJi SlJMMARY JIJD<;MENT
Defendnnt, Aero Oil Company, by its attorney. Rolph 0, Oyler. Esq,. moves for summary
judgment in its IiIvor and against plaintiffs, and in support thereof overs the tbllowing:
I. On May 8. 1996. plaintiffs tiled theil complaint allelling that home hl!4tlng oil had
leaked from a service line el(tcnded to or from plaintiffs' home hl!4tlnll oil stomge tank, and that
this ll!4kage had caused contamination. and damage, to plainllft's' property
2. Plaintiffs alleged that Ihe ll!4kage Willi the result of defendant's "'gflNtlfetf, Plaintiffs
IIlso alleged that the leakage ofhl!4ting 011 conslitutes a l'tNpa.~,~, L.astly, plalntiffil had alleged that
the leakage constituted 0 nuisance. but this countllow has been dropped by mutual agreement of
the parties,
3, The IiIcl5 elicited to dote via discovery indicate that on January 12. 1995, Keith A,
Maljnosky, an employee of defendant, located the leak by crawling underneath the defendant's
residence; he pulled the return line out of two to three inchC$ ohoil and found a 1/8 inch hole
therein which was promptly repaired,
4, It is cll!4r as a matter of low Ihat defendant did not have any duty to plaintilfs, or, in the
alternative. did not breach any duty to the plaintiffs,
.
5, Defendanl had pem,IsoiolllO en lor pfsilllilfs' Prllperty, alld could nol have committed a
tmpllll,
6. There are no Iicla IndiClllIlIglhal defendalllllCIN Ilia wan lon, reckletls and oUl/'liOllUS
nlanner.
7. 'There is no issUIIIIlIto any material fact.alld plaimilfis elltitled to judgmenllllll mlUer
ofJlW.
WHEREFORE, delil/ldant prays this court grallt summary judgment 011 the issue of
negligence, and/or trcsplllls, lII1d/or the issue of whether defendant acted ilia wanlon, reckless and
oultll/lOllUS manner,
RetlplICtfully subrniUed,
')
Dated: December J 5, 1997
Ralph ,Oy . Esq,
1.0. 4 70
3 I S, WlIIIhington Street
Oellysburg, PA J 7325
(71 7)3J7.3 III
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or H lif1nTJ.!ONOTNlY
970rC30 PN 1104
ClJlvi8l:i'!f I : 'I l~':JUNTY
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IN TIlE COURT 011 COMMON PLEAS
CUMBI!R1.AND COUNTY, PENNSYLV ANIA
CIVIL DIVISION
THOMAS K. HERRINGTON and
JUDY L. HERRINGTON.
Plaintiffs
: No, 95.6469
VI.
AEROOILCOMPANY.
Defendant
: JURY TRIAL DEMANDED
DEIl'ENDANT'S MOTION 1'0 COMPEL ANSWERS TO WRn"fEN
INTERROGATORIES PURSUANT TO PA.R,C.P. 4019 (.)(1)
Defendant, Aero Oil Company, by ils allomey. Ralph D, Oyler, Esq" files this mlltion to
compel ansWllrs to written illterrlll!lltories and ill support thereof avers Ihe following:
I. On or about February 3, 1997, defendant served its first set ofwrillcn interrogatories on
Illitintilfs counsel.
2, Despite repeated requests, plaintiff hWl foiled to file objections or answers to these
interrollBtories.
WHEREFORE. defendant. Aero Oil Company, requests this court to order plaintUfto
respond to defendant's interrollBtories within twenty days,
Respectfully submilled,
)(j)
D,
I,D. 3570
3\ S, WWlhington St.
Gettysburg, PA \7325
(717)337.)111
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THOMAS.~.III!RltlNGTON Blld
JUDY L, II~RltlNOTON,
1't:!NNSYL VANIA
l'IBllllllr~
i IN TIll! COlJln OF COMMON 1'l.EAS OF
I CLJMllElH.ANll COUNTY,
: NO,l)5.MfI')
V8.
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: CIVIL ACTION
AERO OIL COMI' ANY,
Dulimdlllll
,
,
: JURY TRIAL DEMANDt:!D
ORDER
AND NOW, \hi~ _ dBY of
Summnry Judlllllellll~ hereby dellled.
, 11)98, DcfclldBnl's MOllon ror
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undcnlcath thc llclimdant's rcsidcncc an.llhat hc pnlk.lthc Murn Iinc OUlllflWO 10 thrcc Inchcs of
soli and found a 1/11 Inch hlllclhcrcin which was promplly repalrcd, 'rllthc elmlrar)'. thc filets
cllelted 10 datc via .1I~eovcry indlcatc tlmt allcr nUIllCl'l)US vislt~. Kclth Mlllino~k)' !,)llnd thc oillcllk
b)' cntcrinllll erawl~paec inlhc PlainlilTs' bascmcnt.)fthcil' homc. (SCC Exhlhil "A". Dcposillon
Transerlpl of Kclth Mallnosk)', pp, 41-43).
4, Ocnled. Thc allcllullons eonstltulc U eonclusl'lll of law 10 which 110 I'CSpOI1SC is I'c,!ull'cd.
To the exlClllU rcspollse Is I'c,!ulrc,J, ills spccllieulI)' dcnicLll11l1l IkfcnLlll111 Acl'o Oil CUlllpllll)' dill
1101 huvcullY dUI)' 10 Plainllffs, UI' did nut h\'l:ueh UII)' dUly wthe PluilltllTs, B)' wu)' of fUl'lhcr
respollsc, thc Dclcl1dunt 'lwed :l dUI)' 10 the Plainti ffs tu chcek Ihc hltclll'it)' of lhc oi llinc whclI
Defendant inslalled Ihe hut watcr healcr, (Sce Exhihit "B", Reportl)f Wi ilium While), By fuilinlllo
check thc Inlcgrlt)' of lhc 011 line whclI Dcfcndant instal1cLllhc hot walCI' huulcl', lhc Dclcndallt Icll
helow Ihc rcasonabk slunLlurd ofclu'c I'cquil'cd III the InLluslr)', (hL), Also,lhe DefclILlllllt owed a
dUI)' lolhe Plainliffs III detcrminc the sourec ofuil smell whclIlhe smell was IiI'SI rcporte.llo thc
Dcfendanlun or uhOUI Deccmher 25, 1994. (See Exhihit "B". Report of William While; Exhihil "C".
Aflidavll ofThol1111S K. lIel'rington), In addililll1, thc Derendunt oweLluuuly tu Ihe Pluintlll's 10
delermine the source of oil smcll whcnlhe smcll wus ugainl'eporteLlto the Delcndul1t on or ubUUI
Januar)' 3, 19<)5 al1d ullain on 01' about Jallulu'y 8, 1995, (See Exhibit "C". Aflhluvlt ol''rhOlllllS K.
Herrlnglon; Exhibil "0", Malin's Answcril111 Service Record). By wuy 01' l'ul'lher response, the issuc
ofwhcther Defcndanl I'cll below thc I'cquircd slul1dunl or cure Il1lhc induslry Is ul\ucstion of luel I'm
which u jury must decidc.
5, Denied as stated. It is adlllilled thai DefenLlant had pennissionto cnlcr Plainlifl's propcrly
10 Invc~tillale an oil smell and repair an oil leak. It Is spccitieally denied Ihat Dcfendanl could nol
.
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CERTIFICAl'l! OF SI!RVICI!
I hereby certify that I havc,thls ~ ~ <lay of January, 1998, scnt a true and'
correct ~opy of the foregoinll1>laintill"s Rcsponse to Dcfcndant's Motion for SUlllmill')' Judgment via
I United Statcs Mail, I1rst class. postagc prcpaill. uddrcsscd as tollows:
Ralph D. Oyler
Law Offices of Kurcn ClllI'k-Oylcr Ilnd Ralph D. Oyler
31 South Washington Strect
Gellysburg, Pennsylvllnill 17325
Slllzmll/ln & Dc1>aulls, P.C,
By:~~.t~
N a J. Lu CH, Esquire
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EXHIBIT "A"
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Q Okay.
Do you know if there was a amell of oil
2
in the house
has Ed ever told you that there was a
3 smell of oil in the house when he got there on January
49th, 1995?
5
6
A
I don I t recall.
o
Okay. The last packet, still on Exhibit c,
7 it's the fourth stapled paoket. The top aaid, reason
8
call, fumes, logged on 1/12/95. Do you remember going
9
back to the Herrington's residence on January 12th, 1995?
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A Yes.
o
12 there?
13
A
14
Q
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Okay. And what was the reason you went back
The call was for no heat and out of oil.
.
.
Okay. Did the Herringtons complain of an oil
15
smell in their house?
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A Yes.
17
Q Okay. Is that why -. the reason was fumes?
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18
A Yes, yes.
19
Q
Yes, okay. You said that you have a computer
20 data base at Aero that has specific __
21
A
22
o
23
A
24
'0
25
A
Categories.
Categories, fumes is one of them?
Yes.
What does fumes mean? What falls into fumes?
Smell in the house, odor.
.
42
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Okay. Did you personally go out to the site on
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this date?
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A Yes.
4
o And when you went out there, were you greeted?
5 Do you remember?
6
A
Yes, Mrs. Herrington was there.
7
Okay. Can you just tell me briefly what you
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did when you got there?
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A
Well, I went in and started the units, and they
10 didn't fire. And I also went out to the tank, and it was
11 raining that night, and I stuck the tank. And I don't
_2 know how many gallons were still left in it, but it wasn't
".
~3 much. And then I started checking the tank for leaks.
Then what I did after that?
.5
Q Yep.
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A Then I went back in, got down in the lower
'7 section where the boiler and the hot water heater which
9 sits below floor level, and I started looking around, And
looked back underneath the crawl space in the living room
I i
and Been a large damp spot.
And then I crawled underneath the house and
,;1
started following the oil lines and pulled the oil lines
up out of the dirt and discovered that there was a hole in
the oil line.
Q Okay. ~rom the time that you went into the
1
2
3
.
5
6
7
9
9
10
11
12
13
14
15
16
17
19
19
20
21
22
23
24
25
.
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oubby hole, how long did it take you to find the problem?
A Five minutes.
o Okay. Do you know whether Mr. Lishinski ever
checked the storage tllnk or the supply lines on his visit
of January 9th?
A I do not know.
o Do you know when the Herringtons had reoeived
the last amount .. or the last fuel delivery in this
general
A The prior Friday of the 12th. I don't know the
date.
o Okay. So shortly before, shortly before,
several days, within a week's time?
A Within a week, within seven days.
o Why did they receive that?
A Because they were on automatic delivery.
o Does that automatic delivery build into the K
Factor, what's called a K Factor?
A Yes.
o And that has to do with heating degree days and
how many gallons of oil gets burned?
A That's correct.
o When you assess the K Factor, did anyone look
at .- who aases,es that K Factor? Is it just done by
computer?
'.
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COUNTY OF DAUPHIN
COMMONWEALTH OF PENNSYLVANIA
SS
I, Donna E. Riohards, a Notary Publio,
authorized to administer oathll within and for the
Commonwealth of Pennsylvania, do hereby certify that the
foregoing is the testimony of Keith A. Malinosky.
I further certify that before the taking of
said deposition, the witneas was duly sworn/ that the
questions and answers were taken down stenographically by
the said Reporter-Notary Public, and afterwards reduced to
typewriting under the direction of the said Reporter.
I further certify that the said deposition
was taken at the time and place specified In the caption
sheet hereof.
.
. .
I further certify that I am not a relative
,or employee or attorney or counsel to any of the parties,
or a relative or employee of such attorney or counsel, or
financially interested directly or indirectly in this
action.
I further certify that the said deposition
constitutes a true record of the testimony given by the
said witness.
IN WITNESS WHEREOF, I have hereunto set my
hand this 4th day of
Donna E. Richards, RPR
Notary Public
, ~IS"1
'~~ .~bllc
~~ July t2.llOOO
,.,1'
.
~Dta~te.
twlSHIY'S MILL, +H BATON W^Y
WlSTCHIS'11lR. Pl!t'fNSYLV~IA 19Jeo
(410) 419-4349
Janua..y 7. 1888
O. Brv.n S.l~nn. I.~.
S.l...nn . o.Pau1i., P.O.
le80 O.bll" ~.d
P. O. Bclx 278
Oh~be..ebu..', PA 17201~027e
Itel ThOll" K. and Judy lo. "urinaton y', Ae"O OU,lno.
OUr ,Ue .200
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0.." Hr. S.l~~annl
I h.,YII r.ad the followin. materialll which V,'jU .ent to 1\1 on
the aboye-raferenced 0.... Thi. ooncern. oU contaIDination at
the Herrin,ton re.id.noe at 6 Wood t..n... C.rUale. PA. alle..d1Y
cau.ed by ne,li.enos on the part of Aero Oil Coppanv. Inc.
1) Collpl.int
2) Pl.intiff', Re.ponee to Defendant A.ro Oil. Ino,',
New Hattar
3) Depo.itiona ~ Toa A~ooe~, Keith Halino.kv. R.W.
Wolfe
4) D.fendant'. Answ.... to lnt.rro..torl..
&) Photo.raph.:
Herrin,ton'a re,id.nc, on Auru,t 14. 1896
Out.ide 011 Tank. AUlUltl &. 1997
Hot Water He.ter - Auau,t. 1996
Orawl Space - Auau.t 11. 1996
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Crawl spao. .ntarln. near furnaaa- Au~at 1996
Copper tu~~n. that .eve. ins~4. wall - Au~at 199&
&) Depart~.nt of Environmental Prat.ot~on Reporta
I have review.d photo.raphs of the oil lin.s whioh ooma fro.
the out.id. tank throu.h the wall .nd lnto the orawl .paae area
,oin, to the two oil-firad applianoe. in th. h.at.r room in the
baa..ent of the ho.a. I am at a lo.a to understand the
haphaaard, car.l... mann.r 1n whlch th..e llna. have been
1netall.d. They o.rtainly have not been installed in a
profe.aional and workmanlike menner.
. .
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It le ouetamary when inaealllnl a naw appllance, .uch a' a
hot wat.r heater. to 1n.tall a new oil line or, at the very
lea.t. t~ cheok the inte.rity of the exietins oil line. Thi. can
ba done quite simply with a iiromatio hand pump, a p~oture of
wh~oh 1 am enolo,inl. Th~a ie a elmple and efficient way of
det.rmin~n. the inte.rity of the line.
Aaro Oil Company
teohnioian. fal1ad to replaoe the 11ne. or evan oheck the
inte.rity of the lin...
It would appear that the first ..rvioe ~r.on anewerin. the
oall for oil odor. at the H.rrin,ton r..14.no. had oheoked
.uperfioially for any oauee at oil amells and found only a ...11
leak at the fittin,s of the naw appliance. Ha tl.htened the
fittin.s, put down Oil Dry and .pray.d an oil-maskin. deodorant.
Thl. laos. fittin. w.. the result of the improper in.tallation
whioh had takan plao. only a few day a b.fore.
A ..oond A.ro servic.man reaponded to a .econd oall for
odor.. He unoovered the 011 line runnin. 1n the orawl spaoe area
. .
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and d~~covered a hole ln the o~l line.
If the test In.. whloh I ~ntloned .Arl~er, had been done bV
the In.taller, the hola in the oil lln. would hAve b..n
d~SQov.r.d and the 011 line would have be.n r.placed at that
Ulle.
pnNC!t .l18TO..
If the proper prooedur.. had b..n fol1ow.d at the till8 of
the In.tallation of the dOlle.tia hot wat.r appllano.. the hole
would have boen repairad. or tha line would have b.en replao.d.
As . re.ult, the amount of 10.. and dame,e to the property would
have be.n avoided.
It &l~o would appear that tha Aaro .arvla. teohniolan dld
not tollow and w.. not adequat.ly train.d ln the atandard
procedures whioh are followad in the lndustry.
Also, there 1. an inherent raluotanoe on tho part of .ervlo.
tachnlo1an. to '0 lnto orawl spaa.a. Thl. lIav have been the
rea.on for the Aero teohnlo1an fal1ln. to properlY lnv..tl.ate
the source of the 011 .11811.
It ls my opinlon that the Aero 011 COllpany repre.entatlv.a
fell below the requlred atandurd of oar. ln the lnduatry ln
fal11n. to properly lnvestl.ate the sourae of the 011 '1I811s. and
~n thelr ra11\u'. to rapho.. or at l.ast check the int..rity of.
the 011 11nea whlle in.tallin, the hot water h.ater at the
Herrln.ton r..ldeno..
.
AFFIDAVIT IN SUIJ\lORT OF
RFSPONSE TO SUMMARY JUDGMENT
It THOMAS K. 1-IEl~RINGTON, having l1ul bccn ~WUI'II, ~talc undcr oalh lhallhe
following facls arc Iruc and correcl and based upon my personal knowlcdge:
I. I reside al 6 Wood Lane, Carlisle, Cumberland Counly, Pcnnsylvania.
2, On or llboul Decembcr 25. 1994, I conlllcted Aero 011 COlllpllny rcgllrdinll Ihc sl1lell
of 011 III my housc.
3, On or llboul Deccmbcr 25. 1994, Aero Oil's reprc~entatlve, Keith Mallnllsky, dcclded
lhallhe hlll wllter heater WllS leaking, ml.dng with 011 onthc 11001' cau~ing Ihc slllcl\.
4, On or llhout Janullry 3,1995, Acro Oil's rcprcscntatlves, Kcilh Mnlinosky and Ed
Lishinskl replllced the hol Wlllel' hettieI'.
5. On or about January 3, 1995, I inforllled Kcith Mllllnosky llnd Ed Li~hlnskllhllllhe
slOell of 0\1 in lhc hOllsc WllS stl'llnger llnd thalthc slllclllllusl be caused by a problelll other lhan
Ihe hot wnler hClltcr,
6. On 01' llhout January 8, 1995, I agllin reportclllo Acro 0\1 COlllllUny thlltlhe 0\1 smell
In the housc WllS Illuch worsc.
7. On or about Jllnuary 9,1995, Ed L1shlnski decided that lllitlinl! on the hot wllter
heater WllS thc sourcc of the 0\1 Hillel\. Ed Llshinsklthcn rcplllred a I1tling on the hot wllter henleI'
and placed odor powder on the 11001'.
8, The retul1l11nd supply lines between the 011 tank llnd fumllce lmd/or hot water hCllter
were nollnspectcd by Aero 0\1 CQlllpllny represcntlltives unt\1 Janullry 12, 1995, when the
source of Ihe 011 slllell WllS Ilnally disnlvcrcd,
.
,
,
.
I,
I hereby dc:clure, under Ihellcnullhl~ ofllcrjury,lhullhu fUCIH Hluted In Ihls Alllduvlt uru
pcnsonully knllwn 10 lilli, ulId IhullhllY llI'ulruc,
1/~ p //~........
--~"~ ---.---
THOMAS K, l\ERRI \'ON .
STATE OF PENNSYVLANIA :
: ~ti
COUNTY OF CUMBERLAND:
Signed IInd HWOnl
10 before l1Ie on
the J-W.- dllY Of::Y.wUCj' 1998,
)
Nolary Public
)
- .,~
My COllll1liHSloll Expires:
"
",
.. , Jl~UZI..""
'" I ,
. tJ .,' t._ '
..........
"J I,. '"
.
MAI'o,'I"S ANSW"",ZNQ ..t'fV,rOIf
A".....'.... .t lIA"" ItADI "'"Il""~ A ~n"r"
..:14 Wellt Penn SL I'eftt
r.MII..,.. "" 1;111 J-~:2J.l
SI!lM<."! ll!PORT
~rollllee. lel thru Jnn. 1!,'95
"
711-HJ-311~
.
PIlII" lIf ~ ['nn,
Sullserlben .-IIrll all I'.,m,mny Phl""'1 ~".1~'J-!Ull
.........~Q..................._--_.~....~..~~=a~m~.Q~...a~"~~.wn.~.a........
Oec.11S OlendaOuncnn hMnohlllt. nee.ICl
10~6pm 176-i3~; Ell L. lO~lJlltll
~.-.._..-._---._--.-.._........_............................. ..-....... ..-..........
Oee.li 'NoolllOrth/OowntolVn hn, no hellt.
;~IQIII NJ-J9l7 l':c1 L.
.....M.....................__........__.........___........_._
0",=.1;
- J 111/11
nee.l~ Uenn!, Mnre In furn..ee r\Jmbl (nil.
.l01pm 43CSS-51 J\l 1!c1 L,
.... -........ ........... ......t......... _.. _.._ ............. ................. ......._.. '... ........._.. .........
('.0: 'Ill
~04PIII
, ......... .. ...-.............
Cec.l!l f,'nre:, Boer rurnnce ,mokIJlIlt. ...ene on ~n(l~'.
4l~pm 4S11-.12~J F.IIL.
................................................-.......... ...........................--. ........................
0,,<:.19
..L,la."..
. . ~.." ....-........
l')C1c.19 nnnn'" I/nl'hnl/r hn~ nn hent,
tl4<ipm 1~J_I,I~~~ ,1/5 NQ'v I.l~r,,,d
.._--~......_--_............-..-...-_...._-_.._-_........-.._-...._.._-....__.................
ne.~.lq
QJJJIII
Oee .1~ Jnmell NfJ~ I ay Ha.s nll he" t .
1021Q111 14.J-4Ji~ I\e I th M.
-.._...._------_...._-~...._....---........__.._..__......--_.._-.....-...._......-....
1)"0:.24
lll2Jmll
... _10_ ................
'.
. .
Oeo:.1~ Tom Ifnrrln"l"" hot \lllter hellter 1'/nkinR,
619pm 14.9-J1,4 I\elth M.
........ ....oo ...__.. _...... .._.....__.., ............. ..................... ........ .. _...... __ .._..._".......
C).o;:.l~
/iUtlll
...........-........
Dee .JO
Hiom
E I 'In "nn'l.~h'Z..':
:HJ-(13~1
hn~ no r.<I:t t.
'ht'~. Jll
!l~nll
1\" l th ~I.
-.............-..---........................... ----..---------------..-..---..........-.
Oec.JO Emily 5wnrt% furnRc, .rlvln, ~,rf .Iectrleal ,.'nr.
610pIlI :!4J-14i4 and 'lIOkey nlr. F.t1 L.
--..--....----..........---..--.-.--......---------------------..-.......-......
0.0:.30
6ll""
..,.....-.........-.........
Dec.JO Lorraine Morton (Ollilt-fllther) needs fuel. fleo:.JIl
i07pm :2~Il-I440 Ed L. 1l~~('III
......-...._---_..-----.._-...._--...--.._---..........._-~_...._--..._-.......-.._......-._."._.~._...-.~.._..._--
\'"
';P'
~S..~
Oec.JI John Witherow furnace r\lnnlnll hilt no hent.
9LlpIII :243-8Jl:2 Ed L.
..--..-..-----....-----......-....--..-......--........--.....--..---....---.......----....
l"Ieo:.31
91J[l1l
....-..-----------....
Jlln.:Z Znda Mathe\Y1S fumllce IOlnlC on nml .,ff. Jlln. ~
436p111 :Z~8-.l093 Ed t.. .lJS(ltIl
-....--....---..-......----..-------------..........----..-....--..---........-....-.....-....---------..-...
Jan. 2 ZlIda Mnthe"s/neph." IVIII. ShlndlellOlf ".,nt' Ed to cll[l. Jan.:2
724pm 2'8-4093 Ed I.. i:2~ptI
-----..--....--.............-..-..----..--..--......-..----....-------.........-...........----....--........---..-......
Jlln." Mllrla Potts "rvlce "IllS to be there todllY to JM. 4
4-'4PII 69i-8~08 brlna tllnks, and hook up (urnlce. Ed L. ~43pt1 .'___
-----.-..__.._............_-_..._--.._--~..__....-........__.._-------.._...............-........----.........--
Jnn. 4 Luter Stone tenant Marl. Reed Jan. 4
806pm 486-89!2 Ed L. 816('11I
...........__..__................_..__.._-_........_........-_...._......._--_....~......--.................-..............----......
. ,
... . ""'21.'"
lI'......i~ '.'
--... ; ,
If!!e No 1~
S!RVtCl IJ!1lOAT
I'rn.. llec. 14 thru Jen. I', 'f!"
.
Pnlle ~ oC I pace.
..........................................~----~..............,...............
Jnn. ~ Mnrl. ~,ull wh.r. Is 51rvlc'lIII1n'l J/",. ~.
SJdplIl 4/1d-1I9'2 Mr... RJl'Ill1I
.............-..... .......................................................... ........... "1+.. ....... ""'" .', I. . I.......... ..........
JM. '" ~j4rl. 1l.11t1 Whlfrl 15 servlCIID/lII'! Jiln. 4
91 7pm 4~d-1l9' ~ ~d r... !lJl Pili
.......................................................................................................... ....................................
Jnn. ~ I..ntlr StOll. "'lint I.s ,oln, on 'TI th n.IY rllrnft!.''''!
...!~!e~__.....~~~:!!!~........................................._...._.................~~.~:. ,.
Jnn. ..
9JlpIII
.. .. . ............ ...........
Jftn. '" Mar I. ~cQd 11ft,' no heat.
~ l4ftm 4~d-1l9~~ ~t.1 I..
...... ............ ......... .-........... -- ................. .........- -... -..-.......... ......... ..... ......'
Ian. '"
!~ljrm
, .... ... ............... ...........
Jnn. 7 Mnrl. Pott~ smlllls ~trQn" PI'\lr.nnO rUme~,
Il'!lIm 7~6-0229 ~dlh /.I.
.....~.._-......._....._.._-......._._-..._......-.._.~..~..-._-.--...
.Il1n. 7
t 1!7nm
,_...................
Jnn. IJ Jerl\lrl Vnrnel' need" oil, hnll no h.lle. Jan. R
822M 77ti-J~.17 Ke I tll t,'. 3:Jftm
... .................. ...........-.... ............ .......... _.._~_...-..........._... .......--... --....................... -.. ....... - ...... --- ...............
Jnn. S
S'OAlll
Varner Video
\Vhere 15 his 111.II7
Jlln. Il
a!OMl
K.lth ~1.
....-............--............................-..........----................--.............-.............-.....--... .
.... ...............-.........
~Jlln. 8 Tom linrrln~ton ~ntell or 011.
2'Spm 249-J2:lJ t:c1 th ~I,
................-.....-.--.----...--.....-......--..............---......-----...--...-...........~'......... , ., ,...
Jan. S
J!4pm
......-.....................
'.
. .
Jan.l2 -Tom finrrinlltan smells ollllnd hol' run oUI Ilr oil.
'06pm ~40-l9qO wk. It Keith "~to
- - .....-..........--.. ---.. - - .... -..... --...... -_..~... --.....---- ..-....... " ... -........................... .. '.
Ian. I:!
..:t!~~~.__u
Jlln.l~ Pnul Little hILS no hellt. Jnn.14
11'B/II 4GG-749J ~d L. 741M1
........--_...._....................-.._~---_........_...................-..._.._..._--_...-.._...-_.._-.............~....-......._...........
JM.14
S.l.J.1II
needs' Cue 1.
JItO. 14
I018ftID
Seth Grav.lS
776-624J
~d 1...
---....-..--......-........-......-...-......--...............-...........--.......-........................ .. ................................
Jnn.I' MlIlrle Rel1cL rUrnace runnin. cnn"tlllltly. J4I1.1'
J4S\lIII 4136-89~2 F.d L. JHplI
-_..~---_._........._--......._----............_-_._......_---_..._---..-...-......_-...~-~..........._.........._---
.
. ,
,
.
,
,
I,
II
EXHIBIT "F"
, 1
1
"
,
"
I,
",
,
i-.\
d
'11'1
oj
1
!I
'I'
c. SITE OBSERVATIONS
I visited the site to collect data for this study on 11/6/97, 11/17/97, 11/18/97, Bnd
11/20/97.
III. PROBLEM HISTORY
"
Heating 011 at the Herrington residence Is stored In an outside, above-ground, 276,
gallon tank (see Figures 2 & 3), Piping that connects this tanl< to an oil-fired hotwater
heater snd an 011. fired boiler located In a low area In the central portion of the
Harrington resldenca, passes through an cutside foundation ~,al\ iJnd through a
crawlspaca beneath the eastern portion of the residence. During eerly January 1996,
a large volume of kerosene and fuel 011 leaked from ona of the connecting plpellne:l
In the crawlspaca baneath the Herrington residence. At the tlmo of the leak, the
.
Herrington's heetlng 011 supplier was Aero 011 Compeny,
Asro 011 Compsny account records (Aero, 1996b) Indlcats that the Herrington's
heating 011 tank was tilled with #2 heating 011 (or #2 fllel 011) on 9/29/911 (100.2
gallons) and 12/8/94 (192,7 gallonsl and with kerosene on 1/6/96 (170.9 gallons).
Tha leak was discovered by Aero 011 Company on 1/12/96 (Aero, 1996a; Mallnosky
deposition). Upon discovery of the leak the tank was apperently virtually empty as
the Herrlngtons reported they were out of 011 and the Aero 011 Company service
technlclen who Inspected the tank found little remaining 011 (Mallnosky Deposition, p.
42: "I stuck the tank. . . wasn't much" 011 left). Allsumlng that the tank had been
filled to near It's 276-gallon capacity on 1/6/97 and assuming a consumption of 5-10
gsllons of 011 per day, an amount of 011 on the order of 200 gallons probably leaked
between 1/6/95 and 1/12/96. Aero 011 Company (Aero. 1996a) noted the leak as
220 gallons. The Herrlngtons reported a leak of 200 gallons to the Pennsylvania
Department of Environmental Resources (currently the Pennsylvenla Department of
2
Envlronmonta\ Protection) (paDER, 1996e).
As the two deliveries prior to 1/5/96 were 1/2 heating oil end es there was on the
order of 100 gallons remaining In the tank as of the 1/5/97 delivery of kerosene, the
leaked 011 wes a mixture of 1/2 heating 011 and kerosene.
Representatives of the Pennsylvania Department of Environmental Resources (paDERI
Inspected the site on three separate doys after the leel( was reported: 1/17/95 (date
listed In apparent "end-of-year" error as 1/17/94). 1/25/96, and 2/14/95 (paDER,
1996b, 1995c, 1995d). In their second report. PaDER Indicated that "they were
greatly concerned that ground water may have been Impacted."
..
No substantial remediation of the all leal< has occurred to date (Gohn & Herrington
Interviews). Odor masking materials were applied by Aero 011 Company to the leak
erea Immediately after discovery of the leal< (Mallnosky Deposition, p. 59) and a small
venting blower was Installed by Mr, Herrington to exhaust hydrocarbon vapors from
beneath the crawl space (Gohn & Herrington Interviews; site observations). No
hydrogeologic assessment (e.g. Installation of monltclrlng wells) of the spill or actual
remediation (e.g. contaminated soil removal) has taken place as of the data of this
report.
The site area Is currently served by public water supply, which was Installed by South
Middleton Township's Municipal Authority within the last few years (approximately
In 1994; Herrington & Gohn Interviews). Residences In the area stili rely on on-lot
sewage systems; however the area Is scheduled to be served by public sewerage In
the near futura.
Mrs. Gohn and Mr. Herrington (Gohn and Herrington Interviews) reported that the on-
site well (sea Figure 2) has baen Inactive since the residence was connected to tho
3
public weter supply In epproxlmately 1994. Mrs. Gohn end Mr. Herrington Indloated
thet the well pump hed been removed end the well sempled by Elchalberg.,rs, Ino.
efter the 1996 leak. A Gannett-Fleming Leboretory report form (Gennett Fleming,
19961 of the sample colleoted on 3/13/96 from the Herrington well by Elohelbergers,
Ino. showed the presence of o.a mgll Petroleum Hydrocerbons - ORO. "ORO" etende
for diesel-range organics. The petroleum hydrocarbonll found In kerosene and #2
heetlng 011 fsll within the "diesel range" and would be detected by the test performed
by Gennett Fleming.
Both Mrs. Gohn and Mr. Herrington (Gohn & Herrington Interviews) Indicated thet thlf
011 smell In the house following the spill had been severe. Mr. Herrington Indlcllted
that the odor problem from the spill only lessened this past summer, approxlrately
2 1/2 years after tha spill, Mrs. Gohn IndlGated thElt she frequently "elrs" the house
during warmer months. to minimize the odor.
'-
IV. SITE LOCATION AND PHYSIOGRAPHY
Location of the Herrington Residence (hereinafter "the site") Is shown In Figure 1.
The site Is located on the northwest side of Wood Lane. north of Pa Rte 74 and east
of Interstate Rte e 1. The sites falls on the southeest side of a minor NE-SW trending
ridge. Surface elevation Is near 510ft (msll.
There Is a subtle NESW topographic grain consisting of minor sub-parallel ridges and
minor valleys In the slta ares. Genarally NW-trendlng dralnageways or small valleys
cross this topographic grain. The largest of these minor cross-cutting valleys Is
located approximately 700 ft NE of the site.
Surfece drainage Is to the northwest and north toward Letort Spring Run.
4
"
Based on mapping by Beoher and Root (19Bll, the ,Ite Is underlain by limestone,
typloolly benCled with sllloeous seams, with some oelcarllous sandstone end dolomite
of the Zulllnger Formation, The more weathering-resistant bedding sequences of this
formation form minor ridges such as the one on which the Herrington residence Is
looated.
Becher and Ruot (19811 show bedrock to hove e general NE.SW strll<e In the rllglon,
although locally bedding flttltude varies. Northwest striking, northeast dipping beds
Bre shown by Becher and Root along Pa Rte 74, southwost of the ~ltG,
Based on tile IIneor trend of many of the NW-trendlng valleys In the site aree, It Is
likely that these valleys represllnt zones of concentrated )olntlng or fracturing.
V, GROUND WATER
" .
Bechar and Root (1981) present a regional water table contour map along with thslr
geologic mapping of the area. A copy of a portion of this map Is Included In the
Appendix. Their mapping shows a water table gradient to the northwest, with a
water table elevation In the site area somewhat below elevation 460 ft (msll. I
measured a water level In the old supply well on site on 11/17/97 Dt 37.0 ft below
,
ground surface (sae Figure 3), Using an approximate surface elevation In the area of
the well of 610 ft (msl) from the USGS quadrangle (see Figure 11, places the
11/17/97 water level at the Herrington well near elevation 472-47:.1 ft-msl, somewhat
higher than that Interpolated from Becher and Root's regional mapping,
The actuel directions of ground water flow at the slta may vary considerably, based
on structural geologic controls (e.g. attitude of bedding or lolntlng planes) and on the
local wster table contour If different than that Interpolated from Bechsr and Root's,
(19811 regional mapping, Based on available data, and assuming some structural
geOlogic control (anisotropic transmissivity) along bedding strike or along
6
..
NW-trendlng, potentlel.jolnt.oontrolled valleys, the most likely range 01 potential
directions of ground water flow are to the north. northeast, north, north wast, wellt,
or wast-southwast.
In PeDER's third Inspection report dated 2/14/95 (PaCER, 1995dllt wes noted that
PaDER Hydrogeologlst Robin Yerger "agreed that the well on site Is In e good location
to Interseot possible oontamlnatlon." Whlla the well Is In olose proximity to the aras
of tha leak, It Is to tha southeast of the leakaga point and hence actually In a probllble
upgradlent setting based on Becher and Root'a (1981) mopping; end notllkoly to be
In an approprlete location to Interseot oontamlnants oontrary to Ms. Yerger's
commllnts, Depending on: (1) the dogree ofloterol spreading of 011 In the vadose
zone, (2) any potential spreading of free 011 on the water tabla, (31 the actuallooal
water table contour, and (41 oasing dapth, the Herrington well mayor may not be
appropriate as a monitoring point,
'.
VI. SITE OBSERVATIONS
Figure 2 Is a sketoh map of the Herrington property based on field tape
measurements. Figure 3 shows tha rasults of sevaral field meesurements of
petroleum hydrocarbon vapor concentrations at the site.
Bedrock at the site Is Indloated to be quite shallow In the oil-leak area. L1mastone
bed rook plnnaolas or possibly floating boulders are exposed at several points around
the residence (see Figure 2). Mrs. Gohn reported (Gohn Interview) that the house
originally oould not be built with a basement beoause of the extensive shallow
bedrock, and that was the reason the house had a low crawlspace, Mrs. Gohn also
reported that shortly after she and her late husband bought the house In 1964 they
needed to have the sewage system replacad. Sha Indicated that the contractor
Installing the naw sewage systam tried digging at several points around the housa, but
6
hit ShBllow rocl~. 6he Indicated that the only erea thet tho contractor could find with
deep enough soli to Install the septiC tanl< and dralnfleld was Blow area neBr Wood
Lane (see Figure 2).
The IndlCBted shallow bedrocl< around thB house In thlllGak area Is consistent with the
site setting on s minor ridge within tre Zulllnger Formation where shalloW bedrock
would be expected. It Is III<ely, based on the various data dascrlbed abuve and my
site observstlons, that aVllroge soli depth Is only a few filet within tha loak areB.
Howevllr, soli depth can be quite variable laterally In limestone terrain, and actual soli
depth In the leak area can only be determined through borings 01' excavation.
..
I found no Indication of free 011 In the Herrington well on 11/17/97, although I did not
collect a sampla for analysis for dlssolved-phese petroleum hydrocarbons as had been
performed on the 1995 Elchelborgers ,Inc. sample by Gannett Fleming's Environmental
Laboratory. Neither Mrs. (john nor Mr. Herrington (Gohn &. Herrington Interviews)
.
wsre aware of the depth of cBsing In the wall. It Is likely, given the Indicated shallow
bedrock at the site and the age of this well (Mrs. Gohn estlmatl!d that it had been
drilled In the 1960' s), that casing In this well is not deep, Howaver, If this well has
casing deeper than 40 ft, It would preclude antry of free 011 floating on the water table
Into the well. As discussed above, It Is also IIkaly that this well Is not In a
downgradlent setting from the spill site, so the absence of free 011 at this wallis not
necessarily Indicative of the absence of ('ree 011 on the water table near the leakage
point.
I measured petroleum-hydrocarbon vapor concentrations at severel points Inside and
outside of the Herrington house on 11118/97 using #673021 colorimetric Drager
sampling tubes. I notlce~ a petroleum hydrocarbon odor upon entering the house on
11/18/97. This odor became stronger in the crawlspace area. Low concentrations
(< 10 ppm) of petroleum hydrocarbons were detected by Drager tube sampling at the
outside exhaust fan vent from the crawlspace; In the air In the area of the 011. fired hot
7
I
'.
,
,
water haater and 011. fired boiler; In the air In the crawlspaoe; anr,l In soli vapor In
shallow soil borings In the orewl spsce In the generol area of tha 1996 leak. Tha
lowest concentration of petroleum hydrocarbons vapors was found In the araB of the
oll.flred hot water haater and boller, while the highest concontratlons, just under 10
ppm, wers detected In tile vapor spacaln shallow 5011 borings In the crawl space. The
highest concantratlons In tha shallow 5011 vapor In the crawlspace Indicates that 011
from the 1996 leal< rlltalned In the 5011 'lr within bedrocl< (e.g. on bedding or lolnt
planesl beneath the house 15 stili the primary source of tho odor problem,
The current low concentrations of petroleum hydrocarbons detectad ora consistent
with the age of the problem. As I<erosene and fuel 011 "weather" or sga, the lightest,
most volatile fraction Is lost leaving the Illss volatile heevler 011 frectlon behind. Odor
problems from such spills typically diminish sharply within a few years after a spill.
with a low level of odor persisting for many years thereafter,
..
Some of the lost 011 was absorbed by soil beneath the spill site, I found the 5011 In the
crawlspace to bll predominantly a silt below a depth of a few Inches. For a silt, API
(19891 lists 5011 absorption rates of 0.3 gallons/cubic foot for middle distillates like
kerosene and 0.6 gallons/cubic foot for fuel oils. Considering that the leaked 011 was
a mixture of I<erosene and fuel oil, an average absorption rate on the order of 0.46
gallons/cubic foot would be appropriate. Assuming 0 200 gallon leak, approximately
444 cubic feet or 16.5 cubic yards of a silty soli would be required to ebsorb all of the
lost 011. If the 011 spread over an average 5 ft by 5 It area. soli depth beneath the spill
would have had to be 18 feet to have absorbed all of the lost 011. If the 011 spread
over an average 10 ft by 10 ft area. soil depth would have to be on tha order of 4.5
ft to have absorbed all of the lost 011. Given these necessary soli absorption volumes
and the limited depth of soli Indicated to be presen" 'n the site area, It Is likely that a
significant portion of the lost 011 Infiltrated below the soli layer to the underlylnl!
limestone bedrock and by way of fractures In the bedrocl< to the water table. Bedrock
would not have absorbed additional significant 011 unless It Is highly weathered
8
, ,
beneath the spill site. As bedrock Is limestone, there Is also some potential for
solution enlarged fractures or bedding-plene partings. forming conduits In tho extreme
. which would have ellowed repld movement of the Infiltrating 011 tu the water table.
It seems Ill<ely, be sed on theso factorS, that some lavel of 011 degradetlon of ground
water has occurred at the spill site.
VII. M5ESSMENT AND REMEDIATION
Addressing the envlronmentellrnpacts of the 1996 ollleol< at the Herrington residence
will require several pheses of assessment and remedial action, As the leak occurred
from an unregulated home heating 011 system, the assessment and clean-up of this site
to achieve a release of environmental liability would hava to proceed under
Pennsylvania's Act 2 Program. As the site Is currently In en area served by public
weter supply, a site-specific clean-up standard could be adopted, so that a high level
of ground water remediation may not be necessery. However, regardless of the clean-
. . .
up standard selected, removal of contaminated 5011, odor control at affected
residences Including the Herrington residence. and removel of any free 011 floating on
the water teble would be necessary elements of site remediation.
Necessary assessment and remedial steps are discussed below. A cost estlmete Is
provided In the APiJendlx of this report.
A. INITIAL REMEDIAL ACTION
Before site essessment. an Initial phase of site remediation would be necessary to
remove contaminated soil and eliminate the residual low level of odors In the
Herrington residence. Removal of contaminated soil Is e standard first step 1(1
remediation. In the case of the leal< at the Herrington residence, a large volume of
contaminated 5011 Is probably not present due to limited soil depth. However, removal
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of contamlJlat8d SQII will be complicated and oosts Inoreased by the fact that ramovel
activity would hove to take place within a low orawl space. Onca oontamlnated soli
was ramoved, a blanket gravel vapor-extrootlon layer end vapor barrlar would bl
Instlllad beneath thlt orawl speOQ, 05 It 15 likely that vapors emanating from badrook
beneath the spill site will continue to be a problem until the spill Is finally rQmedlatld,
Cost of soli removel, Installation of an Initial odor-oontrol vapor-extrectlQn lIystom and
operation of this vllpor extraction system for on estimated 6 years Is ostlmated to be
on thlt order of $20,000.
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B. HYDROGEOLOGIC SITE ASSESSMENT
. .
A standard hydrogeologic site assessmant would entsll the Installation of thraQ (3)
monitoring wells to determine direction of ground watar flow and the degree of
ground water degradation from the spill. Assessment cost In this case Is estimated
at $9000.
C. POST-CLOSURE MONITORING
Eight (8) quarters of post-closure monitoring ore required under recently adopted Act
2 reguletlons to confirm a sustslnable lack of contamination bafore a spill site can be
released from envlronmentallloblllty. This monitoring would commence Immediately
after tha sssessment phase If no significant contamination of ground water were
detected, which Is unlikely given the site characteristics and tha amount ()f 011 leaked.
More likely, this monitoring would commence upon completion of flnsl site
remediation, Estimated costs for this eight quarters of monitoring Is $, 2,000.
D. FINAL REMEDIATION
Costs of final site remediation are the most difficult to determlna at this IItege,
because the degree of final ramedlatlon depends lergely on the outcome, of the
10
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Hydrogeologic Site Auessment, and on the clasn-up standard selectad under Act 2.
Based ani (11 the assumption that there Is some free 011 floating on the water table
beneath Bnd down-gredlant of thl! site, which appears likely, (2) adoption of a site-
speolflo olean-up standard which Is least strlngllnt, and (31 the fact that even B smell
BreB of tree 011 on the water table w01Jld trigger ground watar remadlatlon as tho point
of compllanca tor the absence of frae 011 would be the property line, which Is only
epproxlmstely 30 It north of tha spill site, final remediation would probably consist of
some form of ground water pump-and-traat targeted mainly at removal of free all,
Ground waw trllatad by tha system could be recirculated on-site In an Infiltration
trench or, more likely, discharged to the municipal sewer. Based on the costs of
similar small pump-end-treet systems, costs, Including Installation of the system end
monitoring and O&M for an estimated 2 yeers of operation, would ba on the order of
$66,000 - $75,000.
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VIII. CONCLUSIONS
Assessment and remediation of the 1995 011 leak at the Herrington residence will
require Geveral phasas of work. Three of thesa phases of work, Including 5011 ramoval
and Initial remediation, site assessment, and post-closure monitoring, which Bre most
certain based on the existing regulatory framework, the circumstances of the leak and
site charecterlstlcs, would cost en estlmatad $41,000. The dagree of final
remediation of the site Is somawhat uncertain, as It depends on the outcome of the
site Bssessment phase and on the clean-up standard applied under Act 2. Assuming
adoption of a site-specific standard, which I.s potentially the least stringent clean-up
standard, and the presence of some free 011 on the water table In the spill site es
appears likely based on the size of the spill and site characteristics, a ground water
pump and treet system would likely be required to remove free 011 In a final
remediation stage. The cost of such a final remediation stage Is estlmatad at $65,000
. $76,000.
11
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Jeffre
R. Petter, P,G. II
Q
.G, P.E. 1126996.E
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REFERENCES
Amllrlcan Petroleum Institute IAPIl, 1989, A Guide to tha Assessment and
Remlldlatlon of IJnderground Peuoleum Releoses, API, 1220 L Street, Northwflst,
Washington, D,C., 2000!.l, API Publlclltlon 1628, 2nd Edition.
Beoher, A.E., and 6,1. Root, 1981, Groundwoter and Geology of the Cumberland
VoIlIlY, Cumberlend County, Pennsylvonla, Water Resources Report 50, Pennsylvania
Topollraphlo and Geologlo Survey, Harrisburg, Pa,
Aero 011 Compeny, 1996a, "011 Burner Service" repair slip for ropalrs completed
1/12/96 at Thomas Herrington residence Including note on reverse side concerning
volume of 0111055.
Aero 011 Company, 1996b. 2-page Summary of Account of Thomas Herrington dated
5/8/96
Pennsylvania Department of Environmental Resources (PaDERI, 1995a, "Incident
Notlfloatlon" report received by C. Kirby on 1/12/96 concerning spill at Herrington
residence.
..
Pennsylvania Department of Environmental Re~ources (paDERI. 1996b, "Storage
System Report Form Narrative Information", signed by Wendy Lloyd and dated
1/17/94 (probable "end-of-year" arror, actual date probably 1/17/961.
Pennsylvania Department of Environmental Resources (PaDERI, 1995c, "Storage
6ystem Report Form Narrative Information", signed by Wendy Lloyd and dated
1 /26/96.
Pennsylvania Department of Environmental Resources (PaDER), 1996d, "Storage
System Report Form Narrative Informstlon", signed by Wendy Lloyd and dated
2/14/96.
Gannett-Fleming, Inc., 1996, Laboratory report for Elchelbergers, Inc. of Sample
Identified as "6 Wood Lane-#6676-Herrlngton"; Sample #69867, sample collected
3/13/96, report dated 3/26/96.
Mallnosky Deposition, January 16, 1997 Deposition of Keith A. Mallnosky
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COST ESTIMATE
ASSESSMENT AND REMEDIATION OF 1996 OIL SPILL
AT THE THOMAS & JUDY HERRINGTON RESIDENCE
SOUTH MIDDLETON TWP., CUMBERLAND CO.
PGC 11/97
I. INITIAL REMEDIATION
Soli removal from spill araa In crawlspaoe and vapor extreotlon for odor oontrol
labor Intensive due to crewlspaca working erea; 1110st work would be done In
prone position by hand: Inaccessible for excavating equipment
1. Open outside masonry wall for access
& repair following remedial action $700
2. Remove estimated e cubic yards or approx. 11 tons
of soli
est. 4 days, 2-man crew: e man-days @ $320/man.day
$21560
3. Install vapor control system consisting of blanket
gravel layer wlt.h piping, capped with membrane vapor
barrier (plastic sheeting weighted with sandi
" . est. 4 days, 2.man crew; e man-days @ $320/man.day $2560
materials, graval, piping, plastic sheeting, send $300
4. Contaminated soli stockpiling, testing, loading-out,
and disposal
est. 11 tons @ $100/ton all related costs $1100
6. Install explosion-proof blower, piping from outside
wall to treatment ped, two (2) carbon canisters,
and wiring, treatment ped
est. $7000
6. Operation & Melntenance: est. 5 yrs with one (1)
carbon canister change.out every other year; power; $4500
drain moisture traps, etc.
7, Permitting & Correspondenca: File Inltlel remediation
plan with PaDEP: file "Request for Determination" with
PaDEP Air Quality
ast. $1500
SUBTOTAL INITIAL REMEDIATION $20.000 +1'
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COST ESTIMATE
ASSESSMENT AND REMEDIATION OF 1996 OIL SPILL AT HERRINGTON RESIDENCE
PAGE 2
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II. HYDROGEOLOGIC SITE ASSESSMENT
"
Perform more-or.lass standard three.well site assessment, Including
oosts for removal of drill-cuttings plies end cost for minor landscaping to
disturbed araas from well Installation
ast.
$9000
.9000
SUBTOTAL SITE ASSESSMENT
III. EIGHT (81 QUARTERS OF POST CLOSlJRE MONITORING PER
REQUIREMENTS OF ACT 2 REGULATIONS
est. 3 wells @ $500 per well per quarter all
oosts Including sampling, lab analysis and
preparation of monitoring report for PaDEP
$12,000
SU&TOTAL POST CLOSURE MONITORING .12,000
IV. FINAL SITE REMEDIATION
Degree of final site remediation uncertain at this point pending outcome of Site
Assessment and on selection of closure criteria under Act 2.
As site conditions and the size of the spill mllke It likely that some free 011 reeched the
weter table, and as even a smallerea of ground water contamination by free 011 would
be problematic under Act 2 regulations given the potential point of compliance at the
property line only some 30 feet distant, assume thet some minimal amount of ground
weter pump and treat would be necessary.
ost. based on similar small-scale treatment systams
$66,000 - $75,000
SUBTOTAL FOR FINAL SITE REMEDIATION $65,000' $76,000
TOTAL. ESTIMATE
.106,000 - .116,000
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TO THE PROTHONOTARY OF CllMBERLAND COUNTY:
PI~uK~ 1I~llh~ within mull\:r for lhc ncxl Argumcnl Court
TIIOMAS K. HERRINGTON und
: IN TIlE COURT OF COMMON
: PLEAS
: CUMBERLAND COUNTY.
: PENNSYLVANIA
JUDY L, HERRINGTON.
PlulnlllT
n
: NO, 95.6469 ':, I
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; CIVIL ACTION. LAW,/:':
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AERO OIL, INC,
Def~llI.lonl
: JURY TRIAL DEMANOl!D
I.
SlolC mollcr 10 bc orgu~d: pefendonl'K Motion for SUlllmary Judll.m~nl
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2, Idenllfy coun~c1 who wlllurgue COKC:
(J, Bryun Sulzlllunn. E~qulre
Norma J, LukocK. .E~qulre
\ 580 Goblcr Rood
p,O, Box 276
Chomb~rKburg. P A 1720 \
(0) For Plaintiff: SUI7.l11Unn & DePoull~. P,C.
Addre~~:
Rolph Oylcr, E~quirc
31 Soulh Woshinglon Slrc~l
Gcllysburg. Po 17325
3. I w\\1 nollfy all portlcllln writing wllhin lWO days lhullhis cuse has bc~n IIS1cd for
argument,
(b) For Defendant:
Addrc~~:
4, Arl!ull1~nt Court Dalc: March 4. 1998
Datcd:3..I"'/"'t.
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CERTIFI(~A'l'E OF SERVICE
I hercby ccrtl fy lhall have, IhIS/f."!.: day 1.1 r February, 11)1)7 scnllllrucllnd
correcl COllY 1.11' lhe forcgl.1lng Praecipc lor Llsllng CllIlC for Arllumenl vi.. rCllullll' lIlall.
flrsl elasl, PQIlllgc prepaid 11.1 Ihe fQllowing:
Ralph D. Oyler, l~squlrc
31 Soulh WashlnglQn Slrecl
Geuysburg, PA 17325
Salzmann & DePaulls, P,C,
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IN THE COURT OF COMMON PLE^S GUM5ERL^NO COUNTY, PENNSYLVANIA
CIVIL DIVISION
THOMAS ~. HERRINGTON ^ND I NO. 95-6469
JUDY L. HERRINGTON, I
I
plaintiffs I
VS. I
I
^ERO OIl" INC. , I
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Defendant I
ORDER
^ND NOW, this ~~~ day of Maroh, 199B, upon
oonsideration of the attaohed stipulation, IT IS HEREBY
ORDERED that Court II of plaintiffs' oomplaint is withdrawn,
and defendant's Motion for Summar.y Judgment is withdrawn.
BY THE COURT,
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IN 'J'HP. (OURT Of ('OMMON 1'l.EAS 011 ClJMJiHRl.ANU COUNTY, 1'llNNSYL VANIA
nVll.I>IVISION
THOMAS K. HERRINGTON ANI)
JUDY L. HERRINGTON,
l'laintilfs
: NO, '1~-6469
Vll,
AERO OIL,INC.,
DefendWlt
IU]J!.ULA1'ION OF COUNSEL
l'laintiffs, by their attonley, Cl. IlryWl Sallmwm. Ilsq,. WId l)ef~'I1dWlt, by illl attomey, Ralph D,
Oyler, f.sq" make !he followinllslipulalion:
I, On December 22. 1'1'17, defendwlt llIed a Motion for SUfllmlU)l Judgment,
2, After due negotiation. Ihe parties via their allom~'Ys have Ililreed os filllows:
,
A, PlaintitTslll!ree \0 withdraw (ounlll of their complaint;
8, DefendWlt agrees to wi!hdraw ils Motion for SUfIlflllU)l Judgment.
WHEREFORE, the parties through there respective counsel requests this Honorablll COU/1
adopt !his stipulation,
Dated: 3/1/1 g I
/~) , f3~~tfMV~
G. DryWl . lfllWln, E, eJ
Attorney for plaintiffs
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IN 'l'H~ COUWi' O~' COMMON ~L~Atl
CUM~~"LANU COUN'l'V, "'~NNtlYLVAH1A
C1V1L IHVltlLON
'l'HOMAtl K. H~""lNll'l'()N and I NO. Yb-1l411Y
JUPY L. H~""lNll'ON, I
I
~laintiffs I
I
VS. I
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A~IW OlL lNC. , I
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uefendant I Jury 'l'rial Uelllanded
~~Trtl Mgl'lON ~OH tlUMMAKV
JUOOHHN'l'
1. ~laintiUs f Hed su i t against defendant alleging
they were damaged as the result of the leal(age of home heating
oil from a return line oonnecting plaintiffs' heating oil
storage tank to plaintiffs' oil burning furnace.
:l. originally, plaintiffs' claims were founded on three
(l) separate theor.ies of liabilitYI 1. Negligence, 11.
Trespass' and 111. Nuiaanoe.
l. ~laintiffs voluntarily allowed to be dismissed those
oounts sounding in trespass and in nuisanoe.
4. 'i'he only remFtining oount sounds in negligenoe.
b. ln order to recover against defendant for
negligenoe, plaintiffs must prove thatl
(a) Pefendant owed them a duty,
(b) Uefendant breaohed that duty,
(c) uefendant's breach caused plaintiffs'
injury, and
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(d) Uamage.
b. uefendant believes that based upon the pleadings,
deposition, and answers to interrogatories, plaintiffs are
unable to satisfy the elements ot their oause ot aotionl
namely oausation and damages.
J. ~laintiffs have retained the services of an expert,
william J. White, who has indicated in his roport that
defendant hsd a duty to oheck the integrity of the existing
oil lines with a firomatio hand pump upon installing a new hot
water heater on plaintiff'S premises on January ~, 199b. A
oopy of Hr. white's report is appended hereto as lixhibit "A."
II. However, in the deposition of plaintiff, 'l'homas K.
Herrington, he admitted that he first notioed the strong smell
of oil on ueoember ~b, 1994, and that this smell intensified
over the following week until January ~, 199b I at "Ihioh time
it would make "your eyes water. II Deposition ot 'l'hoIllIlS K.
~errington. p.p. 14. 19. ^ oomplete oopy of the deposition
of 'l'homas K. Herrington is appended hereto as ~xhibit "~."
9. if defendant's duty did not arise until installation
of the new hot water heater on Januar.y J, 199b, how can
plaintiffs prove what portion of the leaked home heating oil
was caused prior or subsequent to Janullry ~, 199b, and what
portion of plaintiffS' damages are attributable to the leakage
that oocurred to January ~, 199b?
1~. Uefendant avers that plaintiffs are unable to prove
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Wlt"'a.. ..I. Wblte As..lat..
_' S~c:I.rr.u"nil\vet,lltl.iionor~~abl'" .
HERSHEY'S MILL, Hll!A:rON WAY
WlSTCHB51l!R, PENNSYLVANIA 19380
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(610) 419-430\9
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JanllJrV 7. li&8
O. Brvan S.lamann. aa~.
Sal..-nn . O.P.lIli., P.C.
1&80 a.blar Ro.d
P. O. Box 276
OhaMb.reburl' PA l7201~02T8
Net Thomaa K. .nd JlldV L. H.rrin,ton v. Aero 011,lno.
Our ,H. .200
De.r Hr. s,l~..nnt
I hav. read the followin. materiele whioh VOII gont to .e on
the above-referenced c.... Thie oonoern. oil ocntamination at
the H.rrin.ton r.aidenc. .t 6 Wood Lane. Carli.le. PA. .11e,.d1V
oau..d bV ne,li.enoe on the part of Aero 011 eo_panv. Inc.
l) eo_plaint.
2) Plaintiff'. Reepenae to Oef.ndant Aero Oil. Ino.',
Hew Matter
3) Depoe1tiollll ~ TOIII Al'lllaooat. Keith H,Hnoeln', N.W.
Wolfe
4) Defondant's Anewere to lntorro.atorieo
&) photo.r,ph.:
Herrin,ton'a raBidenoe on AU,uBt 14. 1996
Outaide Oil Tank - Au<<uet &. 1997
Hot Wat.r H..ter - AU,lIet. 1996
Crawl Space - Au,uot 11. 1996
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Crawl .paoe entedn. nellr furnlloe- "UIlU.t 109a
Copper tub Ln. that move. in.1d. wall - Au.uat 190a
6) Dapa..t~ent of InY1"o~ijntal Proteot10n Report.
I have ..eviewed photo....ph. of the oil line. whioh oo~e f..o~
the out.id. tank th..ou.h the watl end lnto the o..awl epaoe area
.oin. to the two oil-fi..ed appliano.. ln the heat.r roo~ in the
bae.~nt of the ho~e. I.. at a 10.. to underetend the
haph_aard, carele.e manner in whioh thaaa 11na8 have been
in.talled. The~ Qertainl~ have not been inetalled in a
profe.uional and workmanlike .anner.
It 1. ouetomar~ when in.tallin. a new applianou, euoh ae a
h~l ~.t.r heater. to inatall a new oil line or. at the very
le.et. to oheok the inte.rity of the exietin. oil line. Thi. oan
be done quite .i.plv with _ firomatio hand pump, a piotur. of
whioh 1 am anoloeins. Thia ie II ai.pla end effioient way of
deter~inin' the lnte.ritv of the line. Aaro Oil Co.p.nv
teohnlcian. failed to ..aplace the 11ne. or even check the
inte.ritv of the 11neR.
It would appe.r th.t the fir.t eervice pereon answer In. the
oall for oil odor. at the Herrinston re.id_nee h.d oheoked
euperflolally for anv oaUBe of 011 e~elle and found onl~ a a~ll
laak at the fittin,s of the new .ppliance. He ti.htened the
flltln.., put down 011 Orv and epraved en oil-maekin. deodorant.
Thl. 100.. fittln. waa the r.Qult of the improp.r installation
whioh had taken plaoe only a few day. before.
A .eoond Aero .ervioa~.n re.ponded to a aecond oall for
odore. H. unoov.red the oil Iln. runnln. 1n the crawl sp.ce ar.~
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and d~.aQv.red a hol. 1n the 011 11ne.
If the te.~~n,. whloh I ..ntloned earller. had be.n done bV
the In.talle~, the hole ln the 011 11ne would have been
dl.QoYered and the oil line would have been replaoed at that
UllIe.
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If the proPer procedure. hed b.en followed at the ti.. of
the In.tallatlon of the do...tlo hot water applianoe. the hole
would haYe be.n repaired. or the Una would heve b..n replaced.
Ae n re.ult. the amount of loe. and dama.e to the property would
haYe be.n avolded,
It a180 would appear thet the Aero eervioe tech~loian d~d
not follow and wae not adequately tralned ln the .tandard
procedure. whlch ere followed ln the lnduetry.
Al.o, there 1e an lnherent reluotanc~ on the part of .ervlce
teohnlclans to '0 lnto orawl apace.. Thle may haye been the
r.aeon for the Aero technlclan fall In. to properly lnve.tliate
the eouroe of the 011 em.ll.
It 1. IlIV oplnion that the Aero 011 Oompanv rapre.antatlY.a
fall below the requlred .tandard of cere 1n the lnduetry in
fal1in. to proparly lnYeetl,ate the .ouroa of the oil ullIelle, and
ln thalr fallure to raplaca. 01' at lea..t check tha I.nta,rity of,
the 011 11n.. whl1e lnatal1l.n. tha hot water haater at the
Herrln.ton ra.ldena..
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In The Matter Of:
Thomas & Judy IJerrtltgtmt v.
Aero Oil ComjJany
Thomas K. llerringt01t
March 9, 1998
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Key RejJorte,'s
1300 GarriS01t Drive
York, I~ 17404
(717) 764-7801 . r'.4.,'I(: (717) 764-6367
OriSlll'" fII~ (f399H,CIII, J.~ I'''/le,f
MI".U,ft',ip'<Bi "'/I~ I/J: 2119H84H I J I
Word Index included with this Min.U.Sa1pb
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ORIGINAL
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1
2
3
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5
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7
8
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9
10
11
12
13
14
15
1&
17
18
19
20
21
22
23
24
25
, ALSO UII:SIllNT I
Jon II: 1m..
INPII:K TO WITNESS
Direot examination by Hr. Oly1er - PO "
HI!:RRINGTON
,
1t I?hotoqraph
INDII:K TO II:KHIBXTS
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HARKID
8
2
I.
Thom.. .. Jlldy Herrington v,
.\ero OU, comp.ny ___
1.,
1 lit II, I i, I ti, 211
10:40 ~~:211
100h 'tl7
12111 26:'1,211: 12; 2'1116,
~1I1",iI12,6
171111'
1701~~11'I
1"~ "17
1"1612117:lllll:2,7.
141917. IO,I~,llIIO:6,
15:lIll0
lIto 11I117111 :', 13, 17,
lOr Il:1
181H:2ll'l:8.II,H,221
10117.21; 11:6, 13;ll: 12,
18; 171'"III:lI31):16
lIes 10:13; 18:16;llI181
'H:9,IO;l':ll;~O:16,16;
~1i3, 6, I 'II ~l:l,ll)l H:',
12
II" 6: 1217:"
1""6:ll.lI17:I,I'
11110:17,lll; 11:'.li,
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12: II. ,,; 17:,., 18:2.7,
ll:ll;22:i, '"~ n:11
28111 21:12
2nd III: 19; 1'1:61 H:ll
~
3rd 18:16:20:8,22:",1',
18; 23:6, 2i:9, H: I
6
8~: 16;6:3, 'I:'; 11):':
12: 17; 26:', H
8111 27:21
7
726:2-1
8
'56:7
II 7:2.17;9:18
"" 23:7.8; 2i:9, 17
9
149:111
1831:21
1117:l
..II l'121
A
l.mH'll
IbllltV':1
Ibll ntH
IUIJII HII II
Icccrdlng 6: Ill; Il: III.
III
Icqulrld 6: Il17: 21
Icqulrlng 7: II
Iclull13:H
IcluIIIV 6: 11112:21
Idd 11:23
Iddld IIIi,I9
Iddlllcn II:H;'J:2
IddlllonI7:lll:II:2
Idd,," ,I: 101, 6:f,
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101; II :3; 12:II,ll, 22;
16:2'; III: 16, 2,1:', H: 2',
l6:7, lO, 27:11, 2'1, ,11):3
IlIlInoon 13'6
Iglln 18:ll.H; H:,I:
UllII,H
Igllnl"':n
Igo 13:22
IlIowld 3l:I,'
Alllllle 29: 17
Ilone 16: Il
11"ldV lll:7, ", 1(,
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8:1
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InlWlrlng Il:2l, n H,
13:,.,13,101:111.19, '"~ I.
1,2', 18:ll, 19:',11;
23:', ".16, H, li:16;
l':8; 26:8,II,12,2I1,l';
l7:2,16
Inybody 111:7, 27:23;
19:H,I~; 33:9
Inyonelll:III,lll:IO;
H:13
InywIII" 7: 17
IpplllncIIIO:H; 11:1(,
Ippr"llId 32: 13
Ipproxlmelely 7:7, 13:,1;
23:1
1"1 ":7; 16:1.11;
I7:U;22:20
eround 6:7;15:'; 16:23;
17:15; l6:l,I;30:13
.."Ived lll:7, U, 20
Illume 32: 17
I"orney ,':1116:11,16
IWIII 9:l0, 32:16
IWlY 30:13,33:11,101
Key Reporter$ (717) 764.7801
,8
blek6111; 1111'I,ll;
1.1:11 HII,l; 17:2,,18:l:\,
2~11'I116122:llll HtH,
27:1'; ,11I:H;,llll
bid 26:lti
bllll I II: H
8812'1:,1
blgln'I:11
blllevI6:7;'I:I'I; 111:7,
13; ":1I; 181H; I'J: 18;
211:'1, I'; 210:9, 211:,'; l'l: If"
19dO:I,11
blnlllh H :6; 211: 1'1
bllldll21111)
bill '1:2'; 10:1'1
biller 22116; HIll; ,\1:2,
6,9,12
blgge, l'M
bl,lh ':16
beller 'I: 13, 17
bOil 211: 16
bolh ':7; 12:201; 211:i,
II:lI.H
brllk 5: II
broughI21:7; ,ll:.1
burning 11):1..
c
c.III3:', 1'1:16; 23:111,
IN'; 26: 11; l7:1I; 28: III
cllled ,.:6,ll: II, 1II,2~;
13:1,11:13,19; 1':25;
18:18,211; 19:'; B:.I, 26:7,
",19,211,27:",28:16
c.lllng 11:3,11, 23:l,';
2,1:16
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7,11I;22:19;H:12,I3,21;
211:1. 3
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Ill:'; 12:17
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chlCked 13:23; H:i,;
16'13
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eholl 12: I
Chrl.lm.1 12:18; 13:2;
":211;16:17; ll:2Z
circle 15:8
city 32:3
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ele.n ll:lll
cll.ned 11:8
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clllnlng 111:'1
cloll 31:1.1
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coming 17:3; ll:.I,1I
Complnv ~:II,131111,'I,
II; II :,1: 11121, 221 ,\II:i
complllnl 12: III, III, H,
32111
compllled ,:,
camplel.,v 211: 13
conet,nlng ,I: 12
concluded H:W
conlllnllll:7
conlumpUon ,llIil7;
.12:11
conllel I 1:2~
conllcled 12:"
conUnul 17:l'., ,12:2'
conUnuld III:'
convllllllon 1.\:01, II;
":1(,
cooking .Il:~
couldn'l ":'; Ifo:n, '"~
17'21; 21:16; H:'1
counllf.l:2;': II; II: III
Counly 12: 17
coupII13:21; H:ll;
11I:ll
courll ,:~
crawl 2.1: 191211:", I 'J
Oumb.rllnd 12: 17
cuI 11):2'
o
d.tnllg. B:9
d.m.gld II :'1
dltl ':16,6:2'; 11:111,19;
12:1; 16'11
d.'ed6:l1
d.y U: 18, 13:5;III:i;
19:11, lO:I. 3,'. 19,1l. B,
21:22,23:1.II,13,I7,2i;
H:IU, II, 12, ",17
dly.III:'130:23
DlCembll 6: Il.lI:7: I.
'"~ Ill: 17, 21; II :f,. 13,
U: II. 15, 17:~;18:2. 6;
21: 12,22; 22:~, 15; 33: II
d",,6:I7,ll
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dlllnlllly 19: I. 22; 21: I
dlllvlr 111:'1
dellv.,ed IU:~
dlpollUon ':111,8:11,
16;H:lO
DER 211118, 18; 33:7
dl.crlblng ":0
dlllgn ,: 2'
dllmotll l~:8
dlff.,enl II :,
diffiCUlty 5:7
'I'hllm.. K, IIrrrlnllll"
Much 9. 199"
0I,"!OT,118
d"cloll '2116, 17
dlleovtrld l'Ii H
dllculI 21':H
dllcUnlonl ll"l'l
IIccumenl611 "1 8' I'
doni 7111, HI 81', 61
17 'Ii 111:11; 1'I''',17:i
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downt:21; Hili; ,,:,;
16:22II7:2.lII'I:I;ll:I3,
I '12~:ll),2'.i z.I: 1',1'1;
,12:3
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drllllellly H:"
dripping 13:23
duIV'I:7
during ':9; 'J: W; II): I;
II :I!, UII, 12; H: 17
E
Ed 211:9; H112: 28:2. ,"~
2'J:'
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311:19
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Imployed 6: I
.mpty 28: I ~
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even 26:17, l7:i, 3U'6, z.t
evening I ~:7, II, 9; 101:,1,
9,17; 15:lll,21;16:17;
17:17,21; 111:111; 19:6.161
23:Hll':I, 'I; l6: ,,; l7:II,
B; 28:', 19:(,; 311:,'
eventl':2
eVlrybody 32:"
everything 17:z.t; 21:11
eXle113:6
EXAMINATION ,1:8
e..mlnl 28:22; 31):3
e..mpll21:lll; il:9
exclpl ,.: I
exclullvlly I U:,.
Exhlbltll:II,13, 16, 2U,
2U
exllted9:11I,18
extlnl18:6
exI"me III:..
eye. ":9; 19:2123:1'1;
H:8
F
rlcl 12:101; I~:l; ":13;
lll: 3, l': II; 27:'
'II, IU:2,~, II: II. U;
Il:7,8
(1) 1. fair
, Thom.. K. lIerrlnatllll
Much 9. 1998
flmllv 25119
IIfIlIle 151211
IIlured II' 211
'ttd~113
Illln'~15
1111 3M
flllttd 27118, 211
flnlllv 511~,6
IInd 1,:,,251211
IInllh 31:'
IIrm"H
IIrlt 13131":211912~1
2116, 21i 28:~
IIIIln,1 25:22
Flv1612111:21
'Ioor Hi22, 15, 2~1 15:HI
17:1121:171221HI2~I6
IIUI21:19
'ollowln" 211: I, 3,'
'olllwI ~:7
'orm~:'
found 2H 15
'our "15
FrldlV 27: IH, 21
'ronIH:319:2
'UIIH:3
'urnlo. 9: 13,1111 IHI
1I1~, 15: 1212.": 1~:16:
16:1,11117:13: 22:211:
2~1"
G
06:17,7:12
OltltVlburg 321H
Oohn 6:17:7:12: 26:1. 3
Oood~: III
gr'IIII:21
gU'11 23:2,6, 7,26:9, 2~,
2H: 16,311:2~, 25, 33:12
H
h." 6:2131: I~
hind H:9, 15
hlpp.ned 29:H
hlfd 311: I 3
hlln'121:11
hlvln'127:,.
h..eI.oh..2\:19,33:H
11.1126: IH, 27:7
h..ler 111:12: I5:H,16:5,
8,10; 17:2.~, 13,21:6,8,
'"~ 22:',',11.19,21:
15:22,23121:3, '\,5.7, 15,
22: 27:19
.,..lIng 9:'.7,10:5.9,
1:15,18:3.7,21:22
".lp21:7
h.r.bv ~:2, '.
HERRINOTON ~:II, 10,
16,20:6:18.IH,HII2
ramUy . picking (2)
1"'"\
hlghwIV':2'
~QII' 29: I. 3
hO_IIII',9111:1',
121111,13<211"':11,
11I112,IH:3: 19:1'3, ", 22,
211:12,19121:2112~:2l1
25113, 151 211: ",28: ll,
20129:141311: 17,22,211
3\,151 HI121 Hill
homeown.r'l 29: 13
hook 32,'
hookttd n22
horrlbl. 19:13, 2I,2,\:IH
holll'I~,1518: 11I:2~:
17:~: 21:11.8,22:11),23:21,
H:~, ',II,I~: 26:17,27:7,
19
IIourl131n: 1,':121
'"~ 18,IH: 12: 23:3
hOU'IIIIHIH:2,2\,9:I,
221111:1~,19:2: 22:8:
211:IH: 27:23: 2H,': 29:8,
32:2': H:'. 17
houlttd 16:2
I
Immedl.t.IV 2H: 18:
10,,,
IQoll1 ':7: 2-1:8
Inold.nt \2:9
Inoomlng 29: I, 2
Inor.... 111117
Indloltttd 12: II
In"Hm.llon 6: I 0
In'ormed 33:7
In'pIlllIIO:18: 11:'1,
H',16, H:11
In'I.llltd 111:12,11,
16:25: 17:3, 5
In.ur.no. 29: II
Inl.rf.r.': I
Into 221211
I..u, 12:'1
J
JlnulJ'Y 111113,17,20,
11:',13,17,2': 18:111,19:
19:11: 20:H: 22:,', I', IH:
n8,2~:9, 9,17: 2':21:
26:9: 27:21: 2H:12,29:11I:
30:",16,31:2,6.19,21:
32:19:3311,1,',12
Judltll ':21111:18
Jun. ,: 17
K
K ,1:6,11: 17
k..p 32:'
K.llh 12:25: 11:6: ,,:~:
18:23: 19: 17. 18,25:~, 5:
27:III)HI2,.,2!1:'
kept21:~
kid. 26' 15
kind 21:9, ,\1),20; ,\2:7
klndl 21): 22
kn.w 19:H
knowlttdg. II): 19
known 6:3
L
LII:IH
Illd H:12
Len. '1:1"; 6:.,9:6: 10:',
12117: 211"
1.1.2":H
I.w.ulti: II
l"k 16:21: 17120,20,21:
2HII5: ,\1:\,0,12:12
I.. ked 28:...
IlIklng 11:21,23,17:211;
IHI2': 21:1": H:2
I.ft I(t:! I, 12,29''', H,
H:IO,ll,17
l.ngI1l8:1
I....n 27'1
IIn. 9: 1",28: 19; 29:2, 3."
IIn.. 9:1",IH,10:I.I'J:
II :',15: 12:1
LI.hln.kl 20:9, 1 H, 22: 1'1,
2':12,20: 2H:II,29:'
11111. 29:1
IIv. 11:1, H, H:H
lived ("",7:7. II), 17:
H:H,9:12
living 211:\: 32:2'
foo.l.d 12:1",17:13:
22:21: 11:.\, 7,17
10ng":I,": 11:11; 15:1":
17:1: 23:1: 31:11
long.r 30:9
look ":11,1\: H:I", 19,
22:30:19
looked 15:,,111,1. 2\;
17:11:23:21,2',30112,13
looking 321B
10"32:11,1\,1'
lot 21:IH
lov. !l:B
M
meohln.13:13
melnt.n.no. 11:9
me)or 7:2,,8:6: 9: I
mek.. 19:2
mlklng12:H
M.llno.ky 12:25: H:", H,
15:2,Il1, 1":17: 17:3,12,
17,19: 18; 20:7, 18: 22: 19,
2',,: 2H: II: 29:'
IIIInv 32:18
Min-U-Scrlpt.ID
TIt"m.. a Judy lIt:!rrh1lltllll v,
r-- i\ero oil ("ma11IlY
mer II.' "18
merkttdHIIII,I2,IlI
m.rkel n:II...., 15
M.rrled ':19,22
meller 27:'
m.v I("n: AI:'
mevb. 111:2': 29,3
me.n H,I: 18:211211:11
medlOlllon i:2'
me.t 28:': 2'1:211
mullng 161211
memory ""111
me129121. H
mlgtl121119;l1l:(,
mlnut.. 1.\, 12
ml..ttd H: 3
ml.lng171 I
mol.lur. 311: 2'
montlll7: II)
monlll. 311: 15
mor. 11:21: 17:19: 11l7,
1'1
morning i:lll: 13:(,:
17:23,1912,,21:12: 29:19
mo.t 211:22,311:11
molll.r-In-I.w 7: II, 12,
211: If>; 2':111, B:ll
move !l:2,,3J:.l
Mre 26:1,3
muoh 1":11.12: 22117,
17
mU.127:11
my..1I2S:17
N
n.m'1:llI, "':':111:
1\:1,1",20:9
n.lur. 1119
n..r 111:,\, H
n..d ':11), II: 1\:(,:
19:22
needed !l:B
nllgllborllood 13: 12:
15:19: 17:8, 23:2
n.w III:12,23:H
nut 17:22: IH:': 23:~:
25:\1),11,121211:7,29:19
nlgllt 26: 22
Nln.ty-.I. ,,: H
Nobody 22:H, 10
norm.lIv 33: 16
notlllngll: 2'
nollo. 21: 1,22:23: \0: IH,
21
nollo..bl. 22: 2
Qolloed I ,,:~: IH: 13:
211:2': 21 :21,14:2: 311: 17
nul..no. H:7
numb.r 26:20
.
0,
Key Reporters (717) 764-7801
obllOllon. 11~
ocouplllon ,: 21
Oolob.r 3111 III
odor IHI 12
0" 111:2,,22111
01l1,II,13,91111,Il,16,
17,11I:~,', H, 9, 9, 11, 1M,
19, H,II:'., ',I~, l5, l5:
1213,11. 16,21. 22: "'211
H:II,16, B,I":I, 21:
17:I,IH:3,7,III,16:
21,n: 22:H; H:', H;
14:2,2, 11.22,25: 27:6, 7,
17, 24:2H: H: 30:3, 17, 21
011'. 261211
old':H
ono. 26tl1
on. "~: 13:2': 17,22:
23:22
ongoing I HI II
onIY9:1: 211:1:31:2"
opporlunlty 28:22,311:2
ord.r 17:22
oulN,: H: 22,15: II. 13,
17: 1(>117, IH: IH:9: 19:2":
211:3: 21 :7: 22:111: 2,I:U:
2':9,10,21: 27'3,6,6,17:
2H,Ji,19, 21: 19:17: H:1
oUlgolng 29:2
out.ld.32:'
ov.r IH:', 25, Ill: I, H:9
overll_26:I'l
OYLER .1 :'J, II: 8:9, I,"
33'19
p
p.m zr"j.j
p.r.gr.pIl12: I ,I
perlloullr S:20
plrllll ~:3
perty 1l:2
P.nn,v'v.nl. ~:17; 6:1:
12:11
peopll 32:18: 33: 1(,
p.rform II:H
p.rformod 12:2
p.rlod 9:211: 10: I: 11:8.
7.2,22:8,12; \31', 9,17
p.r.on Il:I~, 15,1", 24
p.reon.17:1~: 32:8
p.reonlUy II:I~: 12:\.
": 1r.:J8,23:10
phon. 13:3,5: 10: I
pllologr.ph 8:9, 12, I":
9:3
pllotogrlpll.d \11:'
plly.lcll ,: I. 12
ploked 11:19
ploklng II:IH
'l'hOIl1I1l1 K, lIerrlJllllon
,-., Mlrch 'J, 19'J8
1'hom.. . Judy lIerrlJlgton Y.
Acro 011 Complny
plclure 8: 17,22
p'-a. "I: ~ ..
pll"6IH, I~
pip. '0: ~
plnnl', 10, II. I~, Hi
l!ISIUtH
PI,'nllll. 1211"I~
pl.n. '2122
p,""~I"I"I2II~:8
I
pltd '2,'1
plllnl "'10,2312112,10;
26119d2:1
pollcV 291101
poole 24:~
pool. n:~
porch 8:', ~,19,191912
pcrtlan 29:0
po.....lan 9:01 "l:"}
po..Ib'- 19:"
~r...nI7"8120:', 12,
H, I ~I 2': 23; 30122;
31:231 H:2
pr...nllv ~:3
pr..ulllllbIV 2': 17
pruum. ~: 18
p..1Iy 16:11,12
pr.vlou. 10:1~;1711l1
prI017:B: 11120: 101:12;
16:BI1713; 1",2,0; B:2,1;
24116; 301"
prlv.l. ,: II
prob.blV 23:7, I~, I',
UIB;311131 H:6,10
probl.m 28:B
probl.m. '"
proc... 2BI21
. produced B: 12
praduclll):9
prampled 26112
pranounc. 13: I
proplrly 6:3, II. 21. 2S;
7:7,21;8:.1,6,0: 9:7, B;
"'12,1~:17:4129:l'I;
31:17;32:13,17,19,22
provided 81 10
puddl. 10:4,7
Puddling I~: 10
puroh..ed o:B, II. 24,
2S
purchl.lng 7:8;32118
purparl' ~: 17
purpa.. 32: I
pUI8:I;U22;H:B
~
u.ed ~I:I
u.1ng 221111; H:"
.\l:7
.ub.llnlllllv ,I I :'), II
Suplrvl.or,: 2S
.upplV 1}1161 Ill: I"I; II: S;
II:H
.url 1117: H:H; 1"):4,',
101129:111 ,IO:~
.wlm",lng 32:6
.worn,I:7
.v.llm9:S, 7: 2,1:2'
27:I,~, 17
..l'Ylced 9'17; 12: I;
.11:",19, H
..rvlelng 1):8111: I S
..v.n H:3
'Iver.127:"
.horllv 29: II,
.how~: "
.haw.d 17:n
.hull1:HI1911;21:II,
"
.Id. 8: 22
.I~ H:21 H:8
.Irl 29' 3
.lIghll":11
.mall 248
.meIl12:1(,; 11:21:
H:II. H,14116:21118:7,
2,1; 19:2,13,21; 20:2,1;
21 :11. 17, 18, 21; 22: 16:
23:18, 21: U:10:26:1~;
27:';30:21131:2, ,
.mell.d 18:2
.omebody 19:101, 16;
H:H; 278
.omean. I~:I, 2; 18:13
.omethlng 6: I Sill: I, 8,
9;12:6; 13:22.221 H:IS:
":18;16:11,22; 17:8, '},
10; IB:III, 13; 19:.1, 5;
23:3;26:16;27:3
.omewher. 6:7; 13: 12;
23:2
.oon 17: 251 19:"
.orry 7:', S; 11I:2S: 2,I:S:
B:3
.ound ~: 13
.ou,cI21:17
'p.o, 2~: 19; 2B: IS, 1')
.p..k ,,111;12:21. 22;
16:18: IB:211: 23:13:
2':20; 27: 12129:20,2'
.p.olllo 11:3,7, 111.2'
.plll32:16
.pok. 12:24; 26: II
.poI2'I:B
.pou..'. S:20
.I.ndlng 8122
.t.,11d 2N
.1.11 4:1~
.tlt.menl 10:2,3; 12:7
.lllu. ,: IB
.tlY 22:16;24:llId3:13
.I.nogreph., 4:21: ':6
.111117:7; 20:10; 21:12;
26:3, 5;2N; 30:21
.lIpul.led 4:2
STIPULATION 1: I
.Irelghl.nld 7:6
.lr..1 H:3
.Irong 13:21; 14: 11.14:
21:21.21
.Iull 20:22121 :9;30:20;
ren 18:9
reedlly 9:,1
r..'1)' 26:\<\
re..anlbl.,I:22
re..on. ,: 12
reOlIl ':2; B:8;9:2'; 111,8;
12: 12, Hi I~: 1~,18; 1(,,7,
9;19:n;20:1712~:B
rlO.lvld Mil, I~
rlO.ntl)' 16:H:17:2
r.col'-allon 9: 25; II: ,I,
7. 111,23128:,\
rlOllmmend 211211
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R
Rlllph ~IIU
MJn.U.!Jcriptll
Key Reporters (717) 764.7801
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1 STI1?fJLATIClli
2 It is hereby stipulated by and betwe~n counsel for
3 the respective parties that sealing, certification and filing
4 are hereby waived, and that all objections except as r,o the
5 form of the question are reserved to the time of trial.
6 'l'HOMAS K. HERRING'rON, called as a witness, btling
7 duly sworn, testified as followsl
8 DIRECT EXAMINI\'rrON
9 BY MR, OYLER I
10 Q Good morning, Mr. "'!rrington. My name is Ralph
11 Oyler ~nd r' m the attorney that represents Aero Oil Company.
12 I'm going to be asking you some questions tmiay concerning
13 the lawsuit that has filed against Aero Oil Company. Okay.
14 Let's begin by having you state your name and address for the
15 record, please.
16 A Thomas Herrington, 6 Wood Lane, Carlisle,
17 Penneylvania.
18 Q And what's the zip code?
19 A 17013.
20 Q Mr. Herrington, you understand what this is, and
21 the stenographer is going to be taking down my questions and
22 your answers to my questions so you have to verbalize your
23 responses. You understand that, sir?
24 A I understand.
25 Q Are you taking any medication today or do you have
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1 any physio.l problem$ that would interfere with your ability
2 to recall the events?
3 A No,
4 0 And one other thing that I ask all my witnesses to
5 do is that you would wait un'~ il after I've completed my
6 questioll before you answer becalJse the stenographer has
7 difficulty if we both talk at the same time. Okay?
8 A I will.
9 0 And if at any time during the course of this
10 deposition you need to take some time to speak with your
11 counsel in private or if you need to take a break for
12 physical reasons, please just let us know. Is that okay?
13 A Okay.
14 0 How old are you, slr?
15 A Thirty four.
16 0 Your birth date, sir?
17 A June lOth, 1963.
18 0 And your marital status?
19 A Married.
20 0 And what's your spouse's name?
21 A Judith.
22 0 Were you married as of 1994?
23 A Yes.
24 0 And what is your occupation?
25 A supervisor of desi~n, highway engineering firm.
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Q How long have you been employed ther..?
A Five and a half years,
Q Now, you presently live in a property known a. 6
Wood Lane, Carlisle, ~ennsylvania, correot?
1\ Yes,
Q How long have you lived a~ that addresll?
A Sinoe' 85 I believe, somewhere .lround there.
o Did 'You live in the house before )/'ou purchased it?
A Yes, for about a year or so,
o And according to l:he information that I've received
beck from your attorney, you actually purchased the property,
acquired the title to it on December 19th, 1996. Does that
sound correct?
A Ninety-eix, no.
J I'm going to show you something, This is a
document. which I've received from your attorney and it
purporte to be a deed between Doris G, Gohn and Thomlls K.
Herrington and Judith L. Herrington which I presume ia you,
ie that corract?
A Yes,
o And the deed is dated December 19th, 1986, is that
correct?
A That's correct.
o So wh~n I said you purchased the property on that
date, isn't it correct that you purchased the property at or
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about December the 19th?
A Of '86. You said '96.
Q Did I?
A That/s why I ..
Q I'm sorry. That was my error.
that. Now we got that etraightened out,
I'm sorry about
Okay.
And you lived in the property for approximately a
year prior to purchasing it; is that about right?
A Yes.
Q And who lived there with you at that time?
A My mother-in-law.
Q Is your mother-in-],aw Doris G. Gohn?
A Yes.
Q Has it been your personal residence since acquiring
title on December 19th, 1996?
A Yes.
Q You've never lived anywhere else between '86 and
the present time?
A 'rhat is correct.
Q And have you made any alterations or additions to
the property since you acquired title to it in 1986?
A Yes.
Q Can you tell me what it: was that you have done?
A Alterations, all the alterations I've done or just
major?
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1 0 When I say al terat ions, I mean have you put any
2 additions on to the house aince 19861
3 A I added ~ porch, a full length front porch on the
4 property.
5 Q Is there anything else that you've done to the
6 property, any major work that you've done to the property
7 aince 1986?
8 A Not that I can recall.
9 MR, OYLER I I'm going to hand you a photograph
10 which was provided by counsel and ask that this be marked as
11 Deposition Exhibit No.1,
12 (Photograph, produced and marked as Herrington
13 Exhibit No.1.)
14 BY MR. OYLER I
15 Q I'm going to hand you a document that - - or a
16 photograph that has been marked alii Deposition Exhibit No.1.
17 Is that a picture of your residence?
18 A Yes, it i9.
19 Q And wh>!ln you say that you added a porch, that porch
20 is visible on this particular exhibit, Exhibit No.1.
21 A Yes.
22 Q On the right-hand side of the picture, etanding out
23 from the house, did you add this addition while you lived
24 there in 1986?
25 A No.
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o So the only major change you've made to the housl/I
is the addition of the porch on the front here that is
readily visible on the photograph, is that correot?
^ That's correct.
o Now, was the heating eystem that WIIS in place at 6
Wood Lane, Carlisle at the time that you took possession of
the property in 1986 the same heating system that was
servicing the property in 1994?
^ Yes,
o Was the same oil tank in place in 1986 liS waR in
place in 1994?
^ Yes.
o Was the same oil furnaca or boiler in place in 1986
as was in place in 1994?
^ Yes,
o And the oil lines. the supply and return line ttat
serviced the boiler from the oil tank, was that -- were those
the same lines that existed in /86 as existed in '94?
A I would believe so, I don't know. If they were
replaced by a technician during that period, I'm not aware of
it.
o You've lived in the house from 1986 through 19941
correct?
A That's correct.
o To the best of your recol~ection, you don't recall
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that those lines were ever replaced during that period of
timet is that m fair statement?
A That's a fair statement.
o Now, hall Aero oil Company exclullively deUvered
home heating oil to your rellidence at 6 Wood Lane, Carlisle
since 19867
A I believe 110, yes.
o You don't recall having any other oil company
deliver oil product, home heating oil to the residence, ill
that correct?
A No, I don't.
o Other than the new water heater that wall inlltalled
in by Aero ! believe it wall in January of 1995, had you had
any other oil burning appliances installed in t.he house eince
1986?
A No.
o Between January 1st, 1990 and December 25th, 1994,
did anyone inspect, service or repair the furnace, oil tank
or oil supply and return lines to the best of your knowledge?
A January 1st.
o To December 25th, 1994"
A I would think so, yes. I don't know.
Q Who would that have been?
A I think it would have been Aero oil.
o
Did you
I'm sorry. I cut you off. Did you want
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1 to say something else?
2 ^ No.
1 0 Do you have a specific recollection of calling Aero
4 Oil company and asking them to inspect or service the furnace
5 oil tank or supply and return lines between January 1st, 1990
6 and December 25th, 1994?
7 A A specific recollection, no, but I'm sure it was
8 cleaned during that period or something just routine
9 maintenance or something to that nature.
10 Q But you don't have a specific recollection of
11 calling and requesting that, is that fair?
12 A No. That/s fair.
13 0 From January 1st, 1990 through December 25th, 1994,
14 did you personally perform any service on your hot oil, your
15 home heating oil furnace, oil tank or the lines servicing
l6 those appliances?
17 A No. What's January 1st, 1990? You're juet
18 p~cking that date?
19 Q I just picked a date. I didn't want to go back to
20 1986 because I figured prior to 1990 yo.!r memory was not that
21 great. That's why I'm going back no more than five years so
22 I'm trying to make it within a reasonable period of time for
23 your recollection. That's all.
24 ^ Okay.
25 0 So there's nothing specific about January 1st,
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1 1990. That's a date that I chose, Have you ever personally
2 performed ony service or repair service on your furnace or
3 upon the oil tank or upon the lines that serviced the
4 furnace?
5
A
No, I have not,
6
Q
So that's just something that you t-ersonally don't
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7 engage in, is that a fair statement?
a
A
That's very fair,
NoW, let's talk about the incident at issue
9
Q
10 according to your complaint, According to your complaint,
1\ you indicated that you called Aero oil on December 25th,
12 1994, Do you recall that, sir?
13 A Yes, I do.
14 Q In fact, in paragraph three of your complaint, you
15 say at or about December 25th, Plaintiffs contacted Defendant
16 regarding the smell of oil in the Plaintiffs' home located at
17 6 Wood Lane, Carlisle, cumberland County, Pennsylvania.
18 When you called, that is Christmas day 1994;
19 correct?
20
A
That's correct.
21
Q
Did you actually speak to Aero oil Company or did
22 you speak to an answering service for Aero Oil Company? Do
23 you recall, sir?
24
A
Both. I called and spoke to an answering service.
25 The answering service had Keith Malinosky or however you
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their teohnic;ians i.\nd have someone get back to me.
o Someone did in faClt get b~ck to yoU?
A Yes.
o That aame evening?
A Yes,
o And that was Keith MalinoskYI is that correct?
A Yes.
o And please tell us what you told Mr. Malinosky that
evening on the telephone,
A Same thing I told the answering service that there
was a strong smell of oil in the home and that it waen't
there a couple of hours prior. When I went upstaire and laid
down, I came downstairs -- well, my wife called me downstairs
and said there was a strong emell, and I could smell it when
I went downstairs and something was draetically wrong.
o Did you go and inspect the oil furnace that
evening?
A
o
Yes.
Did you do that before you called the anawer~,ng
service?
A Yes.
o And did you see anything on the floor? Did you see
any oil leaking on the floor or any water leaking on the
floor at that time?
A There was a .. I'm not sure whether I uhecked
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1 befo~e the answa~ing se~vioe o~ between the answe~ing servioe
2 and Mr. Malinosky first of all.
3 Q Okay.
4 A But there was -- when I was talking to Keith, I
5 told him I went down and I looked around and I couldn'c find
6 any, you know, what it could be, and I was just describing to
7 him the area. I told him that there was about an eight inr.:h
8 circle of water on the floor by the hot water heater, just
9 trying to be his eyes, not t~lling him what was wrong,
10 Q And what did Mr, Malinosky sayar do at that point?
11 A He said he would come out and take a look at the
12 property.
13 Q And did he, in fact, come out and take a look at
14 the property?
15 A Yes.
16 Q How long after the telephone conversation did he
17 come out?
18 A I'd say within two hours, something in that
19 neighborhood.
20 Q So it was that same Christmas evening, is that
21 correct?
22 A That's correct.
23 Q Now, I believe you told me that at some point in
24 the evening, you can't remember for certain whether it was
25 before you called the answering service or after, you went
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1 and looKed at the area where the furnace and water oil were
2 housedl is that correct?
3 A That's correct.
4 0 And you noticed a puddle of water near the water
5 heater, is that correct?
6 A Yee.
7 0 Do you recall if you had ever seen a puddle of
8 water near the water heater prior to that date?
9 A No, I don't recall ever seeing it,
10 0 Did you regularl.y checK the water heater or the
11 furnace of that area or something you pretty much left go?
12 A I pretty much left it alone,
13 0 So you couldn't say that you had checKed it in the
14 weeK previous and that there was no pile of water?
15 A No, no, I couldn't,
16 0 puddling of water. It wouldn't be a pile of it,
17 would there. Now, Mr. MalinosKY comes out Christmas evening.
18 Did you personally speaK with him when he came out?
19 A Yes.
20 0 Tell us what you told him at that meeting.
21 A I said, you Know, you can smell the oil in the
22 home. You know, something is wrong here, and we went down,
23 We looked around. He saw the water also and discovered that
24 there was a leaK in the hot water tanK which was just
25 recently installed by Aero and said that maybe the water may
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b~ mixing with oil that was on the flo~r before,
o You say that the water heater was recently
installed, How long prior to ~;l:". Malinosky coming to the
property on December the 25th, 1994 had the hot water heater
been installed?
A I would have to check my records. It was -- it was
still under warranty so I would say within two yeare,
something to that neighborhood.
o So it wasn't something that was done like in the
previous month or son\ething like that?
A No.
o NoW, Mr, Malinosky and you went to the area where
the furnace and water heater are located; correct?
A That'S correct.
Q And you looked around together; is that correct?
A That's correct.
Q What did Mr, Malinosky say to you that evening, if
anything?
A J'ust that, you know, he was more worried abc'.lt the
leak. You kno...., the tank was leaking, had a leak to it. He
said he couldn't get a replacement tank that evening, that he
would have to order one, and I was going on vacation the next
morning so he showed me how to shut down the tank and
everything so that the leak didn't continue while I was on
vacation, and he eaid as soon as I get back from vacation
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1 that he would ~eplace it then.
2 Q Prior to December 25th, 1994, had yo II eve~ /lmelled
3 heating oil in your home?
4 A Not to the extreme that it was that day and
5 continued to get wor/le over the next 17 days.
6 Q You say not to the extent. Prior to December the
7 26th, was there a constant smell of heating oil just not
8 very
9 A No, no, it would be after a cleaning or ran out of
10 oil or something like that, you know, Any time there would
11 be service or anything like that done there would be a slight
12 odor but it would be gone within a couple of hours.
13 Q So it's not something you noticed on an ongoing
14 basis?
15 A No, it is not.
16 Q And Aero Oil returned on January the 3rd, 19961 is
17 that right?
18 A That's correct. I called them the evening of
19 January 2nd when I returned.
20 Q And whom did you speak with when you called at that
21 time?
~2 A I believe it was the answering service again, and
23 someone got back to me, I think it was Keith again got back
24 to me and told him that, you know, the smell is -- I mean,
25 over this amount of time that the water wasn't leaking. The
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1 tank's been shut down so it definitely wasn't the water. I
2 said the smell in the house now makes yr:.l.lr eyes water to
3 the
4 Q Let me make aura I understand something because I
5 wasn't sure about something. You called the answering
6 service in the evening of January the 2nd, is that correct?
7 A Yes.
8 Q That would have been the day that you returned from
9 vacation?
10 A That's correct.
11 Q What did you say to the answering service?
12 A Said that I was scheduled to have a tank replaced
13 and I just returned home and the smell was horrible and I
14 just wanted to talk to somebody to make sure they knew that I
15 was home and this is going to be done as soon as possible.
16 Q Did somebody call you bacl< that evening then?
17 A Yes. I think it was Keith.
18 Q And you believe it was Keith Malinosky?
19 A That's correct.
20 Q And what did you say to him at that time?
21 A I told him also that the smell was horrible and
22 that we had returned home and we definitely need service,
23 Q And what did he say to you, if you recall, sir?
24 A He said that the tank was in and he'd be out first
25 thing in the morning.
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The following day?
Ye..
And wae he, in faat, out on the following day?
Yes.
Were you preeent when h~ came on tha follo~ing day?
Ye~.
Now, wae anybody with Mr. Malinoaky when he came on
8 January the 3rd?
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Yes. Ed Liehineki I believe his name wae.
A
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Anyone elee?
A
No.
Q
And who was preeent at your home?
Me.
Was your wife present at that time?
I don't believe. I think she went to work.
A
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Was your mother-in-law still present?
A
I don't recall.
Q
NoW, whnn Mr. Malinosky and Mr. Lishinski came to
19 your home that day, did you have any discussions with him?
~o
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Q
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Yes.
And what did you talk to him about that day?
All kinds of stuff there. They were there most of
23 the day I mean.
24
2S noticed?
Q
Did you discuss this ameli that you said you haJ
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1 A Oh, de~initely, yeah, They could notiae it at that
:2 point too,
3 Q Did they say anything to you about it?
~ A They said that -- they just kept coming up with
5 di~ferent things that may be caueing it, you know, They
6 replaced the hot water heater, First of all, while they were
7 there and brought the tank out and had the help there and
8 everything and replaced th~ hot wat~r heater which was
9 damaged on the way and all kind of other stuff also, bl~t
10 that's beeides the point, Then I was telling them that the
11 smell cannot be coming from the water because there hasn't
12 been any water there since Pecember 26th in the morning when
13 I ehut it down.
14 Q You said that to them?
15 A I said to them the water heater has been shut down,
16 it couldn't have been leaking and there's no water on the
17 floor now. I said that can't be the source of the smell
18 because now the smell is a lot worse. And he said, well, it
19 might be your flue also so your chimney. He said I'd
20 recommend we clean that while we're here,
21 Q So you first noticed this strong smell of home
22 heating oil on Pecember 25th, Christmas daYI correat?
23 A That's correct,
24 Q And it was very strong at that time. Is that
25 correct?
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1 A Yes .
2 Q Vory noticubh?
3 A Yu .
4 Q Between the 25th of December and January the 3rd
5 when the water heater was raplaced, the water heater had been
6 turned off, i$ that correct?
7 A That's correct.
8 Q Nobody had been in the house during that period of
9 time?
10 A With visitore in and out. Nobody using th~ hot
11 water heater if that's what you're asking,
12 Q Because you were vacation during that period of
13 time.
14 A That's correct.
15 Q Between December the 25th and January the 3rd, did
16 the smell get worse, get better or stay the eame?
17 A Much worse, much worse,
18 Q Was there any.. on January the 3rd, 1995 when Mr.
19 Lishinski and Mr, Malinosky came to replace the water heater,
20 did you go back into the area where the furnace and water
21 heater were located with them?
22 A Yes.
23 Q Did you notice any oil or anything on the floor at
24 that time?
25 A No.
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Approximately how long were they there that day?
I would gue~~ somewhere in the neighborhood of six,
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3 ~evlln hours, something like that.
4
o
And when was the next time that you called either
5 Aero oil or the answering service?
6
A
Was that on the 3rd. I guess it was the --
7 probably the 8th I guess,
8
9
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11
12
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1'5
00 The 8th of January?
A Yes.
Q And did you personally make that telephone call
that day?
A Yes,
Q Now, who did you speak with that day?
A That was probably -- that was in the evening. It
was probably th~ answering service also.
16
17 day?
18
Q
And what did you tell the answering service that
A
That the smell was horrible, and I -- the whole
19 family was, you know, had watering eyes and headaches, and I
20 got down in there to see if I could find anything at all that
21 could be causing this smell, and I looked on the hot water
22 heater, and one of the fittings when they put up -- hooked
23 the new wat~r heater up, there was oil dripping from that.
24
o
So that day you went down prior to calling the
25 answering service and looked at the system yourself?
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A Yee, I did.
o And hael you noticed some oil. leaking from the oil
heater at that time?
A From the hot water heater, yes,
o From the hot water heater, I'm sorry, yes. And was
there any oil pooled on the floor beneath the hot water
heater?
A Yes, a amall probably six inch diameter spot.
o Between January the 3rd, 1995 and January the 8th,
1995, did the smell get worse, stay the same or get better.?
A Worse.
o It was worse stJ.ll?
A Yes.
o And did you inspect anything other than the hot
water heater and the furnace when you yourself went down to
look at things prior to calling the answering service on
January the 8th?
A No.
o You didn't go down and look under the crawl space
for example?
A No, I did not.
o Did you go out and look at the home heater oil
tank?
A
o
No, I did not.
Did somebody call you back from Aero Oil that
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IIlveuing?
A Yes.
o Who ~.s that?
A Keith again.
o Keith Malinosky?
A Yes.
o What did you tell him?
A Same thing I told the answering service, and he
said that he couldn't make it out that evening, that he would
come by the next day and check it out.
o And did he, in far.t, come by the next day?
A No, Ed Lishinski came the next day,
o Were you home when he came?
A No.
o Who was home that day?
A My mother-in-law.
Q So presumably you were at work that daYI is that
right?
A That's correct.
o So did you speak with Mr. Lishinski at all when he
came out on January the 9th, 1995?
A No.
o And your wife wae not present eithet'l is that
correct?
A That's correct.
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Q only Mrs. Gohn?
A Right.
Q Is Mr~. Gohn still living?
A Yes.
Q DaBs she still reside at 6 Wood Lane?
A Yes.
Q When was the next time that you called Aero or the
answering service?
~ I guess it would have been January 12th I believe.
Q And who did you talk to at that time?
A I spoke to the answering service once again.
Q What prompted you to call the answering service at
that time?
A I was at work, I was working overtime late in the
avening. My wife and kids got home, and she called me up and
said, YOll know, there's something really bad. The smell is
even worse than it was before and there's also no hot water
and no heat in the house.
Q Okay. And so at that point you called whom?
A I called Aero Oil's number and got the answerin~
service.
Q
So about what time in the night would this have
Do you recall?
I guess around 6, 7 p.m.
~ld this time again what did you tell
been?
A
Q
the answering I
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1 service?
~ A I was very upset and wos soreaming at the anuwering
3 service that something has to be done, that theY've been out
4 several times and still haven't even at~rted to lessen the
5 smell, and as a matter of fact, it's gotting wO~$e, and now
6 I'm also on top of all of that I'm out of oil, I must be out
7 of oil because I have no lleat and no hot water,
8
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15
16 said the same thing to him that I eaid to the answering
17 service, and he said, well, you can't be out of oil. He said
18 I just filled your tank on Friday.
19 Q When he replaced the hot water heater, is that when
20 he filled your tank?
21 A No, I think Friday was January the 6th. It was in
22 between.
23 Q Did anybody come to your house that evening from
24 Aero Oil?
25 A Yes.
Q And did somebody from Aero call you that evening?
A Yes.
Q Who?
A Keith.
Q Did he speak with y:>u?
A Yes.
Q And what did he tell yoU?
A I was at work. He called me back at work, and I
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And who came?
Keith and Ed.
A
They both came to your recollection?
Yes. Keith was there first I believe and then Ed.
Q
And did you meet them at your house that evening?
They were there before I wae.
So when you arrived, they were already working on
A
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8 the problem?
9
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A
Yes.
Q
And what did you see when you got there? Did you
11 go and talk with Mr. Lishinski and Mr. Malinosky when you
12 arrived home on January the 12th?
13
A
Yes. They said that your tank's completely empty,
. 28
14 and, you know, all your oil is leaked out, and by ~hat time
15 he had already f.ound where the leak was in the crawl space,
16 and he said, you know, he had already called his boos r. guess
17 and told me I had to -- either he or myself had to make a
18 call to DER and report this immediately to DER.
19
Q
Had he taken out the line beneath the crawl space
20 when you arrived home?
21
22
23 him?
24
25
A
Yes, or was in the process of taking it out.
Did you have the opportunity to examine that with
Q
A
Yes.
12
What did you see?
what line it Wall whether it was incoming Ot. outgoillg,
There's two h~les in the lin~ about the si~e of BBe, maybe a
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There was two holes on the incoming or I don't know
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Did Ed Lishinski or Keith Malinosky take that
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6 portion of the line with them when they left that evening?
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12 truth.
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Q
A
No.
What happened to it? Was it left at your house?
Yes.
Q
And what did you do with it?
A
I'm not suro where it is right now to tell you the
Q
You made a claim with your homeowner's insurance
14 policYI is that correct?
15
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That's correct.
A
o
And I believe shortly after January the 12th they
17 sent a representative from Alletate out to the propertYI is
18 that correct?
19
20
21
22
23
A
Yes, I believe was there the next morning.
Q
Did you meet with him and speak with him?
No, I never met him.
A
Q
Do you know who did?
I don't think anybody met with him. I don't think
A
24 anybody was home.
25
Did you ever speak with him?
Q
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1 A Over the phone I beHave.
2 0 Do you know whether he had the opportunity to
3 examine the piece of pipe thBt was removed by Aero Oil
4 company the evening before?
5 A Yes, he said he was there and photographed it or he
6 might even have it. I'm not sure.
7 0 You don/t know whether he took it or not?
9 A No, I don't.
9 0 You know that you no longer have possession of itl
10 is that correct?
11 A I don't believe I do.
12 0 Have you looked for it at all?
13 A Not hard. I've looked around for it, yes, but I
14 don' t know.
15 Q In the months immediate.ly prior to January 12th,
16 1995, say like from october 1994 through JanlJary of 1995, had
17 you noticed any increase in oil consumpt.ion for your home?
18 A No. I didn't - - I didn' t notice that there wasn' t
19 any either. I just didn't -- I typically don/t look at that
20 kind of stuff.
21 Q Have you .- do you still notice the smell of oil in
22 your home at the preeent?
23 A On most days like today, yes, or when'we're away
24 from the home for quite a while, I guess it's not even the
25 moisture it will come - - we'll come back and, I guess we get
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Has th~ smell gotten any better since January 12th
3 of 1995 when the leak was finally located?
6 any better Bince January 12th, 1995 when the leak was finally
7 located?
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5
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o
6
A
o
9
10
11
A
o
12 better?
13
A
Yes.
Let me finish my question. Has the smell gottQn
Yes.
Has it gotten substantially better?
Yes.
HoW long did it take before it was substantially
I would __ it was probably close to a year and a
14 half to two years.
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Is your home serviced by a well?
No.
A
o
Is there a well located on the property?
Yes.
A
But as of January of 1995 you were serviced with
o
20 town waterl is that correct?
21
That'S correct. In January of '95 I had both. I
A
22 had town and well.
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And at the present time?
Now I only have the township water supply.
When you say you were serviced by both township and
A
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well, whet was the purpose of the well at this point back in
1995?
A They brought city water down the street the year or
so before, and they allowed us to -- everybody had wells.
They allowed us to keep your well with an outRide hook up eo
we'd use the well water to fill the swimming pools and wash
cars and that kind of stuff.
o You weren't using it for. personal consumption or
cooking for example?
A No.
o In your complaint you've pled a loss of market
value to your home as a result of the leak.
Have you ever nad your property appr.aised for lOBS
of market value?
A For loss of market value, no. I've just been made
aware that I would have to disclose the spill if I was to
soll the property so I assume that if I was to disclose that
that not many people would accept the purchasing.
o Have you tried to sell your property since January
of 1995?
A No, I have not.
o Do you have any plans to sell your property?
A I would love to. You looking for a place?
o I live in Gettyeburg so I wouldn't be making the
move there. Were you able to continue living in the house
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1 from January 1st .. well, January Jrd when you return$d from
2 vacation through the present time?
3
4
A
I miso6d the question, I'm s~rry.
Did you hsve to move out of the house for any
Q
5 per.iod of time after January of 1995?
6
7
A
No. I probably should have, but we N' I was
i1tformed that
by DER that it was more of a nuisance', that
8 we could put up with the headaches and the watering eyes,
9 that it wasn't going to damage anybody over a periqd of titne
10 so we probably should have lef.t but we didn't.
II
Q
When you wera away on vacation from December 25th
12 through I guess it was January the 2nd, 1995, was there
13 anyone left at home? Did your mother-in-law stay there while
14 you were away?
15
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No.
So all the peopl>a that normally resided in Ue
16
Q
17 house had left during that period of timel is that correct?
11l
A
That'e correct.
19
MR. OYLER I I don't have any more questions.
20 (Whereupon, the deposition was concluded at 10140
21 a,m.)
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IN 'l'HIIl COU~'l' 01" COMMON .....I:lAtI
CUM~1';~J.,ANU COUH'l'lt, Pl'lNNUlt...VAN1A
C1V,l'" U1Vl~10"
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JUNlt 'l'N1A'" Ul'lMANI>l'l1>
'l'HOMAl:I K. Hlfllt~lNG'l'ON ANI>
JUl>lt .... 1U::IUUNG'l'ON,
VS.
Al'l~O 01... lNC.,
I>efendant
C~N.lllllt'lCA'11~ O}ol t:i~N.vlC~
1, Karen Heflin, Logal Assistant to ~alph o. oyler,
l'lsquire, do hereby oertify that on May fl, 1998, a tru~
and ~orreot oopy of I>efendant's Motion for summary Judgment
in the above-captioned oase was mailed via first-class
mailing, postage pre-paid, addressed as followSI
G. ~ryan salzmann, l'lsq.
SAL~HANN & 01')1'AUL1S, 1'.C.
l:Iryan Salzmann, l'lsquire
lOb N. front street, suite 201
Harrisburg, 1'A 1"1101
counsel for 1'laintiffs
~Yl ~.vi 0 ~
Karen H~
Legal Assistant
for ~alph oyler
Oatel b/fJ/98
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THOMAS K, HERRINGTON and
1IJDY L, HERRINGTON,
PIQlntlffs
IN THE COURT OF COMMON PLEAS OP
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 9~.6469
CIVIL ACTION
JURY TRIAl. DEMANDED
vs.
AERO OIL COMPANY.
Defendant
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PLAINTIFF'S RESPONSE TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND NOW, Plaintiffs Thomas K. Herrington and Judy L. Herringtoll (hereillllfter
"Plaintiffs"), by and through their attorney, Q, Bryan Salzmann, Esquire of Salzmalm & DePaulis,
P,C" flies this Response to Defendant Aero Oil Company's Motion for Summary Judgment as
follows:
1. Denied as stated, It 15 admitted that Plaintiffs med a Complaint against Defendant for
damages caused by Defendant's negligence regarding an 011 leak at Plaintiffs' residence. To the
extent that the averments contained In paragraph I of the Defendant's Motion for Sununary Judgment
seek to chllracterlze a writing, the writing speaks for itself.
2. Denied as stated. It is admitted that Plaintiffs t1led a Complaint against Defendant for
damaged caused by Defendant's negllgence regarding an 011 leak at Plaintiffs' residence. To the
extent that the averments contained In paragraph I of the Defendant's Motion for Sull1Jlllll'Y Judgment
seek to characterize a writing, the writing speaks for itself, By way of further response, the nuisance
claim has been removed via stipulation of counsel.
3. Denied as stated. It is admllted that the nuisance claim has been removed via stipulation of
coull5el. By way of further response, the trespass claim was removed by Plaintiffs' counsel In
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exchunlle for Defendunt's withdrawal of their MOllon fllr Sununury Judgment. (See Slipulation of
Coul1lielllllaclled as Exhibit OJ A") Defendant hils now chosen to violate the l\:nl1li of that Agreement
IJf coul1lic:l by ru-l1llnllthis subJeclmotion,
4, Admllled.
,5, Defendant's llllegatlons In Paragraph,5 conSllwl\: concluslol1li of law to which no response
Is required,
6, Denied, The allegalions constltule: a conclusion of law to which 110 response Is required.
To the extent a response Is required, it Is specil1cally denied that Plaillllffs lire unable to satisfy the
elements of their cause of action, To the contrary, lhe Pluintlffs assert that based upon the pleadings,
depositions, answers to inlerrogatories and response to request for production of documents.
Pluimiffs are able to satisfy the elements of their cause of action,
7, Denied as stated, It Is admitted that Plaintiffs hnve l'eluined the services of WllIiW1\ J,
White us un expert. It 15 also admilled that Mr. Whlte's reportlnd!cated thut Defendant had a duty to
check the integrity of the existing 01l1lnes with a Firomatlc hand pump upon Installing a new hot
wuter healer. By way of further response. WlIllalll J, White's repurt also Indlcales, among olher
things. that the Defendant had a duty to properly investlgute the source of the oil smell, which
includes cllecking the inlegrity of the oil lines, (See Exhibit" B", Report of William J. White)
Defendant has chosen to make the Court aware of only olle issue contained ill Mr, White's report,
8, To the extent Defendant's allegations seek to characterize Mr. Herrlngton's testimony. his
testimony speaks for itself,
9, Denied, It is specifically denied that Defendant's duty did not arise until installation of the
new hot water heater on January 3, 199~ To the contrary, Defendant owed a duty to the Plaintiffs to
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d~t~rmln~ th~ sourc~ of th~ oil smell when the smell was tlrKt r~portC!d to the D~rendanton Pec~mb~r
2S, 1994, Th~ report of William I, Whhe specllkally Sillies, alllong other things, thM the Defendant
fell below the required standard of care In the Industry In failing to prllp~rly Investlllate the: 5llurc~ of
th~ oil sll1~lls, till,) In addhlon. Mr, White's repllrt stated that the Aero s~rvlce technician did not
follow and was not adequately trained In th~ standard prllcedures which m liJllowed In the Indusrry,
<I\I.,) By way of further respons~, when Plaintiff llr5lnotltled D~rendant of an oil sll1~lI. D~fendant
had a duty to examln~ the hOIll~ heating 011 system equlpll1~l1l, Including the return ami supply lincs,
for posslbl~ sourccs of oil leaks, (See Exhibit "C", Deposition of Ruclle W, Wolfe. PI" 31-33,) By
way of further response, the Issue of when Defendant's duty arose 15 a question of fact for which a
jury must decide,
10, Denied, The allegations constitute a concluslonllf law to which no response 15 required,
To th~ extent a response 15 required, It is specifically denied Ihat Plaintiffs are unable 10 prove that
but for Defendant's negligence. they would not have been Injurcd, or that their damages were caused
solely by the failure of Ihe Defendallllo check the Illlegrity of the return line on lanuary 3, 1995, To
the contmry, the fBcts elicited to date via discovery Indicate that DefendBnt continually failed to
investigate th~ potential sources of oil leaks, Including the 011 lines when repeatedly notified of anllll
smell as well as when Installing the hot water heater, (See Exhibit "B" I Report of Wllllalll1. While;
Exhibit "0", Deposition of Thomas K. Herrington; Exhibit "F,", Deposition of Edward J, Llshlnskl,
PI" 38-39, PI" 49-S0, Exhibit uF", Deposltkm ofThomas A, Annacost, p, 38,) In fact, Defendant's
position Is, that although they are to be experts in the field, "I wouldn't think that we would, you
know, go nonnally looking for trouble," (See Exhibit uF", Deposition of Thomas A. Annacost, p,
38,) In addition. Defendant had a duty to review the K factor to detennlne whether an 011 leak had
4
It,
,
occurred and no review was done, (See Exhibh "C", Deposhllln of Ruelle W, Wlllfe. pp, 33-34 and
EXhibit "0", Deposition of Joyce Heckendorn, p. 16.) By way of further response, Defendant admits
I
that Plaintiffs lost 220 gallons of fuel only a few dan..ll&r Ihe Defendants had Installed the hot water
heater 011 January J, 199~, (See Exhlbh "H", Deposlllon Ill' Keith A, Mallnosky, p, 61.) In addhlon,
the record clearly Indicates that Defendants vlshed the HerrlnlllOn home on January 9, 199~ for
allother complaint of an 011 smell and sem an ul1lrained employee who again failed to check the
service lines. (See Exhibit "E", Deposlllon of Edward J. L1shlnsky, pp, 35-39)
WHEREFORE. Plaintiffs Thomas K, alld Judy L. Herrlnlltlln, respectfully request that
Defendant's Motion for SUlIunary Judgment be denied.
Respectfully submitted.
Date: May 27, 1998
Salzmann & DePaulls, P.C.
B,
. Brya ,e
Attorney o. 6193~
NonnaJ, Lukacs, Esquire
Attorney ID No, 80135
Attorneys for Plaintiffs
1~80 Gabler Road
P.O. Box 276
Chambersburg. PA 17201.0276
(717) 263.2121 .
2933 Nonh Front Street
Harrisburg, PA 17110
(717) 232.9420
..
CERTIFICATE OF SERV~
I hereby cenlfy that I have. this -1:- day of J tL~~. 1998, senl a tnle and
correct copy of the foregoing Plaintiffs Response 10 Defendant's MOllon for SUnunllry Judllmenl via
Unlled Slales Mail. tlrsl class, postage prepaid, addrcsscd as follows:
Ralph D, Oylp.r
Law Officcs of Karen Clark.Oyler and Ralph D, Oyler
31 South WllShlnlllOl'I Slreel
Oeuysburg, Pennsylvania 1732S
Salzmann & DcPaulls, P,C.
BY:~N?-. ~ rJ11 PtlCO
Norma 1. Lu s. Esquire
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EXHIBIT "A"
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EXHIBIT liB"
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HUSHIY'S MILL, +n IIATON WAY
WIST CKI5T'D. P!NNSYLVANIA 193110
(610) 410-43411
] '.'
'AOIIIHll.I COVD 8HD'l'
'fth
Q, arvan 8allllllUU\! ..q.
Bduann . DePaul1., P. C,
717 283-0883
, ,
'AX '1
I'IlOK I
W1111.. J. Whitl
Willi.. J, Whitl ~.oo1atl'
III
Tho..a K. and Judy L. Herrin,ton v. Aero Oil. Ino.
Our '111 .200
DAft t
January iii, li98
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. air PAQl8:
5 lnolud1n' OOVIl'
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W~Q",;~~(~te.
HEI\SHEY'S MILL, 4'U !ATON W^Y
W1!STCH!SnI\. PI!NNSYJ.V^-NIA 19380
(610) 4Z9.4349
January 7, 1888
G, Bryan Sal&mann. a_q.
Sall..nn . DePaulta, P,C.
le80 Gabler Ro.d
p, O. Box 2'16
Chamberebur.. PA 17201-0276
lI_t 'rhOlla- K, .nd Judy L, K8rrtniton y, A.rl) Oll,Ino.
O\.lr 'Ha .200
..
Dear Hr. S.lz~.nn:
I hav. read the followin. lIateriale whLeh veu sent to ~. on
the above-rofereneod c.... Thie ooncerne oLl oontamLnatLon at
the H.rrLn.ton roaid.nee at 6 Wood Lone, Carli,l.. PA. alle"dly
cau.ed by ne,1L.eno. on the part of Aero aLl CoDpanv, Inc.
l) CoDplal.nt
2) Plaintiff'. lIe.pon.e to Defendant A,ro Oil. Ino.',
Naw Hatter
3) Depo.LtLone - TOil ArmacOet, Keith Halino_kv, R,W,
Wolfa
4) Defendant'. Anawa..' to Interro.atorL.'
e) photo,r.ph.:
Harrin.ton'e reatdonca on Au,uat 14. 1996
Out.id. Oil Tank - Au,uet e, 1997
Hot W.ter Heater - Au,uat, 1998
Crawl Spaca - AUlU1t 11, 1998
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Crawl .pao. .nter~n, near furnaoe- AUIU.t 1098
Cop~r tub~n' that mQvee lne~~e wall - AUlUat 1998
0) D.p.rt~ent ot Inv~ro~.ntal Prot'Qt~on Report.
I hay. r.vi.w.d photo.raph. of the oil line. whioh co.. from
the out.ld. tank throu.h the wall and into the orawl .peo. ar.a
.oin. to the two oil-tir.d appllano.. in the heater room in the
be.ement of the home. I am .t a loee to und.retand the
hapha.ard, oarel... mann.r in whioh th..e lin.. hAve been
~n.tal1.d. Th.y oertainly have not be.n inetalled in a
prof..elonal .nd workmanllke manner.
It ia olleto~ar~ when in.tal1~n. a new applian08, .uoh .. a
hot water heater, to in.tall a new all line or, at the very
l..et, to cheok the lnte,rltv of the ex1etin~ oil i~ne. Thi. can
. .
b. done quitt eimply with. liro.atic hand pump, a pictur. at
whioh t am enolc.in.. T.hia i. a aimple and efficient way of
deter~inin. the inte,rity of the l1ne. Aero Oil Company
technioiane f.iled to replaoe the linee or even check the
inte.rity of the 11nee.
It would ap~ar that the f1ret eervioe person anawerin, the
oell for oil odor. at the H.rrin,ton r.sidenoA had cheoked
8uperflolelly for .ny cause of oil amella .nd found only a .mall
l..k at the flttln,s of the new appli.n08. H. ti,htened the
flttln... put down Oil Dry and .prayed an oil-...kin. deodorant.
Thi. loo.e fittln, wa. the r..ult of the improper lnetallation
whioh h.d taken pl.oe only a few daye b.fore.
A .eoond A.ro ..rvioe..n r..ponded to a eeoond oall for
odor.. H. unoovered the oil line ~unnin, in the ~ravl epaae area
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and diaoova..ad a hole ~n the 011 llne.
If the t..tin., which 1 ..ntion.d a...lla.., had be.n dan. bV
the ~n.tal1er, the ho1. ln tha 011 Iln. would have b..n
dl.oova..ad and the 011 Iln. would have ba.n ra_lao.d at 'hat
11111I..
tY\aInr ItR Tn..
If the prop.r proo.dur.. had b..n followad at tha tl.. ot
the In.taUation of the dOM.Uc ~lot wata.. appUanoe, the hol.
would have b.en repaIred, or the 11n. would h.ve b..n ,.p1aoad.
A. a ..aault, the amount of lQa. and d..... to the propertv wuuld
have b.en avolded.
It alao would appear that the A.ro ..rvlc. t.ohnlolln dld
not follow and waa not ad.quatelv trained ln the .tanl\iard
proo.du.... whloh ar. follow.d ln the lndu.trv.
Aleo, thara la an Inh.r.nt raluotano. on the p.rt of ..rv~oe
t.ohnlolana to '0 Into orawl 'PIO.'. Thl. -.v heY. been the
r...on for the A.,o teohnlolan fall In. to prop.rlV tnveltllat.
the .ouroe of the 011 ...11.
It 1. -v oplnlon th.t the A.ro 011 OOlllpanv rap..ea.ntltlve.
f.ll below the r.qulr.d .tandard of oar. ln the Indultrv In
fal1ln. to p..operlv lnv..tl.ate the .auroa of the 011 ...11., and
In thelr taUur. to ..ap1ao., or at 1..., IIh.ok the Int....Uv of,
the 011 I1n.. whl1. In.tal11n. the hot w.t.r h.a'.r at the
Harrln.ton ra.ldanoa.
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COM~ONWJALTli OF PIN~Yl.VANlA
COUNTY 0fI1 CUIIIDU.II' ,
0'-2-01
Dl__
.~ >>, C:OUIaI.
- I.A.IT wncca - c:cmaD01:7SZ
1 c:ouaft01:7SI .QtJUJl
om:.%SLI, fA
'_1'717) 2.0.11I14 170:1,3-0000
4
CIVIL ACTION
MHm . IARING NOTlC!
r. _" -.......
ADO OXL co
IU " .xCIII IT
CAlLIILI, 'A 17011
L
VI,
CIl'1NDNlTI _1!llIll~-
IUuIHClTOlf, ftOIIU ~, I'r Ax..
, WOOD t.Ad
CAlLISLI, 'A 17013
L
Oockll Nil,: C:V-00001I02-tIS
OlllFUldI10/01/U
..
TJlOIIAI 1:. DU.:INGTOK
I WOOD LAID
CAlLtSLZ, fA 17013
A civil complaint hu been nlld aglinll you In thl ebOVI clptlon.d CUI, A hilling hu bien III In this miltII' lor:
atl:
915
!hOO AX
lOll T
lAST "IHO - C:01:7lTlO1:7I.
1 C:01:7lTlOOII IQOAlS
11ml:
. .
NOTICE TO DEPENDANT
If you Intend to entll' I dlfellM to thle complllnt, you Ihould .0 notify Ihll ofIIOIlmmedllt.ty It the Ibov.
phonel!umbll'.
You mull ,pp'.r It the h..rlng end pr..ent your defln... UNLlII YOU DO, JUDClMINT WILl. BE ENTERED
AOAIN8T YOU BY DEFAUI.T,
II you have a claim agllnlSt thl pIaIntlII which II w~hln dletrlct luetlcejurlldlctlon and which you Intend to lIIIIert
Blthe hell1nQ, you mUll nil ~ on I complllnt fonn 1\ thle ortlce IlleNlt Itvl (5) dlyl bIforI thl del lat lor the
hilling, If you hlVI a clllm Igllnlt thl plllntlll which II not wlthll1 dlll1rtct luetlCllurtadlctlon, you mey request
InIonnltJon ITom thll oIlICI u to thlI procldur.. you mlY follow,
If you Ire dlMbled Ind rlqulre IIIIItlnoe, pi.... contllCllhl MIII'eterlll Dlltrlet offiCI It the Iddr...
lboYe.
DAD >>.~I 10/0l/tll
~3lH-I4
. ,
~TH Oil PENNSYLVANIA ,
couHrv OIlLCUIIIIIU.AND -',
I ...._Il..
I Ot-2-01
DI_,,-
PAULA " COIUUAL
. . -- lAST WING - COt1RTHOUSI
1 COt1RTHOUSI SQUARE
CARLISLE, PA
....... C7171 240-6564
.
CIVIL COMPLAINT
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Aero 011 Co.
816 II. Biah l$t
Carl1dl. PA 17013
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17013-0000
VI.
DII'lINDANTI . ___
r nlOUs & Judith Berrinlton
6 IIpod Llnl
Carlilll, PA 17013
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OooIcet No,: CV-'02-9'
Oal. FI/ldl 10-03-9'
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AMOUNT
F1UNQ C0811I . 4 'I. 00
ellMNO COITU 11. 00
TOTAl. ." . 00
DATE PAlO
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TO TliE DEFENDANT: :'18 above nll/l1ld p/lIlntm(s) ukejudgmllrll egllnet you lor S 70',43 together wtth
COllI upon !he lollowing cllllm (OMI IInltS mustlnclud. clllllon 0/ the etatut. or ordinance
1IkHt1d):
For parts and labor purcha.ed 1-12-9' and heatins luel. purchaald
1-16-9', 2-7-9' and 2-28-95,
'.
I, Tho... A. Armacolt, Diatrict ManaSlr V.r1fylhltth.tlct..etforthlnlhlecompllllnt....tnJ.lI1d
cOrTICIlO th. bill of my knowtedg., Infonnllllon, and bel/.I, Thllllltem.nf II mad.1Ubject 10 lhe penlJll.. 01
S.ctlon 41104 01 the CnmltS Cod. (f 8 PA. S.CA 549(4) relat.d 10 unawom IIllaItICItlon 10 1UIhorttI...
3. Q . .,o-c:.J 0..... a............-. __ ..:t.
(CMgr-..,. of Pi.... Of ~..,Q
=~
-...:
~.I,p~_t
IF YOU INTEND TO ENTER A OEFENSE TO TliI6 COMPL.AJNT, NOTlFY Tlil6 OFFICE IMMEDIATELY AT THE ABOVE
TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU 00,
JUDOMINTWlL1. 8E ENTERED AGAINST YOU BY OEFAULT. .
"you ~ a clalm Ig8lnIt the plalntII wtIlch Is within dIatrfct juIdc:e /UrtIcIk:lIon and which you Intend
to aIlIIllt the heartiIg. you rIIUIt lie . on a compllllnt Iorm It this oIIIce It Ie8Il 1M (5) daYI baforw
the dill. let for the hearing. II you have a claim agllnlt th. plaIntlIr which Ie not wIIhi1 dIIIriot juetlce
jInclIctJon, you may ,~ Informatlon from IhiI oIIIce . 10 the pI'OCIdUTII you II1Iy 1oIIow. If you
.... dleabllld 1I1c1 require -.11111I, pIeae oontact the Mallleterlal DIelrtOt 0fII0I II lhe acIcIr_
above.
N:1I'C ......
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1 would not want to pay for a good deal of time that was
2 consumed unless the customer asked for it.
3 Q So
, A In other words, the serviceman is following his
5 directions, the directions that are given to him.
6 Q By the customer?
7 A That's right.
B Q Okay. So what you're saying that it .. it
9 would be dependant upon the customer to identify the
10 problem then for the technician to work on only what's
11 been identified by the customer?
12 A It'll difficult to answer that insofar as very
13 many, very many servicti calls come in just saying no heat
14 where there'S no indication of what the problem i,. And a
15 serviceman goes out and, of course, and -- and looks the
16 equipment over and determines what needs to be repaired
17 and follows through on that.
1B Now, going beyond that, he would not have an
19 obligation unless he's called for a particular purpose.
20 Q Okay. When you say the equipment that he'd be
21 looking at, you use the term equipment?
22 A Yeah.
23 Q Does the equipment of a home heating oil system
24 include the storage tank, the supply Une, the return
25 line, the burner, the furnace? Isn't that all encompassed
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1 in a home heating .ystem?
:2
3 right.
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It'. all part of . home heating sy.tem, that'.
5 imagine you do, but do you know what a -- the K Pactor i.?
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Q
Can you -- do you know what a -- I would
A
Ye..
Q
Okay. Can you explain to me what the K Factor
8 what a K Factor is?
9
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10 oil Ule.
11
Q
K Factor is the relationship of temperature to
Okay. And it's put in terms of heating degree
12 days and gallonsl is that right?
13
A
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14
Q
Right, right,
And the K Factor determines it you're on an
15 automatic fuel delivery? 'rhe K Pactor Ilhould determine
16 when you get your next fill up?
17
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18
Q
Right.
So if you have real cold days, you're going to
19 be using up more oil?
20
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n
Q
Right,
Now, with Aero Oil Company, Keith Malinosky, I
:22 believe his te.timony was that it'. all on a computer, on
23 automatic deliveries?
:24
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:25
Q
Right.
There'e a computer program that churns that
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EXHIBIT "D"
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In The MaUer Of:
Thomas &- Judy Herrington v.
Aero Oil Company
Tbomas K Herrington
Marcih 9, 1998
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Key Reporters
1300 Garrison Drive
York, PA 17404
(717) 764-7801 FAX:: (717) 764-6367 '
Or/glnnl FII, 1!3998.~nl. 35 P,'8"
Mln.1J.s~rlp/~ FII, 10: ]fJ9884813 I
Worcllndex included with this Min-1J-Script.
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DEPOSITION SUPPORT INDEX
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OIRECT TO WITNESS NOT TO ANSWER
4
pagll Lioll Page Line page I.IiOIl
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(None)
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REQUEST FOR PRODUCTION OF DOCUMENTS
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Pagll Lioll Page Line page I.Iine
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(Nooe)
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15 QUESTIONS MARKED or CERTIFIED QUESTIONS
16 Page Lioe page Line Page Lioe
17 (Nooe)
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1 @WllLATION
2 It is hereby sti~ulated by and between counsel for
3 the respective partiea that sealing, certification and filing
4 are hereby waivedl and that all objections except as to the
5 form of the question are reaerved to the time of trial.
6 THOMAS K. HERRINGTON, called as a witness, b~ing
7 duly sworn, t~stified as follows I
8 DIRECT EXAMIN~TION
9 BY MR. OYLERI
10 0 Good morning, Mr, tj"lrrington, My name is Ra~ph
11 Oyler and I'm the attorney that r~presents ~ero Oil company.
12 I'm going to be asking you some questions today concerning
13 the lawsuit that has filed against ~ero Oil Company. Okay,
14 Let's begin by having you state your name and address for the
15 record, please.
16 ~ Thomas Herrington, 6 Wood Lane, Carlisle,
17 Pennsylvania,
18 0 And what's the zip code?
19 ~ 17013.
200MI.'. Herrington, you understand what this is, and
21 the stenographer is going to be taking down my questions and
22 your answers to my questions so you have to verbalize your
.23 responses. You understand that, sir?
24 ~ I understand.
25 Q Are you taking any medication today or do you have
~
1 any physical problems that would interf~re with your ability
2 to re~all the events?
3
A
o
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No,
And one othdr ~hing that I ask all my witne~se. to
5 do is that you would wait un';11 IIlfter I've completed m)'
6 question before you answer because the etenographer hi"
7 difficulty if we bo~h talk at the same time, Okay?
8
9
A
o
I will,
.
And if at any time durJ.ng the coursP. of this
10 deposition you need to take some time to speak with your
11 counsel in private or if you need to take a break for
12 physical reasons, please just let us know. Is that okay?
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A.
Okay.
o
Howald are you, sir?
A.
Thl-rty four,
Your birth date, sir?
o
A.
June 10th, 1963.
And your marital statlJs?
Married.
o
A.
o
A.
And what's your spouse's name?
Judith.
o
A.
Were YOll married as of 1994?
'ies.
Q
~ld what is your occupation?
Supervisor of design, highway engineering firm,
A.
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about Oecember the L9th?
'" Of '86, You said '96,
0 Did I?
'" That's why I - -
0 I'm sorry, That was my error. I'm sorry about:
that. Now we got that straightened out. Okay.
And you lived in the property for approximat~ly a
year prior to purchasing ~tl is that about right?
'" Yea,
o And who lived there with you at that time?
'" My mother-in-law.
o Is your mother-in-law Doris G. Gohn?
A Yes.
o Has it be~n you~ personal residence since acquiring
title on December 19th, 1996?
A Yes.
o You've never lived anywhere else between '86 and
thl!! present time?
A That is correct.
0 And have you made any alterations or additions to
the property since you acquirlld title to it in L986?
A Yes.
0 Can you tell me what it was that you have done?
A Alterations, all the alterations I've done or just
major?
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Q So the only major change you've made to the house
is the addition of the porch on the front here that is
readily visible on the photographr is that correct7
A 'rhat' s correct.
Q Now, was the heating system that w~s in place at ~
Wood Lane, carlisle at the time that you took possession of
the property in 1966 t.\.e same heating system that was
servicing the property in 19947
A Yes,
Q Was the same oil tank in place in 1986 as W8~ in
place in 19947
A Yes.
Q Was the same oil furnace or boiler in place in 1986
as was in place in 19947
A Yes,
Q And the oil lines, the supply and return line that
serviced the boiler from the oil tank, was that -- were those
the same lines that existed in '86 as existed in '947
A I would bel ieve so. I don't know. If they were
replaced by a technician during that period, I'm not aware of
it.
Q You've lived in the house from 1986 through 1994;
correct?
A
Q
That's correct.
To the best of your recollection, you don't recall
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to lay Bernething else?
A No.
o Do you have a specific recollection of oalling Aero
Oil Company and asking them to inspect or service the furnace
oil tank or supply and return lines between January 1st, 1990
and Jecember 25th, 1994?
A A specific recollection, no, but I'm sure it was
cleaned during that periqd or scmething just routine
mbintsnance or something to that nature.
Q But you don't have a specific recollection of
calling and requesting that, is that fair?
A No. That's fair,
o From January 1st, 1990 through Dec~mber 25th, 1994,
did you personally perform any eervice on your hot oil, your
home heating oil furnace, oil tank or the lines servicing
those appliances?
A No, What's January 1st, 1990? You're just
picking that date?
o I just picked a date, I didn't want to go back to
1986 because I figured prior to 1990 your memory was not that
great. That's why I'm going back no more than five years so
I'm trying to make it within a reasonable period of time for
your recollection. That's all.
A Okay.
o So there's nothing specific about January 1st,
1:2
1990. That'i11 a date that I qhou. Have you ever pltrscnally
performed any service or repair service on your furnace or
upon the oil tank or upon the lin~8 that serviced the
furnace?
A No, I ha'le not,
o So that's just something that you personally don't
engage in, is that a fair statement?
A That'e very fa~r.
,
Q Now, let's talk about the incident at issue
according to your complaint, According to your compla~nt,
you indicated that you called Aero Oil on December 25th,
1994, Do you recall that, sir?
A Yes, I do,
Q In fact, in paragraph three of your complaint, you
say at or about December 25th, Plaintiffa contacted DeEendant
regarding the smell of oil in the Plaintiffs' home locat~d at
6 Wood Lane, Carlisle, Cumberland County, Pennsylvania.
When you called, that is r.hristmas day 19941
correct?
A That's correct.
Q Did you actually speak to Aero Oil Company or did
you speak to an answering service for Aero oil Company? Do
you recall, sir?
A Both. I called and spoke to an answering service.
The answering service had Keith Malinosky or however y'JU
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pronounce his name, service technic ian called me back from a
Christmas party that he was heving,
a Let's talk about first of all your phone
convl!lr~ation with the answering service, Approximately what
time of day did that phone call take place, if you know? I
dOI"t need an exact time. Was it morning, afternoon,
lftvenlng?
~ Evening.
a It was in the evenlhg?
A Yeah.
a And how long was the conver.sation?
A Two minutes, somewhere in that neighborhood.
a And did you talk to an answering maohine or to an
actual person?
A A person.
a Do you recall did that person give you her name?
,~ No,
La a What if you rec~ll, sir, did you say to her or to
L9 him? I don't know who it was.
20 A It was a female. I told them that there was a
21 strong smell of oil in my home and it wasn't there a couple
22 of hours ago and I know something was wrong and something
23 needed to be checked.
2" a And what did that person say to yoU?
2S A They said that they would try to contact one of
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their technicians and have someone get back to me,
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Someone did in tact get back to you?
Ves,
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That same evening?
Veil,
Q
And that was Keith MalinoskYI is that correct?
A
o
Yes.
And please tell us what you told Mr. Malinoalcy that
9 evening on the telephone,
,
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10
A
Same thing I told the anawering service that there
11 waa a strong amell of oil in the home and that it wasn't
12 there a couple of hours prior, When I went upstairs and laid
13 down, I came downstairs -. well, my wife called me downstaira
14 and aaid there waa a strong amel.l, and I could smell it when
lS I went downst~ira and aomething was d~astically wrong.
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0 Did you go and inapect the oil furnace that
evening?
A Ves.
0 Did you do that before you called the anawer l,ng
service?
A Ves.
a . And did you see anything on the floor? Did you see
23 any oil leaking on the floor or any water leaking on the
24 floor at that time?
2S
A
There was a .. I'm not sure whether I checked
14
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1 before the answedng service or between the anllwering service
2 and Mr. MBlinosky first of all.
3 Q Okay,
4 A But there Wall -. when I was talking to Keith, I
5 told him I went down and I looked around and I couldn'L find
6 any, you know, what it could be, and I was just describing to
7 him the area, ! told him that there was about an e ighl:. inch
8 circle of '/later on the floor by the hot water heater, just
~ trying to be his eyes, not tp.lllng him what W;lS wrong,
10 Q And what did Mr, Malinosky sayar. do at that point?
11 A He said he would come out and take a look at the
12 property,
13 Q And did he, in fact, come out and take a look at
14 the property?
15 A Yes,
16 Q How long after the telephone conversation did he
17 come out?
18 A I'd say within two hours, something in that
19 neighborhood.
20 Q So it was that same Christmas evening/ l.s that
21 correct?
22 A That's correct.
23 Q Now, I believe you told me that at some point in
24 the evening, you can't remember for certain whether it was
25 bef.ore you called the answering service or after, you went
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and looked at the area where the furnace and water oil were
hauled, is that correct?
A That's correct.
Q And you noticed a puddle of water near the water
heater, is that correct?
A Yes.
o Do you ~ecall if you had ever seen a puddle of
water near the water hea~er prior to that date?
A No, I don't recall ever seeing it,
Q Did you regularly check the water heater or the
furnace of that area or something you pretty much left go?
A I pretty much left it alone.
Q So you coul.dn I t say that you had checked it in the
week previous and that there was no pile of water?
A No, no, I couldn't,
Q Puddling of water. It wouldn't be a pile of it,
would there. Now, Mr, Mal inosky comes out Christmas evening.
Did you personally speak with him when he came out?
A Yes.
o Tell us what you told him at that meeting.
A I said, you know, you can smell the oil in the
home. You know, something is wrong here, and we went down.
We looked around. He saw the water also and discovered that
there was 0 leak in the hot water tank which was just
recently installed by Aero and said that maybe the water may
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be mixing with oil that wu all the floor before.
o You uy that the wate!:" h,1ater wall t'l!!cently
installed, How long prior to Mr. Malinolky coming to the
property on December the 25th, 1994 had the hot water heater
been installed?
I,
A r would ha'/l!! to chl!!ck my records. It was _ _ it was
etill under warranty so I would Bay within two years,
something to that neighborhood,
Q So it wasn't something that was done like in the
previous month or somethilg like that?
f'
:1
A No.
Q Now, Mr. Malinosky and you went to the area wherl!l
the furnace and water heater are located, corrl!!ct?
A That'a corrl!!ct,
Q And you looked around together, is that correct?
A That's correct,
Q What did Mr. Malinosky say to you that evening, if
anything?
A Just that, you know, he Wlls more worried abc'.lt the
leak. You know, the tank was leaking, had a leak to it. Hp,
said he couldn't get a replacement tank that evening, that he
would have to order one, and I was going on vacation the next
morning 80 he 8howed me how to shllt down the tank and
everything so that the leak didn't continue while I was on
vacation, and he said 8S soon as I get back from vacation
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1 that he would replace it then.
2 Q Prior to December Z5th, 1994, had you ever smelled
3 heating oil in your home?
4 A Not to the extreme that it was that day and
5 continued to get worse over the next 17 dayg,
6 Q You say not to the extent, Prior to D~cember the
7 25th, was there a constant smell of heating oil just not
9 "ry
9 A No, no, it would be after a cleaning or ran out of
10 oil or something like that, you know. Any time there would
11 be service or anything like that done there would be a slight
12 odor but it would be gone within a couple of hours,
13 Q So it's not something you noticed on an ongoing
14 basis?
15 A No, it is not,
16 Q And Aero oil returned on January the 3rd. 19951 is
17 that right?
19 A That's correct. I called them the evening of
19 January 2nd when I returned,
20 0 And whom did you speak with when you called at that
21 time?
22 A I believe it was the answering service again, and
23 someone got back to me. I think it was Keith again got back
24 to me and told him that, you know, the smell is -- I mean,
25 over this amount of time that the water wasn't leaking. The
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tank'. been shut down so it definitely wasn't the water. I
.aid the .mell in the hOllse now makes Y'Jur eyes wat!lr to
the
Q Let me make sure I understand something because I
wasn't sure about something. You called the answering
service in the evening of January the 2nd, is that,correct?
A Yes,
Q That would hav, been the day that you returned from
vacaticn?
A That's correct,
Q What did YOll say to the answering ser.'llce?
A Said that I was scheduled to have a tank replaced
and I just returned home and the smell was horrible and I
just wanted to talk to somebody to make sure they knew that I
was home and thl.s is going to be done as soon as possible,
Q Did somenody call you back that evening then?
A Yes, I think it was Keith.
Q And you believe it was Keith Malinosky?
A That's correct.
Q And what did you say to him at that time?
A I told him also that the smell was horrible and
that we had returned home and we definitely need service.
Q And what did he say to you, if you recall, sir?
A He said that the tank was in and he'd be out first
thing in the morning.
19
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A
Q
A
Q
7
, 2Q
The following day?
Yes.
And was he, in fact, out on the following day?
Yell,
1\
WeX'e you pruent when he came on t,he following day?
Yes.
Q
Now, was anybody with Mr. Malinosky when he came on
a January the 3rd?
9
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Yes. Ed Lishinski I believe his name was.
A
Q
A
Anyone else?
No.
Q
And who was present at your home?
Me.
A
o
A
Was your wife present at that time?
I don't believe. I think she went to work.
Q
A
Was your mother-in-law still present?
I don't recall.
Q
Now, when Mr, Malinosky and Mr. Lishinski came to
19 your home that day, did you have mny discussions with him?
I'
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21
22
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o
A
Yes.
And what did you talk to him about that day?
All kinds of stuff there. They were there most of
23
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the day I mean.
Did you discuss this smell that you said you hed .
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2S noticed?
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1 A Oh, definitely, yeah. They could notice it at that
2 point too.
3 Q Did they say anything to you about it?
4 A They said that .. they just kept coming up wi~h
5 different things that may be causing it, you know. They
6 replaced the hot water heater. !!'irst of all, while they were
7 there and brought the tank out and had the help there and
8 everything and replaced ~he hot water heater which was
9 damaged on the way and all kind of other atuff also, bu~
10 that's besides the point. Then I was telling them thae the
11 smell cannot be coming from the water becauae there hasn't
12 been any water there since December 26th in ~he morning when
13 I shut it down.
14 Q You said that to them?
15 A I said to them the water heater has been shut down,
16 it couldn't have been leaking and there's no water on the
17 floor now. I said that can't be the source of the smell
18 because now the smell is a lot worse. And he said, well, it
19 might be your flue also so your chimney. He said I'd
20 recommend we clean that while we're here.
21 Q So you first noticed this strong smell of home
22 heating oil on December 25th, Christmas day; correct?
23 A That's correct.
24 Q And it was very strong at that time. Is that
25 correct?
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A Vel.
o Very noticeable?
AVes.
Q Between the 25th of December and January the Jrd
when the water heater was replaced, the water heater had been
turned off; is that correct?
A That's correct.
Q Nobody had beeq in the house during that period of
time?
A With visitors in and out. Nobody using the het
wat~r heater if that's what you're asking.
Q Because ycu were vacation during that period of
time.
A That's correct.
Q Between December the 25th and January the Jrd, did
the smell get worse, get bett'!lr or stay the Sllme?
A Much worse, much worse.
Q Was ther'!l any.. on January the 3rd, 1995 when Mr.
Lishinski and Mr. Malinosky came to replace the water heater,
did you go back into the area where the furnace and water
heater were located with them?
A Ves .
o Did you notice any oil or anything on the floor at
that time?
A No.
. .
1 0 Approximately how long were thoty thotre that day?
2 A I would guess somewhere in the neighborhood of six,
J seven hours, something like that.
4 Q And when was the next time that you called either
5
6
7
8
9
10
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13 Q Now, who did you speak with that day?
14 A That was probably - - that was in the evening. It
15 was probably the answering service algo.
16 Q And what did you tell the answ~ring service that
17 day?
18 A That the smell was horrible, and I -- the whole
19 family was, you know, had watering eyea and headaches, and I
20 got duwn in there to see if I could find anything at all that
21 could be causl.ng this smell, and I looked on the hot water
22 heater, and one of the fittings when they put up -- hooked
23 the new water heater up, there was oil dripping from that.
24 Q So that day you went down prior to calling the
25 answering service and looked at the system you.rself?
Aero Oil or the answering service?
A Was that on the 3rd. I guess it was the --
probably the 6th I guess.
\) The 6th of Jan411ry?
1\ Yes.
0 And did you personally make that telephone call
that day?
A Ves.
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A Yes, I did.
o And had you noticed some oil leaking from the oil
heater at that time?
A From the hot water heater, yes.
o From th~ hot water heater, I'm sorry, yes, And was
there any oil pooled on the floor beneath the hot water
heater?
A Yes, a small probably six inch diameter spot.
o Between January the 3rd, 1995 and January the 8th,
1995, did the smell get worse, stay the same or get better?
A WOl'se .
o It was worse still?
A Yes.
Q And did you inspect anything other than the hot
water heater and the furnace when you yourself went down to
look at thingB prior to calling the answering service on
.7anuary the 8th?
A No.
o You didn't go down and look under the crawl space
for example?
A No, I did not.
o Did you go out and look at the home heater oil
tank?
A No, I did not.
o Did somebody call you back from Aero Oil that
24
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o Only Mrs. Qohn?
A Right.
o Is Mrs. Qohn still living?
A 'te..
o Does she atiJ.l reside at Ii Wood Lane?
AVes.
o When was the next time that you called Aero or the
answering service?
,/\ I gueSll it would have been January 12th I be:' ieve.
Q And who did you talk to at that time?
A I spoke to the answering service once again.
o What promptt!d you to call the answering ser'l:.ce at
that time?
A I was at work. I was working overt ime late in the
evening. My wife and kids got home, ~nd she called me up and
said, you know, there's something realiy bad. The smell is
even worse than it was before and there's also no hot water
and no heat in the house.
o Okay. And so at that point you called whom?
A I called Aero oil'. number and got the answering
service.
Q So about what time in the night would th1.s have
been? Do you recall?
~ I guess around 6, 7 p.m.
o And this time again what did Y01J tell the answering
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1 service?
2
A
27
I was very upset and was screaming at the anlwering
3 service that something hu to be done, that they've been out
4 several times and "till haven't even started to lessen the
5 smell, and a8 a matter of fact, it's getting worse, and noW
6 I'm also on top of all of that I'm out of oil. I must be out
7 of oil because I have no heat and no hot water.
13
\)
A
9
10
11
12
13
14
15
And did somebod~ from Aero coll you that evening?
Yes,
Q
Who?
Keith.
Did he speak with you?
A
Q
A
Q
A
Yes.
And what did he tell you?
I was at work. He called me back at work, and I
16 said the same thing to him that I said to the answering
17 service, and he said, well, you can't be out of oil. He said
18
19
I just filled your tank on Friday,
When he r~placed the hot water heater, is that when
o
20 he filled your tank?
21
22 between.
I,
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24 Aero Oil?
25
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No, I think Friday was January the 6th, It was in
A
Q
Did anybody come to your house that evening from
A
Yes.
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And whu came?
Keith and Ed.
They both came to your recollection?
'lea. Keith was ther~ first I believe and then Ed.
o
A
':l
And did you meet them at your house that evening?
They were I:ht!lre before I was.
So when you arrived, they were already working on
8 the problem?
9
10
A
Yes.
o
And what did you see when you got there? Did you
11 go and talk with Mr. Lishinski and Mr. Malinoeky when ycu
12 arrived home on January the 12th?
13
A
Ves. They said that your tank's compl~tely ~mpty,
14 and, you know, all you.r oil is leaked out, and by that time
15 he had already fcund where the leak was in the crawl space,
16 and ha laid, you know, h~ had already called his boss I guess
17 and told me I had to .. either he or myself had to make a
18 call to DER and report this immediately to DER.
19
o
Had he taken out the line beneath the crawl s~ace
20 when you arrived home?
21
22
23 him?
24
25
A
Yes, or waa in the process of taking it out.
Oid you have the opportunity to examine that with
o
A
Yes.
o
What did you see?
211
29
1 A There was two holes on the incoming or I don't know
2 what line it was whether it was incoming or outg'Jing.
3 There's two holes in'the line about the size of BBs, maybe a
4 little bigger.
5 0 Did Ed Lishinski or Keith Malinosky take that
6 portion of the line with them when they left that evening?
7 A No.
8 0 What happened tp it? Was it left at your house?
9 AVes.
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18
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20
21
o
A
truth.
o
And what did you do with it?
I'm not sure where it is right now to tsll you the
You made a claim with your homeowner's insurance
policYI is that correct?
A That's correct.
o And I believe shortly after January the 12th they
sent a representative f.rom Allstate out to the property I is
that correct?
A
o
A
Yes, I believe was there the next morning.
Did you meet with him and speak with him?
No, I never met him,
22 0 Do you know who did?
23 A I don't think anybody met with him. I don' t think
24 anybody was home.
25 0 Did you ever speak with him?
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A Over the phone I believ~.
o Do you kncw whether he had the opportunity t;o
examine the piece of pipe that was removed by Aero Oil
Company the evening before?
.~ Ves, he said hll was the r'!l and photographed it or he
might even have it. I'm not sure.
o Vou don't know whether he took it or not?
A No, I don't.
Q You know that you no longer have possession of it,
is that correct?
A I don't belJ.eve I do.
o Have you lcoked for it at all?
A Not hard. I've looked arolmd for it, yes, but I
don' t know,
o In the months immediately prior to January 12th,
1995, uy like from October 1994 through .7anlJary of 1995, had
you noticed any increase in oil consumption for your home?
A No. I didn't -- I didn't notice that there wasn't
any either, I just didn't -. I typically don't look at that
kind of stuff.
o Have you -. do you still notice the smell of oil in
your home at the present?
A On nlost days like today, yes, or when we're awO\y
from the home for quite a while, I guess it's not even the
moisture it will come .. we'll come back and'I guess we get
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used to it.
o Has the smell gotten any better since January 12th
of 1995 when the leak was finally located1
A 'lee,
Q Lot me finish my question. Has the smell gotten
any better since January 12th, 1995 when the leak was finally
located?
A Yes.
Q Has it gotten substantially better?
A Yes.
Q How long did it take before it was substantiaLly
better?
A r would .. it was probably close to a year and a
half to two years.
Q Is your home serviced by a well?
A No.
Q Is there a well located on the property?
A Yes.
o But as of January of 1995 you were serviced with
town water; is that correct?
A That's correct. In January of '95 I had both. To
had town and well.
o And at the present time?
A Now I only have the township water supply.
Q When you say you were serviced by both township and
]2
1 well, what WIlS the purposlJ of the weLl at thia point back in
2 1995?
3
A
They brought city water down the street the year or
4 so before, and they allowed us to .- everybody had wells,
5 They allowed us to keep your well with an outside hook up so
6 we'd use the well water to fill the swimming pools and wash
7 cars and that kind of stuff.
15
You wer'!ln't using it for personal consumption or
,
.
9 cooking for example7
16 aware that I would have to disclose the spill if I was to
17 sell the property so I assume that if I was to disclose that
18 that not many people would accept the purchasing.
19
20 of 19957
2l
22
;23
24
No.
In your complaint you've pled a loss of marke~
12 value to your home as a result of the leak.
13 Have you e',er had your property o1ppraised for loss
14 of market value?
a
o
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A
Q
A
For loss of market value, no. I've just been made
o
Have you tried to sell your property since January
A
No, I have not.
Q
Do you have any plans to sell your property?
I would love to. You looking for a place?
I live in Gettysburg so I wouldn't be making the
A
25 move thera. Were you able to continue living in the house
Q
:l4
1 COUNT'{ OF LANCASTER
2 COMMONWEALTH OF PENNSYLVANIA
5S
3 I, Lorraine !!'rt.ck, a Nctary Public, authorized to
4 administer oaths within and for the Commonwealth of
S Pennsylvania, do hereby certify that the foregoing is th'!l
6 test imony of THOMAS K. HERRINGTON.
7 I further certify that before the taking of said
8 deposition, the witness w~s duly sworn/ that the questicns
.
9 and answers were taken down stencgraphically by the said
10 Reporter-Notary public, and after'flards reduc'!ld to typ'!!writing
11 under the dir~ction of the said R'!lporter.
12 I further certify that the said depoliition was
13 taken at the time and plac'!l specified in the caption she'!l~
14 hereof.
15 I further certify that I am not a relative or
16 employee or attorney or counsel to any of the parties, or a
17 relative or employee of such attorney or counsel, or
18 financially interested directly or indirectly in this action.
19 I further certify that the said deposition
20 c~nstitutes a true record of the testimony given by the said
21 witness.
22 IN WITNESS WHEREOF, I have hereunto set my hand
24
this 16th day of March, 1998.
b-"'";C;;;''' ~
I I 'I '." ,., \' " , l"1,bU.~
.orlU "'I \. ' . .~ tI"
l'lIl I. I "'1..1",1': U '.
,....1 , f'.. . !. "l:)'1
MyC IU'{" ,.' . ,.1 -'
::.....'.......,' . ,. ..-
/U.;h
, Reporter
23
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1 hooked up to the hot water heater.
:I A Right.
~ Q All right. There was oil on the ground
4 underneath the fitting?
5 A A little puddle, yee.
6 Q Okay. Can you qive me so.e indication, when you
7 say it wa. leaking, when you found it leaking, a drop in
8 011, was it ju.t wet and .aturated?
9 A It was just like a seeping little drip. It
10 wasn't running out or anything. It was just it was
11 dripping.
12 Q Was that on the supply line or the return line?
13 A I don't recall.
14 0 Would that have lDade a difference to you?
1!! A No.
16 0 Okay. Well, the supply line would be under
17 pressure, wouldn't it?
18 A There's pressure going back out, too. It's equal
19 pressure.
20 Q Okay. Did you check the -- nnything elBe while
21 you were there on the 9th that you remember?
22 A No.
23 Q Okay. Did you ~se any odor powder? I know you
24 stated that you put a pan under it.
2!! A Yeah, I don't know. I don't think I've used any
'-,
'-..
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:I. odor powder.
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Q
Did you do anything with re.paot to the oil that
.
3 wa. on the ground underneath the hot water h.ator?
4
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A
I wiped everything down with rig. probably.
Okay. I'm qoinq to aall your attention to/ I
Q
6 que.. -- qot to go back to the 9th, .orry. You only
7 replaaed the titting, nothing to tha 1in.. what.oever?
8
9
10
11
13
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A
JUlt It the burner. That wa. it.
Q
You mean the turnace?
A
Not the turnace.
Q
You meln --
A
The wlter heater.
Q
A
The burner tor the water.
Y...
Q
What did you do to the line. there?
I took a .mall piece with two flare nut. and then
A
17 a union and tightened everything up and .crewed it into
18 the -- I torget what you call it -- tlanqe or whatevlr to
19 the puap.
:10
21
Q
Okay.
Tiqhtened everything up Ind there w.. no leaka,
A
32 and I wa. latiltied that I corrected the problem.
23
Q
Okay. In the .etup luch a. the Herrington.'
.
34 where they have hot water -- oil qoinq to the hot water
2!l heater and they allo have oil going to the turnac., can you
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1 .xplain to .. ~ov a line co... in -- the .upply 11n. co...
3 in fro. a tank? I. it one line or tvo lin..?
3 A It'. on. lin..
0& Q Okay.
~ A I don't r.call how it va. all ~ooked up/ ~ut it
6 v.. one line Qomin~ in and one line 90in9 out.
7 Q OkaY. And ver. t~e line. v1.ibl.? w.re the
e 11ne. vi.ible to you at the Herrinqton.', the Dupply 11n..
e and return lin..?
10 A Not the .ntire line., no.
11 Q Okay. T~ere were lin.., I take it, outaJ.de
12 eo.inq ott the tank?
13 A Y...
14 Q Okay. And there were lin.. around the turnac.,
1~ around the hot wat.r heat.r?
16 A Y...
17 Q Do you know where the -- tho.. lin.. join.d a.
18 tar a. the .upply line ie concerned? Th.r. au.t be eo.. T,
19 r1q~t, that occur. at .0.. point?
20 A Yeah. I don't recall the way it wa. .et up.
21 There/. lin.. there. I .aw th.., but I couldn't tell you
22 how it was .et up.
33 Q Where did the line. -- w.re the lin.. rlqht off
24 the turnace and the ~ot vater heater, did they qo
25 imm.diately into the qround?
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A
Boy, I don't know wbere they went in. I don't
3 think they i...diately went in. They didn't 90 i...diately
:J in the 91'ound. They went like unduneath a partition or
" lo.ethif19 .
II
Q
Okay. Did. they perhap. 90 throll9h where the
6 cra"l apaoe "a a?
7
A
I',
I don't know if they both went throu9h there or
8 juat one went throu9h there. I know -- I think the aupply
J!
9 went throu9b that crawl apace area.
10
Q
Okay. Did you ever, any of your ti.ea out thera,
11 did you ever inapect the aupply line? Did you avar inapeot
1:1 the auprly line?
-
13
14
15
16
17 inapact'/
18
.
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A
Entirely?
At any point, any part of the lupply line?
Tba wbole lina?
No, any part of tbe .upply line did you ever
19 Q okay. And. were there other part a of that aupply
I
20 lina that were not under9round?
a1
22
Q
A
Q
A
Juat at the furnaoe and juat at the water heatar.
A
Such aa? Suoh aa what?
Q
Okay. The aupply lin.a cue off the furnace and
23 cue off the hot water h.ater, and you oould aae th...
24
~,
25
A
Ye., ri9ht there.
Q
They wer. not undarqround?
......
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Right th.r. .t the burn.r .r....
And you .a1d th.y w.nt throuQb .o.e type of
A
a
p.rtition?
A R19ht.
a Could you ..e where they w.nt?
A No.
a Did th.y qo like thr~u9b a wall then or --
A They went like under a partition. 1 nev.r even
look.d back th.re.
a Okay. On the January the 12th, I bave 21, 2J and
2K. Were you r..ponsible for any of the work done at the
H.rrinqton re.idenc. on that date?
A II that the day of the l.ak, they di.cov.r.d a
leak?
a It would be January 12th.
A I'. not .ure about the dat... That'. wby.
a Okay.
HR. OYLER I Thi. 11 the date that tbe work was
done.
HR. SALZMANN I Ye., the date that the work was
done I think was January 12th.
THE WITNESSI That wa.n't the day the water
b.ater was put in.
HR. OYLER I HQ. When I .ay the "ork was done, I
..an the day that the lin.. were replaced.
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1 ar -- it yau can't
a A Veah, I think it went under the houae thia way
3 (indicating), I.ean.
4 Q Okay. And you've never looked paat that crawl
5 apace, ia that right?
6 A Back in there, no, no.
7 Q Okay.
8 A I think there waa a tilter over thare ~omewhere,
9 but I never went baak and looked up in the crawl apaCe.
10 Q Okay. Juat bear with me. I want to make aure I
11 qat everything. Are you reaponaible tor calculating the K
la tactor?
'.......
13 AHa.
14 Q That'. either done by computer or by Joyce
15 Heckendorn, i. that right?
16 A I believe .0, ye..
17 Q Going back again to January 9th, you went Qut --
18 and correct .e it I am wrong becau.e I don't want to
19 mi..tat. you. You went out becau.e you were told that there
ao wa. an oil leak at the home?
21 AYe..
aa Q Okay. And, in your experience, when .o.eone
23 tell. you that there'a an oil leak at the home, ahould you
24 inapect the entire ayatem, including the atorage tank, the
--
25 aupply linea, the turnaae and wherever the line. are
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A Okay. In a n~rmal home, exoluding Mr.
Herrington'l home, the tank and the line is run aoro.. the
balement floor. So there', no -- I mean, there'. no
crawling through a hole or digging down in dirt or
anything el,. to examine the line.
The line is right there in your -. in, you
know, in your plain villion. But to .- I guess what I want
to say, go look f~r trouble. I wouldn't think that we
would, you know, go normally looking for trouble.
o Okay. Well, in a normal home, which my home iR
the same way. You got the oil tank. You got the lines,
They go right to the furnace. The service teomlician,
when there's a report of smell of oil, what you're saying
in a normal home they can just see everything?
A Correct.
o But they do look at the tank, and they do look
at the supply lines? That would be something they'd look
at in a normal home?
A Yes.
o Okay. All right, following up on that Exhibit
C. I'm going to ask you just .- the last ha, to do with
the last stapled packet of Exltibit C. It starts with
reason, colon, fumes. You've seen this document before
also I imagine?
AVes.
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1 there'a an oil leak? Ie there any way to u.e that?
2 A I don't know.
3 Q Have you had any training to u.. the It f.\ctor to
4 determine it there'. an oil leak?
5 A No.
6 Q Okay. So, when a 100at10n or a ho.e i. delivered
7 fuel oil, do you ever review the K tactor to determine if
8 there'. -- if the location is delivered aore oil than it
9 should have been?
10 A No. It there's -- if there's an exceptional
11 amount of gallons or something of tuel it would take, but
12 not the K factor.
13 Q Okay. So, exactly what do you do with the It
14 factor? Do you aver review it?
15 A Not r.~lly. The deliveries are updated according
16 to -- the computer calculates all that, so no.
17 Q Poes anybody look at the K factor, anything?
18 Doe. anyone look at the K factor? Who'. responeible at Aero
19 Oil?
20 A I don't know.
21 Q If someone reported an oil emell in their hou.e,
22 would it be the practice of Aero oH to review the It tactor?
23 A No. Or maybe I should say I don't know. '1'0 my
:14 knowledge, I don't know.
25 Q Okay. So you haven't had any training or you
-
-
.
61
1 page it .ay., oil burner service. Is that your
2 handwriting? Ther.e'. a big, see back side copy?
J A 'lea ,
4 0 Is that all your handwriting?
5 A Yes.
6 0 And then the last page it says, cu.tomer lo.t
7 220 gallons, a-A-L-S, of fuel, period. customer contacted
8 DSR, period. Replace oil lines. Had fuel delivery made
9 45 SEC safety. Is that also your handwriting?
10 A Yes.
11 Q So do you have any reason to doubt -- I'm not
12 sure exactly, I think you said about 200 gallons earlier
13 il\ the deposition when I asked you how many gallons were
14 lost of oil. Do you have any problem with 220 gallons?
15 A No.
16 Q That was your estimatiun at that time?
17 A Yes,
18 Q And that was based upon your oticking the tank?
19 A And prior fuel delivery.
20 0 Prior fuel delivery. How do you have access or
21 know of when that prior fuel delivery occurred?
22 A I don't recall.
23 0 Okay. But you must have had access to it at
24 the time that you were there on the 12th, right?
25 A Yes, the Herringtons informed me that they just
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P~AECIPE fOR LIBTING CASE fOR ARGUMENT
(Iollut be typewrittlll1 ~~tt.t 1ft ''''lp! tottll ;
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TO THE PROTHONOTARV OF CUMBERLAND COUNTYI
Pleue list t:hll within matter for the next Arg\JnIInt Court.
~~-~--------~---------~-~-------------------~--------------------~___________.__w______
CAPTION OF '::^BE
(entire caption /lUSt be stated in full)
Thanu K. Herrington and
JUdy L. Herrington,
,,'
( Plaintiff,
VII.
Aero Oil, Inc.
( Deferdant ) ,
No. 95-6j~ Civil Action-Law 1995
1. Btate matter to be argued (Le., plaintiff's motion for new trUll, defendant's
denurrer to c~l.aint, etc. I: Motion for summary Judgment filed by
Defendant.
2. Identify counsel who will argue case:
(a) for plaint.lff: G. erYdrt Salzmrum, E:squire and Norma J. Lukacs, Esq.
Addresa: Salzmann & DePaulis, P.C.
1580 Gabler Road, P.O. Box 276
Chambersburg, PA 17201-0276
(b) for defendant: Ralph D. Oyler, Esquire
Address: 31 South Washington street
Gettysburg, PA 17325
3. I will notify all parties in writing within No days that this case has
been lis ted for argIJIEllt.
4. Arg\J'nent Court ~te:
August 12, 1998
!)stedl ~1/~/f{3
~~:~
G. Bry , Esq.
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G. Bryan Salzmann, Esq.
Suite 101
1721 North Front Street
Harrisburg, P A 17102
Attorney for Plllintltls
C~"HJ n~O_"l ~/ltI1_6'~.,
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THOMAS K. HERRINGTON
AND JUDY L. HERRIN(ITON,
IJlalntltls
IN TIlE COURT OF COMMON PLEAS OF
ClIMnERI.ANI> COllNTY, PENNSYLVANIA
v.
CIVIl. ACTION. I.A W
AERO OIL, INC.,
Defendant
NO. 95.6469 CIVIl. TERM
IN RE: DEFENDANT'S SECpND MOTION
FOR SUMMARY JUDGMENT
pEFORE HOFFER. I).J., OLER and GUlOO. JJ.
ORDER OF COURT
AND NOW, this 13th day of August, 19911, upon consideration of DetendQnt's
[Second] Motion for Summary Judgment. Detimdllnt's motion Is DENIED,
BY TIlE COURT,
Ralph D. Oyler, Esq,
31 South Washington Street
Gettysburg, PA 17325
Attorney for Defendant
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AERO OIL,INC..
Del'endanl
NO. 95.6469 CIVIL TERM
THOMAS K. HERRINGTON
and JUDY L. HERRINGTON.
Plalntlnil
IN 1l1E COURT OF COMMON IILEAS OF
CUMlmRLAND COUNTY. PI\NNSYLV ANIA
v.
CIVIL ACTION. LAW
ORDER OF COURT
AND NOW, this 30 \~ day 01' Octobcr, 1998, upon consideratlon of Defendanl's
Molion for Contlnuance of Triol. lhe motion Is granted IInd the Cllse is strll:ken from the
presenllrlollisl. Counselll1'C advised thai they, or either ol'them. mu~t relislthe cuse for uial
In order for 1110 reoppelU' on II succeeding trlollist.
BY nlE COllIn,
G. Bryan Salzmann, Esq.
IS80 Gabler Road
P,O. Box 275
Chwnbersburg. P A 1720 I
Allomey for Plaintiffs
, ~/I.., IrJl,'3CI1L
_ c...~"" ,wi. 6?-
Ralph D. Oyler. Esq.
31 South Washington Street
Geltysburg, PA 17325
Allomey for Defendant
','II !,ii",;: iN',;,J
Court Admlnlslrator _ -hn'( ~J,J;': ',: I r" '. ,'T";,:nJ
1()(~/1t.t.... 6~ 1(; :'..1 08 J,JO f!5
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('_il~"",I, U',I.,.i n :.0
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IN THE COURT OF COMMON I>>LEAS OF
CUMIJEltLANL> COUNTY, IIENNSYLV ANIA
CIVIL DIVISION
THOMAS K. HERRINGTON AND
JUDY 1.. HERIUNGTON,
IllulnllO's
: NO. 95-6469
vs.
AERO OIL, INC.,
Defendanl
OBDER
AND NOW,lhis_..._. dllY of Novelllber, 1998, upon considerallon oflhe
attached 1Il0tlon, Ihe Irllll inlhe abllve-culltioned cuse presenlly scheduled for Ihe
week beglnninjl, November 9, 1998, is cOllllnued 10 Ihe nexl available civil trial
lenn 10 begin onlhe_.._ duy of ___.__,_____._.u' 199_.
BY THE COURT:
. '
should not work for two to three days liner Ihe 11Iocedure, and that speech may be
Impa'~d for several days liner Ihe surgery.
6. The undersigned operllles IIlhree person I1nn, and has no available
substitute.
7. The undersigned requesls a continuance of this case to the nellt available
trial teml.
8. There have been no previous continuWlces of Ihis cafJC.
WHEREFORE, your undersigned counsel prays Ihls Honorable Court grant
his request for a continuance to the nellt available triAl tenn.
Respectfully submitted,
/1 .. /)
J~' &;')
1/( ~ .. ,"
'R iJ.iQ ler, Eilq:
Attorney for defendallt
J.D. 43570
31 South Wllshington Street
Gettysburg. P A 17325
(717)337-3111
Date: October 27, 1998
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PRABCIP, roR LISTING CAS~ FOR TRIAL
1t-tJ"t be typewritten lIIld subnittoad in duplicate)
P[ (d~'t?L~c. r.:..
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TO 'l1iE plO1'IiCWl'ARY Of' CI.t1BEIU>>Il COIJm'Y
Please list the following case I
(Check one)
for JUflY trial at tlw nlllxt tem ot civil court.
for trial without a juty.
x
----------~------------------------------
CAPTION OF CASE
(entire captiOl1 I11Jst be state<! in full)
(check one)
(X) Civil Action - lAw
( Appeal from Arbitration
TOCW\B K. ImUUNG'l'OO /\NO (other)
JUDY L. HEIUUNG'l'OO,
(Plaintiff)
vs.
The trial list will be called on
~ February 16. 1999
AEro OIL, INC.,
Trials ccnmencc on March 15. 1999
Pretrials will be held on February 24. 1999
(Briefs are due 5 days before pretrraIs. )
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
(Defendant)
VS.
Do v\ 'f h(.(v ~
~\'lv
No. ~_ civil '!'em
19 95
Indicate the attorney who will try case for the party who files this praecipe.
G. Brvan, Salzmann. Esouire and Norma J. LuJ<iics. ESQUire
Indicate trial counsel for other parties if known. Ralph Ovler. ESQUire
'Ihis case is ready for trial.
"~5:
Signed. -.
P<m' ~~. - ,.
Attorney forI Plaintiffs
Date.
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SALZMANN &. DEPAULlS, P.e.
Isaoo~JW. JIoAI) . P.O. ,lkllll76 . ()1~MIUIIlJll/J, M 17111I.o176
(1171 1610l II I P.u./717I16l-OMl
101 /'I<JllJIl'roH, Rim' . &1111101 . IIAJIJ"JIW, M 17101
1717) llloYflO PAX 17171 W.1970
,..........-...
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THOMAS K. HERRINGTON and
JUDY L. HERRINGTON,
PJ!NNSYL VANIA
PlalntilT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY,
: No. 95-6469
vs.
: CIVIL ACTION - LAW
AERO OIL, INC.,
Dllfendant
.
.
: JURY TRIAL DEMANDED
pRAECIPE TO DISCONTINUE
Pleaae mlll'k the above captioned mailer settled, satisfied and discontinued with prejudice.
Salzmann & DcPaulis, P.C.
Dated:$~?
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. Bry Sa
Allomey hlint! s
Allomey 10 No. 60135
1580 Gabler Road, P.O. Box 276
Chambersburg, PA 17201-0276
(717) 263-2121
105 North :~ront Street, Suite 201
Harrisburg, P A 17\ 0 1
(717) 232-9420
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