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HomeMy WebLinkAbout1994-5926 Civil LISA M. MORGAN AND BARBARA McK. MUMMA, TRUSTEES, on behalf of the MARITAL TRUST OF ROBERT M. MUMMA, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER, INC. and: McCLURE COMPANY, trading as: McCLURE MECHANICAL SERVICES, a registered fictitious name, Defendants NO. 94-5926 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS PETROLEUM PRODUCTS EQUIPMENT COMPANY AND CARLOS R. LEFFLER. INC. BEFORE HOFFER. P.J.. OLER. J. and GUIDO. J. OPINION and ORDER OF COURT HOFFER. P.J.: March 24, 2005. In this opinion, we address the motion for summary judgment of Petroleum Products Equipment Company and Carlos R. Leffler, Inc. (hereinafter "Defendants"). Plaintiffs Lisa Morgan and Barbara McK. Mumma, Trustees, on behalf of the Marital Trust of Robert M. Mumma (hereinafter "Plaintiffs"), assert that Defendants Petroleum Products Equipment Company (hereinafter "Petroleum Products") and Carlos R. Leffler, Inc. (hereinafter "Leffler") are liable to Plaintiffs for certain remediation and associated costs arising from oil contamination. The complaint contains three basic claims: breach of contract, negligence, and violation of the Pennsylvania Storage Tank Spill Prevention Act ("STSPA"). The complaint is based on Plantiffs' allegation that a leak existed in the product lines associated with an underground storage tank system located on Plaintiffs' property. Plaintiffs allege that Petroleum Products and Leffler failed to detect the leak when they performed a tightness test on the underground storage tank system. PROCEDURAL HISTORY Plaintiffs commenced this action on October 14, 1994 by filing a praecipe for writ of summons against Defendants Petroleum Products and Carlos R. Leffler, Inc. ("Leffler"). On May 11, 1995, Plaintiffs added McClure Company ("McClure") as a defendant by filing a second praecipe for writ of summons. On March 20, 1996, Plaintiffs filed a complaint against all of the defendants in the suit. After preliminary objections were disposed of, Plaintiffs filed an amended complaint on August 21, 1996. McClure filed its Answer and New Matter and New Matter in the Nature of a Crossclaim against Petroleum and Leffler on October 2, 1996. On November 16, 2000, McClure filed an initial motion for summary judgment asserting that all of Plaintiffs' claims against it were barred by the 2 applicable statute of limitations. On June 29, 2001, the Court denied McClure's motion for summary judgment because the facts were "unclear" with regard to when the Plaintiff should have discovered the injury. Following the denial of summary judgment, the parties conducted additional discovery. On January 28, 2003, the Defendants took the deposition of Plaintiff Lisa M. Morgan (Ms. Morgan). Because of the admissions of Ms. Morgan in her deposition, McClure filed a renewed motion for summary judgment on January 1, 2004, again asserting that all of Plaintiffs' claims against McClure were time-barred. On June 30, 2004, the Court granted McClure's renewed motion for summary judgment. Defendants Petroleum Products and Carlos Leffler filed the motion for summary judgment sub judice on August 25, 2004. In this motion for summary judgment, Defendants assert that Plainitffs' spoliation of certain perforated underground product lines warrants the dismissal of Plaintiffs' complaint. Alternatively, Defendants assert Plaintiffs' claims based upon negligence and violation of the Pennsylvania Storage Tank Spill Prevention Act ("STSPA") are barred by the applicable two-year statutes of limitations. 3 FACTS For the purposes of the disposition of Defendants' present motion for summary judgment, the facts of the case may be summarized as follows: Plaintiffs are the owners of real estate located at 1041 Mumma Road, Wormleysburg, Cumberland County.1 A commercial complex known as Pennsboro Center is located on this property.2 At all times relevant hereto, heat and hot water were provided to the Pennsboro Center by two oil-fired burners.3 The two oil-fired burners were supplied with fuel oil by an underground storage tank ("UST") and associated product lines.4 On or about March 1, 1990, Plaintiffs contacted McClure Company (hereinafter "McClure") regarding an odor of fuel at the base of an elevator shaft at the Pennsboro Center.5 On March 1, 1990, McClure sent an employee to Pennsboro Center in order to assess the problem.6 McClure's employee discovered fuel oil in the elevator shaft, and on March 16, 1990, began work on a leak found in the underground product lines in the parking 1 Plaintiff's First Amended Complaint, ~1O. 2Id. 3 Plaintiff First Amended Complaint, ~11. 4 Plaintiff First Amended Complaint, ~ 12. 5 Plaintiff First Amended Complaint, ~ 14. 6 Plaintiff First Amended Complaint, ~ 16. 4 lot? On March 27, 1990, McClure replaced the underground product lines.8 The new underground product lines were reconnected to the existing product lines at a point before they entered the building.9 McClure did not perform a tightness test on the product lines prior to returning the boilers and the underground storage tank system to service.10 In October 1990, the Pennsylvania Department of Environmental Protection ("PaDEP") discovered fuel oil in a stormwater culvert running under Mumma Road.11 Therefore, in October of 1990, at the request of the PaDEP, Plaintiffs retained Defendant Petroleum Products Equipment Company (hereinafter "Petroleum Products") to perform a series of tightness tests of the underground storage tank and the underground product lines.12 One of the tests revealed a leak in the underground storage tank system.13 Defendant Petroleum Products repaired the gauge line and subsequently certified the UST and product lines.14 7 Plaintiff First Amended Complaint, ~ 21. S Plaintiff First Amended Complaint, ~ 23. 9 Plaintiff First Amended Complaint, ~ 24. 10 Plaintiff First Amended Complaint, ~25. 11 Plaintiff First Amended Complaint, ~ 27. 12 Plaintiff First Amended Complaint, ~ 29. 13 Plaintiff First Amended Complaint, ~ 33. 14 Plaintiff First Amended Complaint, ~ 34,38. 5 Also in October of 1990, Plaintiffs were requested by PaDEP to remove the UST to eliminate it is as a potential source of the fuel oil found in the storm water culvert.15 At the request of Plaintiffs, on December 20, 1990 Defendant Petroleum Products submitted a written proposal to remove the existing UST and install a new UST at the Pennsboro Center. Plaintiffs accepted the proposal of Defendant Petroleum Products on December 20, 1990.16 Under the contract with Plaintiffs, Defendant Petroleum Products agreed to test the UST after it was installed.17 Examination of the old underground storage tank following its removal did not reveal any holes or other sources of a leak.18 On or about March 8, 1991, Defendant Petroleum Products and Leffler completed the installation of a new underground storage tank.19 On or about March 27, 1991, PaDER again discovered fuel oil entering the storm water culvert in the vicinity of Pennsboro Center.20 In May of 1992, Plaintiffs were requested by PaDER to perform a site assessment.21 As a result, Plaintiffs retained non-party Tethys 15 Plaintiff First Amended Complaint, ~ 41. 16 Plaintiff First Amended Complaint, ~ 42. 17 Plaintiff First Amended Complaint, ~ 43. 18 Plaintiff First Amended Complaint, ~ 45. 19 Plaintiff First Amended Complaint, ~ 47. 20 Plaintiff First Amended Complaint, ~ 49. 21 Plaintiff First Amended Complaint, ~ 50. 6 Consultants, Inc. ("Tethys") to perform the tightness tests on the underground storage tank and product lines at Pennsboro Center.22 On June 30, 1992, Tethys performed a tightness test on the underground storage tank system, which indicated a leak in the product lines, not the underground storage tank.23 On July 6, 1992, Tethys proceeded to excavate the product lines.24 Numerous perforations in the supply and return lines were discovered at the point where the product lines entered a building.25 On or about July 6, 1992, when the product lines were excavated and the numerous perforations were discovered, Plaintiff Morgan was present at the site and saw the perforations.26 Plaintiffs claim Tethys was directed to retain the section of the product line with the perforations that was removed and replaced.27 The section of the product line that was removed was retained at Pennsboro Center for a period of time following the excavation on July 6, 1992.28 22 Plaintiff First Amended Complaint, ~ 51. 23 Plaintiff First Amended Complaint, ~ 52. 24 Plaintiff First Amended Complaint, ~ 53. 25 Plaintiff First Amended Complaint, ~ 54. 26 Morgan Affidavit, ~ 15. Also. the reader is referred to this court's opinion granting co-defendant McClure's renewed motion for summary judgment on June 30, 2004 for a more extensive reading of the facts concerning plaintiff's presence at the site on July 6, 1992. 27 Morgan Affidavit, ~ 17. 28Id. 7 According to Plaintiffs, they have no knowledge of what happened to the section of the product line that was removed.29 Plaintiffs at no time throughout this litigation produced the section of the product lines that was removed by Tethys, nor, according to Plaintiffs, can the same be located.30 DISCUSSION Defendants first assert that spoliation by Plaintiffs of the product line entitles them to summary judgment under the doctrine of spoliation of evidence. This argument was rejected by this Court in response to the first motion for summary judgment filed by co-defendant McClure. "[N]o controlling Pennsylvania authority mandates summary judgment whenever the plaintiff fails to preserve the defective product,,,31 and Defendants' present motion will be denied for the reasons expressed in the earlier opinion on the subject. However, following the reasoning discussed in the opinion of this Court granting co-defendant McClure's renewed motion for summary judgment, the balance of the motion for summary judgment filed on behalf of Defendants Petroleum Products and Carlos Leffler will be granted in part and denied in part. 29 Morgan Affidavit, ~ 18. 30 Morgan Affidavit, ~ 19. 31 See Dansak v. Cameron Coca-Cola Bottling Co., Inc., 703 A.2d 489,495 (Pa. Super. Ct. 1997), appeal denied, 556 Pa. 676, 727 A.2d 131 (Pa. 1998). 8 As indicated in this Court's opinion granting the renewed motion for summary judgment of defendant McClure, the date of July 6, 1992 was the date that Plaintiffs' cause of action accrued against Defendant McClure. Because the date of July 6, 1992 was the date when the Plaintiffs should have discovered the injury, the statute of limitations on Plaintiffs' claims herein against Defendant Petroleum Products and Leffler32 began to run at that point. Therefore, both the negligence claims and the STSPA claims are barred by the two-year statutes of limitations applicable to those claims.33 However, the court is not in a position to decide on the present record whether the breach of contract claim is time-barred, as a jury could determine the last date the Defendants did work for the Plaintiffs was within the applicable four-year statute of limitations. CONCLUSION Based upon the foregoing, Defendants' motion for summary judgment will be granted with regard to the negligence and STSPA claims (Counts V, VI, VIII, and IX), and denied as to Plaintiffs' breach of contract claim (Counts IV and VII). 32 See Commonwealth v. Starr, 541 Pa. 564,574,664 A.2d 1326, 1331 (Pa. 1995). 33 As noted, Plaintiffs did not commence the action against Defendants Petroleum Products and Leffler until October 14, 1994. 9 Lisa J. Trembly, Esquire POdvey, Sachs, Meanor, Catenacci, Hildner, & Cocoziello The Legal Center One Riverfront Plaza, 8th Floor Newark, NJ 07102 Attorney for Defendants Petroleum Products Equipment Company and Carlos R. Leffler, Inc. John P. Krill, Jr., Esquire Kirkpatrick & Lockhart LLP 240 North Third Street Harrisburg, PA 17101 Attorney for Plaintiffs Barbara Mc.K Mumma and Lisa Morgan, Trustees 10 LISA M. MORGAN AND BARBARA McK. MUMMA, TRUSTEES, on behalf of the MARITAL TRUST OF ROBERT M. MUMMA, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER, INC. and: McCLURE COMPANY, trading as: McCLURE MECHANICAL SERVICES, a registered fictitious name, Defendants. NO. 94-5926 CIVIL TERM MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS' PETROLEUM PRODUCTS EQUIPMENT COMPANY AND CARLOS R. LEFFLER. INC. BEFORE HOFFER. P.J.. OLER. J.. and GUIDO. J. ORDER OF COURT AND NOW, this 24th day of March, 2005, upon consideration of the motion for Summary Judgment of Defendants Petroleum Products Equipment Company and Carlos R. Leffler, Inc. and of the arguments presented on the motion, Defendants' motion is granted as to the negligence and STSPA counts of Plaintiffs' Complaint (Counts V, VI, VIII, and IX), and denied as to Plaintiffs' claim for breach of contract (Counts IV and VII). 11 ACCORDINGLY, Counts V, VI, VIII, and IX of Plaintiffs' Complaint are dismissed. Lisa J. Trembly, Esquire POdvey, Sachs, Meanor, Catenacci, Hildner, & Cocoziello The Legal Center One Riverfront Plaza, 8th Floor Newark, NJ 07102 Attorney for Defendants Petroleum Products Equipment Company and Carlos R. Leffler, Inc. John P. Krill, Jr., Esquire Kirkpatrick & Lockhart LLP 240 North Third Street Harrisburg, PA 17101 Attorney for Plaintiffs Barbara Mc.K Mumma and Lisa Morgan, Trustees 12 By the Court, George E. Hoffer, P.J.