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Home My WebLink About2006-5883 PLAZA 21 REALTY : IN THE COURT OF COMMON PLEAS ASSOCIATES, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : : : No. 2006-5883-CIVIL : v. : : : EXXONMOBIL CORPORATION : and PROSPERITY : DEVELOPMENT COMPANY, Defendants IN RE: DEFENDANT PROSPERITY DEVELOPMENT COMPANY’S MOTION FOR POST-TRIAL RELIEF ORDER OF COURT rd AND NOW , this 23 day of May, 2011, after consideration of Defendant Prosperity Development Company’s Motion for Post-Trial Relief, consideration of the parties’ briefs and oral argument; IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Motion for Post- DENIED. Trial Relief is By the Court, M. L. Ebert, Jr., J. Eugene E. Dice, Esq. Jan L. Budman II, Esq. Buchanan Ingersoll & Rooney PC 213 Market Street, Third Floor Harrisburg, PA 17101-2121 717-237-4800 Attorneys for Plaintiff 1 Marc A. Rollo, Esq. Adam P. Bass, Esq. Archer & Greiner One South Broad Street, Suite 1620 Philadelphia, PA 19107 215-963-3300 Attorneys for Defendant ExxonMobil Susan J. Smith, Esq. Smith Cartwright, LLP 3009 Market Street Camp Hill, PA 17011 For Defendant Prosperity Development Company David Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 For Defendant Prosperity Development Company 2 PLAZA 21 REALTY : IN THE COURT OF COMMON PLEAS ASSOCIATES, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : : : No. 2006-5883-CIVIL : v. : : : EXXONMOBIL CORPORATION : and PROSPERITY : DEVELOPMENT COMPANY, Defendants IN RE: DEFENDANT PROSPERITY DEVELOPMENT COMPANY’S MOTION FOR POST-TRIAL RELIEF OPINION AND ORDER OF COURT EBERT, J., May 23, 2011 - This post-trial motion was filed after a civil trial involving claims by Plaintiff against Defendants Prosperity Development Company (hereinafter Prosperity) and ExxonMobil Corporation (hereinafter ExxonMobil) for violation of the Pennsylvania Storage Tank and Spill Prevention Act (“Tank Act”) as well as claims for Trespass and Nuisance. On February 2, 2011, a jury found in favor of Plaintiff and awarded damages totaling $50, 475.93 against Defendants. Because the discovery rule applied in this case, the jury also determined that Plaintiff should have reasonably discovered its injury in connection with its claims against Defendants on October 10, 2003. This court must now determine the appropriate statute of limitations to apply in this case. 3 Statement of Facts Plaintiff Plaza 21 Realty Associates (hereinafter “Plaza 21”) is a Pennsylvania general partnership with offices located at 1714 North Second Street, Harrisburg, Pennsylvania. Defendant ExxonMobil is a New Jersey corporation registered to do business in Pennsylvania with a registered office at 830 Bear Tavern Road, West Trenton, New Jersey. Defendant th Prosperity is a Pennsylvania corporation with its principal place of business at 2525 North 7 Street, Harrisburg, Pennsylvania. In 1986, Plaza 21 purchased from Prosperity a building located on the property at 425 st North 21 Street, East Pennsboro Township, Cumberland County, Pennsylvania (“Plaza 21 Property”). At that time, Plaza 21 also obtained a ground lease and a right of first refusal to purchase the underlying land. Plaza 21 exercised this right and purchased the underlying land in January 2004. ExxonMobil leased the property adjacent to and to the east of the Plaza 21 st Property at 407 North 21 Street, East Pennsboro Township, Pennsylvania, and operated a gas station known as Exxon Station #2-5599 (“ExxonMobil Property”). In May 2004, Plaza 21 agreed to sell the entire Plaza 21 Property to a potential buyer with settlement planned for October 4, 2004. The prospective buyer conducted a Phase I Environmental Site Assessment (ESA) of the Plaza 21 Property which revealed monitoring and remediation efforts by ExxonMobil and also revealed some petroleum hydrocarbon contamination. Plaza 21 and the prospective buyer agreed to conduct a Phase II ESA of the Plaza 21 Property. The potential buyer eventually terminated its sales agreement in late 2004, which Plaintiff claimed was a result of the Phase II ESA results. Plaintiff claimed that Defendant Prosperity, as owner of the ExxonMobil and Plaza 21 Property, was liable for damages because it was aware of contamination and failed to properly disclose information before it sold the 4 property to Plaza 21. Plaintiff claimed that Defendant ExxonMobil, as the operator of storage tanks on the ExxonMobil Property, was responsible for leaks from underground storage tanks (USTs) and contamination of the Plaza 21 Property as a result of the leaks. Plaza 21 eventually sold the property on June 29, 2006, for $3,500,000. Procedural History Plaintiff filed a Writ of Summons against Defendants on October 6, 2006. Plaintiff then filed a Complaint on January 10, 2007, with claims of violations under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”) and the Tank Act, as well as claims for Trespass and Nuisance against both Defendants. Plaintiff also claimed Fraudulent Misrepresentation against Defendant Prosperity. On June 1, 2009, Defendant ExxonMobil filed a Motion for Summary Judgment, which was granted as to the HSCA claim, and denied as to claims under the Tank Act, Trespass, and Nuisance. On July 10, 2009, Defendant Prosperity filed a Motion for Summary Judgment which was granted as to the HSCA and Fraudulent Misrepresentation claims and denied as to claims under the Tank Act, Trespass, and Nuisance. On February 2, 2011, a jury found in favor of Plaintiff and awarded damages totaling $50, 475.93 against Defendants. The jury apportioned 75% liability to Defendant ExxonMobil and 25% liability to Defendant Prosperity. On February 10, 2011, Defendant Prosperity filed a Motion for Post-Trial Relief requesting an Order stating that (i) a two-year statute of limitations is applicable to a private claim under the Pennsylvania Storage Tank and Spill Prevention Act; (ii) Defendant ExxonMobil is liable to Prosperity under its contribution and indemnity cross- claims; and (iii) the damages verdict is molded to zero. For the reasons discussed below, we deny Defendant Prosperity’s Motion for Post-Trial Relief. 5 Discussion A. The statute of limitations for private actions under the Tank Act is twenty (20) years. Defendant Prosperity argues that the language in the Tank Act referencing a 20-year statute of limitations applies only to actions by the Commonwealth. Prosperity argues that the statute is silent on the statute of limitations for private actions, and therefore the applicable statute of limitations should be determined by analogous causes of action. Prosperity further argues that the Tank Act permits a private action to abate nuisances, which sounds in tort, and therefore a two-year statute of limitations applies. For the reasons discussed below, we disagree. It is clear that the Tank Act expressly provides only one statute of limitations. The relevant section provides that “[t]he provision of any other statute to the contrary notwithstanding, actions for civil or criminal penalties under this act may be commenced at any time within a period of 20 years from the date the offense is discovered.” 35 P.S. § 6021.1314. This provision is also properly applied to private actions. In Centolanza v. Lehigh Valley Dairies, 658 A.2d 336 (Pa. 1995), the Pennsylvania Supreme Court reiterated that the Tank Act is a remedial statute, and as such, must be liberally construed. Centolanza, 658 A.2d at 340. In Centolanza, the Supreme Court liberally construed the statutory provision permitting a plaintiff to bring a civil action to “compel compliance” with the Tank Act and held that it also included the right for a private citizen to recover damages for cost of cleanup and diminution in property value. Id. at 340. The court stated that “[p]rivate citizens may take action when DER has failed to act; thus promoting the goal of prompt cleanup and removal of spills.” Id. This suggests that a private citizen may essentially take the place of the Commonwealth in a civil action, and therefore is entitled to the same procedures and remedies as the Commonwealth. 6 Similarly, the court liberally construed the provision of the Tank Act relating to the presumption of liability when it noted This section neither expressly authorized the use of the presumption in private actions, nor expressly limits the use of the presumption to a particular plaintiff. We agree with the Superior Court, however, that because a private action brought under the [Tank Act] is no different than one brought by the Commonwealth, the presumption available to the Commonwealth is equally available in a private action. Id. at 341. In Centolanza, the court made it clear that the Tank Act should be liberally construed, and that private citizens should be afforded the same rights to relief as the Commonwealth. Significantly, in upholding the Superior Court’s decision in Centolanza, the Supreme Court did not disturb the Superior Court’s holding that “the measures and recoveries available to [the Commonwealth] are equally available in a private action.” Centolanza v. Lehigh Valley Dairies, 635 A.2d 143, 149 (Pa. Super. 1993). We do not agree with Defendant Prosperity that by enforcing a 20-year statute of limitations we are injecting anything into the statute that was purposely omitted. Instead, we are simply following the interpretation of the Pennsylvania Supreme Court as well as the requirement to liberally construe the statute. The 20-year statute of limitations is expressly stated in the Tank Act. A liberal construction requires applying a 20-year statute of limitations to private actions as well as Commonwealth actions. This type of construction allows for the type of protection to citizens that the Tank Act was designed to provide. The Lancaster County Court of Common Pleas, guided by the Superior Court’s decision in Centolanza, held that a 20-year statute of limitations applies to private causes of action under th the Tank Act. Buttzville Corp. v. Gulf Oil Corp. of Pa., 25 Pa. D. & C. 4 172. (Pa. Comm. Pl. Lan. Cty. 1995). We find persuasive the court’s reasoning that 7 we find it logical to assume that the General Assembly intended the 20 year limitation for the “civil or criminal penalties” mentioned in section 6021.1314 to apply to private actions, especially since the [Tank Act] provides no other limitation on actions and since the General Assembly intended the [Tank Act] to be liberally construed to fully protect the health, welfare and safety of Pennsylvania’s residents. th Buttzville, 25 Pa. D. & C. 4 at 177. In FSA Group, Inc. v. Amerada Hess Corporation, 2007 WL 1866767 (E.D. Pa. 2007), the U.S. District Court for the Eastern District of Pennsylvania applied a 20-year statute of limitations to a private cause of action under the Tank Act. The court based its decision on the Pennsylvania Supreme Court’s holding in Centolanza that “a private cause of action brought under the [Tank Act] is no different than one brought by the Commonwealth.” Centolanza, 658 A.2d at 341. In Two Rivers Terminal v. Chevron, 96 F.Supp.2d 432 (M.D. Pa. 2000), the U.S. District Court for the Middle District of Pennsylvania found that a violation of the Tank Act was a tort, and therefore applied a two year statute of limitations. We find the Eastern District’s interpretation of the statute of limitations for the Tank Act more persuasive because it is based on the Pennsylvania Supreme Court’s ruling, it is a more recent case, it took into consideration the other state court decisions, including that of Two Rivers, and because we agree with the extensive analysis of legislative intent set forth in the court’s reasoning. The General Assembly intended for the Tank Act to be liberally construed to protect the health, welfare, and safety of Pennsylvania’s residents. 35 P.S. § 6021.109. We find it illogical to impose a two-year statute of limitations for private actions and a 20-year statute for Commonwealth actions. Considering the purpose of the act, along with the relevant case law, we find it appropriate to enforce a 20-year statute of limitations for private actions under the Tank Act. 8 B. ExxonMobil is not liable to Prosperity for contribution or indemnity cross-claims. Defendant Prosperity claims that ExxonMobil is liable to Prosperity for contribution and indemnification. We find that Prosperity was found to be independently liable for its actions at trial. ExxonMobil reached a settlement for all claims of Plaintiff’s against it prior to trial. Prosperity maintains that ExxonMobil did not “defend” against its cross-claims for contribution and indemnification. However, it must be noted that in ExxonMobil’s Answer with New Matter to Co-Defendant Prosperity’s cross-claims, it also asserted against Prosperity cross-claims for contribution and indemnity (see Paragraphs 14-18 of ExxonMobil’s Answer with New Matter to Co-Defendant Prosperity Development’s Cross-Claims). Neither parties’ claims were ever addressed by anyone at the jury trial. This Court finds that the cross-claims of contribution and indemnification by both parties were derivative. By Order of Court dated January 31, 2011, based on a joint stipulation, Prosperity agreed to dismiss its only direct cross-claim for negligence against ExxonMobil with prejudice. ExxonMobil has no liability to Prosperity for the damages awarded to Plaintiff in this case. The relevant portions of the Trial Verdict Slip read as follows: I. Storage Tank and Spill Prevention Act Claim 3. If the Jury finds for Plaintiff – Plaza 21 Realty Associates against both Defendants – Exxonmobil Corporation and Prosperity Development Company, please apportion the liability to each: 75% Defendant – Exxonmobil Corporation 25% Defendant – Prosperity Development Co. 9 II. Trespass and Nuisance Claim 5. Do you decide that any of the Defendants negligently trespassed onto Plaza 21 Realty property and/or negligently created a nuisance on Plaza 21 Realty property? A. Defendant – Exxonmobil Corporation X Yes _____No B. Defendant – Prosperity Development Co. X Yes _____No It is clear that the jury found Prosperity independently liable on Tank Act and Trespass and Nuisance claims. Indemnification is a fault-shifting mechanism and is not an appropriate remedy when both parties have been found independently liable. See Walton v. Avco Corp, 610 A.2d 454 (Pa. 1992). Where a party seeks indemnity, the issue is whether that party had any part in causing the injury. Id. at 460. Like in Walton, “the relationship of the parties in this case, however, establishes concurrent primary liabilities and therefore precludes any right to indemnification. Neither defendant's liability was dependent upon, or a precursor to, the other's. The jury found them both liable for their own acts, independent of one another.” Id. We find that because the parties were independently liable, Prosperity has no right of indemnification from ExxonMobil. Likewise, contribution is a derivative claim for which ExxonMobil has no liability to Prosperity because Prosperity was found independently liable. Accordingly, the following Order shall be entered: 10 ORDER OF COURT rd AND NOW , this 23 day of May, 2011, after consideration of Defendant Prosperity Development Company’s Motion for Post-Trial Relief, consideration of the parties’ briefs and oral argument; IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Motion for Post- DENIED. Trial Relief is By the Court, M. L. Ebert, Jr., J. Eugene E. Dice, Esq. Jan L. Budman II, Esq. Buchanan Ingersoll & Rooney PC 213 Market Street, Third Floor Harrisburg, PA 17101-2121 717-237-4800 Attorneys for Plaintiff Marc A. Rollo, Esq. Adam P. Bass, Esq. Archer & Greiner One South Broad Street, Suite 1620 Philadelphia, PA 19107 215-963-3300 Attorneys for Defendant ExxonMobil Susan J. Smith, Esq. Smith Cartwright, LLP 3009 Market Street Camp Hill, PA 17011 For Defendant Prosperity Development Company 11 David Fitzsimons, Esquire 10 East High Street Carlisle, PA 17013 For Defendant Prosperity Development Company 12