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HomeMy WebLinkAbout2010-2455 FERRIS LAND DEVELOPMENT, LP, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : WILMER R. ERWIN, JR., DAVID H. : MARTIN EXCAVATING, INC., : No. 2010-2455 CIVIL DEFENDANTS, : : v. : : RM ROACH & SONS, INC., : ADDITIONAL : DEFENDANT. : IN RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., EBERT, J., PLACEY, J. OPINION AND ORDER At issue before this court is Defendants’ Wilmer R. Erwin (Erwin) and David H. Martin Excavating, Inc. (Martin) Motion for Summary Judgment on the basis that the economic loss doctrine bars Plaintiff’s recovery. Plaintiff Ferris Land Development, LP (Ferris) owns a parcel of land along Route 11 in Hogestown, PA. (Complaint, ¶ 5, filed May 5, 2011). A dump truck operated by Erwin collided with a gasoline tanker belonging to defendant RM Roach & Sons, Inc. (Roach) which caused approximately 3,300 gallons of gasoline to spill onto Ferris’ property via a nearby storm drain. (Complaint, ¶ 11-12). At the time of the accident defendant Erwin was operating the dump truck as an employee of defendant Martin when Erwin allegedly ran a red light at an intersection near Ferris’ property. (Complaint, ¶ 12-13). Pursuant to the Pennsylvania Land Recycling and Environmental Remediation Standards Act, 35 P. S. § 6026.101 et seq., Roach, over the course of approximately 28 months, cleaned the gasoline which had spilled onto Ferris’ property. (Complaint, ¶ 19, 28-29). At the end of the remediation period, the Pennsylvania Department of Environmental Protection (PA DEP) declared the property remediated. (Complaint, ¶ 29). Ferris brought the instant action against defendants Erwin and Martin for negligence, private nuisance, and public nuisance seeking to recover the diminished value of the property and to be compensated for the lost use of the property during the clean-up period. Erwin and Martin subsequently filed their motion for summary judgment as to all counts of the complaint. Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. “In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Toy v. Metro. Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). “Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt.” Id. Erwin and Martin argue they are entitled to summary judgment because Ferris is only seeking recovery for economic damages and the economic loss doctrine precludes recovery for purely economic losses. Specifically, Erwin and Martin state that because Roach paid for the clean-up of the property Ferris suffered no actual or recoverable physical damage to the property. Citing Aikens v. Baltimore & Ohio R. Co., 501 A.2d 277 (Pa. Super. Ct. 1985), Erwin and Martin argue that Ferris’ claims are precluded because Ferris is limited exclusively to economic damages. 2 Aikens is a seminal case in the establishment of the economic loss doctrine. However Aikens and its progeny do not compel this Court to grant summary judgment in this case. In Aikens, the parties seeking recovery were employees of a manufacturing plant which was damaged by a train derailment. Aikens, 501 A.2d 278. The plaintiffs in Aikens were not injured by the derailment and were seeking lost wages which stemmed from the damage to the manufacturing plant. Id. The Aikens court held that without physical injury to the employees the lost wages were not foreseeable damages as to the tortfeasor’s negligence and were therefore not recoverable. Id. at 279. In Duquesne Light Co. v. Pa. Am. Water Co., 850 A.2d 701 (Pa. Super. Ct. 2004), a power company was forced to shut down operations and pay medical expenses for its employees as a result of a gas leak caused by the defendant water company. The gas leak caused an evacuation of a five-block area which included the electric company’s generating station. Id. at 702. No physical damage was caused to the generating station. Id. The Duquesne Light court stated that, like previous Pennsylvania cases, the plaintiff suffered no actual harm, and was barred from seeking economic damages. Id. at 704. Interestingly, the Duquesne Light court stated “\[i\]f any of the class had suffered direct damage to property … (such as flooding, destruction of property, or personal injury), those unquestionably would be actionable.” Id. In the instant case, Ferris is seeking economic damages that stem exclusively from the now-abated property damage caused by the alleged negligence of Erwin and Martin. In other words, Ferris, unlike the plaintiffs in Aikens and Duquesne Light, suffered physical harm to their property and are seeking the economic damages that resulted from that harm. It is undisputed that Erwin was acting as an employee of 3 Martin and caused the collision with the Roach oil tanker. It is also undisputed that approximately 3,300 gallons of gasoline were spilled onto Ferris’ property. It is further undisputed that the clean-up of the spill spanned a 28-month time period. Because Ferris’ property suffered physical harm, the economic loss doctrine does not apply. Erwin and Martin also argue that because Roach cleaned up the property, Ferris has no recoverable damages. To expand upon our previous discussion, we note that Pennsylvania’s establishment of the economic loss doctrine is rooted in the Aikens court’s adoption of the Restatement (Second) of Torts § 766C. Aikens, 501 A.2d 277, 278. The basis for the doctrine under the Restatement is to limit the exposure of tortfeasors for unforeseeable economic damages which did not result from physical harm. Restat 2d of Torts, § 766C. In this case, Roach was obligated under Pennsylvania Statutes to clean up the gasoline spill or face liability for the damage the gasoline caused. See 35 P.S. § 6026.101 et seq. Such remedial action by Roach, however, does not mean that no damage was caused to the property. Moreover, there is no indication in the Restatement or case law which suggests that if the physical damage is abated, a claim for loss of use cannot succeed. Erwin and Martin next argue that Ferris’ claims for public and private nuisance are also barred by the economic loss doctrine and, further, that Pennsylvania does not permit a private cause of action for public nuisance. Finally, even if a private cause of action for public nuisance is recognized, Erwin and Martin allege Ferris has failed to plead the necessary elements to establish such a claim. For the reasons stated above, the economic loss doctrine does not bar recovery as to Ferris’ claims for public and private nuisance. We are also satisfied that a private 4 cause of action for public nuisance has been properly brought in this case. Erwin and Martin cite Duquesne Light as holding that Pennsylvania does not recognize a private cause of action for public nuisance. Duquesne Light, 850 A.2d 704 (“Pennsylvania has never recognized a private cause of action for public nuisance.”). However, such a statement was made in considering whether a public nuisance claim would be sustainable in an action which was based on purely economic loss damages. Id. at 705 (“In view of Pennsylvania’s strong, oft-stated public policy of barring recovery for under the facts this case economic losses … we are not at liberty to ignore that policy presents .”) (emphasis added). In this case, we are governed by the Restatement (Second) of Torts § 821C, having been adopted by cases interpreting Pennsylvania law. See Phila. Elec. Co. v. Hercules, Inc., 762 F.2d 303, 315 (3d Cir. 1985). Section 821C(1) states that to recover damages in an individual action for a public nuisance, in addition to proving the public nuisance exists, “a person must have suffered harm of a kind different from that suffered by other members of the public.” In support of their claim for public nuisance, Ferris has alleged in their complaint that Erwin and Martin spilled gasoline in violation of the Clean Streams Law, 35 P.S. § 691.401. The Clean Steams Law plainly states that a discharge which pollutes the waterways constitutes a public nuisance. 35 P.S. § 691.401. Ferris further alleged that it suffered a harm different from the general public as measured by the physical damage to the property which included the loss of use of the property for 28 months. 5 ORDER AND NOW, this 15th day of January, 2015, upon consideration of Defendants Erwin and Martin’s Motion for Summary Judgment to Plaintiff’s Complaint, briefs by the parties, and after oral argument on the matter, Defendants’ Motion for Summary DENIED Judgment is . BY THE COURT: ________________________ Kevin A. Hess, P.J. Richard H. Friedman, Esquire Dana W. Chilson, Esquire Jason C. Giurintano, Esquire Gary Hurwitz, Esquire 6 FERRIS LAND DEVELOPMENT, LP, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : WILMER R. ERWIN, JR., DAVID H. : MARTIN EXCAVATING, INC., : No. 2010-2455 CIVIL DEFENDANTS, : : v. : : RM ROACH & SONS, INC., : ADDITIONAL : DEFENDANT. : IN RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., EBERT, J., PLACEY, J. ORDER th AND NOW, this 15 day of January, 2015, upon consideration of Defendants Erwin and Martin’s Motion for Summary Judgment to Plaintiff’s Complaint, briefs by the parties, and after oral argument on the matter, Defendants’ Motion for Summary DENIED Judgment is . BY THE COURT: ________________________ Kevin A. Hess, P.J.