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LERRO v. THOMAS WYNNE (03/16/73)

decided: March 16, 1973.

LERRO
v.
THOMAS WYNNE, INC., APPELLANT



Appeal from decree of Court of Common Pleas of Montgomery County, No. 68-12465, in case of Louis J. Lerro et al. v. Thomas Wynne, Inc. et al.

COUNSEL

Thomas H. Goldsmith, with him Cassin W. Craig, Goushian, Morridian & Goldsmith, and Wisler, Pearlstine, Talone & Gerber, for appellant.

Henry A. Frye, for intervenor, Borough of Narberth, appellee.

Alonzo R. Horsey, with him John E. Forsythe, for intervenor, Lower Merion Township, appellee.

Robert E. Slota and John C. Bonner, with them McTighe, Koch, Brown and Weiss, and Murphy and Slota, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Justice Pomeroy and Mr. Justice Nix concur in the result.

Author: Manderino

[ 451 Pa. Page 38]

This is an appeal by Thomas Wynne, Inc., a defendant in the court below, from a decree in favor of the plaintiffs in an equity action. Thomas Wynne, Inc., is a Pennsylvania corporation which owns and operates an apartment house in Lower Merion, Montgomery County, Pennsylvania. Between 1963 and 1968, large quantities of fuel oil leaked from a corroded 10,000-gallon tank buried in the ground on appellant's property. The tank supplied fuel oil for the heating of the apartment house. As a result of the corrosion, holes developed in the tank, and the fuel oil seeped into the ground and flowed underground through adjoining properties into Indian Creek. Petroleum odors emanated from the Creek. The fuel oil caused a discoloration of the sides of the raceway of the Creek, a discoloration of the water, and adhered to the clothing and shoes of children playing in the Creek, resulting in a tracking of oil into homes. The flow of the seeping oil into the stream created a definite, visible, and noticeable problem.

The original plaintiffs in the action below were Louis J. Lerro and Marian G. Lerro. Other plaintiffs

[ 451 Pa. Page 39]

    intervened in the action. All of the plaintiffs are nearby residents and property owners through whose property Indian Creek flows and who were affected by the presence of the fuel oil in the Creek. Additional defendants in the court below did not appeal since the court's final decree ran only against the appellant.

The lower court permanently enjoined the appellant from polluting the east branch of Indian Creek, located in Montgomery County, with oil. The decree further ordered that the appellant take the necessary measures to insure that the oil beneath the surface of defendant's property did not find its way into the east branch of Indian Creek, and that a program be initiated for the removal of the oil from the ground. The lower court did not decide the question of damages which was left for proof at a later date.

The lower court concluded that the appellant was negligent in (1) failing to inspect the oil tank at reasonable intervals; (2) failing to detect the loss of large quantities of fuel oil; and (3) failing to turn off a steam feed line connected to the oil tank. The lower court also concluded that the appellant was liable, alternately, even assuming the absence of negligence, for creating a public nuisance, which, according to the lower court, did not ...


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