Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

ASTER v. BP OIL CORP.

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


April 14, 1976

Frank ASTER et al., Plaintiffs,
v.
BP OIL CORPORATION, Defendant

The opinion of the court was delivered by: MUIR

MUIR, District Judge.

 The Plaintiffs, Frank Aster, William Crooks, Samuel L. Glantz, Allen Passerin, Elmer Propert, Alvin Rosenberg, and Joseph Ryan, doing business as co-partners, originally filed a suit in equity against the Defendant, BP Oil, on May 19, 1975 in the Court of Common Pleas for Northumberland County, Pennsylvania. On August 25, 1975, pursuant to 28 U.S.C. ยง 1441(b), BP removed the suit to this Court. The case was tried to the Court with an advisory jury from April 2 through April 7, 1976. The Court makes the following findings of fact.

 I. FINDINGS OF FACT

 1. The tract of land which is the subject of this lawsuit is approximately one acre in size and is part of a fifty (50) acre tract situated at the Limestoneville interchange of Interstate 80 in Turbot Township, Northumberland County, Pennsylvania.

 2. In late 1971, BP obtained an option to purchase this one acre tract and several adjacent acres from the then owners, Mr. and Mrs. Fred Stamm.

 3. The 1971 option was never exercised because neither BP nor the sellers could provide water or sewage facilities to the tract.

 4. The availability of the 50-acre tract of land for purchase was made known in 1972 to Mr. Allen Passerin, one of the Plaintiffs, by his attorney, H. William Koch, Esquire, who also represented Mr. and Mrs. Fred Stamm for purposes of selling the land.

 5. On December 26, 1972, the Plaintiffs entered into an agreement to purchase the fifty (50) acre tract of land from the Stamms for the purpose of developing a motel complex on the site.

 6. In February of 1973, Plaintiffs advised representatives of BP that they would be willing to sell one acre from the Stamm tract to BP for purposes of a gas station.

 7. On or about February 16, 1973, for a consideration of $200, Allen Passerin, acting on behalf of all Plaintiffs, executed and delivered a written purchase option to BP for the one acre parcel of land situate in Turbot Township, Northumberland County, Pennsylvania, at a purchase price of $125,000.00.

 8. Under the purchase option, if exercised, BP agreed to purchase the parcel of land provided the Sellers complied with the conditions stated in the option.

 9. The purchase option of February 16, 1973 was on a standard printed form of BP.

 10. The purchase option dated February 16, 1973, was prepared in its entirety by one or more agents of BP.

 11. On or about March 20, 1973, Allen Passerin, on behalf of all Plaintiffs, executed and delivered to BP an amendment to said purchase option. (Uncontested)

 12. The amendment of March 20, 1973 was prepared by an executive of BP and, by or at the request of Allen Passerin, contained an additional phrase to cover blasting if required.

 13. By letter dated April 11, 1973, BP notified Plaintiffs that BP had elected to exercise said purchase option, as so amended. (Uncontested)

 14. Upon execution and delivery of said Notice of Election, a purchase agreement (hereinafter sometimes called the "Agreement") was created between Plaintiffs and BP. (Uncontested)

 15. Said purchase agreement was constituted in its entirety by the purchase option dated February 16, 1973 and the amendment dated March 20, 1973.

 16. On or about April 25, 1973, Plaintiffs took legal title to the fifty (50) acre tract of land. (Uncontested)

 17. Plaintiffs remain at the time of trial owners as tenants in copartnership of the entire 50-acre tract, including the one-acre parcel, ownership not having changed since the conveyance to Plaintiffs.

 18. The subject tract of land was surveyed by John S. Jacobs, Registered Professional Engineer, and a plot plan prepared. (The premises as described in said survey being hereinafter called the "premises"). (Uncontested)

 19. Both parties accepted said survey for the purpose of the deed description to be used in closing the transaction embodied in the Agreement. (Uncontested)

 20. In March of 1973, Mr. Passerin and John Dymond, the owner of the nearby Big "D" Truck Stop, discussed an arrangement whereby the tract of land could be connected to the Big "D" sewage treatment plant being designed and constructed by Envirosystems Corporation at the Big "D" Truck Stop.

 21. In March of 1973, Messrs. Passerin and Dymond attended a meeting of the Turbot Township Municipal Authority and discussed with the members of the Authority a proposal whereby the Municipal Authority would lease the sewage treatment plant at the Big "D" Truck stop from Envirosystems and in turn, sublease the facility to Messrs. Passerin and Dymond, subject to the approval of the Pennsylvania Department of Environmental Resources ("D.E.R.").

 22. On April 13, 1973, Samuel L. Glantz wrote BP, "We already have letters from the Sewer Authority granting permission to hook-in." (Defendant's 11)

 23. Plaintiffs never received any letter from the Sewer Authority granting permission to hook-in.

 24. On June 20, 1973, Mr. Passerin presented to the Turbot Township Municipal Authority a preliminary sewer layout for the 2,000 feet sewer pipeline to connect the tract of land to the Big "D" sewage plant. (Uncontested)

 25. On June 20, 1973, the Turbot Township Municipal Authority approved the concept of leasing the Envirosystems Plant and subleasing the same to Dymond and others, subject to the treatment plant's meeting the criteria set by Herbert Associates, Inc., the Municipal Authority engineers.

 26. On or about July 3, 1973, Allen Passerin, one of the Plaintiffs, entered into a contract with Herbert Associates, Inc. to provide all necessary engineering work to design a sanitary sewer extension from the premises in question to the existing treatment plant on the property of John Dymond. (Uncontested)

 27. On July 16, 1973, D.E.R. issued Water Quality Management Permit No. 4973406 to Turbot Township Municipal Authority and approved the plans for construction of an extended aeration package-type sewage treatment plant with sand filtration and chlorination to serve the area of the Limestoneville I-80 interchange.

 28. On September 6, 1973, Glantz wrote BP, "I wanted you to know that we are now in the process of the site preparation, that a building permit is now available and that we have received permission to tie into the existing sewer disposal plan (sic)". (Defendant's 15)

 29. Plaintiffs never received permission to tie into the existing sewer plant.

 30. On February 6, 1974, Passerin attended a meeting of the Turbot Township Municipal Authority and requested continuation of the planning for the sewage line from the tract of land to the Big "D" sewage plant and also for the expansion of the Big "D" sewage plant, even though at the date of the meeting he was unsure of the early construction of a motel which the Plaintiffs planned to erect on their remaining parcel at the Limestoneville interchange. Passerin also requested the submission of those plans to D.E.R. for their approval.

 31. A highway occupancy permit was issued by the Pennsylvania Department of Transportation to Turbot Township Municipal Authority on or about April 5, 1974 for said sewer extension to serve the premises.

 32. Leonard A. Crosby, Chief, Compliance and Administration Section, Bureau of Water Quality Management, D.E.R., sent a letter dated May 7, 1974 to Turbot Township Municipal Authority and H. C. Herbert of Herbert Associates, Inc., which stated:

 

"Environmental Protection Technician Raymond D. Nuss inspected the sewage treatment plant at the intersection of Route I-80 and 254 near the Village of Limestone and reported the facilities to be operating satisfactorily on April 19, 1974.

 

"Permit number 4973406 issued to the Turbot Township Municipal Authority on July 16, 1973 has not been recorded in the Office of the Recorder of Deeds in Northumberland because the Authority engineers have not approved the plant for transfer to the authority.

 

"Based upon the cited inspection there appears to be no reason to delay the acceptance of the plant and the recording of the permit.

 

"Request that you advise this office when final action on this permit can be expected."

 (Uncontested)

 33. Herbert Associates performed, prior to June 8, 1974 all necessary engineering work for the design of a sanitary sewer extension to connect the Passerin premises to the existing package treatment plant at the Big "D" Truck Stop, as well as for obtaining the necessary highway occupancy permit. (Uncontested)

 34. The cost of said engineering work, in the amount of $1,916.17, was billed to Allen Passerin, one of the Plaintiffs. (Uncontested)

 35. At the June 19, 1974, meeting of the Turbot Township Municipal Authority, the Authority formally instructed Solicitor Koch to record the D.E.R. Permit No. 4973406 for the John Dymond sewage plant and to negotiate leases with Envirosystems, Inc., the owner of the plant, and with John Dymond, the user of the plant. (Uncontested)

 36. Permit No. 4973406 for the plant serving the Big "D" Truck Stop of John Dymond was recorded December 2, 1974 in the Office for the Recording of Deeds in and for Northumberland County in Miscellaneous Book 36, at page 763. (Uncontested)

 37. On the basis of the plans and specifications prepared by Herbert Associates, Inc., D.E.R. issued on November 18, 1974, to Turbot Township Municipal Authority Water Quality Management Permit No. 4974409 approving plans for construction of the sewer line to connect the premises of Plaintiffs to the existing package-type sewage treatment plant at the Big "D" Truck Stop. (Uncontested)

 38. During the last several months of 1974 and the first few months of 1975, H. William Koch, Esq., the Solicitor for the Turbot Township Municipal Authority attempted to negotiate a lease to the Authority as lessee from Envirosystems as lessor of the sewage treatment plant serving John Dymond and attempted also to negotiate sub-leases from the authority to the users of the plant.

 39. On December 3, 1974, BP official George A. Stanek requested that Glantz, provide further information with respect to the capacity of the sewer treatment plant at the Big "D" Truck Stop.

 40. On December 12, 1974, H. William Koch, Esq., Solicitor for Turbot Township and Turbot Township Municipal Authority and also sometime counsel for the Stamms, former owners, and for Passerin, advised Glantz by letter of current negotiations with Envirosystems Corporation concerning the existing package treatment plant serving the John Dymond property and stated: "It is my opinion that the present plant has ample capacity to include Cooper-Jarrett, Sunoco and BP without the necessity of any additional enlargement of the plant."

 41. By letter of December 18, 1974, Glantz forwarded to Stanek a copy of the letter dated December 12, 1974 from H. William Koch, Esq., to Glantz.

 42. Other than the letter of December 18, 1974, from H. William Koch, Esquire, Glantz never provided information with respect to the capacity of the sewer treatment plant at the Big "D" Truck Stop to the representatives of BP.

 43. Earlier that year, on May 7, 1974, because of the delays experienced in obtaining approval of the Big "D" sewage plant, Mr. Passerin attended a meeting of the Turbot Township Supervisors and requested permission to use holding tanks as a means of waste disposal.

 44. At that meeting, the supervisors directed their Solicitor, H. William Koch, Esq., to prepare an ordinance to permit holding tanks in Turbot Township. (Uncontested)

 45. On June 4, 1974, the Turbot Township Supervisors enacted a holding tank ordinance. (Uncontested)

 46. On June 13, 1974, Mr. Passerin submitted in BP's name an application to Turbot Township to permit the use of holding tanks on the site.

 47. Passerin inserted in said application a daily sewage rate of 400 gallons with respect to the BP Tract.

 48. No inquiry was made of BP by Passerin as to the expected daily sewage rate at the BP tract.

 49. The expected daily sewage rate at the BP tract on peak days would have been between 1,000 and 1,300 gallons plus wash water which also would have gone into the holding tanks.

 50. Passerin did not advise BP that he was making the application for use of holding tank or tanks.

 51. Passerin did not act in good faith towards either BP or Turbot Township Municipal Authority when he filed said application for a permit for sewage holding tanks.

 52. On June 24, 1974, Passerin obtained a contract price from R. C. Stahlnecker Co. to pump sewage from the holding tanks on the premises and dump the same at Milton Sewage Plant.

 53. The holding tanks would have to be pumped out two or three times per week.

 54. The cost of pumping out the holding tanks would be as much as $100 per week.

 55. On July 19, 1974, sewer permit No. 239954 was issued by the Turbot Township Supervisors, on the basis that the information contained in the application for the permit was accurate and that said information satisfied the rules, regulations, and standards of D.E.R.

 56. Permit No. 239954 was issued in the name of BP for installation of a holding tank as an on-site sewage disposal system to serve the premises. (Uncontested)

 57. The permit was approved by D.E.R. on the basis of the information submitted in the application. (Uncontested)

 58. Passerin inserted his own business address as the address of BP in the application for holding tanks and the sewer permit was consequently sent to his address.

 59. By letter of July 29, 1974, Glantz mailed to Harry Davis, an employee of BP, a copy of sewer permit No. 239954 for the holding tank. (Uncontested)

 60. Sometime in the latter part of June, 1974, the Turbot Township Building Inspector, at the request of Allen Passerin, issued Building Permit No. C2-146 in the name of BP. (Uncontested)

 61. Said Building Permit No. C2-146 was for the construction of BP's service station on the premises.

  62. A copy of the Building Permit was mailed by Glantz to BP, July 1, 1974. (Uncontested)

 63. In August, 1974, BP applied to the Pennsylvania Department of Transportation for a highway occupancy permit, and the $10 permit fee for same was forwarded by BP to the Pennsylvania Department of Transportation in September, 1974.

 64. On October 1, 1974, the Pennsylvania Department of Labor and Industry issued approval of BP's plans for the service station. (Uncontested)

 65. Prior to October 25, 1974, Mr. Donald L. Coy, BP's engineer responsible for the site work, had obtained all additional necessary permits for construction of the gasoline service station, including the highway occupancy permit.

 66. BP has a company policy against the use of sewage holding tanks.

 67. BP determined that sewer permit No. 239954 was not satisfactory to BP.

 68. BP advised the Plaintiffs many times in October, November, December, 1974 and in early 1975 that the sewer permit for holding tanks obtained by Passerin was not satisfactory to BP.

 69. Mr. Stanek of BP rejected the sewer permit for holding tanks as not satisfactory to BP because the sewer permit was for a temporary, not permanent, sewer treatment system, was costly to operate, required regular attention, might be offensive to customers when being pumped and the layout on the application placed the holding tanks on the BP premises, in direct conflict to the agreement of the parties.

 70. The dissatisfaction of BP with the sewer permit was in good faith and neither arbitrary nor capricious.

 71. Mr. Stanek of BP advised Mr. Glantz of the reasons why holding tanks and the sewer permit for holding tanks were unsatisfactory to BP.

 72. On or about June 7, 1974, with the exception of the water well, the premises were prepared as shown in the photographs identified as Exhibits P-29 through P-35. (Uncontested)

 73. The levelling of the site was prepared to BP's specifications.

 74. The existence of a great quantity of solid limestone rock on the premises required extensive blasting by Callenberger Construction Co. to level the site to the proper grade.

 75. Coy visited the site for the first time after Callenberger had removed 2/3 of the limestone on the tract by blasting.

 76. Coy did not give any approval for the blasting nor did he agree that BP would pay for it.

 77. Callenberger billed Plaintiffs $9,000 for the blasting work. (Uncontested)

 78. On November 7, 1974, Callenberger filed a Complaint against Plaintiffs in the Court of Common Pleas of Northumberland County (indexed to No. 470, Sept. Term, 1974) in assumpsit for the $9,000 blasting charge. (Uncontested)

 79. On January 30, 1975, Plaintiffs filed a Complaint in said case against BP as Additional Defendant. (Uncontested)

 80. On July 11, 1975, Judge Michael Kivko entered an Order in said case severing the matter of the alleged liability over of BP as the Additional Defendant. (Uncontested)

 81. After a non-jury trial, Judge Kivko entered on August 15, 1975, an Order in favor of Callenberger and against the within Plaintiffs, Passerin, Glantz, et al., in the sum of $9,000 together with interest from June 7, 1974 and found that BP was not liable to Callenberger on that contract.

 82. The Complaint against BP as the Additional Defendant in the above-referenced county court case is still pending. (Uncontested) 83. On September 30, 1975, Plaintiffs paid the judgment of the Northumberland County Court in full in the amount of $9,757.57 calculated as follows: a. Amount due for blasting & drilling $9,000.00 b. Interest at 6% to 9/30/75 703.12 c. Prothonotary & Sheriff's costs 54.45 $9,757.57

19760414

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.