No. 544 - 639 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Potter County, Civil Action No. 671 of 1976.
George B. Angell, Port Allegheny, for appellant at No. 544 and appellee at No. 639.
Norbert J. Powell, Johnsonburg, for appellant at No. 639 and appellee at No. 544.
Mark M. Wilcox and John D. Lewis, Wellsboro, for appellee Harvey.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price and Van der Voort, JJ., dissent. Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 430]
This is a trespass action for damages incurred by plaintiff in 1976 by reason of a fire that was allegedly caused by the ignition of escaped fumes from underground tanks at a Sunoco gasoline service station owned and operated by plaintiff in Roulette Township, Potter County, Pennsylvania. Plaintiff alleged that the defendants Martin and Harvey owned the tanks, knew of their leaking condition and failed to correct it, and were therefore negligent to plaintiff's detriment.
Interrogatories were directed to both Martin and Harvey, and in response to them, Martin admitted that he owned the tanks from January 1, 1974 to an undetermined date thereafter, and had received notice by phone from plaintiff stating he detected fumes in the basement of the station building, but on inspection he had found no hazardous condition. Harvey's answer denied he had owned the tanks and pumps in 1970, but admitted that under an agreement with Sun Oil Company, he had the obligation to maintain the pumps and equipment located above ground level, but that all tanks and equipment located beneath the ground were the responsibility of Sun Oil Company, their owner, although frequently he was called on by Sun Oil Company to make repairs or replacements of the underground tanks and equipment. Harvey denied that he had notice of any hazardous condition due to fumes caused by leakage from tanks or any other source, but admitted fumes were noted after the serious flood of 1972 at which time the tanks had been inspected at the request of Sun Oil Company and no leakage was found. Further, he admitted that since no hazardous condition was found on that inspection, he continued to deliver gasoline into the tanks until December 31, 1974 when Ralph V. Martin Oil Company (Martin) became the commission agent serving the station.
The deposition of plaintiff was also taken under Pa.R.C.P.; Rule 4002. He testified that in 1970, he purchased the station, and continued to receive gasoline and oil supplies from Harvey as distributor for Sun Oil Company. The first
[ 259 Pa. Super. Page 431]
time fumes were detected was in 1972 after the flood. At that time, there was gasoline in the basement, and Sun Oil Company made repairs to the underground tanks and fittings. Between 1972 and 1976 when the explosion occurred, the plaintiff smelled fumes five or six times, one of which was immediately before the explosion. The explosion occurred when his wife turned on the hot water which kicked on the water heater. The premises are served with natural gas. No experts were called to establish the source of the fumes or that the tanks leaked.
Both defendants moved the court for a summary judgment in their favor under Pa.R.C.P.; Rule 1035. Martin's motion argued that the source of the gasoline in plaintiff's basement had been proven to be unknown, and that there were several possible sources. Harvey's motion, in addition to the reasons asserted by Martin, contended that certain admissions by plaintiff established contributory negligence as a matter of law; and furthermore his responsibilities ended December 31, 1974 when Martin assumed them.
After hearing arguments on the motions and consideration of the pleadings, interrogatories, Harvey's affidavit and plaintiff's deposition, summary judgment was ...