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JANET S. HOUSTON v. TEXACO (01/11/88)

filed: January 11, 1988.

JANET S. HOUSTON, VIRGINIA W. KELSO, WILLIAM FRAKER AND ARLENE M. FRAKER
v.
TEXACO, INC., H.J. TANNER, INC., OLIVER F. MARTIN, EVELYN Y. MARTIN AND JAY H. SHANNON AND ARLENE SHANNON, T/D/B/A SHANNON'S SERVICE STATION. APPEAL OF H.J. TANNER, INC.; JANET S. HOUSTON, VIRGINIA W. KELSO, WILLIAM L. FRAKER AND ARLENE M. FRAKER, APPELLANTS, V. TEXACO, INC., H.J. TANNER, INC., OLIVER F. MARTIN, EVELYN Y. MARTIN, JAY H. SHANNON AND ARLENE SHANNON, T/D/B/A SHANNON'S SERVICE STATION, APPELLEES. JANET S. HOUSTON, VIRGINIA W. KELSO, WILLIAM L. FRAKER AND ARLENE M. FRAKER V. TEXACO, INC., H.J. TANNER, INC., OLIVER F. MARTIN, EVELYN Y. MARTIN AND JAY H. SHANNON AND ARLENE SHANNON, T/D/B/A SHANNON'S SERVICE STATION. APPEAL OF JAY H. SHANNON AND ARLENE SHANNON, T/D/B/A SHANNON'S SERVICE STATION



Appeal from judgment of the Court of Common Pleas, Civil Division, of Cumberland County, No. 3371 Civil 1982.

COUNSEL

Wayne F. Shade, Carlisle, for Houston.

William A. Addams, Carlisle, for Shannon.

Wieand, Montemuro and Johnson, JJ.

Author: Wieand

[ 371 Pa. Super. Page 401]

The principal issues in this appeal are whether damages may be recovered for (1) emotional distress and (2) inconvenience and discomfort resulting from the contamination of well water negligently allowed to leak from the storage system of a neighboring gasoline service station. We conclude that recovery may be had for inconvenience and discomfort but that there can be no recovery for emotional distress in the absence of attending physical injury. Because the plaintiffs failed to plead a claim for inconvenience and discomfort, however, the jury should not have been permitted, over objection, to consider such a claim.

Jay and Arlene Shannon were the operators of Shannon's Service Station in Centerville, Penn Township, Cumberland County. The gasoline dispensing system at the service station was owned by H.J. Tanner, Inc. (Tanner), a corporation engaged in the business of buying gasoline at wholesale and reselling the same to service station operators. Pursuant to agreement, Tanner was required to maintain and keep in repair the gasoline tanks and equipment which the Shannons used at their service station.

[ 371 Pa. Super. Page 402]

In August, 1981, petroleum distillates were discovered in the well water of Janet Houston, a resident of Centerville, whose home was situated across the street from Shannon's Service Station. At the request of the Pennsylvania Department of Environmental Resources, Tanner tested the station's gasoline dispensing system and discovered that it contained a leak. Tanner repaired the defective portion of the system and conducted an air pressure test. The results of the test suggested that the repairs had been properly made and that the system contained no other leaks. Between June and August of 1982, however, gasoline derivatives were again discovered in Houston's well. They were also discovered in the wells of William and Arlene Fraker and Virginia Kelso, who also were neighbors. Within a month of the last discovery, Shannon reported to Tanner that one of the underground tanks of gasoline had leaked in excess of 500 gallons of gasoline during a forty-eight hour period. Tanner immediately pumped the remaining gasoline out of the leaking tank and filled the tank with concrete.

On June 2, 1983, Houston, Kelso and the Frakers filed a complaint in trespass against Tanner and the Shannons, alleging that each defendant had been negligent in failing to detect and repair the leaking storage tank.*fn1 In their complaint, the plaintiffs sought recovery for the cost of water purification equipment, damage sustained to their water pumps and septic systems, increased electric bills, diminution in the value of their homes, and severe emotional distress. With respect to their alleged emotional distress, they asked to be compensated by both compensatory and punitive damages.

Thereafter, Tanner paid all costs incurred by the plaintiffs in installing filtration systems in their homes. When

[ 371 Pa. Super. Page 403]

    these systems proved unsuccessful, Tanner, at its own expense, furnished each plaintiff with a completely new well. These wells have remained free of gasoline contamination ...


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