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THEODORE R. FLECK AND MARY E. FLECK v. FRANK E. TIMMONS AND SUSAN E. TIMMONS (06/09/88)

filed: June 9, 1988.

THEODORE R. FLECK AND MARY E. FLECK, APPELLANTS,
v.
FRANK E. TIMMONS AND SUSAN E. TIMMONS, AND MCCLEARY OIL CO. INC., APPELLEES



Appeal from the Order entered in the Court of Common Pleas of Franklin County, Civil at No. A.D. 92-1985.

COUNSEL

Eugene E. Dice, Harrisburg, for appellants.

Sally Jo Winder, Shippensburg, for Timmons, appellees.

Jeffrey B. Rettig, Harrisburg, for McCleary, appellee.

Brosky, Montemuro and Johnson, JJ.

Author: Montemuro

[ 374 Pa. Super. Page 418]

This appeal concerns a civil action commenced by Theodore R. and Mary E. Fleck, appellants, against Frank E. and Susan E. Timmons, appellees, and McCleary Oil Company Inc.*fn1 The record reveals that appellees own and operate a convenience store and gas station located on Cumberland Highway, Orrstown, Pennsylvania. Appellants reside in a

[ 374 Pa. Super. Page 419]

    house which is located directly across the highway from appellees' convenience store and gas station. The sole source of water supply for appellant's home is a well. This well is located in the front of appellants' home, between their home and Cumberland Highway.

In their amended complaint, appellants alleged that on or about November 30, 1984 they noticed a "strong odor of gasoline in their drinking water." R.R. at 40a. They further alleged that their "well water is contaminated to the point where it is not usable for drinking, washing, cooking, or any purpose other than flushing toilets. Additionally, the concentration of gasoline in the well water is such as to pose a threat of fire or explosion in the Fleck household." Id. at 42a. It is undisputed that in September of 1983, appellees purchased property adjacent to their convenience store and gas station from the Guy T. Kilmore Estate. This property included an abandoned gasoline service station and three underground storage tanks (hereinafter "Kilgore tanks"). On November 27, 1984, at the request of the appellees, McCleary Oil pumped approximately 645 gallons of kerosene into the Kilgore tanks.*fn2 It was established that prior to pumping of any kerosene into the Kilgore tanks, appellees, specifically Mr. Timmons, removed with the aid of a hand pump approximately 100 gallons of gasoline which had been left in the tanks by the previous owner.

Appellants' lawsuit against both the appellees and McCleary Oil is based on the contention that when McCleary Oil pumped kerosene into the Kilgore tanks on November 27, 1984, this pumping resulted in the pollution

[ 374 Pa. Super. Page 420]

    of their well water.*fn3 Appellants averred the following:

16. One or all of the three underground storage tanks [the Kilgore tanks] in which Mr. Timmons maintained gasoline and into which Mr. Timmons caused kerosene to be pumped as described herein, were leaking, and this leakage caused contamination of groundwater and the permanent destruction of the well water serving Plaintiff's house.

16. (a) The underground storage tanks [the Kilgore tanks] were excavated and removed on June 24, 1985. They were found to be badly corroded and had holes through the metal of which they were constructed. At the time they were excavated, the tanks contained petroleum products containing benzene, toluene, exylene, trimethyl benzene, methyl nephthalene, and other similar chemicals. These chemicals are hazardous and constitute hazardous waste.

R.R. at 40a and 41a.*fn4 As to the appellees and as to McCleary Oil, appellants sought to support their claim for relief upon a variety of legal theories. They contended that appellees were negligent in filling the Kilgore tanks "given their age, condition, and period of time during which they

[ 374 Pa. Super. Page 421]

    had not been used." R.R. at 42a. Appellants also alleged, inter alia, that the conduct of the appellees in filling the Kilgore tanks had violated state regulations governing the maintenance of underground storage tanks, as well as various provisions of the Pennsylvania Clean Streams Law*fn5 and Pennsylvania's Solid Waste Management Act.*fn6 Appellants also set forth theories of liability sounding in absolute liability and nuisance. Appellants asserted causes of action against McCleary Oil which were substantially the same.

The jury trial commenced in the instant case on August 26, 1986. After the close of appellants' case, the trial court granted McCleary Oil's motion for a directed verdict. Following the completion of the trial, the jury returned a verdict in favor of the appellees, finding that the appellees had been negligent but that their negligent conduct was not a substantial factor in bringing about the pollution of appellants' well water supply. Timely post-trial ...


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