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GRAHAM OIL CO. v. BP OIL CO.

September 1, 1994

GRAHAM OIL COMPANY, Plaintiff,
v.
BP OIL COMPANY, Defendant.


Bloch


The opinion of the court was delivered by: ALAN N. BLOCH

BLOCH, District J.

 Presently before the Court is defendant's motion to dismiss a portion of Counts I and II of plaintiff's amended complaint, and all of Counts III, VI, IX, X, XI, and XII of plaintiff's amended complaint. For the reasons stated in this opinion, the Court will deny defendant's motion to dismiss a portion of Counts I and II, and deny defendant's motion to dismiss Counts III, VI, IX and X. The Court will grant defendant's motion to dismiss Counts XI and XII of plaintiff's amended complaint.

 I. Background

 This action arises out of a dispute between plaintiff, Graham Oil Company (Graham), and defendant, BP Oil Company (BP). On or about April 13, 1994, Graham filed an amended complaint asserting twelve causes of action relating to alleged damage to its property caused by defendant.

 Graham owns the property located at Midland Avenue and Tenth Street in the Borough of Midland, Beaver County, Pennsylvania. On April 25, 1966, Graham leased this property to Boron Oil Company (Boron) for a lease term beginning June 1, 1966 and ending November 30, 1968. Boron exercised its option to extend the lease term three times. On August 1, 1983, the lease was amended by a Lease Amendment signed by Graham and BP, Boron's successor. Subsequently, BP exercised its option to extend the lease term two times. At all times during the lease, the property was used as a gasoline station and service center.

 On January 27, 1992, BP had three 10,000 gallon underground storage tanks removed from the leased premises. On February 4, 1992, BP notified Graham that it was not going to renew the lease, and would allow the lease to expire on November 30, 1992.

 As required by Pennsylvania law, BP submitted a "Closure Report" to the Department of Environmental Regulations (DER) when it removed the three underground storage tanks from service. The Closure Report, dated July 28, 1992, revealed contamination to the subsurface of Graham's property in the form of benzene, toluene, ethylbenzene, xylene, chlorobenzene, 1.2 dichlorobenzene, 1.3 dichlorobenzene, 1.4 dichlorobenzene, and petroleum waste.

 Subsequent to July 28, 1992, Graham obtained a copy of the Closure Report. Prior to July 28, 1992, however, Graham alleges that it did not have any knowledge of any contamination of its property.

 Graham has alleged in its amended complaint that:

 

 (Plaintiff's amended complaint at P 23).

 Count I of Graham's amended complaint asserts a claim under the Federal Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6987 (1976) (as amended) (RCRA). BP has moved to dismiss a portion of Count I on the basis that RCRA does not allow a private cause of action for damages.

 Count II of the amended complaint asserts a claim under the Pennsylvania Hazardous Sites Cleanup Act, 35 Pa.C.S.A. §§ 6020.101-1305 (1988) (HSCA). BP has moved to dismiss a portion of Count II on the basis that HSCA does not allow for a private cause of action for money damages.

 Count III of the amended complaint asserts a claim under the Pennsylvania Storage Tank and Spill Prevention Act, 35 Pa.C.S.A. §§ 6021.101-2104 (1989) (Pa. Tank Act). BP has moved to dismiss Count III on the basis that Graham failed to provide the requisite notice before initiating this action. Alternatively, BP has moved to dismiss a portion of Count III on the basis that the Pa. Tank Act does not allow for a private cause of action for damages.

 Count IV of the amended complaint accuses BP of breaching an implied covenant to quit and surrender in good condition while Count V accuses BP of committing waste. BP has not moved to dismiss either of these counts.

 Count VI of the amended complaint asserts a claim of strict liability based on the common law doctrine of ultrahazardous activity. BP has moved to dismiss Count VI on the basis that the operation of a gasoline station is commonplace, and that it is, therefore, not ultrahazardous as a matter of law.

 Count VII of the amended complaint asserts a state law claim for negligence, and Count VIII asserts a state law claim for negligent interference with business. BP has not moved to dismiss either of these counts.

 Count IX of the amended complaint asserts a state law claim for public nuisance. BP has moved to dismiss Count IX on the basis that Graham has not alleged that it has suffered any damage in the exercise of a right common to the general public.

 Count X of the amended complaint asserts a state law claim for private nuisance. BP has moved to dismiss Count X on the basis that the doctrine of private nuisance applies only to adjoining land owners, and not to landlord-tenant relations.

 Count XI of the amended complaint asserts a state law claim for trespass and/or continuing trespass. BP has moved to dismiss Count XI on the basis that it was legally in possession of the leased property when it was allegedly contaminated, and there was, therefore, no unprivileged, intentional intrusion onto land in the possession of another. BP further contends that Graham cannot maintain an action for continuing trespass because the alleged contamination constitutes a permanent injury and not a continuing trespass.

 Count XII of the amended complaint asserts a common law claim for indemnification. BP has moved to dismiss Count XII on the basis that such a claim is not yet ripe for adjudication.

 After summarizing the appropriate standard of review, the Court will address each of defendant's arguments in turn.

 II. Discussion

 A. Standard for motion to dismiss

 When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all facts alleged by the plaintiff in the complaint as well as any reasonable inferences that can be drawn from those facts. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Legal conclusions are not admitted as true in a motion to dismiss. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When no relief can be granted under any set of facts that could be proved, dismissal under Rule 12(b)(6) is appropriate. Markowitz, 906 F.2d at 103.

 B. Motion to dismiss a portion of Count I: RCRA

 Section 7002(a) of the Solid Waste Disposal Act, 42 U.S.C. § 6972, provides that a citizen may maintain an action against any person "who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of any soil or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B) (the RCRA citizen suit provision). Section 7002 allows the Court to award the following relief when a citizen brings a complaint pursuant to the RCRA:

 
The district court shall have jurisdiction . . . to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste. . ., to order such person to take other such action as may be necessary. . ., [or] to apply any appropriate civil penalties.

 42 U.S.C. § 6972(a). Section 7002 further allows the Court to award "costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party whenever the court determines such an award is appropriate." 42 U.S.C. § 6972(e).

 Although defendant cites numerous cases supporting the principle that the RCRA citizen suit provision does not permit a private action for damages, it is not necessary to reach that issue. In this case, Graham is not using its RCRA claim as an opportunity to assert a private action for damages. Rather, Graham is seeking only the relief authorized by RCRA's citizen suit provision. The prayer for relief in Count I of the amended complaint itemizes the relief available by RCRA's citizen suit provision, and BP's argument that the relief requested is outside the scope of relief allowed under RCRA is, therefore, mooted. For this reason, the Court will deny BP's motion to dismiss a portion of Count I of the amended complaint.

 C. Motion to dismiss a portion of Count II: HSCA

 Section 6020.1115 of HSCA provides that:

 
[a] person who has experienced or is threatened with personal injury or property damage as a result of a release of a hazardous substance may file a civil action against any person to prevent or abate a violation of this act or any order, regulation, standard or approval issued under this act.

 35 Pa.C.S.A. § 6020.1115(a) (the HSCA citizen suit provision).

 In addition to allowing citizens to seek injunctive relief, the HSCA citizen suit provision ...


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