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DELAWARE COCA-COLA BOTTLING CO. v. S&W PETROLEUM S

August 2, 1995

DELAWARE COCA-COLA BOTTLING COMPANY, INC., Plaintiff
v.
S&W PETROLEUM SERVICE, INC., Defendant


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

August 2, 1995

 BACKGROUND:

 On October 5, 1994, plaintiff Delaware Coca-Cola Bottling Company, Inc., initiated this action with the filing of a complaint alleging that defendant S&W Petroleum Service, Inc., is responsible for the release of fuel oil at a facility owned by plaintiff. The release was discovered on October 10, 1988. Plaintiff has withdrawn two counts of the complaint, those for negligence (Count II) and breach of contract (Count III), and is proceeding solely on Count I, which alleges a violation of the Pennsylvania Storage Tank and Spill Prevention Act, 35 Pa. Stat. Ann. §§ 6021.101 et seq.

 Before the court is a motion for summary judgment filed by defendant.

 DISCUSSION:

 I. STANDARD OF REVIEW

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. " Fed. R. Civ. P. 56(c) (emphasis added).

 
...The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323, 325.

 Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).

 II. STATEMENT OF FACTS

 1. In 1988, defendant entered into an agreement to remove two underground storage tanks from a facility located in Mechanicsburg, Cumberland County, Pennsylvania, owned by the Mid-Atlantic Coca-Cola Bottling Company, Inc.

 2. In June and July of 1988, defendant removed the two tanks, and installed a 10,000-gallon underground heating oil storage tank at the Mechanicsburg facility.

 3. On October 8, 1988, Mid-Atlantic activated the furnace that was attached to the new storage tank.

 4. Fuel was released (allegedly from the new tank) into the soil on the property of Mid-Atlantic, contaminating an area approximately 50 feet wide and 200 feet long.

 5. Investigations into the effects of the release were conducted between 1990 and 1993.

 6. In 1993, OHM Remediation Services Corporation began remediation of the site.

 7. The ongoing remediation efforts have cost approximately $ ...


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