July 10, 2013
FRANKLIN J. TARANTINO, Appellant
EXXON MOBIL CORPORATION, Appellee FRANKLIN J. TARANTINO, ET AL., Appellant
EXXON MOBIL CORPORATION, ET AL., Appellee FRANKLIN J. TARANTINO, Appellant
EXXON MOBIL CORPORATION, Appellee FRANKLIN J. TARANTINO, ET AL., Appellant
EXXON MOBIL CORPORATION, ET AL., Appellee
Appeal from the Order Entered December 27, 2011 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 599-C-2004,
Appeal from the Order Entered May 17, 2012 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 599-C-2001,
Appeal from the Order December 27, 2011 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 5574-C-2001,
Appeal from the Order Entered May 17, 2012 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 5574-C-2001
BEFORE: BOWES, GANTMAN, and OLSON, JJ.
Franklin and Margaret Tarantino, husband and wife, and their son, Franklin J. A. Tarantino ("Appellants"), filed the present appeals from four orders entered at two different lower court action numbers. At lower court docket number 5574-C-2001, Appellants filed a lawsuit against Texaco, Inc., BP Products North America, Inc., and Exxon Mobil Corporation ("Mobil") to recover damages allegedly caused by gasoline that leaked onto their property from underground storage tanks located at four different gas stations. The only leak relevant in the present appeals was the one that emanated from underground gasoline storage tanks located beneath a gasoline station owned, at various times, by Michael C. Tranguch, the corporation he later formed, Tranguch Tire Service, Inc., and his son, Michael A. Tranguch (collectively "Tranguch"). Appellants then filed a second action at lower court docket number 599-C-2004 against numerous defendants, including Mobil, to recover for damages caused by the same contamination. Appellants thereafter entered a settlement agreement encompassing both the 2001 and 2004 lawsuits as well as all of the defendants in those cases with the exception of Mobil. Franklin J.A. Tarantino then filed a pro se motion at each proceeding to nullify that settlement as to him and his parents; the motions were denied on December 27, 2011. Mobil subsequently was granted summary judgment at both actions on May 17, 2012.
The appeal assigned docket number 231 MDA 2012 is from the December 27, 2011 order entered at action number 5574-C-2001, and that order denied the pro se motion to nullify the settlement agreement. The appeal assigned docket number 232 MDA 2012 is from the December 27, 2011 order entered at lower court action number 599-C-2004 denying the same motion. The appeal assigned docket number 1052 MDA 2012 was filed from the May 17, 2012 order entered at number 5574-C-2001 granting summary judgment to Mobil, and the appeal assigned docket number 1053 MDA 2012 is from the May 17, 2012 order entered at number 599-C-2004 granting summary judgment to Mobil. Thus, the appeals at 231 MDA 2012 and 232 MDA 2012 relate to the December 27, 2011 order denying Appellants the right to avoid the settlement agreement with the defendants other than Mobil, while the appeals at 1052 MDA 2012 and 1053 MDA 2012 pertain to the May 17, 2012 orders granting Mobil summary judgment. We have consolidated the appeals for purposes of disposition, and we affirm all four orders.
The procedural history of the two cases relevant for purposes of these appeals is as follows. On August 23, 2001, Appellants instituted a lawsuit against Mobil and other defendants alleging that they owned and resided in Hazleton, Pennsylvania, from 1968 to 2001. During that time frame, they were allegedly exposed to benzene and other gasoline components that leaked from four gasoline service station sites onto their property, including tanks at the pertinent location owned by Tranguch. Mr. and Mrs. Tarantino sought damages due to Mr. Tarantino's organic brain syndrome allegedly caused by the gasoline leaks, and their son sought expenses for medical monitoring. On January 16, 2004, Appellants instituted another lawsuit against thirteen defendants, including Mobil. They raised the identical allegations as in the 2001 case. In their two cases, Appellants set forth causes of action in negligence, trespass, nuisance, battery, and violations of the Storage Tank and Spill Prevent Act, 35 P.S. § 6021.101, et seq. (the "Act").
On October 30, 2009, Franklin J. A. Tarantino filed a pro se motion in both the 2001 and 2004 lawsuits entitled, "Motion to Nullify Settlement Agreement in Tranguch Gas Spill Case." After those pro se motions were denied on December 27, 2011, counseled appeals were filed. Mobil moved for summary judgment in both actions on the basis that they were not liable for the gasoline spilled from the underground storage tanks located at Tranguch since Mobil had no association with Tranguch's maintenance of the tanks. It was granted summary judgment on May 17, 2012, and appeals were then filed from those orders.
We first examine the propriety of the appeals at 231 MDA 2012 and 232 MDA 2012 from the orders refusing to negate the settlement agreement encompassing the defendants other than Mobil. Those two appeals were improperly filed from interlocutory rather than final orders since, after the orders were entered, one defendant, Mobil, remained in both actions. See Pa.R.A.P. 341 (b) (final order must resolve all claims as to all parties). Despite the fact that the appeals were interlocutory, we conclude that we do have jurisdiction to entertain the propriety of the December 27, 2011 orders denying Appellants' petition to nullify the settlement agreement. We do so because Appellants also filed appeals from the final orders entered at each case, the May 17, 2012 orders granting summary judgment to Mobil, the sole remaining defendant in the 2001 and 2004 litigation.
Since Appellants filed timely appeals from the May 17, 2012 final orders entered in the two actions, the propriety of the previous, interlocutory orders regarding the settlement agreement can be entertained. Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa.Super. 2008) ("It is established that a notice of appeal filed from the entry of the final order in an action draws into question the propriety of any prior non-final orders."); Basile v. H & R Block, Inc., 926 A.2d 493, 498 (Pa.Super. 2007) ("Interlocutory orders that are not subject to immediate appeal as of right may be reviewed in a subsequent timely appeal of a final appealable order or judgment."). Hence, we dismiss the interlocutory appeals, but we consider the propriety of the interlocutory December 27, 2011 orders in connection with the appeals filed from the final May 17, 2012 orders.
In the brief examining the denial of their motion to nullify the settlement agreement, Appellants raise this issue: "Whether the lower court committed an error of law or abuse of discretion in failing to set aside or nullify the settlement agreement entered into based on the fact that Appellant was forced to sign the agreement or seek other counsel?" Appellants' brief at 231 MDA 2012 at 4. Our standard of review in this context was enunciated in Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 408 (Pa.Super. 2010) (quoting Mastroni–Mucker v. Allstate Insurance Co., 976 A.2d 510, 517–18 (Pa.Super. 2009)):
The enforceability of settlement agreements is determined according to principles of contract law. Because contract interpretation is a question of law, this Court is not bound by the trial court's interpretation. Our standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary as the appellate court may review the entire record in making its decision.
In Pennsylvania, "an agreement to settle legal disputes between parties is favored." Step Plan Services, Inc., supra at 408. This principle rests on the premise that there "is a strong judicial policy in favor of voluntarily settling lawsuits because it reduces the burden on the courts and expedites the transfer of money into the hands of a complainant. If courts were called on to reevaluate settlement agreements, the judicial policies favoring settlements would be deemed useless." Id. at 408-09. Once a settlement agreement is entered, it "will not be set aside except upon 'a clear showing of fraud, duress, or mutual mistake.'" Id. at 409 (partially quoting Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943, 947 (Pa.Super. 2004)).
We conclude that Appellants' averments herein, as a matter of law, do not establish a case of duress, which is the sole ground upon which Appellants seek to avoid the contract. Duress is defined as a "degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness. Moreover, in the absence of threats of actual harm, there can be no duress where the contracting party is free to consult with counsel." Lugg v. Lugg, 2013 WL 1286978, 4 (Pa.Super. 2013). Pressure to sign an agreement is not sufficient to establish duress. Id.
In the present case, no actual, threatened, or impending restraint or danger was employed to obtain Appellants' assent to the settlement. Furthermore, since Appellants admittedly were free to consult with another lawyer and since no threats of actual harm were employed, they did not execute the settlement agreement under duress. Indeed, Appellants were able to secure the assistance of counsel for purposes of contesting the propriety of the December 27, 2011 orders on appeal. Hence, we reject Appellants' challenge to the validity of the settlement agreement.
We now address the propriety of the May 17, 2012 orders granting summary judgment to Mobil. In that respect, Appellant raises these issues for our review:
[1.] Whether the lower court committed an error of law or abuse of discretion in failing to find that ExxonMobil is vicariously liable for Tranguch when ExxonMobil had both control and the power to control the daily manner of work at Tranguch.
[2.] Whether the lower court committed an error of law or abuse of discretion in failing to find ExxonMobil liable under the Tank Act because Mobil's control and power to control Tranguch made it an operator of the tanks.
[3.] Whether the lower court committed an error of law or abuse of discretion in failing to find ExxonMobil liable for negligence per se and for a violation of common law duties.
[4.] Whether the lower court committed an error of law or abuse of discretion in failing to find ExxonMobil is liable under nuisance and trespass theories because ExxonMobil controlled and the power to control the underground storage tanks at Tranguch and Tranguch itself.
[5.] Whether the lower court committed an error of law or abuse of discretion in failing to find that Appellant proffered adequate expert proof as to causation, medical monitoring and property damage.
Appellants' brief at 5.
Initially, we outline the principles applicable to review of orders granting summary judgment:
A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non- moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
Ruspi v. Glatz, 2013 WL 2285122, 2 (Pa.Super. 2013) (quoting Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001) (case citations and quotation marks omitted)).
As noted, Appellants herein claim that Mobil is vicariously liable for Tranguch's improper maintenance of the storage tanks because Tranguch was Mobil's agent. In the present case, it is uncontested that Mobil did not own, inspect, maintain or repair the underground storage tanks that leaked gasoline from the Tranguch property. Rather, Tranguch assumed all those roles. Appellants herein seek to impose vicarious liability against Mobil based upon Mobil's purported control over Tranguch's business. Thus, the first, second, and fourth issues presented on appeal pertain to whether Mobil exercised sufficient control over or had the ability to direct Tranguch's business sufficient to impose liability on Mobil for Tranguch's failure to properly maintain the storage tanks. Since we conclude that there is no issue of material fact that Mobil had no control over that business and no right to manage that operation, we reject these three contentions. The pertinent facts follow.
Tranguch's enterprise, as evidenced by its name of Tranguch's Tire Service, primarily engaged in selling and retreading tires and was actually a franchise of Goodyear; indeed, Tranguch never had any written or oral agreements with Mobil. Deposition of Michael A. Tranguch, 6/18/07, at 29-30. As a secondary business, Tranguch also sold gasoline on its premises, and in 1983, Tranguch began to purchase Mobil brand gasoline from a distributor known as Fegley Oil Company. Nevertheless, in 1983, Tranguch had no contract with Fegley and remained free to purchase gasoline from competitors of Mobil. Id. at 35; Deposition of William H. Fegley, Sr., 5/13/03, at 28. Tranguch ceased purchasing Mobil gasoline by 1992, and it stopped selling gasoline in 1993. Deposition of Michael A. Tranguch, 6/18/07, at 30, 14. Tranguch's underground storage tanks were emptied in 1993 and removed in 1995.
Tranguch hired and fired its own employees, who wore uniforms supplied by Tranguch through a uniform service. Id. at 15, 17. The uniform had the employee's name on a patch on one side and "on the other side, a patch with Tranguch Tire Service." Id. at 17. Tranguch was in control of its hours of operation and price structure, had its own bookkeeper, paid its own taxes, and repaired its own buildings.
Tranguch owned and maintained the underground gasoline tanks that resulted in the gasoline leak that is the basis for the 2001 and 2004 lawsuits. Id. at 32. Mobil never inspected any of Tranguch's underground storage tanks and never asked to inspect the tanks. Id. At 35-36. Additionally, Fegley had no control over Tranguch's business operations. Id. at 21 ("Q. Did Fegley have an involvement in your operation? A. Other than supplying me with – with gas, no."); accord Deposition of William H. Fegley, Sr., 11/23/09, at 33 (Fegley had no control of Tranguch's business and no input into that business to any extent); Deposition of William H. Fegley, Sr., 5/13/03, at 41 (neither Mobil nor Fegley set the price at which Tranguch sold gas). Concomitantly, Fegley had no right to inspect or maintain the underground storage tanks located on Tranguch's property.
To summarize, Michael Tranguch stated unequivocally that neither Mobil nor Fegley ever directed him as to how to run his operation. Deposition of Michael A. Tranguch, 11/19/09, at 27. The only reference on Tranguch's property to Mobil was a decal on the gasoline pumps indicating that Mobil gas was being supplied by the dispensers. Tranguch also accepted Mobil credit cards, along with other ones. Accordingly, Mobil never delivered its gasoline to Tranguch, Tranguch did not pay Mobil for the gasoline, and Mobil did not own, maintain, inspect, or repair the underground storage tanks on Tranguch's property and did not have the right to do so.
A Mobil representative inspected Tranguch's property on two occasions. The first was in the early 1980s, and Mobil gasoline was not being sold at Tranguch at that time. It was inspected to ascertain if the station met Mobil's standards to sell Mobil gasoline. In June 1994, a Mobil representative traveling to the site a second time to implement image standards adopted by Mobil in 1994, but that visit occurred over six months after Tranguch had already stopped selling its gasoline. Since Tranguch had already ceased distributing Mobil gasoline by November 1993, the 1994 image standards were never applicable to Tranguch.
Fegley also was an independently operated enterprise, which hired and fired its own employees, owned its gasoline delivery trucks, and sold gasoline to various retail stations. Fegley had offers to sell gasoline from other gasoline manufacturers but chose to do business with Mobil. As did Tranguch, Fegley set its hours of operation and maintained it equipment. Mobil reserved one right, which was to visit gasoline service stations supplied by Fegley to ensure that its trademark was being protected. Mobil did not control the price at which Fegley sold that gasoline to Fegley's customers, including Tranguch. Fegley used its trucks to retrieve the gasoline from the Mobil terminal and then transported and delivered that commodity to Fegley's customers by placing it in the underground storage tanks.
In light of these facts, we conclude that the trial court's grant of summary judgment to Mobil was appropriate. Initially, we note that
not every relationship of principal and agent creates vicarious responsibility in the principal for acts of the agent. A principal and agent can be in the relationship of a master and servant, or simply in the status of two independent contractors. If a particular agent is not a servant, the principal is not considered a master who may be held vicariously liable for the negligent acts of the agent.
Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d 622, 625 (Pa.Super. 1993) (citations and quotation marks omitted).
The decision in Green v. Independent Oil Co., 201 A.2d 207 (Pa. 1964), is particularly relevant to our disposition herein. In that case, our Supreme Court observed that a relationship of principal and agent creates vicarious liability only when the connection is equivalent to that of master and servant rather than independent contractor-independent contractee. The Supreme Court continued that the "hallmark of an employer-employee relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished." Id. at 210. It continued that an independent contractor is a person who has exclusive control over the manner of performance of a business with the person who hired the independent contractor having control only over the result.
In Green, the Court refused to impose liability on a franchisor for negligent acts committed by an employee of the franchisee. Therein, customers at a gasoline station were killed when fumes from a cleaning-solution applied to the garage floor by an employee ignited. Lawsuits were instituted against an oil company and its franchised dealership. The oil company owned the building and land, but its franchisee leased and occupied it. Under the franchise agreement, the dealership was required to purchase all of its gasoline from the company. However, the operator of the gas station controlled the operation of its business in that it maintained and repaired the building, obtained relevant licenses and permits, paid its taxes, hired and fired its own employees, paid their wages, maintained its own bank account, and retained the profits and losses from the business.
The Court ruled that the issue of whether the oil company was liable for acts of the station operator was to be resolved by determining whether the oil company had the control or right of control with respect to the station operator's physical conduct in the performance of his business. It concluded, under the facts therein, that the station operator was not controlled by the oil company.
We applied Green's reasoning in Smith v. Exxon Corp., 647 A.2d 577 (Pa.Super. 1994). In that case, the plaintiff was assaulted on the premises of a mini-mart that sold Exxon gasoline, and she instituted a lawsuit against that company. The plaintiff averred that Exxon was negligent for failing to implement security measures to protect her against criminal activities on the mini-mart's property. Exxon was granted a demurrer, and, on appeal, we affirmed, concluding that Exxon had no duty to protect the plaintiff from the assault. The plaintiff premised liability against Exxon based on its ability to oversee the operation of the mini-mart, and she relied upon a distributor agreement that Exxon had entered with Oliver Oil Company ("Oliver"), which owned the mini-mart.
We concluded that the distributorship agreement did not accord Exxon the ability to exercise control over Oliver's operation of the mini-mart, even though it was an Exxon franchise. Exxon did not own the building or the property where the mini-mart was located and merely distributed gasoline and motor oil to that entity. Rather, Oliver had control over the daily operations of the mini-mart. Thus, we declined to find that Exxon controlled the business sufficient for it to be subject to liability even though it had dress, cleanliness, and customer courtesy standards that were applicable to the mini-mart, it had the unfettered right to sample gasoline at the business, and it mandated that Oliver comply with a marketing plan. See also Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d 622 (Pa.Super. 1993).
In the above cases, the gasoline companies in question had considerably more control over the gas station operators than Mobil exercised over Tranguch and yet were not found to be in a master/servant relationship with those gas stations. Herein, Tranguch was not even a Mobil franchisee, and there was never a contact between Tranguch and Mobil or Fegley and Mobil. Mobil did not own Tranguch's land. Rather, Tranguch owned the service station where the tires and gasoline were sold. Tranguch exercised all of the control of the daily operations of its business that were found dispositive of a lack of control by the gasoline provider in Green and Smith. Mobil did not conduct any on-site inspections of the underground storage tanks at Tranguch and had no connection at all to the daily operations of Tranguch, which was a Goodyear franchise.
Similarly, Mobil is not liable under the Act, which provides in relevant part: "The owner or operator of a storage tank and the landowner or occupier on whose land a storage tank is or was located shall not allow pollution resulting from, or a release to occur from, a storage tank." 35 P.S. § 6021.1310. Mobil did not own the storage tanks and the operative inquiry is whether it can be considered the operator of those tanks. That Act defines "operator" as, "Any person who manages, supervises, alters, controls or has responsibility for the operation of a storage tank." 35 P.S. § 6021.103. As the above-delineated facts demonstrate, Mobil did not manage or control the tanks and never altered them. It similarly lacked the responsibility to operate them. We have rejected the proposition that Tranguch was Mobil's servant with respect to its operation of its tire service and gasoline station. For the same reasons and based on the same facts, Tranguch was not Mobil's agent for purposes of its operation of the underground storage tanks, and Mobil is not subject to liability to Appellants for Tranguch's violation of the Act.
Appellants' reliance upon Juarbe v. City of Philadelphia, 431 A.2d 1073 (Pa.Super. 1981) is misplaced. In Juarbe, plaintiff fell on oil located on a sidewalk adjacent to a gasoline station designated as an Exxon gasoline station that was operated by an individual trading as Duke's Exxon. She sued the municipality, the operator of the gasoline station, and Exxon Company, which supplied the gasoline. The trial court granted summary judgment to Exxon on the basis that it had no control over the operation of Duke's Exxon.
On appeal, we reversed given that there were many facts supporting the existence of control. Specifically, there were two contracts between the gasoline station operator and Exxon. Exxon owned the premises and leased it to Duke's Exxon under a lease agreement. Additionally, there was a sales contract between Exxon and Duke's Exxon. While neither of those documents accorded Exxon the right to control Duke's Exxon, there were affidavits submitted by the plaintiff that indicated that Exxon could exert considerable control over the operation of Duke's Exxon.
Exxon could manipulate the price at which Duke's Exxon had to sell gasoline, and Exxon's rental income from the lease was based upon the amount of gasoline sold by Duke's Exxon. Exxon could refuse to renew the lease if its dealer sold any accessories other than those sold or manufactured by Exxon or its subsidiary companies. The only credit cards that could be used at the gasoline station were those issued by Exxon or its subsidiaries. Exxon's regulation of the quantities and qualities of fuels, as set forth in the sales agreement, was structured so as to render it nearly impossible for Duke's Exxon to sell any fuels other than those provided by Exxon. While the sales agreement appeared to permit Duke's Exxon to sell products of other oil companies, in practice, Exxon threatened to discontinue a dealership if the dealer sold non-Exxon products. Exxon also inspected the gasoline stations through the use of unidentified people. If the inspection proved unsatisfactory to Exxon, it would not renew the lease. The gasoline station employees all had to wear Exxon uniforms, and the gasoline station displayed an Exxon sign.
None of the indicia of control present in Juarbe exists in the present case. Tranguch did not lease the premises from Mobil and did not have a sales agreement or a lease with it. Tranguch employees did not wear Mobil uniforms and that business did not display a Mobil sign. Tranguch was under no legal obligation to buy or sell Mobil gas, and Mobil had no authority to control the price at which Tranguch sold gasoline. Furthermore, Tranguch did not have to sell any Mobil products, and actually sold products from another company. Mobil did not, as noted above, inspect Tranguch during the time frame which Tranguch sold Mobil gasoline. Hence, Juarbe is inapposite.
Since Mobil exercised no control over Tranguch, Mobil did not stand in a master/servant relationship with Tranguch, Tranguch was not its agent, and Mobil is not subject to liability for Tranguch's actions with respect to the underground storage tanks. Thus, we reject the first, second, and fourth assertions on appeal. The third contention on appeal is that Mobil was negligent per se for violating the Act. However, we have concluded that it was not subject to liability under the Act, and, therefore, this argument fails. Additionally, since there was no duty owed to Appellants by Mobil, we need not reach the issue of whether Appellant proffered adequate evidence as to causation and damages.
Appeals at 231 MDA 2012 and 232 MDA 2012 are dismissed. At 1052 MDA 2012 and 1053 MDA 2012, the orders entered on December 27, 2011 and May 17, 2012 are affirmed.