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Graham Oil Co. v. BP Oil Co.

ELR Citation: 26 ELR 20432
Nos. No. 94-607, 885 F. Supp. 716/39 ERC 2107/(W.D. Pa., 09/01/1994)

The court rules on several motions to dismiss a landlord's statutory and tort claims against a prior tenant that operated a gasoline station and three 10,000-gallon underground storage tanks that allegedly contaminated the site. The court first denies the tenant's motion to dismiss portions of the landlord's claim under the Resource Conservation and Recovery Act (RCRA). The landlord is not using its RCRA claim as an opportunity to assert a private action for damages. Rather, it is seeking only the relief that RCRA's citizen suit provision authorizes. The court next denies the tenant's motion to dismiss a portion of the landlord's claim under the Pennsylvania Hazardous Sites Cleanup Act (HSCA). The court need not determine whether the HSCA prohibits a private cause of action for damages, because the owner is not asserting a private action for damages, but is only seeking the relief the HSCA citizen suit provision authorizes. The court next denies the tenant's motion to dismiss the landlord's claim under the Pennsylvania Tank Act (Tank Act). The landlord's allegation that the contamination constitutes an imminent threat to human health and safety waived the Tank Act's 60-day notice requirements, permitting the landlord to bring suit under the Tank Act immediately on written notification to the Pennsylvania Department of Environmental Regulations (DER). The court holds that the requisite notice of the violation was given to the DER when the tenant submitted its closure report to the DER. The court also holds that the tenant's argument that the relief the landlord seeks is outside the scope of the Tank Act is moot, because the landlord is not attempting to assert a private action for damages, but is seeking only the relief that the Tank Act authorizes.

The court next denies the tenant's motion to dismiss the landlord's claim of strict liability for an ultrahazardous activity. The court notes that the Pennsylvania Supreme Court has not determined whether the operation of a gasoline station qualifies as an abnormally dangerous activity. Citing the Restatement (Second) of Torts, however, the court holds that the landlord may prove a set of facts justifying the treatment of this activity as an abnormally dangerous activity. The court next denies the tenant's motion to dismiss the landlord's claim for public nuisance. The court notes that a release that violates the Tank Act is a public nuisance. The court holds that the landlord has sufficiently alleged that it has suffered harm of a different kind from the general public and that the harm was suffered while exercising a right common to the general public. The landlord is uniquely affected by the alleged contamination to its property, and the pecuniary loss to a plaintiff resulting from a public nuisance normally constitutes a different kind of harm from that suffered by the general public. The court next denies the tenant's motion to dismiss the landlord's claim for private nuisance. While it is a general rule that the law of private nuisance is designed to resolve conflicts between neighboring landowners, there is an exception to this rule that allows an owner of a nonpossessory estate to recover in some circumstances.

The court next grants the tenant's motion to dismiss the landlord's claim for trespass. The landlord cannot maintain an action in trespass based on any of the tenant's alleged activities during the term of the lease, because in order to maintain a trespass action, a plaintiff must have had the right to exclusive use and possession of the property at issue. In the present case, the landlord surrendered exclusive use and possession of the property when it leased the property to the tenant. The court further holds that the tenant's actions constitute a permanent injury to the property, and not a continuing trespass. In order to maintain a claim for continuing trespass, a plaintiff must plead that the defendant committed and continues to commit harm-causing actions, not merely that the harm continues to result from actions that have ceased. Finally, the court grants the tenant's motion to dismiss the landlord's claim for indemnification, because the landlord failed to allege that it has paid any damages to a third party as a result of the tenant's alleged negligence.

Counsel for Plaintiff
Marshall J. Tindall, Robert W. Thomson
Meyer, Darragh, Buckler, Bebenek & Eck
2000 Frick Bldg., Pittsburgh PA 15219
(412) 261-6600

Counsel for Defendant
James V. Corbilli, D. Matthew Jameson III
Babst, Calland, Clements & Zomnir
Two Gateway Ctr., Pittsburgh PA 15222
(412) 394-5400