Wednesday, September 11, 2013

Previous Owner Responsible for Failure of Underground Gasoline Storage Tanks?

Hovis v. Sunoco, Inc., 2013 PA Super 54, 2013 Pa. Super. LEXIS 141 (2013)

Frank Kosir, Jr., Esquire

This matter addressed the issue of whether the Pennsylvania Storage Tank and Spill Prevention Act provided the owner of a parcel of real property contaminated as a result of leaking underground gasoline storage tanks used in their gas station operation with a cause of action against a prior owner of the property who had owned and operated the gas station for a brief period of time.  W. Virgil Hovis and Dorothy D. Hovis (“Owners”) are the owners of certain real property (“Property”) situated in the Borough of Sewickley, Allegheny County, Pennsylvania.  The Property had been used as a gasoline/service station for at least fifty years and had originally been owned by the Owners.  On June 17, 1965, the Owners sold the Property to Sunoco, Inc. (“Sunoco”), which held title until May 12, 1976, at which time it conveyed the Property back to the Owners.  After divesting itself of title, Sunoco supplied the Owners with gasoline for sale at the Property and continued to do so for numerous years.

In January of 1999, the Owners became aware that the underground gasoline storage tanks had begun to leak, resulting in the contamination of the Property.  Several months later, the Owners removed these tanks and commenced remediation procedures, seeking recovery from the Pennsylvania Underground Storage Tank Indemnification Board (“USTIF”) for the costs incurred.  After conducting forensic testing of the Property, USTIF concluded that some of the gasoline spillage predated the 1994 eligibility cut-off date and prorated the Owners’ reimbursement to forty-three percent (43%) of the total cleanup costs. Thereafter, the Owners commenced an action against Sunoco pursuant to Section 1305(c) of the Storage Tank and Spill Prevention Act (“Tank Act”) (35 P.S. §§ 6021.101-6021.2104) seeking recovery for the remaining clean-up costs based on Sunoco’s ownership of the Property from June 17, 1965 through May 12, 1976.  The trial court entered summary judgment for Sunoco concluding, inter alia, that Sunoco was not an “owner” or “operator” as defined by the Tank Act, and that the Owners had failed to establish that any of the contamination had occurred during the time that Sunoco held title to the Property.

On appeal, our Superior Court affirmed.  In issuing its ruling, the court noted that the Tank Act became effective in 1989 and, by its language, applies only to owners of storage tanks from its effective date forward.  In this matter, there was no dispute that Sunoco had divested itself of title to the Property in 1976, well before the effective date of the Tank Act.  Furthermore, there was nothing in the record to support a conclusion that Sunoco had served as the operator of the Property during the effective period of the Tank Act, as its involvement was limited to its delivering gasoline to the Property and placing it in underground storage tanks over which it had a no control.  For these reasons, Sunoco was neither an “owner” nor an “operator” under the Tank Act, and the trial court had properly entered summary judgment against the Owners.

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