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Claims that can be raised under the Storage Tank Act are not restricted to claims that resemble tort law claims, and, therefore, a six-year catchall statute of limitations applies to cases brought under the act, an Allegheny County Common Pleas court has ruled. In Irwin Associates v. George’s Service Center et al., the defendants filed a motion for summary judgment, claiming that the statute of limitations on the plaintiff’s Pennsylvania Storage Tank and Spill Prevention Act had expired. Judge Stanton Wettick Jr. determined that the statute of limitations for tort claims, a two-year period, would apply if each of the claims that may be raised in a private action under the Storage Tank Act resembles an action to recover damages for injury founded on negligence, intentional or otherwise tortious conduct or actions sounding in trespass. “However, if all claims that may be raised under this legislation cannot be characterized in this fashion, the six-year catchall limitation period will apply,” Wettick wrote. In the case, Irwin Associates filed suit against George’s Service Center and other individuals and businesses that used to maintain storage tanks, or whose products used to fill the tanks, on Irwin Associates’ property. Irwin Associates filed suit after materials in the tanks contaminated its property. Wettick cited the Supreme Court’s decision in Gabriel V. O’Hara that held that the controlling issue in private actions under the Consumer Protection Law is not whether claims sound in tort but rather that each claim that could be brought under the law resembled a claim for fraud or deceit. Private actions under the Storage Tank Act are governed by 35 P.S. Section 6021.1305(c), which reads in part: “Any person having an interest which is or may be affected may commence a civil action on his behalf to compel compliance with this act … pursuant to this act by any owner, operator, landowner or occupier alleged to be in violation of any provision of this act or any rule, regulation, order or permit issued pursuant to the act.” According to the opinion, George’s Service Center contended that private claims brought under Section 1305 are the equivalent of common law claims for nuisance and trespass and, therefore, are tortious in nature and are subjected to a two-year statute of limitations as stated in 42 Pa.C.S. Section 5524. George’s Service Center cited Section 1304 of the act that states that a violation of the act constitutes a public nuisance and is, therefore, a tort. Wettick said that he would agree with the defendants that claims should be characterized as trespass if the only claims that may be raised under the Storage Tank Act involve a defendant’s use of its property in a way that interferes with the use and enjoyment of another property. “However, other claims that may be raised under Section 1305 cannot be characterized as actions or proceedings ‘to recover damages for injury to person or property’ or as actions or proceedings ‘founded on negligent, intentional or otherwise tortious conduct or any other action or proceeding sounding in trespass,” Wettick wrote. Wettick also looked to the 3rd Circuit’s decision in Philadelphia Electric Co. v. Hercules Inc. for guidance. In Hercules, the court held that a vendor cannot be held liable to a vendee on a private nuisance theory because tort doctrine is limited to a property owner’s responsibility not to engage in conduct that interferes with the use and enjoyment of neighboring land. Allowing a vendee a cause of action for conditions existing on the transferred land, the Hercules court reasoned, would negate the market’s allocations of resources and risks and would potentially subject vendors that sold land at appropriately discounted prices to liability. In siding with the plaintiffs, Wettick cited several other rulings in similar cases that held that former owners are not liable to subsequent owners for cleanup costs incurred in connection with two sites which it previously owned under theories of public and private nuisance. Wettick therefore determined that the purposes of the Storage Tank Act exceed purposes and obligations of tort law and that claims that can be raised under the act exceed Section 5524′s scope. Section 5524 applies only to an action “to recover damages for injury to person or property” which is founded on “negligent, intentional or otherwise tortious conduct or any other action or proceeding sounding in trespass.” “The language … does not reach an owner’s use of its land in a manner that interferes with a subsequent owner’s use of the same land,” Wettick said. Wettick acknowledged that Pennsylvania appellate courts have not yet addressed the issue of what limitations period covers Section 1305. However, he did look to two common pleas decisions and two federal court rulings when deciding the case at bar. In the common pleas cases, the courts ruled that claims under the Storage Tank Act are governed by a 20-year limitations period. The federal courts applied a two-year limitation based on Section 5524. The first federal case, Two Rivers Terminal v. Chevron U.S.A. Inc., held that the 20-year period set forth in 35 P.S. Section 6021.1314 applies only to proceedings instituted by the commonwealth to recover civil or criminal penalties. While Two Rivers had a fact pattern similar to the case at bar, Wettick declined to apply that court’s holding. “I am not following Two Rivers because I disagree with the court’s conclusions that Two Rivers’ claim against Chevron under the Storage Tank Act was essentially a tort claim akin to a common law claim for nuisance,” Wettick said. A status conference was scheduled for late last week to determine the future of the case.

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