Houston v. Texaco, Inc.

Page 502

538 A.2d 502

371 Pa.Super. 399

Janet S. HOUSTON, Virginia W. Kelso, William Fraker and Arlene M. Fraker v. TEXACO, INC., H.J. Tanner, Inc., Oliver F. Martin, Evelyn Y.

Martin and Jay H. Shannon and Arlene Shannon,

t/d/b/a Shannon's Service Station.

Appeal of H.J. TANNER, INC.

Janet S. HOUSTON, Virginia W. Kelso, William L. Fraker and Arlene M. Fraker, Appellants, v. TEXACO, INC., H.J. Tanner, Inc., Oliver F. Martin, Evelyn Y.

Martin, Jay H. Shannon and Arlene Shannon, t/d/b/a

Shannon's Service Station, Appellees.

Janet S. HOUSTON, Virginia W. Kelso, William L. Fraker and Arlene M. Fraker v. TEXACO, INC., H.J. Tanner, Inc., Oliver F. Martin, Evelyn Y.

Martin and Jay H. Shannon and Arlene Shannon,

t/d/b/a Shannon's Service Station.

Appeal of Jay H. SHANNON and Arlene Shannon, t/d/b/a

Shannon's Service Station.

Superior Court of Pennsylvania.

Argued Nov. 29, 1986.

Filed Jan. 11, 1988.

Reargument Denied March 2, 1988.

Wayne F. Shade, Carlisle, for Houston.

William A. Addams, Carlisle, for Shannon.

Before WIEAND, MONTEMURO and JOHNSON, JJ.

WIEAND, Judge:

The principal issues in this appeal are whether damages may be recovered for (1) emotional distress and (2) inconvenience and discomfort resulting from the contamination of well water negligently allowed to leak from the storage system of a neighboring gasoline service station. We conclude that recovery may be had for inconvenience and discomfort but that there can be no recovery for emotional distress in the absence of attending physical injury. Because the plaintiffs failed to plead a claim for inconvenience and discomfort, however, the jury should not have been permitted, over objection, to consider such a claim.

Jay and Arlene Shannon were the operators of Shannon's Service Station in Centerville, Penn Township, Cumberland County. The gasoline dispensing system at the service station was owned by H.J. Tanner, Inc. (Tanner), a corporation engaged in the business of buying gasoline at wholesale and reselling the same to service station operators. Pursuant to agreement, Tanner was required to maintain and keep in repair the gasoline tanks and equipment which the Shannons used at their service station.

In August, 1981, petroleum distillates were discovered in the well water of Janet Houston, a resident of Centerville, whose home was situated across the street from Shannon's Service Station. At the request of the Pennsylvania Department of Environmental Resources, Tanner tested the station's gasoline dispensing system and discovered that it contained a leak. Tanner repaired the defective portion of the system and conducted an air pressure test. The results of the test suggested that the repairs had been properly made and that the system contained no other leaks. Between June and August of 1982, however, gasoline derivatives were again discovered in Houston's well. They were also discovered in the wells of William and Arlene Fraker and Virginia Kelso, who also were neighbors. Within a month of the last discovery, Shannon reported to Tanner that one of the underground tanks of gasoline had leaked in excess of 500 gallons of gasoline during a forty-eight hour period. Tanner immediately pumped the remaining gasoline out of the leaking tank and filled the tank with concrete.

On June 2, 1983, Houston, Kelso and the Frakers filed a complaint in trespass against Tanner and the Shannons, alleging that each defendant had been negligent in failing to detect and repair the leaking storage tank. ¹ In their complaint, the plaintiffs sought recovery for the cost of water purification equipment, damage sustained to their water pumps and septic systems, increased electric bills, diminution in the value of their homes, and severe emotional distress. With respect to their alleged emotional distress, they asked to be compensated by both compensatory and punitive damages.

Thereafter, Tanner paid all costs incurred by the plaintiffs in installing filtration systems in their homes. When these systems proved unsuccessful, Tanner, at its own expense, furnished each plaintiff with a completely new well. These wells have remained free of gasoline contamination and continue to supply plaintiffs with potable water.

Plaintiffs' claims for special damages, therefore, were abandoned. They proceeded to trial solely upon the claims that defendants had negligently caused them emotional distress. In support thereof, the plaintiffs testified that they had become upset and bitter because of the gas leak. There was no evidence, medical or lay, that any members of the household had become ill because of the consumption of contaminated water. Plaintiffs also offered evidence regarding the inconveniences which they had endured because of the contamination of their wells.

The trial court instructed the jury as follows:

Since certain expenses of all of these plaintiffs have been paid to date by Tanner, such as the drilling of new wells on their properties, your determination of the appropriate damages on the unique facts of this case must be determined as follows: With regard to what we call compensatory damages: 1. Each plaintiff shall be entitled to be reasonably compensated for all aggravation and inconvenience that he or she has suffered as a result of the contamination of their well water; 2. And this is still part of what we call compensatory damages. Each plaintiff shall be entitled to be reasonably compensated for all mental anguish suffered or to be suffered as a result of the contamination of their well water in the manner in which the gas station has been and is being operated.

The jury returned a verdict for the plaintiffs, apportioning 70% of the causal negligence to Tanner and 30% to the Shannons. Damages were awarded as follows: Janet Houston, $13,000; Virginia Kelso, $10,400; William Fraker, $5,000; and Arlene Fraker, $10,000. Additionally, punitive damages were assessed against Tanner in the following amounts: $25,000 to Houston and Kelso, and $12,500 to each of the Frakers. The verdict was later molded to include delay damages.

From early times, the general rule of law in Pennsylvania has been that, except in limited circumstances, a claimant may not recover damages for negligently inflicted emotional distress in the absence of a physical manifestation of the emotional distress allegedly suffered. Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986); Boarts v. McCord, 354 Pa.Super. 96, 511 A.2d 204 (1986); Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985); Justice v. Booth Maternity Center, 345 Pa.Super. 529, 498 A.2d 950 (1985), reversed on other grounds, 510 Pa. 429, 509 A.2d 838 (1986); Rogers v. Nationwide Mutual Insurance Co., 344 Pa.Super. 311, 496 A.2d 811 (1985); Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). Although the Supreme Court has in recent years created exceptions to the rule under compelling circumstances, ² the general rule remains extant in this Commonwealth. Compare: Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987) (to recover for intentional infliction of emotional distress, plaintiff must prove emotional distress by medical evidence).

It may be that the time has come to create an additional exception to allow damages for mental distress under the circumstances similar to the facts of this case. In a case involving comparable facts, the Supreme Court of Montana held that damages for mental anguish were recoverable against a gasoline service station whose gasoline, because of a negligent installation of tanks, had leaked and contaminated plaintiff's neighboring home and restaurant. French v. Ralph E. Moore, Inc., 203 Mont. 327, 661 P.2d 844 (1983). See also: Moreland v. Acadian Mobile Homes Park, Inc., 313 So.2d 877 (La.App.1975), cert. denied, 319 So.2d 442 (damages for emotional distress allowed where effluent from sewage treatment plant for mobile homes park allowed to flow across neighboring land); Spaulding v. Cameron, 127 Cal.App.2d 698, 274 P.2d 177 (1954) (recovery allowed for mental distress where loose dirt was allowed to wash onto neighboring property). See also: 38 Am.Jur.2d, Fright, Shock, and Mental Disturbance § 30.

Whether a new exception to the general rule should be created in Pennsylvania, however, is not for this Court to determine. ³ We are charged, rather, to apply the law as it has been pronounced by the Supreme Court. That law, as we understand it, is that there can be no recovery for negligently inflicted mental or emotional distress in the absence of attendant physical injury to the person of the claimant. When the general rule is applied in the instant case, we are constrained to conclude that there was error in the trial court's jury instructions which allowed plaintiff-appellees to recover for emotional distress. ⁴

It follows that if plaintiff-appellees could not recover compensatory damages for emotional distress, they also could not recover punitive damages against the defendant-appellant for causing worry and concern. Punitive damages cannot be recovered in the absence of a legally recognized injury. See: Hilbert v. Roth, 395 Pa. 270, 276, 149 A.2d 648, 652 (1959) (punitive damages may not be awarded where plaintiff is precluded from recovering compensatory damages); Sulecki v. Southeast National Bank, 358 Pa.Super. 132, 136, 516 A.2d 1217, 1219 (1986) (in order to recover punitive damages plaintiff must first prove compensatory damages); Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 128, 464 A.2d 1243, 1262 (1983) (award of punitive damages improper unless actual damages suffered). Furthermore, punitive damages can only be awarded where a defendant's conduct is found to be malicious, wanton, willful, reckless, or oppressive. See: Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-748 (1984); Chambers v. Montgomery, 411 Pa. 339, 344-345, 192 A.2d 355, 358 (1963); Hughes v. Babcock, 349 Pa. 475, 480, 37 A.2d 551, 554 (1944)....