Thе JUNIATA VALLEY BANK v. MARTIN OIL COMPANY v. Angela T. Dalton, Zeigler & Weizer Real Estate Partnership, Herbert Weizer and Edgar K. Ziegler. Appeal of Martin Oil Company (at 1138). The Juniata Valley Bank, Appellant (at 2), v. Martin Oil Company v. Angela T. Dalton, Zeigler & Weizer Real Estate Partnership, Herbert Weizer and Edgar K. Ziegler, Appellees.
Superior Court of Pennsylvania.
Argued Dec. 16, 1998. Filed Aug. 4, 1999.
Robyn K. Bowman, Harrisburg, for Juniata Valley Bank.
Before POPOVICH, SCHILLER and OLSZEWSKI, JJ.
POPOVICH, J.
¶ 1 In this action, Juniata Valley Bank advanced claims of misrepresentation, negligence, trespass, nuisance and violation of the Storage Tank Spill Prevention Act (“STSPA“),
PROCEDURAL HISTORY
¶ 2 On December 24, 1996, Juniata Valley Bank filed a motion for partial summary judgment with respect to Martin Oil‘s liability under the STSPA. In response, Martin Oil filed a cross-motion for summary judgment as to all claims. The court of common pleas granted partial summary judgment in favor of Juniata Valley Bank. Martin Oil Company then requested certification of the case for im-
¶ 3 Instead, the trial court held a bench trial limited to the issue of damages, and, on October 20, 1997, entered a final decree which required Martin Oil to pay costs of abatement in the amount of $182,253.07. Additionally, the court awarded Juniata Valley Bank sixty percent of its attorneys’ fees. Both parties filed motions for post-trial relief, which were denied, and Martin Oil‘s timely appeal and Juniata Valley Bank‘s cross-appeal followed.
SCOPE AND STANDARD OF REVIEW
¶ 4 Our scope of review of a grant or denial of summary judgment is plenary, and we apply the same standard of review that the trial court employs. See Cunningham v. McWilliams, 714 A.2d 1054, 1056 (Pa.Super.1998), appeal denied, ___ Pa. ___, 734 A.2d 861, 1999 Pa. Lexis 40 (Pa.1/12/99). That is, we view the record in the light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact in its favor. See id. Summary judgment is appropriate if the moving party is entitled to judgment as a matter of law and there is no genuine issue of any material fact as to a necessary element of the cause of action or defense. See
FACTUAL BACKGROUND
¶ 5 The subject of this dispute is a property located on Route 32 in Milroy, Pennsylvania (“the Milroy property“). Martin Oil leased this property from 1981 through 1986 from Angela Dalton. At the time of purchase, Martin Oil was aware that since at least 1950, its predecessors had operated a gasoline service station there and that a number of abandoned underground storage tanks remained on the Milroy property. Throughout its occupancy, Martin Oil continued to run the service station and stored the petroleum products for its operations in four of several previously installed underground storage tanks. Martin Oil vacated the property on August 10, 1989.
¶ 6 In November of 1989, Martin Oil entered negotiations for the sale of the premises with the Zeigler-Weiser Real Estate Partnership (“the partnership“). During the negotiations, Martin Oil informed the partnership that both it and the predecessor owners had operated a gasoline service station on the premises. The partnership subsequently sought financing for the purchase of the рroperty from Juniata Valley Bank. The bank agreed to extend a $120,000 mortgage to the partnership.2 The bank‘s branch manager, Randy French, testified in his deposition that he instructed the partnership to obtain indemnity from Martin Oil for any liability that might arise from the prior storage of gasoline and petroleum products at the site.
¶ 7 Originally, the partnership requested the inclusion of an indemnification provision in the contract of sale, but Martin Oil adamantly refused and asserted it would only sell the property on an “as is” basis. As a result of the parties’ negotiations, the contact of sale included an addendum, which stated:
All underground tanks from the Milroy property were removed from the property on November 22, 1989. Martin Oil Company purchased said property on December 22, 1986 from Angela T. Dalton. During the period beginning De-
Addendum to the Agreement of Sale, 1/5/90, at 1.
¶ 8 Closing took place on February 2, 1990. A representative from Juniata Valley Bank attended the closing. Like the agreement of sale, the deed included a provision which stated, “The premises are conveyed in an ‘as is’ condition.” At closing, the bank‘s representative did not review the agreement of sale or deed.
¶ 9 The partnership operated an automobile dealership on the Milroy property until it filed for bankruptcy. Juniata Valley Bank instituted foreclosure proceedings on January 8, 1991, and later purchased the property at sheriff‘s sale. In June of 1992, the bank received an expression of interest in the Milroy property. However, the prospective buyer refused to purchase it absent assurances of environmental soundness.
¶ 10 Pursuant to this request, the bank hired consultants to conduct a preliminary environmental assessment. This assessment revealed the presence of petroleum hydrocarbon contamination in both the soil and groundwater. In January of 1993, the bank hired a second group of consultants to perform a more extensive assessment. Upon completion of the second assessment, the consultants advised the bank to complete soil and groundwater remediation, which would eliminate the high levels of hydrocarbon contamination detected at the site.3
¶ 11 GeoServices, Ltd. (“GeoServices“) commenced remediation on July 1, 1996, and discovered corroded, tank-related pipes and dissolved petroleum product when it excаvated one of the contaminated soil areas. Approximately one week later, GeoServices uncovered an underground storage tank filled with water, a related network of pipes and more dissolved petroleum product. The tank was heavily corroded and had holes in its sidewalls and bottom. The pipes were in equally poor condition.
DISCUSSION
¶ 12 On appeal, Martin Oil presents two arguments. It first argues that the trial court erred in granting summary judgment in favor of Juniata Valley Bank when the bank lacked standing to recover under the STSPA. Second, Martin Oil argues that the trial court erroneously denied its motion for summary judgment, which was based upon the bank‘s status as a foreclosure purchaser and the agreement of sale between the partnership and Martin Oil. In its cross-appeal, Juniata Valley Bank challenges the amount of damages and attorneys’ fees awarded by the trial court.
Liability of Prior Owners Under the STSPA
¶ 13 We first consider whether the trial court properly granted partial summary judgment in favor of Juniata Valley Bank with respect to Martin Oil‘s liability under the STSPA. Both parties frame the primary issue as one of standing. Martin Oil asserts that neither the express language of the STSPA nor relevant case law permits a successor owner of a property to recover damages from a former owner. In addition, Martin Oil contends that the bank, as current owner of the property, is the party liable for the costs of cleanup under the STSPA. Juniata Valley Bank, on the other hand, argues that the STSPA
¶ 14 The princiрles set forth in the Statutory Construction Act,
The object of all statutory interpretation is to ascertain and effectuate the intention of the General Assembly. While the object of statutory interpretation is ascertaining and effectuating the intention of the General Assembly, every statute shall be construed to give effect to all of its provisions. Notwithstanding, when the words of the statute are clear and free from all ambiguity, we will not disregard the letter of the law under the pretext of pursuing its spirit.
Centolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398, 404-05, 658 A.2d 336, 339 (1995) (citations omitted), rehearing denied, 1995 Pa. Lexis 515 (Pa.7/13/95).
¶ 15 Both Juniata Valley Bank and Martin Oil seize upon our supreme court‘s holding in Centolanza to support their arguments on appeal. In Centolanza, our supreme court held that a private citizen could maintain an action against a neighboring property owner under the STSPA for future costs of contamination cleanup and diminution in the value of his property. The Centolanza court construed the STSPA broadly and determined that such a plaintiff was entitled to invoke thе same presumption of liability available to the Department of Environmental Resources. The Centolanza holding, however, does not address the issues presented in this case, namely, whether a current owner may sue a prior owner under the act, and, if so, whether the current owner may invoke the presumption of liability.
¶ 16 Initially, we find Martin Oil‘s challenge to the bank‘s standing unpersuasive. The language that establishes a private cause of action under the STSPA is broad and inclusive:
[A]ny person having an interest which is or may be affected may commence a civil action on his behalf to compel compliance with this act or any rule, regulation, order or permit issued 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 this act.
¶ 17 While we can readily conclude that the bank may maintain its action under the STSPA, it is far less certain that the bank may invoke the presumption of liability against a prior owner or operator of the Milroy property. The structure of section 1311, which addresses the presumption, is not a model of statutory clarity. See Centolanza, 540 Pa. at 406-07, 658 A.2d at 340. Nonetheless, we find the bank‘s contention that Martin Oil is presumed liable for the contamination on the Milroy property inconsistent with the express terms of the statute. Section 103 of the act contains the following definitions:
“Operator.”
Any person who manages, supervises, alters, controls or has responsibility for the operation of a storage tank.
“Owner.”
(1) In the case of a storage tank in use on the effective date of this act, or brought into use after that date, any person who owns or has an ownership interest in a storage tank used for the storage, containment, use or dispensing of regulated substances....
(3) In the case of an underground storage tank, the owner of an underground storage tank holding regulated substances on or after November 8, 1984, and the owner of an underground storage tank at the time all regulated substances were removed when removal occurred prior to November 8, 1984.
¶ 18 In contrast, a significantly narrower class of defendants may be held to the presumption of liability:
(a) General Rule.—Except as provided in subsection (b), it shall be presumed as a rebuttable presumption of law in civil and administrative proceedings that a person who owns or operates an aboveground or underground storage tank shall be liable, without proof of fault, negligence, or causation, for all damages, contamination or pollution within 2,500 feet of the perimeter of the site of a storage tank containing or which contained a regulated substance of the type which сaused the damage, contamination or pollution. Such presumption may be overcome by clear and convincing evidence that the person so charged did not contribute to the damage, contamination or pollution.
¶ 19 In the present case, Martin Oil owned the Milroy property and the tanks upon it “on or after 1984,” and, thus, falls within the definition of “owner,” but it does not currently own or operate the underground storage tanks at issue. Hence, Juniata Valley Bank was not entitled to invoke the presumption of liability against Martin Oil. Absent the statutory presumption, the burden was on the bank to demonstrate that Martin Oil‘s alleged violations of the STSPA caused the contamination on the property. See
¶ 20 We cannot determine from the record whether Martin Oil, through its operations or excavation activities, caused the contamination on the Milroy property. There is evidence of record that suggests that Martin Oil, through its operation of a gasoline service station and its excavation activities, may have caused some of the contamination on the property. Two Martin Oil employees testified in their depositions that some spillage occurred during their excavation efforts. The bank also presented evidence that Martin Oil failed to remove one underground storage tank as well as underground piping from the site when it conducted its excavation of the storage tanks. Additionally, the environmental assessments revealed at least four separate areas on the Milroy property that were contaminated by petroleum product.
¶ 21 However, there also exists evidence that indicates Martin Oil may not have caused the contamination on the Milroy property. The same depositions relied on by the bank reveal that Martin Oil took measures to contain and absorb the spilled petroleum product and also removed the surrounding soil from the site. Further, the bank presented no evidence that Martin Oil knew of the existence of the subsequently discovered storage tank and piping network, utilized them in its operations or attempted to remove them during the excavation. Finally, we note that since 1950, several different individuals utilized the underground storage tanks installed on the Milroy property, and it is possible that their operations may have contributed to the contamination, especially when we consider the age and condition of the discovered tank. In sum, material issues of fact exist as to whether and to what extent Martin Oil caused the contamination on the Milroy property.
¶ 22 The trial court neither discussed nor considered the element of causation when it rendered its decision. It only determined that Martin Oil was liable for all of the contamination on the property because its excavation activities violated section 502(c) of the act.5 Likewise, neither party presented arguments on this issue to the trial court. Without a lower court‘s consideration of the issue and the assistance of briefs by opposing counsel, it would be inadvisable for this Court to consider the issue sua sponte. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 257-60, 322 A.2d 114, 116-17 (1974). We therefore vacate the entry of partial summary judgment in favor of Juniata Valley Bank and remand this matter to the trial court for further consideration.
Martin Oil‘s “As Is” Defense
¶ 23 We turn now to Martin Oil‘s second claim, which is that the trial court erred in
¶ 24 Juniata Valley Bank counter-argues that Martin Oil cannot evade liability under the STSPA, and even if it were possible for Martin Oil to disclaim environmental liability, the purchase agreement failed to do so in express terms. Further, the bank argues that since it was not a party to the agreement or deed of sale, it is not bound by the terms therein. Alternatively, the bank argues that the “as is” clauses ought not be enforced because Martin Oil deliberately eschewed information within its control that would have revealed the property‘s true environmental condition.6
¶ 25 Even if we assume, arguendo, Martin Oil could relieve itself from environmental liability by contract, its аrgument must fail nevertheless. We reject Martin Oil‘s argument that the bank, as a foreclosure purchaser, stepped into the shoes of the partnership and therefore cannot raise any claims previously waived by the partnership. The record simply does not support a finding that, as a matter of law, the bank took possession of the Milroy property subject to the partnership‘s waiver of claims against Martin Oil. Therefore, Martin Oil was not entitled to summary judgment.
¶ 26 It is true, as Martin Oil points out, that a foreclosure purchaser steps into the shoes of the prior owner and acquires only such rights in the property as possessed by the judgment debtor:
A Sheriff‘s Sale is made without warranty; the purchaser takes all the risk, and the rule of caveat emptor applies in all its force. The purchaser at such a sale receives all the right, title, and interest in the proрerty that the judgment debtor held and the rights of the purchaser become fixed when the property is knocked down to the highest bidder. If the debtor had no rights in the property at the time of the sheriff‘s sale, however, no title passes to the purchaser.
CSS Corp. v. Sheriff of Chester County, 352 Pa.Super. 256, 507 A.2d 870, 872 (1986) (citations and footnote omitted), allocatur denied, 514 Pa. 630, 522 A.2d 559 (1987). This principle, however, relates to the quality of title held by the foreclosure purchaser and applies in those cases where the absence of particular warranties of title precludes the purchaser from complaining of a defect in title. Traditionally, six warranties protect the purchaser against defects in the quality of title. See, e.g., Dobbins v. Brown, 12 Pa. 75, 79 (1849); see also 20 AM.JUR. 2d Covenants of Title §§ 46-52. Three are breached, if at all, at the time of conveyance: the covenant of seisin, the covenant of the right to convey
¶ 27 All of the cases cited by Martin Oil in support of its argument concern the quality of title conveyed at a foreclosure sale. For example, the CSS case involved an encumbrance on the title of a lot purchased at sheriff‘s sale. This court held that when the vendee purchased the lot, it acquired only those rights, title and interest in the property that the judgment debtor held. Accordingly, the vendee took title to the lot subject to a lien of a prior purchase money mortgage. See CSS, 507 A.2d at 872; see also, National Penn Bank v. Shaffer, 448 Pa.Super. 496, 672 A.2d 326, 329-30 (1996) (addressing covenant against encumbrances; holding that sheriff‘s sale would not be set aside even though purchaser miscalculated bid based on mistaken belief sale had legal effect of discharging mortgage); DiCarlo v. Licini, 156 Pa.Super. 363, 40 A.2d 127, 129-30 (1944) (addressing covenant of seisin and covenant of right tо convey legal title when judgment creditor owns only a life estate in property; holding that regardless of the rights purportedly transferred to purchaser at judicial sale, legal title did not pass to purchaser because remainderman, not life tenant, possessed right to convey legal title).
¶ 28 In contrast, the quality of title is not at issue in the present dispute. Rather, Juniata Valley Bank seeks to enforce a statutory duty Martin Oil owes to the citizens of the Commonwealth to rectify any harm it caused to the environment because of an underground-storage-tank release. The viability of the bank‘s claim depends upon whether Martin Oil‘s acts caused the contamination on the property. Thus, the mere fact that the bank purchased the Milroy property at sheriff‘s sale will not preclude it from relief.8
¶ 30 In PBS Coals, the purchaser of a strip mining property instituted an action in equity for a declaration that it was not responsible for environmental contamination that resulted from a mine drainage problem on its property. The buyer contended that the vendor was liable for the contamination because no specific language in the agreement of sale addressed the risk of loss for mine drainage problems. This court disagreed and found that the “as is” clause in the contract of sale gave the purchaser notice that the property may have defects, disclaimed any implied warranties and shifted the risk of loss unto the buyer. We reasoned that as sophisticated businessmen, the parties to the sale were presumed to be familiar with terms of common usage in business transactions. Moreover, the inclusion of the “as is” provision of the agreement of sale placed the purchaser on notice that there may be liabilities attendant to the purchase and that the warranties which might otherwise have been imрlied by law did not attach. Accordingly, we held that the “as is” language in the contract insulated the vendors from any liability for subsequently discovered mine drainage problems.
¶ 31 Although similar in some aspects, the present case is distinguishable from PBS Coals. Namely, equivocal language surrounds the term “as is” in the contract of sale and obscures its import. As noted in PBS Coals, our paramount goal in “contractual interpretation is to ascertain and give effect to the intent of the parties.” PBS Coals, 558 A.2d at 564 (citations omitted). To determine the “intent of parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language of the contract was chosen carelessly.” Id. (citation omitted).
¶ 32 In reaching its conclusion, the PBS Coals court emphasized that the “as is” clause in the agreement of sale was clear and unambiguous. A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more that one sense. See Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 200-02, 519 A.2d 385, 390 (1986). Whether an ambiguity in a contract exists is a question of law. See id. The contract provision Martin Oil relies upon is neither clear nor explicit, and it is for this reason that PBS Coals is inapposite to the case sub judice. See id.
¶ 33 The addendum to the contract of sale, when read in its entirety, is capable of being understood in more than one sense. On the one hand, certain portions of the “as is” provision indicate that the property is sold without warranty. The last sentence of the provision, for example, states that “Martin Oil makes no warranty
¶ 34 Martin Oil insists that, under PBS Coals, “as is” means “as is.” This may be true, but we cannot so readily conclude that “in so far as all tanks have been removed the property is sold on an ‘as is’ basis” means “as is.” See Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 476 A.2d 1, 5 (1984) (finding contracts ambiguous where language is capable of being understood in more senses than one, is obsсure in meaning through indefiniteness of expression or has a double meaning). The ambiguity in the addendum to the contract of sale creates a genuine issue of material fact regarding whether the parties intended to alter Martin Oil‘s liability for storage tank releases via the “as is” provision in the contract of sale. See Metzger, 476 A.2d at 5; see also Hutchison, 513 Pa. at 202 n. 6, 519 A.2d at 391 n. 6; Preston v. Saucon Valley School Dist., 666 A.2d 1120, 1127 (Pa.Cmwlth.1995) (Narick, J., dissenting) (“The determination of whether a contract provision is ambiguous is a question of law resolved by the court, while resolution of ... what was intended by the parties relevant to the ambiguous provision, is for the trier of fact.“), appeal denied, 545 Pa. 673, 681 A.2d 1344 (1996).
¶ 35 Moreover, this court seriously questions whether the “as is” provision could bind any party other than the partnership and Martin Oil. It is a well established principle of law that a contract cannot impose obligations upon one who is not a party to the contract. See, e.g., Matter of Estate of Barilla, 369 Pa.Super. 213, 535 A.2d 125, 128 (1987); Cumberland-Perry Area Vocational-Technical School Auth. v. Bogar & Bink, 261 Pa.Super. 350, 396 A.2d 433, 435 (1978); Puerto Rico Marine Management, Inc. v. Ken Penn Amusement, Inc., 574 F.Supp. 563, 566 (W.D.Pa.1983). Ordinarily, it is the party purchasing real estate that is bound by the terms of the bargain it strikes. See, e.g., P.B.S. Coals, 558 A.2d at 564. When a real estate contract or deed imposes obligations on the purchaser to act or refrain from acting, those terms do not bind later owners in the purchaser‘s chain of title unless the obligation runs with the land. See, e.g., Estate of Hoffman v. Gould, 714 A.2d 1071 (Pa.Super.1998); Goldberg v. Nicola, 319 Pa. 183, 178 A. 809 (1935); Finley v. Glenn, 303 Pa. 131, 154 A. 299 (1931).9
¶ 36 Here, Martin Oil Company asks to be relieved of liability for environmental contamination even though the contamination may have resulted from its own failure to comply with the STSPA. The STSPA is an act designed to protect the public welfare, and the bank‘s STSPA
¶ 37 Accordingly, we conclude that neither the bank‘s status as a foreclosure purchaser nor the “as is” provision in the contract of sale entitled Martin Oil to summary judgment.
Cross-Appeal of Juniata Valley Bank
¶ 38 We decline to address the issues raised in Juniata Valley Bank‘s cross-appeal, which relate to the trial court‘s assessment of damages and attorneys’ fees. Juniata Valley Bank asks this court to modify the final decree and award it damages for the diminution in the value of the Milroy property and 100% of its costs of litigation. In light of our finding that the bank was not entitled to partial summary judgment on its STSPA claim, this request is premature. On remand, Martin Oil may be successful, and the issues raised by Juniata Valley Bank will then not arise. As the issues raised in the bank‘s cross-appeal are potentially moot, the court will not consider them further. See Harger v. Caputo, 420 Pa. 528, 533, 218 A.2d 108, 112 (1966) (Where case must be sent back for trial, appellate court “should not consider questions which may not arise unless exceptionаl circumstances exist or questions of great public importance are involved.“); accord Cohen v. Jenkintown Cab Co., 238 Pa.Super. 456, 357 A.2d 689, 694 n. 5 (1976); Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 383-85, 390 A.2d 736, 745 (1978).10
CONCLUSION
¶ 39 For the reasons stated herein, we vacate the final decree, reverse the entry of summary judgment in favor of Juniata Valley Bank, affirm the denial of Martin Oil‘s motion for summary judgment and remand the case for the trial court‘s further consideration.
¶ 40 Final decree vacated. Order which dispensed with the parties’ motions for summary judgment affirmed in part and reversed in part. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
¶ 41 SCHILLER, J., files a Concurring Statement.
SCHILLER, J., concurring.
¶ 1 I concur with the majority‘s decision to vacate the trial court‘s entry of partial summary judgment in favor of Juniata Valley Bank (hereinafter the “Bank“), and to affirm the denial of summary judgment requested by Martin Oil Company. However, I write separately
¶ 2 The record discloses that, at the time the Bank agreed to finance the partnership‘s acquisition of the Milroy property, it was aware that the property had been used as a gasoline service station for many years. Nevertheless, the Bank did not require the partnership to obtain an environmental inspection of the property nor did it conduct its own, independent environmental assessment. The Bank did not insist, as a condition to lending the funds, that the partnership obtain indemnification for environmental contamination from Martin Oil. Indeed, the Bank‘s representative did not even review at closing the agreement of sale or the deed, both of which stated that the property was being purchased on an “as is” basis. Moreover, prior to purchasing the property itself at sheriff‘s sale, the Bank took no steps to evaluate and/or correct any environmental problems. It was only after a prospective buyer sought assurances that the property was not contaminated that the Bank obtained an evaluation and began the abatement process.
¶ 3 While it is clear that the Bank itself did not contaminate the property, it is equally clear that the Bank did not take reasonable steps to avoid acquiring an interest in contaminated property or to ensure in a timely fashion that any contamination would be remedied by the responsible individuals or entities. Having made a bad deal, the Bank is now seeking to recoup the investment it lost through a lack of due diligence. However, as the majority points out, the STSPA should not be available to financial institutions as a form of insurance, permitting mortgagee-turned owners to purchase contaminated properties with a blind eye and then simply look to others for the costs of cleanup. Indeed, under the STSPA the Bank, as the current owner of the property, is presumptively liable to the state government to pay for such costs. See
¶ 4 Moreover, unlike a typical third party purchaser, the Bank was or should have been intimately involved in the negotiation for the original sale of the property to the partnership. While I agree with my colleagues in the majority that the “as is” language in the documents relating to this transaction does not afford Martin Oil relief as a matter of law, I believe that the jury should be able to ascertain the parties’ intentions and determine whether this language, coupled with the Bank‘s conduct, effectively precludes the Bank from recovering against Martin Oil in this instance.
¶ 5 I realize that under the STSPA an owner of underground storage tanks is responsible for contamination such tanks cause to the property. However, I also recognize that, as long as the contamination is cleaned up, the state government is not concerned with who pays for the cost. It may well be that the owner of the property where these tanks are or were located has bargained with a potential purchaser based on an awareness of possible contamination, and that the potential purchaser is willing to accept this risk for a certain price. Under such circumstances, we should not allow the purchaser, and/or a mortgage lender who has acquiesced in the purchase, to hide behind the STSPA
¶ 6 I would therefore remand with instructions for the court to charge the jury that, if they find Martin Oil caused the contamination in question, they should also consider whether the Bank waived its right to recover based on initially securing its investment and subsequently purchasing the property on an “as is” basis.
Notes
Discontinued use.—Upon abandonment or discоntinuance of the use or active operation of an underground storage tank, the owner and operator shall remove the tank and its contents or shall seal the tank, and restore the area in a manner that prevents any future release, and shall remedy any adverse impacts from any prior release in a manner deemed satisfactory to the department.