331 Pa. Superior Ct. 241 (1984) 480 A.2d 1012

Russell G. and Dorothy MOORE, Samuel A. and Eleanor Lewis, Charles F. and Mary Dolby, Robert J. and Evelyn Parson, James E. and Patricia Burkholder, and Mary B. Larsen
v.
MOBIL OIL COMPANY, Elmer K. Custer, Jr., Russell A. Custer and Irvin Custer, Individually A/T/A Custer's Garage and Custer's Garage, Inc.
Appeal of MOBIL OIL COMPANY.
Joseph CARLIN and Dorothy Carlin
v.
MOBIL OIL COMPANY and Elmer K. Custer, Jr., Russell A. Custer and Irvin E. Custer, Individually and T/A Custer's Garage and Custer's Garage, Inc.
Appeal of MOBILE OIL COMPANY.
Donald L. and Marlene F. BIEBER
v.
Elmer K. CUSTER, Jr., Russel A. Custer, and Irvin E. Custer, (Individuals), Custer's Garage, Inc. (A Corporation Organized Under the Laws of Pennsylvania), and Mobil Oil Company (A Corporation Organized Under the Laws of New York).
Appeal of MOBIL OIL COMPANY.
Joseph and Lois WHITMAN and Yolanda Duke
v.
MOBIL OIL CORPORATION and Elmer K. Custer, Jr., Russel A. Custer and Irvin Custer, Individually A/T/A Custer's Garage and Custer's Garage, Inc.
Appeal of MOBIL OIL CORPORATION.
Russell G. MOORE, Dorothy Moore, Samuel A. Lewis, Eleanor Lewis, Charles F. Dolby, Mary Dolby, Robert J. Parson, Evelyn Parson, James E. Burkholder, Patricia K. Burkholder and Mary B. Larsen
v.
MOBIL OIL COMPANY and Elmer K. Custer, Jr., Russell A. Custer, Irvin Custer, Individually and Trading as Custer's Garage and Custer's Garage, Inc.
Appeal of Elmer K. CUSTER, Jr., Russell A. Custer, Irvin E. Custer and Custer's Garage, Inc.
Joseph CARLIN and Dorothy Carlin
v.
MOBIL OIL COMPANY and Elmer K. Custer, Jr., Russell A. Custer, Irvin Custer, Individually and Custer's Garage and Custer's Garage, Inc.
Appeal of Elmer K. CUSTER, Jr., Russell A. Custer, Irvin E. Custer and Custer's Garage, Inc.
Donald L. and Marlene F. BIEBER
v.
MOBIL OIL COMPANY and Elmer K. Custer, Jr., Russell A. Custer, Irvin Custer, Individually and Trading as Custer's Garage and Custer's Garage, Inc.
Appeal of Elmer K. CUSTER, Jr., Russell A. Custer, Irvin E. Custer and Custer's Garage, Inc.
Joseph and Lois WHITMAN and Yolanda Duke
v.
MOBIL OIL COMPANY, Elmer K. Custer, Jr., Russell A. Custer, Irvin Custer, Individually and Trading as Custer's Garage and Custer's Garage, Inc.
Appeal of Elmer K. CUSTER, Jr., Russell A. Custer, Irvin E. Custer and Custer's Garage, Inc.

Supreme Court of Pennsylvania.

Argued September 6, 1983. Filed June 22, 1984.

*245 Joseph F. Moore, Jr., Philadelphia, for appellant (at Nos. 2259, 2260, 2261 and 2262) and for appellee (at Nos. 2269, 2270, 2271 and 2272).

William H. Kinkead, III, Norristown, for appellants (at Nos. 2269, 2270, 2271 and 2272) and for appellees (at Nos. 2259, 2260, 2261 and 2262).

Mark D. Turetsky, Norristown, for appellees Moore, Lewis, Dolby, Parson, Burkholder, Larsen, Whitman and Duke.

Before ROWLEY, POPOVICH and MONTGOMERY, JJ.

MONTGOMERY, Judge:

The instant appeal arises from an Order by the lower court, sitting en banc, which denied the Appellants' exceptions to a Decree Nisi. The lower court adopted the Chancellor's Decree Nisi as its Final Decree. This action was initiated by the Appellee landowners to seek equitable relief as the result of the contamination of the Appellees' ground water supplies.

The factual record, which is substantial in this case, shows the following:^[1] The Appellants, Elmer J. Custer, Jr., Russell A. Custer and Irvin E. Custer had for many years operated, as a partnership, a service station and garage in the Village of Oaks, in Montgomery County. The Custers purchased their petroleum products from the Appellant Mobil Oil Corporation, which was also the owner and lessor of the underground tanks in which the Custers stored the gasoline sold in their station.

*246 On Monday, July 16, 1979, Elmer K. Custer, Jr. opened the service station, which had been closed the prior two days. He pumped ten to eleven gallons of gasoline into the vehicle of the first customer of the day, when for no apparent reason the flow of gasoline from the pump ceased. He immediately checked the gasoline storage tank which serviced his pumps. This tank, which had a 4,000 gallon storage capacity, was "manifolded" to another 2,000 gallon underground tank. The system operated so that the smaller tank fed into the larger one. When he checked the tank with a "dip-stick", he concluded that it was empty.

Elmer K. Custer, Jr. promptly called the police because he suspected possible foul play. The prior weekend had been announced as a period for a state-wide shutdown of gas stations by an independent gasoline dealers' association. On Friday, July 13, 1979, when the shutdown was scheduled to begin, Elmer Custer received a telephone call from an anonymous caller who asked if Custers' station would be open that day. After Elmer answered in the affirmative, the caller stated that he would not recommend that it be opened. During the hearings before the Chancellor, a witness unrelated to the parties testified that late in the evening on Friday, July 13, 1979, he observed a man standing next to a silver colored petroleum tanker truck parked in the driveway of the Custers' station. He further testified that he did not observe any logo on the side of the tanker, but did see a hose running from the center of the tanker into the ground at the area of the intake for the underground tanks. Russell Custer testified that he could not recall any time during his thirty years in business when he had received a shipment of gasoline from a tanker truck with no logo, nor could he recall ever receiving a delivery in the evening.

Records maintained by the Custers indicated that as of July 13, 1979, their tanks should have contained 3,338 gallons of fuel, plus or minus ten to twenty gallons. They promptly notified Mobil of the loss of gasoline and on July 17, 1979 two Mobil employees visited the station. These *247 representatives also confirmed the absence of fuel in the tanks by dip-stick measuring them. They also discovered that the Custers did not maintain appropriate records in regard to the fuel, and were not aware that there was a state law (See 35 P.S. § 1181), which required a daily reading of the tanks by a dip-stick measurement. It had been the Custers' practice to make such a measurement only once a week. The Custers instead calculated the amount of fuel they had in storage on a daily basis by taking a reading from gauges on each pump which indicated the amount of gasoline dispensed through that pump each day. From these readings, figures were derived which were tallied on a daily inventory sheet, although it was conceded by Elmer Custer that the dials on the gas pumps only registered how much fuel came out of the tanks and did not accurately indicate how much fuel remained in the tanks, between weekly dip-stick readings.

In an effort to determine the manner in which the approximately 3,300 gallons of fuel were lost or stolen from the Custers' station, Mobil had one of its field engineers test the tanks by filling them with water and then taking periodic measurements. By various measurements between July 18, 1979 and July 23, 1979, the engineer determined that some three inches of water had escaped, indicating that the 4,000 gallon tank was a "leaker". He recommended to Mobil that because of a possible leak, and also because the tanks were then 25 to 30 years old, they ought to be removed. Other evidence showed that the same engineer tested the 4,000 gallon tank, with water, for a period of approximately one month, and the tank showed an approximate loss of over one foot and three inches of liquid.

It appears that the 4,000 gallon tank as well as the connected 2,000 gallon tank were removed from the ground on August 22, 1979. Several of the individuals who were present at that time and who visually inspected these tanks agreed that the only hole in them appeared to be near the top of the 4,000 gallon tank. One witness testified that the hole was about the size of a quarter to a half dollar. Those *248 who testified agreed that the tank was rusted and pitted with corrosion. A representative from the Pennsylvania Department of Environmental Resources ("DER") characterized the tank as being in "poor shape, fair to poor shape." In response to questions during the course of hearings conducted by the lower court, witnesses acknowledged that even a careful examination of the tanks might not discover small holes that caused a leak, and that such small holes could expand, causing gasoline leakage, because of pressure exerted by the weight of fuel against the walls of the tank.

Also introduced in proceedings before the lower court were copies of notes taken by a claims adjuster for Mobil. In those notes, the Mobil representative indicated that he and an expert hired by Mobil in connection with this problem traveled around the area of the Custers' station and located two other nearby service stations, which are identified as the Arco and Sunoco stations. The notes reflect that the expert concluded that because of their distance from Custers' station, it was doubtful that the other two stations were responsible for the contamination which occurred.

The actual effects of gasoline contamination in well water in the area had been noticed by residents in the area as early as November, 1978. Residents of homes which were located down a hill and on either side of the Custers' Mobil garage began noticing a change in the quality of their well water at that time, and some stated that it had an odor of gasoline. This change prompted the filing of complaints with the DER. That agency began sampling and testing the well water at eighteen separate locations in the Village, all in the general area of the Custers' facility. These samplings began before the reported loss of fuel at the garage and continued until July 23, 1980. Not all of the wells were tested on each occasion of testing. Of the wells tested on August 22, 1979, four wells showed no gasoline contamination, whereas four wells had gasoline infiltration ranging from 1.5 to 20.0 parts per million. In testing on *249 November 9, 1979, December 18, 1979 and April 3, 1980, three wells were not contaminated, yet nine had levels detected in the range from .8 to 20.0 parts per million. Samples taken on April 10, 1980 and July 23, 1980 showed that ten had no trace of gasoline, but nine registered petroleum pollutants ranging from .4 through 13.0 parts per million.

There was no evidence introduced of a particular state or federal standard establishing the level at which petroleum pollutants may be present in a water supply. However, proof was presented that a DER agent wrote to a resident in the area that while a small amount of petroleum product in well water might not be considered an eminent health hazard, it would make the water obnoxious to taste or smell, and therefore "unusable or undrinkable." The DER representative further stated that any amount of gasoline or petroleum product in the water "should label that water as polluted."

As a result of the problems in their water supply, the Appellees filed Complaints in trespass and equity against the Appellants in the Court of Common Pleas of Montgomery County. In all of the Complaints, the Appellees sought relief in the form of compensatory and punitive damages, as well as the implementation of the court's equitable powers to abate and remove a nuisance. In the latter regard, the Appellees sought an injunction to restrain the Appellants from handling or mishandling gasoline so that it entered the source of the Appellees' water. While admitting that Mobil was the owner of the storage tanks located at Custers' service station, none of the Appellants admitted any of the other material allegations of the Appellees' complaints. Thus, they denied that they caused or permitted gasoline to leak, spill or otherwise escape from the storage tanks, denied that they had acted in a reckless, negligent or careless manner, and denied that they had failed to inspect, maintain, supervise or correct conditions, or to recover and control gasoline after any spillage, leakage, or loss at Custers' station so as to prevent its escape into the ground *250 and thereby contaminate the Appellees' water supply. In all ways, each of the Appellants denied liability or the responsibility for payment of damages under any theory of recovery. Each maintained that no gasoline had escaped from the tanks in question to invade the Appellees' properties and to contaminate their water source. In New Matter, each of the Appellants sought indemnification from the other Appellants on theories of implied and/or expressed indemnity or precepts of trespass and assumpsit.

On November 21, 1980, counsel for the Appellees, in a petition for mandatory injunction, demanded relief including:

(a) That Defendants be restrained and enjoined from further polluting the Plaintiffs' wells; (b) that a mandatory injunction be issued ordering Defendants to go upon the Plaintiffs land and gather, capture, filter, or otherwise remove from Plaintiffs' wells the gasoline found therein in such a manner as not to cause further damage to Plaintiffs' properties; (c) that Defendants, upon proof of same, be ordered to pay an amount of money necessary to place Plaintiffs' land in the condition that it was prior to the improper conduct of Defendants, to pay any amount of money necessary for the replacement and/or repair of Plaintiffs' properties and to pay a reasonable sum of money to Plaintiffs for Plaintiffs lose [sic] of use and enjoyment of said land; (d) that Defendants upon proof of same, be ordered to pay an amount of money reimbursing Plaintiffs for all costs and expenses including a reasonable attorney fee for the expenses they have incurred as a result of Defendants' conduct; (e) such other relief as the Court deems proper and just under the facts as presented.

On December 16, 1980, the Appellees obtained an order of court setting January 5, 1981 for a hearing on the question of whether or not a preliminary mandatory injunction should be issued, pending a final hearing in the case. On December 22, 1980, a praecipe for civil trial list bearing the signatures of the counsel for both sides was filed, indicating *251 that the case was in all respects ready for trial, but stipulating that discovery could continue until the case was listed for trial. Subsequently, interrogatories were filed on behalf of the Appellants, which had been answered by some of the Appellees. In addition, depositions were taken of the Custers, two Mobil representatives, and of the operators of the Sunoco and Arco stations situated in the vicinity of the Custers' Mobil garage.

A hearing commenced before the lower court on February 6, 1981. Since the cases involved similar matters of proof, counsel for the various Appellees consolidated their efforts. They asserted that they planned to present evidence that the Appellants had polluted the Appellees' wells with gasoline, and that there was enough evidence to justify the granting of equitable relief by the court. It is noteworthy that there was a consensus expressed among all involved in the hearing that the proceeding would deal with whether the Chancellor at that time could grant the "mandatory preliminary injunction" requested by the Appellees, and that the hearing would not involve questions leading to the calculation of damages claimed by the Appellees. The preliminary injunction hearing in this case consumed three days of testimony and generated a transcript of 523 pages. All of the Appellees who testified described their well water as being unpalatable and odoriferous. These conditions existed despite the fact that some had installed charcoal filtration or water softeners. Appellees also testified that they had experienced itching, dry skin, hives, and other problems as a result of use of the well water, and related that they had been forced to limit their use of such water to such things as flushing toilets and washing vehicles. They further related that their dishes and fixtures had become stained. Many described the odor as that of gasoline. In order to deal with these problems, some of the Appellees had to resort to the purchase of elaborate equipment or potable water, while others relied upon friends or relatives to provide them with water.

*252 A number of witnesses testified concerning the issue of the source of the pollutants. As noted earlier, testimony came from employees of Mobil which indicated that the 4,000 gallon tank was a "leaker", and that the surface of it was corroded and could be perforated without effort by an object such as a car key. As assistant professor of environmental science at Pennsylvania State University, who was hired by the Appellees, collected samplings from the wells and conducted tests on the samples. This witness testified that while he could not say for sure whether the 3,300 gallons of fuel at Custers' facility was lost at one time or over a long period, he nonetheless believed that there was gasoline coming from that source. Further, he related that based upon his observations, tests, discussions with other experts, and other information, he did not believe that the gasoline had flowed into the Appellees' water supplies from either the Arco or the Sunoco station. His conclusion was also based upon consideration of the terrain, the purported nature of the underground water table, and some rather inconclusive chemical testing.

An expert hired by Mobil to conduct his own investigation also testified. While it is clear that he took issue with some of the conclusions drawn by the Appellees' witness, as described above, he also affirmed that during his investigation, he had reached a conclusion that it was "doubtful" that the Arco and Sunoco stations were responsible for the contamination due to their distance from Custers' garage, and because no house in between their locations and the Custer location had reported well problems.

After concluding these hearings, the Chancellor decided to issue no preliminary injunction. Instead, he held settlement conferences with the parties. On February 26, 1981, after it appeared that attempts to settle the case would be unsuccessful, the Chancellor entered an order that a final hearing on the request for injunctive relief would take place on March 13, 1981. The Appellants filed various motions, including requests for discovery, for a continuance of 120 days, and for clarification of the Order setting the March *253 13, 1981 hearing. The Chancellor denied these motions. At the subsequent hearing, at which only Russell A. Custer appeared on behalf of the Appellants, the Chancellor issued findings of fact and conclusions of law in support of a Decree Nisi. That Decree, inter alia: (1) permanently enjoined the Appellants from polluting the ground and the ground water in and about the vicinity of the Appellees' wells; (2) ordered the Appellants to take such measures as might be necessary to assure that the gasoline and other contaminants presently in the soil and ground water as a result of the leakage from underground gasoline tanks in Custers' garage would not pollute the Appellees' wells; (3) required the Appellants to submit a comprehensive proposal to supply the Appellees with safe and potable water for domestic use, with such proposal to be prepared in consultation with Appellees' expert consultant, with requirements that reports be submitted to the court concerning such efforts; and (4) directed the Appellants, "as a means of mitigating damages", to provide the Appellees with an alternative supply of safe and potable water for domestic use.

The Appellants proffered over 300 exceptions in proceedings before the lower court, all of which were dismissed by the court en banc. Nine contentions of error are presented for our consideration in this appeal. We are constrained to find merit in several of the points raised by the Appellants.

We first address the Appellants' complaint that the Chancellor improperly ordered, sua sponte, that the March 13, 1981 hearing be a "final hearing for injunctive relief" and improperly denied them the opportunity to engage in further discovery prior to that hearing. It does not appear that the Pennsylvania Rules of Civil Procedure specifically dictate when a final hearing must be held subsequent to a preliminary hearing on a request for an injunction. See Duggan v. 807 Liberty Avenue, Inc., 447 Pa. 281, 290, 288 A.2d 750, 755 (1972). Rule 1531(f)(1) makes it clear that a final hearing may be granted upon the demand of the *254 defendant after the issuance of a preliminary injunction.^[2] However, the Rules do not establish any authority for a lower court to act, sua sponte, to order a final hearing.

In Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983), our Court recently reviewed a case in which the court entered an order of non pros sua sponte. It was held that the court's order was in error because Rule of Civil Procedure 1037(c) only authorizes the court to enter such an order "on motion of a party". Similarly, in Edward M. v. O'Neill, 291 Pa.Super. 531, 436 A.2d 628 (1981), this Court held that the trial court acted improperly in issuing an injunction sua sponte, when none had been sought by the plaintiff. The same conclusion as to the lower court's sua sponte order for a final hearing is mandated in the instant case. Our finding of error is also compelled by the apparent possibility that the Appellants may have been prejudiced by the lower court's denial of Appellants' requests for further discovery and a delay in any final hearing on the injunction. Thus, we can only consider the lower court's action as being valid, from a procedural view only, up to the time it denied a preliminary injunction after the initial hearings.

As a procedural matter, we could therefore remand this case for further proceedings, since it would ordinarily not be our practice to review a dispute involving such a preliminary order. However, because it is clear that there are other serious substantive problems regarding the lower court's order in this case, we cannot serve justice by merely remanding on procedural grounds and ignore the fact that the lower court en banc affirmed obviously improper actions by the Chancellor. All such matters are covered by exceptions filed by the Appellants in the lower court and by arguments they have raised on this appeal. It is appropriate that we address these problems at this time.

*255 In our evaluation of the propriety of the Chancellor's order, our foremost concern is that he issued an injunctive order mandating significant affirmative conduct by the Appellants. It must be recognized that a mandatory preliminary injunction is an extraordinary judicial act and should be issued only in rare cases, and certainly more sparingly than an injunction which is merely prohibitory. Shanaman v. Yellow Cab Co. of Philadelphia, 491 Pa. 516, 421 A.2d 664 (1980); Roberts v. School Board of the City of Scranton, 462 Pa. 464, 469-70, 341 A.2d 475, 478 (1975). The court must exercise extreme care and act in only the clearest of circumstances. Roberts v. School Board of the City of Scranton, id., at fn. 4.

It is with such concepts in mind that we have reviewed the record. Our independent examination leads us to the firm conclusion that there were no apparently reasonable grounds for the court to conclude, with the requisite assurance necessary for the issuance of a mandatory injunction, that the Appellants' gasoline tanks were the cause, or especially the sole cause of the contamination of the Appellees' ground water supplies. This finding by the lower court was clearly speculative in the absence of any evidence of leakage testing of the similar tanks used by the other gasoline stations in the same area. It simply cannot be determined with assurance that either or both of those facilities were not the source or partially the source of the petroleum pollution. The conjectural nature of the lower court's finding as to the Appellants' culpability for the contamination does not permit us to sustain the issuance of an extraordinary mandatory injunctive order in this case.

It is also apparent that two particular aspects of the lower court's mandatory order are legally improper, even if one were to find validity in the lower court's conclusion that the Appellants were responsible for the contamination of the Appellees' wells. First, the court's order that commanded the Appellants to cease polluting the Appellees' grounds and ground water was inappropriate because the evidence showed that the Appellants had already removed *256 the tanks which were allegedly the source of the leakage and replaced them with new ones. One cannot imagine any further steps the Appellants could take to assure no further seepage of their petroleum into the ground. Since the possibility of continuing seepage was thereby prevented, the court had no reasonable basis for including such a mandate in its order.

Second, we must hold improper that part of the lower court's order requiring that the Appellants implement measures necessary to assure that the gasoline and other contaminants already in the soil and ground water did not continue to pollute the Appellees' wells.^[3] It is evident from the evidence of record that a workable and scientifically proven solution to the problem of continued subsurface seepage of gasoline already in the ground into the Appellees' water supply is uncertain.^[4] The only alternatives *257 offered by the parties gave no guarantees of success. It is clear that the lower court has therefore required the Appellants to take action that appears to be impossible to accomplish. We cannot affirm such an order.

We are certainly troubled by the great inconvenience and significant harm which has been visited upon the Appellees by the reprehensible pollution of their potable water supplies. The constant difficulty and hardship of living with this condition cannot be ignored or minimized. However, our cognizance of their plight does not lead to the conclusion that the lower court's clearly excessive and improper exercise of equitable powers should be affirmed.

This matter should have been certified to the law side of the court. The harm suffered by the Appellees can be fully remedied by an award of damages. In that regard, we note that the lower court's order requires the Appellants to provide the Appellees with potable water supplies. Yet, the record shows that most or all of the Appellees had already been procuring their own safe water supplies for a significant time prior to the initiation of this litigation in the lower court. The Appellees could be adequately compensated through an award of money damages for both actual expenses they incurred in such efforts as well as for any inconvenience involved in the process, both before and after the date of the hearings in the lower court. Likewise, they can be fully compensated by receiving damages for the loss in the value of their properties, homes, and water supplies, as well as for the harm and inconvenience they have suffered in the past and may suffer in the future. The availability of an adequate remedy at law makes it clear that equitable relief of the type granted by the lower court should have been withheld.

*258 The Order of the lower court is reversed and this case is remanded to the lower court with directions that it be certified to the law side of the court for further proceedings.

Jurisdiction is Relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge, dissenting:

Inasmuch as I take issue with the factual and legal conclusions drawn by the Majority, in particular that the lower court had "no apparently reasonable grounds" for finding that the "Appellants' gasoline tanks were the cause. . . of the contamination of the Appellees' ground water supplies . . .", (Majority's Opinion at 1019), I have prepared a detailed accounting of what transpired below in support of my position.

Viewing the evidence in compliance with the applicable standard of review, see Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981), the following appears of record: On Monday the 16th of July, 1979, Elmer K. Custer, Jr., opened, as he had for the past 32 years, the Mobil station for business, which he owned in partnership with his two brothers, Russell A. Custer and Irvin Custer. The station was closed that Saturday and Sunday, the 14th and 15th of July. This was the weekend the independent dealers' association had called for a state-wide shut down of gas stations.

In servicing the first customer of the day, Elmer had pumped 10 to 11 gallons of fuel into the vehicle when, for no apparent reason, the flow of gasoline from the nozzle stopped. Immediately, Elmer "dip-sticked" the 4,000-gallon underground tank, which, in turn, was "manifolded" to another 2,000-gallon underground tank, and "it was empty." This prompted Elmer to notify the police because that Friday the 13th, when the independent gasoline retailers were scheduled to go on strike, he received an anonymous call wanting to know if he would be opened that day. After *259 he answered, "We expect to be," the caller, according to Elmer, said, "Well, I don't recommend it."

A few days following the incident, a John H. McDermott, after hearing about the matter at work, stopped and informed Elmer that, at approximately 11:30 p.m. on the 13th of July, he had been driving past the station on his way home when he observed (and proceeded to describe) a man standing next to a silver colored tanker truck parked in the driveway. Although the mercury lights were on at the station, McDermott did not observe any logo on the side of the tanker, but he did see a hose running from the center of the tanker into the ground near the intake cap for the underground tanks. Further, Russell Custer could not recall, during his 30 years of business, receiving a shipment from a tanker truck with no logo, or, since the business was not opened nights, a delivery in the evening.

Mobil Oil Corporation, the owner and lessor of the underground tanks, was notified of the purported loss (theft) of gasoline. The Custers' records indicated that as of July 13, 1979 the tanks should have contained 3,338 gallons of fuel, plus or minus 10 to 20 gallons. (RR. 712a) As a result of the unexplained loss, on the 17th of July, 1979, Mobil personnel (John Woolfolk — sales representative and Arnie DiFlorio — field engineer) went to the site. After confirming the absence of fuel in the tanks by "sticking" them, DiFlorio discovered from the dealer (Elmer) that there were "no records on location" in regard to the fuel. (RR. 355a) In fact, Elmer admitted that he, along with his two brothers, had no idea that the law required a "daily" reading of the tanks by "dip-sticking" them. See 35 P.S. § 1181. It was the Custers' practice to "dip-stick" the tank once a week.^[1] (RR. 320a, 708a & 739a) The Custers' procedure for calculating the amount of fuel on hand consisted of taking the "totalizer readings" from the pumps (consisting *260 of three to dispense the gasoline) at the open and close of business, and subtracting the evening readings from the morning readings. (RR. 322a & 701a) These figures were then transferred to a daily inventory sheet (manila envelope). (RR. 324a & 701a) However, Elmer conceded that the dials on the gas pumps only registered how much fuel came out of the tanks and "don't give the total of the gasoline in the tank[s.]" (RR. 332a) In other words, it was "presumed" that the estimation of fuel in the tanks (3,300 gallons at the close of business on Friday the 16th of July, 1979,) was correct. (RR. 334a & 370a)

It is to be noted that since the 2,000-gallon tank was "manifolded" by means of a pipe to the 4,000-gallon tank, which caused a vacuum to be created that drew the fuel from the smaller tank into the larger one when gas was being dispensed, only the larger tank had to be "dip-sticked." Also, it was the practice of the Custers to let the tanks run down to a level of 2 to 3 hundred gallons of gasoline before ordering more. This was because of the Custers' small (6,000-gallon) capacity and Mobil's policy of delivering no less than 5,000 gallons at one time. (RR. 706a-708a) One sees from the record that this practice was varied, however, during the gasoline shortage in the Fall of 1979.

In order to attempt to ascertain the manner in which the purported 3,300 gallons of fuel were lost or stolen from the Custers' garage, Mobil's field engineer (Arnie DiFlorio) water tested the tanks. He did this by placing, with the help of the local fire department, 1,500 gallons of water in each tank on July 18, 1979. Between 12:10 p.m. on the 19th and 8:25 a.m. on the 20th there was a loss of 1/2 inch of liquid from the 4,000-gallon tank. (RR. 345a) On the 23rd, the tank again was measured and DiFlorio recorded that it had lost 2 1/2 inches of liquid and that it was a "leaker." (RR. 345a) As for the 2,000-gallon tank, there appeared to be no loss of water. (RR. 364a) Nonetheless, DiFlorio advised the district office that because the 4,000-gallon tank "was possibly a leaker and due to the age of the tanks [25 *261 to 30 years old] they ought to be removed." (RR. 348a & 366a)

It is interesting to observe that as far as Mobil's field engineer viewed the situation, the loss of water from the 4,000-gallon tank "could have been a seam [or] a faulty stick reading." (RR. 346a) However, he cautioned that it was "unlikely" that a loss of 2 1/2 inches would be the result of "a faulty stick reading." (RR. 346a) Rather, it was plausible that, just as "the heaviness of the water [vis-a-vis the gasoline] might cause the tank['s seams] to expand and open up . . . .[,] if you put 3,300 gallons of gasoline in [the 4,000-gallon tank] . . . [i]t would have the same effect[.]" (RR. 347a) Such was DiFlorio's position, which was consistent with the recollection of Leroy Huggins, Mobil's senior claims adjuster. Mr. Huggins remembered going to the Custers' garage one month after the initial series of tests and talking to DiFlorio, Russell Custer and Bob Young of the Department of Environmental Resources. Although he could not pinpoint the exact time and place, nevertheless, Huggins recalled hearing statements that became the subject of certain notes produced as a normal course of his job. The relevant portion of the notes were presented at the hearing and read:

A 2,000-gallon tank had already been removed/replaced. DiFlorio water tested the 2,000-gallon tank over a one-month period and it showed no loss. However, this tank and a 4,000-gallon tank are manifolded together and testing showed approximate loss of one foot, three and five-eighth inches over same period of time for the 4,000-gallon tank. (RR. 374a)

Huggins also made reference to the notes he compiled after riding around the neighborhood (Oaks, Pennsylvania) where the purported loss/theft of fuel took place. This ride encompassed the nearby Sunoco and Arco stations, which were situated a few blocks away and uphill from the Custers' Mobil station. The Mobil station was located between the aforementioned stations and the homes of the complainants who subsequently filed suit in common pleas *262 court against Mobil and the Custers for damages caused to their property. These November 30, 1979 reports of the witness provided:

After riding around the area and locating both the Arco and Sunoco service stations, we [— i.e., Huggins and a Carl Leon Simpson, an expert hired by Mobil and employed by Moody and Associates in Meadville, Pennsylvania, to investigate the problem —] concluded it is doubtful that these two locations are responsible for the contamination due to the distance from Custers' Garage. SU11 (RR. 385a)

Huggins unhesitatingly remarked that the text of the conversation between himself and Mr. Simpson, which is reproduced supra, was "accurate as written." (RR. 386a)

Regressing for a moment from the sequential reconstruction of the facts, I wish to mention that the two tanks were removed on August 22, 1979, and all of the individuals who visually inspected them agreed that the only hole appeared to be near the top of the 4,000-gallon tank and ranged in size from a silver dollar to a quarter of an inch. (RR. 330a, 336a, 349a, 373a, 380a, 524a & 554a) Those individuals who testified as to the condition of the 4,000-gallon tank described it as being rusted and pitted with corrosion. (RR. 350a, 525a, 530a & 554a) In fact, the representative from the Department of Environmental Resources (Robert O. Young) characterized it as being in "poor shape, fair to poor shape." (RR. 524a) Further, on his re-cross-examination, DiFlorio acknowledged that even if one were to give a "careful" examination to the tanks, "it's possible you wouldn't see the holes that caused . . . a leak[.]" (RR. 368a) Additionally, in response to appellees' counsel's inquiry as to whether these "pin holes" could open up and gasoline could leak out because of the pressure exerted by the fuel against the walls of the 4,000-gallon tank, DiFlorio answered that it was a "[p]ossibility." (RR. 350a)

The effects of the gasoline contamination started to surface when some of the residents on Egypt Road and Perkiomen Avenue in Oaks, Pennsylvania, the homes of which are *263 located down hill (RR. 735a) and on either side of Custers' Mobil garage (RR. 432a), began noticing a change in the quality of their well water (some stated it was an odor of "gasoline")^[2] as early as November of 1978. (RR. 544a) This prompted the filing of complaints with the Pennsylvania Department of Environmental Resources (DER), which, in turn, commenced the sampling and testing of the well water at 18 separate locations in the Oaks area and in proximity to Custers' Mobil garage, some of which even occurred before the reported loss/theft of the fuel at the garage and continued up until the 23rd of July, 1980. (RR. 511a-523a) In particular, of the wells tested on August 22, 1979, it must be remembered that on each of the dates stated not all of the 18 wells were sampled for contaminants, 4 homes indicated "no detection" of gasoline, whereas 4 homes had gasoline infiltration ranging from 1.5 to 20.0 parts per million (ppm). Id. Of the homes tested on November 9, 1979, December 18, 1979 and April 3, 1980, 3 were not contaminated, yet 9 had detectable levels totaling anywhere from .8 to 20.0 ppm. Again, samples taken from some of the wells on April 10, 1980 and July 23, 1980 revealed that 10 had no trace of gasoline as compared to 9 registering petroleum pollutants starting as low as .4 ppm and escalating to 13.0 ppm. Id.

Although there appears to be no identifiable federal standard regulating the level at which petroleum (gasoline) pollutants can be present in a water supply and still be useable for domestic purposes (RR. 403a-404a), I wish to note the relevant remarks of a DER agent (Robert O. Young) responding, in the form of a letter, to an attorney representing a resident of Perkiomen Avenue. He wrote:

Samples taken from Mr. Bieber's well on May 21, 1979 and July 26, 1979 (sample sheet copies enclosed) show a small amount of petroleum product or organic compound which, because of the low concentration, cannot be characterized precisely as to amount or type; small amount *264 means below 1 milligram per liter. This amount would not be considered an eminent health hazard but would make the water obnoxious to taste or smell and, therefore, unuseable or undrinkable. Any amount of gasoline or petroleum product in the water should label that water as polluted. (RR. 532a-533a)

If anything, the testing by DER revealed that on certain occasions some wells contained no trace of petroleum pollution, whereas other times the level of gasoline ranged from .4 ppm to 20.0 ppm.

An outgrowth of the noticeable change in the water supply, retrieved from wells situated near the Custers' Mobil station, was the filing of complaints in trespass and equity against the appellants in the Court of Common Pleas of Montgomery County, "Civil Action — Law and Equity."

In all of the complaints, three of which contained thirteen counts sounding in negligence, trespass, strict liability and res ipsa loquitur, the appellees, Moore et al. (No. 80-01243, filed January 22, 1980), Bieber et ux. (No. 80-04757, filed March 19, 1980), Carlin et ux. (No. 80-05534, filed April 2, 1980) and Whitman et al. (No. 80-12995, filed November 12, 1980), each sought relief in the form of compensatory and punitive damages and the implementation of the court's equitable powers to abate and remove a nuisance (gasoline in the well water) by means of "an injunction . . . restraining the Defendants[-appellants], their agents, servants and employees from so handling or mishandling gasoline that it enters the source of water of Plaintiffs[-appellees]; . . . ."

In response, each appellant filed an answer and new matter, the relevant portions of which will be discussed, and, where appropriate, reproduced instantly. For example, although the appellants admitted that Mobil "was the owner of certain gasoline storage tanks located at [Custers'] garage facility . . .[,]" neither would acknowledge that:

On or about August 15, 1979 [— in regard to Moore et al. and Whitman et al., and on or about October 27, 1979 as to Carlin et ux.], and possibly before that date, and *265 possibly subsequent to that date, continuing to the present, the Defendants have caused or permitted gasoline to leak, spill or otherwise escape from the storage tanks located at Defendants CUSTER'S and CUSTER'S, INC. garage facility at 1161 Egypt Road and flow through the ground into the underground wells owned and used by the plaintiffs. (See Count I, Point 7 of Moore's, Whitman's and Carlin's complaint)

Likewise, the appellants denied the Bieber's allegation, in Count I, Point 9 of their complaint, that:

Prior to and on about the said 15th day of August, 1979 Defendants neglected and refused to keep said underground gasoline tanks and their appurtences [sic] thereto at 1161 Egypt Road and near the premises occupied by the Defendants in good and sufficient repair and in a safe condition and by reason of the Defendants said negligence and by reason of the fact that on or about and before the last mentioned date, Defendants, their agents and servants acted carelessly in and about maintaining said gasoline storage tanks, and as a consequence said tanks due to rust and decay, burst, leaked, spilled or broke and the gasoline contained within escaped and was, for a considerable space of time, allowed to leak its course and flowed out of said tanks into the said premises occupied by Plaintiffs, doing serious damage to said premises, its well water becoming contaminated by the said gasoline, rendering the water objectionable and offensive to the senses and useless for domestic consumption and damaging said health of Plaintiff and family and said premises, both real and personal property.

Additionally, both denied, as conclusions of law, appellees' allegation that the escape of the gasoline stored in the tanks resulted from their (Mobil's and Custers') "recklessness, negligence and carelessness" in failing to "inspect," "maintain," "supervise," "correct," "recover and control the gasoline after the spillage, leakage and loss at [Custers' Mobil garage] . . . so as to prevent its escape into the ground and thereby contaminate Plaintiffs' water supply." *266 This same response covered appellees' claim that the Custers did not maintain proper and adequate records of gasoline supplies to alert them of the loss of gasoline, and the attendant harm visited upon the appellees. In the remaining portion of Mobil's and Custers' answer, each denied liability and the concomitant payment of damages under any theory of recovery. Each averred that no gasoline had escaped from the tanks in question and invaded the appellees' properties so as to contaminate their water source.

Furthermore, in the new matter section of appellants' response to appellees' complaints, each sought "indemnification" from the other on principles of implied and/or express indemnity (Mobil) or precepts of trespass and assumpsit (Custers) "for any damages [either] may suffer on account of the occurrences mentioned in the [appellees'] Complaint[s]."

On November 21, 1980, upon "Petition For Mandatory Injunction" and affidavit attached, counsel for the appellees each demanded, inter alia:

(a) That Defendants be restrained and enjoined from further polluting the Plaintiffs' wells; (b) that a mandatory injunction be issued ordering Defendants to go upon the Plaintiffs' land and gather, capture, filter, or otherwise remove from Plaintiffs' wells the gasoline found therein in such a manner as not to cause further damage to Plaintiffs' properties; (c) that Defendants, upon proof of same, be ordered to pay an amount of money necessary to place Plaintiffs' land in the condition that it was prior to the improper conduct of Defendants to pay any amount of money necessary for the replacement and/or repair of Plaintiffs' properties and to pay a reasonable sum of money to Plaintiffs for Plaintiffs lose [sic] of use and enjoyment of said land; (d) that Defendants upon proof of same, be ordered to pay an amount of money reimbursing Plaintiffs for all costs and expenses including a reasonable attorney fee for the expenses they have incurred as a result of Defendants' conduct; (e) such *267