WILKES-BARRE – Attorneys representing a man in a 12-year-old gasoline spill lawsuit have filed an appeal to the state Supreme Court, asking the high court to throw out previous rulings in the case.
Attorneys Donald Karpowich, Sean Logsdon and Kevin Walsh Jr. filed the appeal on behalf of Franklin Tarantino, whose family was one of 1,000 original plaintiffs who sued, alleging fuel leaks at the former Tranguch Tire and Service Center on Church Street in Hazleton entered the ground and spread to the surrounding area, causing residents to come with down illnesses, including cancer, and causing property damage.
The appeal to the high court seeks to overturn rulings by Luzerne County judges to award a judgment to the defendant in the case, Exxon Mobil, as well as a ruling by the state Superior Court to uphold those rulings.
Tarantino said the appeal to the state’s high court is necessary because the Superior Court overlooked two important facts.
Former Judge Joseph Musto in 2009 denied a motion for summary judgment while a county jury in September 2010 found a few plaintiffs in the case would not receive any money, but ruled that Exxon Mobil and Tranguch were partially responsible for the spill.
“That Exxon had already been denied a motion for summary judgment and that the matter of control already went to a jury and Exxon lost on that matter,” Tarantino said. “The Superior Court clearly should have reversed the lower courts granting of the motion and they didn’t. Clearly, we were treated unfairly.”
Attorneys for Exxon Mobil in August 2012 filed a motion for summary judgment and asked that the lawsuit be dismissed based on there being no “evidence of an intentional act” on behalf of Exxon Mobil, and that Exxon Mobil did not control the gasoline at Tranguch when it was sold to Tranguch by another distributor.
Tarantino said the jury has already ruled Exxon Mobil was responsible and that his family, too, is entitled to a jury trial.
“It appears to me that all the Superior Court did was rehash Exxon Mobil’s talking points and didn’t think about the fact that the issue had already been dealt with twice by the lower court,” Tarantino said.
The state Supreme Court will rule if it will hear an appeal or not.
Tarantino said he hopes the appeal will get to a hearing.
In Tarantino’s appeal, he argues “collateral estoppel” in that decisions in the case were already made by a judge, Musto, and jury, and that judges Lewis Wetzel and William Amesbury, who awarded judgment in favor of Exxon Mobil in 2011 and 2013, respectively, cannot reverse decisions already made.
Collateral estoppel is a doctrine that prevents a party from re-litigating an issue.
In a recent filing by attorneys who represent Exxon Mobil in response to the state Supreme Court appeal, the attorneys say no appeal should be allowed due to that doctrine.
Attorneys Frank Allen, Arthur Jones and Jamie Slimm, of Haddonfield, N.J., said in a response to the appeal that collateral estoppel does not apply in Tarantino’s case because he has not raised that issue in any proceeding before.
The attorneys argue it is “uncontested” that Exxon Mobil did not own the storage tanks that leaked, and that Tranguch never made any written or oral agreements with Exxon Mobil.
The Tranguch business closed in 1995 after filing for bankruptcy. The building that still remains on the site is in the process of being torn down.
The case also involved rulings and an order made by disgraced former county Judge Mark Ciavarella, that Tarantino had previously sought to throw out, citing Ciavarella forced him to sign an agreement to settle the case and settlement offers were “grossly unfair.”
Nearly all of the cases were either settled out of court or had gone to a jury trial – such as in the case of Carol and Dennis Dawley, now of North Carolina, and Bernadine Marusak, of Hazleton, in September 2010.
There is another outstanding case of Peter Melnick, who still lives in the gas spill area, and his family that will also see an appeals court soon.
Six named defendants in the case, Exxon Mobil, BP Products, Shell Oil Co., Scullin Oil Co., Dunmore Oil Co. and Fegley Oil Co., filed requests for a judgment to be entered in their favor and the suit dismissed.
On Aug. 13, county Judge Amesbury granted that request, dismissing the lawsuit. Amesbury also dismissed a request for a medical monitoring damage claim on behalf of the Melnick family.
Amesbury said in his ruling that none of the Melnick family members received a diagnosis confirming that higher than normal levels of gasoline-related components exist in their blood and that submitted doctors reports were insufficient to allow the issue to go before a jury.
Peter Melnick, who represents his family in the matter, is planning on appealing Amesbury’s rulings.