WAGNER v. ERIE INSURANCE COMPANY, J-118-2003 (Pa. 4-29-2004)

J-118-2003.Supreme Court of Pennsylvania, Eastern District.Argued: October 20, 2003.
Decided: April 29, 2004.

No. 15 EAP 2003, Appeal from the Order of the Superior Court entered on May 22, 2002 at No. 1158 EDA 2001, vacating the Order of the Court of Common Pleas of Philadelphia County, Civil Division, entered on March 29, 2001 at No. 338 Oct. Term 1999, 801 A.2d 1226 (Pa.Super. 2002).

ORDER
PER CURIAM.

The Order of the Superior Court is affirmed.

Justice LAMB did not participate in the decision of this case.

Justice Nigro files a dissenting statement in which Madame Justice Newman joins.

Justice NIGRO dissenting.

Unlike my colleagues, I would reverse the order of the Superior Court and order Appellee Erie Insurance Company to cover the losses that Appellant Thomas F. Wagner, individually and trading as Blue Bell Gulf, sustained when an underground pipe at his gasoline station ruptured, releasing gasoline into the soil under his and neighboring properties. I simply cannot accept the Superior Court’s position that an insurance company providing general liability coverage for an insured’s operatio of a gasoline station can deny coverage for damages from a gasoline leak based on a general pollution exclusion, when that exclusion is buried on page twenty-five of the policy and the policy’s definition of “pollutant” does not specifically reference gasoline.

Justice NEWMAN joins.