concurring.
¶ 1 I concur with the majority’s decision to vacate the trial court’s entry of partial summary judgment in favor of Ju-niata Valley Bank (hereinafter the “Bank”), and to affirm the denial of summary judgment requested by Martin Oil Company. However, I write separately *665to emphasize my view that, on remand, if the fact finder finds Martin Oil responsible for contaminating the property, it must also be required to consider whether the Bank’s recovery against Martin Oil should be precluded by its acquisition of the property on an “as is” basis.
¶ 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 sheriffs 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 35 P.S. § 6021.1311 (“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 caused the damage, contamination or pollution.... ”).
¶ 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 *666and avoid the natural consequences of the deal they have made.11
¶ 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.
. The trial court rejected the Bank's claim for diminution in value and awarded the Bank only sixty percent of its attorneys fees, because of the Bank's negligence at the original closing and at Sheriff's sale. Adjudication and Decree Nisi, 9/3/97, at 2. I would agree with the trial court that damages may be limited by a party’s negligence, but would go further in stating that such damages, including the costs of abatement, may be effectively precluded by the parties’ negotiations and/or conduct surrounding the purchase of the property.