Jon Campisi Mar. 21, 2013, 11:45am

A Chester County couple will be allowed to amend their complaint against an electric company to include a claim of interference with enjoyment of real property, despite a defense contention that adding the new count to the lawsuit would be futile.

Donald and Loris Dalton, of Landenberg, Pa., filed suit in late June of last year on behalf of themselves and their grown son and daughter-in-law, who also resided in the Dalton home, against Newark, Del.-based McCourt Electric LLC and Spring Grove, Ill.-based Intermatic Inc. over allegations that the defendants’ combined negligence led to a fire breaking out in the plaintiffs’ home.

The lawsuit claims that the blaze that broke out on March 9, 2012, resulted in substantial injury and loss to the plaintiffs’ real and/or personal property, and caused the residents to incur additional living and other expenses.

McCourt had been the electrical contractor hired to perform electrical work within the home, and Intermatic manufactured the low voltage transformer installed at the property by McCourt workers that the plaintiffs claim caused the fire, the lawsuit shows.

The suit contains counts of negligence, strict liability, and breach of implied warranties against both defendants.

In their complaint, the plaintiffs seek compensation for “damage to their real and personal property, and the imposition of additional expenses.”

Subsequent to the filing of the lawsuit, however, the plaintiffs sought to amend the complaint to include a claim for damages because the plaintiffs “suffered inconvenience, discomfort and the loss of the use and enjoyment of their property.”

The defendants opposed the motion to amend because they argued that the amendment would be “futile,” since, in their view, damages for “inconvenience, discomfort and the loss of the use and enjoyment of their property” are not recoverable under the circumstances of the case.

U.S. Magistrate Judge Thomas J. Rueter, of the Eastern District of Pennsylvania, disagreed, finding that the plaintiffs’ proposed amendment states valid claims for damages under Pennsylvania law.

In a March 19 memorandum and order, Rueter wrote that it is well established under Pennsylvania law that in a claim for injury to property caused by a defendant’s negligence a property owner is entitled to damages for the loss of the use of the property and the related inconvenience and discomfort.

These damages are recoverable not as a separate cause of action, but as a claim for damages, Rueter wrote, citing Pennsylvania Superior Court case law.

Rueter also rejected the defendants’ suggestion that loss of use and enjoyment of property is an item of damages available only in a private nuisance claim, writing that many court cases recognize that the loss of use and enjoyment damages are recoverable in negligence and product liability claims even when a private nuisance claim has not been raised.

In their original complaint, the plaintiffs stated that they are seeking more than $75,000 in damages, plus interest, litigation costs, attorneys’ fees and delay damages.

More News