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PITTSBURGH – A contractor calls into question the specificity of and request for punitive damages in the complaint of a Pittsburgh couple who allege their home has been flooded on multiple occasions due to the construction of an elementary school behind their home.
Dana Byrnes and John Byrnes of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on Aug. 28 versus Fox Chapel School District of Pittsburgh, Morris Knowles & Associates, Inc. of Delmont, Thomas & Williamson, LLC of Pittsburgh and Canzian/Johnston & Associates, of New Kensington.
“The Byrnes own their home at 617 Glengary Drive, Pittsburgh, Pennsylvania 15215. John Byrnes grew up at the property. In 2003, the Byrnes purchased the Property. Collectively, the Byrnes have lived at the property for more than 50 years. In that time, the Byrnes did not experience a single instance of flooding nor did they experience any other drainage or water run-off issues affecting the property,” the suit stated.
“In or around early 2018, that changed when the district began constructing a new elementary school (what would be the new Kerr Elementary School) in the vicinity of the property. The School is located at an elevation higher than the property. On or about Sept. 5, 2018, during the construction process, a large pile of dirt was created and placed at the Northwest portion of the district’s property located directly behind the Byrnes’ home. The addition of the dirt pile increased the surface elevation of the land by approximately 11 feet.”
The suit added at the time the pile was established, no erosion control measures were put in place on the hill – and subsequently, the height, slope and width dimensions of the pile caused run-off during moderate-heavy rain, which led to multiple flooding events at the plaintiffs’ property.
“The Byrnes along with other neighbors have informed the district of the problem after each and every flooding event. On or about Sept. 9, 2018, after the first incident, the district was notified of the flooding incident at the property. Daniel Breikreutz, Director of Ancillary Services, contacted the Byrnes to discuss the flooding and said the issue would be addressed with the contractor and notified of a solution. There have also been several meetings with defendants’ representatives, the Byrnes and other neighbors affected by the School’s construction where issues surrounding the dirt pile and flooding of properties were discussed,” per the suit.
“Representations have been made by the district that it would remediate the water issues created by the dirt pile, including the removal of dirt so as to decrease the slope of the hill created by district. Upon information and belief, while some dirt was removed from the pile at one point and time, additional dirt was also placed back onto the pile later during construction. Essentially the dirt pile sits in its original location relatively unchanged. Upon information and belief, Knowles, Thomas, and Canzian were involved in the at-issue planning and construction of the School on behalf of the district.”
The plaintiffs argued pursuant to the exception for governmental immunity enumerated in Section 8542(3) of state code, the district is subject to liability for damages caused by real property in its possession.
“The multiple flooding events have damaged the Byrnes’ home and deprived plaintiffs of the use and enjoyment of their property. Plaintiffs have suffered inconvenience, emotional distress, injury to the property, and diminution in value of the property as a result of the actions and inactions of defendants. The actions of defendants as set forth herein were intentional, reckless, extreme, outrageous, and deserving of punishment,” the lawsuit states.
UPDATE
Morris Knowles & Associates, Inc. filed preliminary objections in the case on Sept. 30, opposing the Byrnes’ provided specificity of the damages they incurred, as well as their request for punitive damages.
“Despite the flooding being the alleged source of damage to the property, the plaintiffs fail to identify: (1) The dates of the floods; (2) The number of floods; or (3) The extent of each individual flood. Furthermore, the plaintiffs do not identify the role nor distinguish the conduct of the individual defendants. Instead, the alleged misconduct of the defendants is confusingly lumped together in a single paragraph with 16 subparts,” the objections read, in part.
“The plaintiffs’ insistence on collectively referring to defendants throughout the complaint fails to satisfy Pennsylvania’s requirement of fact pleading. As pled, it cannot be discerned from the complaint what conduct is being attributed to Morris Knowles and which is being attributed to the other defendants. Accordingly, Morris Knowles is prejudiced in that it cannot properly respond to plaintiffs’ allegations, and thus, Count I-III of plaintiffs’ complaint must be stricken.”
Morris Knowles also sought to dismiss the plaintiffs’ claim for punitive damages, since Pennsylvania law requires the commission of “intentional, willful, wanton or reckless conduct” and the plaintiffs allegedly did not provide proof of same.
“The complaint only contains conclusory statements that ‘the actions of defendants as set forth herein were intentional, reckless, extreme, outrageous, and deserving of punishment.’ The complaint contains no allegation that the defendants intended to cause harm to the plaintiffs,” per the objections.
“Nor does the complaint allege facts that support that defendants acted with a bad motive or with reckless indifference to the plaintiffs. Accordingly, plaintiffs have failed to satisfy the standard necessary to support its claim for punitive damages in Counts I-III.”
For counts of negligence, trespass and nuisance, the plaintiffs are seeking compensatory damages against all defendants in excess of $35,000, punitive damages from all defendants with the exception of the Fox Chapel School District, a permanent injunction requiring defendants to regrade the dirt pile and implement appropriate stormwater management measures, costs of suit and such other relief as the Court deems appropriate, plus a trial by jury.
The plaintiffs are represented by Robyn B. Eisen and Lydia A. Gorba of Strassburger McKenna Gutnick & Gefsky, in Pittsburgh.
The defendants are represented by Andrew J. Horowitz of Obermayer Rebmann Maxwell & Hippel and Joseph L. Luvara of Dickie McCamey & Chilcote, both also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-009311
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com