SCRANTON – The Borough of Dalton is attempting to strike a $5.7 million judgment declared in favor of a local property owner – who claimed it committed ongoing misconduct and trespass in its refusal to provide catch basins for 21 years, which has caused her property to suffer tremendous flooding.
Carolyn J. Fiorimonte of Dalton initially filed suit in the Lackawanna County Court of Common Pleas on Feb. 25 versus the Borough of Dalton.
“In May 2000, plaintiff purchased the property unaware of the continuing flooding which was occurring on an impassable portion of her land, where defendant had illegally hidden two massive pipes, constantly delivering storm and sump water, which would often overtake the small one and one-third acres,” the suit stated.
“The very fact that the pipes were hidden denied any claim of a prescriptive easement, which defendant would later attempt to pursue. A professional home inspection company, an appraiser and a survey team, employed by plaintiff from 2000-2001, all failed to discover the clandestine pipes.”
The plaintiff alleged that the defendant never admitted it installed the pipes, but the Borough Manager told her about a second pipe hidden on the property in 2001, created by the digging of a trench across the property without permission.
In subsequent years 2005 and 2007, respectively, the plaintiff said she was injured by a limb falling from a tree killed by the digging of the trench, and was then informed that a commercial sump pump had been hidden beneath the front yard of Lucretia Tallman’s nearby property, in order to force runoff and storm water through pipes under Third Street, and then onto the property.
A later protracted legal battle resulted in subsequent years, where the Lackawanna County Court of Common Pleas denied that trespass had taken place in December 2011, but the Commonwealth Court of Pennsylvania reversed the ruling in April 2013. By order, the pipes were removed from the property.
“In September 2013, defendant, knowing precisely where the pipes were installed, removed the pipes from the property. Defendant then began to install catch basins on streets which never flood, but purposely denied that protection to 219 Third Street, a violation of plaintiff’s civil rights,” the suit stated.
“On or about May 6-18, 2018, plaintiff witnessed the removal of the enormous pipe which had been redirecting storm and sump water from Huntington Woods to the sump pump and then to the property. When the pipes were removed in 2013, flooding would consume most of lower Third Street, then flow onto the property. Lower Third Street and the property were often underwater for months at a time.”
The plaintiff argued that in 2018, the Borough permitted the raising of land at 222 and 224 Third Street, and since both properties are directly across the street from the property, this “increased the frequency, force, velocity and volume of the storm water crossing the street and gushing onto the property, causing the immersion of the entire property in two inches of water from the spring of 2018, until August of 2019.”
The plaintiff added she wasn’t able to mow any portion of the property with her tractor without becoming stuck in mud.
“The standing water on the property since 2018, has resulted in the slow damage and death to every tree on the property and also poses a never-ending threat to plaintiff,” per the suit.
“Throughout the years, plaintiff’s home has heaved every winter and sustained immense damage. The constant slow deterioration of her newly renovated home and her property has resulted in unending distress and misery for plaintiff.”
UPDATE
After not receiving a response to the complaint, the plaintiff filed a praecipe for judgment in the amount of $5,756,340. Lackawanna County Court of Common Pleas Clerk Mauri B. Kelly entered the judgment on May 7.
However, the Borough then filed an 88-page petition to strike the judgment and stay proceedings on May 13, arguing that since the case was removed to federal court eight days earlier on May 5, the state court did not have jurisdiction to enter any judgment against it afterwards.
“The Clerk of Judicial Records, lacking jurisdiction over the action, improperly entered the judgment on May 7, 2021. However, the Lackawanna County Court of Common Pleas no longer has personal or subject matter jurisdiction over this action since it was removed to federal court,” the petition stated.
“On removal, the federal court ‘acquires total, exclusive jurisdiction over the litigation.’ Since the Court of Common Pleas lacks jurisdiction over this action, the May 7, 2021 judgment was entered improperly, and defendant demands that the judgment be stricken.”
For counts of continuing trespass, violation of consolidated statutes, the Pennsylvania Constitution, the Bill of Rights and the U.S. Constitution, fruit of the poisoned tree and damages, the plaintiff is seeking $5 million, an order that requires defendant to immediately install catch basins on Third Street on the street across from the front of plaintiff’s property, and an order that defendant must provide legal variances to allow plaintiff to sell two portions of her property which are 100 feet-by-200 feet, a size which was formerly the standard for a buildable lot in Dalton and any other provisions that the Court may deem necessary, plus a trial by jury.
The plaintiff is representing herself in this matter.
The defendant is represented by Mark J. Kozlowski of Marshall Dennehey Warner Coleman & Goggin, in Scranton.
U.S. District Court for the Middle District of Pennsylvania case 3:21-cv-00756
Lackawanna County Court of Common Pleas case 2021-CV-00918
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com