MEDIA – A local couple who alleged the Borough of Brookhaven was liable for more than $15,000 in damages caused to its basement, supposedly caused by a negligently installed backflow valve which directed storm water into the plaintiffs’ basement, have settled its case with the Borough.
Jason Bush and Margie Bush first filed suit in the Delaware County Court of Common Pleas on March 9 versus the Borough of Brookhaven.
“In October 2011, plaintiffs’ basement flooded with waste water following a storm, prompting the Borough to dispatch a plumbing inspector. The Borough’s plumbing inspector determined that the waste water had originated from the Borough’s sewage system,” the suit said.
“The Borough’s plumbing inspector further recommended that a backflow valve be installed in the interior of plaintiffs’ property. The Borough subsequently installed a backflow valve inside plaintiffs’ house on Oct. 11, 2011.”
The plaintiffs stated they were given no instruction related to the maintenance, service or repair of the backflow valve, or advice on whether the device was to be regularly inspected.
“On Aug. 4, 2020, sewage flooded plaintiffs’ basement when the backflow valve that the Borough installed in 2011 failed. Thereafter, Bob Grant, the Borough’s Plumbing Inspector, inspected plaintiffs’ property and admitted to plaintiffs that the Borough’s backflow valve had blown apart from the pressure coming into the home from the Borough’s sewer main,” the suit stated.
“Mr. Grant also admitted to plaintiffs that the valve was improperly installed by the Borough inside of the property’s basement, rather than external to the property. Following the Aug. 4, 2020 backflow breach, the Borough paid to clean up the sewage that entered plaintiffs’ property. The Borough also paid for the demolition work to plaintiffs’ property, which was performed by Delaware County Fire Restoration.”
Such work initially included removal of the wall-to-wall carpeting and padding in the family room, removal of the laminate wood flooring in the game room, and removal of the linoleum flooring in the laundry room.
The lawsuits added that the removal crew had to return to the plaintiffs’ house a second time to remove all of the loose sub-flooring due to sanitation concerns
Though the Borough paid expenses associated with cleanup and demolition work, the suit continued that Borough has, to this point, failed to pay for the remaining restoration of plaintiffs’ basement, which includes the replacement of the basement flooring – and further failed to take action to re-route the existing backflow valve to the exterior of plaintiffs’ property.
Rather than compensate the plaintiffs for the damage caused by their allegedly negligent construction and maintenance, the plaintiffs alleged that the Borough instead demanded they seek relief through their property insurer, who later denied the claim.
The plaintiffs said that throughout the fall of 2020, plaintiff Jason Bush contacted several Borough officials, including Council President Terry Heller and Office Manager/Secretary John Wilwert regarding the flooding issue, and requested that the Borough compensate plaintiffs for the damage caused to their home.
However, the suit added all of these requested were refused.
“Plaintiffs have been without the use of their previously finished basement for over seven months and continuing, during which time they have been largely confined to their house due to the COVID-19 pandemic,” per the suit.
“The Borough has inexplicably failed to pay for the expenses associated with the remediation of plaintiffs’ basement, which are the direct product of the Borough’s negligent construction/installation of the backflow valve and negligent maintenance of the sewer system.”
The Borough filed an answer and new matter in the case on April 9, denying its assertions and citing the municipal immunity provided under the Political Subdivision Tort Claims Act.
“Plaintiff’s claims are barred, or otherwise limited, by the terms, provisions, immunities, and defenses set forth in the Pennsylvania Political Subdivision Tort Claims Act. All defenses therein are incorporated by reference as though fully set forth at length. Some or all of the damages alleged in plaintiffs’ complaint do not arise out of the incident alleged in the amended complaint and therefore, no cause of action exists,” the answer’s new matter stated.
“The subject accident was not attributable to the negligence of Borough of Brookhaven but rather to conditions or circumstances beyond its control. Plaintiffs’ claims are barred by plaintiffs’ failure to mitigate damages. Plaintiffs are barred from recovering all or part of the damages alleged in the complaint pursuant to 42 Pa. C.S. Section 8553, relating to limitation of damages. Plaintiffs’ claims are barred by the doctrines of release, accord and satisfaction, and/or collateral estoppel. Damages are limited pursuant to 42 Pa.C.S. Section 8553.”
On April 26, plaintiff counsel responded to the defendant’s new matter and denied it in its entirety.
“The allegations of this paragraph are conclusions of law to which no response is required, and therefore they are denied,” the response stated.
UPDATE
After a trio of continuances, the docket reported that the case had been settled on Feb. 16. Terms of the settlement were not disclosed.
“Kindly mark the above captioned matter settled, discontinued and ended,” the praecipe read.
Prior to settlement and for a lone count of negligence, the plaintiffs were seeking damages to be determined at trial, together with all costs, fees, and such other relief as this Court deems appropriate.
The plaintiffs were represented by Evan B. Caplan and Thomas A. Leonard of Cozen O’Connor, in Philadelphia.
The defendant was represented by Jennifer Holsten Maddaloni of Holsten Associates, in Media.
Delaware County Court of Common Pleas case CV-2021-002396
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com