PITTSBURGH – A Western Pennsylvania health care facility has again denied liability in litigation brought by a Mount Lebanon couple, who alleged the bottom level of their home was ruined when raw sewage accumulated there due to a line back-up caused by the defendants.
Pasquale Merante and Cynthia Merante first filed suit in the Allegheny County Court of Common Pleas on Sept. 21 versus Asbury Place, Asbury Health Center and Wesley Hills. All parties are of Mount Lebanon.
“The Merantes own a private, single-family residence in Mount Lebanon and have lived there since 1992. Asbury owns and operates senior living facilities located on Bower Hill Road in Mount Lebanon. During a rainstorm on Dec. 29, 2021, the floor drains in the Merantes’ finished basement backed up, causing raw sewage to accumulate in great volume in the lower level of their home, extensively damaging the Merantes’ residence and personal property,” the suit said.
“The raw sewage back-up also created an unreasonable interference with the Merantes’ health, safety, use and enjoyment of the property. The Merantes contacted the Municipality of Mount Lebanon to report the back-up in their basement and related property damage. On Dec. 29, 2021, the Municipality sent out a crew to respond to the Merantes’ report, and it found that manholes on Ella Street near the property were showing no flow and holding debris. The Municipality then jetted the main sanitary sewer line located near the property and determined that it was clogged with large quantities of adult wipes.”
The suit added that Mount Lebanon conducted an inspection and determined that the sewage back-up was the result of the defendants flushing adult personal sanitary care products such as wipes, underpads and adult diapers.
“The Merantes, in order to alleviate damage, were required to obtain the services of a general contractor to undertake significant repairs to their property. As a direct and proximate result of the back-up caused by Asbury, the Merantes sustained extensive damages, including without limitation: Restoration costs in excess of $11,000; Costs to repair their finished basement in excess of $29,000; Damages to personal property in excess of $3,000; Hotel expenses in the amount of $135.66, and both loss of use and enjoyment of their property and loss of income, in amounts to be determined at trial,” the suit stated.
In preliminary objections filed by the defense on Nov. 8, they looked to have the count of negligence per se and related demand for punitive damages stricken from the case.
“Notwithstanding the factually-inaccurate notice violations cited to in the complaint, plaintiffs’ reliance upon a section in the Mount Lebanon Code pertaining to the unlawful discharge of prohibited wastes into the sanitary sewer system cannot serve as the basis for a claim of negligence per se. To establish a claim of negligence per se based upon violation of a statute, the plaintiff must establish that the purpose of the statute is to protect the interest of a group of individuals, as opposed to general public, and that the statute clearly applies to conduct of the defendant,” per the objections.
“Instantly, the section in the Mount Lebanon Code cited to by plaintiffs in their complaint does not clearly apply to the defendants’ conduct nor does it have the purpose of protecting a particular group of people, but rather is a general statute governing the municipality’s sewer system, which is intended to protect the health, safety and welfare of the community and not for individuals seeking to recover pecuniary loss. As such, plaintiffs cannot establish a prima facie case of negligence per se. Accordingly, Count I of the complaint must be stricken.”
The defendants added that “a careful review of the allegations set forth in the complaint reveal that the facts pled clearly do not rise to the level necessary to support a claim for punitive damages,” since the allegations “amount only to ordinary negligence, and these claims cannot support a claim for punitive damages.”
In cases where punitive damages are on the table, parties are required to show “conduct that is outrageous due to the defendant’s evil motive or reckless indifference to the rights of others.”
In response to the defense’s preliminary objections, plaintiff counsel filed a reply on Nov. 28 which, in part, denied the objections as conclusions of law to which no official response was required.
Additionally, plaintiff counsel argued that the defense “mischaracterizes the documents” upon which they based their preliminary objections.
On Jan. 11, Allegheny County Court of Common Pleas Judge Alan D. Hertzberg sustained the defense’s preliminary objections.
“Upon consideration of the foregoing defendants’ preliminary objections to plaintiffs’ complaint, it is hereby ordered, adjudged and decreed that said preliminary objections to negligence per se are sustained and the following is hereby ordered: 1) Plaintiffs’ claims of negligence per se are dismissed with prejudice; and 2) Plaintiffs are given leave to amend the complaint within 20 days to assert a claim of negligence,” Hertzberg ruled.
As a result, the plaintiffs filed an amended version of the complaint on Feb. 6, minus the dismissed claim of negligence per se and instead with a substituted claim of standard negligence.
UPDATE
In response to the amended version of the complaint, the defendants provided an answer which denied liability for the events in question, in addition to new matter, on Feb. 13.
“Plaintiffs fail to state claims upon which relief may be granted. To the extent the evidence reveals that plaintiffs failed to file this action in a timely manner, defendants plead the defense of statute of limitations. Plaintiffs’ claims are barred by the doctrine of mitigation. Plaintiffs’ claims are barred by the doctrine of waiver. Plaintiffs’ claims are barred by the doctrine of estoppel. Plaintiffs’ claims are barred, in whole or in part, pursuant to the doctrine of justification. To the extent the evidence reveals that plaintiffs lacked the capacity to sue at the time that this action was commenced or at any time relevant hereto, defendants plead the lack of capacity to sue as an affirmative defense,” per the new matter defenses.
“At all times material and relevant, defendants acted in a proper, prudent, and reasonable fashion as required under the circumstances then and there existing and were not, at any time material and relevant, negligent with regard to Plaintiffs and/or their property. To the extent that discovery may establish their applicability, pursuant to Pennsylvania Rule of Civil Procedure 1030, defendants raise the affirmative defenses of accord and satisfaction, arbitration and award, consent, discharge and bankruptcy, estoppel, failure of consideration, immunity from suit, impossibility or performance, justification, latches, license, payment, privilege, release, res judicata, statute of frauds and waiver. Plaintiffs’ complaint fails to set forth facts sufficient to support a claim for punitive damages.”
For counts of negligence, trespass and private nuisance, the plaintiffs are seeking compensatory damages in excess of the compulsory arbitration limits of the Court, punitive damages, interest, costs and all such additional relief that the Court deems necessary and proper.
The plaintiffs are represented by Ryan James and J. Andrew Salemme of Tucker Arensberg, in Pittsburgh.
The defendants are represented by Jason J. Zivkovic and Andrew W. Clifford of Gordon & Rees, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-011918
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com