PITTSBURGH – A Pittsburgh business has been granted a stay in its suit against its neighboring business and local sewer authorities, after a leak occurred and its basement was flooded under inches of water.
Hanoglu Management, LLC first filed suit in the Allegheny County Court of Common Pleas on Nov. 4 versus Renewal, Inc., Pittsburgh Water and Sewer Authority and William Pickering (in his official capacity as Chief Executive Officer). All parties are of Pittsburgh.
“In early November 2021, Alihan Hanoglu, the Manager and Sole Member of Hanoglu, discovered water pouring into the elevator pit in the basement of its 333 Building. Mr. Hanoglu immediately contacted a plumber, who corralled the majority of the water so that it would be funneled into a large tub in the bottom of the elevator pit, then continuously pumped out through a four-inch line to a floor drain in the basement. As of the filing of the instant complaint, the water is still being funneled and pumped in this same manner, at approximately the same heavy flow rate,” the suit said.
“As of the filing of the instant complaint, entire sections of the basement of the 333 Building remain submerged under approximately a half-inch of water stemming from the above-referenced leak and the elevator pit is filled to a depth of two to three feet. The water is entering the 333 Building from the eastern wall of the building; i.e., the wall that abuts the western wall of the Renewal Building. The water is not originating from any pipes associated with the 333 Building, as the water meter for the building has maintained the same de minimis reading both prior to and subsequent to the leak.”
The suit added Hanoglu contacted CEC Engineering, who tested the water and determined that the water was treated public water (as opposed to untreated groundwater).
Furthermore, the test confirmed that the total trihalomethans and chlorine in the water matched the THM and chlorine levels found in PWSA water samples from 2020, the water contained fluoride (which PWSA adds to its water) and the turbidity and total dissolved solids were lower than what CEC would expect for groundwater within the City of Pittsburgh.
“Upon receipt of the report from CEC, Hanoglu contacted PWSA in early February 2022, who refused to take any investigative action at that time. Through intervention of counsel for PWSA, PWSA ultimately agreed to begin a leak detection investigation. While PWSA did appear on site, it made no determination as to the cause or source of the water flow. PWSA has subsequently disclaimed any responsibility for the leak and to date has been unwilling to investigate further to discover the source of the water or take any ameliorative steps to address the issue,” the suit stated.
“On information and belief, PWSA has refused to engage with Hanoglu or its counsel any further concerning the leak in the 333 Building. The continuous leak continues to damage the structure of the 333 Building, rendering it uninhabitable, unmarketable and of diminished value.”
The Pittsburgh Water and Sewer Authority filed preliminary objections in the matter on Dec. 21, finding multiple claims from the plaintiff should be dismissed for lack of substantiation.
“The complaint asks the Court to direct the PWSA to ‘investigate and repair’ the alleged leak. Yet, plaintiff points to no authority whatsoever which suffices to impose a mandatory duty on the PWSA to investigate and repair the leak. Even further, plaintiff alleges that following its notification of the leak to the PWSA, the PWSA ‘agreed to being a leak detection investigation’ and thereafter ‘subsequently disclaimed any responsibility for the leak,” the objections stated.
“The PWSA is a municipal authority created pursuant to the Municipal Authorities Act and is, therefore, a ‘local agency under the Political Subdivision Tort Claims Act.’ Local agencies are not liable for injuries caused by their own acts or the acts of their employees that constitute a ‘crime, actual fraud, malice or willful misconduct.’ Courts of this Commonwealth have held that such claims involving trespass, and other intentional torts, are barred by the Tort Claims Act. Because Count II for trespass alleges claims predicated upon the PWSA’s intentional acts, it fails as a matter of law and should be dismissed.”
The objections continued that the complaint “fails to properly allege interference with the use and enjoyment of the Hanoglu Building; rather, the complaint alleges, in a conclusory fashion, only physical damage to the property, and parrots the legal elements of a nuisance without any facts to support the same.”
Furthermore, the objections alleged that the complaint does not recognize that negligence claims against the defendant are generally barred through immunity under the Tort Claims Act and that the claim for lost profits is legally insufficient.
UPDATE
On Feb. 20, the plaintiff filed an uncontested motion to stay the case.
“The Plaintiff is currently undertaking repairs and/or replacement of the water pipes at issue in this matter. Plaintiff anticipates that the repairs will provide helpful information which may lead to the resolution of this matter without further litigation. Plaintiff has agreed to provide the initial engineering report it obtained regarding the water pipes and to allow defendants to have representatives present before work is initiated on the water pipes,” the motion stated.
“All parties would benefit from a 60-day stay of this matter until the repairs are complete. In accord with the representation made on Feb. 14, 2023, counsel for all defendants do not oppose a stay as outlined. Accordingly, plaintiff respectfully requests a 60-day stay of this matter, and accordingly for the argument on defendants’ preliminary objections, currently scheduled for Feb. 21, 2023, to be continued for at least 60 days.”
The following day, Feb. 21, Allegheny County Court of Common Pleas Judge Arnold I. Klein granted the stay in question.
“In consideration of plaintiff’s uncontested motion to stay, said motion is granted and it is hereby ordered this matter is stayed for 60 days from the date of this order. Argument on defendant’s preliminary objections is hereby continued until further order of Court,” Klein said.
For multiple counts of action in mandamus, trespass, negligence and nuisance, the plaintiff is seeking judgment in its favor and against defendants, jointly and severally, in the form of a positive injunction compelling defendants to abate the stream of water flowing into the basement of the 333 Building, and an award of damages exceeding $50,000, along with such other relief as the Court deems just and proper.
The plaintiff is represented by Ray F. Middleman and Shane D. Valenzi of Whiteford Taylor & Preston, in Harrisburg.
The defendants are represented by Mark F. Nowak, Danny P. Cerone Jr. and Ashley L. Buck of Clark Hill, plus Jamie L. Lenzi of Cipriani & Werner, all in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-013611
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com