PITTSBURGH – A couple who alleged that a local healthcare group flooded their basement with raw sewage and later motioned to transfer the case to the arbitration process, have seen the presiding judge honor their request.
Pasquale Merante and Cynthia Merante first filed suit in the Allegheny County Court of Common Pleas on Sept. 21, 2022 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, 2022, 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, 2022, 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.
The plaintiffs replied to the new matter on March 23, denying it in its entirety.
“Paragraph 36 does not contain factual allegations to which a response is required. The allegations contained in Paragraphs 37-50 constitute conclusions of law to which responses are not required,” the reply stated.
On Sept. 14, plaintiff counsel filed a motion to transfer the case to arbitration.
“The plaintiffs, by and through their attorneys, Tucker Arensberg, P.C., and file the following motion to transfer case to arbitration. The claims in this case are all inside the jurisdictional limits for arbitration. The plaintiffs request that this case be transferred to arbitration to allow for an expeditious resolution of the underlying claims,” the motion stated.
UPDATE
Allegheny County Court of Common Pleas Judge John T. McVay Jr. granted the motion on Sept. 25.
“Upon consideration of the foregoing motion, it is hereby ordered, adjudged and decreed that this case be and hereby is transferred to the Arbitration Division of the Allegheny County Court of Common Pleas and is to be placed on the arbitration list for Dec. 13, 2023 at 9 a.m., with discovery agreed upon, however depositions need special approval per local rule,” McVay ordered.
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 Jonathan S. McAnney 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