The Morning Call (Allentown, Pa.) Paul Muschick column

Oct. 02--Three Allentown families haven't given up their fight to be reimbursed for damages that occurred when sewage backed up in their basements this spring after tree roots and grease clogged a public main.

They finally made some progress this week. All it took was a letter from a lawyer threatening to sue.

I wrote about the sewage backup on College Drive a few months ago, after the Lehigh County Authority refused to pay for damages, citing the state's ridiculous governmental immunity law.

On Tuesday, after the residents publicly criticized the authority at its board meeting for failing to take responsibility, CEO Aurel Arndt said the authority's insurance company is taking another look at the situation.

Arndt said that second look was prompted by a letter from homeowner Pat Lipovsky's lawyer, which put the authority "on notice regarding potential litigation."

"I would not suggest that this is a closed matter or a concluded matter but one that's still open for further discussion," Arndt said. "I would hope, as you do I'm sure, that we could reach some reasonable resolution."

Board Chairman Asa Hughes offered similar comments.

"It's our intent to see that something gets resolved from this," he said. "It's not something that will be ignored."

The homeowners, who are in their 70s and 80s and suffered a collective $50,000 in damages, have felt ignored so far. They let the board know it Tuesday.

"If I caused damage to my neighbor's home, I would be held responsible," said Reynold Schneck, who had to gut his finished basement after it was covered with about nine inches of sewage the night of May 13. "Why shouldn't you be?"

Ann Ackerman lives across the street from Schneck and suffered an estimated $6,000 in damage.

"You find out you have to pay out thousands of dollars to fix something that you could not control or was not your fault," she said.

Lipovsky, who lives next door to Ackerman and estimates her damages at about $18,000, went to a lawyer, who wrote to the authority last week, prompting it to reconsider the claims.

"While your insurance company and representatives have indicated that governmental immunity protects the authority against liability, we respectfully disagree," attorney Jill Nagy of Reading wrote.

In denying the homeowners' claims, the authority's insurer, Integrated Risk Management, had cited the Pennsylvania Political Subdivision Tort Claims Act.

That law shields governments from liability for problems they cause while providing public services. Governments can be held liable under some circumstances, including negligence, but those exceptions are narrowly worded in the law and can be difficult to prove. Integrated Risk Management said the authority wasn't negligent because it had no prior notice about a dangerous condition in the sewer main.

Renae Tesauro, Schneck's daughter, told the board Tuesday it's not surprising the authority didn't know about the problem because there's no evidence the line had been serviced for about two years before the backup.

"Is lack of prior knowledge justification for immunity from liability?" she asked. "Perhaps it's better described as just plain negligence, or at best an oversight?"

Until about a year ago, the line was Allentown's responsibility. The Lehigh County Authority assumed responsibility in August 2013 when it leased the city water and sewer systems.

The Watchdog looked into the maintenance history of the main on College Drive after the families contacted me this summer when their claims were denied.

The city told me it maintained the line annually and provided me with records showing it was serviced in March 2011, October 2011 and April 2012. But neither the city nor the authority could offer evidence the line had been serviced since then.

The city told me the line was on its maintenance list for 2013, but that those records were turned over to the authority when the lease started last August and city officials didn't have them available to say whether the work had been completed. The authority told me it didn't have those records.

Arndt said the authority had planned to service the line in June, a month after the backup.

Lipovsky's lawyer told the authority in her letter it had "actual or imputed knowledge" about the condition of the sewer pipes near Lipovsky's home based on the age of the pipes, the location of nearby trees and the "lack of inspections and additional omissions."

Arndt told the residents the authority would contact them in a few weeks, after consulting with its insurer.

If you're wondering why the residents' homeowners insurance didn't cover the damages, it's because standard homeowners policies in Pennsylvania typically don't cover sewage backups. Coverage can be purchased as a rider, but none of these homeowners had it, or even knew about that.

Arndt said the Lehigh County Authority will be reminding residents in an upcoming newsletter mailed to homes that special coverage is needed.

I have that coverage on my home. You should look into it, too. While it might not pay for all the damage if your sewer line backs up, it's better than nothing because as this ordeal shows, you can't count on your sewer authority to help you.

The Watchdog is published Thursdays and Sundays. Contact me at watchdog@mcall.com, 610-841-2364 or The Morning Call, 101 N. Sixth St., Allentown, PA, 18101. I'm on Twitter @mcwatchdog and Facebook at Morning Call Watchdog.

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