June 2013

Now that the issue of sovereign immunity has been addressed, it makes City Hall’s response to the Market Street building collapse even more confusing and raises the question of whether Mayor Nutter either knows something the public does not know or that he does not want the public to know about the Market Street building collapse.  Because the City is immune from civil suits related to the collapse, why have City officials been so terse with their statements regarding the tragedy?

Besides stating what everyone already agrees on — that the collapse is a great tragedy — City Hall has said only that the City is not liable.  There has been no promise for a top down investigation of all of the parties involved with a vow to correct the way the City conducts business, if the way it current conducts business had even the slightest role in the tragedy.  There has been no call to investigate the culture at L&I or even to see if improvements could be made.   (It’s not as if L&I is a model agency that has never had issues over the years.  Furthermore, I doubt there is an agency at any level of government where improvements could not be made.)

Why not use the building collapse as an opportunity to make improvements at a agency as important as L&I is to the health, welfare, and safety of the citizens of Philadelphia?  Instead, Mayor Nutter has circled the wagons.

Yesterday, we saw what can best be described a by product of some sort of strange gentlemen’s agreement whereby City Council agreed to hold off on asking the really tough questions of L&I officials.  If you are not going to ask questions that need to be answered in an effort to effectuate change, why bother holding the hearing? Even the City’s official response the suicide of the L&I official, who apparently inspected the building, was bizarre:

I will state right here, right and now, this man did nothing wrong,” Everett Gillison, Mayor Nutter’s chief of staff, said yesterday. “The department did what it was supposed to do under the code that existed at the time, and we are proud of the department and its employees – period.”

Sounds a tad defensive if you ask me.  Moreover, before that statement was made had anyone suggested that the L&I official had done something wrong?  Is the investigation into whether or not he or anyone else in L&I already complete?  Certainly this is not the type of official statement that is made in response to the suicide of a City employee.

Either the Mayor is getting horrible public relations advice or there is much more to this story, specifically the City’s role in the collapse, that the public just does not know about.  The good news is the press is not letting this story go and they are starting to dig deeper.  Should make for a very interesting summer in the City of Brotherly Love.

Many have asked me whether the victims of the Market Street building collapse can sue the City of Philadelphia for damages for failing to conduct proper inspections of the building.  The short answer is no.  Sovereign immunity gives the City immunity from civil suit alleging it failed to properly inspect the Market Street building during demolition.

Generally, under the doctrine of sovereign immunity state and local governments are immune from civil lawsuits and criminal prosecution.  (Like many of our laws, the doctrine owes its roots to England who long ago believed the crown could do no wrong.)  The only exception is where the legislature has waived sovereign immunity by statute or where there is a constitutional violation.  In Pennsylvania, a municipality, like the City of Philadelphia, can be sued for damages only if the City’s actions fall within one of the eight exceptions where the legislature has waived sovereign immunity.   The eight exceptions to sovereign immunity are when the damages arise from:

(1) the operation of a car operated by a City employee or official;

(2) the care, custody, and control of personal property in the City’s possession;

(3) the care, custody, and control of real property in the City’s possession;

(4) the care, custody, and control of trees, traffic lights, traffic signs, or street lights or signs;

(5) a utility service;

(6) a dangerous condition on City owned streets;

(7) a dangerous condition on City owned sidewalks; and

(8) the care, custody, and control of animals.

Therefore, unless the victims of the Market Street building collapse can show that the City’s improper inspection of the building fell within one of these eight categories, they are out of luck and cannot sue the City.  But wait, what about exception (3), the care, custody, and control of real property, wouldn’t the City’s improper inspection of the building fall within that exception?  No, because possession under exception (3) means total control over the property, not limited control or mere occupation of the property.

The law is well settled in Pennsylvania on the issue.  Municipal agencies enjoy sovereign immunity from claims that they failed to conduct proper inspections and abate code violations.  On numerous occasions,  plaintiffs have argued that exception (3) applies to allow suits against municipal agencies that have failed to properly conduct inspections or abate code violations only to see their argument rejected by the Court.

While City’s improper inspections — or lack thereof — of the Market Street may mean it is morally liable or liable as a matter of public policy, under the doctrine of sovereign immunity it is not legally liable for its failure to act.

 

Inga Saffron details the frustration of many Philadelphians with the City’s inability to effectively deal with blighted and – – almost always — tax delinquent properties.  It is understandable that the City and government in general in unable to effectively deal with these properties.  Luckily, citizens in Pennsylvania are empowered to take action against blighted properties on there own and without the help of government bureaucrats.

68 P.S. 1101, et. seq, otherwise known as the Abandoned and Blighted Property Conservatorship Act or simply Act 135 was enacted in 2009 in order to “provid[e] a mechanism to transform abandoned and blighted buildings into productive reuse” and as  “an opportunity for communities to modernize, revitalize and grow, and to improve the quality of life for neighbors who are already there.”  Under Act 135, neighbors and businesses within 500 feet of a blighted property can petition the Court for the appointment of a conservator. If appointed, a conservator becomes the de facto owner of the blighted property and acquires the power to engage in acts to rehabilitate and sell the property, just like the owner could.

In order to be subject to an Act 135 action and property must meet the following criteria:

(1) The property must not have been legally occupied for at least the previous 12 months;

(2) The property must not have been actively marketed during the 60 days;

(3) The property must not be subject to an existing foreclosure action; and

(4) The property must not have been acquired by the current owner within the past six months; and

(5) At least three of the following are present:

      (i) The building or physical structure is a public nuisance.

      (ii) The building is in need of substantial rehabilitation and no rehabilitation has taken place during the previous 12 months.

      (iii) The building is unfit for human habitation, occupancy or use.

      (iv) The condition and vacancy of the building materially increase the risk of fire to the building and to adjacent properties.

      (v) The building is subject to unauthorized entry leading to potential health and safety hazards and one of the following applies:

         (A) The owner has failed to take reasonable and necessary measures to secure the building.

         (B) The municipality has secured the building in order to prevent such hazards after the owner has failed to do so.

    (vi) The property is an attractive nuisance to children, including, but not limited to, the presence of abandoned wells, shafts, basements, excavations and unsafe structures.

    (vii) The presence of vermin or the accumulation of debris, uncut vegetation or physical deterioration of the structure or grounds has created potential health and safety hazards and the owner has failed to take reasonable and necessary measures to remove the hazards.

    (viii) The dilapidated appearance or other condition of the building negatively affects the economic well-being of residents and businesses in close proximity to the building, including decreases in property value and loss of business, and the owner has failed to take reasonable and necessary measures to remedy appearance or the condition.

       (ix) The property is an attractive nuisance for illicit purposes, including prostitution, drug use and vagrancy.

Pretty much any blighted property in Philadelphia fits these criteria and is, therefore, subject to a Act 135 action.  Amazingly, despite the Act being passed over 4 years ago, Act 135 actions are uncommon.  While Act 135 empowers neighbors to take control of blighted properties, it also permits municipalities to take control of a property through Act 135 as well.  Actions by municipalities are virtually non-existent.  With Act 135 there really is no excuse for not taking action against abandoned and blighted properties.  Moreover, if the City of Philadelphia really wanted to get serious about combating blight, Act 135 is sitting there at there disposal.  If the City is unwilling to fight blight, Act 135  empowers neighbors to pick up the slack.

From last weekend’s edition of the WSJ:

Tons of steel used in the new World Trade Center: 48,000.

Tons of steel used in the Empire State Building:  60,000.

Really underscores how building techniques have changed.

The United States Attorneys Office for the Southern District of New York has taken the lead in the growing national trend of prosecuting fraud involving the Department of Transportation’s Disadvantaged Business Enterprise program.   Today bring the announcement of another DBE fraud prosecution by the Southern District.  Once again, the fraud committed involved a contractor that was not performing a “commercially useful” function.

In the wake of the Market Street building collapse, much has been made of whether the contractor performing the demolition violated OSHA standards and most of the blame has been directed (rightfully so) to the building owner, the demolition contractor, and the City of Philadelphia.  The Salvation Army has thus far avoided scrutiny.  That may now change.

In today’s Philadelphia Daily News, David Gambacorta and William Bender ask what role the Salvation Army’s actions may have played in the tragedy and raises the question of whether the Salvation Army itself violated OSHA.  According to the article, the Salvation Army rebuffed requests to have protective scaffolding placed above the Army’s building and workers complained of hearing bricks fall onto the roof of the building in the weeks leading up to the collapse.  Curiously, the Salvation Army has remained rather silent during the saga except for the obligatory prepared statement about the tragedy.

OSHA is charged with assuring the safety of workers and its guidelines are designed with work place safety in mind.  On the other hand, building codes are designed to assure that buildings are structural sound and habitable.  OSHA standards are not building codes and OSHA does not make sure contractors are following building codes.  Although, there certainly is some overlap.  One example of this, that I made in a previous blog post, is with fall protection.  OSHA requires fall protection for workers working over at a height greater than 6 feet.  OSHA will make sure that roofers are wearing fall protection but will not make sure that a roof is being installed so that it does not leak.  Put another way, if roofers are not wearing fall protection and the contractor is cited, it does not mean the roof was not installed correctly.

Under the so called “general duty” clause of OSHA regulations, employers are required to assure that employers keep their employees free from known hazards that risk causing serious injury or death.  Obviously, if the Salvation Army was aware of the adjacent demolition and, more particularly, of falling debris, then Salvation Army may be guilty of an OSHA violation because it permitted its employees to be exposed to a known hazard.  Of course, in addition to violating OSHA, the Salvation Army may also be liable for common law negligence in permitting its workers from occupying the space while the demolition of the adjacent property occurred.

Yesterday, NBC10.com, posted a list of questions that journalists, readers, and viewers want answered in the wake of the Market Street building collapse.  Among the question listed was one we partially addressed on this blog:

Q: What are the qualifications of L&I employees? Is the man that runs L&I an engineer? If not, are people who hold this type of position in other major U.S. cities qualified engineers? Is a structural engineer even reviewing demolition requests?

L&I employees have no formal training in structural engineering or the structural integrity of buildings and are not required to be engineers.  Indeed, the current head of L&I, Cartlon Williams,  apparently is not an engineer and has no formal training in construction.  According to his bio, Mr. Williams began his career as a community organizer of sorts  with a penchant for green initiatives.  Mr. Williams’ does not mention his educational background.

How does Mr. Williams’ credentials stack up to his peer in New York?  Not well.  The Head of New York City’s Department of Buildings, the NYC equivalent of L&I, is Robert LiMandri.  Unlike Mr. Williams, Mr. LiMandri has a mechanical engineering degree and has spent his entire career in the construction and real estate.  While Mr. Williams was organizing green programs, Mr. LiMandri was working as the Director of  a real estate and construction consulting firm as  a Vice President at Jones Lang LaSalle,  an international real estate firm.

L&I serves a vital role in insuring the safety and welfare of our residents and visitors.   It is simply unacceptable that the Department tasked with such an important role as building safety can be staffed by patronage appointees lacking the proper credentials.  We would hardly tolerate the City Law Department being chaired and staffed by a non-lawyers and we should not tolerate the head of L&I not being an engineer.  Hopefully, Mayor Nutter heads the advice of his favorite Presidential candidate and “not let a good crisis go to waste.”  He can start by changing the way L&I conducts business.

 

 

According to Chris Palmer at the Philadelphia Inquirer, after receiving a complaint by a neighbor, Philly L&I officials visited 2136 Market Street and deemed the structure safe to continue work.

Many would be surprised to know that L&I inspectors are not engineers, have no engineering backgrounds, and receive no formal training on the structural integrity of structures and buildings. How do I know this? In 2009, I sued L&I (and won) on behalf of a developer whose property was wrongful demolished by L&I. At issue in the case was the arbitrary nature in which L&I declares buildings “unsafe” or “imminently dangerous.” (The case is Bullard v.  City of Philadelphia in case anyone is interested in googling it and reading about it .)

The L&I inspector, who made the demolition decision, testified at his deposition that L&I inspectors are not required to be engineers, to have engineering backgrounds, receive no training on the structural integrity of buildings and structures and L&I maintains no manuals as to when a building is deemed  in danger of collapse. Instead,  L&I inspectors rely on common sense he said.

More than common sense is needed to prevent the next tragedy.

The technical engineering cause of the collapse of 2136 Market Street should not be too difficult to decipher.  2136 Market was a much taller building constructed with reinforced masonry (literally bricks and sticks).  Moreover, the building adjacent to 2136 Market to the East had already been demolished.  It is certainly not the first time an older building constructed in the style of 2136 Market collapsed during demolition.

What needs to be answered is what could the City of Philadelphia done to prevent this tragedy?

The initial focus has been on the responsibility of the contractor performing the demolition.  ENR reports that the owner of the firm performing the work, Griffin T. Campbell, has a checkered criminal past.  I am not sure how the owner’s criminal history makes it an more likely that his employees failed to follow sound construction and engineering techniques in bringing down 2136 Market.

But, shouldn’t the City of Philadelphia’s Department of License & Inspections (“L&I”) bear some of the blame?   According to the ENR story, L&I officials have disclaimed any responsibility for monitoring the demolition of 2136 Market Street and, instead, have pointed the finger at OSHA.  While it is true that OSHA has responsibility to monitor construction practices that place workers in danger, its oversight responsibility for construction practices that may cause a building to collapse on an adjacent building and its ability to that stop work is questionable.  OSHA’s primary goal is to ensure building practices do not pose an unnecessary risk to construction workers, not whether construction is being performed according to industry standards.  OSHA regulations are not building codes and unsafe building practices do not necessarily equate to improper building techniques.  For example, roofers working without fail protection are engaging in an unsafe building practice and committing an OSHA violation.  However, that does not mean that the roof that they are installing is being installed improperly or that the roof is likely to fail in the future.  Certainly, there will be overlap between unsafe and improper practices especially in an area like demolition.

While OSHA’s ability to stop work for improper building practices is questionable, L&I’s ability to stop work that may cause a building to collapse is not.  L&I’s power to stop work on a building that is in “imminent danger of collapse” is squarely within its power under the Philadelphia Building Code and L&I regularly slaps its blaze orange imminent danger notices on structures throughout the City, ordering workers to immediately cease work on a site when its does (often under the threat of arrest), and forcing adjacent buildings to evacuate.

Sovereign immunity prevents L&I from being help culpable for any failure on its part.  However, that should not stop us from investigating whether L&I’s could have prevented this tragedy and demanding changes be made to L&I’s practices so this does not happen again.