City of Philadelphia v. Board of License and Inspection Review to Use of Parkway Corp.

• Decision Date: 18 April 1991
• Citation: 590 A.2d 79,139 Pa.Cmwlth. 240
• Parties: CITY OF PHILADELPHIA v. BOARD OF LICENSE AND INSPECTION REVIEW to the Use of PARKWAY CORPORATION. Appeal of PARKWAY GARAGE, INC.
• Court: Pennsylvania Commonwealth Court

Page 79

590 A.2d 79

139 Pa.Cmwlth. 240

CITY OF PHILADELPHIA v. BOARD OF LICENSE AND INSPECTION REVIEW to the Use of PARKWAY

CORPORATION.

Appeal of PARKWAY GARAGE, INC.

Commonwealth Court of Pennsylvania.

Argued April 4, 1991.

Decided April 18, 1991.

Samuel E. Klein, with him, Harold E. Kohn, Robert J. LaRocca and Joseph C. Kohn, Kohn, Savett, Klein & Graf, P.C., Philadelphia, for appellant.

Susan Shinkman, Divisional Deputy City Sol., Philadelphia, for appellee.

Before COLINS and KELLEY, JJ., and BARBIERI, Senior Judge.

COLINS, Judge.

Parkway Garage, Inc. (Parkway) appeals from an Opinion and Order of the Philadelphia County Court of Common Pleas (Common Pleas). The Order reads as follows:

AND NOW, this 15th day of February, 1991 it is hereby ORDERED and DECREED that the parking garage operated by Parkway Garage, Inc. at 15th Street between Arch Street and John F. Kennedy Boulevard is hereby closed as of 12:01 A.M., Saturday, February 16, 1991. This closure includes all vehicular and pedestrian traffic.

It is further ORDERED and DECREED that Parkway Garage, Inc. submit to this Court, a proposal and plan that will correct the imminently dangerous condition and render the premises safe for public use. This proposal and plan to be submitted by March 18, 1991.

The subject garage is owned by the City of Philadelphia (City), which leases the garage to the Philadelphia Parking Authority (Parking Authority), which in turn subleases the garage, through a series of assignments, to Parkway. The lease extends until December 31, 1999. The garage was constructed in the early 1960's and opened for use in 1965.

In 1987, the Parking Authority instituted action against Parkway in Common Pleas, alleging that Parkway had breached its repair obligations under its lease based on a theory that de-icing salts from the streets had caused the concrete and reinforced steel to deteriorate, weakening the garage and making it unsafe. ¹ Common Pleas ordered the matter to binding arbitration before the American Arbitration Association, pursuant to binding arbitration provisions in the lease. In March, 1989, two load tests were conducted in accordance with the appropriate testing procedures of the American Concrete Institute and The Philadelphia Code at sites selected by the Parking Authority's expert. The test results, presented to the arbitration panel, revealed that the garage was well within the Code's requirements. The arbitration panel heard 25 days of testimony between January, 1990 and December, 1990. In addition, the panel, which included an engineer, twice toured the entire garage. The chief expert witness for the Parking Authority, Michael Brainerd, from the firm of Simpson, Gumpertz and Hegler in Boston, Massachusetts, testified in February, 1990, that he did "not think there is a risk of collapse at this time." He further testified that "[t]he only way to determine an unsafe area would be to load test it to see whether it was unsafe." Parkway's chief expert witness was H. Carl Walker of Carl Walker Engineers, Inc., Kalamazoo, Michigan, who assisted Parkway in presenting a proposal for repairing the garage to keep it safe and operational.

The arbitration panel issued its decision on December 14, 1990, rejecting the Parking Authority's claim that the garage was unsafe and ruling that Parkway should continue to monitor the garage through a program of load testing at six month intervals, and perform state of the art patch and seal repairs where load test results indicated that such repair was necessary.

On December 4, 1990, the Philadelphia Department of Licenses and Inspections (Department) issued a notice pursuant to Title 4 (Building Code) of The Philadelphia Code ² declaring the garage imminently dangerous and unsafe for occupancy and ordering the garage closed after 12:01 A.M., December 5, 1990, except for the purpose of making repairs. ^{3 3} Section 121.1 entitled "Vacating structures," of the BOCA Code, under Section 121.0, entitled "EMERGENCY MEASURES," provides:

When, in the opinion of the Code official, there is actual and immediate danger of failure or collapse of a building or structure or any part thereof which would endanger life, or when any structure or part of a structure has fallen and life is endangered by the occupation of the building or structure, the code official is hereby authorized and empowered to order and require the inmates and occupants to vacate the same forthwith. The code official shall cause to be posted at each entrance to such building a notice reading as follows: This Structure is Unsafe and its Use or Occupancy has been Prohibited by the Code Official. It shall be unlawful for any person to enter such building or structure except for the purpose of making the required repairs or of demolishing the same.

Parkway appealed the December 4, 1990 notice to the Philadelphia Board of License and Inspection Review (Review Board). The Review Board held four hearings on the matter on December 11, 1990, December 20, 1990, January 7, 1991 and January 8, 1991, each of which was stenographically recorded and transcribed. Both Parkway and the City presented expert testimony. Parkway submitted reports prepared by Ambric Engineering, Inc. of Philadelphia, Pa., detailing the results of load tests conducted at the garage on four separate occasions from December 17, 1990 to January 4, 1991. These load tests were conducted in accordance with the prescribed standards developed by the American Concrete Institute, as set forth in the BOCA Code to resolve the issue of structural stability "[w]henever there is reasonable doubt as to the stability or structural safety of a completed building or structure or part thereof for the intended use." ⁴ The tests were performed at four locations selected by the City's expert witness, Michael L. Brainerd. All of the tests were conducted by Ambric Engineering, Inc. and were supervised by Carl Walker Engineering. Representative members of those two firms, as well as Parkway Corporation and Simpson, Gumpertz & Hegler, were present during all tests.

The locations of tests I and II were those where the previous testing had been done in March of 1989. The locations in tests III and IV had not been tested previously. Test II was designed to apply a uniform load of 125 pounds per square foot (psf) over the test area. Tests I, III and IV were designed to apply a uniform load of 100 psf over the test areas. Numerous gauges, with dial indicators having a range of one inch and graduated in 0.001 inch increments, were set in place to measure "deflections" (downward bending), as pressure was applied, and to measure "recovery" (rebound to the original condition) following removal of the load. ⁵ The maximum allowable deflection permitted under the BOCA Code is .567. Test I area showed a maximum deflection of .205. Test II area showed a maximum deflection of .105 under the 125 psf load. ⁶ Test III area showed a maximum deflection of .171, and Test IV area showed a maximum deflection of .205. Clearly, all deflections were less than 50% of the permitted deflection under the BOCA Code, or stated differently, exceeded the minimum safety standards by 100%. The BOCA Code does not require recovery readings where, as here, the deflections were less than .567. Where recovery readings are necessary, the BOCA Code requires 75% recovery within twenty-four hours following removal of the load. Although recovery readings were obviously not required here, Ambric Engineering did report recovery readings for each of the four test areas. The test results evidenced recovery, within thirty minutes or less, of between 86.32% and 95.5%.

Mr. Brainerd testified on behalf of the City at the January 7, 1991 hearing. He stated that he has "a fundamental disagreement with the utility of load tests in this situation." ⁷ However, he testified further, on cross, that he was present during all four load tests and that he particularly selected one of the test areas, because it was the most severely delaminated area in the garage; ⁸ that the tests performed on the areas in tests I and II showed no significant change "detectable by a load test" from the results of previous tests done in those same areas in 1989; ⁹ and that following the load tests he had not observed any further cracking around the columns in the garage as a result of those tests. ¹⁰ He stated that he had previously testified during arbitration proceedings, February 16, 1990, that load testing was the appropriate method for demonstrating safety, ¹¹ and when asked if it was his opinion from "eyeballing" the exposed areas in and around the columns, it was imminently dangerous, he responded: "I'm not saying it's imminently dangerous." ¹²

Parkway presented the expert testimony of Dr. Mete A. Sozen, a nationally prominent structural engineer, a Board member of the American Concrete Institute, and Chairman of the Subcommittee on Serviceability, Safety and Analysis for the American Concrete Institute. Dr. Sozen was present during the load testing and testified before the Board that all testing was performed in accordance with the standards required under the BOCA Code. ¹³ He stated that he saw no visible evidence of shear failure whatsoever. ¹⁴ Dr. Sozen stated that from his analysis of the original construction drawing, the garage was a "very well built garage ... [a]nd the reason it passed the load test is because it was designed with generous use of material so that whatever was eroded out of it over the years has not compromised the strength to a level that the code would not accept." ¹⁵ On conclusion of direct examination, the following testimony occurred:

Q. Okay. In your opinion, today mindful of public safety, can this garage be opened today?

A. In my opinion, this garage can be opened today.

N.T., January 8, 1991, at 16.

The Review Board issued its decision January 9, 1991, sustaining Parkway's appeal and providing that the garage...