Com. v. Karetny

Decision Date15 August 2005
Citation880 A.2d 505,583 Pa. 514
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Eli KARETNY, Appellee. Commonwealth of Pennsylvania, Appellant, v. Michael Asbell, Appellee.
CourtPennsylvania Supreme Court

Hugh J. Burns, Philadelphia, for Commonwealth of Pennsylvania.

Frank DeSimone, Leonard Sosnov, Glenside, Thomas A. Bergstrom, Malvern, for Eli Karetny, Michael Asbell.

Before: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER, JJ.

OPINION

Justice CASTILLE.

The primary issue in this appeal is whether the Commonwealth made out a prima facie case of risking a catastrophe, 18 Pa.C.S. § 3302, as to appellees, who are co-defendants in the underlying criminal prosecution. For the following reasons, we hold that it did, and accordingly, we reverse the Superior Court's order, vacate the trial court's order quashing that charge, and remand this matter for trial.

During the years between 1994 and 2000, appellees leased Pier 34 on the Delaware River in the city of Philadelphia, and owned and operated various facilities located on the pier, including a parking lot, a banquet hall, and an open-air nightclub called "Heat." Appellees also owned and operated a floating ship/restaurant, called the "Moshulu," which was docked on the river near the pier.

Sometime during 1994, certain inshore portions of Pier 34 collapsed, and in December 1994, appellees hired Hudson Engineers to evaluate the damage. In a written report submitted to appellee Asbell and dated January 17, 1995, Vincent Carita, one of the engineers who conducted the evaluation, noted that although the portion of the pier structure that had not collapsed was in generally fair condition, there were a "number of deficient front row piles along the upriver side and outshore end of the pier." N.T., 11/14/01, at p.10. Accordingly, the report recommended a "comprehensive maintenance and repair plan" and a "thorough and comprehensive condition survey ... in order to fully detail the exact nature and extent of required repairs." Id. While the inshore portion of the pier that had collapsed was eventually repaired with a "concrete high deck structure," appellees ignored the recommendation that the remainder of the pier be further evaluated at that time. Id. at 14.

By October of 1995, new cracks in the pier had opened up and became "very serious, very quickly." Id. at 166. As a result, appellees once again employed Hudson Engineers to conduct emergency repairs and also to evaluate Pier 34 for the purpose of bringing the vessel containing the Moshulu Restaurant from Camden, New Jersey, across the river, and docking it at the pier. Mark Klein, an engineer employed by Hudson at the time, conducted the investigation and concluded, consistent with Carita's opinion ten months earlier, that the pier's pilings were "leaning in an outshore direction" and that the pier was "no longer intact." Id. at 25-26.1 On November 1, 1995, Klein, along with Sam Hudson, President of Hudson Engineers, and Rob Hudson, President of J.E. Brenneman and Company, (collectively, the "engineers") met with appellees to discuss Klein's findings.2 Rob Hudson advised appellees that the pier "wants to fall over and all of the fill wants to leak out." Id. at 172. The group recommended to appellees that the pier be rebuilt in its entirety, but appellees rejected that recommendation because the estimated cost of such an extensive project was too high. Instead, appellees opted merely to have the pier "stabilized." Id. at 34. However, notwithstanding the engineers' urging that the pier be monitored and continuously reassessed during the stabilization process, appellees ceased the monitoring in December of 1995 because of the significant cost. Id. at 174. Indeed, the engineers undertook to do "the least amount to stop the pier or hold it in place." Id. at 36. The stabilization work was completed in April of 1996. Id. at 176.

In May of 1999, a barge owned by appellee Karetny came loose from its moorings and wedged underneath the pier, and Rob Hudson was summoned to Pier 34 once again. While Hudson was there, Karetny requested that he view some cracks that had developed in the parking lot area. Hudson found that the parking lot area was stable, but was alarmed by one large crack that had appeared on the pier, just outside the doorway of the banquet building. Upon further inspection, Hudson noticed that the ceiling inside the building was beginning to separate. N.T., 11/14/01, at 180. Hudson cautioned appellees that an intact pier would move only "microscopically," but that, in his estimation, Pier 34 had moved a distance of about one and one-half of an inch. Id. at 182.3 Hudson once again recommended that the pier be surveyed, or monitored, on a continual basis, and once again, appellees rejected that suggestion. Specifically, appellee Asbell replied that monitoring the pier would not result in uncovering anything he did not "already know." Id. at 181. No repairs were undertaken at that time.

In October of 1999, Charles Ascher, who had installed the original carpeting inside appellees' banquet hall, was summoned to the pier by Karetny to attend to the crack outside the banquet building, which had opened up to approximately one and a half to two inches wide and fifteen inches long. Ascher filled and patched the crack. On January 20, 2000, Ascher was again called to the pier by Karetny in order to address a split in the carpeting that had been caused by that portion of the crack which was extending inside of the building. Ascher, while in the presence of Karetny, cut the carpeting and observed that the crack was approximately eight feet long and three inches deep in some places. N.T., 11/13/01, at 174; 177. At the direction of a third person to whom he was introduced by Karetny, Ascher cemented the crack and repaired the carpeting to conceal it.

On May 9, 2000, John Jones of Suburban Propane was called to the pier to investigate a gas odor. He was met by Karetny and found a gas pipe that ran along a railing on the side of the pier. The pipe had bent, and Jones repaired it the following day. Karetny explained to Jones that the reason the pipe had bent was "probably from the pier moving." Id. at 142.

On May 15, 2000, appellees met with Jess Tyson, who then was employed by Commerce Construction, in order to investigate "bouncy flooring at the outshore end of the pier" at the nightclub. N.T., 12/11/01, at 11.4 Asbell had portions of the flooring removed for Tyson's inspection, and Tyson concluded that "fill"i.e., material used to support the floor and floor joists—might be "leaking out" from within the pier. Id. at 13. Tyson employed a diver to examine the underwater structure of the pier. The diver arrived early the next day and, before diving, took appellees out on his boat and showed them that certain steel pilings, which had been installed as reinforcements, were "twisting." Id. at 14. During the dive, the diver reported to Tyson and appellees that, in fact, fill had been leaking out from small openings in the underside of the horizontal pier structure and that the rows of pilings were "out of plumb on the top leaning toward New Jersey." Id. at 16. On that same occasion, appellees also asked Tyson to investigate the crack in and outside of the banquet building. Tyson informed appellees that the separation was, in fact, not a "crack," but a construction joint. Tyson observed that the joint had opened to approximately three inches both inside and outside the building, and he also witnessed two of appellees' employees pouring sand and gravel into the joint.

On May 16, 2000, Tyson called Asbell, who had left at some point during the inspection the day before, to inform him of the diver's findings. Tyson also noted for Asbell that "old piers do collapse" and pointed out that fifty feet of pier had recently collapsed on the New Jersey side of the Delaware River. Tyson also remarked that appellees had no safety equipment available on the pier, to which Asbell replied, "I had them out there but people stole them so the hell with them." Id. at 21.

That same day, Karetny met with Maria Cucciniello, an independent contractor who had been hired by Karetny to promote events and parties at appellees' nightclub.5 While meeting with Karetny, Cucciniello inquired about the presence of yellow caution tape around the bar area near the rear of the nightclub, where floor boards had been removed for Tyson's inspection the day before. Karetny told Cucciniello that the holes in the floor should be "of no concern" to her and that they were merely "raising the pier from underneath." N.T., 11/13/01, at 87-88.

On the morning of May 18, 2000, Karetny called Tyson and asked him to come to the pier immediately because "the old cracks" had become "much bigger" and there were "new cracks that [were] real big." N.T., 12/11/01, at 22. Karetny also noticed that "the bottom of the building [was] pushing out." Id. When Tyson arrived at the pier, appellees called his attention to a plate in the seawall that had been secured by bolts, and which was not meant to move at all. The plate had moved, along with the wall, over six inches, shearing off the heads of the bolts that had secured it. Tyson also noted that the construction joint extending through the banquet building, which had been open three inches a few days earlier, was now open to approximately seven inches. Finally, Tyson noted a new, three-inch-wide crack near the outshore end of the ballroom in the banquet building and that the door to that building was jammed shut because the doorjamb had shifted. Tyson concluded that the pier had moved approximately eight inches from May 16 to May 18. Id. at 28, 29.

Tyson asked appellees when they first noticed that the old cracks had grown and new cracks had appeared, and appellees answered that they had observed the new cracking at around 8:30 a.m. on the morning of May 18. Tyson concluded that "that...

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