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March 24, 1982

Doris E. ALTAMURO, Administratrix of the Estate of Joseph S. Altamuro, Deceased
The MILNER HOTEL, INC. and City of Philadelphia

The opinion of the court was delivered by: MCGLYNN

This is a diversity case brought by Doris E. Altamuro, administratrix of the estate of her husband, Joseph S. Altamuro, against the defendant, Milner Hotel, Inc. ("Hotel"), for damages for the death of her husband resulting from the inhalation of fumes and carbon monoxide while attempting to rescue residents of the Hotel during a three-alarm fire that occurred there on October 11, 1978.

 Seeking contribution and/or indemnity, the Hotel joined the City of Philadelphia as a third-party defendant alleging that the City's policemen and firemen were in exclusive control of the Hotel during the fire and that the City's negligence caused Mr. Altamuro's death. The matter was tried before the Court without a jury on November 24-25, 1981.

 Upon consideration of the evidence and the briefs and arguments of counsel, the court makes the following:


 1. The Milner Hotel is located at 111 South 10th Street in Philadelphia, Pennsylvania and is owned by the defendant The Milner Hotel, Inc., a corporation maintaining its registered office at 1526 Center Street, Detroit, Michigan.

 2. During the morning of October 11, 1978, Patricia DeLoss, a guest in Room 706 at the Hotel, went to the Hotel's Lobby and there told the Desk Clerk, William T. Wilson, that the television in her room was not receiving a picture and requested that it be repaired. After speaking to Wilson, Ms. DeLoss left the Hotel.

 3. Wilson then summoned Edwin Jennings, the maintenance man employed by the Hotel, and instructed him to proceed to Ms. DeLoss' room on the seventh floor to inspect the television.

 4. Mr. Jennings went to Room 706 and turned the power-switch of the television to the "on" position, but the switch did not activate the set.

 5. Jennings then moved the television and placed the plug into another receptacle in the same room. When he did this, the television began to emit a "burning" odor and made a "popping" or "crackling" sound. Jennings removed the plug from the receptacle and then placed the television in its former position reinserting the plug into the original receptacle with the power switch still in the "on" position.

 6. Jennings then returned to the Lobby and reported to Wilson that he thought the television had a "short" in it. In response, Wilson asked Jennings if he turned the television off. Jennings replied, "No, I don't think I did." Wilson then told Jennings to return to Room 706 and turn off the TV set. As Jennings began to ascend the stairs, an unidentified man came in and stated that there was smoke coming out of one of the Hotel's windows on the third floor.

 7. Wilson called the Fire Department and then, using the switchboard, called all the rooms in the Hotel, alerting the residents to the fire.

 8. About fifteen minutes later, Harry E. Vonada, the Manager of the Hotel, entered the Lobby, and after being appraised of the fire by Wilson, he and Jennings went to the third floor but were unable to locate the source of the smoke. Vonada then telephoned Wilson from one of the rooms on the third floor and told him that there was no fire at that level. Wilson then went outside, observed that the fire was on the seventh floor, and so advised Vonada.

 9. About fifteen minutes before Wilson told Vonada that the fire was on the seventh floor, Altamuro, who operated the newsstand in front of the Hotel, and who was known to Wilson, rushed into the Lobby and shouted to Wilson that smoke was pouring out of one of the rooms.

 10. Altamuro then boarded an elevator alone and went to one of the upper floors to alert the residents.

 11. Wilson testified that he warned Altamuro not to go because the Fire Department was called and would be soon arriving.

 12. Wilson also stated that Altamuro came back down to the Lobby, stayed there for approximately ten minutes and then boarded the elevator a second time. Wilson again warned him "not to go up".

 13. Wilson testified that Altamuro went up alone the second time and that this is the last time he saw him alive.

 15. While there, Officer Markowski met Jennings and Altamuro, with whom the Officer was acquainted. The officer said to Jennings: "Let's get upstairs and see what's happening." Altamuro asked if he could also go along to see if "he could give them a hand." Officer Markowski said it was all right with him, "but if anything went wrong, he'd have to get out."

 16. All three men then boarded the elevator and went to the seventh floor. They were joined by Vonada, the Manager. *fn1"

 17. All four men went to Room 706 where the fire had started. Officer Markowski tried to open the door but the door was locked. The Officer asked Jennings if he had a key to the room. Jennings said he did. Officer Markowski said: "Open the door." Mr. Vonada ordered Jennings to keep it closed in order to keep the fire contained in the room. Officer Markowski countered by telling Jennings: "I am the law. Open up the door." *fn2" Jennings complied with his command. When the door was opened, black smoke poured out of the room and into the hallway and filled the entire corridor. The lights in the hallway then went out.

 18. The men then became nauseous and the police officer began vomiting. Officer Markowski ordered the men downstairs, which order the men obeyed.

 19. While on the seventh floor, Officer Markowski found a woman unconscious on the floor. He picked the woman up and placed her on his shoulder and carried her down to the fifth floor.

 20. When on the fifth floor, Officer Markowski saw Altamuro knocking on doors informing guests of the fire. The police officer asked Altamuro to take the woman down to the Lobby for him. Altamuro carried the woman downstairs and Officer Markowski returned to the seventh floor.

 21. When he returned to the seventh floor, Officer Markowski found a tall slender Black male, assisted him to the Lobby, and then across the street away from the Hotel.

 22. The officer returned to the Lobby, but at this time, the fire was spreading rapidly. Flaming debris had fallen on the Hotel's marquee and consequently the firemen in the Lobby ordered all policemen and civilians out of the building.

 23. Officer Markowski testified that at the time the firemen made this announcement, he observed the presence of Mr. Wilson and Mr. Altamuro in the Lobby and that immediately after this announcement, ...

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