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IN RE ONE MERIDIAN PLAZA FIRE LITIG.

April 14, 1993

IN RE: ONE MERIDIAN PLAZA FIRE LITIGATION


The opinion of the court was delivered by: BY THE COURT; RONALD L. BUCKWALTER

 BUCKWALTER, J. April 14, 1993

 I. Introduction

 This litigation arose as a result of a fire at the One Meridian Plaza building in downtown Philadelphia which began on February 23, 1991. Various parties, none of whom were tenants of One Meridian Plaza at the time of the fire, have brought claims for uninsured losses. All of the initial complaints filed in the above cases were consolidated into the "One Meridian First Consolidated Amended Class Action Complaint" (hereinafter the "Complaint"). Each of the defendants has filed a separate motion to dismiss the Complaint, a motion for a more definite statement, a motion to strike, or some combination thereof (hereinafter simply "motions to dismiss"). *fn1"

 Each motion contains numerous sections. Many of these sections are common to many or all of the motions to dismiss. In addition, some defendants have raised arguments which, although not raised by other defendants, apply to other defendants. Wherever any defendant's motion demonstrates that plaintiffs have failed to state a claim against all defendants, the dismissal of the claim will apply to all defendants. Where a defendant makes an argument on its own behalf only, of course, the portion of this opinion which discusses that argument will apply only to that defendant. In the end, each defendant stands alone and the order following this opinion reflects the differences in the resolution of issues as applicable to each defendant.

 The facts of the case are common to all defendants' motions. Where necessary, facts applicable only to a specific defendant are included in the section of the opinion corresponding to that defendant and its motion. The standard of review in a motion to dismiss, of course, is the same for all defendants and all of the instant motions. When reference is made to a "defendant's memorandum," (i.e. "Delmont's Memorandum" or "Balis' Memorandum") it is to that defendant's memorandum in support of its motion to dismiss. Plaintiff has responded with one collective memorandum in opposition to all of the motions. When reference is made to "Plaintiffs' Memorandum," it is to that collective memorandum.

 Subsequent to the filing of these motions, plaintiffs' response and defendants' replies, plaintiffs filed a motion to amend the Complaint. *fn2" The proposed second amended complaint, attached to plaintiffs' motion, has indicated plaintiffs' acquiescence to the dismissal of the following:

 1. All claims by Constitution Bancorp., N.A. and Louis J. Boundonna;

 2. All allegations against "potential co-defendants";

 3. Certain allegations which defendants characterized as irrelevant and impertinent.

 Thus, these matters, all of which were raised in the motions to dismiss, are dismissed.

 II. Facts

 This litigation arose from the fire which occurred on Saturday, February 23, 1991, at the One Meridian Plaza building ("One Meridian" or "the Building") in downtown Philadelphia. Since the fire, One Meridian has been shut down, as has Two Mellon Bank Center ("Two Mellon"), which is adjacent to One Meridian. The City of Philadelphia barred access to an area surrounding the Building for some time after the fire due to the threat of falling granite or other debris.

 A. The Parties

 There are numerous plaintiffs and defendants, and it is important to identify all of them in order to resolve the motions to dismiss. *fn3" It is also important to note whether the plaintiffs sustained any property damage as a direct result of the fire, the (potential) classes of which each plaintiff is a member, *fn4" and which causes of action they assert.

 Plaintiffs :

 1. Ejay Travel, Inc. ("Ejay"): It is alleged that Ejay is a corporation which leased space near One Meridian, and that water and debris entered and damaged Ejay's premises as well as its business furniture, equipment and records. ([para.] 3). *fn5" The threat of falling debris and the closure of the street on which Ejay is located prevented Ejay from repairing its premises and resuming business. Ejay is a member of proposed Classes C, D, and E and asserts all causes of action in the Complaint against defendants.

 2. Nancy Dembowski ("Dembowski"): It is alleged that Dembowski's place of employment was located at One Meridian and that personal property located at her place of employment was destroyed. ([para.] 4). She is a member of proposed Classes A, D and E and asserts all causes of action in the Complaint against defendants.

 3. Virginia L. Grandy ("Grandy"): It is alleged that Grandy's place of employment was located at One Meridian and that personal property located at her place of employment was destroyed. ([para.] 5). She is a member of proposed Classes A, D and E and asserts all causes of action in the Complaint against defendants.

 4. T. Sean Crumlish ("Crumlish"): It is alleged that Crumlish is an employee and sales representative of Equitrac Corp., and was a provider of goods and services to tenants of One Meridian and Two Mellon, and that personal property belonging to him was destroyed or lost. ([para.] 6). He also lost commissions, income, and actual and potential clients and business. He is a member of proposed Classes A, D and E and asserts all causes of action in the Complaint against defendants.

 5. Robert Allen ("Allen"): It is alleged that Allen's place of employment was located at One Meridian, and that he suffered damage to his personal property and economic harm. ([para.] 9). Allen is a member of proposed Classes A, D, and E and asserts all causes of action in the Complaint against defendants.

 6. Regent 15th Street, Inc., d/b/a Giorgio Brutini ("Regent Shoes"): It is alleged that Regent Shoes is a corporation which rented and operated a commercial establishment near One Meridian until the fire, and that it suffered physical harm to its business premises, furniture, equipment, inventory and other personal property as well as business loss and interruption. ([para.] 10). Regent Shoes is a member of proposed Classes C, D, and E and asserts all causes of action in the Complaint against defendants.

 7. LegXpress, Inc. ("LegXpress"): It is alleged that LegXpress is a corporation which operated a hosiery store located near One Meridian. LegXpress has alleged business loss and interruption but no property damage. ([para.] 11). It is a member of proposed Class E and asserts only Count VI (public nuisance) of the Complaint against defendants.

 8. Pennsylvania Square Corp. ("Square Corp."): It is alleged that Square Corp. is a corporation which operated parking facilities for the general public near One Meridian. Square Corp. has alleged business loss and interruption but no property damage. ([para.] 12). Square Corp. is a member of proposed Class E and asserts only Count VI (public nuisance) of the Complaint against defendants.

 9. Anthony Vinciguerra ("Vinciguerra"): It is alleged that Vinciguerra leased and occupied space in Two Mellon at the time of the fire and that his space and business was "touched and physically invaded by water, smoke and airborne toxins and the ingress and egress to plaintiff's space and business was physically blocked by barricades and other fire safety equipment or materials." ([para.] 13). Vinciguerra is a member of proposed Classes B, C, D, and E and asserts all causes of action in the Complaint against defendants.

 10. John M. Corcoran ("Corcoran"): It is alleged that Corcoran leased and occupied space and conducted business in Two Mellon at the time of the fire and that his space and business was touched and physically invaded by water, smoke and airborne toxins and the ingress and egress to plaintiff's space was physically blocked. ([para.] 14). Corcoran is a member of proposed Classes B, C, D, and E and asserts all causes of action in the Complaint against defendants.

 11. Sunshine Personnel, Inc. ("Sunshine"): It is alleged that Sunshine is a corporation which leased premises in the area of Philadelphia closed to pedestrian and vehicular traffic. ([para.] 15). Sunshine has alleged business interruption and damage to its business but no property damage. Sunshine is a member of proposed Classes D and E and asserts all causes of action in the Complaint against defendants.

 12. Royal Bank of Pennsylvania ("Royal Bank"): It is alleged that Royal Bank is a corporation which leased premises in the area of Philadelphia closed to pedestrian and vehicular traffic, and that it incurred physical harm to its business premises, furniture, equipment inventory and suffered other personal and real property damage. ([para.] 16). Royal Bank is a member of proposed Classes C, D, and E and asserts all causes of action in the Complaint against defendants.

 13. Robert J. Atlee ("Atlee"): It is alleged that Atlee's place of employment was located at One Meridian, that personal property owned by him was destroyed and that he lost his employment as a result of the fire. ([para.] 17). He is a member of proposed Classes A, D, and E and asserts all causes of action in the Complaint against defendants.

 14. Triumphe Financial Services ("Triumphe"): It is alleged that Triumphe is a corporation which provided various financial, accounting and computing goods and/or services to occupants of the Building. ([para.] 18). Triumphe has alleged lost income and actual and potential clients and business but no property damage. It is a member of proposed Classes C, D, and E and asserts all causes of action in the Complaint against defendants.

 15. C.W.D. Enterprises Ltd. d/b/a Chris' Cafe and Bar ("Chris' Cafe"): It is alleged that Chris' Cafe suffered smoke and odor damage to its property and premises, which is located near One Meridian, and also suffered business loss and interruption and damage to its business as a result of the fire. ([para.] 19). It is a member of proposed Class E and asserts only Count VI (public nuisance) of the Complaint against defendants.

 16. The Happy Rooster, Inc. ("The Happy Rooster"): It is alleged that the Happy Rooster is a corporation which suffered smoke and odor damage to its property and premises which is located near One Meridian. ([para.] 20). It also alleges business interruption and damage to its business as a result of the fire. It is a member of proposed Class E and asserts only Count VI (public nuisance) of the Complaint against defendants.

 Potential Plaintiff Classes : *fn6"

 Class A : This class includes persons or entities who owned or leased property located in One Meridian which was damaged by the fire or efforts to suppress the fire or conditions that existed in the aftermath of the fire. ([para.] 40a).

 Class B : This class includes persons or entities who owned or leased property located in Two Mellon which was damaged by the fire or efforts to suppress the fire or conditions that existed in the aftermath of the fire. ([para.] 40b).

 Class C : This class includes persons or entities who owned or leased property outside of One Meridian and Two Mellon which was damaged by the fire or efforts to suppress the fire or conditions that existed in the aftermath of the fire. ([para.] 40c).

 Class D : This class includes persons or entities who resided, worked, owned or leased real or personal property, conducted business, provided goods or services, or engaged in other enterprises or endeavors in the area of Philadelphia to which access was limited because of the fire and who or which suffered harm on account of the threat of physical harm or the closure of the City's streets. ([para.] 40d).

 Class E : This class includes persons and entities who conducted business or engaged in other enterprises or endeavors in Philadelphia who suffered harm as a result of the obstruction and closing of public ways and streets as a result of the fire which harm is different in kind from the inconvenience suffered by other members of the general public. ([para.] 40e).

 Defendants

 1. Owner/Manager Defendants: The Complaint has designated the following defendants, collectively, as the Owner/Manager Defendants: *fn7"

 *Richard I. Rubin & Co., Inc. ("Rubin"): It is alleged that Rubin is a corporation which managed the Building and was responsible for its safety including all fire detection, suppression and protection systems. ([para.] 21).

 *Equitable Life Assurance Society of the United States ("Equitable"): It is alleged that Equitable is a mutual insurance company and an owner of One Meridian. ([para.] 22).

 *E/R Associates: It is alleged that E/R Associates is a Pennsylvania partnership and an owner of One Meridian. ([para.] 23).

 *USA One Associates: It is alleged that USA One Associates is a Pennsylvania partnership of USA One BV and USA Two BV and a general partner of E/R Associates. ([para.] 24).

 *USA One BV: It is alleged that USA One BV is a Netherlands corporation and a general partner in USA One Associates. ([para.] 25).

 *USA Two BV: It is alleged that USA Two BV is a Netherlands corporation and a general partner in USA One Associates. ([para.] 26).

 *Algemeen Burgerlijk Pensioenfonds ("ABP"): It is alleged that ABP is a Dutch pension fund. ([para.] 27). It is further alleged that USA One BV and USA Two BV are wholly owned subsidiaries of USA Holdings, BV, which is a Netherlands corporation and a wholly owned subsidiary of ABP.

 *Pan American Office Investments, Inc. ("Pan American"): It is alleged that Pan American is an agent, subsidiary, and/or affiliate of the other Owner/Manager Defendants and/or managed One Meridian in conjunction with Rubin. ([para.] 28).

 *Rodin Investment Administration Company ("Rodin"): It is alleged that Rodin is an agent, subsidiary and/or affiliate of ABP, USA One BV, USA Two BV and/or USA One Associates. ([para.] 29).

 *Equitable Real Estate Investment Management, Inc. ("Equitable Real Estate"): It is alleged that Equitable Real Estate is a foreign corporation and an agent, subsidiary, and/or affiliate of the other Owner/Manager Defendants and/or managed One Meridian in conjunction with Rubin. ([para.] 30).

 *Jones Lang Wootton USA ("JLW"): It is alleged that JLW, along with Rubin, managed the Building and was responsible for its safety including its electric, sprinkler, internal hydrant and other fire protection systems. ([para.] 31).

 *American Building Maintenance Company ("ABM"): It is alleged that ABM employed the security guards, building engineers and other personnel who were on duty at the time of the fire.

 2. Balis & Co., Inc. ("Balis"): It is alleged that Balis is a corporation which occupied the office space in One Meridian where the fire started. ([para.] 33).

 3. Joseph F.X. Griffin ("Griffin"): It is alleged that Griffin was a construction, cleaning and/or service company hired by Balis to finish and/or refinish certain wall panels, and that Griffin left combustible and flammable solvents in Balis' offices which started the fire. ([para.] 34).

 4. Penn Sprinkler Company, Inc. ("Penn Sprinkler"): It is alleged that Penn Sprinkler is a corporation which was responsible for testing the inadequate internal pump, standpipe and hydrant system in One Meridian and improperly certifying that the pressure reduction valves produced adequate water pressure when, in fact, they did not. ([para.] 35).

 5. Delmont Fire Protection Service, Inc. ("Delmont"): It is alleged that Delmont is a corporation which modified the Building's standpipe system in 1988 and supplied the pressure restriction valves and pumps and/or equipment, piping, fittings and materials utilized with the standpipe system which were improperly installed and/or set such that the water supply to the Building's fire fighting system was grossly inadequate. ([para.] 36).

 6. National Guardian Security Services Corporation ("National Guardian"): It is alleged that National Guardian is a corporation which was hired by the Owner/Manager Defendants which failed to respond to the fire alarm call and/or that they installed, maintained, and/or inspected the failed automatic dialer located in the basement of One Meridian.

 B. The Fire

 On Friday February 22 and/or Saturday, February 23, 1991, defendant Griffin, a company hired by defendant Balis to finish and/or refinish certain wall panels, left combustible and flammable solvents, including linseed oil, in Balis' offices on the 22nd floor. ([para.] P 34, 129). Linseed oil is highly combustible and, unless stored in a proper container, will spontaneously combust. ([para.] 129). Plaintiffs allege that spontaneous combustion of the flammable liquids, and/or an electrical malfunction or other ignition sparked or reached the flammable liquids or fumes created thereby, started the fire at approximately 8:00 P.M. on Saturday evening February 23, 1991. ([para.] 139).

 The fire spread quickly on the 22nd floor due to the flammable solvents present on the floor. ([para.] 141). Neither of the two security guards on duty called the fire department or National Guardian. ([para.] 147). The report of the fire was first called in by a passer-by, at 8:23 P.M. ([para.] 164, 165).

 In the basement of the Building was an automatic dialer that was designed to automatically call the fire department or National Guardian; this dialer either failed to make the call or the relay of the call from National Guardian to the fire department was delayed. ([para.] P 148, 149). This dialer was intended to meet requirements imposed by the Philadelphia Code. ([para.] 148).

 Each floor of the Building is required to be a sealed membrane with no openings or gaps between floors, so that a fire cannot spread from floor to floor. ([para.] 155). Furthermore, each floor has an electrical room, and the electrical room is supposed to be sealed off from the rest of the floor, and from the adjoining electrical rooms, so that a fire cannot breach an electrical room, but if it did, the fire could not spread from floor to floor through the electrical rooms. ([para.] 157, 158). Due to a gap along the top of the north wall of the 22nd floor electrical room, and breaches in the seals between floors from the 22nd up to the 29th floor, the fire spread through the electrical fire tower, *fn8" and the entire Building lost power. ([para.] P 153, 162, 169). The Building's emergency generator also failed, allegedly due to improper, inadequate and negligent inspection and maintenance and/or design and installation. ([para.] 170). The firefighting efforts were hindered by the fact that there were no elevators and no lights. ([para.] 171).

 The efforts to fight the fire were hindered further by inadequate water pressure from the standpipe hydrants on the 22nd floor. ([para.] 175). *fn9" This was allegedly due to the negligently installed pressure reduction valves ("PRV's") and because the hoses did not fit the fire hose connectors installed and inspected by Delmont and/or Penn Sprinkler and negligently maintained by the Owner/Manager Defendants. ([para.] 175, 179). Additionally, the restriction and/or modulating valves attached to the 12th floor fire pump were negligently installed, inspected and maintained by Delmont and/or Penn Sprinkler, thus rendering the pump ineffective to place water with sufficient pressure and flow to the so-called indoor hydrants on the upper floors. ([para.] 185).

 Comcast Cable-Vision, a tenant of One Meridian, had installed sprinklers at its own expense on the 30th floor. ([para.] 52). These sprinklers finally contained the fire. ([para.] 52). There were no sprinklers at One Meridian on the 22nd floor, where the fire started, or on the seven floors above it. ([para.] 53).

 C. Causes of Action

 Count I: Negligence Per Se

 Plaintiffs allege that defendants violated state and local legislative and administrative enactments, and thus violated their statutory duty to adhere to these enactments. ([para.] P 227 - 231). Plaintiffs have demanded compensatory damages for uninsured property loss and economic harm, attorneys' fees and punitive damages.

 Count II: Negligence

 Plaintiffs allege that defendants had a duty to plaintiffs, and that as a "direct, proximate and reasonably foreseeable result of defendants' breach of duty," plaintiffs have suffered substantial harm. ([para.] P 232 - 238).

 Specifically, plaintiffs' allegations of negligence include the following:

 1. The Owner/Manager Defendants negligently reconstructed, inspected and maintained the fire towers of One Meridian, including the electrical fire tower, and allowed numerous breaches of the fire towers. ([para.] 76).

 2. The seals between numerous floors, including the seals between the 22nd and 23rd floors and the other fire floors, were missing, allowing the fire to spread up the electrical fire tower. This allegedly constituted gross negligence on the part of the Owner/Manager Defendants. ([para.] 79).

 3. The Owner/Manager Defendants, Penn Sprinkler, Delmont and National Guardian violated various provisions of The Philadelphia Code and BOCA. *fn10"

 (a) Failed to properly install, inspect, maintain, service and test the PRV's and the standpipe system, the electrical systems, elevator and/or the fire detection, prevention and fighting systems;

 (b) Failed to properly report the results of inspections and testing of the PRV's, the standpipe system, the electrical systems, elevator and/or the fire detection, prevention and fighting systems;

 (c) Failed to take note of and report defective or malfunctioning aspects of the PRV's, the standpipe system, the electrical systems, elevator and/or the fire detection, prevention and fighting systems, of which these defendants were aware or should have been aware;

 (d) Recommended the use of materials and equipment and operation of systems which they knew or should have known were not adequate to protect plaintiffs in the event of fire; and

 (e) Failed to recommend to the Owner/Manager Defendants or to notify plaintiffs that applicable safety statutes and regulations had not been and should be strictly adhered to. ([para.] 95).

 5. The Owner/Manager Defendants:

 (a) Failed to warn plaintiffs that the Building did not have adequate fire alarm, control or fire suppression systems;

 (b) Failed to warn plaintiffs that the Building was in violation of applicable laws and regulations relating to fire safety;

 (c) Allowed the Building to be improperly designed, redesigned, constructed and renovated without regard for statutory and regulatory requirements pertaining to fire safety, and without regard to the ready availability of relatively inexpensive fire control and suppression systems;

 (d) Failed to maintain adequate fire control and suppression systems, including fire seals, PRV's, water supply, electrical, ventilation and elevator systems;

 (e) Refused to take action to prevent further and continuing injury to plaintiffs' property after the fire;

 (f) Failed to ensure that contractors hired to install, maintain and inspect the Building's fire control and suppression systems did so in accordance with statutory and regulatory requirements. ([para.] 118).

 6. Penn Sprinkler, Delmont and/or the Owner/Manager Defendants negligently installed and calibrated the PRV's and subsequently improperly and negligently tested, inspected and maintained the PRV's and/or caused improper certification of the PRV's so that there was inadequate water pressure and flow in the Building and its standpipe system. ([para.] P 121 - 122). Plaintiffs allege that this constituted gross negligence. ([para.] 122).

 7. Griffin and Balis negligently left and maintained flammable solvents on the 22nd floor, which violated Chapters 5-1600, 5-1700 and 5-3100 of the Philadelphia Code which impose a duty to segregate, store and safekeep flammable and combustible liquids, finishes and other materials and conditions tending to create fire hazards. ([para.] P 131, 132).

 8. Balis failed to properly supervise Griffin. ([para.] 132).

 9. The Owner/Manager Defendants improperly permitted Griffin and Balis to bring these materials into the Building and to undertake this type of activity, negligently failed to inspect properly the work area, and negligently failed to supervise properly the workers who negligently left the flammable solvents on the 22nd floor, and failed to remove the flammable solvents and liquids. ([para.] 133).

 10. The Owner/Manager Defendants violated their duty pursuant to Chapter 5-3400 of the Philadelphia Fire Code to train their personnel in fire safety procedures.

  11. ABM employees failed to investigate a strong odor on the 22nd floor ([para.] 134 - 135), an ABM employee improperly used an elevator to determine if there was a fire on the 22nd floor ([para.] 143) and ABM employees failed to notify the Philadelphia Fire Department that there was a fire in the Building ([para.] 147).

  Count III: Strict Liability - Ultrahazardous Activity

  Count IV: Trespass

  Plaintiffs allege that all defendants' *fn11" conduct was a substantial physical invasion and trespass in that, as a result of their conduct, smoke, airborne toxins, water, falling granite and/or other Building debris or physical barriers were discharged or placed upon the property of plaintiffs who ...


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