Nicholas Malfitano Oct. 7, 2015, 9:05am


PHILADELPHIA – A plaintiff in a wrongful death action and his counsel are seeking to prevent the defendant from selling his residential assets and becoming “judgment-proof.”

Colin Burke, on behalf of client Austin R. Freundlich of Philadelphia, filed a motion for preliminary injunction on Aug. 19 – as defendant landlord Robert M. Mitchell of Southampton supposedly did not answer the complaint and began to sell his residential properties in Philadelphia.

The plaintiff claims this is a concerted attempt to become immune to judgment in the case Freundlich brought against Mitchell -- a wrongful death action filed on behalf of decedent Matthew R. Pote. Freundlich serves as the administrator of Pote’s estate.

Twenty days after Pote’s death in May -- as a result of a fire in a Philadelphia residence owned by Mitchell at 3246 Kensington Avenue -- the defendant allegedly began to offer the property in question and its adjoining residence at 3248 Kensington Avenue for a cash-only sale in “as is” condition.

Burke's motion asked for an accounting of Mitchell’s assets, and the holding in escrow of any payments Mitchell may receive from the sale of the aforementioned properties, pending resolution of the case.

In response, defense counsel Robert J. Lohr filed a motion for extraordinary relief last Thursday. Lohr explained he had only just been retained as counsel by Mitchell on Sept. 29, and had not yet had an opportunity to meet with the defendant and prepare for legal proceedings.

In his motion, Lohr asked for a 30-day continuance of a meeting scheduled in court chambers for Wednesday, at Philadelphia City Hall. According to Lohr's filing, plaintiff's counsel agreed to the continuance on one stipulation; that Mitchell doesn’t dissipate his assets before the hearing or thereafter pending its outcome.

On May 11, a fire occurred at 3246 Kensington Avenue in Philadelphia. Pote lived on the third floor of the home, where he was initially unaware of the blaze. Allegedly, no alarm or smoke detector signaled to alert Pote of the fire, nor was there proper egress to a public way, per appropriate laws and fire codes.

In order to escape the fire, Pote exited a third-floor window and clung to the outside of the building. However, Pote lost his footing and fell to the ground, suffering blunt force trauma, which directly caused his death. Prior to his fatal fall from the residence, Pote also sustained smoke inhalation-related injuries.

According to the lawsuit, the structure’s lack of fire alarms, smoke detectors and proper egress to a public way violated the Philadelphia Fire Code, Philadelphia Building Code, Philadelphia Administrative Code and National Fire Protection Association guidelines.

Pote was the father of two minor children: a 9-year-old daughter and a 7-year-old son. As administrator of Pote’s estate, Freundlich brought suit under the Wrongful Death and Survival Acts, to recover funds to benefit Pote’s children.

The plaintiff is seeking a sum jointly and severally, in excess of $50,000, plus pre- and post-judgment interest and costs.

The plaintiff is represented by Shanin Specter and Colin Burke of Kline & Specter in Philadelphia.

The defendant is represented by Robert J. Lohr of Lohr & Associates in West Chester.

Philadelphia County Court of Common Pleas case 150603280

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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