PHILADELPHIA – The Philadelphia Housing Authority has motioned to compel reception of extensive discovery materials from the Philadelphia Fire Department, in wrongful death litigation connected to a January 2022 fatal apartment house fire in the city’s Fairmount neighborhood that caused the deaths of 12 people.
The Philadelphia-based firm of Kline & Specter represents the families of 33-year-old Rosalee McDonald, 15-year-old Destiny McDonald, 16-year-old Quintien Tate-McDonald, 3-year-old Janiyah Roberts and 18-year-old Quinsha White, and brought suit against the Philadelphia Housing Authority and Enor International, Inc., of La Puente, Calif.
“This terrible tragedy resulting in precious loss of life could and should have been avoided. After a lengthy ATF investigation, ATF report and our own independent investigation, we are now prepared to move forward, seeking not only compensation, but accountability,” said Thomas R. Kline of Kline & Specter, PC, who represents the five victims among the 12 people who perished in the building owned by PHA.
The firm also represents three others killed in the fire for whom complaints are forthcoming, while fellow Philadelphia-based attorneys Jordan Strokovsky of Strokovsky, LLC and Kevin Mincey of Mincey Fitzpatrick Ross, represent the remaining victims.
The lawsuit alleged that PHA was responsible for the fire and deaths for several reasons, including that it knew its four-bedroom apartment was overcrowded with 14 people, constituting a safety hazard. Additionally, the housing authority was responsible for ensuring the apartment complied with all codes and regulations.
However, the suit said, the apartment did not have a fire escape, fire extinguishers, hard-wiring and tamper-proof smoke or carbon monoxide detectors, an early detection system or a working fire suppression system.
The tragic incident began when a child used a Techno Torch lighter to set fire to a Christmas tree on the second floor, trapping 13 people on the second and third floors. The lighter was a product of defendant Enor International, Inc.
In reference to the fatal fire and its aftermath, PHA Executive Vice-President Nichole L. Tillman offered the following statement.
“Since the tragic fire last year, PHA has worked diligently to support the impacted families in ensuring that the surviving family members were supported and rehoused. PHA also partnered closely with our residents on the importance of fire safety and preventing fires at our developments. We recognize that education and partnership with our residents are key,” Tillman said.
“Accordingly, PHA has actively engaged with the Resident Advisory Board (RAB) leaders and residents all year to educate, remind and reinforce the importance of fire safety and the critical role residents play in ensuring safety. This included: Meetings, fire safety literature and fire drills as well encouraging residents to have in place an emergency safety plan for their families. Safety of our residents remains paramount for all of us at PHA and we will continue to collaborate with our residents, who we are privileged to serve, to educated and inform them about fire safety and prevention.”
PHA filed preliminary objections on April, looking to strike Paragraphs 21 (“including, but not limited to” averment), 21(l), 21(m), 24(r), 24(s), 24(v-ff), 79 and 84 for failure to conform to law/rule of court and for insufficient specificity.
However, these objections were later marked as moot, due to the filing of an amended complaint on April 24, 2023 – which left the sole plaintiff in the case as Beverly Graham (individually and as co-administrator of the Estate of Quintien Tate-McDonald, deceased).
Defendant Enor International, Inc. filed an answer to the complaint on May 1, 2023, which denied liability for the fire and that the lighter at issue was one of its products – and further, if it was in fact one of its products, it was not defective.
“Plaintiff’s amended complaint fails to state a claim upon which relief can be granted. No omissions or conduct on the part of answering defendant caused and/or contributed to plaintiff’s damages and/or those of plaintiff’s decedent, if any. Plaintiff and/or plaintiff’s decedent failed to mitigate her/their damages. Plaintiff’s recovery is barred and/or limited by plaintiff’s failure to properly mitigate her/their damages. The plaintiff and/or her decedent assumed the risk of any injuries and/or damages alleged. The damages complained of by plaintiff pre-existed or are unrelated to the incident which is the subject matter of this complaint,” the company’s new matter said, in part.
“The negligence of plaintiff and/or her decedent either bars plaintiff’s right to recover completely or reduces plaintiff’s claims based upon the extent of plaintiff’s and/or her decedent’s negligence under the doctrine of comparative negligence. Plaintiff’s alleged damages, and/or those of plaintiff’s decedent, if any, were the result of an unavoidable accident or sudden emergency. Plaintiff’s alleged damages, and/or those of plaintiff’s decedent, if any, were proximately caused in whole, or in part, by the bulk of third parties, including plaintiff and/or their decedent, for whom answering defendant is not legally responsible. Plaintiff’s claims are barred or limited by the applicable statute of limitations. Service of process was improper and/or insufficient. The actions of a third party constitute superseding causes of the plaintiff’s injuries and/or those of plaintiff’s decedent, if any.”
The company added that it had no role in selecting tenants and/or controlling the occupancy of the premises where the incident occurred, nor did it have any responsibility for maintaining those same premises.
Additionally, the retailer redirected liability in the case to its co-defendant, the Philadelphia Housing Authority.
On May 26, 2023, plaintiff counsel responded to the company’s new matter and cross-claim – framing them as conclusions of law for which no responses are required, and, as such, deeming the allegations denied.
“It is specifically denied that defendant did not design the subject lighter, denied that defendant did not manufacture the subject lighter, denied that the subject lighter was fit for its intended purpose and denied that the subject lighter was altered after it was distributed and/or sold by defendant,” the reply added.
“Moreover, it is specifically denied that the subject lighter contained adequate safety features and warnings when it was sold and/or distributed by defendant, and denied that the subject lighter comported with applicable product safety standards when it was sold and/or distributed by defendant.”
Prior to the case’s removal to the U.S. District Court for the Eastern District of Pennsylvania nearly one year later, on May 1, BIC Corporation (doing business as “BIC, Inc.”, “BIC” and “BIC USA Inc.”) was added as a defendant through a joinder complaint brought by Enor International, Inc., since multiple lighters were found in the ashes of the apartment.
UPDATE
On May 1, a motion from the Philadelphia Housing Authority to compel and enforce a June 19, 2023 subpoena made its way to the federal court, with the PHA seeking an extensive amount of materials from the Philadelphia Fire Department, including:
• The complete file(s) (paper and electronic) of the Philadelphia Fire Department including the Philadelphia Fire Marshal’s Office relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All documents related to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022, including all correspondence, letters, emails, text messages, statements, transcripts, memorandums, faxes, notes, media, writings, forms, records, reports, evaluations, logs and journals;
• All communications and documents by and between Philadelphia Fire Department and ATF related to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All reports prepared by ATF relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022 including, all exhibits, records, documents, and appendices to any reports. This includes drafts of such documents;
• All documents related to any report prepared by ATF regarding the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan.5, 2022;
• All documents related to any and all investigations regarding the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022. This includes investigations by the Philadelphia Fire Department, the Philadelphia Fire Marshal’s Office, ATF, the Commonwealth of Pennsylvania, the City of Philadelphia and the Philadelphia Police Department;
• All communications and documents by and between the Philadelphia Fire Department and the City of Philadelphia including any agency, official, representative, or department of the City of Philadelphia relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All documents regarding any evidence taken or observed from 869 N. 23rd Street, Philadelphia, PA 19130 and the fire on Jan. 5, 2022;
• All emails of the Philadelphia Fire Department relating to the fire on Jan. 5, 2022 at 869 N. 23rd Street, Philadelphia, PA 19130;
• All communications and documents, including emails, by and between the Philadelphia Police Department and the Philadelphia Fire Department relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All communications and documents, including emails, by and between the Philadelphia Fire Department and any federal official, federal department or federal agency relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All communications and documents by and between the Philadelphia Fire Department and the Commonwealth of Pennsylvania including any commonwealth agency or department relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All documents and communications by and between the Philadelphia Fire Department and any person, investigator, attorney, law firm, or the media relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All documents regarding any tests, findings, or evaluations of any evidence or materials from 869 N. 23rd Street, Philadelphia, PA 19130 relating to the fire on Jan. 5, 2022;
• All evidence logs and evidence journals regarding any evidence relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All documents relating to any smoke detector and lighter found or observed regarding the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All photographs relating to all evidence relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All diagrams, maps, sketches, and drawings relating to the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All notes and writings relating all evidence regarding the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• All documents and files related to the Philadelphia Fire Marshal’s Office regarding the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022;
• The ‘2,390 photographs’ as stated in the Philadelphia Fire Department’s Counsel’s letter of Dec. 21, 2023;
• ‘The 29 Reports of investigation, documenting ATF investigative steps including 18 constituting a record of an interview’ as stated in the Philadelphia Fire Department’s Counsel’s letter of Dec. 21, 2023;
• ‘The ATF Evidence Log, and related records’ as stated in the Philadelphia Fire Department’s Counsel’s letter of Dec. 21, 2023;
• The ‘3D tour of the property…and hundreds of image files that support that software’ as stated in the Philadelphia Fire Department’s Counsel’s letter of Dec. 21, 2023; and
• ‘A number of video models of the property apparently predicting fire, etc. propagation’ as stated in the Philadelphia Fire Department’s Counsel’s letter of Dec. 21, 2023.
“This is the second discovery motion that PHA has been compelled to file against the Philadelphia Fire Department to obtain basic information and documents that the fire department is withholding and/or refusing to disclose regarding the fire at 869 N. 23rd Street, Philadelphia, PA 19130 on Jan. 5, 2022 whereby 12 people died. The Philadelphia Fire Department refuses to produce – or even disclose – many documents and materials related to the fire and the investigation of the fire,” the motion added.
“The Philadelphia Fire Department will not provide a privilege log of the documents and materials it is withholding. As averred below, PHA has attempted to work with the Philadelphia Fire Department since PHA issued its document subpoena on June 19, 2023. However, the conduct of the Philadelphia Fire Department since June 2023 regarding the subpoena has at times been dismissive, deficient, defensive and dilatory. PHA is now regrettably compelled to seek court intervention for the second time.”
The plaintiff is seeking unspecified damages in the suit.
The plaintiff is represented by Thomas R. Kline, Aaron Dunbar, Sherrell Dandy, and Frank Mangiaracina of Kline & Specter, in Philadelphia.
The defendants are represented by Steven J. Engelmyer, Eric J. Schreiner and Francis G. Notarianni of Kleinbard, LLC, Andrew R. Benedict and Joanne R. Rubinsohn of BBC Law, plus James H. Heller, Jillian Thornton Flax, Ryan I. Kelly and Shelby Kay Riney of Cozen O’Connor, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01862
Philadelphia County Court of Common Pleas case 230301653
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com