$12,700,000 – Kimmel Center Accident Nets $12.7 Mil.

Seven workers who were injured when a scaffolding form collapsed during construction of the Kimmel Center on Philadelphia's Avenue of the Arts will be paid more than $12.7 million in a global settlement reached after three days of mediation.

Robert J. Mongeluzzi

Lawyers for the workers said the Feb. 10, 2000, accident occurred as hundreds of tons of concrete were being poured into a massive form to create a ramp. The workers, who had been standing atop the form, fell nearly 40 feet into a mass of twisted scaffolding and wet cement.

Although rescue workers saved all of their lives, several suffered extensive injuries that left them completely disabled.

Plaintiffs' lawyers said the blame for the accident was shared by several companies because the structural designs for the concrete form were never completed, but the contractors went ahead and constructed it without any plans.

As a result, they said, the injured workers sued the form designer, Peri Formwork Systems Inc.; the concrete contractor, Pietrini & Sons; the general contractors, L.F. Driscoll and Artis Ore Inc.; and the Regional Performing Arts Center, the corporate owner of the Kimmel Center.

Attorneys Robert J. Mongeluzzi, John T. Dooley and Jeffrey F. Laffey of Saltz Mongeluzzi Barrett & Bendesky represented six of the seven workers whose settlements ranged from $200,000 to $3.1 million.

Two of the six were jointly represented. Attorney Albert L. Deutsch joined Mongeluzzi in representing Christopher Rizzo, who will be paid $3 million. And Murray L. Greenfield shared in the representation of Michael Berardi, who will be paid $1.2 million.

Attorney Mark J. LeWinter of Anapol Schwartz Weiss Cohan Feldman & Smalley represented the seventh man, Michael Warnick, who will be paid $2 million.

In an interview yesterday, Mongeluzzi and LeWinter said the settlement couldn't have happened without the assistance of mediator Ronald Sherr of ADR Options.

"People might think it's counterintuitive to choose a defense lawyer, but he [Sherr] is one of the deans of the bar and that makes him very effective," Mongeluzzi said.

"They [the defendants and their lawyers] listened to him. He's got the clout and the background to be able to work with insurance companies," Mongeluzzi said.

"He's also got patience," LeWinter added. "This was three full days of mediation with 30 people involved. It was a process, not an event."

Under the settlement, the workers will be paid the following amounts: $3.15 million to David B. Jennings III; $3 million each to Rodney Jones and Rizzo; $2 million to Warnick; $1.2 million to Berardi; and $200,000 each to Allen McCray and Earven E. Pettaway.

Mongeluzzi said one of the difficulties in the case stemmed from the fact that all of the plaintiffs, with the exception of Jennings, were employed by Pietrini and were, therefore, barred from suing Pietrini due to workers' compensation law.

As a result, Mongeluzzi said, the plaintiffs' team focused on proving that liability for the accident was shared by all the defendants.

"It has to be designed right, it has to be built right and it has to be inspected right," Mongeluzzi said.

In a settlement memo, plaintiffs' lawyers outlined their case against each defendant.

On the design liability issues, the memo said, Peri Formwork was liable because it was under contract to provide a design for the form but never did.

"Two Peri engineers testified that they never created a plan for the ramp formwork erection because they confused the ramp in question with a loading dock that was actually on a different level," the memo said.

When Pietrini informed Peri that the wrong designs had been sent, the memo said, "no one at Peri bothered to respond."

Peri's field representative was also on site taking photos less than a month before the accident, the memo said, "but he never bothered to caution against erecting formwork without plans, nor did he bother to call his engineers to find out why they had not produced the plans."

Pietrini was also liable, the memo said, for building the form "without the benefit of plans."

After the collapse, the memo said, "it was determined that the supporting members of the scaffolding were not even in contact with the ramp forms and that only 25 percent of the required materials has been incorporated into the structure."

L.F. Driscoll was the construction manager, according to the memo, and therefore had overall responsibility for safety on the project.

Although LFD employed a full-time safety manager who was on site every day, the memo said he had little experience and was not aware of the relevant safety regulations.

"At his deposition the site safety manager freely admitted that he had never seen a formwork project before and that he was not competent to inspect formwork foundations, scaffolding or formwork for safety violations," the memo said.

"His incompetence was one of the direct causes of this tragic event, and strong evidence of LFD's culpability. . . . In short, LFD's site safety manager had no idea of what was going on and completely failed to carry out his responsibilities for which the plaintiffs have paid a very heavy price," the memo said.

Attorney Joel Paul Fishbein of Bennett Bricklin & Saltzburg, who represented LFD and Pietrini, said he was pleased with the outcome of the mediation.

"This was about as reasonable a settlement as one could expect considering the liability issues, the nature of the accident and the quality of the plaintiffs' attorneys," Fishbein said.

Working with Mongeluzzi was a professional pleasure, Fishbein said, because "he knows more about construction and construction regulations than not only most lawyers, but most of the experts."

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Robert J. Mongeluzzi

Office: 215-575-2989