Lawyers in civil suit over building collapse seek to move trial out of Philly
Lawyers for real estate speculator Richard Basciano have asked to move the Sept. 6 civil trial in the deadly Center City building collapse outside Southeastern Pennsylvania, saying local media coverage "has been so extensive, sustained, inflammatory, and inculpatory" that Basciano could not get a fair trial.
Lawyers for real estate speculator Richard Basciano have asked to move the Sept. 6 civil trial in the deadly Center City building collapse outside Southeastern Pennsylvania, saying local media coverage "has been so extensive, sustained, inflammatory, and inculpatory" that Basciano could not get a fair trial.
The 93-page petition to change the venue of the trial was filed Monday with Common Pleas Court Judge Mark I. Bernstein by veteran Philadelphia lawyer Richard A. Sprague. Sprague's firm represents Basciano and several of his corporate entities, property manager Thomas Simmonds, and Frank Cresci, Basciano's ex-chief financial officer.
Bernstein, 68, a judge for 29 years, is handling pretrial proceedings in the case consolidating lawsuits on behalf of six killed and 13 injured on June 5, 2013, when an unsupported three- to four-story wall at a Basciano demolition site toppled and crushed a Salvation Army thrift store at 22nd and Market Streets.
Bernstein has not set a hearing. Should he agree that the trial needs to move from Philadelphia, the state Supreme Court would decide where.
Another change-of-venue motion was filed by the lawyer for Plato A. Marinakos Jr., the architect Basciano hired to oversee demolition of buildings he owned on Market Street between 21st and 23rd Streets.
Unlike Sprague's petition, the motion by Marinakos lawyer Kevin J. Dmochowsky offers an alternative to moving the trial outside Philadelphia and its four surrounding counties.
Dmochowsky suggested the jury be picked from another county's residents and transported to Philadelphia for the trial.
Regardless of which alternative Bernstein chooses, Dmochowsky wrote, "the pretrial publicity by the Philadelphia media in this case is so pervasive and prejudicial that it must be presumed the defendants cannot obtain a fair and impartial trial in Philadelphia County."
Bernstein must weigh if it is possible to pick an impartial jury in Philadelphia considering the heavy media coverage of the collapse, the criminal proceedings against the contractor and heavy equipment operator Basciano used on the demolition, and the continuing pretrial issues leading to the Sept. 6 civil trial.
Also at issue is the cost and inconvenience to the principals and witnesses, their lawyers, and support staff to move to another Pennsylvania county for a trial Bernstein has estimated will last four weeks.
Bringing in an outside jury would also cost the city courts because jurors would likely be sequestered in a hotel.
Robert J. Mongeluzzi, one of the lead plaintiffs' lawyers in the litigation, said he had 30 days to respond to the motions but would likely oppose them.
Sprague's motion contends a fair trial here is impossible. The filing includes copies of scores of news stories, opinion columns, and editorials in the Inquirer and the Daily News, and on Philly.com, that he said had "demonized" the 90-year-old Basciano in the public's eyes.
Sprague's motion makes special note of reader comments, which often follow online publication of newspaper articles.
"The public responses to these articles show that the media's message was received loud and clear by Philadelphia's citizens, calling for Basciano to be made to pay his 'every nickel' and expressing hope that 'they skin [Basciano] alive on this one,' " Sprague's motion reads. "Prejudicial media coverage of the building collapse has been undying and will only continue as trial of the instant civil actions nears."
The change of venue motions were among 23 filed since May 27 as Bernstein prepares for an Aug. 1 pretrial conference.
Most are for summary judgment in favor of the defendants: Basciano and his companies and aides, Marinakos, and the Salvation Army and its officials.
The defendants have also filed motions seeking separate trials on the questions of liability and damages.
On Monday, Basciano's lawyers also filed a motion asking Bernstein to punish William D. Hobson, the lawyer for imprisoned demolition contractor Griffin Campbell, for contempt of court for publicly filing thousands of pages of sworn depositions that Basciano, Simmonds, and Cresci gave in preparation for the civil trial.
Hobson agreed not to disseminate the deposition transcripts after being permitted to attend on Campbell's behalf. But after the criminal trial ended and Campbell was sentenced to 15 to 30 years in prison, Hobson filed the transcripts with his posttrial motions.
After the transcripts were filed in court, they became available to the public, and were copied and used in reporting a May 22 story in the Inquirer on Basciano and his actions before and after the collapse.
In arguments earlier this year before Common Pleas Court Judge Glenn B. Bronson, who presided over Campbell's criminal trial, Hobson said he needed to file the transcripts to support his appellate claim that Campbell had been targeted for prosecution because of race.
Only Campbell and excavator operator Sean Benschop - who are both black - were criminally charged in the collapse.
Basciano invoked his Fifth Amendment right against self-incrimination and was not charged. Marinakos was granted immunity from prosecution, and testified before the grand jury and for the prosecution at Campbell's criminal trial.
The District Attorney's Office has said race played no role in its decision to file criminal charges. Prosecutors say Campbell and Benschop were the only ones who had direct roles in events leading to the deadly collapse.
215-854-2985 @joeslobo