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The owners of the nightclub at the center of the Pier 34 collapse that killed three women and injured 43 others can be prosecuted for “risking a catastrophe,” the Pennsylvania Supreme Court ruled yesterday. The justices voted 6-0 in Commonwealth v. Karetny to reverse a Superior Court panel, ruling that given the repeated structural problems to the pier over a number of years and warnings from engineers, the Philadelphia District Attorney’s Office had sufficient evidence for a prima facie case of “risking a catastrophe,” a felony and the most serious of the charges the two men were facing. “In short, the commonwealth adduced substantial evidence indicating that appellees, after having been made specifically aware of the imminent danger that the pier posed to human life, took affirmative measures to keep that knowledge to themselves and, at the same time, took affirmative steps that exposed others to risk,” Justice Ronald D. Castille wrote for the court. “The evidence of appellees’ conduct in this case was sufficient to warrant a jury in finding the reckless creation of a risk of catastrophe.” The decision came down to the court’s interpretation of the statutory language covering the charge of “causing or risking catastrophe” under Section 3302 of the Crimes Code. A trial court quashed the charge, ruling that since there was no evidence club owners Eli Karetny and Michael Asbell had used or caused any of the substances or forces enumerated under Section 3302 – explosion, fire, poison gas, radioactive substance, collapse of building, etc. – the prosecution hadn’t made out a prima facie case for “risking a catastrophe.” The Superior Court agreed. But Castille said the statute was broader than that, pointing out the catchall language that states a catastrophe can be created, in addition to the substances listed above, by “any other means of causing potentially widespread injury or damage.” “[W]hile appellees’ knowing disregard of the inevitable may not, in and of itself, amount to the ‘employment’ of a means, substance, or force in risking a catastrophe, their action in continuing to advertise, promote and hold open their facilities to the public, coupled with the act of concealing the fact of inevitable collapse from their patrons, is sufficient to warrant a jury in finding affirmative ‘employment’ on appellees’ part,” he said. “While appellees can offer contrary evidence at trial and/or argue to the jury that they were guilty only of ‘inaction,’ the jury is not obliged to accept such position in the face of the above-referenced evidence.” According to the opinion, Karenty and Asbell had been aware of cracks and other structural problems with the pier nearly five years before its collapse on May 18, 2000. An engineer who inspected the pier the morning of May 18 not only predicted the collapse, but even suggested it would collapse between 8 and 9 p.m., the opinion said. The pier collapsed at 8 p.m. The opinion also said that on the night of the collapse a security guard was instructed by a club manager to help cover a gaping crack with sheet metal. Hugh J. Burns Jr., chief of appeals for the Philadelphia District Attorney’s Office, and the person who argued the case before the high court in May, said he was “relieved” by the court’s decision. “I didn’t know which way it was going to go,” he said, adding that he thought his office “had a strong case.” Burns said the real message of the decision for club owners was: “Don’t run a place that’s going to fall on somebody’s head.” The immediate impact of the ruling, Burns said, is that now that a felony charge is back in play – as opposed to the other charges which were all misdemeanors – Karenty and Asbell will be tried in common pleas court as opposed to Municipal Court. Leonard Sosnov, the attorney for the defendants, could not be reached for comment at press time yesterday. Justice Russell M. Nigro did not participate in the consideration or decision in the case. (Copies of the 28-page opinion in Commonwealth v. Karetny , PICS No. 05-1351, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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