By SANDRA K. REABUCK
EBENSBURG — In a split 2-1 decision, Cambria County judges have dismissed a civil lawsuit against Penelec in a 2005 Hastings house fire that claimed the lives of four people.
Judges Norman Krumenacker and David Tulowitzki ruled that the utility company – which had cut off service to the house less than a week before the fire – cannot be held liable. Dissenting was Judge Timothy Creany, who said that the issue should go to a jury.
The ruling, filed late Wednesday afternoon, also dismisses liability claims against Outsourcing Solutions Inc., which made calls to utility customers about delinquent bills.
The decision grants the motions by Penelec and Outsourcing for what is known as summary judgment a week before the case was to go to trial.
Unresolved as of Thursday is whether the trial will proceed against two men who were added as defendants by Penelec. They are David Gunther, the owner of the rental property, and John Sexton, who was living in the house with his fiance and other members of her family.
It’s alleged that Gunther has liability for failing to have smoke detectors, sprinklers or fire extinguishers in the house. Sexton allegedly was negligent for lighting a tapered candle and letting it burn as a night light in the bathroom.
Authorities have said that the deadly fire was accidental, started by the unattended, burning candle on a shelf near towels and toilet paper.
Pittsburgh attorney John Bacharach, who along with attorney George Bills represents the victims, said Thursday that an appeal will be filed with the state Commonwealth Court.
“We’re disappointed obviously. We respect the judges’ opinion, but we disagree,” he said.
Bacharach said he could not say whether the trial will proceed in the meantime with Gunther and Sexton as defendants.
Jury selection is scheduled for Thursday, with testimony to open Nov. 9.
Penelec spokesman Scott Surgeoner made a brief statement.
“We believe the judge’s ruling was correct and was based on the facts presented,” Surgeoner said.
The lawsuit was filed by the families of three of the four people who died in the fire – Dolores “Dee” Holland, 50; her grandson, Jordan M. English, 3; and Lindsey Depto, 14, – and also by the father of a girl, Chelsey Hammond, then 14, who was able to escape the fire. Hammond was a daughter of Mrs. Holland. The woman was engaged to Sexton.
Depto and another girl, Alisha McConnell, 15, who also died in the fire, were visiting for a sleepover. No lawsuit was filed by McConnell’s family.
Krumenacker and Tulowitzki, in the 18-page opinion, appeared to invite an appeal so that an appellate court could look at what they termed “a controlling question of law.”
They said, “At issue is whether or not Penelec’s negligence, if any, was a substantial factor in bringing about (the victims’) injuries to satisfy the (legal) element of causation. ... It was this candle that was the actual cause of the fire, and it was Sexton’s, not Penelec’s conduct that placed it in a manner that allowed the fire to occur.”
They concluded, “Penelec’s termination of the electrical service was, in and of itself, harmless.”
In addition, the two judges said, “While it is foreseeable that persons without electrical service may turn to candles to provide illumination, it is not foreseeable that they will leave those candles unattended.”
The danger of unattended, burning candles is well known to the public through not only news reports but consumer warnings and even common sense, Krumenacker and Tulowitzki said.
It also was noted by the judges that there had been sufficient time – after the termination of service and before the fire – for the residents to find safer sources of night illumination, including flashlights.
In dismissing Outsourcing as a defendant, the judges said that any actions of the company “were too remote both in time and the causal chain to be the proximate cause of the fire.”
