No charges will be filed in Shaler school duct work collapse


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There is not enough evidence to warrant criminal charges against anyone involved in the design, installation or inspection of fallen ductwork at Shaler Area Elementary School last year, but that doesn't mean those parties have been absolved either.

Allegheny County District Attorney Stephen A. Zappala Jr. said at a news conference Wednesday that nearly every person involved in the fall 2007 project in the school cafeteria failed to appropriately do his job as evidenced by the collapse 4 1/2 years later of a section of ductwork while 322 fourth graders ate their lunch. Thirteen people were injured, eight children and five adults.

But, he continued, the consequences of those failures are best left to be determined through the filing of civil lawsuits. Two already have been filed.

Despite Mr. Zappala's strong words, officials with the companies involved in the project said Wednesday that they still are unclear why the ventilation duct fell -- especially given that the exact same product and installation methods have been used countless times in the past.

"Somewhere, somehow, that came down. It's a mystery. If it was too heavy for the [equipment] it would have come down right away, not four or five years later," said Nick Birkos, vice president of the prime heating, ventilation and air conditioning contractor Quality Mechanical Services of Verona.

On April 3, 2012, about 11:30 a.m., a piece of a 71 1/2-foot-long section of ductwork weighing 2,254 pounds fell from the ceiling. Just five minutes before the failure, 45 students who would have been sitting directly underneath had gone outside to recess.

"No life was lost," Mr. Zappala said. "It really was a miracle. This could have been a tragedy like few we've had in this region."

Detectives from the DA's office and Shaler police spent more than a year investigating the collapse, although no grand jury was ever convened.

The crimes that were being considered included recklessly endangering another person, causing a catastrophe, risking a catastrophe and simple assault by reckless conduct.

According to investigators, the ductwork -- which was 38 inches in diameter -- was hung from the ceiling using wire cables and a type of housing unit called a Clutcher, which uses serrated steel teeth to grasp the cables.

Although industry standards approve the Clutcher for that use, the manufacturer's published specifications say the materials should not be used with ductwork larger than 24 inches or hung at an angle of more than 60 degrees from vertical, Mr. Zappala said.

"No one gave permission to change these specifications," he said.

In addition, during the construction, the system for installing the ductwork was changed to the system that failed.

However, he continued, investigators could find nothing that rose to the level of a crime.

"We didn't find any reckless disregard or criminal negligence," he said.

That, the prosecutor continued, is essential to file charges. There would have to be a financial motive, or someone involved in the installation acknowledging the risk associated with hanging the ductwork in that way, and choosing to go forward anyway.

"The installer did not do this in a manner intended to hurt anybody or with reckless disregard," Mr. Zappala said.

In this case, the installer, D&G Mechanical of West Middlesex, had used the same materials in the same way for other jobs with no negative outcomes.

Attorney Suzanne Merrick, who represents D&G in the civil suits, said she disagrees with Mr. Zappala's conclusion that there were mistakes made during installation of the ductwork and that the Clutcher was used incorrectly.

"I don't believe the DA's conclusion is entirely accurate," she said. "At the time the ductwork was installed, it was approved as used with no restrictions. According to the manufacturer's instructions in 2007, it was approved for the 38-inch pipe."

She confirmed D&G has used the hanging system repeatedly with no problems. Asked what caused the ductwork to fall in Shaler, she said, "I think I will decline to comment on that. I think that's one of the things we hope to find out through the litigation."

Mr. Birkos agreed the system used at the Shaler school has been used in dozens of buildings throughout the area. In his experience, the contractor continued, there have been "no other problems" using the Clutcher system to hang ductwork of the same size in the same manner -- including at the new Penn Hills High School that opened in January and the athletic center at the University of Pittsburgh's Johns-town campus.

He said the manufacturer of the system, Ductmate Industries of Charleroi and Lodi, Calif., has updated the Clutcher device in the last year or so.

Ductmate couldn't be reached for comment.

"D&G did install it as it was supposed to be installed," Mr. Birkos said. "That's why it's such a mystery. You can't pinpoint why it happened."

Among other criticisms offered, Mr. Zappala said inspections that were required by both the contractor on the project and the municipality either were not conducted or were not conducted properly with regard to the HVAC hanging system.

Robert Vita, Shaler's building inspector, couldn't be reached for comment.

Wesley Shipley, the Shaler Area school superintendent, said the district worked closely with the investigation, that it was thorough, and that he therefore accepts the district attorney's decision.

Although Mr. Zappala said there were several answers still missing in the case -- such as who approved the change to the hanging system and how the materials arrived on the job site -- there was no need to do a grand jury investigation.

"Had a life been taken, we would have taken a different route," he said.

John Burkoff, a law professor at Pitt, said it is a classic example of prosecutorial discretion. Taking the case to a grand jury -- with the idea that the conduct would not likely lead to criminal charges -- could take resources away from other investigations, Mr. Burkoff said.

"Proof of criminal negligence requires a showing that the actor should have known that the conduct in question was grossly improper, not just that the contractor should have known that he or she screwed up," Mr. Burkoff said. "When a prosecutor's investigation reveals that there is no probable cause that any one of the elements of a crime -- like criminal negligence or recklessness -- is present, the prosecutor simply has no choice.

"There's just no basis to charge in that case. Not every mistake, negligent or not, is a crime."

Since the incident, Mr. Shipley said all of the district's buildings have been inspected, and systems with the same ductwork in the high school were redesigned and corrected.

In the elementary school cafeteria, a drop ceiling has been installed, and the ductwork has been attached to the superstructure of the building and is no longer supported by hanging cables.

The families of two children injured in the collapse already have filed suit.

Ralf and Michele Birgelen filed a complaint on behalf of their daughter, Mina, alleging negligence. According to the complaint, filed last year, she sustained a closed head injury and multiple fractures to her spine.

John and Terri McGee filed a lawsuit on behalf of their son, Jacob, in July, also alleging negligence.

He sustained a broken arm, nasal bone, collar bone, concussion, facial bruising and was knocked unconscious.

Edward Balzarini Jr., who is representing the Birgelens, said the district attorney's decision to not file charges has no impact on his lawsuit.

"Our allegation is negligence, which is something different from intentional conduct," he said.

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Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard. Ed Blazina: eblazino@post-gazette.com or 412-263-1470. First Published August 28, 2013 1:15 PM


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