As schools across the country open, most people in the Delaware Valley are well aware of the School District of Philadelphia’s financial woes. As the School District considers measures to help close its massive budget deficit, it has recently begun to take legal action that is particularly interesting.

The Lawsuits

About one month ago, the School District sued more than twenty design professionals that it enlisted for various school improvements as part of the District’s Capital Improvement Program. The goal? To recoup approximately $2 million in damages related to alleged deficiencies in the drawings and specifications for the various school improvement projects.

At this stage in the litigation, there is very little information available, as only Writs of Summons were filed. But, it is believed that the School District’s claims may arise out of a number of change orders issued to prime contractors on the projects in question. In theory, if the change orders were issued because of errors and omissions and not scope changes, design professionals may be liable.

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The Upshot

Given the severe budgetary woes, it is not difficult to fathom why people may draw a connection between the School District’s shortfall and its recent litigation activity. Motive aside, this series of lawsuits is likely to affect the manner in which future School District contracts are drafted and administered. Though the implications remain to be seen, for future projects, it would not be surprising to see more tightly and thoroughly drafted contract documents and a more stringent change order process. It will also be interesting to see whether the litigation has a chilling effect and dissuades professionals or contractors from working for the School District in the future.

We will continue to monitor these cases and the potential implications for construction work administered by the City of Philadelphia, its agencies, authorities and departments.

Lane F. Kelman is a Partner with the Firm and a member of the Construction Group. He represents developers, general contractors, construction managers and the different trades in complex matters ranging from bid protests, contract negotiations and claim prevention & management.

Daniel E. Fierstein is an Associate in the Construction Group of Cohen Seglias and focuses his practice on construction law. 

With reports still coming in about the devastation in Japan, one thing is clear: had the 9.0 magnitude earthquake struck a populated coastal region of the United States, even greater destruction would have occurred.
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In terms of earthquake and tsunami preparation, Japan leads the way when it comes to disaster preparedness. “If any country understands [the] interplay of earthquakes, waves and buildings it is Japan, which has developed stringent building codes and well-rehearsed evacuation plans.” Even with all the precautions taken, Japanese public broadcaster NHK reported that, “63,000 buildings had been damaged, more than 6,000 of them obliterated.”

Trouble in Japan for Nuclear Power Plants

However, even the most advanced seismic retrofitting and planning is not catastrophe proof, as demonstrated by the effects of last week’s earthquake and tsunami. Japan is currently witnessing “all kinds of damage from the quake, including power outages…radiation leaks from nuclear power plants, fresh water shortages and fires.”

One nuclear power plant in particular, Fukushima, could not withstand the aftershocks from the quake. After ongoing aftershocks struck the plant, explosions at multiple Fukushima reactors occurred and technicians battled to stabilize additional reactors which were reportedly at risk of fuel-rod meltdown.

Early this morning “A fire and a fresh aftershock struck the Fukushima nuclear plant…The government confirms that the level of radiation around the reactor has risen, requiring the remaining 50 technicians to briefly evacuate to a safe place.”

What the U.S. Can Learn from Japan’s Earthquake

The explosions at Fukushima have had a chilling effect on the U.S. Nuclear Regulatory Commission (NRC). Numerous power plants across the country, including Exelon Nuclear’s Generating Station and the Peach Bottom nuclear plant, both located in Pennsylvania, will be reviewed for their safety standards. Neil Sheehan, a spokesperson for the NRC stated that:

Advances in seismic science have prompted his agency to undertake a project to review safeguards at some of the nation’s nuclear power plants as they relate to any seismic issues specific to each plant’s location…These plants were all built to withstand seismic activity…but a lot of them were built in the 60s and 70s and our ability to gather seismic data and do computer modeling on that data is much improved since then.

According to Senator Joe Lieberman, chairman of the Homeland Security and Governmental Affairs Committee, “Power plants are required to withstand the highest-probable earthquake in each region where they’re built; the U.S. also has emergency evacuation plans in place near plants.”

New Power Plants Under Consideration

The NRC had plans in the works to review many existing U.S. nuclear power plants before the latest earthquake struck Japan, and a major reason for that was due to the recent surge in new applications for the construction of power plants. “After a 30-year hiatus, several new plants are now under consideration,” and the U.S. has been working to re-start nuclear power plant construction as a way to reduce its dependence on fossil fuel and curb greenhouse gas emissions.

In light of what has happened in Japan, Lieberman believes that we should not begin building any new plants until we gather more information on what went wrong in Japan.

Lessons Learned

The damage caused by natural disasters like the recent earthquake in New Zealand and the earthquake and tsunami in Japan should serve as a lesson to contractors that seismic retrofitting is going to become a standard for future projects, particularly in the case of large infrastructure projects such as bridges, dams pipelines and power plants. It is important to stay abreast of new regulations as they come out, and adjust building plans accordingly. Even in areas where natural disasters are less likely to occur, projects will have to adopt to new standards, as demonstrated here in Pennsylvania, where two nuclear power plants are being reviewed for safety standards.

The powerful 6.3 magnitude shallow earthquake that hit New Zealand last week struck less than 6 miles from Christchurch’s historic downtown district, and only about 3 miles below the surface. Engineers were not surprised by the damage and tumbling of the older structures, since the epicenter of the quake was so close to the city, but the amount of damage to the more Earthquake.jpgcontemporary structures which had seismic retrofitting, was not anticipated.

With so many buildings in the United States using very similar, if not the same building standards as New Zealand, it is important for contractors to study the effects of this quake, before designing any new structures.

New Zealand Building Standards

New Zealand was as prepared as possible for earthquakes. According to Dr. René Tinawi, Manager of the Canadian Seismic Research Network, their construction code “is one of the most stringent in the world for new buildings.”

John Wilson, Chair of the Australian Earthquake Loading Standard, speaking on behalf of the Australian Science Media Centre noted that New Zealand, is a progressive first world country, and “has very good loading standards and a strict regulatory environment and since the mid-70s onwards, the building have been designed for earthquake resistance very well.”

Effect of the Earthquake

International engineers have just begun their investigations and it is too early to tell why these buildings failed. One reason for the structural failure could be that the buildings had been damaged and/or weakened by the prior 7.1 magnitude earthquake that occurred this past September. That earthquake, however, struck much farther from the city and did not cause nearly the amount of damage.

Nevertheless, there is already evidence that some of the buildings that had received seismic retrofitting failed.  Amir S.J. Gilani, a structural engineer, said that Christchurch Cathedral, “which crumpled this week, had been retrofitted in the late 1980s and seemed to have performed well [during] last September[s earthquake].” Gilani continued to say that, “the retrofitting project had been used to showcase…advances in this field, however, it certainly experienced much larger accelerations in the 2011 earthquake for which it was obviously not prepared for.”

Lessons Learned

Since the time and location of an earthquake cannot be changed or predicted, builders need to be aware of prime areas where they are likely, and make sure to include seismic retrofitting in all plans.

Researchers, especially those in California, are worried that a situation like Christchurch could occur in the States. According to the LA Times, “California has about 7,800 such buildings in high-seismic zones, and many more vulnerable concrete-frame buildings.”

Architects are expecting tougher national building standards for strengthening old buildings to be enforced after seeing the damage from this earthquake. If tougher standards do come down, it will affect thousands of buildings that were built prior to 1970, when the current earthquake standards were released.