Alleged 'forgotten' notebook latest disagreement in Springdale injunction case

Attorneys representing the property owner of the former power plant in Springdale are calling into question a “forgotten” notebook with “hundreds of photographs” from a site visit in October and are asking the judge presiding over the case to not allow them to be used in the hearing.

Attorneys Dave Raphael and Laura Veith, who represent Charah Solutions, filed a motion Friday to strike a plaintiff’s exhibit consisting of photographs from an Oct. 24 site visit of the property. The pictures were presented by the plaintiffs’ attorney, Janice Savinis.

In September, 16 Springdale residents filed an injunction to block an implosion of the boiler house at the former Cheswick Generating Station in Springdale. They allege the June 2 implosion of the two towering smokestacks on the site caused harm to their properties, their health and the community. They claim an implosion of the boiler house would cause additional harm.

The defendants in the case are the parties involved with the June implosion and the postponed boiler house implosion: property owner Charah Solutions, demolition contractor Grant Mackay Co. and explosives subcontractor Controlled Demolition Inc.

Attorneys for Grant Mackay earlier this week filed a motion to end the injunction, claiming the plaintiffs haven’t met essential requirements for an injunction to be granted. They also say an implosion of the boiler house is the safest method of demolition.

John Kane, a lawyer also representing the plaintiffs in this case, said Friday afternoon that his office had not yet seen the filing and would review it.

On Wednesday, after attorneys had reviewed all exhibits, and after the plaintiffs’ counsel indicated they had no more exhibits to introduce, Savinis offered a “forgotten” notebook into evidence containing hundreds of photographs taken during an Oct. 24 site inspection of the former power station, the filing said.

The judge presiding over the case, John T. McVay Jr., issued a court order the day before the site inspection establishing protocol for the visit, Charah’s attorneys wrote in the filing. The three attorneys representing the plaintiffs — Savinis, Kane and Michael Gallucci — agreed to those terms and conditions.

But none of the defendants were given the opportunity to review the notebook before Savinis handed it to the court to be “taken under advisement” as its attorneys were packing up their belongings at the counsel table, the filing said.

The photographs in the notebook weren’t introduced through witnesses called by the plaintiffs, it said.

Defense attorneys also raised objections to the exhibit. The filing points to language from McVay’s order establishing the site protocol that said attendees could only take pictures and video of the boiler house and the administration building at the former power plant.

On Thursday morning, attorneys representing Charah emailed the plaintiffs to express their “salient concern” that the unmarked photographs “have the propensity to confuse and mislead” the judge by introducing images of neither the boiler house nor the administration building.

“Beyond the fatal foundational flaws related to the photographs never offered through a witness, there is an even more concerning flaw, photographs in that notebook could be mistakenly assumed by Judge McVay to be part of the boiler house to be imploded when in fact they are not and may not be impacted at all by the implosion given their location at the Cheswick Power Station,” Raphael wrote in his email to Savinis.

It also said that Charah, instead of immediately filing a motion to strike, sent the email asking them to remove photographs exceeding the scope of McVay’s order and to identify whether each photograph was of the boiler house or the administrative buildings.

Charah requested a response from the plaintiffs by 5 p.m. Thursday and did not receive a response, the filing said.

“By producing no evidence whatsoever to support a finding that the photographs are what plaintiffs claim they are, plaintiffs’ burden for authentication remains wholly unsatisfied under the Pennsylvania Rules of Evidence,” the filing said. “Indeed, it is mathematically impossible for the plaintiffs to have offered less evidence in an effort to authenticate the photographs.”

It also states that the unmarked photographs can’t be connected with the boiler house without direct evidence from a person with personal knowledge.

“Despite plaintiffs’ insistence that the photographs are what they claim, admissibility under the Commonwealth requires more than a lawyer’s good word,” the filing said.