Case 2:03-cv-01577-GP Document 80 Filed 02/15/2005 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF PENNSYLVANIA,
Plaintiffs,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,
Defendant.

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:

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Civil Action No. 03-CV- 1577

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FOURTH AMENDED COMPLAINT INTRODUCTION 1. Plaintiff Disabled In Action of Pennsylvania, Inc., a non-profit organization that provides advocacy and services to persons with disabilities, brings this action against the Southeastern Pennsylvania Transportation Authority (“SEPTA”) for:
(A) its failure to provide access to persons with disabilities to the newly altered and renovated entrance to the Market-Frankford Elevated Line at the northwest corner of 15th and Market Streets in Philadelphia;
(B) its failure to provide access to persons with disabilities both to the newly altered and renovated southeast entrance and to the planned alterations and renovations of the northwest entrance to the Broad Street Subway Line at the City Hall Station located in the City Hall Courtyard; and
(C) in the alternative, its failure to make any entrances accessible to Philadelphia’s “Key Stations” at City Hall Station to the Broad Street Subway Line and/or the 15th Street Station to the

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Frankford-Market Elevated Line (hereinafter the “Key Stations”). 2. This denial of equal access violates of Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“§ 504"). 3. Plaintiffs seek injunctive relief requiring Defendants SEPTA to provide equal access to the Market-Frankford Elevated Line via its newly altered entrance at 15th and Market Streets and to provide equal access to the City Hall Broad Street Subway Station via its newly altered entrances in the City Hall Courtyard, and in the alternative seek an injunction to require the Defendants SEPTA to make accessible its Key Station at City Hall to both the Broad Street Subway Line and the Market-Frankford Elevated Line. .JURISDICTION AND VENUE 4. This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(3), and 42 U.S.C. § 12188(a). Plaintiffs' claims are authorized by 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202. 5. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(b)(2) since all of the events that give rise to this Complaint occurred in this district. PARTIES 6. Plaintiff Disabled in Action of Pennsylvania (“DIA”), a non-profit corporation, advocates for the civil rights of and services for persons with disabilities. DIA is an organization open to anyone who has a disability, including persons with mobility and/or visual impairments. 7. DIA’s primary organizational function is to assist persons with disabilities achieve equality with nondisabled persons and to advocate on behalf of and with persons with disabilities to eradicate discrimination against people with disabilities in all aspects of community life, including accessible
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entrances to the Broad Street Subway Line located at the City Hall Station in the City Hall Courtyard and Market-Frankford Elevated Line located at the15th Street Station, and in the alternative at an entrance to the “Key Station” to both the Broad Street Subway Line and Market-Frankford Line at these stations. 8. Plaintiff DIA has existed since the mid 1970s. Participants use and want access to Septa’s Frankford-Market Elevated and Broad Street Subway Lines and to access them at the City Hall/15th Street entrances. As defined by the ADA and Rehabilitation Act of 1973, persons who participate with DIA and who have these disabilities are “handicapped” with mobility and/or visual impairments, and are “otherwise qualified” to use SEPTA’s Broad Street subway and MarketFrankford Elevated transportation services. Some persons who have mobility and/or visual impairments and who seek DIA’s assistance and/or participate in DIA’s meetings and other activities are and will continue to be injured by Defendant’s refusal to comply with the ADA’s and Section 504's statutory and federal regulation mandates. 9. SEPTA’s violation of its statutory and regulatory obligations directly and concretely injure DIA, by requiring DIA to advocate for the development and improvement of nondiscriminatory transportation services, instead of spending its time and resources assisting persons with disabilities with other issues, including accessible and affordable housing, attendant care services, equal employment opportunities and access to places of public accommodation. 10. DIA is also directly and concretely harmed by SEPTA’s failure to provide access to the Key Station and the entrances to the City Hall Station’s entrances to the Broad Street Subway Line and the 15th Street Courtyard entrance to the Market-Frankford Elevated Line because other persons with disabilities are unable to use this station to get to from meetings, programs and advocacy activities
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which further curtails the organizational activities and goals of DIA. 11. Defendant SEPTA is a public entity which receives federal funding, including federal funds for capital programs, and which operates a fixed route transportation system, including the Broad Street Subway Line and the Market-Frankford Elevated Line. FACTS
A. Alterations to Existing Facilities 12. In 2000 Defendant SEPTA renovated the northwest 15th Street Courtyard entrance to the Market-Frankford Elevated Line. 13. The Market-Frankford Elevated Line is a rapid rail transit system operated with both high level platform stations and underground stations. 14. The northwest 15th Street Courtyard entrance is a part of an existing facility used to provide public transportation services, in large part, to the Market-Frankford Elevated Line. 15. SEPTA demolished the existing stairway at the northwest 15th Street entrance Courtyard and built another stairway. 16. The alteration affects the usability of the 15th Street entrance by persons with disabilities. 17. SEPTA did not make the 15th Street entrance accessible to persons who use wheelchairs. 18. The altered portions of the 15th Street Courtyard entrance is not accessible to or usable by persons who use wheelchairs. 19. There are no public entrances to the Market-Frankford Elevated Line at 15th and Market Streets that are accessible to or usable by persons who use wheelchairs. 20. There are four entrances in the City Hall Courtyard to the Broad Street Subway Line. 21 The Broad Street Subway Line is a rapid transit system operated with primarily underground
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stations. 22. In 2003, Defendant SEPTA renovated the Southeast entrance located in the City Hall Courtyard to the Broad Street Subway Line by altering and replacing the existing escalator. 23. This City Hall Station entrance in the City Hall Courtyard is part of an existing facility used in providing public transportation services, in large part, to the Broad Street Subway Line. 24. SEPTA replaced the existing escalator at the Southeast entrance to the Broad Street Subway Line in the City Hall Courtyard with a new escalator. See Attachment “A,” Fiscal Year 2004 Capital Budget (incorporated by reference herein). (Attachment “A” is a true and correct copy of SEPTA’s Fiscal Year 2004 Capital Budget.) 25. The alteration affects the usabilityof the CityHall Station entrance in the CityHall Courtyard by persons with disabilities. 26. SEPTA did not make the entrance accessible to persons who use wheelchairs. 27. The altered portions of the City Hall Courtyard entrance to the Broad Street Subway Line is not accessible to or usable by persons who use wheelchairs. 28. There are no public entrances to the Broad Street Subway Line at the City Hall Station that are accessible to or usable by persons who use wheelchairs. 29. In its Fiscal Year 2004 Capital Budget, SEPTA stated that it plans to replace the escalator at the “City Hall Station (Northwest entrance) on the Broad Street Subway Line.” See Attachment “A.” 30. That alteration will affect the usability of the City Hall Station entrance by persons with disabilities. 31. The altered Northwest entrance will not be accessible to or usable by persons who use
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wheelchairs. 32. In Disabled in Action of Pennsylvania v. Sykes, 833 F. 2d 1113 (3rd Cir.1987), the Third Circuit held that the alteration of the Columbia Avenue subway station entrance (replaced stairways and installed an escalator) without making the entrance to the subway accessible to persons who used wheelchairs violated Section 504 of the Rehabilitation Act and the federal regulations promulgated by the U.S. Department of Transportation. The federal regulations require:
Each facility or part of a facility which is altered by, on behalf of, or for use of a recipient ... in a manner that affects or could affect the accessibility of the facility or part of the facility shall, to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and useable by handicapped persons. 49 C.F.R. § 27.67(b). 33. The Broad Street Subway and Market-Frankford Elevated Lines cross at the City Hall and 15th Street stations. 34. The City Hall and 15th Street stations are the transfer locations for persons between the Broad Street Subway and Market-Frankford Elevated Lines. 35. The City Hall and 15th Street stations are the only transfer locations for these two Lines. 36. At the City Hall and 15th Street stations, there are numerous entrances to the Broad Street Subway line and Frankford Elevated line. 37. None of the entrances either at the City Hall or 15th Street stations are accessible to persons who use wheelchairs. B. Key Stations 38. The City Hall Station is the most used entrance to the Broad Street Subway Line. 39. The City Hall Station services on a weekday approximately 26,950 persons boarding the
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Broad Street Subway Line. 40. The number of people using the City Hall Station to access the Broad Street Subway line is approximately 23% of the average daily station passenger boardings on the entire Broad Street Line which has approximately 116,034 persons daily boarding the entire Line. 41. The next most used station on the Broad Street Subway Line is the Olney Station which services on a weekday about 16,433 persons daily boarding the Broad Street Subway Line. The Olney Station is accessible to persons who use wheelchairs. 42. After the Olney Station, the third most used Broad Street Subway Station is Erie which services on a weekday about 7,119 persons daily boarding the Broad Street Subway Line. 43. The 15th Street Station is the most used entrance to the Market-Frankford Elevated Line. 44. The 15th Street Station services on a weekday approximately 29,435 persons daily boarding the Market-Frankford Elevated Line. 45. The number of people using the 15th Street Station to the Market-Frankford Elevated Line is approximately 19% of average station passenger daily boardings on the entire Market-Frankford Elevated Line which has about 153,317 persons daily boarding the entire Line daily. 46. The next most used station is the Frankford Terminal which services on a weekday about 15,188 persons daily boarding the Market-Frankford Line. 47. After the Frankford Terminal, the third most used Market-Frankford Station is the 8th and Market Station which services on a weekday about 10,288 persons daily boarding the MarketFrankford Elevated Line. 48 The City Hall and 15th Street Stations are the transfer stations between both the Broad Street Subway Line and the Market-Frankford Line, as well as the transfer stations for the Suburban Station
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which services both the regional commuter rail station and the rail line to the Philadelphia International Airport. 49. The City Hall and 15th Street Stations are a major interchange location with SEPTA’s bus routes and subsurface trolleys. 50. The City Hall and 15th Street Stations are at the heart of and serve various major activity centers, including the City of Philadelphia’s government centers, both City Hall and the Municipal Services Building. 51. Since approximately the late 1990s, SEPTA commenced planning to install elevators to the Broad Street Subway and Market-Frankford Elevators via the City Hall Station on the Dilworth Plaza. 52. Capital funds for design were allocated so that accessibility on the City Hall Station would be designed by April 30, 2002, construction commenced by October 31, 2002, and the project completed by June 30, 2005. 53. SEPTA has failed either to fund or commence such construction, the failure of which denies persons with disabilities equal access to Broad Street Subway and Market-Frankford Elevated Lines at the City Hall Station and 15th Street Station. 54. The City Hall Station Design elevators are identified as Elevators 3, 8 and 9 in Attachment “B.” These elevators are part of the City Hall Station Design (see Attachment “C”). 55. Attachment B is a true and correct copy of the Plan developed by Defendant SEPTA and approved by Defendant City of Philadelphia in 2000. Attachment C is a true and correct copy of SEPTA’s Capital Project Summary Report, October 2003. 56. The attached City Hall Station Design elevators provides access for disabled person who use
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a wheelchair to gain access to the Broad Street Subway and the Market-Frankford Street Elevated Lines. 57. Defendant SEPTA had originally proposed funding for the City Hall Station Design elevators in FY 2002. 58. Defendant SEPTA did not fund the City Hall Station Design elevators in 2002. CLAIMS 59. DIA, a disability advocacy organization, is an aggrieved “person” within the meaning of the ADA and § 504 of the Rehabilitation Act of 1973. 42 U.S.C. § 12133; 29 U.S.C. § 794a.
Count I - Alteration to Existing Facilities 60. Defendant SEPTA’s alterations to the 15th and Market Street Courtyard entrance to the Market-Frankford Elevated Lines by constructing new stairs, SEPTA’s alterations to the City Hall Station in the City Hall Courtyard by replacing an escalator to the Southeast entrance to the Broad Street Subway Lines, and SEPTA’s plans to construct a new escalator to the Northwest entrance of the City Hall Station in the City Hall Courtyard to the Broad Street Subway Lines — without providing for accessible for persons with disabilities, including persons who use wheelchairs, at these three entrances, violate the Americans with Disabilities Act, 42 U.S.C. § 12101, Subchapter II, Part B and the federal United States Department of Transportation regulations implementing the ADA and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and contravenes the Third Circuit’s holding in Disabled in Action v. Sykes, 833 F. 2 1113 (3rd Cir. 1987).
Count II - Key Station Inaccessibility 61. Defendant SEPTA has failed to make accessible for persons with disabilities, including persons who use wheelchairs, the Broad Street Subway and Market-Frankford Elevated Lines at the
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City Hall and 15th Street Stations, the stations that are the “Key Stations” in both the Broad Street Subway and Market-Frankford Elevated Line systems. 62. SEPTA’s failure to make these Lines at these stations accessible violates the “Key Station” requirements in the Americans with Disabilities Act, 42 U.S.C. § 12101, Subchapter II, Part B and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. PRAYER FOR RELIEF
To remedy Defendant’s federal statutory violations, Plaintiffs respectfully request that this Court:
A. Exercise jurisdiction over this matter; B. Declare that Defendant’s alterations to the 15th and Market Streets entrance to the Market-Frankford Elevated Line, to the City Hall Station’s Southeast Courtyard entrance to the Broad Street Subway Line, and to the City Hall Station’s Northwest Courtyard entrance to the Broad Street Subway Line, without providing for access for persons with disabilities, and, in the alternative, Defendant’s failure to make accessible the Broad Street Subway and Market-Frankford Elevated Lines at the City Hall/15th Street Courtyard, violates the “Key Station” mandates in the ADA and Section 504 and the federal regulations that implement those statutes; C. Issue preliminary and permanent injunctive relief to enjoin Defendant to begin construction immediately of elevators either at the 15th and Market Street Courtyard entrance to the Market-Frankford Elevated Line and at the City Hall Station Courtyard’s Northwest and Southeast entrances to the Broad Street Subway Line to assure access for persons with disabilities, including persons who use wheelchairs, or to begin construction immediately of elevators ## 3, 8 and 9 in Attachment B; and
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D. Grant Plaintiffs such additional relief as this Court may deem just, proper and equitable, including an award of reasonable attorneys' fees and costs.
Respectfully submitted,

Dated: February 15, 2005

By: /s/______________________ Stephen F. Gold I.D. #09880 125 South Ninth Street, Suite 700 Philadelphia, PA 19107 (215) 627-7100; fax 627-3183
Rocco J. Iacullo ID #86144 Disabilities Law Project 1315 Walnut Street, 4th Fl. Philadelphia, Pa. 19107 (215) 238-8070

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Case 2:03-cv-01577-GP Document 80 Filed 02/15/2005 Page 12 of 12 CERTIFICATE OF SERVICE
I, Stephen F. Gold, certify that a copy of the Fourth Amended Complaint were mailed first class on February 15, 2005 to Adam A. Despio c/o Saul H. Krenzel & Associates, The Robinson Building, Suite 800, 42 S. 15th Street, Phila., Pa. 19102, counsel for Septa.
_____________________________ Stephen F. Gold
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 Case 2:03-cv-01577-GP Document 7 Filed 06/04/03 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

Plaintiff, :

:

:

v.

:

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

Defendant. :

CIVIL ACTION NO. 03-1577

ORDER

Presently before the Court is Plaintiff’s Motion for Relief from the Court’s May 14, 2003

Order granting Defendant’s Motion to Dismiss Plaintiff’s Complaint. The Court granted

Defendant’s motion pursuant to Local Rule of Civil Procedure 7.1(c) after Plaintiff failed to

respond. Plaintiff now moves to vacate the Court’s May 14, 2003 Order pursuant to Fed. R. Civ.

P. 60 on the grounds that it never received Defendant’s Motion to Dismiss. Despite the

Certificate of Service which was attached to Defendant’s motion, Plaintiff alleges that it was

never served with the motion and, therefore, could not have responded.

The Certificate of Service attached to Plaintiff’s motion indicates that Defendant was

served with the motion on May 16, 2003. To date, Defendant has not filed a response.

Therefore, the Court will grant Plaintiff’s motion as uncontested pursuant to Local Rule of Civil

Procedure 7.1(c).

AND NOW, this

day of June, 2003, upon consideration of Plaintiff’s uncontested

Motion for Relief from the Court’s May 14, 2003 Order granting Defendant’s Motion to Dismiss

Plaintiff’s Complaint, IT IS HEREBY ORDERED that Plaintiff’s motion is GRANTED. IT

Case 2:03-cv-01577-GP Document 7 Filed 06/04/03 Page 2 of 2 IS FURTHER ORDERED that the Court’s May 14, 2003 Order granting Defendant’s Motion to Dismiss Plaintiff’s Complaint is VACATED.
BY THE COURT:
CLIFFORD SCOTT GREEN, S.J.

 
 Case 2:03-cv-01577-GP Document 21 Filed 01/05/04 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

DISABLED IN ACTION OF

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PENNSYLVANIA,

:

:

Plaintiffs,

:

:

Civil Action No. 03-CV- 1577

v.

:

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SOUTHEASTERN PENNSYLVANIA

:

TRANSPORTATION AUTHORITY,

:

and THE CITY OF PHILADELPHIA

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:

Defendants

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:

__________________________________________:

PLAINTIFFS’ MOTION FOR PARTIAL PRELIMINARY INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65(a), Plaintiff Disabled In Action of

Pennsylvania, through their counsel, submit this Motion for Partial Preliminary Injunction.

Plaintiffs request that the Court enjoin Defendant SEPTA from denying equal access to the newly constructed and altered stairways at the 15th and Market Street entrance to the concourse and to order Defendant SEPTA to commence immediately to construct an elevator at the 15th

and Market Street entrance so that persons with mobility impairments who use wheelchairs will

have equal access as nondisabled persons. In support of this Motion, Plaintiffs submit the

accompanying Memorandum of Law, which is incorporated by reference in this Motion.

Plaintiffs further request an evidentiary hearing on this Motion.

Respectfully submitted,

Dated: January 5, 2004

By: SFG 226 __________________________________

Case 2:03-cv-01577-GP Document 21 Filed 01/05/04 Page 2 of 2
Stephen F. Gold Attorney I.D. No. 09880 125 South Ninth Street, Suite 700 Philadelphia, PA 19107 (215) 627-7100
Attorney for Plaintiffs

 
 UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

______________________________________________________________________________

:

DISABLED IN ACTION OF

:

PENNSYLVANIA

:

CIVIL ACTION NO. 03-CV-1577

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY and :

THE CITY OF PHILADELPHIA

:

______________________________________________________________________________

DEFENDANT SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY’S MOTION TO DISMISS AND MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT

Defendant Southeastern Pennsylvania Transportation Authority(“SEPTA”), by and through

its counsel, hereby files this 12 (b)(6) Motion to Dismiss the “Key Station” violation claim in

Plaintiff’s Third Amended Complaint and 12(f) Motion to Strike the immaterial and impertinent

portions of the Plaintiff’s Third Amended Complaint. For the reasons and authorities cited in

Defendant’s attached Memorandum of Law, which is incorporated herein by reference, Defendant

respectfully requests that this Court grant Defendant’s Motion to Dismiss and Motion to Strike.

Respectfully submitted,

DATED: July 1, 2004

Adam A. DeSipio/s/ BY:
SAUL H. KRENZEL, ESQUIRE ADAM A. DESIPIO, ESQUIRE SAUL H. KRENZEL & ASSOCIATES The Robinson Building, Suite 800 42 South 15th Street Philadelphia, PA 19102 (215) 977-7230
Attorneys for Defendant SEPTA

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

______________________________________________________________________________

:

:

DISABLED IN ACTION OF

:

PENNSYLVANIA

:

CIVIL ACTION NO. 03-CV-1577

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY and :

THE CITY OF PHILADELPHIA

:

:

______________________________________________________________________________

DEFENDANT SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO
DISMISS AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S THIRD AMENDED COMPLAINT
Defendant Southeastern Pennsylvania Transportation Authority(“SEPTA”), by and through
its counsel, hereby files this Memorandum of Law in Support of its 12 (b)(6) Motion to Dismiss the
“Key Station” violation claim in Plaintiff’s Third Amended Complaint and in support of its 12(f)
Motion to Strike the immaterial and impertinent portions of the Third Amended Complaint.

I. FACTS Plaintiff, Disabled in Action of Pennsylvania (“DIA”), filed its Third Amended Complaint
against SEPTA and the City of Philadelphia on January 7, 2004.1 See Plaintiff’s Third Amended Complaint attached as Exhibit “A.” Plaintiff alleges in its Third Amended Complaint that SEPTA and the City of Philadelphia violated Title II of the Americans with Disabilities Act (“ADA”) and §504 of the Rehabilitation Act of 1973 (“§504") by:

1 Although Plaintiff filed its Third Amended Complaint on January 7, 2004, Plaintiff filed the pleading without a Certificate of Service and never properly served it on Defendant SEPTA. Moreover, Plaintiff never notified Defendant SEPTA that the Third Amended Complaint had been filed with the Court.

“(A) their failure to provide access to persons with disabilities to the newly renovated entrance to the Market Street elevated services (hereinafter ‘FrankfordMarket Elevated’) at the northwest corner of 15th and Market Streets (hereinafter ‘15th Street’) in Philadelphia and (B) their failure to make accessible Philadelphia’s ‘Key Station’ at City Hall, Broad and Market Streets, to the Broad Street Subway Station and the Frankford-Market Elevated Station (hereinafter the ‘Key Station’).” (Emphasis added). See Exhibit “A” at ¶1. Plaintiff’s Third Amended Complaint is essentially the same as Plaintiff’s Second Amended Complaint except that it includes allegations that Defendants violated the “Key Station” provisions of Title II of the ADA whereas Plaintiff’s Second Amended Complaint does not include such claims. Plaintiff’s Third Amended Complaint is interspersed with allegations that SEPTA agreed to go forward with construction of “Key Station” elevators at City Hall in lieu of constructing an elevator at Suburban Station in the area at the northwest corner of 15th & Market Streets. At a conference before the Court on June 16, 2004, Plaintiff stated that the claims in this case were limited to the legal question of whether there was a violation of either the ADA or §504 in connection with the Suburban Station renovations at the northwest corner of 15th & Market Streets. Plaintiff agreed at the conference that it would not pursue any allegations that SEPTA purportedly agreed to construct elevators at City Hall in exchange for its not constructing an elevator at Suburban Station.2
2 SEPTA is presently in the design phase of a plan to renovate the station at City Hall. These renovations are presently estimated to cost almost $68 million dollars and it is anticipated that, due to the nature of the area below City Hall, unexpected problems will significantly escalate the costs.
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II. DISCUSSION A. 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted Plaintiff’s Third Amended Complaint fails to state a claim for which relief can be granted
with regard to its “Key Station” allegations because the station located at City Hall, Broad & Market Streets, Philadelphia, PA is not a “Key Station” under Title II of the ADA. Although a court must accept as true all well pleaded allegations of the complaint in evaluating a motion to dismiss, see Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994), "a court need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) (citations omitted). Plaintiff’s unfounded assertions and incorrect legal conclusion that the station at City Hall is a “Key Station” under Title II of the ADA need not be credited by the court especially in light of the fact that the assertions are directly contradicted by the regulations implementing the ADA. Consequently, pursuant to Federal Rule of Civil Procedure 12(b)(6), all claims in Plaintiff’s Third Amended Complaint relating to alleged “Key Station” violations by Defendants under the ADA or §504 should be dismissed for failure to state a claim for which relief can be granted.
Under Title II of the ADA and the U.S. Department of Transportation (“DOT”) regulations implementing Title II, each commuter authority is required to designate the “Key Stations” in its commuter rail transportation system. 42 U.S.C. §12162(e)(2)(iii); 28 C.F.R. §§37.47, 37.51. Those stations that are identified as “Key Stations” must meet certain accessibility standards which are set forth in the ADA and the DOT regulations implementing the ADA. The DOT regulations
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implementing Title II of the ADA specifically provide an exception to SEPTA regarding its
identification of “Key Stations” within its system. 28 C.F.R. §37.53.
Pursuant to the following portions of §37.53 of the DOT regulations, the list of “Key
Stations” set forth in the Settlement Agreement entered into in the class action, Eastern Paralyzed
Veterans Association of Pennsylvania, Inc., et al. v. Sykes, et al, Eastern District of Pa, Civil Action
No. 86-6797, is deemed to be in compliance with the ADA “Key Station” designation requirements.
A true and correct copy of the Settlement Agreement is attached hereto as Exhibit “B.” The relevant
provisions of §37.53 are set forth as follows:
§37.53 Exception for New York and Philadelphia
“(a) The following agreements entered into in New York, New York, and Philadelphia, PA, contain lists of Key Stations for the public entities that are a party to those agreements for those service lines identified in the agreements. The identification of Key Stations under these agreements is deemed to be in compliance with the requirements of this Subpart....
(2) Settlement Agreement by and between Eastern Paralyzed Veterans Association of Pennsylvania, Inc., and James J. Peters, individually; and Dudley R. Sykes, as Commissioner of the Philadelphia Department of Public Property, and his successors in office and the City of Philadelphia (collectively ‘the City’) and Southeastern Pennsylvania Transportation Authority (June 28, 1989).” (Emphasis added).
28 C.F.R. §37.53.
Under the ADA and the DOT regulations, SEPTA’s requirement to identify “Key Stations”
is per se satisfied by the list of “Key Stations” (which does not include the station at City Hall) set
forth in the above referenced Settlement Agreement entered into in the class action, Eastern
Paralyzed Veterans Association of Pennsylvania, Inc., et al. v. Sykes, et al. This Settlement
Agreement was approved by a July 28, 1989 Order of the Honorable Clarence C. Newcomer. A true
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and correct copy of the Court Order approving the Settlement Agreement is attached hereto as Exhibit “C.”
The station at City Hall, Broad & Market Streets, is not identified in the June 28, 1989 Settlement Agreement referenced in 28 C.F.R. §37.53(a)(2), and is, therefore, not one of SEPTA’s “Key Stations” under Title II of the ADA. See Exhibit “B.” Consequently, there are no obligations on SEPTA to provide accessibility, immediately or at a particular time in the future, to the station at City Hall under the “Key Station” provisions of the ADA. In developing its budget and plan to bring its “Key Stations” into compliance with the ADA, SEPTA has relied on the DOT regulations implementing the ADA since they were promulgated in 1991. Therefore, SEPTA has not included the station at City Hall, which is not a “Key Station,” in its budget for “Key Station” accessibility.3 Nevertheless, SEPTA is in the design phase of a plan to renovate the station at City Hall at an estimated cost of approximately $68 million dollars.
Pursuant to the standard for deciding Motions to Dismiss, this Court need not credit Plaintiff’s bald assertion and legal conclusion that the City Hall station is a “Key Station” especially when such assertions are specifically contradicted by the regulations implementing the ADA (28 C.F.R. §37.53(a)(2)) and the Settlement Agreement. Consequently, Plaintiff’s Third Amended Complaint fails to state a claim against Defendants under the “Key Station” provisions of Title II of the ADA for which relief can be granted.
3 It is estimated that SEPTA will spend over $57 million dollars to make approximately 38 of its “Key Stations” accessible. Furthermore, SEPTA has spent and will spend millions of additional dollars to provide accessibility for the disabled to its other “Key Stations” that are major capital improvements where accessibility costs have not been separated out.
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In addition to the fact that the Settlement Agreement has been incorporated into the DOT regulations implementing the ADA, both the Plaintiff and the City of Philadelphia are parties to and bound by the Settlement Agreement. In the class action Eastern Paralyzed Veterans Association of Pennsylvania, Inc., et al. v. Sykes, et al., “[t]he Class consists of all mobility-handicapped persons living, working, or traveling in the City and County of Philadelphia and in the Counties of Bucks, Chester, Delaware and Montgomery, Pennsylvania, from any time to the present.” See Exhibit “C.” The Class, therefore, includes Plaintiff Disabled in Action which filed the present lawsuit on behalf of “anyone who has a disability, including persons with mobility and/or visual impairments.” See Exhibit “A” at ¶10.
Furthermore, the City of Philadelphia was a party to both the lawsuit and the Settlement Agreement and the Agreement is signed by the former City Solicitor and a Deputy City Solicitor on behalf of the City. See Exhibit “B.”
The Plaintiff’s attorney in the present case is fully aware of the Settlement Agreement in Eastern Paralyzed Veterans Association of Pennsylvania, Inc., et al. v. Sykes, et al., and following the June 16, 2004 conference with the Court even admitted that he had previously read the Agreement. In fact, a prior action filed by the Plaintiff’s attorney on behalf of the same Plaintiff, Disabled in Action v. Dudley R. Sykes, et al., is referenced in the Settlement Agreement. See Exhibit “B” ¶ 6(b). To the extent that Plaintiff and its attorney contend that they did not know about the Settlement Agreement at the time the Third Amended Complaint was filed, they have a responsibility under the Federal Rules of Civil Procedure to conduct a reasonable inquiry into the facts and law before filing such a pleading. See Bradgate Assocs. v. Fellows, Read & Associates, 999 F.2d 745, 751 (3d Cir. 1993). Even a cursory review of the DOT regulations implementing Title
6

II of the ADA would have led Plaintiff directly to the Settlement Agreement and would have revealed that Plaintiff’s “Key Station” allegations are unfounded.
The station at City Hall is not a “Key Station” under Title II of the ADA. Further, Plaintiff and the City of Philadelphia are parties to and bound by the Settlement Agreement which is incorporated into the DOT regulations implementing Title II of the ADA. Consequently, Plaintiff’s Third Amended Complaint fails to state a claim for which relief can be granted under the “Key Station” provisions of the ADA and/or §504. Pursuant to the Federal Rules of Civil Procedure such allegations are unfounded and should be dismissed.
B. 12(f) Motion to Strike Immaterial and Impertinent Matter At a conference before the Court on June 16, 2004, Plaintiff stated that his case will turn solely on the legal question of whether there is a violation of Title II of the ADA or §504 of the Rehabilitation Act of 1973. Further, Plaintiff agreed at the conference that he would not pursue any allegations that SEPTA allegedly agreed to construct elevators at City Hall in exchange for its not constructing a Suburban Station elevator at the northwest corner of 15th & Market Streets. Plaintiff’s Third Amended Complaint, however, is interspersed with such immaterial and impertinent allegations. F.R.C.P. 12(f) provides, in part, that “[u]pon motion made by a party before responding to a pleading...the court may order stricken from any pleading any...immaterial, impertinent or scandalous matter.” The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters. McInerney v. Moyer Lumber & Hardware, Inc., 244 F.Supp.2d 393, 402 (E.D. Pa. 2002) citing, Garlanger v. Verbeke, 223 F.Supp.2d 596, 609 (D.N.J.2002). As a consequence of Plaintiff’s agreement not to pursue the
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aforementioned allegations, such allegations should be stricken to “streamline [the] litigation, and avoid unnecessary forays into immaterial matters.” Id. The issue that will remain in the pleadings, therefore, is the legal question that is to be decided by the Court and, that is, whether the Defendants violated Title II of the ADA or §504 of the Rehabilitation Act of 1973 when it performed work to the area of Suburban Station at the northwest corner of 15th & Market Streets without constructing an elevator.
This case does not involve claims that there was an agreement that City Hall elevators would be constructed in lieu of an elevator at 15th Street, therefore, such allegations bear no possible relation to the parties’ dispute and are unnecessary to the issues in dispute. The issue in this case is limited strictly to the legal question of whether SEPTA’s Suburban Station renovations violate Title II of the ADA and § 504 or the Rehabilitation Act of 1973.
Since evidence regarding the alleged agreement for the City Hall elevators is irrelevant and, therefore, inadmissible at the final hearing as to the question of a violation of the ADA and § 504, such allegations in the Third Amended Complaint are immaterial and impertinent under F.R.C.P. 12(f). Consequently, such allegations should be stricken from Plaintiff’s Third Amended Complaint. III. CONCLUSION
For the foregoing reasons and authorities cited, Defendant SEPTA respectfully requests that this Court grant Defendant’s Motion to Dismiss and Motion to Strike Plaintiff’s Third Amended Complaint. Plaintiff’s Third Amended Complaint should be dismissed in its entirety and Plaintiff should be granted leave to file an Amended Complaint consistent with this Court’s Order granting Defendant’s Motions dismissing the “Key Station” claims and striking the immaterial and impertinent matter.
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DATED: July 1, 2004

Adam A. DeSipio/s/ BY:
SAUL H. KRENZEL, ESQUIRE ADAM A. DESIPIO, ESQUIRE SAUL H. KRENZEL & ASSOCIATES The Robinson Building, Suite 800 42 South 15th Street Philadelphia, PA 19102 (215) 977-7230
Attorneys for Defendant SEPTA

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CERTIFICATE OF SERVICE
I, ADAM A. DESIPIO, ESQUIRE hereby certify that a true and correct copy of Defendant
SEPTA’s Motion to Dismiss and Strike Plaintiff’s Third Amended Complaint and Memorandum of
Law in Support thereof was served via hand delivery upon:
Stephen F. Gold, Esquire 125 South Ninth Street
Suite 700 Philadelphia, PA 19107
Rocco J. Iacullo, Esquire Disabilities Law Project 1315 Walnut Street, Suite 400 Philadelphia, PA 19107
Mark R. Zecca, Esquire City of Philadelphia Law Department One Parkway, 1515 Arch Street, 17th Floor
Philadelphia, PA 19102-1595
Adam A. DeSipio/s/
SAUL H. KRENZEL, ESQUIRE ADAM A. DESIPIO, ESQUIRE SAUL H. KRENZEL & ASSOCIATES The Robinson Building 42 South 15th Street, Suite 800 Philadelphia, PA 19102 (215) 977-7230
Attorneys for Defendant SEPTA
DATED: July 1, 2004

 
 Case 2:03-cv-01577-GP Document 50 Filed 08/19/04 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF PA v.
SEPTA

:

CIVIL ACTION

:

:

:

:

:

:

NO. 03-1577

O R D E R
AND NOW, this 19th day of August, 2004, in accordance with the court's procedure for random reassignment of cases, it is hereby
ORDERED that the above-captioned case is reassigned from the calendar of the Honorable Clifford Scott Green to the calendar of the Honorable Gene E. K. Pratter.
FOR THE COURT: JAMES T. GILES Chief Judge ATTEST:
___________________ MICHAEL E. KUNZ Clerk of Court

 
 Case 2:03-cv-01577-GP Document 68 Filed 11/30/04 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION

:

OF PENNSYLVANIA,

:

:

Plaintiff

:

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

AND THE CITY OF PHILADELPHIA :

:

Defendants

:

CIVIL ACTION NO. 03-1577

Gene E.K. Pratter, J.

Memorandum

30November 2004

Plaintiff Disabled in Action (“DIA”) moves for an Order dismissing Defendant City of

Philadelphia (the “City”) without prejudice from this case. The City has executed a settlement

agreement (the “Settlement Agreement”) with DIA which resolves all of the claims that DIA had

against the City in this matter. The remaining defendant, Southeastern Pennsylvania Transportation

Authority (“SEPTA”), has objected to the Settlement Agreement for various reasons, as discussed

herein. For the reasons that follow, the Motion to Dismiss the City of Philadelphia is granted.

FACTUAL BACKGROUND

The present Motion to Dismiss the City of Philadelphia arises in the context of the issues

between DIA and the City and SEPTA. The gravamen of the dispute between DIA and SEPTA is

the construction of facilities that would allow disabled individuals to utilize SEPTA’s City Hall

transit station. DIA alleges that SEPTA, after modifying the entrance to the City Hall station on the

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northwest corner of 15th and Market Streets, triggered an obligation under the Americans with Disabilities Act (“ADA”) to make the City Hall transit station accessible to disabled individuals. DIA also argues that this particular transit station should be considered a “key station” as defined by the ADA, an assertion that SEPTA vigorously disputes.1 In this action, DIA asks the Court to order SEPTA to construct facilities at the City Hall transit station, including an elevator that would provide individuals in wheelchairs access to the subway and trolley platforms.
Because the City owns the land upon which the modifications, if ordered, would be made, SEPTA argued at the inception of the case that the City had to be joined in the action as an indispensable party. Because the City was not then a party, SEPTA moved to dismiss the complaint.2 DIA elected not to engage in motion practice and subsequently amended its complaint to add the City as a party.3
On August 5, 2004, DIA filed its motion to dismiss the City without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) on the basis that DIA and the City had resolved any
1 SEPTA has moved to dismiss the portions of the Third Amended Complaint relating to DIA’s key station assertions. [Docket No. 32].
2 SEPTA premised its Motion to Dismiss the Complaint on Federal Rule of Civil Procedure 12(b)(7), arguing that because the City of Philadelphia owned the land on which the proposed renovations were to take place, DIA had not properly joined all parties necessary to resolve the dispute.
3 A Second Amended Complaint was filed on October 10, 2003, and the present version of the complaint – the Third Amended Complaint – was filed on January 7, 2004. SEPTA filed an answer to the original complaint, as well as the First and Second Amended Complaints. SEPTA did not file an answer to the Third Amended Complaint, but rather filed a Motion to Dismiss and Motion to Strike Portions of the Third Amended Complaint, which remains pending before this Court. The City did not file an answer or responsive pleading to any of the complaints. SEPTA has, however, moved to compel the City to answer, a motion that remains unresolved but will, by virtue of the attached order, be denied as moot.
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disputes between them with respect to this action.4 On August 16, 2004, DIA filed the Settlement Agreement between itself and the City, in which the parties agree that should the relief DIA requests against SEPTA be granted, the City will permit SEPTA to use City property for the construction of the requested modifications of the City Hall transit station. [Docket No. 49]. The City’s permission is contractually conditioned upon certain actions to be taken by SEPTA, including applying for permits as required by law, which will necessarily require SEPTA to comply with the City’s various health and safety guidelines, including the building, fire and electrical codes. Settlement Agreement at § 3. In addition, the City’s permission to use the land is conditioned upon SEPTA agreeing to an entry agreement with the City and receiving approval from the City for the design of the facility. Settlement Agreement at § 3. In the Settlement Agreement, the City specifies that it may require SEPTA to make modifications to the location or design of any facility to be constructed pursuant to the ultimate resolution of this case. Settlement Agreement at § 3.
SEPTA filed its opposition to the Motion to Dismiss the City on August 25, 2004. In its opposition, SEPTA asserts the following reasons for the motion to be denied: (1) SEPTA believes that the City is a necessary party to the litigation, and, as such, may not be dismissed unless and until the entire case is resolved; (2) the Settlement Agreement is the product of collusion between DIA and the City, and is therefore an improper agreement; and (3) the City’s dismissal from the
4 As SEPTA notes, this motion was filed by DIA in compliance with Section 5 of the Settlement Agreement between DIA and the City that provides for DIA to file a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 41(a)(2). As discussed herein, even without the referenced contractual provision, the Court believes that DIA could have dismissed the City from this action by filing a notice of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1).
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action will result in actual and substantial legal prejudice to SEPTA due to alleged multiple outstanding discovery abuses by the City.
The City responded to SEPTA’s opposition on September 3, 2004, arguing that (1) because the City has not filed an answer to the complaint, DIA has an absolute right to dismiss the City pursuant to Federal Rule of Civil Procedure 41(a)(1)(i); (2) because the Settlement Agreement resolves all claims between DIA and the City, the City is no longer a necessary party to the litigation; (3) DIA, the only party asserting a claim in this case,5 can be granted complete relief in the matter because DIA has resolved all of its claims against the City; (4) the Settlement Agreement is not collusive; and (5) the discovery allegations that SEPTA sets forth are irrelevant and false, and therefore should not stand in the way of dismissing the City pursuant to the Settlement Agreement. DISCUSSION I. Dismissal Pursuant to Rule 41(a)
This case requires, among other things, the Court to consider the intersection between two of the Federal Rules of Civil Procedure, Rule 19(a)(2) and Rule 41(a). Rule 19(a)(2), which contains two sub-parts, addresses the joinder of necessary parties in a federal action:
[a] person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if . . . the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reasons of the claimed interest. FED. R. CIV. P. 19(a)(2).
5 SEPTA has made not claim of its own against the City. 4

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Rule 41(a) also contains two sub-parts, each addressing the voluntary dismissal of an action by a plaintiff. Rule 41(a)(1) states that “an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.” FED. R. CIV. P. 41(a)(1). The second subpart of Rule 41(a) provides that if dismissal cannot be achieved by the means provided in Rule 41(a)(1), “an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper.” FED. R. CIV. P. 41(a)(2).
SEPTA argues that because it views the City as an indispensable party pursuant to Rule 19(a)(2), the City cannot be dismissed from this action at all, despite the fact that the City has settled its dispute with DIA. In response, the City first argues that under Rule 41(a)(1), DIA has an absolute right to dismiss the City from the action because the City has neither answered the complaint nor filed a motion for summary judgment. In the alternative, the City argues that its dismissal under Rule 41(a)(2) is proper because it has agreed to allow SEPTA to use the land the City owns to construct the facilities DIA is asking the Court to order, thereby removing the only reason for the City to be involved in the case.
A. Dismissal Pursuant to Rule 41(a)(1) Rule 41(a)(1)(i) provides that a plaintiff may voluntarily dismiss an action without an
order of court “by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.” Fed. R. Civ. P. 41(a)(1)(i). This provision has been interpreted to grant a plaintiff an absolute right to dismiss a case. See
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Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 253 (5th Cir. 1973). In interpreting Rule 41(a), courts do not agree as to whether the term “action” requires that a plaintiff dismiss its entire case against all defendants, or whether the Rule requirement is met if the plaintiff dismisses its entire claim against one of several defendants while proceeding with claims against others. The majority of courts have adopted the view that Rule 41(a) allows a plaintiff to voluntarily dismiss its entire case against one defendant, while maintaining the case against the remaining defendants, providing that no answer or motion for summary judgment has been filed by the defendant to be dismissed. See Sealskin v. Harrison Baking Co., No. 90-2610, 1990 WL 131901, at * 1 (E.D. Pa. Sept. 12, 1990) (“[a] voluntary dismissal by a plaintiff may be effective against fewer than all defendants in the suit”); Sheldon v. Anperex Electronic Corp., 52 F.R.D. 1, 9 (E.D.N.Y. 1971) (service of summary judgment motion by some defendants did not foreclose plaintiff from voluntarily dismissing other defendants that had not filed a responsive pleading); Wright & Miller, Federal Practice and Procedure: Civil 2d § 2362 (West 1995).
Courts within the Third Circuit have only addressed the issue in the discretionary context of Rule 41(a)(2), and not the “absolute right” context provided by Rule 41(a)(1). For example, in Young v. Wilky Carrier Corp., 150 F.2d 764 (3d Cir. 1945), plaintiffs filed suit against two defendants, Welty and Wilky Carrier Corporation, for injuries suffered in an automobile accident. Young, 150 F.2d at 764. The plaintiffs subsequently realized that they would not be able to prove a case against Welty, and voluntarily dismissed their complaint as to Welty before the non-jury trial began. Wilky objected, arguing that state law allowing for contribution between the defendants gave Wilky the right to detain Welty in the case at least until all evidence was discovered. The court
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disagreed and allowed the dismissal. Id. The Court of Appeals for the Third Circuit affirmed, noting in a concurring opinion that the dismissal was permissible under Rule 41(a) of the Federal Rules of Civil Procedure. Id. at 765.
Young has subsequently been relied upon by district courts within the Third Circuit to conclude that Rule 41(a) does allow a plaintiff to dismiss its entire claim as to one of many defendants. See, e.g., Plasterer v. Hahn, 103 F.R.D. 184, 185 (M.D. Pa. 1984) (noting that when a plaintiff wishes to release entire claim as to one of several defendants, Rule 41(a)(2) applies); Smith Kline & French Laboratories v. A.H. Robins Co., 61 F.R.D. 24 (E.D. Pa. 1973) (finding that Rule 41(a)(2) does not permit dismissal of some, but not all, claims against one defendant).
As this Court reads Young, DIA does have a right to dismiss all of its claims against the City. However, because the motion to dismiss the City was brought pursuant to Rule 41(a)(2), and not Rule 41(a)(1), the Court will consider the parties’ arguments pursuant to Rule 41(a)(2) pursuant to which leave of court is required.
B. Dismissal in Light of Rule 19(a)(2)(ii) SEPTA asserts that Rule 19(a)(2)(ii) precludes the Court’s allowance of dismissal of the City because as a “necessary party” to the litigation, the City’s dismissal would leave a substantial risk that SEPTA will be subject to multiple lawsuits and obligations involving the same or similar issues. SEPTA specifically argues that if the City is dismissed without prejudice pursuant to the terms of the Settlement Agreement, SEPTA faces a substantial risk of incurring litigation with the City relating to the various approvals and permits that SEPTA would be required to obtain should DIA prevail against SEPTA in this case.
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In support of its argument, SEPTA cites National Organization on Disability v. Tartaglione, No. 01-1923, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001) for the proposition that the need to obtain City permits and approvals would introduce a substantial risk of duplicative litigation. In Tartaglione, a group of organizations acting as advocates for the disabled filed suit against the Commissioners of the City of Philadelphia alleging that the lack of electronic voting machines available to disabled individuals violated federal law. Tartaglione, 2001 WL 1231717, at * 1. In response, the Commissioners asserted that the complaint should be dismissed for failure to join the Commonwealth of Pennsylvania, which would have to approve the use of any new voting machines that might be required as a result of the suit. Id. at *8. The court agreed, finding that if the plaintiffs prevailed, they might have to file a new proceeding against the Commonwealth to implement the court order requiring the machines. Id. at *9.
Tartaglione is inapplicable to this case. It is true that this case is facially similar to Tartaglione in that the City, like the Commonwealth, would have to grant its approval if the plaintiff prevails. However, the relevance of this similarity is extinguished by one obvious distinction that SEPTA ignores – in this case, the City has been joined in the action, and has already granted its permission to SEPTA to use its land for the requested modifications should DIA prevail. Thus, Tartaglione is not instructive here because that case did not address the dismissal of a previously “indispensable party” that has subsequently settled all claims against it that were involved in the suit, including in that settlement the issue(s) ostensibly important to the objector.
Additionally, SEPTA has not established that the City has retained any interest in the subject matter of this action that would render the prospect of subsequent litigation to be “substantial,” as is
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required by Rule 19(a)(2)(ii).6 Rule 19(a)(2)(ii) provides that a party must be joined in an action if “the person claims an interest to the subject of the action.” (emphasis added). A close reading of Rule 19(a)(2)(ii) reveals that the person claiming an interest in the subject of the action is the person that must be joined – in this case, the City. Because the City has resolved its interest in the action with DIA by providing that it will permit the construction to occur on the City’s property, as long as the appropriate approvals (which would be required for any construction project) are properly obtained, the City no longer has an interest in the suit. Thus, the only possible litigation that theoretically might ensue from this case would be related to the permits that SEPTA would have to obtain from the City if DIA prevails.
SEPTA asserts that obtaining such approvals will “certainly” result in litigation, but the Court finds this argument without merit. There is nothing unusual about the City requiring such approvals as a term of the Settlement Agreement, as it would be unlikely that all approvals could be obtained at this juncture in order to bring this matter to a final conclusion. Rather, this settlement term presents a practical and ordinary consideration – that if SEPTA is ordered to move forward with the construction demanded by DIA, it will need to obtain the proper permits for safety, zoning and similar regulatory matters, and adhere to all City regulations with respect to maintaining a safe environment for public use. Because SEPTA would have to adhere to these regulations for any project, the Court is unpersuaded that this is the City’s way of “telegraphing” its intent to file suit
6 A substantial risk of subsequent litigation must consist of more than a mere possible risk of litigation. Sindia Expedition, Inc. v. Wrecked and Abandoned Vessel Known as “The Sindia”, 895 F.2d 116, 122 (3d Cir. 1990).
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against SEPTA at its earliest opportunity. Thus, the risk of subsequent litigation against SEPTA with respect to this case is not substantial.
C. Dismissal in Light of Rule 19(a)(2)(i) SEPTA next argues that dismissal of the City is not permitted pursuant to Rule 19(a)(2)(i) because complete relief cannot be afforded to all the parties without the City’s continued presence in the suit. This argument is likewise unpersuasive. A review of the law with respect to the dismissal of a settling “indispensable” party suggests that once that party resolves the claims against it, the party may be dismissed from the action. See, e.g., Glencore, Ltd. v. Chase Manhattan Bank, N.A., No. 92-6214, 1999 WL 182599 (S.D.N.Y. March 31, 1999) (granting plaintiff’s motion to dismiss settling defendant while other defendants remained in suit); Duke v. South Central Bell, Inc., No. 90-3088, 1991 WL 396282 (E.D. La. Dec. 17, 1992) (if indispensable defendant settled with plaintiff, motion to dismiss would be appropriate vehicle to release individual indispensable defendant from suit). DIA has settled its claims against the City with respect to this case, has filed its Settlement Agreement for the record, and therefore would not be denied relief if the City is dismissed from the case. Eliminating the claims that were resolved in the Settlement Agreement, there remain no claims against the City, as SEPTA has filed none. Thus, as is patently clear, no party in this suit would be denied complete relief as a result of the City’s dismissal. II. Collusion or Illusory Terms SEPTA next argues that the Settlement Agreement between DIA and the City warrants close scrutiny by the Court to assess whether it is the product of collusion or is an illusory agreement.
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A. Collusion SEPTA argues that the Court should exercise its discretion to examine the Settlement Agreement to ensure that it was not a product of collusion. A district court has discretion to review a proposed settlement agreement to ensure that the agreement is fair and reasonable. IPSCO Steel (Alabama), Inc. v. Blaine Construction Co., 371 F.3d 150, 155 (3d Cir. 2004). However, exercise of this discretion is not frequent, and is “generally reserved for settlements in class action lawsuits . . . where the district court must be vigilant in protecting the due process rights belonging to the class members.” IPSCO, 371 F.3d at 155. Thus, in an appropriate circumstance, when considering whether to review a settlement agreement for fairness, a district court must focus on the individuals whose rights would be affected by the agreement’s terms. In support of the proposition that this Court should examine the Settlement Agreement for collusion, SEPTA cites Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828 (3d Cir. 1995). In Caplan, the court addressed the propriety of a district court’s disapproval of a settlement agreement that had been entered into between a former employee of a law firm and the law firm’s insurer. Caplan, 68 F.3d at 833. Although the settlement agreement resolved claims filed by the employee against the law firm employer, the law firm did not participate in the settlement negotiations, nor was it a party to the settlement agreement. Id. at 832. In reviewing the propriety of a district court exercising a review and approval role over a settlement agreed upon by the litigants, the Court of Appeals for the Third Circuit noted that such a review would only be appropriate in certain situations, including “consent decrees, class actions, shareholder derivative suits, and compromises of bankruptcy claims where settlement of the suit
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requires court approval.” Caplan, 68 F.3d at 835. Otherwise, the court noted that a district court has “neither the authority nor the resources to review and approve” settlements of the cases brought before it.
As suggested by IPSCO and Caplan, the common thread between the types of circumstances in which it may be appropriate for a district court to review and approve a settlement agreement between litigants appear to be a need to protect parties that might have an interest in the litigation or whose rights are curtailed by the agreement but who are not a party to the settlement. That is not the case before this Court. Although the Settlement Agreement does state that the City’s permission is conditioned upon SEPTA obtaining the proper permits and submit designs to the City for inspection, these are not actions that are forced upon SEPTA by the Settlement Agreement.
SEPTA also argues that because both DIA and the City were parties to a consent decree filed in the class action Eastern Paralyzed Veterans Association of Pennsylvania, Inc. v. Sykes, No. 866797 (E.D. Pa. 1986), the Settlement Agreement warrants closer scrutiny. SEPTA specifically asserts that this case is extraordinary because key stations on SEPTA’s transit system were identified in EPVA v. Sykes, and, according to SEPTA, the present argument with respect to the City Hall transit station’s status as a key station ties the two cases together. As such, SEPTA argues that any agreement resolving DIA’s dispute with the City must somehow be related to the EPVA consent decree and, therefore, warrants extra scrutiny by the Court.
SEPTA’s attempt to tie the Settlement Agreement to a consent order signed in EPVA v. Sykes suggests a judicial long jump that this Court does not believe is appropriate. The present litigation does revisit the key station issue, in that the Settlement Agreement states the parties’
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agreement that the City Hall transit station should be considered a key station under the ADA. However, the stipulation between DIA and the City simply states that those parties are in agreement on the issue of whether the transit station at issue should be considered a key station – it does not decide or otherwise resolve the case. It makes no attack on or modification of the EPVA consent order. Thus, any tenuous relationship to the EPVA case does not warrant review and approval of the Settlement Agreement by the Court.
SEPTA further argues that this litigation is extraordinary because both DIA and SEPTA are public entities, and that this litigation, and, by extension, the Settlement Agreement, will have a farreaching affect on the community. This assertion arguably ties into the need to protect parties affected by, but not involved in, settlements. However, the community that would most likely require protection – disabled individuals – would receive a benefit from the Settlement Agreement, in that the City is granting its permission to use its property to construct facilities that would increase access by disabled persons to the City Hall transit station. Thus, this argument by SEPTA at least without merit and may well be more aptly labeled disingenuous.
The Court concludes that there is no sufficient reason to overreach to exercise its discretion to scrutinize the Settlement Agreement. However, a cursory review of the Settlement Agreement indicates that the City is settling its dispute with DIA by allowing the use of its land for construction of facilities, if such construction is so ordered. Although the Court acknowledges that DIA has presented a challenge with respect to the “key station” status of the City Hall transit station, the Settlement Agreement does not purport to resolve that dispute; it merely acknowledges the City’s position on the matter. Clearly, the legal opinion expressed in the Settlement Agreement is nothing
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more than the City’s legal position, not foisted upon the Court for any purpose germane to SEPTA. The City’s disagreement with SEPTA with respect to the interpretation of the law does not resolve the litigation; the only resolution provided by the Settlement Agreement is of DIA’s claim against the City. While SEPTA may believe certain statements in the Settlement Agreement to be surplusage or impertinent, these statements are not outcome determinative as to the ultimate conclusion of the case. For these reasons, the Court does not believe the close scrutiny of the Settlement Agreement is warranted and declines to engage in such an evaluation.
B. Illusory Terms SEPTA next argues that because the conditional permission the City gives for the use of its land is that which it would be legally obligated to do should the Court find in favor of DIA, the Settlement Agreement is illusory. This argument directly contradicts SEPTA’s earlier assertion that the City is an indispensable party to the litigation, for if the City was obliged to provide its permission if DIA were to prevail, even in the absence of the Settlement Agreement, there was no reason to argue that DIA was obliged to join the City in the litigation as an indispensable party initially. Aside from this fact, it is unclear what else one would expect the Settlement Agreement to include. As discussed above, the terms of the Settlement Agreement requiring building code approvals relate directly to the health and safety of the public and appear to be logical and responsible items to include in an agreement such as this. It is the Court’s understanding that the reason the City was joined as a party to the litigation was that it owns the property that would be affected should DIA prevail, and that the City would need to give its permission to use the property.
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That is exactly what the Court sees the Settlement Agreement achieving. Thus, the Settlement Agreement is not illusory. III. Prejudice to SEPTA with Respect to Discovery
SEPTA finally argues that dismissing the City at this point in the litigation would result in actual and substantial legal prejudice to SEPTA because the City has allegedly thwarted SEPTA’s discovery efforts as to the City. SEPTA reasons that it has incurred significant expenses in its effort to have the City comply with its discovery requests, and a dismissal at this time would prejudice SEPTA because it still needs to obtain information from the City to take the litigation to its completion.
While the Court acknowledges that there have been various discovery disputes (including many prompted by SEPTA’s refusals to disclose its materials and information) with respect to all parties to this litigation, it does not agree that dismissing the City will result in substantial prejudice to SEPTA. Dismissal of the City does not preclude SEPTA from deposing City representatives, and, to the extent that SEPTA needs documentation from the City, it will be able to issue subpoenas to obtain it. The Court notes that prior to considering the Motion to Dismiss the City the Court required SEPTA and the City to seriously address the discovery disputes between them and believes that they have reported resolution of most, if not all, such issues. Thus, the City’s dismissal will not substantially prejudice SEPTA. CONCLUSION
For the reasons stated above, Disabled in Action’s Motion to Dismiss the City of Philadelphia pursuant to the Settlement Agreement is granted, and SEPTA’s Motion to Compel the
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City to File an Answer to the Third Amended Complaint is denied as moot. An appropriate Order follows.

November 30, 2004

/S/ Gene E.K. Pratter Gene E.K. Pratter United States District Judge

16

Case 2:03-cv-01577-GP Document 68 Filed 11/30/04 Page 17 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION

:

OF PENNSYLVANIA,

:

:

Plaintiff

:

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

AND THE CITY OF PHILADELPHIA :

:

Defendants

:

CIVIL ACTION NO. 03-1577

O R D E R AND NOW, this 30 day of November, 2004, upon consideration of the Plaintiff’s Motion to Dismiss the City of Philadelphia without Prejudice [Docket No. 43] and the responses of SEPTA [Docket No. 52] and the City [Docket No. 55] thereto, it is hereby ORDERED that the Motion is GRANTED. The City of Philadelphia is hereby DISMISSED from this action without prejudice. It is further ORDERED that the Motion to Compel the Defendant City of Philadelphia to File an Answer to Plaintiff’s Third Amended Complaint [Docket No. 35] is DENIED AS MOOT.
BY THE COURT:

/S/ Gene E.K. Pratter GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

 
 Case 2:03-cv-01577-GP Document 70 Filed 12/27/04 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY

:

and

:

THE CITY OF PHILADELPHIA,

:

:

Defendants

:

03-CV-1577

O R D E R AND NOW, on this 23rd day of December, 2004, upon consideration of the Motion to Dismiss and Motion to Strike Portions of the Plaintiff’s Third Amended Complaint filed by Southeastern Pennsylvania Transportation Authority (“SEPTA”) (Docket Nos. 32, 38, 53), the responses thereto (Docket No. 44, 53), the Stipulation and Order entered into by the parties on July 20, 2004 (Docket No. 36), and specifically considering only the pending complaint and legal memoranda filed in support and in opposition to the Motion to Dismiss and not the documents attached as exhibits to the legal memoranda, it is hereby ORDERED that the Motion to Dismiss and to Strike Portions of the Plaintiff’s Third Amended Complaint is GRANTED in part and DENIED in part. SEPTA’s unopposed Motion to Strike the allegations in Plaintiff’s Third Amended Complaint relating to the alleged agreement to construct elevators at City Hall in lieu of construction of an elevator at the northwest corner of 15th and Market Streets is GRANTED. The Plaintiff is directed to excise these allegations in accord with the parties’ stipulated

Case 2:03-cv-01577-GP Document 70 Filed 12/27/04 Page 2 of 2
agreement in this regard and to file a fourth amended complaint on or before January 18, 2005, without the stricken allegations.
Defendant SEPTA’s Motion to Dismiss the “Key Station” allegations from the Plaintiff’s Third Amended Complaint is DENIED without prejudice and SEPTA is directed to file an answer to Plaintiff’s complaint within fifteen (15) days of the date of service upon SEPTA’s counsel of Plaintiff’s fourth amended complaint.
BY THE COURT:
______________________________ GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

 
 Case 2:03-cv-01577-GP Document 85-3 Filed 03/29/2005 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________________________________________________________

DISABLED IN ACTION OF

:

PENNSYLVANIA

:

CIVIL ACTION

:

v.

:

No. 03-CV-1577

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY

:

______________________________________________________________________________

PLAINTIFF DISABLED IN ACTION OF PENNSYLVANIA’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Disabled in Action of Pennsylvania (DIA), by and through its counsel, submits

this Memorandum of Law and attached exhibits in support of its Motion for Partial Summary Judgment.1 An analysis of the undisputed material facts and the relevant law reveals that

Defendant Southeastern Pennsylvania Transportation Authority (SEPTA) has discriminated

against individuals with disabilities in violation of the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12132 and 12147(a), and Section 504 of the Rehabilitation Act (Section 504), 29

U.S.C. § 794. Specifically, as stated in Count I of Plaintiff’s Fourth Amended Complaint,

SEPTA violated the ADA and Rehabilitation Act by (1) failing to provide access to persons with mobility disabilities, including those who use wheelchairs, when it altered and renovated the 15th and Market Streets Courtyard entrance (hereinafter 15th Street Courtyard) to the Market-

Frankford Elevated Line, and (2) by failing to provide access to persons with mobility

disabilities, including those who use wheelchairs, when it altered and renovated the southeast

City Hall Courtyard entrance to the City Hall Station on the Broad Street Subway Line.

1 The instant Motion for Partial Summary Judgment does not address Plaintiff’s key station alternative legal argument. It is limited to the argument that when a public entity “alters” a facility or part thereof to affect its access and usability, the alterations trigger a legal duty to make the facility or part thereof readily accessible to and usable by individuals with disabilities, including those who use wheelchairs.

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I. FACTUAL BACKGROUND A. Plaintiff Disabled in Action Plaintiff Disabled in Action of Pennsylvania (DIA) is a non-profit corporation which
advocates for the civil rights of and services for persons with disabilities. See Deposition of Nancy Salandra (Salandra Dep.) at 13-18; 23-42 (Exhibit B). DIA has approximately 450 current active members, many of whom use wheelchairs and use SEPTA for their public transportation. Exhibit B at 15. DIA assists persons with disabilities to achieve equality with non-disabled persons and to advocate for the elimination of discrimination against people with disabilities in all aspects of community life, including transportation and housing. Id. at 23-42. DIA has advocated for accessible entrances to both the City Hall Broad Street Subway Station and the Market-Frankford Elevated Line 15th Street Station. Id.
DIA’s members and participants use and want access to SEPTA’s Market-Frankford Elevated Line at 15th Street Station and the Broad Street Subway City Hall Station. Id. DIA is injured by SEPTA’s violation of its ADA and Section 504 obligations by forcing DIA to advocate for the development and improvement of nondiscriminatory transportation services, instead of focusing its time and resources assisting persons with disabilities with other issues including accessible and affordable housing, attendant care services, equal employment opportunities and access to places of public accommodation. Id at 40-42. DIA and its members are also directly and concretely injured by SEPTA’s failure to provide access to the MarketFrankford Elevated Line 15th Street Station and the Broad Street Subway City Hall Station because members are unable to use these stations to get to and from meetings, programs and advocacy activities, which further curtails the organizational activities and goals of DIA. Id at 39-41.
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B. Southeastern Pennsylvania Transportation Authority SEPTA is a state-created instrumentality that provides public transportation services in southeastern Pennsylvania, including the counties of Bucks, Chester, Delaware, Montgomery, and Philadelphia. Pa. Cons. Stat. Ann. § 1711; SEPTA Fiscal Year 2005 Capital Budget at 5 (Exhibit C). SEPTA provides a “vast network of fixed-route services including bus, subway, subway-elevated, regional rail, light rail, and trackless trolley, as well as customized community service.” Id. SEPTA’s City Transit Division provides a network of 82 subway-elevated, light rail, trackless trolley and bus routes generating approximately 850,000 passenger trips per day. Id. SEPTA receives federal financial assistance and thus, is subject to the Rehabilitation Act, 29 U.S.C. §§ 794(a)-(b)(1)(A). Id. at 13-18. SEPTA is a public entity as defined by Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131. C. 15th Street Courtyard Renovations The 15th Street Courtyard serves as an open-air entrance to the underground concourse which provides access to the Market-Frankford Elevated Line 15th Street Station, to the regional rail lines at Suburban Station, to the Broad Street Subway City Hall Station, and to the SubwaySurface lines. See photograph of directional signage within escalator headhouse (Exhibit D); Exhibit I infra. The 15th Street Courtyard is located on land owned by the City and leased to SEPTA. Statement by Andres Perez of June 15, 2000 (Exhibit E). In February 2001, SEPTA began construction on an alteration and renovation of the 15th Street Courtyard. See SEPTA Capital Project Progress Reports from May 2000-August 2002 (Exhibit F). This renovation project included the demolition of existing stairs and headhouse and construction of new stairs and headhouse as well as replacement of escalators. The building
3

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permit submitted for approval by SEPTA to the City of Philadelphia contains the following description of the project:
Demolition incorporates head house, stair, railings, limited wall, veneer, pavement and lighting systems. Also to be removed are planters, fountain and ceilings. Construction scope consists of glass head house, stair, (2) retail spaces, railings, storefront system, planters, lighting and paving installed, as well as new ceiling. Building permit (Exhibit G). In a letter dated June 5, 2000, Linda Sallee, Project Architect with Bower Lewis and Thrower, describes the proposed project as including: 1) replacement of the enclosure over the existing escalator, 2) replacement of stairs, relocated closer to the intersection of 15th and Market Streets, and 3) replacement of guard rail and provision of planters at sidewalk level. Sallee Letter at 1 (Exhibit H). SEPTA produced photographs which depict the 15th Street Courtyard before, during and after the construction project. See construction photographs (Exhibit I). These photographs detail the extensive nature of the project, including the demolition of existing stairs, walls and headhouse and the construction of new stairs and headhouse as well as replacement of escalators. Id. No elevator was installed during the project and the newly renovated entrance is not readily usable by and accessible to individuals who use wheelchairs. Exhibits F-I supra. While SEPTA identifies the demolition and construction project at the 15th Street Courtyard as part of the Suburban Station renovations, the 15th Street Courtyard project was funded separately from those renovations through a grant from the United States Department of Commerce, Economic Development Administration. Letter from Paul Raetsch, Regional Director, to John K. Leary, Jr., Former General Manager of SEPTA, and Andres Perez (Exhibit J); Letter from Egan to McLaughlin of Aug. 1, 2000 at 1 (Exhibit K) (“It should be noted that the EDA funding in an amount of $700,000 is directed specifically to the 15th and Market plaza entrance”). In fact, the EDA grant received by SEPTA in the amount of $700,000 represented
4

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half of the project’s $1.4 million estimated total cost. Exhibit K; see also executed Financial Assistance Award (Exhibit L).
The 15th Street Courtyard primarily serves as an access point to the Market-Frankford Elevated Line 15th Street Station and the Broad Street Subway City Hall Station. Exhibit D supra; see also SEPTA rail system maps and 15th Street Station address information obtained from septa.org (Exhibit M). In its application for the EDA funding grant, SEPTA described the Courtyard entrance as a “key access point to the subways, trolleys and rail lines, which are the primary means of mobility for under-employed and entry-level workers in Center City Philadelphia.” Letter from John K. Leary to Jack Corrigan of May 22, 1998 (Exhibit N). SEPTA’s own signage affixed to the renovated escalator headhouse at the 15th Street Courtyard, which is viewed by SEPTA patrons as they descend the renovated escalator, clearly identifies it as an entrance to the Market-Frankford Elevated Line and the Broad Street Subway. Exhibit D supra. A leasing plan diagram maintained by MetroMarket Management, LLC, which operates the leasing space in the Suburban Station concourse, depicts the location of the 15th Street Courtyard and its close proximity to the Market-Frankford Elevated Line 15th Street Station. Metro-Market diagram (Exhibit O).
SEPTA patrons can and do access the Market-Frankford Elevated Line 15th Street Station from the altered and renovated 15th Street Courtyard. A pedestrian circulation study conducted by Dan Peter Kopple and Associates and submitted to SEPTA in May 1994 demonstrates that the 15th Street Courtyard is used by riders leaving and entering the 15th Street Market-Frankford Station. See Pedestrian Circulation Study with accompanying charts and diagrams (Exhibit P). This study included an actual observed count of the pedestrian flow in the 15th Street corridor leading to the 15th Street Market-Frankford Line Station both north and south of the turnstiles.
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Exhibit P at bates stamp No. COP1908. As seen by the diagrams in this study, the 15th Street corridor is the pathway which runs north and south in front of the 15th Street Courtyard at concourse level and provides access to the Market-Frankford Elevated Line 15th Street Station. Id. at COP1926-1930. The count of the 15th Street corridor revealed that a substantial number of people travel through this corridor both north and south during the AM rush hour period. Id. at COP1914. (Total pedestrians: 4095 northbound & 1931 southbound north of the turnstiles and 1755 persons northbound & 5116 southbound south of the turnstiles). The pedestrian circulation study diagrams demonstrate that pedestrians in the past accessed the 15th Street corridor and 15th Street Station from the Courtyard entrance. Id. Now that the 15th Street Courtyard has been renovated and is highly visible to the public, pedestrians currently use it to access the MarketFrankford Elevated Line 15th Street Station.
D. City Hall Broad Street Subway Station Escalator Replacement In 2003, SEPTA replaced an escalator in the southeast entrance of the City Hall Courtyard leading to the Broad Street Subway City Hall Station. See City Hall Station Renovations-Bower Lewis Thrower Architects Meeting Minutes at Item 20-03 and Fiscal Year 2003 Capital Budget, Escalator/Elevator Program update (Exhibit Q). This escalator serves as an exit for SEPTA patrons disembarking from the Broad Street Subway at the City Hall Station. See City Hall Station Survey Photographs (Exhibit R). In a letter dated February 11, 2005, counsel for SEPTA, Saul Krenzel, in providing supplemental responses to Plaintiff’s discovery requests, admitted that, “SEPTA replaced an old escalator in the City Hall courtyard in 2003.” See Exhibit S. SEPTA produced pictures which depict the escalator replacement project and the appearance of the escalator and the headhouse both before and after completion. See City Hall Escalator Replacement Construction Photographs (Exhibit T). SEPTA’s Fiscal Year 2005
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Capital Budget also contains two photographs depicting the new escalator and headhouse in the southeast City Hall courtyard, and identifies plans to replace the escalator in the Northwest courtyard entrance. Exhibit C supra at 42-43. SEPTA provided no elevator access for individuals who use wheelchairs in the City Hall Courtyard as part of its renovation project. Exhibits C & Q-T supra. II. ARGUMENT
A. Summary Judgment Standard Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P 56(c). See also Pittston Co. Ultramar America v. Allianz Ins., 124 F.3d 508, 515 (3d Cir. 1997). If there is no genuine dispute concerning any facts material to its claims, summary judgment must be entered in favor of Plaintiff. B. Plaintiff Has Standing To Pursue These Claims Plaintiff Disabled in Action of Pennsylvania has sustained injury in its own right as a result of SEPTA’s failure to make the 15th Street Courtyard Entrance to its transportation facilities and the southeast City Hall Courtyard Broad Street Subway entrance accessible to persons with disabilities, including those who use wheelchairs. Exhibit B supra. Plaintiff has expended its own time, money and resources in a variety of ways due to the inaccessibility of the identified transportation facilities. Id. DIA has paid for alternative transportation services for individuals unable to access SEPTA’s transportation facilities at the identified entrances. Id. DIA’s work has been interrupted as a result of the inaccessibility of the entrances. Id. Accordingly, DIA has standing to sue as an organization. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); Alexander v. Riga, 208 F.3d 419, 427 n.4 (3d Cir. 2000); Robinson v.
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Block, 869 F.2d 202, 207, 210 n.9 (3d Cir. 1989); ADAPT v. Philadelphia Housing Authority, No. 98-4609, 2000 WL 433976 at *2-*3, *5-*6 (E.D. Pa. Apr. 14, 2000) (finding LRI had organizational standing to pursue Section 504 lawsuit concerning access to housing); Raver v. Capitol Area Transit, 887 F. Supp. 96, 97-98 (M.D. Pa. 1995) (determining that CIL of Central Pennsylvania had standing to pursue ADA paratransit case because the transit agency's paratransit violations had harmed the CIL's ability to serve its clients).
DIA also has standing to pursue this lawsuit on behalf of its members. DIA’s members are individuals with disabilities who utilize SEPTA’s transportation services and these individuals have been unable to access SEPTA’s facilities at the identified entrances. Exhibit B supra. DIA’s members are qualified individuals with disabilities as defined by the ADA and the Rehabilitation Act of 1973. Id at 27-33. DIA may pursue this case on behalf of its members because (1) those members have been harmed by SEPTA’s failure to make the identified entrances wheelchair accessible and (2) the interests DIA seeks to protect are germane to its organizational purposes to eradicate transportation barriers that inhibit the ability of individuals with disabilities to live independently in their communities. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977); Doe v. Stincer, 175 F.3d 879, 882-83, 885-86 (11th Cir. 1999).
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C. SEPTA Violated the ADA By Failing To Make The Altered 15th Street Courtyard Entrance and City Hall Broad Street Subway Station Entrance Accessible To Individuals With Disabilities 1. Plaintiff Represents Individuals With Disabilities Protected By The ADA and Section 504 and SEPTA Is Subject To The Requirements Of Those Statutes
There is no dispute that all of DIA’s members are eligible under the ADA to use SEPTA's fixed route transportation system. Exhibit B. Therefore, they are qualified persons with disabilities under the ADA and Section 504. 42 U.S.C. §§ 12102(2), 12131(2); 29 U.S.C. §§ 705(9)(B), 705(20).
There also is no dispute that SEPTA is a public entity subject to Title II of the ADA, including the provisions governing public transportation. 42 U.S.C. § 12131(1)(B); Exhibit C; 74 Pa. Cons. Stat. Ann. § 1711. As the recipient of federal funds, SEPTA is also subject to Section 504 of the Rehabilitation Act. 29 U.S.C. §794; Exhibit C at 13-18. Since SEPTA is a federally-funded, public entity that operates a fixed route transportation system, it is required to comply with the new construction and alterations provisions of the ADA, 42 U.S.C. §12147, and Rehabilitation Act, 29 U.S.C. §794.
2. Under the ADA, Congress Intended That Alterations To Transportation Facilities Would Trigger Equal Access
In enacting the ADA, Congress found that isolation, segregation, and discrimination against individuals with disabilities persists in the “critical area[] of . . . transportation.” 42 U.S.C. §12101(a)(3). Accordingly, the ADA bars discrimination in public transportation. 42 U.S.C. §12147(a); see also S. REP. NO. 101-116, at 13 (1989) (“Transportation is the linchpin which enables people with disabilities to be integrated and mainstreamed into society”); H.R. REP. NO. 101-485, pt.3, at 63 (1990) (“The ADA is geared to the future-the goal being that, over time, access will be the rule, rather than the exception”).
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In recent cases, the United States Supreme Court and Circuit Courts have construed Title II of the ADA broadly to be “faithful to the Act’s demand for reasonable accommodation to secure access and avoid exclusion.” Tennessee v. Lane, 124 S. Ct. 1978, 1996 (2004) (Ginsburg, J., concurring); see id. (Ginsburg, J., concurring) (“Including individuals with disabilities among people who count in composing ‘We the People’, Congress understood in shaping the ADA would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation”); see also Olmstead v. L.C., 527 U.S. 581, 598 (1999) (finding that Congress had a more comprehensive view of the concept of discrimination advanced in the ADA “that included disparate treatment among members of the same protected class”); Hason v. Med. Bd., 279 F.3d 1167, 1172 (9th Cir. 2002) (quoting Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998)) (finding that the ADA must be construed “broadly in order to effectively implement the ADA's fundamental purpose of ‘providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’”).
As they promulgated the ADA and regulations, Congress and the federal agencies understood that equal access would be achieved primarily as new construction and alterations occurred. Whenever a public entity, including a transit authority such as SEPTA, newly constructs or alters a facility or part of a facility, the new construction or alteration triggers the ADA’s mandate of equal access. Thus, regulations are substantially more stringent concerning when a public entity embarks on alterations and new construction than regulations concerning retrofitting of existing, non-altered facilities, i.e. when a public entity does not embark on its own volition to construct or alter a facility. Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied 485 U.S. 989 (1988); Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993), cert.denied 511 U.S. 1033 (1994). This distinction “reflects Congress’
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recognition that mandating changes to existing facilities could impose extraordinary costs. ‘New construction and alterations, however, present an immediate opportunity to provide full accessibility.’” Civic Ass’n of the Deaf v. Giuliani, 970 F. Supp. 352, 357 (S.D.N.Y. 1997) (quoting Kinney, 9 F.3d at 1074); DIA v. Sykes supra. Further, it is “discriminatory to the disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded.” Id. (quoting Kinney, 9 F.3d at 1073). While “the obligation of accessibility for alterations does not allow for non-compliance based upon undue burden,” Kinney, 9 F.3d at 1071, if a transit authority did have to prioritize accessibility, “an accessible entrance would generally be the most important . . . since without it the facility will be totally unusable by many persons with disabilities.” H.R. REP. NO. 101-485, pt. 3, at 65 (1990).
In keeping with the intent of Congress, and to facilitate accessibility of public transportation systems, the ADA requires that transit authorities, when making an alteration to an existing station or part thereof, make the altered portion accessible to individuals with disabilities:
With respect to alterations of an existing facility or part thereof used in the provision of designated transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of Sec. 12132 of this title and Sec. 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), for a public entity to fail to make such alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 42 U.S.C. § 12147(a) (emphasis added). The U.S. Department of Transportation regulations promulgated under this part of the ADA reiterates transit authorities’ responsibilities: When a public entity alters an existing facility or a part of an existing facility used in providing designated public transportation services in a way that affects or could affect the usability of the facility or part of the facility, the entity shall make the alterations . . . in such a manner, to the
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maximum extent feasible, that the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 49 C.F.R. § 37.43(a)(1) (emphasis added); see also 28 C.F.R. § 35.151(b) (regulations promulgated by the Department of Justice under the ADA with almost identical language); Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied 485 U.S. 989 (1988) (holding that the alteration of the Columbia Avenue Subway Station entrance without making it accessible violated Section 504 of the Rehabilitation Act and its federal regulations, the relevant portions of which were identical to 49 C.F.R. § 37.43(a)(1)). 3. The 15th Street Courtyard And Southeast City Hall Escalator
Are Part Of Existing Stations/Facilities Covered By The ADA Alterations Provisions a. The 15th Street Courtyard Is Part Of The Market-
Frankford Elevated Line 15th Street Station The 15th Street Courtyard serves as an access point to SEPTA’s transportation facilities, including the Market-Frankford Elevated Line, the Broad Street Subway, Suburban Station and the Subway-Surface Lines, but primarily serves as an entrance to the Market-Frankford Elevated Line 15th Street Station. Exhibit D & M. The pedestrian analysis completed by Dan Peter and Kopple Associates recognizes that persons use the 15th Street Courtyard to access the 15th Street corridor and the Market-Frankford 15th Street Station. Exhibit P at 1908;1914; 1926-1930. SEPTA’s rail system maps identify the close proximity of the 15th Street Courtyard to the Market-Frankford Elevated 15th Street Station as well as the City Hall Broad Street Subway Station. Exhibit M. SEPTA’s own correspondence recognizes that the Courtyard provides access to the Market-Frankford Elevated Line. Exhibit N. According to the DOT regulations, a facility is defined as “all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or
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personal property, including the site where the building, structure, or equipment is located.” 49 C.F.R. §37.3. This definition is very broad and supports Plaintiff’s claim that the 15th Street Courtyard is part of the Market-Frankford Elevated Line 15th Street Station. To access the 15th Street Station from the Courtyard, a pedestrian would descend either the stairs or escalator, then turn left into the 15th Street Corridor, ascend a flight of stairs and then proceed through turnstiles, and then descend another set of stairs to either the eastbound or westbound platforms. Exhibit O. By examining the diagrams of the 15th Street Courtyard and the 15th Street Corridor, it is readily apparent that they are connected aspects of the same facility, i.e. walks and/or passageways serving as an entrance to the Market-Frankford Elevated Line 15th Street Station.
SEPTA claims that the 15th Street Courtyard is only an entrance to Suburban Station. Since it constructed two street level elevators at 16th and JFK Blvd and 17th and JFK Blvd, providing access primarily to the Suburban Station concourse and platforms pursuant to its key station obligation, SEPTA claims it had no legal obligation to install an elevator at 15th Street. The problem with SEPTA’s defense is that it ignores the undisputed evidence that the Courtyard primarily serves as an entrance to, and thus is a part of, the Market-Frankford Elevated Line 15th Street Station. Therefore, the “existing facility used in providing designated public transportation,” for the purposes of 42 U.S.C. §12147(a) and 49 C.F.R. §37.43(a)(1), which the 15th Street Courtyard is a part of, is the Market-Frankford Elevated Line 15th Street Station. Neither the 15th Street Courtyard nor the Market-Frankford Elevated Line 15th Street Station is currently accessible to individuals who use wheelchairs. Because SEPTA altered part of the 15th Street Station, i.e. the 15th Street Courtyard entrance, it triggered a legal obligation under the ADA to make that entrance to that facility accessible. Renovations at Suburban Station or access
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to Suburban Station are thus, irrelevant, to SEPTA’s obligation to make the 15th Street Courtyard accessible.
b. The Southeast City Hall Headhouse And Escalator Is Part Of The Broad Street Subway City Hall Station
The photos produced by SEPTA in discovery are indisputable evidence that the Southeast City Hall Headhouse and Escalator is part of the City Hall Broad Street Subway Station. Exhibit R. The escalator at this location is clearly marked on the side of the headhouse as an exit for SEPTA patrons disembarking from the Broad Street Subway at City Hall Station. Id. The undisputed documentary evidence also clearly identifies the southeast City Hall Courtyard headhouse and escalator as being part of the City Hall Station on the Broad Street Subway. Exhibit C at 42-43; Exhibit Q. There is absolutely no question that the southeast City Hall Courtyard headhouse and escalator is part of the Broad Street Subway City Hall Station.2
4. The 15th Street Courtyard and City Hall Southeast Escalator Renovations Qualify As Alterations For Purposes Of The ADA
Both the 15th Street Courtyard and City Hall escalator construction projects unequivocally qualify as alterations for the purposes of the ADA, and therefore spark the ADA’s mandate of accessibility. 42 U.S.C. § 12147(a). The federal regulations define an alteration as “a change to an existing facility, including, but not limited to remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions.” 49 C.F.R. § 37.3.
Courts interpret the alterations provision broadly to effectuate accessibility. See Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811-12 (2d Cir. 1996) (finding that staffing
2 SEPTA’s documents show that it plans to construct or reconstruct another escalator in the Northwest City Hall Coutyard which will again provide access to the Broad Street Subway. Because construction has not yet occurred, it is legally premature to request an elevator at that location at this time.
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reductions are not an alteration because they are not changes to the physical structure of the facility, but holding that installation of movable ticket machines is an alteration, and requiring ticket machines to be readily accessible to and usable by individuals with disabilities); Kinney, 9 F.3d 1067 (holding that resurfacing sidewalks is an alteration, not merely a repair, and requiring that defendant make curb cuts to allow access by individuals in wheelchairs); Giuliani, 970 F. Supp. at 359 (finding that replacement of two-button emergency boxes with one-button boxes constitutes an alteration under the ADA because it was a “change to the physical and functional structure of the equipment,” and requiring that defendants restore the two-button boxes since the one-button boxes did not provide adequate access for the deaf citizens of the city). On the other hand, “Minor changes such as painting or papering walls, replacing ceiling tiles, and similar alterations that do not affect usability do not trigger the requirement that the altered areas must be made accessible.” H.R. Rep. No. 101-485, pt. 3, at 64 (1990); see also 49 C.F.R. § 37.3.
It is undisputed that the 15th Street Courtyard renovation project included the demolition of existing stairs, existing headhouse, existing escalators and construction of new stairs, a new headhouse and new escalators. Exhibits D-I supra. These renovations were substantial in nature and affected a change to the physical and functional structure of the entrance. The alterations to the 15th Street Courtyard clearly included “changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions.” There is also no question that the renovations affected the usability of the 15th Street Courtyard entrance since it involved the demolition and construction of new stairs and replacement of escalators. Thus, the ADA required that SEPTA make the 15th Street Courtyard entrance accessible to persons who use wheelchairs by installing an elevator.
15

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Likewise, the renovation to the southeast City Hall Courtyard exit from the Broad Street Subway was substantial in nature as it affected a change in physical and functional structures. The photographs produced by SEPTA demonstrate the extensive nature of the replacement of the escalator and the replacement and rearrangement of existing structures to accommodate the new escalator. Exhibit T. The renovations affected the usability of the Broad Street Subway City Hall Station because the escalator and headhouse were not in use prior to the renovations. The construction project, once completed, provided an entirely new exit for use by SEPTA patrons disembarking from the Broad Street Subway at City Hall Station. Thus, SEPTA was also legally required to make the altered southeast City Hall Courtyard exit from the Broad Street Subway City Hall Station accessible to persons who use wheelchairs.
5. SEPTA Violated The ADA By Not Making The Altered Entrances Accessible To The Maximum Extent Feasible
The ADA provides that it shall be considered discrimination for a public entity to “fail to make … alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of such alterations.” 42 U.S.C. §12147(a). The regulations specify that to the maximum extent feasible means that all changes that are possible must be made. 49 C.F.R. Part 37, App. D. A transit authority will only be excused in the “occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessibility standards through a planned alteration.” 49 C.F.R. §37.43(b) (emphasis added). SEPTA does not claim, nor can it claim, that it is impossible to make the 15th Street Courtyard entrance itself accessible to individuals with disabilities by installing an ADAcompliant elevator.
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SEPTA may claim that it cannot provide direct access to 15th Street Station by installing an elevator in the 15th Street Courtyard and that providing an elevator thus, would serve no useful purpose. However, this argument is irrelevant and misses the point. The ADA mandates that the altered portions of the station are readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12147(a). In reference to the 15th Street Courtyard, the installation of an elevator, which would provide access to persons in wheelchairs from street level to concourse level, is itself unequivocally feasible. The Courtyard is the part of the facility, i.e. the 15th Street Station, that the ADA requires that SEPTA make accessible, not necessarily the entire facility. This follows Congress’ goal that “over time, access will be the rule, rather than the exception.” H.R. REP. NO. 101-485, pt.3, at 63 (1990). This is the purpose Congress had in mind when developing the alterations provisions of the ADA. Because there was no structural barrier to installing an elevator at the 15th Street Courtyard, the ADA mandated that SEPTA provide access to persons who use wheelchairs. SEPTA failed to do so.
Likewise, the ADA mandated that SEPTA provide access to persons who use wheelchairs when it altered the southeast City Hall Courtyard escalator, which is part of the City Hall Broad Street Subway Station, to the maximum extent feasible. It is feasible for SEPTA to install an elevator in the City Hall Courtyard near the renovated escalator. An examination of design plans and diagrams of City Hall Broad Street Subway Station which were created as part of the City Hall Renovations project reveal that an elevator from the City Hall Courtyard at street level to the platform is possible. See City Hall Station Option 1C Design Plan (Exhibit U). On these design plans, there are proposed new skylights in the City Hall Courtyard located on the diagrams near both the renovated escalator and other stairs. Exhibit U. If you follow the skylights down on each diagram from street level, to the upper concourse, to the lower concourse
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and then to the platform, it is apparent that there is direct access space available from the Courtyard straight through to the platform, in which an elevator can be placed. Exhibit U. Again, because there is no barrier to installing an elevator near the renovated southeast City Hall Courtyard escalator, the ADA mandated that SEPTA install such an elevator to provide access to persons who use wheelchairs.
The alterations to the southeast City Hall escalator are directly analogous to those in DIA v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied 485 U.S. 989 (1988), which involved alterations to the Columbia Avenue Broad Street Subway Station. While decided before the ADA, the Court upheld the lower court’s application of the Rehabilitation Act alteration provisions, 49 C.F.R. § 27.67 (b), which are nearly identical to the ADA alterations provisions, 42 U.S.C. §12147(a), to SEPTA’s reconstruction of stairs, and construction of new stairs and an escalator, leading to the Subway.
It is undisputed that SEPTA made alterations to the 15th Street Courtyard entrance and the southeast City Hall Courtyard Broad Street Subway Station entrance. These alterations unequivocally affected the usability of existing stations/facilities or part thereof and SEPTA failed to make the altered parts of those stations/facilities readily accessible to individuals with mobility disabilities, including those who use wheelchairs, in violation of the ADA and the Rehabilitation Act. SEPTA continues to discriminate against individuals with disabilities every day that the entrances are not accessible. This illegal discrimination will only end when SEPTA makes the 15th Street Courtyard entrance and the southeast City Hall Courtyard Broad Street Subway entrance readily accessible to and usable by individuals with mobility disabilities, including those in wheelchairs. III. CONCLUSION
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For all the reasons set forth above, Plaintiff respectfully requests that the Court enter summary judgment in favor of Plaintiff and against SEPTA.
Respectfully submitted,

DATED: March 29, 2005

_____________________________ ROCCO J. IACULLO, ESQUIRE Attorney Id. No. 86144 Disabilities Law Project The Philadelphia Building 1315 Walnut Street, Suite 400 Philadelphia, PA 19107 (215) 238-8070
_____________________________ STEPHEN GOLD, ESQUIRE Attorney Id. No. 09880 JEN FREEBERG Law Student 125 South Ninth Street, Suite. 700 Philadelphia, PA 19107 (215) 627-7100
Attorneys for Plaintiff

19

Case 2:03-cv-01577-GP Document 85-3 Filed 03/29/2005 Page 20 of 20 CERTIFICATE OF SERVICE
I, Rocco J. Iacullo, Esquire, hereby certify that true and correct copies of Plaintiff's Motion for Summary Judgment, Memorandum of Law in support of that Motion, and proposed Order were served on the following by hand-delivery on this 29th day of March, 2005:
Saul H. Krenzel, Esquire Adam A. DeSipio, Esquire Saul H. Krenzel & Associates
The Robinson Building 42 S. 15th Street, Suite 800
Philadelphia, PA 19102
_____________________________ ROCCO J. IACULLO
20

 
 Case 2:03-cv-01577-GP Document 129-1 Filed 04/05/2006 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________________________________________________

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

CIVIL ACTION

:

v.

:

No. 03-CV-1577

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

:

Defendant.

:

________________________________________________________________________

PLAINTIFF DISABLED IN ACTION OF PENNSYLVANIA’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56, Plaintiff, Disabled in Action of

Pennsylvania (DIA), by and through its counsel, files this Motion for Summary Judgment. The

undisputed material facts and the relevant law establishes that Defendant Southeastern

Pennsylvania Transportation Authority (SEPTA) has discriminated against individuals with

disabilities in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12132,

12147(a), and 12147(b), and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. §

794.

Specifically, as stated in Count I of Plaintiff’s Fourth Amended Complaint (Complaint),

SEPTA violated the ADA and Section 504 by: (1) failing to provide access to persons with mobility disabilities, including those who use wheelchairs, when it altered and renovated the 15th and Market Streets entrance (hereinafter 15th Street Entrance) to the Market-Frankford SubwayElevated Line (Market-Frankford Line) 15th Street Station; and (2) by failing to provide access to

persons with mobility disabilities, including those who use wheelchairs, when it altered and

Case 2:03-cv-01577-GP Document 129-1 Filed 04/05/2006 Page 2 of 38
renovated the southeast City Hall Courtyard exit from the Broad Street Subway City Hall Station. As stated in Count II of Plaintiff’s Complaint, SEPTA also violated the ADA, §12147(b)(1)&(2), by failing to make the ADA statutorily established and defined “key stations” of City Hall Broad Street Subway Station and 15th Street Market-Frankford Line Station accessible to and usable by persons with mobility disabilities, including those who use wheelchairs.
In support of this Motion, Plaintiff submits the attached Memorandum of Law, including Plaintiff’s Statement of Undisputed Facts, and Exhibits, which are incorporated by reference as if fully set forth herein.
Respectfully submitted, //s// Rocco J. Iacullo ____________________________ ROCCO J. IACULLO, ESQUIRE Attorney Id. No. 86144 Disabilities Law Project The Philadelphia Building 1315 Walnut Street, Suite 400 Philadelphia, PA 19107 (215) 238-8070 STEPHEN GOLD, ESQUIRE Attorney Id. No. 09880 125 South Ninth Street, Suite. 700 Philadelphia, PA 19107 (215) 627-7100 Attorneys for Plaintiff DATED: April 5, 2006
2

Case 2:03-cv-01577-GP Document 129-1 Filed 04/05/2006 Page 3 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________________________________________________________

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

CIVIL ACTION

:

v.

:

No. 03-CV-1577

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

:

Defendant.

:

______________________________________________________________________________

PLAINTIFF DISABLED IN ACTION OF PENNSYLVANIA’S MEMORANDUM OF LAW AND PROPOSED FINDINGS OF FACT
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Plaintiff Disabled in Action of Pennsylvania (DIA), by and through its counsel, submits

this Memorandum of Law and Proposed Findings of Fact and attached Exhibits in support of its

Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. With no

disputed material facts, the case is appropriate for a ruling on a motion for summary judgment.

The undisputed material facts and the relevant law establish that Defendant Southeastern

Pennsylvania Transportation Authority (SEPTA) has discriminated against individuals with

disabilities in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12132,

12147(a), and 12147(b), and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. §

794.

Specifically, as stated in Count I of Plaintiff’s Fourth Amended Complaint (Complaint),

SEPTA violated the ADA and Section 504 by: (1) failing to provide access to persons with mobility disabilities, including those who use wheelchairs, when it altered and renovated the 15th and Market Streets entrance (hereinafter 15th Street Entrance) to the Market-Frankford Subway-

Case 2:03-cv-01577-GP Document 129-1 Filed 04/05/2006 Page 4 of 38
Elevated Line (Market-Frankford Line) 15th Street Station; and (2) by failing to provide access to persons with mobility disabilities, including those who use wheelchairs, when it altered and renovated the southeast City Hall Courtyard exit from the Broad Street Subway City Hall Station. As stated in Count II of Plaintiff’s Complaint, SEPTA also violated the ADA, §12147(b)(1)&(2), by failing to make the ADA statutorily established and defined “key stations” of City Hall Broad Street Subway Station and 15th Street Market-Frankford Line Station accessible to and usable by persons with mobility disabilities, including those who use wheelchairs. I. STATEMENT OF UNDISPUTED MATERIAL FACTS
A. Plaintiff Disabled in Action 1. Plaintiff Disabled in Action of Pennsylvania (DIA) is a non-profit corporation which advocates for the civil rights of and services for persons with disabilities. See Deposition of Nancy Salandra (Exhibit 2) at pgs. 13-18. 2. DIA has approximately 450 current active members, many of whom use wheelchairs and use SEPTA for their public transportation. Id. at pg.15. 3. DIA assists persons with disabilities to achieve equality with non-disabled persons and to advocate for the elimination of discrimination against people with disabilities in all aspects of community life, including transportation and housing. Id. at pgs. 23-42. 4. DIA has advocated for accessible entrances to both the Broad Street Subway City Hall Station and the Market-Frankford Elevated Line 15th Street Station. Id. 5. DIA’s members and participants use and want access to SEPTA’s MarketFrankford Line 15th Street Station and the Broad Street Subway City Hall Station. Id.
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6. DIA is injured by SEPTA’s violation of its ADA and Section 504 obligations by forcing DIA to advocate for the development and improvement of nondiscriminatory transportation services, instead of focusing its time and resources assisting persons with disabilities with other issues including accessible and affordable housing, attendant care services, equal employment opportunities and access to places of public accommodation. Id. at pgs. 4042.
7. DIA and its members are also directly and concretely injured by SEPTA’s failure to provide access to the Market-Frankford Line 15th Street Station and the Broad Street Subway City Hall Station because members are unable to use these stations to get to and from meetings, programs and advocacy activities, which further curtails the organizational activities and goals of DIA. Id. at pgs. 39-41.
B. Southeastern Pennsylvania Transportation Authority 8. SEPTA is a state-created instrumentality that provides public transportation services in southeastern Pennsylvania, including the counties of Bucks, Chester, Delaware, Montgomery, and Philadelphia. Pa. Cons. Stat. Ann. § 1711; see also SEPTA Fiscal Year 2006 Capital Budget and Fiscal Year 2006-2017 Capital Program (Exhibit 3) at pg. 5. 9. SEPTA operates a “vast network of fixed-route services including bus, subway, subway-elevated, regional rail, light rail, and trackless trolley, as well as customized community service.” Id. 10. SEPTA’s City Transit Division operates a network of 82 subway-elevated, light rail, trackless trolley, and bus routes, providing approximately 850,000 passenger trips per day. Id.
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11. SEPTA receives federal financial assistance and is subject to the Rehabilitation Act, 29 U.S.C. §§ 794(a)-(b)(1)(A). Id. at pgs. 9-17. SEPTA is also a public entity as defined by Title II of the ADA, 42 U.S.C. § 12131. Id.
C. The Market-Frankford Line 15th Street Station 12. The Market-Frankford Line is a high-speed light rail line operated by SEPTA that operates in part above ground (elevated) and in part below ground (subway). See SEPTA history of Market-Frankford Subway-Elevated Line (Exhibit 4); Market-Frankford Line Route Map (Exhibit 5); see also Exhibit 3 at pg. 44. 13. The Line operates above ground from the Frankford Transportation Center located in Northeast Philadelphia through the Spring Garden Station. It then operates underground between the stations at 2nd and Market Streets and 44th Street and then continues above-ground to its 69th and Market Streets Station in Delaware County. Id. 14. The Market-Frankford Line has the following subway station stops in Center City: 2nd and Market Street, 5th and Market Street, 8th and Market Street, 11th and Market Street, 13th and Market Street, and 15th and Market Street. Exhibit 5. 15. The Market Frankford Line 15th Street Station is located underground at 15th and Market Streets, with the eastbound and westbound platforms of the station located under the bed of 15th Street adjacent to Dilworth Plaza and City Hall. See SEPTA 15th Street Station address (Exhibit 6); and City of Philadelphia City Hall Station improvement diagram (Exhibit 7). 16. The address of the 15th Street Market-Frankford Line Station is 15th and Market Streets. Exhibit 6. 17. The 15th Street Station serves as the major transfer point and interchange with other SEPTA rail lines, including the Broad Street Subway, Subway-Surface Trolleys, and
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Regional Rail lines. See SEPTA Market-Frankford Line, Broad Street Subway, Subway-Surface and Regional Rail Maps and SEPTA Center City Philadelphia Street and Transit Map (Exhibit 8).
18. The Suburban Regional Rail Station serves a distinct and separate rail line than the 15th Street Station. Id. The Suburban Regional Rail Station serves SEPTA’s regional rail lines and the 15th Street Station serves the Market-Frankford Line. Id.
19. The address of Suburban Regional Rail Station is 16th and JFK Boulevard. See SEPTA Suburban Station address (Exhibit 9).
20. According to SEPTA’s own surveys, 15th Street Station is the busiest station on the Market-Frankford Line. See Ridership Census Reports prepared by SEPTA for the years 1991-1992; 1996; 2000; and 2004 (Exhibits 10, 11, 12, and 13).
21. In 1991-1992, 15th Street Station was observed to have 33,699 boardings and 32,370 leavings for both eastbound and westbound trains in one day for a total usage of 66,069 passengers. Exhibit 10 at SEPTA Bates Stamped Nos. 8586-8587.
22. No other station on the Market-Frankford Line exceeded or even came close to this high level of ridership, including the other Center City Market-Frankford Line subway stations. Id.
23. For example, its 13th Street Station recorded 5,551 boardings and 9,939 leavings for a total usage of 15,490; and 11th Street recorded 7,849 boardings and 7,831 leavings for a total of 15,680. Id.
24. 15th Street Station had more than quadruple the amount of passenger activity of 13th Street Station or 11th Street Station. Id.
5

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25. In 1991-1992, the passenger boardings of 33,699 at 15th Street Station exceeded average station passenger boardings on the Market-Frankford Line, by close to 500 %.1 Id.
26. More current data from 1996, 2000, and 2004 is consistent with the 1991-1992 data showing that 15th Street Station is the most used station on the Market-Frankford Line; and has maintained nearly quadruple the amount of usage of the other Center City Market-Frankford Line stations. See Exhibits 11-13.
27. In 2004, 15th Street Station was observed to have 29,435 boardings and 27,331 leavings for both eastbound and westbound trains in one day for a total usage of 56,766 passengers. Exhibit 13 at pg. 3.
28. In 2004, the total passenger boardings of 29,435 also exceeded average station passenger boardings on the Market-Frankford Line, calculated to be an average of 5,475 boardings (153, 317÷28), by more than 400 %. Id.
29. SEPTA, in its own documents, identified 15th Street Station as meeting nearly all of the U.S. Department of Transportation (DOT) ADA federal regulatory criteria for key stations. See Key Station Identification Criteria documents (Exhibit 14).
30. 15th Street Station is located in close proximity to City Hall and the Municipal Services Building, and numerous high rise office buildings, which serve as the heart of Center City business and employment, including but not limited to Two Penn Center, located at 15th Street and JFK Boulevard, Three Penn Center, located at 1515 Market Street, Centre Square Office Building, located at 1500 Market Street, PNC Bank Center, located at 1600 Market Street, Seven Penn Center, located at 1635 Market Street, One Liberty Place, located at 1650 Market Street, Two Liberty Place, located at 16th and Chestnut Streets, Four Penn Center, located at 16th
1 There was a total observation of 165, 481 boardings at all Market-Frankford Line stations. Since there are 28 stations, the average number of station boardings is 5,910 (i.e. 165,481÷ 28). Id. Accordingly, the total boardings of 33,699 at 15th Street Station is greater than five times - 500 % - the average of 5,910.
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Street and JFK Boulevard, Mellon Bank Center, located at 1735 Market Street. See Center City District/Central Philadelphia Development Corp. website at www.centercityphila.org.
31. There are also numerous restaurants, retail shops, museums and other establishments located in close proximity to the 15th Street Station. Id.
D. 15th Street Market-Frankford Line Entrance 32. The 15th Street Entrance is a street level open-air entrance to the MarketFrankford Line 15th Street Station located at the northwest corner of 15th and Market Streets, directly across the street from City Hall and Dilworth Plaza. See photographs of the 15th Street Entrance taken by Plaintiff’s counsel attached (Exhibit 15); see also SEPTA photograph of directional signage within the 15th Street Entrance escalator headhouse (Exhibit 16). 33. The 15th Street Entrance is located on land owned by the City and leased to SEPTA. See statement by Andres Perez of June 15, 2000 (Exhibit 17); see also Deposition of Christopher Zearfoss, Senior Transportation Project Manager, City of Philadelphia Office of Strategic Planning (Exhibit 18) at pg. 63, line 13 – pg. 64, line 12. 34. The City of Philadelphia, shortly after the 15th Street Entrance’s construction in the 1960’s, depicted the entrance as an entrance to the 15th Street Station of the Market-Street Subway and the Subway-Surface Lines. See City of Philadelphia 1963 Capital Program photograph and description of 15th Street Entrance (Exhibit 19). 35. Christopher Zearfoss, Senior Transportation Project Manager, City of Philadelphia Office of Strategic Planning, testified that you can directly access the 15th Street Station from the 15th Street Entrance as follows: “if you’re proceeding west, having come down the stairway, you take a left, you come to a flight of steps that lead up to the cashier facility that
7

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leads to the 15th Street Station of the Market-Frankford Line.” Exhibit 18 at pg. 81, line 6 – pg. 82, line 8.
36. Mr. Zearfoss further testified that the platform and tracks for the MarketFrankford Line are located directly under the stairs leading to the cashier facility for the 15th Street Station. Id.
37. SEPTA clearly recognizes and acknowledges the 15th Street Entrance as an entrance to the 15th Street Market-Frankford Line Station. See Exhibit 6.
38. SEPTA’s own directional signage affixed to the renovated escalator headhouse at the 15th Street Entrance, which is viewed by SEPTA patrons as they descend the escalator, identifies it as an entrance to the Market-Frankford Line 15th Street Station as well as providing access to the Subway-Surface Trolley Lines, the Broad Street Subway, and to the Suburban Regional Rail System. Exhibits 15 and 16 supra.
39. Gerald Maier, SEPTA’s Director of Real Estate, testified that pedestrians can reach the 15th Street Station from utilizing the 15th Street Entrance. See Deposition of Gerald Maier (Exhibit 20) at pg. 65, line 23 – pg. 67, line 20.
40. Various maps and diagrams depict the close proximity of the 15th Street Entrance to the Market-Frankford Line 15th Street Station, and demonstrate that the 15th Street Entrance is closer to the Market-Frankford Line than it is to the high speed Subway-Surface Trolley line, the Broad Street Subway, and to the Suburban Regional Rail System. See Exhibit 7; see also portion of City of Philadelphia Center City Concourse System map, dated November 3, 1978 (Exhibit 21).
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41. The 15th Street Entrance is highly visible to the public, it is advertised by SEPTA as an entrance to the Market-Frankford Line, and pedestrians use it to enter the MarketFrankford Line 15th Street Station. Exhibits 15-21 supra.
E. 15th Street Market-Frankford Line Entrance Alterations and Renovations 42. Prior to 2001, the 15th Street Entrance consisted of a set of stairs, which descended into the center of a courtyard, and two escalators enclosed within a headhouse. See SEPTA pre-renovation photographs of 15th Street Entrance (Exhibit 22). 43. In February 2001, SEPTA began an alteration and renovation of the 15th Street Entrance. See SEPTA Capital Project Progress Report from February 2001 (Exhibit 23). 44. As part of the renovation work, SEPTA completely demolished the centrally located existing stairs and constructed new stairs along the southeastern wall of the entrance. Exhibit 20 at pg. 60, line 25 – pg. 61, line 22, and Deposition of Terry Heiser, SEPTA Senior Project Manager for the Suburban Station and City Hall Station Renovation projects (Exhibit 24) at pg. 14, line 22 – pg. 15, line 25. 45. Gerald Maier stated that “the original stairs came from the western part of the courtyard about in the middle and kind of plunked themselves down into the middle of the courtyard” and that “the plan was to remove those stairs and to replace them with a stair entrance right at the corner of 15th and Market, which is what was done.” Exhibit 20 at pg. 60, line 25 – pg. 61, line 22 46. Terry Heiser also verified the demolition of the stairs and construction of new stairs as part of the renovation to the 15th Street Entrance. Exhibit 24 at pg. 14, line 22 – pg. 15, line 25.
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47. Roderick Wolfson, Project Architect with Bower Lewis Thrower hired by SEPTA for the Suburban Station and City Hall Station Rehabilitation Projects, testified that the 15th Street Entrance stair was demolished as it was BLT’s conclusion that the stair was beyond repair due to deterioration of the concrete. See Deposition of Roderick Wolfson (Exhibit 25) at pg.13, line 12 - line 22.
48. SEPTA’s building permit submitted to the City of Philadelphia identified the project as follows:
Demolition incorporates head house, stair, railings, limited wall, veneer, pavement and lighting systems. Also to be removed are planters, fountain and ceilings. Construction scope consists of glass head house, stair, (2) retail spaces, railings, storefront system, planters, lighting and paving installed, as well as new ceiling. (Exhibit 26). 49. Photographs produced by SEPTA explicitly depict the demolition of the centrally located existing stairs, and the construction of the new stairs along the southeastern edge of the 15th Street Entrance. See SEPTA 15th Street Entrance construction photographs (Exhibit 27). 50. The alteration and renovation project was completed, and the new stairs were reopened to the public on August 8, 2002. See SEPTA Capital Project Summary Report, August 2002 (Exhibit 28). 51. SEPTA did not install an elevator at the 15th Street Entrance as part of the project, and thus, the newly renovated entrance cannot be used by individuals who use wheelchairs. Exhibits 23-28 supra. 52. It is technically feasible to install an elevator at the 15th Street Entrance from street level to the concourse level. Exhibit 24 at pg. 54, line 11 – pg. 55, line 5.
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F. City Hall Broad Street Subway Station 53. City Hall Station was constructed in 1928 as part of the original Broad Street Subway which extended underground below Broad Street from Olney Avenue to City Hall. See SEPTA Broad Street Subway History (Exhibit 29); and City Hall Renovations document (Exhibit 30). 54. City Hall Station served as the southern terminus of the Broad Street Subway line until April, 1930, when the line was extended to South Street. Id. The subway now extends as far north as Fern Rock Station and as far south as Pattison Avenue Station. Id. 55. The Broad Street Subway and the City Hall Station are located under the MarketFrankford Line and Subway Surface Lines underneath City Hall’s western foundations. See City Hall Station Renovations –Request for Proposal (Exhibit 31). 56. The address for the City Hall Broad Street Subway Station is Broad and Market Streets. See SEPTA City Hall Station address (Exhibit 32). 57. The City Hall Station has several direct entrances including a stair entrance from Dilworth Plaza at street level to the lower north concourse, a stair entrance from street level at the City Hall Courtyard to the lower south concourse, and an escalator serving as an exit from the lower south concourse to the southeast City Hall Courtyard. Exhibit 29; see also Heiser Deposition Exhibits 5B, 6A, & 6B (Exhibit 33); and City Hall Station Renovations Existing Concourse Level Plan (Exhibit 34). 58. The Broad Street Subway’s lower concourses run north and south of the MarketFrankford Line. Exhibits 30, 33 and 34 supra. 59. From the lower south concourse under the City Hall Courtyard pedestrians can travel east through the concourse, without using any stairs, to reach the eastbound platforms of
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the 13th Street Market-Frankford Station and the 11th Street Market-Frankford Station. Id.; see also deposition transcript of Skip Brooke, Director of Engineering in SEPTA’s Bridges and Buildings Department (Exhibit 35) at pg. 22, line 21 – pg. 26, line 13.
60. From that same location in the lower south concourse under City Hall Courtyard, a pedestrian can travel east and then south, without using stairs, to reach the South Broad Street concourse, the Walnut-Locust Broad Street Subway Station,2 and can actually continue in the South Broad Street concourse to the PATCO Line under 15th and Locust Streets (there is a PATCO elevator which can be used to reach the street at this location). Exhibit 35 at pg. 40, line 6 – pg. 41, line 7; Exhibit 24 at pg. 74, line 11 – pg. 77, line 10; Exhibit 18 at pg. 144, line 21 – pg. 147, line 3; see also Exhibit 33.
61. According to SEPTA, City Hall Station is the heaviest patronized station on the Broad Street Subway Line, serving 57,000 passengers on a daily basis. Exhibit 3 at pg. 33.
62. The station serves as a major interchange between the Broad Street Line, MarketFrankford Line, Subway-Surface Lines and Regional Rail Lines. Id.; see also Exhibit 8.
63. City Hall is the center of Philadelphia municipal government, housing the Mayor’s office, City Council Chambers, the City Commissioners, and a variety of local governmental departments. See City of Philadelphia website at www.phila.gov.
64. City Hall also serves as the base of operations for the Philadelphia Court of Common Pleas, including housing numerous courtrooms for civil proceedings, the Complex Litigation Center, Orphan’s Court Administration, and Office of the Prothonotary. See First Judicial District of Pennsylvania website at www.courts.phila.gov.
2 There are now elevators operational from the lower South Broad Street concourse to the platforms at WalnutLocust Station. However, there are still no elevators from the street level to the Walnut-Locust Station.
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65. Maxine Griffith, the former Executive Director of the City of Philadelphia Planning Commission, testified to the importance of City Hall Station due to its location to the heart of City government. See Deposition of Maxine Griffith (Exhibit 36) at pg. 122, line 5 – pg. 123, line 6; & pg. 140, line 21 – pg. 141, line 6.
66. Denise Goren, then Deputy Mayor for Transportation, in a letter to Elizabeth Nuding, Secretary to the Board of SEPTA, dated May 20, 1999, in discussing the need for more money for City Hall Station Rehabilitation, described City Hall Station and its connections to the Market-Frankford Line and subway-surface trolley lines as “the busiest nexus on the SEPTA system.” See Letter from Goren to Nuding. at pg. 2 (Exhibit 37).
67. In a May 22, 2000 letter to Ms. Nuding, Christopher Zearfoss, then Acting Deputy Mayor for Transportation, wrote, regarding the need for City Hall Station Rehabilitation, that “this busy station complex must receive funding befitting its keystone location and the tens of thousands of daily riders who will benefit.” See Letter from Zearfoss to Nuding at pg. 2 (Exhibit 38).
68. City Hall Station records the most passenger activity of any other station on the Broad Street Subway line. See SEPTA Broad Street Line, Ridership Census 1993-1994; 1998; and 2002 (Exhibits 39, 40, and 41).
69. The 1993-1994 ridership census for both northbound and southbound travel reveals that 26,126 people boarded the subway at City Hall Station and 30,289 people disembarked from the subway at City Hall Station in one day, for a total passenger activity of 56,415. Exhibit 39 at SEPTA Bates Stamp Nos. 8739-8740.
70. All of the other stations on the Broad Street Line, with the exception of Olney Station, paled in comparison to the passenger activity at City Hall Station. Id. For example, in
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the census of 1993-1994, Walnut-Locust Station only recorded 6,152 total boardings and 6,596 leavings for a passenger activity total of 12,748; Race-Vine only recorded 2,612 total boardings and 3,433 leavings for a passenger activity total of 6,045; and Spring Garden only 5,269 boardings and 5,507 leavings for a passenger activity total of 10,776. Id.
71. In 1993-1994, the passenger boardings of 26,126 at City Hall Station exceeded average station passenger boardings on the entire Broad Street Subway Line by more than 350 %.3 Id.
72. Current data is consistent with the 1993-1994 data; City Hall Station is still the busiest station on the Broad Street Subway. In 2002 ridership data revealed total boardings for City Hall Station at 26,950 and total leavings at 29,650 for a total passenger activity both northbound and southbound of 56,600. Exhibit 41 at pg. 3.
73. Again, all of the other Broad Street Subway stations continue to pale in comparison to the passenger activity of City Hall Station. Id. In 2002, Walnut-Locust Station only recorded 5,229 boardings and 5,519 leavings for a total of 10,748, Race-Vine Station only recorded 2,142 boardings and 2,914 leavings for a total of 5,056; and Spring Garden Station only recorded 5,562 boardings and 6,123 leavings for a total of 11,685. Id.
74. In 2002, the passenger boardings of 26,950 at City Hall Station exceeded average station passenger boardings on the entire Broad Street Subway Line, calculated to be an average of 5,228 boardings (115,034/ 22), by more than 400 %. Id.
75. City Hall has been and remains the busiest station on SEPTA’s Broad Street Subway. Exhibits 39, 40, and 41.
3 There was a total observation of 126,590 boardings at all Broad Street Subway stations. Since there are 22 stations, the average number of station boardings is 5,754 (i.e. 126,590÷ 22). Id. Accordingly, the total boardings of 26,126 at City Hall Station is greater than three times - 350 % - the average of 5,754.
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76. SEPTA, in its own documents, identified City Hall Station as meeting nearly all of the federal regulatory criteria for key stations. Exhibit 14 supra.
G. City Hall Broad Street Subway Station Southeast Escalator Replacement 77. In August 2003, SEPTA completed the replacement of an escalator in the southeast corner of the central City Hall Courtyard, which serves as an exit for patrons disembarking from the Broad Street Subway City Hall Station and pedestrians traversing the concourse. See City Hall Station Renovations BLT Meeting Minutes at Item 20-03 and FY 2003 Capital Budget, Escalator/Elevator Program report (Exhibit 42); see also Brooke Affidavit at ¶ 19 (Exhibit 43); and Exhibits 33 & 34. 78. The escalator was inoperable prior to the replacement. Exhibit 43 at ¶ 15. 79. The southeast City Hall Courtyard escalator was one of six escalators replaced as part of Phase II of SEPTA’s Escalator Replacement Program, a program under which numerous inoperable or deteriorated escalators have been replaced throughout SEPTA’s transit system.4 Exhibit 43 at ¶¶ 4-7 & Exhibit 35 at pg. 13, line 16 – pg. 19, line 20. 80. Skip Brooke, Director of Engineering in the Bridges and Buildings Department at SEPTA, testfied that the existing southeast City Hall Courtyard escalator was removed from the wellway in order to facilitate installation of the new escalator. Exhibit 35 at pg. 49, line 3 – 11. 81. Mr. Brooke testified that the prior escalator had inadequate vertical clearance for the new escalator. Exhibit 35 at pg. 55, line 2 – line 10; pg. 57, line 21 – pg. 58, line 2; pg. 69, line 21 – pg. 70, line 4; and pg. 73, line 4 – line 18. 82. Mr. Brooke testified that installation of the new escalator required SEPTA to physically relocate the truss in the wellway (the truss is the structural piece that physically
4 SEPTA’s Escalator Replacement Program was initiated in 1999, Exhibit 35 at pg. 13, line 23 – pg. 15, line 25, and is now in Phase VI, with several future phases planned. Id. at pg. 19, line 7-line 20. The future phases will include the replacement of the northwest City Hall Courtyard escalator. Id.
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supports the escalator along its length) to accomplish the required seven foot vertical clearance. Id.
83. Mr. Brooke also explained in detail the construction photographs taken of the southeast City Hall Courtyard escalator replacement project. Exhibit 35 at pg. 58, line 8 – pg. 77, line 14; see also photographs of escalator before, during and after construction (Exhibit 44). SEPTA’s Fiscal Year 2005 Capital Budget also contains two photographs depicting the new escalator and headhouse in the southeast City Hall courtyard, and identifies plans to replace the escalator in the Northwest courtyard. See 2005 Fiscal Year Capital Budget at pgs. 42-43 (Exhibit 45).
84. SEPTA provided no elevator access for individuals who use wheelchairs as part of this renovation project to the City Hall Station southeast City Hall Courtyard. Exhibits 42 – 45 supra.
85. It is technically feasible to install an elevator in the City Hall Courtyard to provide access from the street level to the lower concourse level. Exhibit 35 at pg. 95, lines 9-16; and Exhibit 43 at ¶ 36.
86. Counsel for EPVA testified that in the EPVA v. SEPTA lawsuit that the stations chosen for the EPVA Settlement were based on costs. See excerpts of depositon transcript of James Weissman (Exhibit 46). That is, SEPTA put a certain amount of money on the table and told EPVA they had to choose stations within the cost parameters. Id. EPVA decided on numerosity – not the ADA key station criteria. Id. City Hall Station and 15th Street Station were not included in that list due to cost concerns not because they were unimportant stations. Id.
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II. ARGUMENT A. Summary Judgment Standard Summary judgment is appropriate if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P 56(c). See also Pittston Co. Ultramar America v. Allianz Ins., 124 F.3d 508, 515 (3d Cir. 1997). If there is no genuine dispute concerning any facts material to its claims, summary judgment must be entered in favor of Plaintiff.
B. Plaintiff Has Standing To Pursue These Claims Plaintiff Disabled in Action of Pennsylvania has sustained injury in its own right as a result of SEPTA’s failure to make the 15th Street Entrance to the Market-Frankford Line 15th Street Station and the southeast City Hall Courtyard Broad Street Subway exit accessible to persons with disabilities, including those who use wheelchairs. See Statement of Undisputed Facts (SUF) Nos. 1-7. Plaintiff has expended its own time, money and resources in a variety of ways due to the inaccessibility of the identified transportation facilities. Id. DIA has paid for alternative transportation services for individuals unable to access SEPTA’s transportation facilities at the identified entrances. Id. DIA’s work has been interrupted as a result of the inaccessibility of the entrances. Id. Accordingly, DIA has standing to sue as an organization. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); Alexander v. Riga, 208 F.3d 419, 427 n.4 (3d Cir. 2000); Robinson v. Block, 869 F.2d 202, 207, 210 n.9 (3d Cir. 1989); ADAPT v. Philadelphia Housing Authority, No. 98-4609, 2000 WL 433976 at *2-*3, *5-*6 (E.D. Pa. Apr. 14, 2000); Liberty Resources, Inc. v. SEPTA, 155 F.Supp. 2d 242, 242-52 (E.D.Pa. 2001), vacated as moot, 54 Fed. Appx. 769 (3d. Cir. 2002).
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DIA also has standing to pursue this lawsuit on behalf of its members. DIA’s members

are individuals with disabilities who utilize SEPTA’s transportation services and these

individuals have been unable to access SEPTA’s facilities at the identified entrances. SUF Nos.

1-7. DIA’s members are qualified individuals with disabilities as defined by the ADA and the

Rehabilitation Act of 1973. Id. DIA may pursue this case on behalf of its members because (1)

those members have been harmed by SEPTA’s failure to make the identified entrances

wheelchair accessible and (2) the interests DIA seeks to protect are germane to its organizational

purposes to eradicate transportation barriers that inhibit the ability of individuals with disabilities

to live independently in their communities. See Hunt v. Washington State Apple Advertising

Comm'n, 432 U.S. 333, 343 (1977); Doe v. Stincer, 175 F.3d 879, 882-83, 885-86 (11th Cir.

1999). C.

SEPTA Violated the ADA By Altering the 15th Street Market-Frankford Station Entrance and The City Hall Broad Street Subway Station Exit Without Making Them Accessible To Individuals With Disabilities

1. Plaintiff Represents Individuals With Disabilities Protected By The ADA and Section 504 and SEPTA Is Subject To The Requirements Of Those Statutes

There is no dispute that all of DIA’s members are eligible under the ADA to use

SEPTA's fixed route transportation system. SUF Nos. 1-7. Therefore, they are qualified persons

with disabilities under the ADA and Section 504. 42 U.S.C. §§ 12102(2), 12131(2); 29 U.S.C.

§§ 705(9)(B), 705(20). It is also undisputed that SEPTA is a public entity subject to Title II of

the ADA, including the provisions governing public transportation. 42 U.S.C. § 12131(1)(B); 74

Pa. Cons. Stat. Ann. § 1711, and SUF Nos. 8-11. As the recipient of federal funds, SEPTA is

also subject to Section 504 of the Rehabilitation Act. 29 U.S.C. § 794; Id. Since SEPTA is a

federally-funded, public entity that operates a fixed route transportation system, it is required to

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comply with the new construction and alterations provisions of the ADA, 42 U.S.C. § 12147, and Rehabilitation Act, 29 U.S.C. § 794.
2. Under the ADA, Congress Intended That Alterations To Transportation Facilities Would Trigger Equal Access
In enacting the ADA, Congress found that isolation, segregation, and discrimination against individuals with disabilities persists in the “critical area[] of . . . transportation.” 42 U.S.C. §12101(a)(3). Accordingly, the ADA bars discrimination in public transportation. 42 U.S.C. §12147(a); see also S. REP. NO. 101-116, at 13 (1989) (“Transportation is the linchpin which enables people with disabilities to be integrated and mainstreamed into society.”); H.R. REP. NO. 101-485, pt. 3, at 63 (1990) (“The ADA is geared to the future-the goal being that, over time, access will be the rule, rather than the exception”)(emphasis added).
In recent cases, the United States Supreme Court and Courts of Appeals have construed Title II of the ADA broadly to be “faithful to the Act’s demand … to secure access and avoid exclusion.” Tennessee v. Lane, 124 S. Ct. 1978, 1996 (2004) (Ginsburg, J., concurring); (“Including individuals with disabilities among people who count in composing ‘We the People’, Congress understood in shaping the ADA would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation”); see also Olmstead v. L.C., 527 U.S. 581, 598 (1999) (finding that Congress had a comprehensive view of the concept of discrimination advanced in the ADA “that included disparate treatment among members of the same protected class”); Hason v. Med. Bd., 279 F.3d 1167, 1172 (9th Cir. 2002) (quoting Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998)) (finding that the ADA must be construed “broadly in order to effectively implement the ADA's fundamental purpose of ‘providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’”).
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Congress and the federal agencies understood that equal access would be achieved over time primarily as both new construction and alterations occurred. Whenever a public entity, including a transit authority such as SEPTA, newly constructs or alters a facility or part of a facility, the new construction or alteration triggers the ADA’s mandate of equal access. Thus, the federal regulations are substantially more stringent concerning alterations and new construction undertaken by public entities than they are concerning the retrofitting of existing, non-altered facilities. Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993), cert. denied 511 U.S. 1033 (1994); see also Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied 485 U.S. 989 (1988) (holding that the alteration of the Columbia Avenue Subway Station entrance without making it accessible violated Section 504 of the Rehabilitation Act and its federal regulations, the relevant portions of which were identical to 49 C.F.R. § 37.43(a)(1)).
The distinction between new construction and alterations, on one hand, and existing facilities, which the public entity does not alter, on the other hand, is one of the bedrocks of both the ADA and Section 504. If a public entity could make alterations to existing facilities and not make them accessible, then the future goal of achieving full access would never be obtained. Under that scenario, existing facilities, even if altered, would not trigger accessibility, so that all facilities that existed in 1990 would have never become accessible. To ensure that result would not happen, both the ADA and Section 504 require public entities, if and only when they decide to make an alteration, that the alteration trigger an accessibility mandate. As a consequence, when the public entity decides to make an alteration (or newly construct), that decision carries with it the duty to ensure that the alteration is accessible.
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The distinction between new construction and alterations, on one hand, and existing facilities which the public entity does not alter, on the other hand, also “reflects Congress’ recognition that mandating changes to existing facilities could impose extraordinary costs. ‘New construction and alterations, however, present an immediate opportunity to provide full accessibility.’” Kinney, 9 F.3d at 1074 (emphasis added). Further, it is “discriminatory to the disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded.” Id. at 1073. While “the obligation of accessibility for alterations does not allow for non-compliance based upon undue burden,” Id. at 1071, if a transit authority did have to prioritize accessibility, “an accessible entrance would generally be the most important . . . since without it the facility will be totally unusable by many persons with disabilities.” H.R. REP. NO. 101-485, pt. 3, at 65 (1990)(emphasis added).
In keeping with the intent of Congress, and to facilitate accessibility of public transportation systems, the ADA, as did Section 504, see Sykes, supra, mandates that transit authorities, when making an alteration to an existing station or part thereof, make the altered portion accessible to individuals with disabilities:
With respect to alterations of an existing facility or part thereof used in the provision of designated transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of Sec. 12132 of this title and Sec. 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), for a public entity to fail to make such alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 42 U.S.C. § 12147(a) (emphasis added). The U.S. Department of Transportation (DOT) regulations promulgated under this part of the ADA reiterates transit authorities’ responsibilities: When a public entity alters an existing facility or a part of an existing facility used in providing designated public transportation services in a
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way that affects or could affect the usability of the facility or part of the facility, the entity shall make the alterations . . . in such a manner, to the maximum extent feasible, that the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 49 C.F.R. § 37.43(a)(1)(emphasis added); see also 28 C.F.R. § 35.151(b)(regulation promulgated by the Department of Justice under the ADA with almost identical language and the regulation that the Third Circuit construed in Sykes). Thus, the statute and regulations make clear that (1) if the existing facility in question is a facility used in providing designated public transportation services, or is part of a facility used in providing designated public transportation services, and (2) if the public entity decides to alter that existing facility, or part thereof, then the public entity is mandated to make that altered facility or the altered portions of the facility readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, to the maximum extent feasible. 3. The 15th Street Courtyard And Southeast City Hall Escalator
Are Part of Existing Stations/Facilities Covered By The ADA Alterations Provisions a. The 15th Street Entrance Is An Entrance To The
Market-Frankford Line 15th Street Station The Market-Frankford Line 15th Street Station is located underground at 15th and Market Streets. SUF Nos. 15-16. The 15th Street Entrance is a street level open-air entrance to the Market-Frankford Line 15th Street Station that is located at the northwest corner of 15th and Market Streets, across the street from City Hall and Dilworth Plaza. SUF No. 32. Various maps and diagrams of the concourse depict the close proximity of the 15th Street Entrance to the Market-Frankford Line 15th Street Station, in fact, they demonstrate that it is situated directly adjacent to the 15th Street Station platforms. SUF No. 40. The City, which owns the property of the 15th Street Entrance, recognizes the 15th Street Entrance as an entrance to the 15th Street
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Market-Frankford Station. SUF Nos. 33-36. Even SEPTA itself recognizes the reality that the 15th Street Entrance is an entrance to the 15th Street Market-Frankford Station. SUF Nos. 37-39.
According to the DOT regulations, a facility is defined as “all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, structure, or equipment is located.” 49 C.F.R. §37.3. This definition is very broad and supports Plaintiff’s claim that the 15th Street Entrance is unequivocally part of the Market-Frankford Line 15th Street Station. To access the 15th Street Station from the 15th Street Entrance, a pedestrian would descend either the stairs or escalator, then turn left into the 15th Street concourse corridor, ascend a flight of stairs and then proceed through the turnstiles, and then descend another set of stairs to the train platforms. SUF Nos. 35 & 39. The evidence, and the reality, make it readily apparent that the 15th Street Entrance provides a direct connection to the 15th Street Station through the 15th Street Corridor, that pedestrians use it to get to the 15th Street Station, and thus, that it is an entrance and part of the 15th Street Station.
b. The Southeast City Hall Escalator Is Part Of The Broad Street Subway City Hall Station
The undisputed documentary evidence identifies the southeast City Hall Courtyard Escalator as part of the City Hall Broad Street Subway Station. SUF Nos. 77-83. The construction photographs produced by SEPTA explicitly depict the Southeast City Hall Escalator as part of the City Hall Broad Street Subway Station. SUF No. 83. The escalator at this location is clearly marked on the side of the headhouse as an exit for SEPTA patrons disembarking from the Broad Street Subway at City Hall Station. SUF No. 83. Construction documents related to the replacement of the southeast City Hall Courtyard escalator continuously refer to the escalator as being part of the City Hall Station. SUF Nos. 77-83.
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There is absolutely no question that the southeast City Hall Courtyard escalator is part of the Broad Street Subway City Hall Station.5
4. The 15th Street Courtyard and City Hall Southeast Escalator Renovations Unequivocally Qualify As Alterations Triggering the ADA Mandate of Accessibility
Neither the 15th Street Entrance nor the Market-Frankford Line 15th Street Station is currently accessible to individuals who use wheelchairs. SUF No. 51. There are no other accessible entrances to either the 15th Street Station or the City Hall Station. SUF Nos. 42, 51 and 84. Both the 15th Street Entrance and City Hall escalator construction projects unequivocally qualify as alterations for the purposes of the ADA, as it cannot be disputed that the alterations were substantial in nature and affected the usability of the respective facilities that they are part of. 42 U.S.C. § 12147(a). As such, the ADA and Section 504 required that SEPTA make these entrances readily accessible to and usable by individuals with disabilities, including those who use wheelchairs.
The Americans with Disabilities Act Accessibility Guidelines, which apply equally to alterations under Title II and Title III of the ADA, includes in its definition of alterations the statutory focus on usability. It defines alteration as “a change to a building or facility … that affects or could affect the usability of the building or facility or part thereof. 28 C.F.R. § 36, Appendix. A. It continues by stating “normal maintenance … is not an alteration unless it affects the usability of the building or facility.” Id. The federal regulations define an alteration as “a change to an existing facility, including, but not limited to remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions.” 49
5 SEPTA’s documents show that it plans to construct or reconstruct another escalator in the Northwest City Hall Courtyard which will again provide access to the Broad Street Subway. Because construction has not yet occurred, it is legally premature to request an elevator at that location at this time.
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C.F.R. § 37.3. “Minor changes such as painting or papering walls, replacing ceiling tiles, and similar alterations that do not affect usability do not trigger the requirement that the altered areas must be made accessible.” H.R. Rep. No. 101-485, pt. 3, at 64 (1990); see also 49 C.F.R. § 37.3.
The Third Circuit has interpreted the alterations provision of the ADA broadly to effectuate accessibility. In Kinney v. Yerusalem, 9 F.3d 1067, 1069 (3d Cir. 1993), cert. denied 511 U.S. 1033 (1994), the court squarely faced the question of what constitutes an alteration under the ADA, specifically in the context of whether street resurfacing constituted an alteration triggering an ADA requirement to install curb ramps and provide accessibility pursuant to the resurfacing. The court focused with precision on the concept of usability that is expressed in the statutory language for alterations. Kinney at 1072-1074. The court held that street resurfacing constitutes an alteration because it unequivocally affected usability by making the street more usable by pedestrians. Id. at 1073-1074. It accepted the district court’s opinion that:
Resurfacing makes driving on and crossing streets easier and safer. It also helps to prevent damage to vehicles and injury to people and generally promotes convenience and travel. The surface of a street is the part of the street that is “used” by both pedestrian and vehicular traffic. When that surface is improved, the street becomes more usable in a fundamental way. Id., (quoting Kinney, 812 F.Supp. 547, 551 (E.D. Pa. 1993)). The court made clear that, “if a street is to be altered to make it more usable for the general public, it must also be made more usable for those with ambulatory disabilities.” Id. at 1073. The court reasoned that its reading “helps to implement the legislative vision, for Congress felt that it was discriminatory to the disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded.” Id. The court also held that resurfacing constituted an alteration under the ADA because it involved more than minor repairs or maintenance. Id.; see also Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811-12 (2d Cir. 1996) (holding that installation of
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movable ticket machines is an alteration, and requiring ticket machines to be readily accessible); Civic Association of the Deaf v. Giuliani, 970 F. Supp. 352, 359 (S.D. NY 1997)(finding that replacement of two-button emergency boxes with one-button boxes constitutes an alteration under the ADA because it was a “change to the physical and functional structure of the equipment,” and requiring that defendants restore the two-button boxes since the one-button boxes did not provide adequate access for the deaf citizens of the city).
It is undisputed that SEPTA demolished the existing centrally located stairs at the 15th Street Entrance and constructed an entirely new set of stairs along the southern edge of the entrance. SUF Nos. 42-49. These renovations were substantial in nature and affected a change in the physical and functional structure of the entrance because it involved demolition of the existing stairs, including their foundation, and construction of new foundations for the new stairs. Id. The construction work undertaken at the 15th Street Entrance involved substantially more than mere maintenance. Further, it is beyond dispute that the renovations affected the usability of the 15th Street Entrance since it involved the demolition of existing stairs and construction of new stairs. This is directly analogous to Kinney in that the changes made to the stairs promoted convenience and travel, and made the stairs safer to use. SEPTA admitted that the old stairs were entirely demolished because they were in such disrepair that they could not be fixed. SUF No. 47. Since the old stairs were in such disrepair, clearly the new stairs are much safer for pedestrians to use than the old stairs. It simply cannot be argued in good faith that the installation of new stairs at the 15th Street Entrance to the Market-Frankford 15th Street Station did not affect the usability of that entrance. Thus, the alterations qualify as alterations under the ADA, and SEPTA was legally required to make the 15th Street Entrance accessible to persons who use wheelchairs by installing an elevator.
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Likewise, the renovation to the southeast City Hall Courtyard exit from the Broad Street Subway was substantial in nature as it included the demolition of the existing escalator and truss and installation of an entirely new escalator and truss. SUF Nos. 78-84. The photographs produced by SEPTA demonstrate the extensive nature of the replacement of the escalator, including the difficulty that arose that required the truss to be relocated to accommodate the new escalator. Id. Based upon the evidence, it simply cannot be disputed that the replacement work was substantial in nature and constituted more than just minor maintenance. Further, there is no question that the renovations affected the usability of the Broad Street Subway City Hall Station because the escalator was inoperable prior to the renovations. Prior to the renovations, pedestrians could not use the escalator to exit the lower south concourse to the City Hall Courtyard after disembarking from the City Hall Station. SUF No. 79. Now, with the installation of the new escalator, pedestrians can use that escalator as another means to exit the lower south concourse after disembarking from the Broad Street Subway at City Hall Station. Thus, installing a new, escalator increased the usability of the Station by adding another means of egress from the station. Unequivocally, the alterations qualify as alterations under the ADA, and thus, SEPTA was legally required to make the altered southeast City Hall Courtyard exit from the Broad Street Subway City Hall Station accessible to persons who use wheelchairs.
Further, not only did the alterations at the 15th Street Entrance and City Hall Courtyard affect the usability of transportation facilities, it is also clear that the alterations were more than just “mere maintenance,” and qualify as ADA alterations for that reason as well. There cannot be a real dispute that SEPTA’s construction of a new stairway from the street to the concourse level at 15th and Market was an “alteration,” as USDOT defines it. Under the federal regulation, an “alteration means any change to an existing facility, including, but not limited to, remodeling,
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renovation, rehabilitation, reconstruction, … changes or rearrangement in structural parts or elements…” 49 C.F.R. 37.3. That there had been a stairway prior to the construction of the new stairway does not undercut the fact that the new stairway was an alteration – the new stairway changed the entrance by renovating or reconstructing a stairway, i.e. rearranging the structure of the stairway. The new stairway does not fit into the only exception to the federal regulations’ alteration mandate under “normal maintenance,” since the photographs of the new stairway show that it was far from “reproofing, painting or wallpapering.” Construction of a new stairway is far from “normal maintenance.” Similarly, the photographs of the new escalator installation at the southeast City Hall Station cannot be considered “normal maintenance.” SEPTA had to reconfigure and remodel the structural elements and it then replaced the truss, and finally installed a completely new escalator. Again, this is not “normal maintenance” as the ADA and Section 504 contemplated.
SEPTA claims it had no legal obligation to install an elevator at 15th Street because the alterations were included within its “Suburban Station Rehabilitation project” wherein it also constructed two street level elevators at 16th and JFK Blvd and 17th and JFK Blvd, providing access to the Suburban Station pursuant to its obligation under its 1988 settlement agreement in the EPVA v. SEPTA case. The problem with SEPTA’s argument is that it ignores the undisputed evidence that Suburban Station is not an entrance to the 15th Street Market-Frankford Line Station so that elevators installed to access Suburban Station cannot be deemed to provide access to a wholly separate transportation facility, such as the 15th Street Market-Frankford Line Station. SUF Nos. 32-41. The “existing facility used in providing designated public transportation,” for the purposes of 42 U.S.C. § 12147(a) and 49 C.F.R. § 37.43(a)(1), which the 15th Street Entrance is a part of, is the Market-Frankford Line 15th Street Station. The 15th Street
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Station is a completely different station than Suburban Station located on a completely separate and distinct rail line. SUF No. 18.
The alterations to the 15th Street Entrance and the southeast City Hall escalator are virtually the same in DIA v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied 485 U.S. 989 (1988), which involved alterations to the Columbia Avenue Broad Street Subway Station. There SEPTA demolished the existing stairway and constructed a new stair in the same location (unlike the 15th Street stairway where SEPTA relocated the stair) and installed an escalator. While decided before the ADA, the Court upheld the lower court’s application of the Rehabilitation Act alteration provision, 49 C.F.R. § 27.67(b), which is nearly identical to the ADA alteration provision, 42 U.S.C. § 12147(a), to SEPTA’s reconstruction of stairs, and construction of new stairs and an escalator, leading to the Subway. In that case, the Court dealt with alterations identical to those at 15th Street and City Hall Courtyard and it mandated that SEPTA provide elevator access to people with disabilities. The Sykes decision is binding for purposes of the 15th Street Entrance and the southeast City Hall Courtyard exit. Thus, unequivocally SEPTA should also be required to provide elevator access to people with disabilities at both the 15th Street Entrance and the southeast City Hall Courtyard.
5. SEPTA Violated The ADA By Not Making The Altered Entrances Accessible To The Maximum Extent Feasible
The ADA provides that it shall be considered discrimination for a public entity to “fail to make … alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of such alterations.” 42 U.S.C. § 12147(a) (emphasis added). The regulations specify that to the maximum extent feasible means that all changes that are possible must be made. 49 C.F.R. Part 37, App. D. A transit authority will only
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be excused in the “occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessibility standards through a planned alteration.” 49 C.F.R. § 37.43(b). SEPTA does not claim, nor can it claim, that it is impossible to make the 15th Street Entrance itself accessible to individuals with disabilities by installing an ADA-compliant elevator.
SEPTA may claim that it cannot provide direct access to 15th Street Station by installing one elevator at the 15th Street Entrance and that providing an elevator thus, would serve no useful purpose. However, this argument is irrelevant and misses the point. The ADA mandates that the altered portions of the station are readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12147(a)(emphasis added). In reference to the 15th Street Entrance, the installation of an elevator, which would provide access to persons in wheelchairs from street level to concourse level, is itself unequivocally feasible. SUF No. 52. The street level entrance is the part of the facility, i.e. the 15th Street Station, that the ADA requires that SEPTA make accessible, not necessarily the entire facility. This follows Congress’ goal that “over time, access will be the rule, rather than the exception.” H.R. REP. NO. 101-485, pt. 3, at 63 (1990). This is the purpose Congress had in mind when developing the alterations provisions of the ADA. Because there is no dispute that it was feasible to install an elevator at the 15th Street Entrance, the ADA mandated that SEPTA provide access to persons who use wheelchairs. SEPTA failed to do so.
Likewise, the ADA mandated that SEPTA provide access to persons who use wheelchairs when it altered the southeast City Hall Courtyard escalator, which is part of the City Hall Broad Street Subway Station, to the maximum extent feasible. It is feasible for SEPTA to install an elevator in the City Hall Courtyard near the renovated escalator. SUF No. 86. Again,
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because there is no barrier to installing an elevator near the renovated southeast City Hall Courtyard escalator providing access to the lower south concourse, the ADA mandated that SEPTA install such an elevator to provide access to persons who use wheelchairs.
It is undisputed that SEPTA made alterations to the 15th Street Market-Frankford Line Entrance and the southeast City Hall Courtyard Broad Street Subway Station exit. It is further undisputed that SEPTA did not install an elevator at the 15th Street Entrance or City Hall Courtyard southeast exit as part of the renovations, and thus, the entrances themselves cannot be used by individuals who use wheelchairs. These alterations unequivocally affected the usability of parts of existing stations/facilities and SEPTA failed to make the altered parts of those stations/facilities readily accessible to individuals with mobility disabilities, including those who use wheelchairs, in violation of the ADA and the Rehabilitation Act. SEPTA continues to discriminate against individuals with disabilities every day that the entrances are not made accessible. This illegal discrimination will only end when SEPTA makes the 15th Street Entrance and the southeast City Hall Courtyard Broad Street Subway exit readily accessible to and usable by individuals with mobility disabilities, including those in wheelchairs, to the maximum extent feasible.
D. Alternatively, SEPTA Violated the ADA By Failing To Make Its “Key Stations” of 15th Street Market-Frankford Line Station and City Hall Broad Street Subway Station Accessible To Individuals Who Use Wheelchairs
Title II of the ADA set forth a special rule for public entities regarding existing rapid rail and light rail key stations. In enacting the ADA in 1990, Congress mandated that public entities make “key stations” in rapid rail and light rail systems readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs by July 26, 1993, providing for extentions for stations requiring extraordinarily expensive structural changes. 42
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U.S.C. § 12147(b). Underlying this requirement is Congress’ recognition that, to achieve meaningful equal and civil rights for persons with disabilities, it is necessary to affirmatively mandate that public transportation providers must make their most important transportation stations accessible. Otherwise, persons with disabilities would always be second class citizens because they could not access the most important stations in the public transportation system.
The ADA explicitly provides that “key stations” should be determined according to “criteria established by the Secretary by regulation.” 42 U.S.C. § 12147(b). The DOT implementing regulation for the key station requirement provides that a public entity must identify key stations by taking into consideration the following criteria:
(1) Stations where passenger boardings exceed average station passenger boardings on a rail system by at least fifteen percent;
(2) Transfer stations on a rail line or between rail lines; (3) Major interchange points with other transportation modes, including stations
connecting with major parking facilities, bus terminals, intercity or commuter rail stations, passenger vessel terminals, or airports; (4) End stations; (5) Stations serving major activity centers, such as employment or government centers, institutions of higher education, hospitals or other major healthcare facilities, or other facilities that are major trip generators for individuals with disabilities. 49 C.F.R. § 37.47(b)(1)-(5). The 15th Street Market-Frankford Line Station and the City Hall Broad Street Subway Station are unequivocally the most used stations on their respective high speed rail lines as evidenced by SEPTA’s ridership census. SUF Nos. 20-28; 62; 69-76. According to ridership date, the 15th Street Station exceeds average station passenger boardings on the MarketFrankford Line by between 400 and 500 %, SUF Nos. 25 & 28, and City Hall Station exceeds
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average station ridership on the Broad Street Subway Line by between 350 and 400 %. SUF Nos. 72 & 75. These stations are located in the heart of Center City close to major government and business centers, healthcare facilities and entertainment venues. SUF Nos. 30-31. City Hall Station and 15th Street Stations are located directly adjacent to City Hall, the hub of Philadelphia government. SUF Nos. 15 & 55. City Hall is the center of Philadelphia municipal government, housing the Mayor’s office, City Council Chambers, the City Commissioners, and a variety of local governmental departments. SUF No. 64. City Hall also serves as the base of operations for the Philadelphia Court of Common Pleas, including housing numerous courtrooms for civil proceedings, the Complex Litigation Center, Orphan’s Court Administration, and Office of the Prothonotary. SUF No. 65. The 15th Street Station and City Hall Station are both major interchanges between both the Market-Frankford Line and the Broad Street Subway, as well as for the regional rail system, the high speed trolleys, and numerous bus routes.
The 15th Street Station and City Hall Station fit more of the regulatory criteria that SEPTA was mandated to consider in designating its key stations than any other stations in the entire SEPTA system. SEPTA’s own documents identified 15th Street Station and City Hall Station as meeting nearly all of the regulatory criteria. SUF Nos. 29 & 77. This is not a case where the stations fit only one of the criteria and it could still be arguable that the stations were not key stations for purposes of the ADA. Instead, these stations exceed average station ridership of their respective lines by substantially more than fifteen percent. These stations essentially serve as end stations as they are the main stations that residents from outlying areas of the city including West Philadelphia, North Philadelphia, Northeast Philadelphia, and South Philadelphia use to access Center City. Under the ADA federal regulatory criteria, the 15th Street Station and City Hall Station are unequivocally key stations and must be made accessible.
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The only argument SEPTA has proffered is that 15th Street Station and City Hall Station are not key stations because they were not included in the EPVA settlement agreement that was entered in 1989 – prior to enactment of the ADA and the key station mandate, and that a DOT regulation deemed that settlement agreement as complying with the ADA. 49 C.F.R. § 37.53. SEPTA’s argument fails for several reasons, including that the opposing party and counsel in the EPVA lawsuit testified that the stations chosen for the EPVA Settlement were based on costs. SUF No. 87. That is, SEPTA put a certain amount of money on the table and told EPVA they had to choose stations within the cost parameters. Id. EPVA decided on numerosity – not the ADA key station criteria. Id. City Hall Station and 15th Street Station were not included in that list due to cost concerns not because they were unimportant stations. Id. Similarly, SEPTA refuses to acknowledge that under the ADA key station criteria, both the City Hall Station and the 15th Street Station, as well as those stations listed in the settlement agreement, could be key stations. The federal regulation on which SEPTA relies merely acknowledges that those stations listed in the settlement agreement are “deemed” to comply, meaning that they are deemed to be “key stations.” Therefore, those stations had to be made accessible. The regulation does not mean, however, that other stations that were not put in the settlement agreement – because SEPTA in 1989 claimed that it had only a specific sum of money for the settlement agreement – but which unequivocally fit the ADA regulatory criteria for “key stations,” are not required to be identified as key stations pursuant to the federal regulatory criteria. Again, the 15th Street Station and City Hall Station fit nearly all of the regulatory criteria, are unequivocally key stations and must be made accessible.
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III. CONCLUSION For all the reasons set forth above, Plaintiff respectfully requests that the Court enter
summary judgment in favor of Plaintiff and against SEPTA, declare that SEPTA violated the ADA and Section 504, and order SEPTA to install elevators to make the 15th Street MarketFrankford Station Entrance and southeast City Hall Broad Street Subway Courtyard exit accessible or install elevators to make the entire 15th Street Station and City Hall Broad Street Subway Station accessible.
Respectfully submitted, //s// Rocco J. Iacullo _____________________________ ROCCO J. IACULLO, ESQUIRE Attorney Id. No. 86144 Disabilities Law Project The Philadelphia Building 1315 Walnut Street, Suite 400 Philadelphia, PA 19107 (215) 238-8070 STEPHEN GOLD, ESQUIRE Attorney Id. No. 09880 125 South Ninth Street, Suite. 700 Philadelphia, PA 19107 (215) 627-7100 Attorneys for Plaintiff DATED: April 5, 2006
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CERTIFICATE OF SERVICE I, Rocco J. Iacullo, Esquire, hereby certify that Plaintiff's Motion for Summary Judgment, including Statement of Undisputed Facts, Memorandum of Law in support of that Motion, and proposed Order have been filed electronically with the Court, and are available for viewing and downloading from the ECF system by the below counsel, who has consented to electronic service, and certified that true and correct copies of Plaintiff’s Exhibits to its Motion were served by first class mail, this 5th day of April, 2006, upon the below counsel:
Saul H. Krenzel, Esquire Saul H. Krenzel & Associates
The Robinson Building 42 S. 15th Street, Suite 800
Philadelphia, PA 19102
//s// Rocco J. Iacullo _____________________________ ROCCO J. IACULLO
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 Case 2:03-cv-01577-GP Document 130-2 Filed 04/05/2006 Page 1 of 53

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________________________________________________________

:

DISABLED IN ACTION OF

:

PENNSYLVANIA

:

CIVIL ACTION NO. 03-CV-1577

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY

:

:

DEFENDANT SEPTA’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
For the reasons more fully discussed below, SEPTA’s Motion for Summary Judgment
should be granted on Counts I and II of DIA’s Fourth Amended Complaint.

I. LEGAL STANDARD “In deciding a motion for summary judgment under Fed.R.Civ.P. 56(c), a court must
determine ‘whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.’” Gregory R. v. Penn Delco School District, 262 F.Supp.2d 488, 490 (E.D.Pa. 2003), citing Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (internal citation omitted).
The non-moving party “must, through affidavits, admissions, depositions, or other evidence, demonstrate that a genuine issue exists for trial.” Id. at 491 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “In making its showing, the non-moving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ [citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 586, 106 S.Ct. 1348 (1986)] and must produce more than a ‘mere scintilla of evidence in its favor’ to withstand summary judgment.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,

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106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “If the non-moving party fails to create ‘sufficient disagreement to require submission [of the evidence] to a jury,’ the moving party is entitled to judgment as a matter of law.” Id.
Application of these standards requires the grant of summary judgment in SEPTA’s favor. II. SUMMARY OF ARGUMENT
DIA filed a Fourth Amended Complaint against SEPTA on February 15, 2005 alleging violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”) and § 504 of the Rehabilitation Act of 1973. Count I alleges that SEPTA impermissibly altered the 15th Street Courtyard and City Hall Courtyard without providing wheelchair access. SEPTA moves the Court for summary judgment on Count I based on the statute of limitations, unclean hands, laches, and compliance with the alteration provisions of the ADA. Count II alleges that SEPTA’s City Hall Station and 15th Street Station are “key stations” and that SEPTA’s failure to make them wheelchair accessible violates the “key station” requirements of the ADA and § 504 of the Rehabilitation Act. SEPTA moves for summary judgment on Count II based on waiver, laches, the primacy of the applicable regulation, the absence of a private cause of action, res judicata and collateral estoppel. III. ARGUMENT - COUNT II
A. DIA’S KEY STATION CLAIM IS BARRED BY WAIVER DIA’s contention that City Hall Station and 15th Street Station are “key stations” is wholly dependent upon a direct challenge to ADA-implementing regulation 49 C.F.R. § 37.53. DIA has already waived its right to challenge that regulation, which incorporates the “key
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stations” listed in the EPVA v. Sykes Settlement Agreement (“Settlement Agreement”) and states that SEPTA has complied with the ADA’s key station designation requirements. As neither City Hall Station nor 15th Street Station were included in the Settlement Agreement, they are not “key stations” under the ADA.
A party who fails to object to a proposed regulation during the rulemaking process waives its right to challenge that regulation in a subsequent judicial proceeding. Having remained mute during the rulemaking process, DIA has waived entirely the right to challenge the straightforward language of 49 C.F.R. § 37.53. Because of that waiver, SEPTA is entitled to summary judgment on Count II.
This Circuit has held that “[g]enerally, federal appellate courts do not consider issues that have not been passed on by the agency ... whose action is being reviewed.” Southwestern Pennsylvania Growth Alliance v. Browner, 121 F.3d 106, 112 (3d Cir. 1997) (emphasis added) (internal citation omitted). In that case, the Third Circuit specifically rejected any effort to evade a party’s responsibility to challenge a proposed regulation during the rulemaking process, holding that “[w]e agree with the EPA that the petitioner may not raise this argument on appeal because this argument was not raised during the rulemaking process.” Id. at 106, 111, 112 (emphasis added). The Court noted that “[a]lthough appellate courts are certainly capable of addressing questions of statutory interpretation that were not raised during an agency’s rulemaking process, it is far more efficient for courts to face such questions only after they have been considered by the agency that Congress has charged with the primary responsibility for enforcing the complex statute in question.” Id. at 112 (emphasis added). See also Bicycle Trails Council of Marin v. Babbitt, 1994 WL 508892 at *3 (N.D.Cal. 1994); See also Marathon Oil Co. v. United States,
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807 F.2d 759, 767-768 (9th Cir. 1986) (noting that courts generally “will not consider issues not presented before administrative proceedings at the appropriate time.”).
The District of Columbia Circuit likewise invokes the doctrine of waiver to bar challenges to federal regulations when a party fails to challenge the regulation during the rulemaking process. See State of Ohio v. United States Environmental Protection Agency, 997 F.2d 1520, 1528 (D.C. Cir. 1993). That Court has noted that “[t]he doctrine promotes agency autonomy by according the agency an opportunity to discover and correct its own errors before judicial review occurs” and that “[j]udicial efficiency is served because issues that are raised before the agency might be resolved before that judicial intervention.” Id. at 1528, 1529 (citing McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969)).
DIA’s assertion that City Hall Station and 15th Street Station are “key stations” within the meaning of 42 U.S.C.A. § 12147(b) and 42 U.S.C.A. § 12162(e)(2) is a legally improper belated effort to challenge the validity and plain language of 49 C.F.R. § 37.53 in a judicial forum after having failed to assert any challenge during the regulatory rulemaking process. The intent of DIA’s “key station” claim is to override that regulation’s incorporation of the EPVA v. Sykes Settlement Agreement’s list of key stations which, by virtue of that list, deems SEPTA to be in compliance with the ADA’s “key station” designation obligations.
DIA’s end-run around the regulatory rulemaking process and usurpation of DOT’s ADAimplementing authority cannot be permitted. Fourteen years after the fact, DIA is challenging the unambiguous language of a regulation that was mandated by Congress, held out for public comment, promulgated by the DOT, and that has been relied upon in good faith by SEPTA in rendering its transportation system accessible to individuals with disabilities in compliance with
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the ADA. Now, after SEPTA has timely made nearly 90% of its “key stations” accessible to the disabled, DIA seeks to upend the rulemaking process and eviscerate 49 C.F.R. § 37.53 in order to compel SEPTA to effectively recommence the “key station” process. DIA has waived that claim and SEPTA is accordingly entitled to summary judgment on Count II.
B. DIA’S KEY STATION CLAIM IS BARRED BY LACHES SEPTA is also entitled to summary judgment because DIA’s Count II claim is barred by laches. A party must demonstrate two elements to support a laches defense: inexcusable delay in bringing suit and prejudice to the defendant as a result of the delay. Santana Products, Inc. v. Bobrick Washroom Equipment, Inc., 401 F.3d 123, 138 (3d Cir. 2005). Once the limitations period has expired, as here, the defendant “enjoys the benefit of a presumption of inexcusable delay and prejudice” and the plaintiff bears the burden of justifying its delay and demonstrating that the defendant has not been prejudiced. Id. at 138 (quoting EEOC v. The Great Atlantic & Pacific Tea Co., 735 F.2d 69, 80 (3d Cir. 1984)). DIA has inexcusably delayed filing suit by at least 12 years. Courts within this Circuit have found inexcusable delay in as little as 2 ½ years. Shiffler v. Schlesinger, 548 F.2d. 96, 103 (3d Cir. 1977). Obviously, longer time periods have supported findings of inexcusable delay. See Santana Products, Inc. v. Bobrick Washroom Equipment, Inc., 401 F.3d 123 at 138-140 (eight year delay was inexcusable).1
1 Elsewhere, the U.S. Court of Appeals for the District of Columbia has held that a 12 year delay in objecting to an administrative ruling is barred by laches. Independent Bankers Assoc. of America v. Heimann, 627 F.2d 486 (D.C. Cir. 1980). That Court stated that equity will not protect those who “through years of silence ha[ve] created an impression of acquiescence that has lead others to make substantial financial commitments.” Id. at 488. Similarly, the District Court for the District of Columbia granted summary judgment on laches grounds when a plaintiff waited 14 years to challenge the repeal of a regulation. Washington Hospital Center v. Heckler,
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A delay of three years in objecting to an administrative agency’s action has been deemed “untimely.” Energy Cooperative, Inc. v. Department of Energy, 659 F.2d 146 (Em.App. 1981). The court specifically cited the plaintiff’s failure to participate in the rulemaking process through comments and/or participation at a public hearing, which would have given the Department of Energy the opportunity to cure any alleged errors. Id. at 149-150.
To establish prejudice, a party raising laches must demonstrate that the delay caused a disadvantage in asserting and establishing a claimed right or defense. U.S. Fire Insurance Co. v. Asbestospray, Inc., 182 F.3d 201, 208 (3d Cir. 1999).2 The Third Circuit has placed particular weight on several factors. First, it is particularly disposed to find prejudice where a party seeking injunctive relief seeks to upset a long-established regulatory scheme. Shiffler v. Schlesinger, 548 F.2d 96 (3d Cir. 1977) (prejudice found if plaintiff permitted to upset agency determination that Environmental Impact Statement need not be prepared in conjunction with the realignment of a military installation). See also Energy Cooperative, Inc. v. Department of Energy, 659 F.2d 146 (Em.App. 1981) (prejudice found where plaintiff allowed to upset established regulatory scheme).
581 F.Supp. 195, 198-199 (D.D.C. 1984). The court specifically found that “the apparent acquiescence on the plaintiffs’ part, for which no justification is offered, belies any claim of ‘substantial impact.’” Id. at 198-199.
2 The Pennsylvania Superior Court has held that prejudice exists whenever there is some changed condition of the party which occurs during the period of, and in reliance on, the delay, such as where records have become lost or unavailable, witnesses die or cannot be located, and where the party asserting laches has changed his position in anticipation that a party will not pursue a particular claim. Miller v. Bistransky, 451 Pa.Super. 433, 437-438, 679 A.2d 1300, 1302 (1996).
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Second, the Third Circuit is particularly disposed to find prejudice where a party seeking an injunction seeks to disrupt a project that is in significant stages of completion. Shiffler v. Schlesinger, 548 F.2d at 104 (prejudice found where realignment of military installation is 85% completed). See also Mansfield Area Citizens Group v. United States, 413 F.Supp. 810, 824-826 (M.D.Pa. 1976) (prejudice found where most construction contracts had been awarded, foundations had been excavated, relocation of displaced persons was nearly complete, and reconstruction of highway was 91% completed).
Third, the Third Circuit is particularly disposed to find prejudice where a significant outlay of money already has been incurred with respect to a project sought to be altered through injunctive relief, or will be incurred as a result of injunctive relief that alters a project. Shiffler v. Schlesinger, 548 F.2d at 104 (cost to party invoking laches defense totaled $6.5 million). See also Mansfield Area Citizens Group v. United States, 413 F.Supp. at 824 (nearly half of project’s expected monetary outlay had occurred).
DIA has missed the relevant limitations period with respect to the Count II key station claims by its failure to object either to the EPVA v. Sykes Settlement Agreement or the promulgation of 49 C.F.R. § 37.53. The proper time for DIA to have objected to the key station designations was in July of 1989 when all Class members were invited to object to the Settlement Agreement. In regard to the promulgation of 49 C.F.R. § 37.53, as discussed above, DIA’s time to object came and went during the rulemaking process in 1991. See Southwestern Pennsylvania Growth Alliance v. Browner, 121 F.3d 106, 111-112 (3d Cir. 1997). Because DIA failed to object at either opportunity within the respective limitations periods, laches is presumed and
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DIA, as plaintiff, shoulders the burden to justify its delay and refute the presumption of prejudice.
By any objective measure, DIA has vastly exceeded the temporal limits for finding inexcusable delay, having long surpassed the two and a half year period in Shiffler v. Schlesinger. DIA alleged for the first time that City Hall Station was a key station on December 15, 2003 when it filed its Third Amended Complaint. DIA alleged for the first time that 15th Street Station was a key station when it filed its Fourth Amended Complaint on February 15, 2005. DIA thus contends that City Hall Station and 15th Street Station should be “key stations” 14 years after approval of the EPVA v. Sykes Settlement Agreement and 12 years after DOT issued 49 C.F.R. § 37.53. There can be no credible contention that DIA’s decade-plus delay is excusable under any facts of record.
Under prevailing Third Circuit case law and the factors deemed critical therein, SEPTA will plainly be prejudiced in the event that DIA’s request for injunctive relief on Count II is granted. First, DIA’s attempt to re-write the key station regulation found at 49 C.F.R. § 37.53 constitutes an effort to upset an established regulatory scheme relied upon for 14 years not only by SEPTA, but also by MTA in New York. See Shiffler v. Schlesinger, 548 F.2d 96 (3d Cir. 1977).
Second, SEPTA’s retrofitting of those key stations identified in the EPVA v. Sykes Settlement Agreement is already 89 % complete (31 of 35 key stations complete). Lister Affidavit, Exhibit “17” at ¶ 3. See Shiffler v. Schlesinger, 548 F.2d at 104 (prejudice found where project 85-90% complete). See also Mansfield Area Citizens Group v. United States, supra (prejudice found where construction project 91% complete).
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Third, the cost of the mandatory retrofitting of City Hall Station and 15th Street Station, should such stations now belatedly be designated as key stations, comes with a staggering price tag of $100 million. Heiser Affidavit, 3/14/06, Exhibit “23” at ¶ 10.
Fourth, not only has SEPTA renovated key stations in reliance on the legal validity of the EPVA v. Sykes Settlement Agreement and the implementing regulations set forth at 49 C.F.R. § 37.53, but it will be prejudiced in that it cannot defend this matter adequately as critical witnesses are now deceased or unavailable and records have been lost or are unavailable. See Miller v. Bistransky, 451 Pa.Super. 433, 437-438, 679 A.2d 1300, 1302 (1996). In particular, Harvey Bartle, III, SEPTA’s counsel in the negotiation and conclusion of the EPVA v. Sykes Settlement Agreement, is now the Chief Judge of this Court and has expressed that he has no specific recollection of the subject events. The Honorable Clarence Newcomer is now deceased. Other witnesses whose testimony is relevant are either deceased or no longer employed by SEPTA.
Moreover, because of the lapse of approximately 14 years, memories have faded and many relevant records have been destroyed. Indeed, DIA’s counsel, Stephen F. Gold, Esquire, claims to not be able to recall his involvement in events that were germane to the approval of the Settlement Agreement and the promulgation of 49 C.F.R. § 37.53, and both DIA and its counsel claim to be unable to find documents that are relevant to these events. DIA’s Amended Responses and Objections to SEPTA’s First Set of Requests for Admissions, Exhibit “3” at ¶¶ 6-12, 17-20, 34-36, 38-42, 44, 53-54, 56-66, 73, 76-78, 82-83, 90-93, and 95.
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All of the above reasons demonstrate that DIA has inexcusably delayed raising the key station claim set forth in Count II and that SEPTA will suffer prejudice should the requested injunctive relief be granted.
C. SEPTA IS IN FULL COMPLIANCE WITH THE ADA’S “KEY STATION” DESIGNATION REQUIREMENTS
SEPTA is also entitled to summary judgment on Count II because DOT has already determined that SEPTA is in full compliance with the ADA’s “key station” designation requirements as set forth in 49 CFR § 37.53.
The Supreme Court, in the seminal case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778 (1984), established a two step process for reviewing an agency’s construction of a statute which it administers. First, the court determines whether Congress clearly expressed its intent with respect to the precise issue at hand. If Congress clearly expressed its intent, the Court must give it effect. If Congress has not directly addressed the issue at hand and the statute is silent or ambiguous, the court must determine whether the agency’s construction of the statute is permissible. Id., 467 U.S. at 842-43, 104 S.Ct. at 2781-82. Second, if Congress explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Id. 104 S.Ct. at 2782. Such legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute. Id., 104 S.Ct. at 2782.
DOT’s promulgation of 49 C.F.R. § 37.53 satisfies each of the Chevron criteria. With respect to the designation of key stations, 42 U.S.C.A. § 12147 presents an explicit gap for DOT to fill -- the establishment of key station criteria -- along with an express delegation to the agency to elucidate a specific provision of the statute by regulation. This delegation is made twice in 42
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U.S.C.A. § 12147, first relating generally to key stations, and second relating specifically to the timing of key station accessibility. Accordingly, these statutory provisions fit squarely into the Chevron analytic paradigm.
Because of Congress’ express delegation with respect to key stations, 49 C.F.R. § 37.53 is to be given controlling weight unless it is arbitrary, capricious, or manifestly contrary to the ADA. In the instant matter, DIA admits that 49 C.F.R. § 37.53 is not arbitrary, capricious, nor manifestly contrary to the statute. See Excerpt from DIA’s Response to SEPTA’s Contention Interrogatories, Exhibit “9” at ¶¶ 7-16. Even had DIA not made that admission, the ADA’s legislative history reflects that the regulation is not arbitrary, capricious or manifestly contrary to the statute.
Multiple committees of both the United States House of Representatives and Senate affirmed the understanding that the stations listed in the Settlement Agreement would satisfy the ADA’s requirement for key station identification and that such designations were to be recognized as complying with the ADA’s key station selection requirements. The Settlement Agreement, along with a similar settlement agreement in New York City, were the subject of discussions in committees debating the ADA. For instance, the Senate Committee on Labor and Human Resources specifically stated in its official report that “the settlement agreements recently reached in New York City ... and Philadelphia ... are in full compliance” with the ADA key station accessibility requirements and “these plans would satisfy the bill’s requirement for accessibility of key stations.” S. Rep. No. 101-116, 101st Cong., 1st Sess. at 56, 94 (1989). Additionally, The House Committee on Public Works and Transportation stated in its official report:
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The Committee finds special merit in local settlement agreements (such as those negotiated in New York and Philadelphia) regarding the identification of key stations, when they have been negotiated in good faith by public entities and representatives of the disability community. The Committee expects the criteria established by the Secretary to find that these local agreements fully meet the requirements of this subsection. H. Rep. No. 101-485 (I), 101st Cong., 2nd Sess. at 9 (1990) (emphasis added). See also H. Rep. No. 101-485(II), 101st Cong., 2nd Sess. at 96-97 (1990); H. Rep. No. 101-485 (IV), 101st Cong., 2nd Sess. at 52 (1990); H. Rep. No. 101-32, 101st Cong., 1st Sess. at 14 (1989). This detailed legislative history conclusively demonstrates that 49 C.F.R. §37.53 is consistent with Congressional intent and must be upheld pursuant to Chevron. To the extent that DIA intends to rely upon the testimony of James Weisman to “interpret” the ADA-implementing regulations, including 49 C.F.R. § 37.53, such reliance is flatly prohibited. Mr. Weisman was never employed by DOT, nor did he ever author any regulations. Weisman Deposition, Exhibit “63" at 282-283. He was a member of a Federal Advisory Committee that, by his own admission, had no decision making authority regarding promulgation of the ADA regulations. Id. at 78. Mr. Weisman’s membership on the Advisory Committee, which had no authority, does not render him competent to testify as to the meaning of regulations or the intentions of DOT or any other administrative agency. Mr. Weisman’s testimony interpreting 49 C.F.R. 37.53 and the alleged intentions of DOT in promulgating that regulation is not legally competent evidence and must be excluded. The Court is prohibited from disturbing an agency’s interpretation of its own regulations by extraneous testimony. Connecticut General Life Insurance Co. v. Commissioner of IRS, 177 F.3d 136, 143-145 (3rd Cir. 1999). In Connecticut General Life Insurance Co. , the Third Circuit rejected the affidavits of 2 Treasury Department officials regarding the meaning of a clause in a
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regulation. Id. at 145. The Court found that “reliance upon remembered details from officials who lacked the ultimate authority to issue any proposed regulation has little support in the law.” Id. (citing Western Air Lines, Inc. v. Board of Equalization, 480 U.S. 123, 107 S.Ct. 1038 (1987) and Armco, Inc. v. Commissioner, 87 T.C. 865, 867, 1986 WL 22040 (1986). If the statements of an agency’s former employees cannot be considered competent evidence in interpreting a regulation, then the extraneous statements of Mr. Weisman, who was never employed by DOT, regarding the meaning of the DOT regulations on key stations or the intent of DOT in promulgating the regulations certainly would be prohibited as evidence.
The Third Circuit recently reaffirmed the rule that in reviewing a federal regulation, a court can rely only on the administrative record and not on any additional evidence. NVE, Inc. v. Department of Health and Human Services, 436 F.3d 182, 189, 195, 197 (3d Cir. 2006). In NVE, Inc., the plaintiff sought to present extraneous expert testimony to challenge a regulation. In precluding that testimony, the Third Circuit held that review must be limited to the administrative record as the agency had considered the issues raised in the suit during the rulemaking process. Id. The court quoted its previous decision in Grant v. Shalala, 989 F.2d 1332, 1344 (3d Cir. 1993), stating that “attempts to prove the thought and decision making processes of judges and administrators are generally improper.” Id. at 195.
The decision in NVE, Inc is directly applicable to the instant matter. Mr. Weisman’s opinions regarding what SEPTA stations should be considered key stations is inadmissable under NVE, Inc because the issue of SEPTA’s key stations obligations under the ADA was already considered by DOT during its rule-making process. DOT, in its discretion, decided to incorporate the Settlement Agreement into 49 C.F.R. 37.53 and that decision must stand as it is
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supported by legislative history and the intent of Congress. Furthermore, Mr. Weisman’s testimony regarding DOT’s intentions and/or decision making process is equally inadmissable under both NVE, Inc. and Grant as any such testimony impermissibly probes the thought and decision making process of DOT, which is reflected in the Notice of Proposed Rulemaking and the Final Rule and cannot be contradicted by other evidence.
D. NO PRIVATE CAUSE OF ACTION EXISTS TO HAVE A STATION DESIGNATED AS A “KEY STATION” OR TO HAVE A STATION COMPLETED WITHIN A SPECIFIC TIME FRAME
DIA asks this Court to designate City Hall Station and the 15th Street Station as key stations or, alternatively, to order SEPTA to provide wheelchair access to these stations by a date certain. Such relief cannot be granted because the relevant statute and regulations do not provide a private cause of action with respect to key station designations or with respect to requiring completion of any station by a specific date. SEPTA accordingly is entitled to summary judgment with respect to Count II.
In Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), the Supreme Court held that for a private cause of action to exist, a statute must manifest Congress’ intent to create (1) a private right and (2) a private remedy. Id., 532 U.S. at 285-88, 121 S.Ct. at 1519-20.
First, a court must look to the statutory text for explicit “rights-creating” language. Id., 532 U.S. at 288-89, 121 S.Ct. at 1521; Gonzaga University v. Doe, 536 U.S. 273, 279-87, 122 S.Ct. 2268, 2273-77, 153 L.Ed.2d 309 (2002); Cannon v. University of Chicago, 441 U.S. 677, 693, n. 13, 99 S.Ct. 1946, 1953, n.13, 60 L.Ed.2d 580 (1979). Statutory language must explicitly confer a right directly on a class of persons that includes a plaintiff or that identifies the class for
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whose benefit the legislation was enacted. Id., 441 U.S. at 689, n.9, 99 S.Ct. at 1953 n. 9.3 Second, a court may determine if there is an enforcement mechanism. Sandoval, 532 U.S. at 289-291, 121 S.Ct. at 1521-22. Third, if statutory text and structure have not resolved whether a private cause of action exists, legislative history may have to be considered. See Cannon, 441 U.S. at 694, 99 S.Ct. at 1956 (legislative history of a statute that is itself unclear will typically be silent on the question). If the examination of the statute’s text, structure, and history does not yield the conclusion that Congress intended to confer a private right and a private remedy, Sandoval instructs that such a right may not be created or conferred by regulations promulgated to interpret and enforce it. Sandoval, 532 U.S. at 291, 121 S.Ct. at 1522 (internal citation omitted).
No language exists in the ADA or its implementing regulations which creates a private right or a private remedy pertaining to key stations generally, or specifically with respect to those of SEPTA and New York’s MTA. Neither the ADA nor its implementing regulations create personal rights in DIA or any plaintiff to have a station designated as a key station or any capacity to have a station completed by a certain date. Instead, the designation of key stations was left solely to the discretion of the transit operator, not to the FTA and not to any private parties.
The statutory framework which places the designation of key stations in the hands of the transit operators and which accepted the EPVA v. Sykes key station designation undermines any claim of Congressional intent to create a private right of action to create key stations. Moreover,
3 Statutes that focus on the person regulated rather than on individuals protected create no implication of an intent to confer rights. Sandoval, 532 U.S. at 289, 121 S.Ct. at 1521.
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the statute and regulations pertaining to a key station do not focus on the individual but rather put in motion a systemwide requirement on the transit operators. There is no language to suggest a personal right of action. See Sandoval, supra; Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 1360, 137 L.Ed.2d 569 (1997).
In addition, neither the ADA nor its implementing regulations provide a mechanism by which any individual or entity, including the FTA, can challenge a transit authority’s key station designations and timetable.
Because the statutory and regulatory scheme fails to establish any private rights or enforcement mechanisms which would create a private cause of action, it is not necessary under Sandoval to examine the legislative history to determine Congressional intent. The legislative history nevertheless establishes that Congress fully intended the key station list from the EPVA v. Sykes Settlement Agreement to satisfy SEPTA’s key station requirements, and did not intend to subject SEPTA to a key station provision that would allow for a private cause of action to have particular stations designated as key stations or to require completion by a date certain. See S. Rep. No. 101-116, 101st Cong., 1st Sess. at 56, 94 (1989); H. Rep. No. 101-485 (I), 101st Cong., 2nd Sess. at 9 (1990); H. Rep. No. 101-485(II), 101st Cong., 2nd Sess. at 96-97 (1990); H. Rep. No. 101-485 (IV), 101st Cong., 2nd Sess. at 52 (1990).
E. RES JUDICATA BARS DIA’S COUNT II CLAIM Both res judicata and collateral estoppel bar DIA’s Count II claim that SEPTA’s failure to make City Hall Station and 15th Station wheelchair accessible violates the “key station” requirements of the ADA and the Rehabilitation Act.
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The Third Circuit succinctly characterized collateral estoppel and res judicata in Parkview Associates v. City of Lebanon, 225 F.3d 321 (3d Cir. 2000).
Issue preclusion, otherwise known as collateral estoppel, bars re-litigation of an issue identical to that in a prior action. Claim preclusion, otherwise known as res judicata, prohibits reexamination not only of matters actually decided in the prior case, but also those that the parties might have, but did not, assert in that action.
Id. at 328 (citing Bradley v. Pittsburgh Board of Education, 913 F.2d 1064, 1070 (3d Cir. 1990)). As set forth below, the EPVA v. Sykes Order and Judgment precludes DIA’s relitigation of the alleged key station status of City Hall Station and 15th Street Station under either res judicata or collateral estoppel jurisprudence.
In determining whether the suit before it should be barred by res judicata or collateral estoppel, federal courts look to the substantive law of the adjudicating state. O’Leary v. Liberty Mutual Insurance Company, 923 F.2d 1062, 1064 (3d Cir. 1991). Pennsylvania law holds that res judicata requires the “coalescence” of four factors:
Technical res judicata requires the coalescence of four factors: (1) identity of the thing sued upon or for; (2) identity of the causes of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. [citation omitted] Res judicata applies to claims that were actually litigated as well as those matters that should have been litigated. Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and new proceedings.
J.S. v. Bethlehem Area School District, 794 A.2d 936, 939 (Pa.Cmwlth. 2002), allocatur denied 572 Pa. 760, 818 A.2d 506 (2003).
The Third Circuit rightly refrains from a “mechanical application of the res judicata test,” but focuses instead “... on its ultimate purpose of requiring a plaintiff to present all claims arising out of the same occurrence in a single suit.” Williams v. Lehigh County Department of
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Corrections, 19 F.Supp.2d 409, 412 (E.D.Pa. 1998)(citing Board of Trustees v. Centra, 983 F.2d 495, 504 (3d. Cir. 1992)). Indeed, this District has prudently held that res judicata “will not be defeated by minor differences of form, parties or allegations” where the “controlling issues have been resolved in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.” Zhang v. Southeastern Financial Group, 980 F.Supp. 787, 794 (E.D.Pa. 1997) (quoting Helmig v. Rockwell Manufacturing Company, 389 Pa. 21, 131 A.2d 622, 626627, cert. denied 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed. 2d 44 (1957) (“Appellant would inevitably call the same witnesses and present exactly the same evidence in this second action. In such a situation this court must pierce the technical differences between the two actions, and ... find that beneath the camouflage net of the second action stands the first -- the identical action previously litigated to the fullest extent.”).
With respect to class actions like EPVA v. Sykes, a judgment generally binds class members in subsequent litigation. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 880, 104 S.Ct. 2794, 2801, 81 L.Ed. 718 (1984). Indeed, the Third Circuit has held that,
The very nature of a (b)(2) class is that it is homogeneous without any conflicting interest between the members of the class. Since the class is cohesive, its members would be bound either by the collateral estoppel or the stare decisis effect of a suit brought by an individual plaintiff. Thus, as long as the representation is adequate and faithful, there is no unfairness in giving res judicata effect to a judgment against all members of the class even if they have not received notice.
Wetzel v. Liberty Mutual, 508 F.2d 239, 256 (3d Cir. 1975). Accordingly, the Third Circuit has expressed a preference for giving class actions like EPVA v. Sykes “superior” res judicata effect where possible.
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Virtually every class action meeting the requirements of 23(b)(2) will also meet the less severe requirements of 23(b)(3). [citation omitted] If the actions are classified under (b)(3), members of the class could elect to opt out and thereby not be bound by the judgment. This would permit the institution of separate litigation and would defeat the fundamental objective of (b)(2), to bind the members of the class with one conclusive adjudication.
* * * We ... agree ... that an action maintainable under both (b)(2) and (b)(3) should be treated under (b)(2) to enjoy its superior res judicata effect ...
Id. at 252-253. Additionally, a judgment entered by consent or the agreement of the parties, as in EPVA
v. Sykes, is res judicata to the same extent as if entered after a contest. Allegheny International, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1429 (3d Cir. 1994) (fact that dismissal of earlier suit with prejudice was based upon the stipulation by the parties is irrelevant).
Consistent with the above, DIA’s effort to revisit the “key station” status of the City Hall and 15th Street Stations should be barred as all four factors of Pennsylvania’s res judicata test have “coalesced.” There is plainly an identity of the thing sued upon and for by both the EPVA Class and DIA. While EPVA sought wheelchair accessibility to all SEPTA rail stations which were then or would be inaccessible to the mobility-impaired (EPVA Amended Complaint, Exhibit “1” at ¶¶ 8, 43, Prayer For Relief), DIA seeks wheelchair access to City Hall and 15th Street Stations (DIA Fourth Amended Complaint, Exhibit “20” at ¶ 61, Prayer For Relief), a subset of the relief sought in EPVA v. Sykes.
The test for whether the causes of action are the same for res judicata purposes is: (1) whether the acts and the demand for relief are the same; (2) whether the theory of recovery is the
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same; (3) whether the witnesses and documents necessary at trial are the same; and (4) whether the material facts alleged are the same. United States v. Athalone Industries, 746 F.2d 977, 984 (3d Cir. 1984). As set forth above, there is an obvious identity between the alleged acts, material facts and demands for relief in the EPVA and DIA Complaints. Indeed, DIA admits that it is contending through the instant litigation that other stations existing at the time of the EPVA v. Sykes Settlement Agreement, which were not included therein by the agreement of those parties, are in fact key stations. DIA’s Amended Responses to Defendant SEPTA’s Contention Interrogatories, Exhibit “21”, No. 4. It further contends that the EPVA v. Sykes parties included as key stations in the Settlement Agreement certain stations which are not in fact key stations. Id. To that end, DIA’s proposed witnesses are to testify regarding the alleged key station characteristics of 15th Street Station and City Hall Station (DIA’s Responses to SEPTA’s First Set of Interrogatories, Exhibit “22,” No. 9), testimony which would have been presented of necessity had EPVA v. Sykes been tried.
The DIA and EPVA theories of recovery are likewise the same. EPVA’s causes of action were pursuant to Section 504 of the Rehabilitation Act of 1973, and certain other statutes. EPVA Amended Complaint, Exhibit “1” at ¶¶ 47-64. DIA’s Fourth Amended Complaint also seeks relief premised on Section 504 of the Rehabilitation Act of 1973, but also asserts causes of action under the ADA and DOT regulations implementing same. DIA’s Fourth Amended Complaint, Exhibit “20”.
While the ADA didn’t take effect until one year after Judge Newcomer’s approval of the EPVA v. Sykes Settlement Agreement, any assertion by DIA that the ADA has created a “key station” claim where none existed before constitutes the elevation of form over substance
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rejected in Zhang, supra. The fact remains that those DOT regulations setting forth the criteria for key stations under the ADA are substantially identical to those corresponding 1979 key station regulations implementing the Rehabilitation Act of 1973. 49 C.F.R. §§ 37.47, 37.51, Exhibit “6;”; 49 C.F.R. §§ 27.87, 27.89, Exhibit “7.” Accordingly, the EPVA v. Sykes parties specifically incorporated DOT’s longstanding “key station” language into the Settlement Agreement and specifically identified each “key station” in the Notice of the settlement to the EPVA Class!4
Moreover, the issue was revisited in 1996 when Judge Newcomer approved substitutions for two key stations. While the ADA had been in effect for six years at that point, no ADAbased challenges to the ADA’s implementing regulations, the Settlement Agreement or its amendment were asserted, including by DIA or its members.
Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and new proceedings. J.S. v. Bethlehem Area School District, supra. The subject matter and ultimate issue in EPVA v. Sykes -- whether the mobility-impaired are entitled to wheelchair access to stations including 15th Street and City Hall Stations -- could hardly be more “the same” as those in the instant action.
There is likewise an identity of the parties to both EPVA v. Sykes and the instant litigation. In EPVA v. Sykes, Judge Newcomer defined the Fed.R.Civ.P. 23(b)(2) Class as “all mobility-handicapped persons living, working or traveling in the City and County of
4 E.g., “It is the purpose of this Agreement to further the process of making the mass transportation system ... serviced by SEPTA, accessible to the mobility-handicapped, by providing for the renovation of certain key stations ...” Settlement Agreement, Exhibit “2” at ¶ 1; “SEPTA has agreed to make certain key stations ... accessible to the mobility-handicapped ...” Notice to the Class, Zuckerman Affidavit, Exhibit “4”.
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Philadelphia, and in the Counties of Bucks, Chester, Delaware and Montgomery, Pennsylvania from any time to the present.” Exhibit “5.” DIA’s Fourth Amended Complaint asserts that it is an organization open to anyone who has a disability and, like EPVA, includes persons with mobility impairments (¶ 6); that its participants, like EPVA’s, “... use and want access to SEPTA’s Frankford-Market Elevated and Broad Street Subway Lines and to access them at the City Hall/15th Street entrances” (¶ 8); and, as did EPVA, seeks relief in the form of accessibility for “persons with disabilities” (Prayer for Relief, ¶ C). Exhibit “20.”
Of course, DIA admits that its membership on the date that the Settlement Agreement was initially approved included members of the Class certified by Judge Newcomer! DIA’s Amended Responses and Objections to SEPTA’s First Set of Requests for Admissions, Exhibit “3”, No. 32. Although notice of the proposed settlement was published to all mobilityhandicapped persons living, working or traveling in the City and County of Philadelphia and contiguous counties, and provided for any such person to object to the approval of the Settlement Agreement, neither DIA nor any of its members did so.
It is accordingly beyond dispute that the EPVA Class subsumed the same constituency as that which DIA purports to represent -- mobility-impaired disabled persons seeking wheelchair access to two SEPTA rail stations -- and the EPVA v. Sykes Order and Judgment Approving Settlement is entitled to the superior res judicata effect contemplated by F.R.C.P. 23(b) and this Circuit. See Wetzel v. Liberty Mutual, supra.
In addition to those factors set forth in the foregoing sections, Pennsylvania looks to the Restatement (Second) of Judgments, §§41 and 42 with respect to the binding effect of a judgment for or against a party who purports to represent another person. See Sica v. City of
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Philadelphia, 77 Pa.Cmwlth. 97, 465 A.2d 91, 98 (1983). A person who is not a party to an action, but who is represented by a party, is bound by the judgment as though he were a party. A person is represented by a party who is, “The representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member.” Restatement (Second) of Judgments, §41(1)(e). Such person is generally bound by the judgment against the party who purports to represent him unless any required notice wasn’t given; the subject matter of the action was not within the interest of the represented person; the party was divested of representative authority; there was a diversion of interest between the parties and the members of the class such that he could not fairly represent them; or the party failed to prosecute the action with due diligence and reasonable proof. Restatement (Second) of Judgments, §42(1).
None of those factors can fairly divide the EPVA Class and DIA. Notice of the proposed EPVA v. Sykes Settlement Agreement was provided to members of the class of mobilityhandicapped persons living, working, or traveling in Philadelphia and the surrounding counties. Making the mass transportation system in Philadelphia and the area serviced by SEPTA accessible to the mobility-handicapped was not only within the interest of EPVA, but one of its “chief concerns.”5 EPVA was never divested of its representative authority, which was in fact reaffirmed in 1996 when Judge Newcomer approved the amendment to the Settlement Agreement. Finally, EPVA unquestionably prosecuted the action with due diligence and reasonable proof. Indeed, after Hearings of which DIA members had notice and at which they
5 “Chief among [EPVA’s] concerns is that every individual who has a mobility impairment or inhibition due to disability ... lead as full and productive a life as practically possible in today’s society. To that end, they seek enforcement of existing laws and the vindication of the civil rights of all disabled persons pertaining to access for all persons to public transportation.” EPVA’s Amended Complaint, Exhibit “1” at ¶ 3(a).
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had a full opportunity to participate, Judge Newcomer found both the initial Settlement Agreement and the subsequent Amendment to be “fair, adequate and reasonable.” Exhibits “5”
and “19.” Res judicata is not to be defeated by minor differences of form where the controlling
issues have been resolved in the prior proceeding in which the present parties had an opportunity to appear and assert their rights. Zhang v. Southeastern Financial Group, supra. In light of all of the above, the Court’s holding in Valerio v. Boise Cascade Corp., 80 F.R.D. 626 (D.C. Cal. 1978), while a California case, forthrightly addresses the crux of DIA’s claim in the instant action.
In substance, if not in form, the gravamen of plaintiffs’ lawsuit is that the McCubbrey settlement was inadequate. There perhaps are many who, with the benefit of hindsight, might well agree with that position. In 1973, however, we were satisfied not only with the adequacy of the representation and notice given the class but also with the adequacy of the settlement. The plaintiffs could have challenged our conclusion in the Ninth Circuit Court of Appeal. They chose not to do so. They cannot now relitigate that issue behind a rhetorical smokescreen of fraud and conspiracy [the causes of action raised in the second action].
Id. at 658. DIA now endeavors to relitigate the exclusion of the 15th Street and City Hall Stations from the EPVA v. Sykes Settlement Agreement, yet has scarcely bothered even to create a “smokescreen” to mask its efforts.
F. COLLATERAL ESTOPPEL BARS DIA’S COUNT II CLAIM With respect to collateral estoppel, as with res judicata, the Third Circuit looks to the substantive law of the adjudicating state. O’Leary v. Liberty Mutual, supra. Pennsylvania follows the rule of collateral estoppel that when a court has determined the litigated cause on its merits, the judgment entered is final and conclusive between the parties and their privies with
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regard to every fact which might properly be considered in reaching the judicial determination, and with regard to all questions of law adjudicated as those facts and points of law relate to the cause of action. Schroeder v. Acceleration Life Insurance, 972 F.2d 41, 45 (3d Cir. 1992).
Collateral estoppel applies where: (1) the issue decided in the prior adjudication was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea was asserted was a party or in privity with the party to the prior adjudication;6 and (4) the party against whom it is asserted had a full and fair opportunity to litigate the issue in the prior action. Tran v. Metropolitan Life Insurance Company, 408 F.3d 130, 138 (3d Cir. 2005). In determining whether there are identical issues, the Court begins with an assessment as to whether the material facts are the same. Facchiano Construction Company v. U.S. Department of Labor, 987 F.2d 206, 212 (3d Cir. 1992).
As set forth above with respect to res judicata, the issue in the DIA claim is not only “in substance the same” as that decided in EPVA v. Sykes, but is in fact identical.7 There was a final judgment on the merits on July 28, 1989 when Judge Newcomer dismissed the EPVA Class action “with prejudice in accordance with the terms of the [Settlement] Agreement.” Exhibit
6 A privy includes one whose interests are represented by a party to the action. Restatement, Judgments, § 83, Comment A.; Lawlor v. National Screen Service, 349 U.S. 322, 330, 75 S.Ct. 865, 869 (1955).
7 To avoid collateral estoppel on the ground that there is no identity of the issues, the difference in the applicable legal standards must be “substantial.” Montana v. United States, 440 U.S. 147, 155, 99 S.Ct. 970, 974, 59, L.Ed. 2d 210 (1979) (the identity of issues requirement is fulfilled where the issues in the current case are “in substance the same” as those previously resolved); Raytech Corporation v. White, 54 F.3d 187, 191 (3d Cir. 1995). With respect to the criteria attendant to key stations, there is simply no substantial difference between the DOT regulations implementing the Rehabilitation Act of 1973 at the time of EPVA v. Sykes and those implementing the ADA now.
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“5.” DIA’s members were properly a part of the EPVA v. Sykes class of plaintiffs and, at a minimum, were privies whose interests were represented by EPVA. Finally, there was a full opportunity for DIA members to be heard and litigate the issue in that action. DIA is accordingly collaterally estopped with respect to its “key station” claim.
Collateral estoppel is used to protect the finality of judgments and to conserve judicial resources. Montrose Medical Group v. Bulger, 243 F.3d 773, 779 (3d Cir. 2001). It furthers the goals of reducing the costs of multiple lawsuits, facilitating judicial consistency and encouraging reliance on adjudications. Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 547 (3d Cir. 1996). There can hardly be a more wasteful expenditure of judicial resources, a greater invitation to judicial inconsistency, or greater discouragement to reliance on longstanding consent judgments than to relitigate the key station status of rail stations whose status was adjudicated 17 years ago. IV. ARGUMENT - COUNT I
A. DIA’S COUNT I CLAIM REGARDING THE 15TH STREET COURTYARD IS BARRED BY THE STATUTE OF LIMITATIONS
In Count I, DIA claims that SEPTA violated the ADA and Rehabilitation Act when it failed to install an elevator in the 15th Street Courtyard. That claim is barred by the statute of limitations.
DIA knew that SEPTA would not be installing an elevator at the 15th Street Courtyard as early as August 3, 2000, as evidenced by letters sent by DIA’s counsel to the Commissioner of the Department of License & Inspections and the City Solicitor’s Office. Gold Deposition, 11/4/05, Exhibit “24” at 33-34; letter from Gold to McLaughlin, Exhibit “25,” 8/3/00; letter from Gold to Winebrake, Exhibit “26,” 9/28/00. On November 14, 2000, DIA was put on
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notice by the City Solicitor’s Office that the City had issued a building permit for the project and that, if DIA intended to file suit to enjoin the project, it should do so in an expeditious manner. Letter from Pasour to Gold, Exhibit “27,” 11/14/00. DIA nevertheless failed to initiate this action until March 2003 and it is therefore barred by Pennsylvania’s two year statute of limitations.
The limitations period under Title II of the ADA and the Rehabilitation Act is the forum state's personal injury limitations period. Estrada v. Trager, 2002 WL 31053819 (E.D.Pa. 2002). In Pennsylvania, that limitations period is two years. 42 Pa.C.S. § 5524(7). Menamin v. City of Philadelphia, 2000 U.S. Dist. LEXIS 9040 (E.D.Pa. 2000).
Federal law determines when a federal claim accrues. Antonioli v. Lehigh Coal & Navigation Co., 451 F.2d 1171, 1175 (3d Cir. 1971), cert. denied, 406 U.S. 906, 31 L.Ed.2d 816, 92 S.Ct. 1608 (1972). Under the ADA, a cause of action accrues, and the statute of limitations begins to run, when a plaintiff knows or has reason to know of the injury which forms the basis for his action. Burkhart v. Widener University, 70 Fed.Appx. 52 (3d Cir. 2003). In a discrimination action the focus is upon “the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504 (1980). In Ricks, a plaintiff was advised that he would not be granted tenure. The Court held that the cause of action accrued on the date that tenure was denied, not his last day of work. Id.; See also Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29 (1981). Both the Third Circuit and the Eastern District have uniformly applied the Ricks and Chardon holdings to actions arising under the ADA. See, e.g., Burkhart, 70 Fed.Appx. 52 (3d Cir. 2003); Saylor v. Ridge, 989 F.Supp. 680, 686 (E.D.Pa. 1998). That the initial discriminatory
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act, not the subsequent effect, starts the running of the statute of limitations is also supported by multiple recent cases in this District. E.g., Saylor, 989 F.Supp. at 686; Sessa v. Sears, 2004 WL 2203743 (E.D.Pa. 2004).
Here, DIA’s counsel and its Executive Director acknowledged being on notice, in Gold’s August 3, 2000 letter to the City’s Department of License & Inspections, that SEPTA’s plans did not include an elevator in the 15th Street Courtyard. Exhibit “24” at 12-16; 33-34; Exhibit “25”; Salandra Deposition, 11/4/05, Exhibit “28” at 42-43, 45, 48. Thus, the alleged “discriminatory act” occurred, and the cause of action accrued, on August 3, 2000.8 Because DIA failed to file suit until March 14, 2003, its claim is time-barred by the two-year statute of limitations.
To the extent that DIA might argue that the discriminatory act occurred when the 15th Street Courtyard was re-opened and a wheelchair-bound individual could not then access it because of the lack of an elevator, its request for relief based on an alleged continuing violation has no legal support, either under Chardon v. Fernandez or under Third Circuit decisions. In Chardon, the Supreme Court held that the discriminatory act occurred, and thus the statute began to run, when the plaintiff learned that he was being terminated from his job, not when he stopped working. Id., 454 U.S. at 8, 102 S.Ct. at 29. Applying the Chardon analysis, the statute of limitations began to run when DIA became aware that SEPTA would be renovating the 15th Street Courtyard without adding an elevator. The alleged lack of accessibility to the Courtyard
8 Even to the extent that DIA argues that SEPTA’s plans were contingent in August 2000, its cause of action accrued no later than November 14, 2000, when its counsel received a letter from the City Solicitor’s Office advising that a building permit had been issued and that, if DIA intended to file suit, it should do so expeditiously.
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would merely be an “effect” of that allegedly discriminatory decision not to build an elevator, not the discriminatory act itself.
The Third Circuit has held that the focus of a continuing violations theory is on the affirmative acts by the defendant. Cowell v. Palmer Township, 263 F.3d 286 (3d Cir. 2001). In Cowell, the Court emphasized that “[a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.” Id. at 293 (quoting Ocean Acres, Ltd. v. Dare County Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983) (emphasis added)). The statute of limitations under the ADA begins to run once the plaintiff realizes that he will be victimized by the defendant’s discriminatory action. Saylor v. Ridge, 989 F.Supp. 680, 686 (E.D.Pa. 1998). Where the continuing violation doctrine applies, the illegal practice complained of has materialized or become cognizable as such only over time. Estrada v. Trager, 2002 WL 31053819 (E.D.Pa. 2002) (doctor’s refusal to provide interpreter to deaf patient a discrete discriminatory act, not an illegal practice that would constitute a continuing violation).
In the instant matter, it is undisputed that the potential discriminatory impact was apparent to DIA when it learned that SEPTA would not be building an elevator at the 15th Street Courtyard. DIA’s counsel stated in his letter to the City Solicitor that he considered SEPTA’s actions to be discriminatory and that he was contemplating legal action. See Exhibits “25” and “26”. There were no alleged additional “continual unlawful acts” once SEPTA decided not to build an elevator at the 15th Street Courtyard. The alleged ill effects of the decision occurred when disabled riders were unable to access the 15th Street Courtyard. As there were no additional “continual acts,” there is no continuing violation under Cowell.
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Once DIA became aware of the allegedly discriminatory nature of the construction of the 15th Street Courtyard, it had a legal duty to institute suit without delay or forfeit its remedy. Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986); See also Cowell, 263 F.3d at 295. If this Court were to find that the lack of an elevator in the 15th Street Courtyard constitutes a continuing violation, it would render the ADA’s time limitations meaningless as there would be no time constraint on a plaintiff’s ability to institute suit. Kichline, 800 F.2d at 360. See also Community Interactions - Bucks Co. v. Township of Bensalem, 1994 WL 276476 at *6 (E.D.Pa. 1994).
Accordingly, DIA’s claim regarding the inaccessibility of the 15th Street Courtyard is barred by the statute of limitations.
B. DIA’S CLAIM REGARDING THE INACCESSIBILITY OF THE 15TH STREET COURTYARD IS BARRED BY LACHES
DIA’s claim regarding the inaccessibility of the 15th Street Courtyard is also barred by laches, which occurs when there is an inexcusable delay in bringing suit resulting in prejudice to the defendant. Santana Products, Inc. v. Bobrick Washroom Equipment, Inc., 401 F.3d 123, 138 (3d Cir. 2005). Where, as here, the statute of limitations has expired, the defendant “enjoys the benefit of a presumption of inexcusable delay and prejudice.” Id. (quoting EEOC v. The Great Atlantic & Pacific Tea Co., 735 F.2d 69, 80 (3d Cir. 1984)). See argument section III, B, supra, regarding laches.
DIA must justify its delay and negate prejudice by showing that its delay was excusable. Id. at 139-140. Here, the delay occurred because of DIA’s counsel’s belief that DIA would gain a tactical advantage over SEPTA by delaying suit. Gold Deposition, 11/4/05, “Exhibit “24” at
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39. That delay is not excusable and DIA cannot negate the prejudice suffered by SEPTA as a result thereof.
Mansfield Area Citizens Group v. United States, 413 F.Supp. 810 (M.D.Pa. 1976), is directly on point. There, the Court held that the plaintiff unreasonably delayed suit where construction had been ongoing for years and public meetings, discussions with elected officials, newspaper articles and display models brought the construction of a dam to the attention of the public. Id. at 824. In ruling that laches barred the plaintiff’s injunction request, the Court held that the defendant would be substantially harmed because it had already incurred half of the projected costs, substantial work on the project had been completed, and contracts for future work were already awarded. Id.
A finding of laches is more compelling here than in Mansfield, where the plaintiff had at least filed suit while construction was in progress and the defendant had only incurred half of the projected costs. Here, despite its knowledge as of August 2000 of SEPTA’s construction work, DIA delayed filing suit until after the 15th Street Courtyard construction was completed. 9
Requiring additional construction on the 15th Street Courtyard after the project’s completion will require the expenditure of yet additional funds which have not been budgeted and cause additional inconvenience to the public as a result of the new construction. Heiser Affidavit, Exhibit “23” at ¶¶ 8-9. All of this could have been avoided had DIA timely filed its Complaint. As it inexcusably failed to do so, DIA is barred by laches from proceeding.
9 The construction of the 15th Street Courtyard began in February 2001. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 39. The 15th Street Courtyard was opened to the public on August 8, 2002. Heiser Affidavit, 3/14/06, Exhibit “23” at ¶ 7.
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C. DIA’S CLAIM REGARDING THE INACCESSIBILITY OF THE 15TH STREET COURTYARD IS BARRED BY ITS “UNCLEAN HANDS”
DIA’s counsel testified that he delayed filing suit to gain a tactical advantage over SEPTA. Exhibit “S” at 39. Unfortunately for DIA, it is well settled that one who seeks equity must do so with clean hands. Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 244-5, 54 S.Ct. 146, 147 (1933). “[C]lean hands” means good faith. Id. A party has unclean hands when (1) it is seeking affirmative relief; (2) is guilty of conduct involving fraud, deceit, unconscionability, or bad faith; (3) that is directly related to the matter in issue; (4) that injures the other party; and (5) affects the balance of equities between the litigants. Imprisoned Citizens Union v. Shapp, 11 F.Supp.2d 586, 608 (E.D.Pa. 1998). Inequitable conduct connected to the matters before the court for resolution is the primary focus. In re New Valley Corp. v. Corp. Property Associates 2 and 3, 181 F.3d 517, 525 (3d Cir. 1999).
Mr. Gold’s testimony that, “if they didn’t proceed there would be no elevator,” so he decided, “after giving it significant thought and consideration to let [SEPTA] sit in their own petard,” reflects DIA’s bad faith and constitutes unclean hands. In Carney v. School District of Philadelphia, 633 F.Supp. 1273, 1285 (E.D.Pa. 1986), this Court stated that “[w]hat is material is not that the plaintiff’s hands are dirty, but that he dirtied them in acquiring the right he now asserts.” DIA “dirtied” its hands by deliberately failing to act in a timely manner and allowing construction to be completed in the 15th Street Courtyard before filing suit.
As discussed in the previous section, additional construction at this late stage would require the expenditure of additional funds by SEPTA and inconvenience to the public, which could have been avoided had DIA timely filed suit. Exhibit “23” at ¶¶ 8-9. DIA should not now be allowed to benefit from its own bad faith.
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D. A COURT-APPROVED STIPULATION PRECLUDES THE EQUITABLE TOLLING OF THE STATUTE OF LIMITATIONS
DIA has previously asserted that its claim regarding the 15th Street Courtyard is not timebarred because the limitation period was equitably tolled by SEPTA’s alleged representation that alternate elevators at City Hall would be constructed in exchange for DIA not initiating a lawsuit over the 15th Street Courtyard. Plaintiff’s Reply In Support of Its Motion for Partial Summary Judgment, 5/23/05, Exhibit “30” at ¶¶ 4-5. That assertion must be rejected.
A Court-approved Stipulation bars DIA from presenting any claim that SEPTA agreed to construct elevators at City Hall in lieu of an elevator in the 15th Street Courtyard. Docket #36, Order of the Honorable Clifford Scott Green, 7/20/04. The Stipulation stated:
Plaintiff is hereby precluded from presenting any claim that Defendant SEPTA allegedly agreed to construct elevators at City Hall in lieu of construction of an elevator at the northwest corner of 15th and Market Streets or that SEPTA is liable for failing to abide by any such alleged agreement at trial or in any hearing or in any other proceeding; said claims are hereby dismissed with prejudice. Id. (emphasis added). This Court specifically ordered DIA to excise all allegations relating to the alleged agreement and to file a Fourth Amended Complaint without the stricken allegations. Docket #70, Order of the Honorable Gene E.K. Pratter, 12/23/04. Undeterred by this Court’s Order, DIA maintains that the Stipulation does not preclude it from introducing evidence of such a promise to defeat the statute of limitations. Exhibit “30” at 4. DIA’s argument is belied by the plain language of the Stipulation which precludes it from presenting any claim that SEPTA agreed to construct elevators at City Hall in lieu of an elevator at 15th and Market Streets or any claim that SEPTA is liable for failing to abide by any such
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alleged agreement, and dismisses such claims with prejudice. DIA cannot now resurrect these same claims in an effort to toll the statute of limitations.
Even assuming arguendo that the Stipulation does not bar DIA from asserting that the limitations period was equitably tolled, it cannot proceed with this claim. Equitable tolling applies only: 1) where the defendant has actively misled the plaintiff respecting the plaintiff’s cause of action; 2) where the plaintiff in some extraordinary way has been prevented from asserting his rights; or 3) where the plaintiff has timely asserted his rights mistakenly in the wrong forum. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994).
If a plaintiff asserts that it has been actively misled, it must show that the defendant engaged in affirmative acts of concealment with respect to the relevant facts and that plaintiff exercised reasonable diligence to uncover the relevant facts. Forbes v. Eagleson, 228 F.3d 471, 487 (3d Cir. 2000). The statute of limitations should not be equitably tolled here because SEPTA did not engage in a single act of affirmative concealment to mislead DIA and DIA failed to exercise reasonable diligence in seeking to uncover the relevant facts.
In an effort to show that they were misled, DIA will apparently rely on an alleged representation by Fran Egan, SEPTA’s former Assistant General Manager for Public, Government and Customer Affairs, that elevators at City Hall would be built by a certain date. Exhibit “24” at 14, 16-22, 24. Even if those representations were made -- SEPTA denies that they were and Ms. Egan is now deceased -- she had no authority, actual or apparent, to make them. Ms. Egan’s job duties involved developing political and public support for SEPTA and building and maintaining relationships with government and community groups within the five county region. Torres Affidavit, Exhibit “31” at ¶ 4. Ms. Egan had no input into how SEPTA’s
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Capital Budget was developed or what funding was assigned to particular Capital Projects. Id. at ¶ 6. She had no decision-making or advocacy role regarding whether a particular Capital Project was funded, nor did she have any authority to commit funding to a Capital Project. Id.
SEPTA is not bound by any of Ms. Egan’s alleged statements to DIA as Egan had no authority to commit to a timetable for the City Hall elevators or commit funds for this project. Id.; Burnfield Affidavit, Exhibit “32” at ¶ 18. Only SEPTA’s Board of Directors has the statutory authority to approve a multi-million dollar expenditure such as the installation of elevators at City Hall. 74 Pa.C.S.A. § 1751(a); Burnfield Affidavit, Exhibit “32” at ¶ 18. Thus, any representations made by her were not binding upon SEPTA.
Not only did Ms. Egan lack the legal authority to bind SEPTA, not even SEPTA’s General Manager has such authority. Wilson v. SEPTA, 709 F.Supp. 623, 626 (E.D.Pa. 1989)(a written promise of a promotion signed by SEPTA’s General Manager and Board Chairman was ultra vires and void because only the Board as a whole has the authority to make such a decision).
Even were DIA to contend that Ms. Egan had apparent authority to make the alleged representation, the Commonwealth and its subdivisions and instrumentalities cannot be estopped by “acts of its agents and employees if those acts are outside the agent’s powers, in violation of positive law, or acts which require legislative or executive action.” Central Storage & Transfer Co v. Kaplan, 487 Pa. 485, 489, 410 A.2d 292, 294 (1979) (quoting Kellams v. Public Sch. Emp. Retirement Bd., 486 Pa. 95, 403 A.2d 1315, 1318 (1979). As a result, persons contracting with agents cannot rely on an agent’s representation unless the agent has actual authority to bind the agency. Id. at 489, 410 A.2d at 294. This is particularly true where, as here, the authority of
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SEPTA is defined by statute and is therefore a matter of public record. Id.; In the Matter of the Estate of Van B. Hooper, 359 F.2d 569, 577-8 (3d Cir. 1966).
Further, DIA cannot demonstrate that it was actively misled by SEPTA or that it exercised due diligence in seeking to uncover relevant facts about the status of the City Hall elevators, both of which are necessary to invoke equitable tolling. See Oshiver, 38 F.3d at 1390. DIA did not inquire about Ms. Egan’s authority. Both its counsel and Executive Director testified that following their “acceptance” of Ms. Egan’s alleged promise, they did nothing to confirm that elevators at City Hall would be built by the end of 2002. Exhibit “24” at 22, 24, 25, 28-29; Exhibit “28" at 32.
On the contrary, DIA was on notice that construction would not be finished by the allegedly promised completion date by virtue of SEPTA’s public documents and hearings confirming same. DIA’s Executive Director testified that she reviews SEPTA’s Capital Budget every year. Exhibit “28” at 30-31. Although the City Hall Station Rehabilitation Project, which would include the elevators, was funded for $4,000,000 for design only in the Capital Budget for Fiscal Year 2001, it was not funded in SEPTA’s Capital Budget for Fiscal Year 2002, nor listed as one of SEPTA’s Capital Projects for Fiscal Years 2002-2005. Exhibit “16” at SEP 21472149. At least as of June 21, 2001, the date that the Capital Budget for Fiscal Year 2002 was approved by the Board, DIA knew or should have known that City Hall elevators would not be completed by the end of 2002. DIA nevertheless failed to file suit at that time, when it would have been well within the statute of limitations.
Furthermore, DIA was free to attend annual public hearings on SEPTA’s proposed Capital Budgets and question both Ms. Egan’s authority and the status of City Hall. Burnfield
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Affidavit, Exhibit “32.” at ¶14. However, the sign-in sheets for the public hearings on the Capital Budgets for Fiscal Years 2001, 2002 and 2003 reveal that neither DIA’s counsel nor its Executive Director attended those hearings. See Exhibit “33” at SEP 9138-9140; 9436-9446; 9497; 9906-9915; 10308-10318.
Considering the wealth of information readily available to DIA to ascertain both Ms. Egan’s lack of authority and the status of the City Hall elevators, any argument that SEPTA actively misled DIA is disingenuous.10 Consequently, DIA has failed to establish that the statute of limitations was equitably tolled by SEPTA’s conduct and its claim is accordingly time-barred.
E. DIA’S CLAIM REGARDING THE REPLACEMENT OF AN ESCALATOR IN THE SOUTHEAST PORTION OF CITY HALL COURTYARD IS BARRED BY THE STATUTE OF LIMITATIONS
DIA’s Count I claim that SEPTA impermissibly altered an escalator in the southeast portion of City Hall Courtyard without providing an elevator is also barred by the two-year statute of limitations.
DIA’s Executive Director testified that DIA became aware of the City Hall Courtyard construction when the barricades went up on June 1, 2001. Exhibit “28” at 61-62, 64. Furthermore, the project was identified and funded in SEPTA’s Capital Budget in Fiscal Year 2001 and discussed at the public hearing on the Capital Budget for Fiscal Year 2001. See SEPTA’s Capital Budget and Capital Program for Fiscal Year 2001, Exhibit “16” at SEP 2047; Transcripts from SEPTA Public Hearings, Exhibit “33” at SEPT 9069-70; Burnfield Affidavit,
10 Since the proposed changes in the 15th Street Courtyard were also known to DIA, it was not “in some extraordinary” way prevented from asserting its rights under the second exception of the equitable tolling doctrine. In fact, DIA was encouraged to pursue a remedy by the City Solicitor’s November 14, 2000 letter. The third exception also does not apply to DIA as it did not mistakenly file in the wrong forum.
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Exhibit “32” at ¶¶ 19, 20. Since DIA’s Executive Director testified that she reviewed SEPTA’s Capital Budget every year, DIA was on notice from the Capital Budget that SEPTA was replacing an escalator in the City Hall Courtyard. Exhibit “28” at 30-31.
Under Ricks and Chardon, the discriminatory act occurred, and the cause of action accrued, in June 2001 when DIA became aware of the construction in the Courtyard. DIA nevertheless failed to file its claim regarding the escalator replacement until over three and a half years later when it amended its Complaint for the fourth time in February 2005.
To the extent that DIA argues that it was unaware, until the barriers came down, than an elevator would not be constructed, it had an affirmative duty to exercise reasonable diligence to ascertain the relevant facts. Forbes v. Eagleson, 228 F.3d at 487. As discussed previously, DIA’s agents failed to attend public hearings on the Capital Budget. Had they attended the hearing on the Capital Budget for Fiscal Year 2001, they would have known that the construction in the City Hall Courtyard would be confined to an escalator replacement. Furthermore, had DIA simply read the sign on the barriers, it would have discovered that there was no elevator construction taking place behind those barriers. Moreover, DIA’s Executive Director testified that when DIA became aware of the construction, it did not designate anyone to determine if an elevator would be included. Exhibit “28” at 63. Alleged assumptions on DIA’s part are not enough to toll the statute of limitations. Oshiver, 38 F.3d at 1392.
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Under Oshiver, equitable tolling does not apply as SEPTA did not mislead DIA regarding construction at the City Hall Courtyard. 11 DIA failed to exercise due diligence in ascertaining the facts there and cannot be allowed to proceed. Id.
F. DIA’S CLAIM REGARDING THE REPLACEMENT OF AN ESCALATOR IN THE SOUTHEAST PORTION OF CITY HALL COURTYARD IS BARRED BY LACHES
DIA’s claim relating to the City Hall escalator replacement is also barred by laches. Both inexcusable delay in bringing suit and prejudice to SEPTA as a result of the delay are present. Santana Products, Inc., 401 F.3d at 138. Since the statute of limitations expired, there is a presumption of laches and the burden shifts to DIA to justify its delay and negate prejudice. Id. at 138-140. DIA’s delay in filing suit is inexcusable considering all of the information available to it. Just as the plaintiff in Mansfield Area Citizens Group had notice of the dam project through public meetings, discussions with elected officials, articles in newspapers and ongoing construction, DIA had notice of the escalator replacement due to the visible signs around the barricades, SEPTA’s Capital Budget that identified the escalator replacement program in Fiscal Year 2001, and the public meeting on SEPTA’s Capital Budget for that year.
As the escalator replacement has already been completed, SEPTA would now have to incur $2 million to install an elevator at City Hall Courtyard -- costs which could have been avoided if DIA had timely filed suit. Brooke Affidavit, Exhibit “35” at ¶ 36. SEPTA should not be prejudiced by DIA’s unreasonable delay, and the claim regarding the City Hall escalator replacement should be barred by laches.
11 DIA was not prevented from asserting its claim as a result of other extraordinary circumstances, nor did DIA file suit in the wrong forum.
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G. SEPTA’S SUBURBAN STATION RENOVATIONS ARE IN FULL COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT
SEPTA’s Suburban Station is a “key station” and is subject to the Transportation Facilities provisions of DOT regulations, Subpart C, § 37.53. See Final ADA Key Station Plan and Schedule, July 23, 1992, Exhibit “11;” Settlement Agreement, Exhibit “2” at 7; 49 C.F.R. § 37.53. For over 50 years, Suburban Station has been a mixed use transit complex combining retail, office, and transit operations in an integrated facility spanning from 15th Street to 18th Street, Market to Cuthbert Streets. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 12; Gravel Affidavit, Exhibit “37” at Exhibit “1” at 18-21. The mixed use nature of Suburban Station has remained consistent over this 50 year period. See Gravel Affidavit, Exhibit “37” at Exhibit “1" at 18.
In February 1995, SEPTA and the City reached a general agreement concerning the framework for the renovation of Suburban Station, its retail spaces and its concourse (the “Project”). General Agreement, Exhibit “38.” One of the objectives was to have SEPTA, the City and private ownership enter into cooperative agreements to implement the renovations without regard to property ownership.12 Id., Exhibit “38” at 2; Maier Deposition, 9/1/05, Exhibit “39" at 14-20.
The purpose of the Project is the comprehensive renovation of the Suburban Station transit facility. ADA accessibility has been a hallmark of the Project from its outset. In its Request For Proposal SEPTA broadly outlined design requirements for renovations to below
12 This is consistent with 49 C.F.R. § 37.51 which identifies the “responsible parties” and their legal obligations in making key stations in commuter rail systems accessible. Id., Exhibit “38.”
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ground concourses, courtyards, station and train operations, corridors, retail spaces, entrances and
specifically included ADA accessibility requirements. Heiser Affidavit, Exhibit “29" 5/3/05 at
¶¶ 20-22. Request for Proposal, Exhibit “40” at 3 (“All project design and construction
elements must conform with all applicable codes and laws, including the Americans with
Disabilities Act (ADA) and Pennsylvania’s Disability Act.”), 4, 9, 13, 21.
In 1997, Bower, Lewis & Thrower (“BLT”) was awarded the design contract. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 21. From the Project’s inception, the 15th Street Courtyard
was within the scope of the Project. Heiser Affidavit, 5/3/05, Exhibit “29" at ¶ 18; Request for
Proposal, Exhibit “40” at 3, 4; Heiser Deposition, 10/6/05, Exhibit “41" at 12, 13, 90, 91;
Wolfson Deposition, 10/7/05, Exhibit 43 at 7, 8. BLT Concourse Level Axonometric View, Exhibit “44.”13
The Suburban Station transit facility has clearly demarcated boundaries -- extending from 15th Street to 18th Street and from Cuthbert Street to Market Street, including the 15th Street
Courtyard. See Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 5. See also BLT Suburban Station Renovations Property Line Plan Concourse Level (the “Zoning Plan”), Exhibit “48.”14 The
13 Counsel for SEPTA provided counsel for DIA 30 x 42 inch color copies of the BLT Concourse Level Axonometric View, Exhibit “44;” the “Zoning Plan,” Exhibit “48;” and the Architectural Schematic of Concourse Level, Suburban Station, Exhibit “49" under cover of a December 30, 2005 letter. Counsel for SEPTA also provided Mr. Iacullo with the expert reports of Andrew C. Putnam, P.L.S., Donald L. Kloehn, A.J. Gravel, and Roderick Wolfson, including a copy of the Zoning Plan, under cover of a December 22, 2005 letter.
14 The ADA Accessibility Guidelines for Buildings and Facilities (“ADAAG”) defines “Facility,” without any regard to ownership, as “[a]ll or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property located on a site.” 49 C.F.R. Part 37, Appendix A, Definitions 3.5. A “Site,” in turn, is defined as “[a] parcel of land bounded by a property line or a designated portion of a public right-of-way.” 49 C.F.R. Part 37, Appendix A, Definitions 3.5; Kloehn Deposition,
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property lines that define the scope of the Project and its site are shown on the Zoning Plan and on BLT’s architectural schematic drawing of the Suburban Station concourse. See Zoning Plan, Exhibit “48;” Architectural Schematic of Concourse Level, Suburban Station, Exhibit “49.” The Zoning Plan identifies, inter alia, in bold red lines, the Project’s perimeter boundary lines and main phase work that SEPTA would be performing on SEPTA, City, or privately owned property within these boundaries. See Zoning Plan, Exhibit “48.”15 BLT’s architectural schematic drawing of the Suburban Station concourse shows a concourse-level view of the boundary lines of the Project highlighted in red. See Architectural Schematic of Concourse Level, Suburban Station, Exhibit “49.”16
Suburban Station has particularized accessibility requirements under the ADAAG, which are found at 49 C.F.R. Part 37, Appendix A.17 The ADAAG requires only one accessible entrance in order to be ADA compliant. 49 C.F.R. Part 37, Appendix A, Transportation Facilities, Section 10.3.2(1) (Existing Facilities: Key Stations) (“Rapid, light, and commuter rail key stations ... and existing intercity rail stations shall provide at least one accessible route from
2/14/06, Exhibit “45" at 67-68. Clearly, Suburban Station is a facility on a site. 15 Ownership within a transit facility is not relevant to the definition of the facility or the
scope of a particular renovation project. Kloehn Deposition, 2/14/06, Exhibit “45" at 45-46, 70. 16 The property lines defining the scope of the Project are the same as those established
for Suburban Station and the Penn Center Complex (as it was then named) by the Pennsylvania Railroad in 1950. Putnam Affidavit, Exhibit “59” at Exhibit “1” at 2.
17 The ADAAG provides the standards for accessible facilities and states that it “... sets guidelines for accessibility to buildings and facilities by individuals with disabilities under the ... ADA. These guidelines are to be applied during the design, construction, and alteration of buildings and facilities covered by Titles II and III of the ADA to the extent required by regulations issued by federal agencies, including the Department of Justice and the Department of Transportation, under the ADA.” 49 C.F.R. Part 37, Appendix A, § 1.
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an accessible entrance to those areas necessary for use of the transportation system.”). The ADAAG guideline for entrances when “alterations” to a building are performed likewise requires only one accessible entrance to an altered building so long as signage is appropriate. 49 C.F.R. Part 37, Appendix A, Accessible Elements and Spaces: Scope and Technical Requirements, Section 4.1.6.(1)(h) (Accessible Buildings: Alterations). SEPTA has provided that signage at the street level of the 15th Street Courtyard which directs disabled persons to the 16th Street accessible elevator. Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 2; Kloehn Affidavit, Exhibit “50” at Exhibit “1” at 3-4.
The Suburban Station renovations comply with these ADAAG guidelines. The renovations provide not one but two accessible entrances from the street level to the concourse level. Kloehn Affidavit, Exhibit “50” at Exhibit “1” at 2-5; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2; Heiser Affidavit, 5/3/05, Exhibit “29" at ¶¶ 42-45. One ADA-compliant entrance is located at the south side of 16th Street between JFK Boulevard and Market Street and provides elevator access from street level to the concourse level. Kloehn Affidavit, Exhibit “50” at Exhibit “A” at 2-5; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2; Heiser Affidavit, Exhibit “29” at ¶ 43. A second ADA-compliant entrance is located at the southeast corner of 17th Street and JFK Boulevard, and provides elevator access from street level to the concourse level and to one of the platforms. Kloehn Affidavit, Exhibit “50” at Exhibit “1” at 2-5; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2; Heiser Affidavit, Exhibit “29” at ¶ 44.
Exhibit “44” is an axonometric view of the Suburban Station Transit Facility which graphically depicts that wheelchair accessibility is available to all aspects of the Suburban Station concourse and that, from either street level elevator, a disabled person can access, barrier-free:
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(1) all train platforms using four additional concourse level elevators; (2) all transportation functions; (3) all retail spaces, courtyards and public places. Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2; Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 43-45; Wolfson Deposition, 2/15/06, Exhibit “42” at 62-63. The 15th Street Courtyard is accessible from the 17th Street elevator and from the 16th Street elevator. Kloehn Affidavit, Exhibit “50” at Exhibit “A” at 4; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2; Kloehn Deposition, Exhibit “45” at 78. The distance from the 16th Street elevator to the 15th Street Courtyard at concourse level is approximately 340 feet. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 10. Accordingly all of the ADA’s applicable accessibility requirements have been met. See 49 C.F.R. Part 37, Appendix A, Accessible Elements and Spaces: Scope and Technical Requirements, § 4.1.6(1), (2) (Accessible Buildings: Alterations); BLT Concourse Level Axonometric View, Exhibit “44.”
Any contention by DIA that the Project, and the close proximity of Suburban Station to 15th Street Station, triggered a requirement that 15th Street Station be made accessible misapprehends the renovation and accessibility provisions of the ADA and ADAAG. 15th Street Station and Suburban Station are two separate and distinct transit facilities demarcated by clear property lines. See BLT Structural Drawing - “Section Through 15th Street Corridor Looking East,” Exhibit “58;” Zoning Plan, Exhibit “48;” See Architectural Schematic of Concourse Level, Suburban Station, Exhibit “49;” Putnam Affidavit, Exhibit “59,” at Exhibit “1” at 2, 3. In order to reach the 15th Street Station, an individual who enters the Suburban Station Transit Facility at the 15th Street Courtyard must travel south in the 15th Street corridor, exit Suburban Station, and travel over underground transit lines. Maier Deposition, Exhibit “45” at 67; Heiser
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Affidavit, 5/3/05, Exhibit “29” at ¶ 64. BLT Structural Drawing - “Section Through 15th Street Corridor Looking East,” Exhibit “58.”
The scope of the renovations to the corridor adjacent to the 15th Street Courtyard did not extend beyond the Project’s boundaries or the property line of Suburban Station. Heiser Deposition, Exhibit “41” at 45-49. SEPTA did not perform any renovations to the underground connection from Suburban Station to the 15th Street Station. Id.
There is nothing in the ADA or the ADAAG which provides that the renovation of one facility triggers a requirement that another facility in “proximity” be made accessible. Moreover, as a “key station,” renovation of the Suburban Station Transit Facility did not require that the underground connections between these two stations be made accessible. See 49 C.F.R. Part 37, Appendix A, Transportation Facilities, § 10.3.2(2) (Existing Facilities: Key Stations) (accessible route requirements between facilities contained in § 10.3.1(3), which incorporates Section 4.3, is not applicable to key stations). See Kloehn Deposition, 2/14/06, Exhibit “45" at 68-69.
Multiple federal jurisdictions, including the Third Circuit, consistently and unequivocally have found that only one accessible entrance is required for a renovated transit facility. The Third Circuit, in a case brought under Section 504 of the Rehabilitation Act, addressed regulations for which design, construction, and alteration were to be in accordance with the “American National Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by the Physically Handicapped, published by ANSI, Inc. (ANSI A 117.1-1961 (R1971).” Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113, 1119 (3d Cir. 1987), citing 49 C.F.R. § 27.67(d). In reaching its decision in Sykes, the Third Circuit applied the ANSI standard Section 5.2.1 -- for building entrances -- a guideline that required only “[a]t least one
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primary entrance to each building shall be usable by individuals in wheelchairs.” See Sykes, 833 F.2d at 1120-21 citing ANSI A 117.1-1961 (R-1971) at § 5.2.1.
The Sykes Court directly recognized that, under the plain language of ANSI § 5.2.1, only one altered entrance to a transportation facility is required to be made accessible, even when multiple entrances are altered. Sykes, 833 F.2d at 1120-21. ANSI § 5.2.1 is substantively identical to the ADAAG provisions for key stations and renovations of existing transit facilities requiring only one accessible entrance in order to be ADA-compliant. 49 C.F.R. Part 37, Appendix A, Transportation Facilities, Section 10.3.2(1) (Existing Facilities: Key Stations); 49 C.F.R. Part 37, Appendix A, Accessible Elements and Spaces: Scope and Technical Requirements, Section 4.1.6(1)(h) (Accessible Buildings: Alterations).
In Long v. Coast Resorts, Inc., 32 F.Supp.2d 1203 (D.Nev. 1999), affirmed in part, reversed in part on other grounds, 267 F.3d 918 (9th Cir. 2001), the Ninth Circuit recognized that accessibility to a place of public accommodation does not have to be identical for disabled and non-disabled persons. As stated by the District Court and affirmed by the Ninth Circuit, “[the ADA does not require every element of a place of public accommodation to be accessible” and “[e]very entrance or exit is not required to be wheelchair accessible.” Long v. Coast Resorts, Inc., 32 F.Supp.2d at 1212. (Emphasis added).
Likewise, in Kasten v. Port Authority of New York & New Jersey, 2002 WL 31102689 (E.D.N.Y.), the court acknowledged that both DOT regulations and the ADAAG required only one elevator entrance to an airport terminal to meet the requirements of the ADA. Id. In a recent case dealing with access to a courthouse, the court held that “the existence of one ADAcompliant entrance necessarily renders the courthouse’s services, programs, and activities
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‘readily accessible’ to individuals with disabilities.” County of Belknap v. Durante, 2004 WL 361540 (D.N.H.).
Vertical access is not required at the 15th Street Courtyard entrance to the Suburban Station concourse due to the two accessible entrances at 16th Street and 17th Street. See 49 C.F.R. Part 37, Appendix A, Transportation Facilities, Section 10.3.2(1) (Existing Facilities: Key Stations); 49 C.F.R. Part 37, Appendix A, Section 4.1.6(1)(f) and (h) (Accessible Buildings: Alterations). While SEPTA does not concede that the 15th Street Courtyard entrance was “altered” within the meaning of the ADA and its regulations, Section 4.1.6(1)(h) provides that an entrance being altered need not meet ADAAG’s requirements for accessibility so long as there is one accessible entrance, and in this case there are two. Id. at Section 4.1.6(1)(f) and (h)(Accessible Buildings: Alterations).
The foregoing ADA and ADAAG provisions do not mandate that SEPTA provide vertical access to Suburban Station at the 15th Street Courtyard where accessible entrances exist at 16th Street and 17th Street. Manifestly, the ADA and ADAAG do not intend for the redundancy that DIA advocates where, as here, the Suburban Station elevator at 16th Street is 340 feet from the 15th Street Courtyard.
DIA contends that the work at the 15th Street Courtyard required SEPTA to place yet a third Suburban Station elevator despite the presence of Suburban Station elevators at 16th Street and 17th Street. DIA’s contention runs afoul of the vertical accessibility requirements of key stations (one accessible route) and misapprehends the applicable ADAAG guidelines pertinent to stairs and escalators. The ADAAG general guidelines on alterations specifically address escalators and stairs. Pursuant to 49 C.F.R. Part 37, Appendix A, 4.1.6(1)(f), vertical access is
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required only when “an escalator or stair is planned or installed where none existed previously and major structural modifications are necessary for such installation.” (Emphasis added). The ADAAG does not mandate that SEPTA provide an elevator where it replaced an existing stair and no major structural modifications were undertaken to install the stair.
Work on the 15th Street Courtyard began in February, 2001 and included replacing a concrete stairway that was unsafe and in disrepair, renovating the head house at 15th Street and replacing planters, but no work was done to the escalators. Wolfson Deposition, 2/15/06, Exhibit “42” at 12; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 2; Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 56-59; Heiser Deposition, 10/6/05, Exhibit “41” at 88. No major structural modifications were necessary to install the replacement stairs. Id., 5/3/05, Exhibit “29" at ¶ 58. The new stairway at the 15th Street Courtyard brings an ambulatory person from street level to the same point within the Suburban Station as the former stairway. Id., 5/3/05, Exhibit “29" at ¶ 59; Wolfson Deposition, 2/15/06, Exhibit “42" at 12. The replacement of the stairway did not change the access from the street level to the Suburban Station concourse in any way. Id., 5/3/05, Exhibit “29" at ¶ 60.
The Third Circuit’s decision in Sykes is consistent with ADAAG’s provisions that vertical access need not be provided where existing stairs are replaced. In Sykes, the Court held that only the reconstruction of the northeast entrance to Columbia Station effected an “alteration” “in a manner that affects or could affect the accessibility of the facility.” Sykes, 833 F.2d at 1121. The reconstruction of the northeast entrance consisted of the construction of two entirely new stairs and a new escalator. Id. at 1120. Notably, the reconstruction of two existing stairs on the southbound side of Columbia Station in Sykes was insufficient to trigger a vertical
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accessibility requirement. In Sykes, the reconstructed southbound stairs lead “from the street to the southbound terminal at the Columbia Avenue Station.” See Sykes, 833 F.2d at 1120. The Court pointedly declined to hold that reconstruction of two existing stairways on the southbound side of Columbia Station constituted “alterations.” Id. at 1120, 1121. See also Kloehn Deposition, 2/14/06, Exhibit “45” at 73-74, 76 (replacing existing stairway not an ADA alteration and constitutes normal maintenance).
Sykes is instructive as (1) the Third Circuit only ordered vertical accessibility where new stairs and a new escalator were constructed, which is not the case here, and (2) did not order vertical accessibility where reconstruction of two existing stairways took place, which is twice the number of existing stairways at issue in this case. Standing on its own, the application of Sykes to the instant case compels the conclusion that no elevator is required in the 15th Street Courtyard.
Any argument that an elevator is required in the 15th Street Courtyard because the disabled will be inconvenienced by having to travel 340 feet to the elevator at 16th Street is unsupportable for both factual and legal reasons. Factually, the argument depends on where a disabled person is traveling from. If a disabled person is traveling from 18th Street, for instance, elevators at 17th Street and 16th Street are more convenient for that person than an elevator at 15th Street. Legally, if convenience was relevant, then every entrance to a facility, as opposed to just one, would have to be wheelchair accessible. The fact that the ADA and the Rehabilitation Act do not require such equal access for the disabled is evident in the plain language of those statutes, and their implementing regulations and their legislative histories. Our Courts recognize this underpinning of the ADA and the Rehabilitation Act especially where renovations to a facility
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are undertaken. The Third Circuit held in Sykes that identical access to the same station is not required and that there will be times when a person in a wheelchair will have to travel farther distances and will be more inconvenienced than a person who does not use a wheelchair. Id. at 1117-1120.
Other courts have held likewise. In Hassan v. Slater, 41 F.Supp.2d 343 (E.D.N.Y. 1999), the plaintiff sued under the ADA because the Metropolitan Transit Authority closed the commuter rail station closest to his residence and using the next closest station would require him to walk a certain distance from his home. Id. at 345-6. In holding that plaintiff’s ADA claim was insufficient as a matter of law, the Court found that the inconvenience of having to walk further to the next nearest station was not actionable under the ADA. Id. at 350-1. See also, Malloy v. Metropolitan Trans. Auth., 94 F.3d at 811 (2d Cir. 1996) (request for a preliminary injunction under the ADA to stop Metropolitan Transportation Authority from installing ticket vending machines was denied although the result would be that the visually impaired would be inconvenienced by having to purchase tickets on board the train and purchase weekly or monthly tickets by mail); Civic Association of the Deaf of New York City v. Giuliani, 970 F.Supp. 352, 362 (S.D.N.Y. 1997) (a 10%, 20% or even 50% reduction in the number of city emergency alarm boxes may still leave the alarm boxes ‘readily accessible’ to the deaf).
The ADA and the courts recognize that inconveniences are expected because identical access would lead to irrational results. See Id. at 362 (“... irrational results would follow from adoption of Plaintiffs’ argument that any change that produces a system that is marginally less accessible to the deaf than the non-deaf violates the ADA.”). In the present case, the alleged inconvenience would lead to the irrational result of forcing a third elevator from street level to
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the Suburban Station concourse. The Suburban Station concourse is already wheelchair accessible from two existing elevators, one of which is 340 feet from the 15th Street Courtyard elevator to which DIA claims entitlement. Taking DIA’s flawed arguments to their logical conclusion, elevators could then conceivably be ordered at every single one of the many entrances to Suburban Station, at all entrances to other transit facilities, and at all entrances to every building in the City. It is clear that such a result is not supported legally and is exactly the type of irrational result that courts have sought to avoid under the ADA. See generally Id.18
H. SEPTA’S REPLACEMENT OF THE ESCALATOR AT THE SOUTHEAST EXIT FROM THE CITY HALL TRANSIT FACILITY WAS IN FULL COMPLIANCE WITH THE ADA
The replacement of the escalator at the southeast exit from the City Hall mezzanine was simply the replacement of equipment that was no longer serviceable as part of an ongoing maintenance program. Performing normal maintenance or changing the mechanical or electrical systems are not alterations that trigger a requirement to provide an elevator. See 49 C.F.R. § 47.3. See also Disabled In Action v. Sykes, 833 F.2d at 1121. In Sykes, the Court recognized that normal maintenance of existing stairs does not trigger a vertical accessibility requirement. The Court specifically quoted from the preamble to the DOT “alterations” regulation, 49 C.F.R. § 27.67(b), enacted pursuant to the Rehabilitation Act, which governed the resolution of Sykes. The Court directly noted that:
In the preamble to the final rule, the DOT explained: [49 C.F.R. § 37.67(b)] is based on the belief that alterations present opportunities to design and construct
18 Even new construction does not mandate equal access under the ADAAG. See, e.g., 49 C.F.R. Part 37, Appendix A, Accessible Elements and Spaces: Scope and Technical Requirements, § 4.1.3(8) (Accessible Buildings: New Construction) (requiring only 50% of public entrances to be accessible).
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the altered portion or item in an accessible fashion ... The basic requirement in [49 C.F.R. § 27.67(b)] is simply to take the opportunities afforded by the alterations and, to the maximum extent feasible, use the alteration to make the facility accessible. Thus, normal maintenance may take place in practically all cases without generating an accessibility requirement. 44 Fed.Reg. 31442, 31449. Id. at 1121, n.9 (emphasis added). The straightforward concept that normal maintenance does not trigger an accessibility requirement is firmly embedded in both the ADA and in the ADAAG. See, e.g., 42 U.S.C.A. § 12147(a) (Alterations of existing facilities), 49 C.F.R. § 37.43 (Alteration of transportation facilities by public entities) (transportation facility need not be made accessible in absence of alterations that affect usability); 49 C.F.R. Part 37, Appendix A, Accessible Elements and Spaces: Scope and Technical Requirements, § 4.1.6(1)(i) (Accessible Buildings: Alterations) (alteration work that is limited to electrical, mechanical, plumbing, hazardous material abatement, or automatic sprinkler retrofitting does not trigger accessibility requirement). There is no disputed issue of material fact that the existing unsafe escalator in the City Hall Courtyard was replaced with another escalator providing the identical service. The existing escalator was removed from the wellway and a new escalator was installed in the same wellway. Brooke Deposition, Exhibit “34” at 50, 145-146. Although the wellway was extended at the top and bottom to accommodate the new ADA-compliant escalator, no major structural modifications were made. Id. at 113-114. Furthermore, the usability of City Hall Station was not affected as the previous escalator ascended from the mezzanine, not City Hall Station. The replacement escalator also ascends from the mezzanine. Id. at 101-102. Even if an elevator were placed in the location of the escalator, it physically could not descend to City Hall Station. Id. at 114-116, 133; Brooke
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Affidavit, Exhibit “35” at ¶¶ 23-26. Therefore, the usability of the station was not affected by the escalator replacement and there was no opportunity to provide greater access.
Furthermore, as discussed above regarding the 15th Street Courtyard, pursuant to 49 C.F.R. Part 37, Appendix A, § 4.1.6(f), vertical access is required only when “an escalator ... is planned or installed where none existed previously and major structural modifications are necessary for such installations.” (Emphasis added).
Where an existing escalator is replaced and no structural modifications occur, as here, there is no vertical access requirement and judgment should be entered for SEPTA on DIA’s claim regarding the City Hall Courtyard escalator replacement. V. CONCLUSION
For all of the foregoing reasons, SEPTA respectfully requests the entry of summary judgment in its favor on both Count I and II of DIA’s Fourth Amended Complaint.

SHK5264

DATE:

April 5, 2006

__________________________________
SAUL H. KRENZEL, ESQUIRE SAUL H. KRENZEL & ASSOCIATES The Robinson Building 42 So. 15th Street, Suite 800 Philadelphia, PA 19102 (215) 977-7230 Attorney for Defendant, SEPTA

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 Case 2:03-cv-01577-GP Document 130-1 Filed 04/05/2006 Page 2 of 29

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________________________________________________________

:

DISABLED IN ACTION OF

:

PENNSYLVANIA

:

CIVIL ACTION NO. 03-CV-1577

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY

:

DEFENDANT SEPTA’S MOTION FOR SUMMARY JUDGMENT Defendant Southeastern Pennsylvania Transportation Authority (“SEPTA”), by its counsel, moves the Court for summary judgment on Count I of Plaintiff’s Fourth Amended Complaint based on the statute of limitations, unclean hands, laches, and compliance with the alteration provisions of the Americans with Disabilities Act. SEPTA moves for summary judgment on Count II based on waiver, laches, the primacy of the applicable regulation, the absence of a private cause of action, res judicata and collateral estoppel.
The EPVA Litigation 1. On November 20, 1986, Eastern Paralyzed Veterans Association of Pennsylvania, Inc. (“EPVA”) commenced an action against the City of Philadelphia in this District, captioned Eastern Paralyzed Veterans Association of Pennsylvania, Inc., et al. v. Dudley R. Sykes, Civ. No. 86-6797, and subsequently joined SEPTA as an additional defendant. 2. EPVA’s Amended Complaint, Exhibit “1,” averred that EPVA consists of disabled veterans who are serviced by SEPTA and who seek the vindication of the civil rights of all disabled persons pertaining to access to public transportation. Amended Complaint at ¶ 3(a). 3. EPVA accordingly brought its action on behalf of itself and its individual

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members who, it alleged, are part of a Class consisting of all mobility-impaired persons who have been and are denied access to SEPTA rail stations. Amended Complaint at ¶ 8.
4. EPVA’s Amended Complaint likewise alleged that SEPTA was planning to renovate other stations but that, with one exception, all of the other renovated stations would be inaccessible to members of the Class. Amended Complaint at ¶ 43.
5. EPVA’s Amended Complaint accordingly sought relief including certification of the Class pursuant to Fed.R.Civ.P. 23 and injunctive relief requiring that SEPTA render those stations accessible to members of the Class. Amended Complaint, Prayer For Relief at ¶¶ 2, 4, 5.
6. EPVA’s causes of action were brought pursuant to Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”) (providing that disabled persons may not be excluded from any activity receiving federal financial assistance), and certain other statutes. Amended Complaint at ¶¶ 47-64.
The EPVA Settlement Agreement 7. EPVA, SEPTA and the City of Philadelphia negotiated the settlement of all of EPVA’s claims, resulting in a June 28, 1989 Settlement Agreement (the “Settlement Agreement”), Exhibit “2.” 8. The Settlement Agreement provided that SEPTA, “in compromise of disputed claims,” would make certain stations -- agreed by the parties to be“key stations” -accessible to the mobility-handicapped on the timetable established therein.1 Those stations
1 A decade before the Settlement Agreement, in 1979, the United States Department of Transportation (“DOT”) had promulgated regulations to implement section 504 of the Rehabilitation Act of 1973 which addressed the characteristics and accessibility attendant to a rail system’s “key stations.”
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included five stations on SEPTA’s Market-Frankford Line, but not 15th Street Station, and four stations on SEPTA’s Broad Street Line, but not City Hall Station. EPVA, in turn, released SEPTA from all claims that SEPTA violated any law or regulation regarding accessibility to its rail stations. Settlement Agreement at ¶¶ 1, 3, 6.a. and b.
9. The Settlement Agreement provided for notice of the settlement to members of the Class and the opportunity for members to object to its approval. Settlement Agreement at ¶ 7.a.4.
10. The Settlement Agreement was approved thereafter by the Court, per Judge Newcomer, on July 6, 1989, and Disabled in Action of Pennsylvania (“DIA”) admits that its membership on that date included members of the Class certified by Judge Newcomer. DIA’s Amended Responses and Objections to SEPTA’s First Set of Requests for Admissions, Exhibit “3” at No. 32.
11. On July 10, 1989, Class counsel published a Notice of the proposed settlement to Class members -- which specifically identified each “key station” to be made accessible -- in The Philadelphia Inquirer and The Philadelphia Daily News, but he did not receive any objections from any person, including DIA or any of its members. Affidavit of Richard M. Zuckerman, Esquire, Exhibit “4” at ¶¶ 3, 4.
12. On July 28, 1989, following a hearing on the fairness, adequacy and reasonableness of the Settlement Agreement, Judge Newcomer entered an “Order and Judgment Approving Settlement,” Exhibit “5.” That Order confirmed the Class as consisting of all mobility-handicapped persons living, working, or traveling in Philadelphia and the contiguous counties; held that the Settlement Agreement was fair, adequate, and reasonable; and dismissed
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the subject action with prejudice. The Enactment of the ADA
13. On July 26, 1990, the Americans with Disabilities Act of 1990 (“ADA”) took effect and addressed, among other things, how rail stations were to be made accessible to individuals with disabilities. DOT thereafter promulgated regulations to implement the ADA which set forth the criteria and accessibility for key stations which were substantially identical to those utilized to implement the Rehabilitation Act. ADA key station criteria, 49 C.F.R. §§ 37.47, 37.51, Exhibit “6;” Rehabilitation Act key station criteria, 49 C.F.R. §§ 27.87, 27.89, Exhibit “7.”
14. To strike a balance between providing access to persons with disabilities and limiting prohibitive costs on businesses, the ADA did not and does not require public entities to make all existing stations accessible to individuals who use wheelchairs. See H.R. Rep. 101485(III)(1990) at 60.
15. With regard to stations constructed prior to its enactment, the ADA required only those previously constructed stations designated by the public entity as “key stations” to be made accessible to individuals with disabilities. 42 U.S.C.A. § 12147(b).
16. The Settlement Agreement, along with a similar settlement agreement in New York City, were the subject of discussions in committees debating the ADA. See S. Rep. No. 101-116, 101st Cong., 1st Sess. at 56, 94 (1989); H. Rep. No. 101-485(I), 101st Cong., 2nd Sess. at 9 (1990); H. Rep. No. 101-485(II), 101st Cong., 2nd Sess. at 96-97 (1990); H. Rep. No. 101485(IV), 101st Cong., 2nd Sess. at 52 (1990).
17. The Senate Committee on Labor and Human Resources specifically stated in its
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official report that “the settlement agreements recently reached in New York City ... and Philadelphia ... are in full compliance” with the ADA key station accessibility requirements and “these plans would satisfy the bill’s requirement for accessibility of key stations.” S. Rep. No. 101-116, 101st Cong., 1st Sess. at 56, 94 (1989).
18. The House Committee on Public Works and Transportation stated in its official report:
The Committee finds special merit in local settlement agreements (such as those negotiated in New York and Philadelphia) regarding the identification of key stations, when they have been negotiated in good faith by public entities and representatives of the disability community. The Committee expects the criteria established by the Secretary to find that these local agreements fully meet the requirements of this subsection. H. Rep. No. 101-485 (I), 101st Cong., 2nd Sess. at 9 (emphasis added). 19. The House Committee on Education and Labor agreed that the Philadelphia and New York Settlement Agreements listed the “key stations” for each city and were in “full compliance” with the ADA key station requirements. H. Rep. No. 101-485 (II), 101st Cong. 2nd Sess. at 96-97. 20. The House Committee on Energy and Commerce stated that it did not intend “this legislation [the ADA] to upset in any manner the settlement agreements recently reached by commuter authorities in New York and Philadelphia with respect to key stations.” H. Rep. No. 101-485 (IV), 101st Cong., 2nd Sess. at 52 (1990). 21. Roland Mross, Deputy Administrator of the Urban Mass Transportation Administration of DOT, testified as follows before the Subcommittee on Surface Transportation of the House Committee on Public Works and Transportation:
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The transit agencies and members of the disabled community would work together to plan the strategy for key station accessibility. The pattern of New York and Philadelphia, which already have worked out agreements to retrofit key stations, would serve as an excellent model in this regard for other cities. The ADA, as passed by the Senate, would require no incremental effort by the cities of New York and Philadelphia.
H. Rep. No. 101-32, 101st Cong., 1st Sess. at 14 (1989) (emphasis added).
DIA’s Failure to Object to the ADA Regulations During the Rulemaking Process
22. On April 4, 1991, the DOT published a Notice of Proposed Rulemaking
(“NPRM”) that addressed various proposals to amend rules implementing the ADA and that
included amendments to regulations concerning key stations. See 56 Fed. Reg. 13856 at 1.
23. The NPRM specifically addressed the use of the Settlement Agreement to satisfy
SEPTA’s obligation to identify key stations, stating in part:
Both Senate and House reports referred to settlements concerning station accessibility in New York and Philadelphia, suggesting that these agreements should be viewed as in compliance with ADA regulations. S. Rept. 101-116 at 56; H. Rept. 101-485, Pt. 1, at 34.
* * * As required by statute, public entity rail operators would have to submit a plan to the Secretary for complying with key station requirements. (With respect to those cities in which agreements mentioned by the Committee reports have already been worked out (i.e., New York and Philadelphia), submission of the plans developed under the agreement would satisfy the requirement).
* * * The proposed rule is not intended to require a public entity to nominate as a key station every station that may meet one of the criteria. Rather, the aim of the provision is to ensure that the system, when viewed as a whole, becomes accessible to and usable by individuals with disabilities. The success of the public entity’s key stations designations would be judged according to this standard. In looking at plans from New York and Philadelphia, the Department would be mindful of Congressional Reports’ endorsement of them.
56 Fed. Reg. 13856 at 10 (emphasis added).
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24. DIA did not offer a single objection with respect to the proposed rules. See U.S. Department of Transportation, Docket No. 47483, Applicant: Transportation for Individuals with Disabilities (Notice 91-7), Exhibit “8.”
25. On September 6, 1991, DOT issued notice that it was issuing a final version of the rules covered in the April 4, 1991 NRPM, which stated that “[t]he Department received over 260 written comments on the NPRM from a wide variety of disability community, transit industry, and other interested commenters” and “[i]n addition, the Urban Mass Transportation Administration (“UMTA”) held six public hearings, at which we received approximately 120 spoken and written comments.” 56 Fed. Reg. 45584 at 1.
26. This September 6, 1991 Notice contained no objection to the use of the key stations identified in the Settlement Agreement to satisfy SEPTA’s key station designation requirements. See 56 Fed. Reg. 45584 at 1.
27. DOT accordingly promulgated a regulation which deemed SEPTA as having already complied with the ADA “key station” identification obligations.
Exception for New York and Philadelphia. (a) The following agreements entered into in New York, New York and Philadelphia, Pennsylvania, contain lists of key stations for the public entities that are a party to those agreements for those service lines that are identified in the Agreements. The identification of key stations under these agreements is deemed to be in compliance with the requirements of this Subpart. * * * (2) Settlement Agreement by and between Eastern Paralyzed Veterans Association of Pennsylvania, Inc. and ... Southeastern Pennsylvania Transportation Authority, June 28, 1989.
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49 C.F.R. § 37.53 (emphasis added).2 28. The comments to 49 C.F.R. § 37.53 specifically addressed the satisfaction of key
station designation obligations for New York and Philadelphia, stating that “[t]his section formally recognizes that agreements concerning key station accessibility in New York City and Philadelphia have identified key stations, which designations were intended to be recognized as complying with ADA key station selection requirements” and that “[a]s suggested by a comment from one of the transit providers involved in the New York agreement, the entities involved can
limit their key station planning process to issues concerning the timing of key station accessibility.” See 56 Fed. Reg. 45584 at 27 (emphasis added).
29. DIA admits that 49 C.F.R. § 37.53 is not arbitrary, capricious, nor manifestly contrary to the ADA. See DIA’s September 21, 2005 Contention Interrogatory Responses, excerpt, at ¶¶ 7-11, Exhibit “9.”
30. DIA has identified James Weisman as a trial witness, presumably to interpret the meaning of 49 C.F.R 37.53 and opine regarding DOT’s intent in promulgating 49 C.F.R. 37.53, and to testify that:
a) he was personally involved in the promulgation of DOT’s ADA regulations; b) by referencing the Settlement Agreement in 49 C.F.R. §37.53, DOT intended the Settlement Agreement to be a minimum requirement for SEPTA and that DOT did not intend that the stations identified in the Settlement Agreement to be the only stations designated “key.”
2 49 C.F.R. § 37.53 also satisfied the key station designation obligations of New York’s Metropolitan Transportation Authority (“MTA”) which, like SEPTA, had settled a class action lawsuit with EPVA by entering into a settlement agreement that embodied the key station concept.
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Weisman Affidavit, “Exhibit 62” at ¶12; Weisman Deposition, “Exhibit 63” at 86, 123-124. 31. Mr. Weisman was never employed by DOT, nor did he ever author any
regulations. Weisman Deposition, Exhibit “63" at 282-283. He was a member of a Federal Advisory Committee that, by his own admission, had no decision making authority regarding promulgation of the ADA regulations. Id. at 78.
32. During the ADA rulemaking process, on January 11, 1991, the Urban Mass Transportation Administration (UMTA) had issued a notice of intent to establish a Federal Advisory Committee (Advisory Committee), consistent with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I, Public Law 100-641, to aid UMTA and DOT in developing rules necessary to implement the ADA. 56 Fed. Reg. 1217.
33. Pursuant to ¶ 9(b) of 5 U.S.C.A. App. 2, “[u]nless otherwise specifically provided by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions. Determinations of action to be taken and policy to be expressed with respect to matters upon which an advisory committee reports or makes recommendations shall be made solely by the President or an officer of the Federal Government.” (Emphasis added).
34. The Advisory Committee’s charter specified that the Advisory Committee would advise the Secretary of DOT and the Administrator of UMTA on a rulemaking to be conducted by them to carry out the provisions of the ADA. 56 Fed. Reg. 1217. The advice was to have been used by the agency and the Department in their deliberations on both the Notice of Proposed Rulemaking and the Final Rule. Id. According to the Charter, the Advisory Committee would review issues submitted in comments on the proposed rule. Id. Significantly, the preamble specified that the Advisory Committee was to “act solely in an advisory capacity to
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the agency and shall neither exercise any program management responsibility nor make decisions directly affecting the matters on which it provides advice.” Id. (emphasis added).
35. Mr. Weisman was deposed on 2 separate occasions regarding his membership on the Advisory Committee. Weisman Deposition, 8/25/05 and 10/11/2005, Exhibit “63.”
36. Mr. Weisman testified that he did not draft the ADA regulations, nor did any other member of the Advisory Committee. Id. at 84, 286-88. He admitted that he did not have any authority to draft regulations or to have his comments implemented by DOT, and that neither he nor the Advisory Committee had the power to draft, promulgate, approve or disapprove regulations. Id. at 282-283, 285, 288-291.
37. Mr. Weisman conceded that his opinion of 49 C.F.R. § 37.53 was his own personal opinion and not that of the Advisory Committee. Id. at 287.
38. Any testimony by Mr. Weisman interpreting 49 C.F.R. § 37.53 and the alleged intentions of DOT in promulgating that regulation is not legally competent evidence and must be excluded. Mr. Weisman’s membership on the Advisory Committee, which had no authority, does not render him competent to testify as to the meaning of regulations or the intentions of DOT or any other administrative agency.
DIA’s Failure to Object to the Regulations During SEPTA’s Public Participation and Planning Process
39. In order to comply with the 49 C.F.R. § 37.53(b) obligation to use its public participation and planning process solely to develop and submit plans for timely completion of key station accessibility to the Federal Transit Administration (“FTA”), SEPTA published notice of and held a public hearing on July 7, 1992 to solicit comments regarding its proposed key
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stations. See SEPTA Notice, Exhibit “10.” 40. SEPTA’s Final ADA Key Station Plan and Schedule was distributed on SEPTA
paratransit vehicles, commuter railcars, and at all key stations. Additionally, the July 7, 1992 public hearing was advertised in both The Philadelphia Inquirer and The Philadelphia Tribune. Final ADA Key Station Plan and Schedule, July 23, 1992, Exhibit “11” at 15.
41. DIA submitted written testimony at the July 7, 1992 public hearing, none of which mentioned the designation of key stations or the Key Station Plan. Disabled in Action’s Written Testimony, SEPTA Public Hearing, July 7, 1992, Exhibit “12.”
42. Subsequently, at SEPTA’s Regular Board Meeting held on July 23, 1992, DIA President Erik Von Schmetterling, on behalf of DIA, made specific complaints and submitted written demands and correspondence to the Board, none of which mentioned the designation of key stations or the Key Station Plan. Minutes of SEPTA Regular Board Meeting, July 23, 1992, Exhibit “13.”
43. After that Board meeting, the Board adopted the Key Station Plan. SEPTA Board Resolution dated July 23, 1992, Exhibit “14.”
44. SEPTA submitted its Key Station Plan to DOT’s FTA by July 26, 1992 in accordance with the ADA and DOT regulations. See 42 U.S.C. § 12147(b)(2)(3) and § 12162(e); 49 C.F.R. § 37.53. DIA’s counsel, Stephen F. Gold, Esquire (“Gold”), thereafter inquired of SEPTA as to the progress of the key station modifications on multiple occasions, but without complaint as to the key station designations.3
45. SEPTA, in its publicly available Capital Budgets, has reported annually -- for 14
3 See Gold-Kilcur correspondence, collectively Exhibit “15.” 11

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consecutive years -- on the progress of its Key Station Plan, specifically utilizing “key station” terminology. See SEPTA, Capital Budgets, Fiscal Years 1993-2006, excerpts attached collectively as Exhibit “16.” Prior to filing its initial Complaint in this action, DIA had never lodged an objection to SEPTA’s key station designations.
46. As of this date, SEPTA has made ADA accessible 31 of its 35 key stations on its rapid and commuter rail systems. Lister Affidavit, Exhibit “17” at ¶ 3. Two more key stations are anticipated to be accessible within the next 12 months. Id. at ¶ 4.
The 1996 Amendment to the Settlement Agreement 47. On May 23, 1996, seven years after the Settlement Agreement and six years after the enactment of the ADA, the EPVA v. Sykes parties filed with the Court a “Stipulation and Order Preliminarily Approving Amendment of Settlement Agreement,” Exhibit “18,” pursuant to which EPVA consented to the replacement of two of the previously agreed upon key stations with two other stations. 48. On July 9, 1996, following notice to the Class of the proposed amendment and a Hearing, Judge Newcomer approved the amendment as fair, adequate and reasonable. Exhibit “19.”
The DIA Litigation 49. On March 14, 2003 -- fourteen years after Judge Newcomer’s approval of the Settlement Agreement, eleven years after the enactment of 49 C.F.R. § 37.53 and seven years after the Court-approved amendment to the Settlement Agreement -- DIA initiated the captioned action and thereafter filed a Fourth Amended Complaint against SEPTA on February 15, 2005. Exhibit “20.”
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50. Count I alleges that SEPTA has violated the ADA and the Rehabilitation Act by: (1) altering Suburban Station’s 15th Street Courtyard without providing an elevator at that location and (2) replacing an escalator in the southeast corner of the City Hall Courtyard without providing for an elevator at that location. Exhibit “20,” ¶60
51. Count II alleges that 15th Street Station and City Hall Station are “key stations” under the ADA. Exhibit “20,” ¶ 61
52. DIA’s Fourth Amended Complaint alleges that it is an organization open to anyone who has a disability which, like EPVA, includes persons with mobility impairments (¶ 6); and that its participants, as did EPVA’s, seek wheelchair access to the City Hall and 15th Street Stations. Exhibit “20,” ¶ 61; Prayer For Relief, ¶ C.
53. Like the EPVA v. Sykes Amended Complaint, DIA’s Fourth Amended Complaint seeks relief premised on causes of action under Section 504 of the Rehabilitation Act, and also asserts causes of action under the ADA and DOT regulations implementing the ADA.
54. DIA is contending through the instant litigation that other stations existing at the time of the Settlement Agreement, which were not included therein by the agreement of those parties, are in fact key stations; and it further contends that the EPVA v. Sykes parties included as key stations in the Settlement Agreement certain stations which are not in fact key stations. Plaintiff’s Amended Responses to Defendant SEPTA’s Contention Interrogatories, Exhibit “21” at No. 4.
55. Further, in attempting to relitigate the alleged key station status of 15th Street Station and City Hall Station already resolved in EPVA v. Sykes and incorporated into DOT regulation 49 C.F.R. § 37.53, DIA’s proposed witnesses are to testify regarding the alleged key
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station characteristics of those stations, which testimony would have been presented of necessity by the EPVA Class had EPVA v. Sykes been tried. DIA’s Responses to SEPTA’s First Set of Interrogatories, Exhibit “22” at No. 9c.
56. DIA and its counsel state that they are unable to locate documents that are germane to the approval of the Settlement Agreement and the promulgation of 49 C.F.R. § 37.53. Exhibit “3” at ¶¶ 6-12, 17-20, 34-36, 38-42, 44, 53-54, 56-66, 73, 76-78, 82-83, 90-93 and 95.
57. The cost of making City Hall Station and 15th Street Station accessible is currently estimated to be $100,000,000. Heiser Affidavit, 3/14/06, Exhibit “23” at ¶ 10.
Count I is Barred by the Statute of Limitations 58. Count I is barred by the statute of limitations as DIA was aware of each fact allegedly giving rise to a cause of action more than two years before it filed suit. 59. DIA’s cause of action regarding the 15th Street Courtyard accrued on August 3, 2000 and the limitations period expired on August 3, 2002. 60. On August 3, 2000, DIA’s counsel, Gold, wrote to the City of Philadelphia’s Commissioner of the Department of Licenses & Inspections, expressing concern that the City allowed SEPTA to apply for a variance to perform construction in the 15th Street Courtyard without providing an elevator at that location. Gold Deposition, 11/4/05, “Exhibit “24” at 3334; Letter from Gold to McLaughlin, 8/3/00, Exhibit “25.” 61. On September 28, 2000, Gold wrote to the City Solicitor’s Office, stating that the elevator issue should be resolved before construction commenced or he would “act sooner than later.” Gold Deposition, 11/4/05, Exhibit “24” at 35-37; Letter from Gold to Winebrake, 9/28/00, Exhibit “26.”
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62. On November 14, 2000, Fredrick K. Pasour, Esquire (“Pasour”) of the City Solicitor’s Office responded to Gold’s letter, stating that he understood that a lawsuit might be commenced to enjoin construction at the 15th Street Courtyard. Pasour advised Gold that a permit had been issued for construction, and requested that any legal action be brought “in an expeditious manner.” Letter from Pasour to Gold, 11/14/00, Exhibit “27.”
63. After reading Pasour’s letter, Gold chose not to file suit. Gold Deposition, 11/4/05, Exhibit “24” at 38-39.
64. Nancy Salandra (“Salandra”), DIA’s Executive Director, authorized Gold to write the letters to the L&I Commissioner and City Solicitor. Salandra Deposition, 11/4/05, Exhibit “28” at 42-43, 45, 48. Salandra also read Pasour’s letter in or around November 2000 and testified that it was the subject of a DIA meeting at which a decision was made not to file suit at that time. Exhibit “28” at 49-50, 51-55.
65. The construction of the 15th Street Courtyard began in February 2001 and was completed on August 8, 2002. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 39; Heiser Affidavit, 3/14/06, Exhibit “23” at ¶ 7. SEPTA would now be required to expend $810,000 to install an elevator in the 15th Street Courtyard. Heiser Affidavit, 3/14/06, Exhibit “23” at ¶ 8. Furthermore, inconvenience to the public will result from the additional construction. Id. at ¶ 9.
66. DIA previously has asserted that the statute of limitations was equitably tolled because it claimed that SEPTA agreed to build elevators at City Hall in lieu of an elevator in the 15th Street Courtyard. Plaintiff’s Reply In Support of Its Motion for Partial Summary Judgment, Exhibit “30” at 4-5.
67. This Court approved a Stipulation barring DIA from raising that claim. The
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Stipulation states as follows: Plaintiff is hereby precluded from presenting any claim that Defendant SEPTA allegedly agreed to construct elevators at City Hall in lieu of construction of an elevator at the northwest corner of 15th and Market Streets or that SEPTA is liable for failing to abide by any such alleged agreement at trial or in any hearing or in any other proceeding; said claims are hereby dismissed with prejudice.
Docket #36, Order of the Honorable Clifford Scott Green, 7/20/04 (emphasis added). Based on the Stipulation, this Court ordered references to the alleged agreement stricken. Docket #70, Order of the Honorable Gene E.K. Pratter, 12/23/04.
68. SEPTA did not engage in any acts of concealment designed to mislead DIA regarding the installation of elevators at City Hall and did not prevent DIA from asserting its rights.
69. Gold testified that he met with Fran Egan, SEPTA’s former Assistant General Manager for Public, Government and Customer Affairs, sometime in 2000 and that Egan represented that SEPTA would build elevators at City Hall, with construction commencing at the end of 2002 and ending in 2004. Gold Deposition, 11/4/05, Exhibit “24” at 13-14, 16-22, 24. SEPTA denies that Ms. Egan, who is now deceased, made any such representation.
70. Neither Gold nor DIA’s Executive Director ever attempted to confirm whether Ms. Egan had authority to make that alleged representation or to confirm that elevators at City Hall would be built by a certain date. Gold Deposition, 11/4/05, Exhibit “24” at 22, 24, 25-29; Salandra Deposition, 11/4/05, Exhibit “28” at 29, 31-32.
71. DIA’s Executive Director did nothing to follow up other than wait for construction to begin. Salandra Deposition, 11/4/05, Exhibit “28” at 31-34. According to DIA’s Executive Director, there was “no point” in trying to confirm that elevators at City Hall
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would be completed by a certain date because of her perception that SEPTA wouldn’t meet that date. Id. at 31-33.
72. Ms. Egan’s job duties involved developing political and public support for SEPTA. Torres Affidavit, Exhibit “31” at ¶ 4. She was also responsible for building and maintaining relationships with government and community groups within the five county region. Id. Ms. Egan had no input into how SEPTA’s Capital Budget was developed or what funding was assigned to particular Capital Projects. Id. at ¶ 6. She had no decision-making or advocacy role regarding whether a particular Capital Project got funded, nor did she have any authority to commit any funding to a Capital Project. Id.
73. SEPTA is not bound by any statements made by Ms. Egan to DIA as Egan had no authority to commit to a timetable for the City Hall elevators or commit funds for this project. Id.; Burnfield Affidavit, Exhibit “32” at ¶ 18. Only SEPTA’s Board of Directors has the statutory authority to approve a multi-million dollar expenditure such as the installation of elevators at City Hall. 74 Pa.C.S.A. § 1751(a); Burnfield Affidavit, Exhibit “32” at ¶ 18.
74. SEPTA is a statutorily created Commonwealth agency and its powers are limited by statute. 74 Pa.C.S.A. § 1711. SEPTA’s enabling statute provides that it is governed by its Board. Id. at § 1712(a).
75. Regarding the adoption of SEPTA’s Operating and Capital Budgets, the enabling statute specifically states:
... the board shall cause to be prepared and submitted to it a tentative operating budget and a tentative capital budget for the ensuing fiscal year. The tentative budgets shall be considered by the board and, subject to any revision and amendments as may be determined, shall be adopted prior to the first day of the ensuing
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fiscal year as the budgets for that year. The board shall establish such rules as are necessary, for proper observance of the budgets. Simultaneously with the adoption of the capital budget, the board shall adopt a tentative capital program covering the ensuing six years. 74 Pa.C.S.A. § 1751(a). 76. Public hearings are held prior to the adoption of the Capital Budget by the Board. Advance notice of the hearings are required. 74 Pa.C.S.A. § 1751(b). Notice of the hearings is published on SEPTA’s website, in The Philadelphia Inquirer, The Philadelphia Daily News, The Philadelphia Tribune, other local newspapers, and at SEPTA stations. Burnfield Affidavit, Exhibit “32” at ¶12; Excerpts from transcripts of SEPTA public hearings, Exhibit “33,” SEP9035, 9038-9039, 9497, 9501-9502. 77. At the hearings, the proposed Capital Budget for the next Fiscal Year and 12 year Capital Program is available to the public.4 Burnfield Affidavit, Exhibit “32” at ¶ 13. Members of the public can ask questions regarding the Capital Budget and Capital Program, and express their opinions on the record or in writing. Id. at ¶ 14. 78. Neither Gold nor DIA’s Executive Director attended the public hearings on the Capital Budget and Capital Program for Fiscal Years 2001, 2002 and 2003. Excerpts from transcripts of SEPTA public hearings, Exhibit “33,” SEP9138-9140; 9436-9446; 9497; 99069915; 10308-10318. 79. After the public hearings, the Board votes on the proposed budget at a meeting open to the public. Burnfield Affidavit, Exhibit “32” at ¶ 15. No action can be taken or funds
4 SEPTA’s fiscal year begins on July 1st and ends on June 30th. Burnfield Affidavit, Exhibit “32” at ¶ 6. For example, Fiscal Year 2001 began on July 1, 2000 and ended on June 30, 2001. Id.
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committed for the budget unless the Board approves it first. Id. at ¶ 5; 74 Pa.C.S.A. § 1719(6). 80. The Board-approved Capital Budget and Capital Program is available from the
Office of Public Affairs, and has been on SEPTA’s website, www.septa.org, for the past eight years. Burnfield Affidavit, Exhibit “32” at ¶ 16.
81. DIA’s Executive Director testified that she reviews SEPTA’s Capital Budget every year. Salandra Deposition, 11/4/05, Exhibit “28” at 30-31.
82. The City Hall Station Rehabilitation Project, which would include the elevators, was one of the Capital Projects for Fiscal Year 2001, with funding for design only of $4,000,000 for Fiscal Year 2001. Excerpts from SEPTA’s Capital Budget for Fiscal Year 2001, Exhibit “16” at SEP 2039; Burnfield Affidavit, Exhibit “32” at ¶ 17.
83. SEPTA’s Capital Budget for Fiscal Year 2002, approved by the Board on June 21, 2001, did not include the City Hall Station Rehabilitation Project among SEPTA’s Capital Projects for Fiscal Years 2002-2005. Excerpts from SEPTA’s Capital Budget for Fiscal Year 2002, Exhibit “16” at SEP 2147-2149.
84. At no time was the City Hall Rehabilitation Project funded for construction by SEPTA. Burnfield Affidavit, Exhibit “32” at ¶ 17. DIA could have ascertained the status of that project and its elevators by reviewing SEPTA’s publicly available Capital Budgets and/or by attending SEPTA’s Public Hearings. Salandra Deposition, Exhibit “28” at 30-31.
City Hall Escalator 85. DIA’s claim that SEPTA impermissibly altered an escalator in the southeast portion of City Hall Courtyard without providing an elevator is also barred by the two year statute of limitations. DIA raised this issue for the first time in its Amended Complaint, filed
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over three and one-half years after DIA was on notice that SEPTA would be replacing the escalator without building an elevator.
86. On or about June 1, 2001, SEPTA contractors placed signs on the barriers that were erected around the southeast escalator which described the project as “Escalator Replacement at Erie Avenue, Spring Garden, City Hall and 30th Street Stations,” and which were visible to the public and remained in that location until the project was completed. Brooke Deposition, Exhibit “34” at 3, 17, 20; Brooke Affidavit, Exhibit “35” at ¶¶ 12-13. A photograph taken on August 17, 2001 demonstrates that the signs were visible to the public. Exhibit “36.” SEP 5728. When shown the photograph, DIA’s Executive Director agreed that it accurately depicted the sign and site in August 2001. Salandra Deposition, 11/4/05, Exhibit “28” at 64.
87. Although DIA became aware of the construction in the southeast portion of City Hall Courtyard when the barricades went up on June 1, 2001, it took no steps to ascertain whether an elevator would be included. Id. at 61-63.
88. The escalator replacement program was also identified in SEPTA’s Capital Budget in Fiscal Year 2001, and was discussed at the public hearings on the Capital Budget for that Fiscal Year. Excerpts from SEPTA’s Capital Budget for Fiscal Year 2001, Exhibit “16” at SEP 2047; Excerpts from transcripts of SEPTA public hearings, Exhibit “33” at SEP 90699070; Burnfield Affidavit, Exhibit “32” at ¶¶ 19, 20.
89. The cost of installing an elevator in the City Hall Courtyard at the location of the southeast escalator is presently $2 million. Brooke Affidavit, Exhibit “35” at ¶ 36.
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Suburban Station Renovation Project 90. Suburban Station is a transit facility and a federal key station subject to the Transportation Facilities provisions of the Department of Transportation regulations, Subpart C § 37.53. Final ADA Key Station Plan and Schedule, Exhibit “11;” Settlement Agreement, Exhibit “2” at SEP3375. 91. Suburban Station has always been a mixed use transit facility combining retail, office, and transit operations in an integrated facility spanning from 15th Street to 18th Street, Market to Cuthbert Streets. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 12; Gravel Affidavit, Exhibit “37” at Exhibit “1” at 18-21. 92. In February 1995, SEPTA and the City reached a general agreement concerning the framework for the renovation of Suburban Station, its retail spaces and its concourse (the “Suburban Station Renovation Project” or the “Project”). Exhibit “38.” 93. One of the objectives was to have SEPTA, the City and private ownership enter into cooperative agreements to implement the renovations without regard to property ownership. This is consistent with 49 C.F.R. §37.51 which identifies the “responsible parties” and their legal obligations in making key stations in commuter rail accessible. Id.; Maier Deposition, 9/1/05, Exhibit “39” at 14-20. 94. SEPTA issued a Request For Proposal that broadly outlined design requirements for renovations to below ground concourses, courtyards, station and train operations, corridors, retail spaces, entrances and included ADA accessibility requirements. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 20-22; Request for Proposal, Exhibit “40” at 3, 6. In 1997, Bower, Lewis & Thrower (“BLT”) was awarded the design contract. Heiser Affidavit, 5/3/05, Exhibit “29” at
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¶ 21. 95. The scope of the Project encompassed an area West to East from 18th Street to 15th
Street and North to South from Cuthbert to Market Streets. Heiser Deposition, 10/6/05, Exhibit “41” at 19; Wolfson Deposition, 2/15/06, Exhibit “42” at 15.
96. From the inception of the Project, the 15th Street Courtyard was within the scope of the Suburban Station renovations. Heiser Deposition, 10/6/05, Exhibit “41” at 12-13, 90-91; Request for Proposal, Exhibit “40” at 3-4; Wolfson Deposition, 10/7/05, Exhibit “43” at 7-8; BLT Concourse Level Axonometric View, Exhibit “44.”
97. The Broad Street Subway, Market-Frankford Line (including the 15th Street Station), and Subway Surface Trolley Line are separate modes of mass transportation. They are not part of the commuter rail line, not within the scope of the Project, and not within the boundaries of the Suburban Station Transit Facility. Wolfson Deposition, 2/15/06, Exhibit “42” at 25-26; Kloehn Deposition, 2/14/06, Exhibit “45” at 37-39; Maier Deposition, 9/1/05, Exhibit “39” at 92-95, 98-100.
98. The design for the Suburban Station Renovation Project was separated into four phases: chilled water system improvements, asbestos abatement, platform ventilation, and main phase. The main phase included the construction/renovation of six elevators, renovations to the 15th Street corridor adjacent to the 15th Street Courtyard, and renovations to the 15th Street Courtyard. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 23, 28-29.
99. Some renovations in the 15th Street corridor extend beyond the area of the 15th Street Courtyard but end before the steps to 15th Street Station. Heiser Deposition, 10/6/05, Exhibit “41” at 48. The steps are the southernmost boundary of the Project and are also the
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property line of Suburban Station. Maier Deposition, 9/1/05, Exhibit “39” at 34, 98. 100. The ownership of the property within the scope of the Project is a combination of
SEPTA, City and private ownership. Wolfson Deposition, 2/15/06, Exhibit “42” at 16-19, 3244; Maier Deposition, 9/1/05, Exhibit “39” at 33-44.
101. SEPTA obtained the cooperation of the City and the private property owners necessary to carry out certain renovations within the scope of the Project. This included obtaining the right from the City to make renovations at the 15th Street Courtyard. Cooperation Documents, Exhibit “46;” City’s Authorization to Complete Work, Exhibit “47.”
102. Exemplifying this cooperative effort is the BLT Suburban Station Renovations Property Line Plan at the Concourse Level, which was presented to the Zoning Board of Philadelphia for approval and specifically identifies work that SEPTA would be performing on either City or privately owned property during the renovations. Suburban Station Renovations Property Line Plan at the Concourse Level, Exhibit “48.”
103. Consistent with this cooperation are several letters from the City, Liberty Property Trust, and Two Penn Center Associates that were sent to the Department of Licenses & Inspections and reflected that SEPTA received permission to proceed onto either City or private property to complete the main phase. Cooperation Documents, Exhibit “46.”
104. Attached as Exhibit “49” is an architectural schematic of Suburban Station at concourse level. The red line denotes boundary lines of the Project which reflect that the 15th Street Courtyard is within the Project boundaries and that the 15th Street Station is not.
105. BLT’s proposed design included ADA compliant elevator entrances from the street to the Suburban Station Concourse located at 17th and JFK Boulevard and at 16th Street
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midway between Market and JFK Boulevard. Both are presently operational. Kloehn Affidavit, Exhibit “50” at Exhibit “1” at 2-5; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2.
106. Exhibit “44” is an Axonometric View of the Suburban Station Transit Facility which graphically depicts that wheelchair accessibility is available to all aspects of the Suburban Station Concourse and that, from either street level elevator, a disabled person can access: (1) all train platforms using four additional concourse level elevators; (2) all transportation functions; (3) all retail spaces, courtyards and public places. Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2; Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 43-45; Wolfson Deposition, 2/15/06, Exhibit “42” at 62-63.
107. The 15th Street Courtyard is accessible from the 17th Street elevator and from the 16th Street elevator. Kloehn Affidavit, Exhibit “50” at Exhibit “1” at 4; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 1-2; Kloehn Deposition, Exhibit “45” at 78. The distance from the 16th Street elevator to the 15th Street Courtyard at concourse level is approximately 340 feet. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶ 10.
108. At street level of the 15th Street Courtyard there is signage that directs disabled persons to the 16th Street accessible elevator. Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 2; Kloehn Affidavit, Exhibit “50” at Exhibit “1” at 3-4.
109. SEPTA and the City became aware that there was Economic Development Assistance (“EDA”) grant money available for application to the 15th Street Courtyard portion of the Project. Burnfield Deposition, 9/6/05, Exhibit “52” at 22; Exhibit “53” at COP 333-34, 336, 1542-43, 1544-45.
110. A grant was applied for and awarded to SEPTA and the City in the amount of
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$750,000.00. Exhibit “54” (COP 246, 247-254, 287-288; COP 292). The 15th Street Courtyard was then taken out of the main phase and put into an Accelerated Phase. Exhibit “55,” SEPTA 0551-0552, COP 3687.
111. Work on the 15th Street Courtyard began in February, 2001 and included replacing a concrete stairway that was unsafe and in disrepair, renovating the head house at 15th Street and replacing planters, but no work was done to the escalators. Wolfson Deposition, 2/15/06, Exhibit “42” at 12; Wolfson Affidavit, Exhibit “51” at Exhibit “1” at 2; Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 56-59; Heiser Deposition, 10/6/05, Exhibit “41” at 88.
112. The replacement of the stairway at the 15th Street Courtyard did not require any major structural modifications. Exhibit “29” at ¶ 58.
113. The new stairway at the 15th Street Courtyard brings an ambulatory person from street level to the same point within the Suburban Station Transit Facility as the old stairway. Id. at ¶ 59; Wolfson Deposition, 2/15/06, Exhibit “42” at 12. The replacement of the stairway did not change the access from the street level to the Suburban Station concourse in any way. Id., 5/3/05, Exhibit “29" at ¶ 60.
114. To renovate the 15th Street Courtyard, SEPTA obtained the City’s cooperation and authorization to obtain a permit to complete that work without an elevator. Exhibit “47” at COP 156-158.
115. On or about October 17, 2000, SEPTA obtained permission from the City Department of Licenses & Inspections to perform the work at the 15th Street Courtyard, which was not conditioned on installing an elevator. Wolfson Deposition, 10/7/05, Exhibit “43” at 20; Exhibit “56” at COP 170-171.
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116. The scope of the renovations to the corridor adjacent to the 15th Street Courtyard did not extend beyond the property line of Suburban Station. Heiser Deposition, 10/6/05, Exhibit “41” at 45-49.
117. SEPTA did not perform any renovations to the underground connection from Suburban Station to the 15th Street Station. Id.
118. If an elevator were installed at street level in the 15th Street Courtyard, it would not bring an individual to the 15th Street Station but only to the 15th Street corridor of the Suburban Station Transit Facility which is already accessible from the 16th and 17th Street elevators. Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 53-54, 62-69; Exhibit “57” (COP 589).
119. In order to reach the 15th Street Station, an individual who enters the Suburban Station Transit Facility at the 15th Street Courtyard must travel south in the 15th Street corridor, exit Suburban Station, and travel over underground transit lines. Maier Deposition, Exhibit “39” at 67; Heiser Affidavit, 5/3/05, Exhibit “29” at ¶¶ 64, 66-67; BLT Structural Drawing “Section Through 15th Street Corridor Looking East,” Exhibit “58.”
120. The property lines defining the scope of the Suburban Station renovations are the same as those established for Suburban Station and the Penn Center Complex (as it was then named) by the Pennyslvania Railroad in 1950. Putnam Affidavit, Exhibit “59,” at Exhibit “1” at 2-3.
121. Suburban Station’s mixed use components today are of the same nature as when the Suburban Station was conceived and developed by the Pennsylvania Railroad in the 1950s. Gravel Affidavit, Exhibit “37” at Exhibit “1” at 9-21.
122. Today, SEPTA has assumed general cleaning responsibilities for all corridors and
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the Concourse within the Suburban Station Transit Facility. Maier Affidavit re Map of Cleaning Responsibilities, Exhibit “60.”
123. Coordination of the retail environment is implemented through a Master Lease Agreement between Metro-Market and SEPTA covering the majority of the retail locations, Exhibit “61,” SEPTA 11,326-11,461. The Master Lease standardizes tenant lease terms, location appearances and other rights and obligations of the retail tenants.
124. SEPTA initiated an Escalator Replacement Program in 1999 to replace the escalators within the SEPTA system that were not already being repaired or replaced as part of some other project. Brooke Deposition, Exhibit “34” at 13-15.
125. The purpose of the Escalator Replacement Program was to optimize escalator safety, operation, and maintenance throughout the SEPTA System. Id. at 14-15. Phase II of that program consisted of the replacement of six escalators with new escalators at four different locations, one of which was located in the southeast quadrant of the City Hall Courtyard. Id. at 15.
126. The existing escalator was located in an existing wellway connecting the City Hall Courtyard with the mezzanine level located directly below it. Id. at 21-22. A wellway is defined as the vertical shaft in which an escalator is located. It is customarily made of concrete, and is enclosed on all sides, top, and bottom. Id. at 145-146.
127. The existing wellway was extended at the top and bottom so that an ADA compliant escalator could be installed. Id. at 113-114.
128. The existing escalator was removed from the existing wellway, and the new escalator was installed in the existing wellway and made operational in August, 2003. Id. at 50,
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145-146.

129. The southeast escalator operates as an exit only, leading from the mezzanine level below the City Hall Courtyard to the Courtyard level. Id. at 22. There is no down escalator or stairs at this location. Brooke Affidavit, Exhibit “35” at ¶ 20.
130. The replacement of the southeast escalator did not change the access that was

provided at that location prior to the replacement. Brooke Deposition, Exhibit “34” at 101-102. 131. The Broad Street Subway platforms are not located on or below the mezzanine

level at the location of the southeast escalator. There is nothing located below the mezzanine

level at the location of the southeast escalator. Brooke Affidavit, Exhibit “35” at ¶ 23. 132. The Broad Street Subway platforms can only be accessed from the southeast
escalator location by walking through the mezzanine to the ticket booth, entering the ticket booth, and descending separate sets of stairs to the northbound and southbound platforms of the Subway. Id. at ¶ 24.
133. It is not possible to install an elevator in the location of the southeast escalator

that would lead to the platforms of either the Broad Street Subway or the Market Frankford

Subway Elevated. Id. at ¶ 26; Brooke Deposition, Exhibit “34” at 114-116, 133. WHEREFORE, SEPTA respectfully demands the entry of summary judgment in its
favor, and against DIA, on Counts I and II of DIA’s Fourth Amended Complaint.

SHK5264

DATE:

April 5, 2006

__________________________________
SAUL H. KRENZEL, ESQUIRE SAUL H. KRENZEL & ASSOCIATES The Robinson Building 42 So. 15th Street, Suite 800 Philadelphia, PA 19102 (215) 977-7230 Attorney for Defendant, SEPTA

28

 
 Case 2:03-cv-01577-GP Document 155 Filed 11/04/08 Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________________________________________________

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

CIVIL ACTION

:

v.

:

No. 03-CV-1577

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

:

Defendant.

:

________________________________________________________________________

ORDER

AND NOW, this ___________ day of _____________, _______, upon consideration of

Plaintiff=s Motion for Summary Judgment, and the response thereto, it is hereby ORDERED and

DECREED that the Motion is GRANTED. Defendant, SEPTA, is hereby ORDERED to construct an elevator at the 15th Street
Entrance to the 15th Street Market-Frankford Station, from street level to concourse level, and to

construct an elevator in the southeast City Hall Courtyard from street level to concourse level, to

provide access to individuals who use wheelchairs.

SEPTA is further ORDERED to submit a schedule of compliance to Plaintiff=s counsel

and the Court within 45 days.

BY THE COURT:

____________________________ Honorable Gene E.K. Pratter United States District Judge

Case 2:03-cv-01577-GP Document 155 Filed 11/04/08 Page 2 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________________________________________________

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

CIVIL ACTION

:

v.

:

No. 03-CV-1577

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

:

Defendant.

:

________________________________________________________________________

PLAINTIFF DISABLED IN ACTION OF PENNSYLVANIA’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56, Plaintiff, Disabled in Action of

Pennsylvania (DIA), by and through its counsel, files this Motion for Summary Judgment. The

undisputed material facts and the relevant law establish that Defendant Southeastern

Pennsylvania Transportation Authority (SEPTA) has discriminated against individuals with

disabilities in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12132,

12147(a), and 12147(b), and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. §

794.

Specifically, as stated in Count I of Plaintiff’s Fourth Amended Complaint (Complaint),

SEPTA violated the ADA and Section 504 by: (1) failing to provide access to persons with mobility disabilities, including those who use wheelchairs, when it altered and renovated the 15th and Market Streets entrance (15th Street Entrance) to the Market-Frankford Subway-Elevated Line 15th Street Station; and (2) by failing to provide access to persons with mobility disabilities,

1

Case 2:03-cv-01577-GP Document 155 Filed 11/04/08 Page 3 of 41

including those who use wheelchairs, when it altered and renovated the southeast City Hall Courtyard exit from the Broad Street Subway City Hall Station.
In support of this Motion, Plaintiff submits the attached Memorandum of Law, including Plaintiff’s Statement of Undisputed Facts, which are incorporated by reference as if fully set forth herein. Plaintiff also incorporates by reference the Exhibits filed in support of their prior April 5, 2006 Motion for Summary Judgment and their prior Response to SEPTA’s April 5, 2006 Motion for Summary Judgment.

DATED: November 4, 2008

Respectfully submitted,
//s// Rocco J. Iacullo ____________________________ ROCCO J. IACULLO, ESQUIRE Attorney Id. No. 86144 Disabilities Law Project The Philadelphia Building 1315 Walnut Street, Suite 400 Philadelphia, PA 19107 (215) 238-8070
STEPHEN GOLD, ESQUIRE Attorney Id. No. 09880 125 South Ninth Street, Suite. 700 Philadelphia, PA 19107 (215) 627-7100 Attorneys for Plaintiff

2

Case 2:03-cv-01577-GP Document 155 Filed 11/04/08 Page 4 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________________________________________________

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

CIVIL ACTION

:

v.

:

No. 03-CV-1577

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY,

:

:

Defendant.

:

________________________________________________________________________

PLAINTIFF DISABLED IN ACTION OF PENNSYLVANIA’S MEMORANDUM OF LAW AND PROPOSED FINDINGS OF FACT
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Plaintiff Disabled in Action of Pennsylvania (DIA), by and through its counsel, submits

this Memorandum of Law and Proposed Findings of Fact in support of its Motion for Summary

Judgment pursuant to Federal Rule of Civil Procedure 56. With no disputed material facts, the

case is appropriate for summary judgment.

The undisputed material facts and the relevant law establish that Defendant Southeastern

Pennsylvania Transportation Authority (SEPTA) has discriminated against individuals with

disabilities in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12132,

12147(a), and 12147(b), and Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. §

794.

Specifically, as stated in Count I of Plaintiff’s Fourth Amended Complaint (Complaint),

SEPTA violated the ADA and Section 504 by: (1) failing to provide access to persons with mobility disabilities, including those who use wheelchairs, when it altered and renovated the 15th and Market Streets entrance (15th Street Entrance) to the Market-Frankford Subway Elevated

3

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Line (Market-Frankford Line) 15th Street Station; and (2) by failing to provide access to persons with mobility disabilities, including those who use wheelchairs, when it altered and renovated the southeast City Hall Courtyard exit from the City Hall Station of the Broad Street Subway. I. STATEMENT OF UNDISPUTED MATERIAL FACTS
A. Plaintiff Disabled in Action 1. Plaintiff Disabled in Action of Pennsylvania (DIA) is a non-profit corporation which advocates for the civil rights of and services for persons with disabilities. See Plaintiff’s Exhibit 2 to its April 5, 2006 Motion for Summary Judgment at pgs. 13-181. 2. DIA has approximately 450 current active members, many of whom use wheelchairs and use SEPTA for their public transportation. Id. at pg.15. 3. DIA assists persons with disabilities to achieve equality with non-disabled persons and to advocate for the elimination of discrimination against people with disabilities in all aspects of community life, including transportation and housing. Id. at pgs. 23-42. 4. DIA has advocated for accessible entrances to both the Broad Street Subway City Hall Station and the Market-Frankford Elevated Line 15th Street Station. Id. 5. DIA’s members and participants use and want access to SEPTA’s MarketFrankford Line 15th Street Station and the Broad Street Subway City Hall Station. Id. 6. SEPTA’s violation of the ADA and Section 504 has injured DIA by forcing it to advocate for the development and improvement of nondiscriminatory transportation services, diverting its time and resources from assisting persons with disabilities with other issues
1 Rather than resubmitting the voluminous Exhibits to both Plaintiff’s April 5, 2006 Motion for Summary Judgment, and its May 3, 2006 Response to SEPTA’s April 5, 2006 Motion for Summary Judgment, Plaintiff instead references those Exhibits throughout this Motion as either Plaintiff’s Motion Exhibits or Plaintiff’s Response Exhibits. Likewise, Plaintiff references any Exhibits from SEPTA’s April 5, 2006 Motion for Summary Judgment as SEPTA Motion Exhibits.
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including accessible and affordable housing, attendant care services, equal employment opportunities and access to places of public accommodation. Id. at pgs. 40-42.
7. DIA and its members are also directly and concretely injured by SEPTA’s failure to provide access to the Market-Frankford Line 15th Street Station and the Broad Street Subway City Hall Station because members are unable to use these stations to get to and from meetings, programs and advocacy activities, which further curtails the organizational activities and goals of DIA. Id. at pgs. 39-41.
B. Southeastern Pennsylvania Transportation Authority 8. SEPTA is a state-created instrumentality that provides public transportation services in southeastern Pennsylvania, including the counties of Bucks, Chester, Delaware, Montgomery, and Philadelphia. Pa. Cons. Stat. Ann. § 1711; see also SEPTA Fiscal Year 2006 Capital Budget and Fiscal Year 2006-2017 Capital Program (Plaintiff’s Motion Exhibit 3) at pg. 5. 9. SEPTA operates a “vast network of fixed-route services including bus, subway, subway-elevated, regional rail, light rail, and trackless trolley, as well as customized community service.” Plaintiff’s Motion Exhibit 3 at pg. 5. 10. SEPTA’s City Transit Division operates a network of 82 subway-elevated, light rail, trackless trolley, and bus routes, providing approximately 850,000 passenger trips per day. Id. 11. SEPTA receives federal financial assistance and is subject to the Rehabilitation Act, 29 U.S.C. §§ 794(a)-(b)(1)(A). Id. at pgs. 9-17. SEPTA is also a public entity as defined by Title II of the ADA, 42 U.S.C. § 12131. Id.
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C. The Market-Frankford Line 15th Street Station 12. The Market-Frankford Line is a high-speed light rail line operated by SEPTA that operates in part above ground (elevated) and in part below ground (subway). See SEPTA history of Market-Frankford Subway-Elevated Line (Plaintiff’s Motion Exhibit 4) and Market-Frankford Line Route Map (Plaintiff’s Motion Exhibit 5); see also Plaintiff’s Motion Exhibit 3 at pg. 44. 13. The Market-Frankford Line operates above ground from the Frankford Transportation Center located in Northeast Philadelphia through the Spring Garden Station. It then operates underground between the stations at 2nd and Market Streets and 44th and Market Streets and then continues above-ground to its 69th and Market Streets Station in Delaware County. Plaintiff’s Motion Exhibit 3 at pg. 44. 14. The Market-Frankford Line has the following subway station stops in Center City: 2nd and Market Streets, 5th and Market Streets, 8th and Market Streets, 11th and Market Streets, 13th and Market Streets, and 15th and Market Streets. See Plaintiff’s Motion Exhibit 5. 15. The Market Frankford Line 15th Street Station is located underground at 15th and Market Streets, with the eastbound and westbound platforms of the station located under the bed of 15th Street adjacent to Dilworth Plaza and City Hall. See Plaintiff’s Motion Exhibits 6 and 7. 16. The address of the 15th Street Market-Frankford Line Station is 15th and Market Streets. See Plaintiff’s Motion Exhibit 6. 17. The 15th Street Station serves as the major transfer point and interchange with other SEPTA rail lines, including the Broad Street Subway, Subway-Surface Trolleys, and Regional Rail lines. See SEPTA Market-Frankford Line, Broad Street Subway, Subway-Surface and Regional Rail Maps and SEPTA Center City Philadelphia Street and Transit Map (Plaintiff’s Motion Exhibit 8).
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Case 2:03-cv-01577-GP Document 155 Filed 11/04/08 Page 8 of 41
18. The Suburban Regional Rail Station serves distinct and separate rail lines than the 15th Street Station. Id. The Suburban Regional Rail Station serves SEPTA’s regional rail lines and the 15th Street Station serves the Market-Frankford Line. Id.
19. The address of Suburban Regional Rail Station is 16th Street and JFK Boulevard. See Plaintiff’s Motion Exhibit 9.
D. 15th Street Market-Frankford Line Entrance 20. The 15th Street Entrance is a street level open-air entrance to the MarketFrankford Line 15th Street Station located at the northwest corner of 15th and Market Streets, directly across the street from City Hall and Dilworth Plaza. See photographs of the 15th Street Entrance taken by Plaintiff’s counsel (Plaintiff’s Motion Exhibit 15); see also SEPTA photograph of directional signage within the 15th Street Entrance escalator headhouse (Plaintiff’s Motion Exhibit 16). 21. The 15th Street Entrance is located on land owned by the City and leased to SEPTA. See statement by Andres Perez of June 15, 2000 (Plaintiff’s Motion Exhibit 17) and Deposition of Christopher Zearfoss, Senior Transportation Project Manager, City of Philadelphia Office of Strategic Planning (Plaintiff’s Motion Exhibit 18) at pg. 63, line 13 – pg. 64, line 12. 22. The City of Philadelphia, shortly after the 15th Street Entrance’s construction in the 1960’s, depicted the entrance as an entrance to the 15th Street Station of the Market-Street Subway and the Subway-Surface Lines. See City of Philadelphia 1963 Capital Program photograph and description of 15th Street Entrance (Plaintiff’s Motion Exhibit 19). 23. Christopher Zearfoss, Senior Transportation Project Manager, City of Philadelphia Office of Strategic Planning, testified that you can directly access the 15th Street Station from the 15th Street Entrance as follows: “if you’re proceeding west, having come down
7

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the stairway, you take a left, you come to a flight of steps that lead up to the cashier facility that leads to the 15th Street Station of the Market-Frankford Line.” Plaintiff’s Motion Exhibit 18 at pg. 81, line 6 – pg. 82, line 8.
24. Mr. Zearfoss further testified that the platform and tracks for the MarketFrankford Line are located directly under the stairs leading to the cashier facility for the 15th Street Station. Id.
25. SEPTA clearly recognizes and acknowledges the 15th Street Entrance as an entrance to the 15th Street Market-Frankford Line Station. See Plaintiff’s Motion Exhibit 6.
26. SEPTA’s own directional signage affixed to the renovated escalator headhouse at the 15th Street Entrance, which is viewed by SEPTA patrons as they descend the escalator, identifies it as an entrance to the Market-Frankford Line 15th Street Station as well as providing access to the Subway-Surface Trolley Lines, the Broad Street Subway, and to the Suburban Regional Rail System. See Plaintiff Motion Exhibits 15 and 16.
27. Gerald Maier, SEPTA’s Director of Real Estate, testified that pedestrians can reach the 15th Street Station by utilizing the 15th Street Entrance. See Deposition of Gerald Maier (Plaintiff’s Motion Exhibit 20) at pg. 65, line 23 – pg. 67, line 20.
28. Various maps and diagrams depict the close proximity of the 15th Street Entrance to the Market-Frankford Line 15th Street Station, and demonstrate that the 15th Street Entrance is closer to the Market-Frankford Line than it is to the high speed Subway-Surface Trolley line, the Broad Street Subway, and to the Suburban Regional Rail System. See Plaintiff’s Motion Exhibit 7; see also portion of City of Philadelphia Center City Concourse System map, dated November 3, 1978 (Plaintiff’s Motion Exhibit 21).
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29. The 15th Street Entrance is highly visible to the public, it is advertised by SEPTA as an entrance to the Market-Frankford Line, and pedestrians use it to enter the MarketFrankford Line 15th Street Station. Plaintiff’s Motion Exhibits 15-21.
30. The 15th Street Entrance undisputedly provides access to and is an entrance to the 15th Street Market-Frankford Station. See Disabled in Action v. Southeastern Pennsylvania Transportation Authority, 539 F.3d 199, 202 n.1 (3rd Cir. 2008).
E. The 15th Street Entrance is Distinct From Suburban Station 31. There are multiple property lines within the geographical boundary that SEPTA defines as the Suburban Station facility extending from 15th Street to 18th Street and from Cuthbert to Market Street. See SEPTA’s Exhibit 48 to its April 5, 2006 Motion for Summary Judgment (hereinafter SEPTA’s Motion Exhibits), see also Three Penn Center Plot Plan, Two Penn Center Topographical Plans, and Commonwealth Land Title Insurance Co. Plan attached as Exhibits D, E, and F to Plaintiff’s May 3, 2006 Response to SEPTA’s Motion for Summary Judgment (hereinafter Plaintiff’s Response Exhibits). 32. The 15th Street Entrance has its own discrete property line, as does Two Penn Center, Three Penn Center and many of the other office buildings within the SEPTA defined socalled outer perimeter of the “Suburban Station facility.” Id. 33. SEPTA readily admits that there are multiple property lines within the perimeter that SEPTA defines as the Suburban Station facility, which are depicted on the BLT Concourse Property Line Plan dated 8/15/01. See SEPTA’s Motion Exhibit 48, and Deposition of SEPTA expert, Donald Kloehn (Plaintiff’s Response Exhibit G), at pg. 95, line 14-pg. 103, line 7. 34. Roderick Wolfson (the project architect from Bower Lewis Thrower, who specified the demolition of the existing stairs at the 15th Street Entrance and designed the
9

Case 2:03-cv-01577-GP Document 155 Filed 11/04/08 Page 11 of 41
replacement stairs) admitted that there are multiple property lines within that geographical boundary, including a discrete property line for the 15th Street Entrance and Courtyard. See Plaintiff’s Response Exhibit H at pg 16. line 9 – pg. 19, line 3; and pg. 39, line 24 – Pg. 44, line 25.
35. Deeds uncovered by Plaintiff show that the property upon which the 15th Street Entrance stands, and as delineated by the property lines on the BLT Concourse Plan, was conveyed from the Pennsylvania Railroad Company to the City of Philadelphia in 1960. See Plaintiff’s Response Exhibit I.
36. There is also a deed referencing the conveyance of the land upon which Three Penn Center stands from the Pennsylvania Railroad Company to Three Penn Center in 1956. See Plaintiff’s Response Exhibit J.
37. Both of these deeds also mention the rights of the “Market Street Elevated Passenger Railway Co. and the Philadelphia Transportation Co. …. to use, operate and maintain the subway in Market Street and also the entrances to and exits from said subway on the land hereby conveyed.” See Plaintiff’s Response Exhibit I at pg. 3, ¶ 3; Exhibit J at pg. 4.
38. Mr. Wolfson acknowledged that the City of Philadelphia, not SEPTA, owns the 15th Street Courtyard/Entrance, and that it has its own discrete property line. Plaintiff’s Response Exhibit H at pg. 16, line 17 – line 22.
39. Mr. Wolfson admitted that as rightful owner of the 15th Street Entrance the City of Philadelphia has control over that property and that they could close it down and it would no longer be part of “Suburban Station facility.” Id. at pg. 20, line 14 – line 24.
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40. Mr. Wolfson also stated that there are so called “islands of exclusions” within

SEPTA’s designated outer perimeter of the Suburban Station Facility. Id. at pg. 26, line 22 – pg.

28, line 9.

41. He testified that by “islands of exclusions” he was referring to property ownership

belonging to the office towers, including their property at concourse level, that are not part of the

Suburban Station Transit Facility, even though their property is located within the outer

perimeter of the SEPTA defined facility. Id.

42. According to the BLT Property Line Concourse Plan, there is a distinct property

line for an area that directly encompasses what could be considered the primary area of Suburban Station (16th Street to 17th Street, JFK Blvd. to Cuthbert Street), including waiting areas, ticket

offices at concourse level and the train platforms at platform level. See SEPTA Motion Exhibit

48, and Plaintiff’s Response Exhibit K.

43. The waiting areas and ticket areas of Suburban Station are approximately one and half blocks from the 15th Street Entrance. Plaintiff’s Response Exhibit G at pg. 49 line 17 – pg

50 line 15. 44.

The 15th Street Entrance does not provide direct access to these waiting areas or

ticket areas of Suburban Station and does not provide direct access to the train platforms of

Suburban Station. Id. F. 15th Street Market-Frankford Line Entrance Alterations and Renovations 45. Prior to 2001, the 15th Street Entrance consisted of a set of stairs, which descended

into the center of a courtyard, and two escalators enclosed within a headhouse. See SEPTA prerenovation photographs of 15th Street Entrance (Plaintiff’s Motion Exhibit 22).

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46. In February 2001, SEPTA began an alteration and renovation of the 15th Street Entrance. See SEPTA Capital Project Progress Report from February 2001 (Plaintiff’s Motion Exhibit 23).
47. As part of the renovation work, SEPTA completely demolished the centrally located existing stairs and constructed new stairs along the southeastern wall of the entrance. See Plaintiff’s Motion Exhibit 20 at pg. 60, line 25 – pg. 61, line 22, and Deposition of Terry Heiser, SEPTA Senior Project Manager for the Suburban Station and City Hall Station Renovation projects (Plaintiff’s Motion Exhibit 24) at pg. 14, line 22 – pg. 15, line 25.
48. Gerald Maier stated that “the original stairs came from the western part of the courtyard about in the middle and kind of plunked themselves down into the middle of the courtyard” and that “the plan was to remove those stairs and to replace them with a stair entrance right at the corner of 15th and Market, which is what was done.” Plaintiff’s Motion Exhibit 20 at pg. 60, line 25 – pg. 61, line 22
49. Terry Heiser also verified the demolition of the stairs and construction of new stairs as part of the renovation to the 15th Street Entrance. Plaintiff’s Motion Exhibit 24 at pg. 14, line 22 – pg. 15, line 25.
50. Roderick Wolfson, Project Architect with Bower Lewis Thrower hired by SEPTA for the Suburban Station and City Hall Station Rehabilitation Projects, testified that the 15th Street Entrance stair was demolished as it was BLT’s conclusion that the stair was beyond repair due to deterioration of the concrete. See Deposition of Roderick Wolfson (Plaintiff’s Motion Exhibit 25) at pg.13, line 12 - line 22.
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51. SEPTA’s building permit submitted to the City of Philadelphia identified the project as follows:
Demolition incorporates head house, stair, railings, limited wall, veneer, pavement and lighting systems. Also to be removed are planters, fountain and ceilings. Construction scope consists of glass head house, stair, (2) retail spaces, railings, storefront system, planters, lighting and paving installed, as well as new ceiling. Plaintiff’s Motion Exhibit 26. 52. Photographs produced by SEPTA explicitly depict the demolition of the centrally located existing stairs, and the construction of the new stairs along the southeastern edge of the 15th Street Entrance. See SEPTA 15th Street Entrance construction photographs (Plaintiff’s Motion Exhibit 27). 53. SEPTA recognizes that the stairs at the 15th Street Entrance were unsafe, in disrepair, and were entirely replaced. See SEPTA Brief in Support of its April 5, 2006 Motion for Summary Judgment at 48. 54. Mr. Wolfson admitted that the existing stairs could have been repaired by replacing the concrete treads, i.e. “normal maintenance,” instead of demolishing the stairs and replacing them. Plaintiff’s Response Exhibit H at pg. 55, line 18 – pg. 57, line 17. 55. He admitted that normal maintenance would have included putting new treads on stairs, painting the area, and installing new lighting. Id. 56. Mr. Wolfson also admitted the obvious fact that stairs affect the usability of a facility. Plaintiff’s Response Exhibit H at pg. 53, line 11 – pg. 55, line 17. 57. SEPTA’s expert, Donald Kloehn, admitted that stairs affect the usability of a facility. Plaintiff’s Response Exhibit G at pg. 71, line 19 – pg. 72, line 4; pg. 77, line 14-line 22.
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58. The alteration and renovation project was completed, and the new stairs were reopened to the public on August 8, 2002. See SEPTA Capital Project Summary Report, August 2002 (Plaintiff’s Motion Exhibit 28).
59. SEPTA did not install an elevator at the 15th Street Entrance as part of the project, and thus, the newly renovated entrance cannot be used by individuals who use wheelchairs. Plaintiff’s Motion Exhibits 23-28.
60. It is technically feasible to install an elevator at the 15th Street Entrance from street level to the concourse level. Plaintiff’s Motion Exhibit 24 at pg. 54, line 11 – pg. 55, line 5.
G. City Hall Broad Street Subway Station 61. City Hall Station was constructed in 1928 as part of the original Broad Street Subway which extended underground below Broad Street from Olney Avenue to City Hall. See SEPTA Broad Street Subway History (Plaintiff’s Motion Exhibit 29); and City Hall Renovations document. (Plaintiff’s Motion Exhibit 30). 62. City Hall Station served as the southern terminus of the Broad Street Subway line until April 1930, when the line was extended to South Street. Id. The subway now extends as far north as Fern Rock Station and as far south as Pattison Avenue Station. Id. 63. The Broad Street Subway and the City Hall Station are located under the MarketFrankford Line and Subway Surface Lines underneath City Hall’s western foundations. See City Hall Station Renovations –Request for Proposal (Plaintiff’s Motion Exhibit 31). 64. The address for the City Hall Broad Street Subway Station is Broad and Market Streets. See SEPTA City Hall Station address (Plaintiff’s Motion Exhibit 32).
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65. The City Hall Station has several direct entrances including a stair entrance from Dilworth Plaza at street level to the lower north concourse, a stair entrance from street level at the City Hall Courtyard to the lower south concourse, and an escalator serving as an exit from the lower south concourse to the southeast City Hall Courtyard. Plaintiff’s Motion Exhibit 29; see also Heiser Deposition Exhibits 5B, 6A, & 6B (Plaintiff’s Motion Exhibit 33); and City Hall Station Renovations Existing Concourse Level Plan (Plaintiff’s Motion Exhibit 34).
66. The escalator located in the southeast City Hall Courtyard is an exit from the City Hall Station mezzanine or concourse level. See Disabled in Action v. Southeastern Pennsylvania Transportation Authority, 539 F.3d 199, 202 n.8 (3rd Cir. 2008).
67. The Broad Street Subway’s lower concourses run north and south of the MarketFrankford Line. See Plaintiff’s Motion Exhibits 30, 33 and 34.
68. From the lower south concourse under the City Hall Courtyard pedestrians can travel east through the concourse, without using any stairs, to reach the eastbound platforms of the 13th Street Market-Frankford Station and the 11th Street Market-Frankford Station. Id.; see also deposition transcript of Skip Brooke, Director of Engineering in SEPTA’s Bridges and Buildings Department (Plaintiff’s Motion Exhibit 35) at pg. 22, line 21 – pg. 26, line 13.
69. From that same location in the lower south concourse under City Hall Courtyard, a pedestrian can travel east and then south, without using stairs, to reach the South Broad Street concourse, the Walnut-Locust Broad Street Subway Station, and can actually continue in the South Broad Street concourse to the PATCO Line under 15th and Locust Streets (there is a PATCO elevator which can be used to reach the street at this location). See Plaintiff’s Motion Exhibit 35 at pg. 40, line 6 – pg. 41, line 7; Exhibit 24 at pg. 74, line 11 – pg. 77, line 10; Exhibit 18 at pg. 144, line 21 – pg. 147, line 3; see also Plaintiff’s Motion Exhibit 33.
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70. The station serves as a major interchange between the Broad Street Line, MarketFrankford Line, Subway-Surface Lines and Regional Rail Lines. Id.; see also Plaintiff’s Motion Exhibit 8.
H. City Hall Broad Street Subway Station Southeast Escalator Replacement 71. In August 2003, SEPTA completed the replacement of an escalator in the southeast corner of the central City Hall Courtyard, which serves as an exit for patrons disembarking from the Broad Street Subway City Hall Station and pedestrians traversing the concourse. See City Hall Station Renovations BLT Meeting Minutes at Item 20-03 and FY 2003 Capital Budget, Escalator/Elevator Program report (Plaintiff’s Motion Exhibit 42); see also Brooke Affidavit at ¶ 19 (Plaintiff’s Motion Exhibit 43); and Plaintiff’s Motion Exhibits 33 & 34. 72. The escalator was inoperable prior to the replacement. See Plaintiff’s Motion Exhibit 43 at ¶ 15. 73. The southeast City Hall Courtyard escalator was one of six escalators replaced as part of Phase II of SEPTA’s Escalator Replacement Program, a program under which numerous inoperable or deteriorated escalators have been replaced throughout SEPTA’s transit system. Plaintiff’s Motion Exhibit 43 at ¶¶ 4-7 & Exhibit 35 at pg. 13, line 16 – pg. 19, line 20. 74. Skip Brooke, Director of Engineering in the Bridges and Buildings Department at SEPTA, testfied that the existing southeast City Hall Courtyard escalator was removed from the wellway in order to facilitate installation of the new escalator. Plaintiff’s Motion Exhibit 35 at pg. 49, line 3 – 11.
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75. Mr. Brooke testified that the prior escalator had inadequate vertical clearance for the new escalator. Plaintiff’s Motion Exhibit 35 at pg. 55, line 2 – line 10; pg. 57, line 21 – pg. 58, line 2; pg. 69, line 21 – pg. 70, line 4; and pg. 73, line 4 – line 18.
76. Mr. Brooke testified that installation of the new escalator required SEPTA to physically relocate the truss in the wellway (the truss is the structural piece that physically supports the escalator along its length) to accomplish the required seven foot vertical clearance. Id.
77. Mr. Brooke also explained in detail the construction photographs taken of the southeast City Hall Courtyard escalator replacement project. Plaintiff’s Motion Exhibit 35 at pg. 58, line 8 – pg. 77, line 14; see also photographs of escalator before, during and after construction (Plaintiff’s Motion Exhibit 44). SEPTA’s Fiscal Year 2005 Capital Budget also contains two photographs depicting the new escalator and headhouse in the southeast City Hall courtyard, and identifies plans to replace the escalator in the Northwest courtyard. See 2005 Fiscal Year Capital Budget at pgs. 42-43 (Plaintiff’s Motion Exhibit 45).
78. SEPTA admitted that the replacement of the escalator affected the usability of the City Hall Station because it was previously inoperable and unusable by people disembarking from the station, but after the replacement, the escalator can now be used by people exiting the station. See Plaintiff’s Motion Exhibit 35.
79. SEPTA provided no elevator access for individuals who use wheelchairs as part of this renovation project to the City Hall Station southeast City Hall Courtyard. Plaintiff’s Motion Exhibits 42 – 45.
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80. It is technically feasible to install an elevator in the City Hall Courtyard to provide access from the street level to the lower concourse level. Plaintiff’s Motion Exhibit 35 at pg. 95, lines 9-16; and Exhibit 43 at ¶ 36. II. ARGUMENT
A. Summary Judgment Standard Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P 56(c). See also Pittston Co. Ultramar America v. Allianz Ins., 124 F.3d 508, 515 (3d Cir. 1997). If there is no genuine dispute concerning any facts material to its claims, summary judgment must be entered in favor of Plaintiff.
B. Plaintiff Has Standing To Pursue These Claims Plaintiff DIA has sustained injury in its own right as a result of SEPTA’s failure to make the 15th Street Entrance to the Market-Frankford Line 15th Street Station and the southeast City Hall Courtyard Broad Street Subway exit accessible to persons with disabilities, including those who use wheelchairs. See Statement of Undisputed Facts (SUF) Nos. 1-7. DIA has expended its own time, money and resources in a variety of ways due to the inaccessibility of the identified transportation facilities. SUF No. 6. DIA’s work has been interrupted as a result of the inaccessibility of the entrances. SUF Nos. 6 & 7. Accordingly, DIA has standing to sue as an organization. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); Alexander v. Riga, 208 F.3d 419, 427 n.4 (3d Cir. 2000); Robinson v. Block, 869 F.2d 202, 207, 210 n.9 (3d Cir. 1989); ADAPT v. Philadelphia Housing Authority, No. 98-4609, 2000 WL 433976 at *2-*3, *5*6 (E.D. Pa. Apr. 14, 2000); Liberty Resources, Inc. v. SEPTA, 155 F.Supp. 2d 242, 242-52 (E.D.Pa. 2001), vacated as moot, 54 Fed. Appx. 769 (3d. Cir. 2002).
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DIA also has standing to pursue this lawsuit on behalf of its members. DIA’s members are individuals with disabilities who utilize SEPTA’s transportation services and these individuals have been unable to access SEPTA’s facilities at the identified entrances. SUF Nos. 2, 5, & 7. DIA’s members are qualified individuals with disabilities as defined by the ADA and the Rehabilitation Act of 1973. SUF No. 2. DIA may pursue this case on behalf of its members because (1) those members have been harmed by SEPTA’s failure to make the identified entrances wheelchair accessible and (2) the interests DIA seeks to protect are germane to its organizational purposes to eradicate transportation barriers that inhibit the ability of individuals with disabilities to live independently in their communities. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977); Doe v. Stincer, 175 F.3d 879, 882-83, 885-86 (11th Cir. 1999).
C. SEPTA Violated the ADA By Altering the 15th Street Market-Frankford Station Entrance and The City Hall Broad Street Subway Station Exit Without Making Them Accessible To Individuals With Disabilities 1. Plaintiff Represents Individuals With Disabilities Protected By The ADA and Section 504 and SEPTA Is Subject To The Requirements Of Those Statutes
There is no dispute that all of DIA’s members are eligible to use SEPTA's fixed route transportation system. SUF Nos. 2, 5, & 7. Therefore, they are qualified persons with disabilities under the ADA and Section 504. 42 U.S.C. §§ 12102(2), 12131(2); 29 U.S.C. §§ 705(9)(B), 705(20). It is also undisputed that SEPTA is a public entity subject to Title II of the ADA, including the provisions governing public transportation. 42 U.S.C. § 12131(1)(B); 74 Pa. Cons. Stat. Ann. § 1711, and SUF Nos. 8-11. As the recipient of federal funds, SEPTA is also subject to Section 504 of the Rehabilitation Act. 29 U.S.C. § 794; Id. Since SEPTA is a federallyfunded, public entity that operates a fixed route transportation system, it is required to comply
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with the new construction and alterations provisions of the ADA, 42 U.S.C. § 12147, and Rehabilitation Act, 29 U.S.C. § 794.
2. Under the ADA, Congress Intended That Alterations To Transportation Facilities Would Trigger Equal Access
In enacting the ADA, Congress found that isolation, segregation, and discrimination against individuals with disabilities persists in the “critical area[] of . . . transportation.” 42 U.S.C. §12101(a)(3). Accordingly, the ADA bars discrimination in public transportation. 42 U.S.C. §12147(a); see also S. REP. NO. 101-116, at 13 (1989) (“Transportation is the linchpin which enables people with disabilities to be integrated and mainstreamed into society.”); H.R. REP. NO. 101-485, pt. 3, at 63 (1990) (“The ADA is geared to the future-the goal being that, over time, access will be the rule, rather than the exception”)(emphasis added). In recent cases, the United States Supreme Court and Courts of Appeals have construed Title II of the ADA broadly to be “faithful to the Act’s demand … to secure access and avoid exclusion.” Tennessee v. Lane, 124 S. Ct. 1978, 1996 (2004) (Ginsburg, J., concurring); (“Including individuals with disabilities among people who count in composing ‘We the People’, Congress understood in shaping the ADA would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation”); see also Olmstead v. L.C., 527 U.S. 581, 598 (1999) (finding that Congress had a comprehensive view of the concept of discrimination advanced in the ADA “that included disparate treatment among members of the same protected class”); Hason v. Med. Bd., 279 F.3d 1167, 1172 (9th Cir. 2002) (quoting Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998)) (finding that the ADA must be construed “broadly in order to effectively implement the ADA's fundamental purpose of ‘providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’”).
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Congress and the federal agencies understood that equal access would be achieved over time primarily as both new construction and alterations occurred. Whenever a public entity, including a transit authority such as SEPTA, newly constructs or alters a facility or part of a facility, the new construction or alteration triggers the ADA’s mandate of equal access. Thus, the federal regulations are substantially more stringent concerning alterations and new construction undertaken by public entities than they are concerning the retrofitting of existing, non-altered facilities. Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993), cert. denied 511 U.S. 1033 (1994); see also Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied 485 U.S. 989 (1988) (holding that the alteration of the Columbia Avenue Subway Station entrance without making it accessible violated Section 504 of the Rehabilitation Act and its federal regulations, the relevant portions of which were identical to 49 C.F.R. § 37.43(a)(1)).
The distinction between new construction and alterations, on one hand, and existing facilities, which the public entity does not alter, on the other hand, is one of the bedrocks of both the ADA and Section 504. If a public entity continued after enactment of the ADA to construct and alter its existing facilities without making them accessible, then the future goal of achieving full access would never be obtained. Thus, both the ADA and Section 504 require public entities, if and only if they decide to make an alteration, to assure that the alteration is made in a manner that is accessible to people with disabilities.
The distinction between new construction and alterations, on one hand, and existing facilities which the public entity need not alter, on the other hand, also “reflects Congress’ recognition that mandating changes to existing facilities could impose extraordinary costs. ‘New construction and alterations, however, present an immediate opportunity to provide full accessibility.’” Kinney, 9 F.3d at 1074 (emphasis added). Further, it is “discriminatory to the
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disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded.” Id. at 1073. While “the obligation of accessibility for alterations does not allow for non-compliance based upon undue burden,” Id. at 1071, if a transit authority did have to prioritize accessibility, “an accessible entrance would generally be the most important . . . since without it the facility will be totally unusable by many persons with disabilities.” H.R. REP. NO. 101-485, pt. 3, at 65 (1990)(emphasis added).
In keeping with the intent of Congress, and to facilitate accessibility of public transportation systems, the ADA, as did Section 504, see Sykes, supra, mandates that transit authorities, when making an alteration to an existing station or part thereof, make the altered portion accessible to individuals with disabilities:
With respect to alterations of an existing facility or part thereof used in the provision of designated transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of Sec. 12132 of this title and Sec. 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), for a public entity to fail to make such alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 42 U.S.C. § 12147(a) (emphasis added). The U.S. Department of Transportation (DOT) regulations promulgated under this part of the ADA reiterates transit authorities’ responsibilities. 49 C.F.R. § 37.43(a)(1)(emphasis added); see also 28 C.F.R. § 35.151(b)(regulation promulgated by the Department of Justice under the ADA with almost identical language and the regulation that the Third Circuit construed in Sykes). Thus, the statute and regulations make clear that (1) if the existing facility in question is a facility used in providing designated public transportation services, or is part of a facility used in providing designated public transportation services, and (2) if the public entity decides to alter that existing facility, or part thereof, then (3) the public
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entity is mandated to make that altered facility or the altered portions of the facility readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, to the maximum extent feasible.
3. The 15th Street Courtyard And Southeast City Hall Escalator Are Part of Existing Stations/Facilities Covered By The ADA Alterations Provisions a. The 15th Street Entrance Is An Entrance To The Market-Frankford Line 15th Street Station
The Market-Frankford Line 15th Street Station is located underground at 15th and Market Streets. SUF Nos. 15-16. The 15th Street Entrance is a street level open-air entrance to the Market-Frankford Line 15th Street Station that is located at the northwest corner of 15th and Market Streets, across the street from City Hall and Dilworth Plaza. SUF No. 20. Various maps and diagrams of the concourse depict the close proximity of the 15th Street Entrance to the Market-Frankford Line 15th Street Station, in fact, they demonstrate that it is situated directly adjacent to the 15th Street Station platforms. SUF No. 28. The City, which owns the property of the 15th Street Entrance, recognizes the 15th Street Entrance as an entrance to the 15th Street Market-Frankford Station. SUF Nos. 21-24. Even SEPTA itself recognizes the reality that the 15th Street Entrance is an entrance to the 15th Street Market-Frankford Station. SUF Nos. 25-27.
According to the DOT regulations, a facility is defined as “all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, structure, or equipment is located.” 49 C.F.R. §37.3. This definition is very broad and supports Plaintiff’s claim that the 15th Street Entrance is unequivocally part of the Market-Frankford Line 15th Street Station. To access the 15th Street Station from the 15th Street Entrance, a pedestrian would descend either the stairs or escalator, then turn left into the 15th Street concourse corridor, ascend a flight of stairs and then
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proceed through the turnstiles, and then descend another set of stairs to the train platforms. SUF Nos. 23 & 27. The evidence, and the reality, make it readily apparent that the 15th Street Entrance provides a direct connection to the 15th Street Station through the 15th Street Corridor, that pedestrians use it to get to the 15th Street Station, and thus, that it is an entrance and part of the 15th Street Station. As the Third Circuit suggested, the 15th Street Entrance undisputedly provides access to and is an entrance to the 15th Street Market-Frankford Station. Disabled in Action v. Southeastern Pennsylvania Transportation Authority, 539 F.3d 199, 202 n.1 (3rd Cir. 2008).
b. The Southeast City Hall Escalator Is Part Of The Broad Street Subway City Hall Station
The undisputed documentary evidence identifies the southeast City Hall Courtyard Escalator as part of the City Hall Broad Street Subway Station. SUF Nos. 65-66; 71-77. The construction photographs produced by SEPTA explicitly depict the Southeast City Hall Escalator as part of the City Hall Broad Street Subway Station. SUF No. 77. The escalator at this location is clearly marked on the side of the headhouse as an exit for SEPTA patrons disembarking from the Broad Street Subway at City Hall Station. SUF No. 77. Construction documents related to the replacement of the southeast City Hall Courtyard escalator continuously refer to the escalator as being part of the City Hall Station. SUF Nos. 71-77. The escalator located in the southeast City Hall Courtyard is an exit from the City Hall Station mezzanine or concourse level. See Disabled in Action v. Southeastern Pennsylvania Transportation Authority, 539 F.3d 199, 202 n.8 (3rd Cir. 2008). There is no question that the southeast City Hall Courtyard escalator is part of the Broad Street Subway City Hall Station. SUF Nos. 66; 71-77.
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4. The 15th Street Courtyard and City Hall Southeast Escalator Renovations Unequivocally Qualify As Alterations Triggering The ADA Mandate of Accessibility
Neither the 15th Street Entrance nor the Market-Frankford Line 15th Street Station is currently accessible to individuals who use wheelchairs. SUF No. 59. There are no other accessible entrances to either the 15th Street Station or the City Hall Station. SUF Nos. 45, 59 and 79. Both the 15th Street Entrance and City Hall escalator construction projects unequivocally qualify as alterations for the purposes of the ADA, as it cannot be disputed that the alterations were substantial in nature and affected the usability of the respective facilities that they are part of. 42 U.S.C. § 12147(a). As such, the ADA and Section 504 required that SEPTA make these entrances readily accessible to and usable by individuals with disabilities, including those who use wheelchairs.
The federal regulations define an alteration as “a change to an existing facility, including, but not limited to remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions.” 49 C.F.R. § 37.3. “Minor changes such as painting or papering walls, replacing ceiling tiles, and similar alterations that do not affect usability do not trigger the requirement that the altered areas must be made accessible.” H.R. Rep. No. 101-485, pt. 3, at 64 (1990); see also 49 C.F.R. § 37.3. The Americans with Disabilities Act Accessibility Guidelines, which apply to Title II of the ADA, define alteration as “a change to a building or facility … that affects or could affect the usability of the building or facility or part thereof. 28 C.F.R. § 36, Appendix. A. It continues by stating “normal maintenance … is not an alteration unless it affects the usability of the building or facility.” Id.
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The Third Circuit has interpreted the alterations provision of the ADA broadly to effectuate accessibility. In Kinney v. Yerusalem, 9 F.3d 1067, 1069 (3d Cir. 1993), cert. denied 511 U.S. 1033 (1994), the court squarely faced the question of what constitutes an alteration under the ADA, specifically in the context of whether street resurfacing constituted an alteration triggering an ADA requirement to install curb ramps and provide accessibility pursuant to the resurfacing. The court focused with precision on the concept of usability that is expressed in the statutory language for alterations. Kinney at 1072-1074. The court held that street resurfacing constitutes an alteration because it unequivocally affected usability by making the street more usable by pedestrians. Id. at 1073-1074. It accepted the district court’s opinion that: “Resurfacing makes driving on and crossing streets easier and safer. It also helps to prevent damage to vehicles and injury to people and generally promotes convenience and travel. The surface of a street is the part of the street that is “used” by both pedestrian and vehicular traffic. When that surface is improved, the street becomes more usable in a fundamental way.” Id. (quoting Kinney, 812 F.Supp. 547, 551 (E.D. Pa. 1993)). The court made clear that, “if a street is to be altered to make it more usable for the general public, it must also be made more usable for those with ambulatory disabilities.” Id. at 1073. The court reasoned that its reading “helps to implement the legislative vision, for Congress felt that it was discriminatory to the disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded.” Id. The court also held that resurfacing constituted an alteration under the ADA because it involved more than minor repairs or maintenance. Id.; see also Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811-12 (2d Cir. 1996) (holding that installation of movable ticket machines is an alteration, and requiring ticket machines to be readily accessible); Civic Association of the Deaf v. Giuliani, 970 F. Supp. 352, 359 (S.D. NY 1997) (finding that replacement of two-button
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emergency boxes with one-button boxes constitutes an alteration under the ADA because it was a “change to the physical and functional structure of the equipment,” and requiring that defendants restore the two-button boxes since the one-button boxes did not provide adequate access for the deaf citizens of the city).
It is undisputed that SEPTA demolished the existing centrally located stairs at the 15th Street Entrance, including their foundation, and constructed an entirely new set of stairs and new foundation along the southern edge of the entrance. SUF Nos. 45-52. These renovations were substantial in nature and affected a change in the physical and functional structure of the entrance. Id. The construction work undertaken at the 15th Street Entrance involved substantially more than mere maintenance. SUF Nos. 54-55. Further, it is beyond dispute that the renovations affected the usability of the 15th Street Entrance since the stairway is the means by which people use the facility. SUF Nos. 56-57. This is directly analogous to Kinney in that the changes made to the stairs promoted convenience and travel, and made the stairs safer to use. SEPTA admitted that the old stairs were entirely demolished because they were in such disrepair that they could not be fixed. SUF Nos. 50 & 53. Since the old stairs were in such disrepair, clearly the new stairs are much safer for pedestrians to use than the old stairs. It simply cannot be argued in good faith that the installation of new stairs at the 15th Street Entrance to the Market-Frankford 15th Street Station did not affect the usability of that entrance. Thus, the alterations qualify as alterations under the ADA, and SEPTA was legally required to make the 15th Street Entrance accessible to persons who use wheelchairs by installing an elevator.
Likewise, the renovation to the southeast City Hall Courtyard exit from the Broad Street Subway was substantial in nature as it included the demolition of the existing escalator and truss and installation of an entirely new escalator and truss. SUF Nos. 72-77. The photographs
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produced by SEPTA demonstrate the extensive nature of the replacement of the escalator, including the relocation of the truss. Id. Based upon the evidence, it simply cannot be disputed that the replacement work was substantial in nature and constituted more than just minor maintenance. Further, there is no question that the renovations affected the usability of the Broad Street Subway City Hall Station. SUF No. 72. Prior to the renovations, pedestrians could not use the escalator to exit the lower south concourse to the City Hall Courtyard after disembarking from the City Hall Station. Id. Now, with the installation of the new escalator, pedestrians can use that escalator as another means to exit the lower south concourse after disembarking from the Broad Street Subway at City Hall Station. SUF Nos. 66, 71, & 78. Thus, installing a new, escalator increased the usability of the Station by adding another means of egress from the station. Id. Unequivocally, the alterations qualify as alterations under the ADA, and thus, SEPTA was legally required to make the altered southeast City Hall Courtyard exit from the Broad Street Subway City Hall Station accessible to persons who use wheelchairs.
The alterations to the 15th Street Entrance and the southeast City Hall escalator are virtually the same in DIA v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied 485 U.S. 989 (1988), which involved alterations to the Columbia Avenue Broad Street Subway Station. There SEPTA demolished the existing stairway and constructed a new stair in the same location (unlike the 15th Street stairway where SEPTA relocated the stair) and installed an escalator. While decided before the ADA, the Court upheld the lower court’s application of the Rehabilitation Act alteration provision, 49 C.F.R. § 27.67(b), which is nearly identical to the ADA alteration provision, 42 U.S.C. § 12147(a), to SEPTA’s reconstruction of stairs, and construction of new stairs and an escalator, leading to the Subway. In that case, the Court dealt with alterations identical to those at 15th Street and City Hall Courtyard and it mandated that SEPTA provide
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elevator access to people with disabilities. The Sykes decision is binding for purposes of the 15th Street Entrance and the southeast City Hall Courtyard exit. Thus, unequivocally SEPTA should also be required to provide elevator access to people with disabilities at both the 15th Street Entrance and the southeast City Hall Courtyard.
5. SEPTA Violated The ADA By Not Making The Altered Entrances Accessible To The Maximum Extent Feasible
The ADA provides that it shall be considered discrimination for a public entity to “fail to make … alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of such alterations.” 42 U.S.C. § 12147(a) (emphasis added). The regulations specify that to the maximum extent feasible means that all changes that are possible must be made. 49 C.F.R. Part 37, App. D. A transit authority will only be excused in the “occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessibility standards through a planned alteration.” 49 C.F.R. § 37.43(b). SEPTA does not claim, nor can it claim, that it is impossible to make the 15th Street Entrance itself accessible to individuals with disabilities by installing an ADA-compliant elevator.
SEPTA may claim that it cannot provide direct access to 15th Street Station by installing one elevator at the 15th Street Entrance and that providing an elevator thus, would serve no useful purpose. However, this argument is irrelevant and misses the point. The ADA mandates that the altered portions of the station are readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12147(a)(emphasis added). In reference to the 15th Street Entrance, the installation of an elevator, which would provide access to persons in wheelchairs from street level to concourse level, is itself unequivocally feasible. SUF No. 60. The street level entrance is
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the part of the facility, i.e. the 15th Street Station, that the ADA requires that SEPTA make accessible, not necessarily the entire facility. This follows Congress’ goal that “over time, access will be the rule, rather than the exception.” H.R. REP. NO. 101-485, pt. 3, at 63 (1990). This is the purpose Congress had in mind when developing the alterations provisions of the ADA. Because there is no dispute that it was feasible to install an elevator at the 15th Street Entrance, the ADA mandated that SEPTA provide access to persons who use wheelchairs. SEPTA failed to do so.
Likewise, it is feasible for SEPTA to install an elevator in the City Hall Courtyard near the renovated escalator. SUF No. 80. Again, because there is no barrier to installing an elevator near the renovated southeast City Hall Courtyard escalator providing access to the lower south concourse, the ADA mandated that SEPTA install such an elevator to provide access to persons who use wheelchairs.
It is undisputed that SEPTA made alterations to the 15th Street Market-Frankford Line Entrance and the southeast City Hall Courtyard Broad Street Subway Station exit. SUF Nos. 4555; 71-77. It is further undisputed that SEPTA did not install an elevator at the 15th Street Entrance or City Hall Courtyard southeast exit as part of the renovations, and thus, the entrances themselves cannot be used by individuals who use wheelchairs. SUF Nos. 59 & 79. These alterations unequivocally affected the usability of parts of existing stations/facilities, SUF Nos. 56, 57, & 78, and SEPTA failed to make the altered parts of those stations/facilities readily accessible to individuals with mobility disabilities, including those who use wheelchairs, SUF Nos. 59 & 79, in violation of the ADA and the Rehabilitation Act. SEPTA continues to discriminate against individuals with disabilities every day that the entrances are not made accessible. This illegal discrimination will only end when SEPTA makes the 15th Street Entrance
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and the southeast City Hall Courtyard Broad Street Subway exit readily accessible to and usable

by individuals with mobility disabilities, including those in wheelchairs, to the maximum extent

feasible.

6. SEPTA Had a Separate Legal Duty To Make The 15th Street Entrance Accessible As It Serves The 15th Street Station of the Market-
Frankford Line Which is A Separate and Distinct “Facility” From
Suburban Station

SEPTA asserted in its April 5, 2006 Motion that it was not required to install an elevator at the 15th Street Entrance because SEPTA included the alterations to that entrance in its project

to renovate Suburban Station, and that project included installation of elevators at two other locations (17th Street and JFK Blvd. and 16th Street and JFK Blvd.) to provide access to the “key

commuter rail station” of Suburban Station. The problem with SEPTA’s argument is that it ignores the undisputed evidence that the 15th Street Entrance serves the 15th Street Station of the

Market-Frankford Line which is a distinct transportation facility from Suburban Station. SUF

Nos. 20-30. Therefore, elevators installed to access Suburban Station cannot be deemed to provide access to a wholly separate transportation facility, such as the 15th Street Market-

Frankford Line Station. The “existing facility used in providing designated public

transportation,” for the purposes of 42 U.S.C. § 12147(a) and 49 C.F.R. § 37.43(a)(1), which the 15th Street Entrance is a part of, is the Market-Frankford Line 15th Street Station, which is a

separate and distinct “facility” from Suburban Station, and thus, the ADA required SEPTA to

make that entrance wheelchair accessible when it altered it. SEPTA contends that the 15th Street Entrance is part of Suburban Station because it

claims that the “Suburban Station facility” has “clearly demarcated boundaries” extending from 15th Street to 18th Street, Market Street to Cuthbert Streets. SEPTA’s Motion Brief at 41.

Assuming arguendo that property lines are relevant, and they are not, SEPTA’s argument must

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fail. SEPTA relies upon the Bower Lewis and Thrower Suburban Stations Renovations Property Line Concourse Level Plan, SEPTA Motion Exhibit 48, to support its contention that the Suburban Station facility has these boundaries. However, SEPTA’s BLT document and other diagrams of the areas in fact refute SEPTA’s contention that there is only one “clearly demarcated boundary” for the Suburban Station Transit Facility. Rather, there are multiple property lines within the geographical boundary that SEPTA defines as extending from 15th Street to 18th Street and from Cuthbert to Market Street. SUF Nos. 31-34.
It is undisputed that the 15th Street Entrance has its own discrete property line, as does Two Penn Center, Three Penn Center and many of the other office buildings within the SEPTA defined so-called outer perimeter of the “Suburban Station Project.” SUF Nos. 31-34. SEPTA readily admits that there are multiple property lines within the perimeter that SEPTA defines as the Suburban Station facility, which are depicted on the BLT Concourse Property Line Plan dated 8/15/01. SUF No. 33. SEPTA’s proffered expert witness, Roderick Wolfson (the project architect from Bower Lewis Thrower, who specified the demolition of the existing stairs at the 15th Street Entrance and designed the replacement stairs) admitted that there are multiple property lines within that geographical boundary, including a discrete property line for the 15th Street Entrance and Courtyard. SUF No. 34. Deeds uncovered by Plaintiff show that the property upon which the 15th Street Entrance stands, and as delineated by the property lines on the BLT Concourse Plan, was conveyed from the Pennsylvania Railroad Company to the City of Philadelphia in 1960. SUF No. 35. There is also a deed referencing the conveyance of the land upon which Three Penn Center stands from the Pennsylvania Railroad Company to Three Penn Center in 1956. SUF No. 36. Both of these deeds also mention the rights of the “Market Street Elevated Passenger Railway Co. and the Philadelphia Transportation Co. …. to use, operate and
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maintain the subway in Market Street and also the entrances to and exits from said subway on the land hereby conveyed.” SUF No. 37.
Mr. Wolfson acknowledged that the City of Philadelphia, not SEPTA, owns the 15th Street Entrance, and that the Entrance has its own discrete property line. SUF No. 38. Mr. Wolfson admitted that as rightful owner of the Entrance, the City of Philadelphia has control over that property and that they could close it down and it would no longer be part of SEPTA’s definition of “Suburban Station facility.” SUF No. 39. Mr. Wolfson also stated that there are so called “islands of exclusions” within SEPTA’s designated outer perimeter of the Suburban Station Facility. SUF No. 40. He testified that by “islands of exclusions” he was referring to property ownership belonging to the office towers, including their property at concourse level, that are not part of the Suburban Station Transit Facility, even though their property is located within the outer perimeter of the SEPTA defined facility. SUF No. 41. This evidence unequivocally establishes that there are separate and distinct facilities, serving distinct purposes, within the SEPTA defined footprint of the Suburban Station facility that are not actually part of the Suburban Station facility.
There is a actually a distinct property line for an area that directly encompasses what could be considered the primary area of Suburban Station (16th Street to 17th Street, JFK Blvd. to Cuthbert Street), including waiting areas, ticket offices at concourse level and the train platforms at platform level. SUF No. 42. The waiting areas and ticket areas of Suburban Station are approximately one and half blocks from the 15th Street Entrance. SUF No. 43. The 15th Street Entrance does not provide direct access to these waiting areas or ticket areas of Suburban Station and does not provide direct access to the train platforms of Suburban Station. SUF No. 44. Indeed, the 15th Street Entrance undisputedly serves as an entrance to the 15th Street Station of
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the Market-Frankford Line, which again is a separate and distinct facility from Suburban Station. SUF No. 30. Because SEPTA altered the 15th Street Entrance, which is designed to serve the 15th Street Station of the Market-Frankford Line, see SUF Nos. 20-30, SEPTA was required by the ADA to make that Entrance accessible to people who use wheelchairs. It is totally irrelevant that SEPTA decided to install two elevators to provide access to the Suburban Station.
7. SEPTA’s Contention That An ADA Vertical Accessibility Requirement Is Not Triggered By The Demolition And Reconstruction of Existing Stairs or An Existing Escalator Is Based On Its Erroneous Reading of DIA v. Sykes and The ADA Regulations and Is Without Merit
SEPTA argued in its Motion that there was no vertical accessibility requirement triggered by the demolition and replacement of the escalator in the City Hall Courtyard or demolition and subsequent replacement of stairs at the 15th Street Entrance because it did not change the access, as the demolition and installation of the new escalator and demolition and installation of the stairs occurred in the same location or nearby. SEPTA’s reading of ADAAG provision 4.1.6(f) and the DIA v. Sykes case is erroneous. The ADAAG provision cited by SEPTA only states that vertical accessibility is required when new stairs and escalators are installed where none existed previously. Neither this provision, nor any other in ADAAG, nor the other federal regulations state that the demolition of an existing escalator and replacement with a new escalator and demolition of stairs and replacement with new stairs are not alterations, nor that vertical accessibility is not required as part of such alterations under the ADA.
SEPTA’s reading of the Third Circuit’s decision in DIA v. Sykes, 833 F.2d 1113 (3rd Circ. 1987) in its Motion is incorrect. First, there is no question that in DIA v. Sykes there had also been a demolition of the existing stairs in its northbound station and a replacement of those stairs that triggered the ADA’s legal requirement to provide accessibility to the northbound
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terminal. Id. at 1120. Second, SEPTA states in its Brief that “the reconstruction of two existing stairs on the southbound side of Columbia Station in Sykes was insufficient to trigger a vertical accessibility requirement.” SEPTA Motion Brief at 48-49. SEPTA’s statement implies that the Sykes court affirmatively ruled on Plaintiff’s claims that the work to the southbound stairs triggered an accessibility requirement. It did not. Rather, the court found that there was insufficient evidence for it to determine whether or not the work performed on the southbound stairs amounted to normal maintenance or constituted an alteration, and it therefore remanded for determination of the issue at trial. Id. at 1121. However, the issue was never decided by the District Court because the case settled and SEPTA voluntarily agreed to make the southbound side of the Columbia Avenue Station accessible. Further, on the northbound side, the court not only dealt with installation of an escalator but most relevant to the instance case SEPTA demolished the existing stairs, and exactly like the 15th Street Entrance, replaced them in a slightly relocated position. Therefore, DIA v. Sykes does not, in anyway, compel the conclusion that vertical accessibility is not required by the reconstruction and alteration of an existing stairway and vertical accessibility is not required in the 15th Street Entrance.
SEPTA, and its expert, Mr. Kloehn, erroneously argue that ADAAG supports their contention that SEPTA was not required to provide vertical accessibility at the 15th Street Entrance or the City Hall Courtyard. SEPTA and Mr. Kloehn rely upon Section 4.1.6(f) of ADAAG, which is an affirmative statement that if an escalator or stair is planned where none existed previously then vertical access must be provided. See SEPTA Motion Brief at 47-48; 53; and Plaintiff’s Response Exhibit G at pg. 110, line 14 – line 22. However, it does not state that the demolition of an existing stair and replacement with a new stair does not constitute an alteration under the ADA. In fact, Mr. Kloehn admitted that no where does the ADA or the DOT
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regulations state that demolishing an existing stair and replacing it with a new stair is not an alteration under the ADA. Plaintiff’s Response Exhibit G at pg. 107, line 17 – pg. 108, line 5. Mr. Kloehn simply has no legal basis for his conclusion that demolishing an existing stair and replacing it with a new stair does not constitute an alteration and thus, does not trigger a requirement to provide vertical accessibility based upon this ADAAG provision. His testimony in this regard is thus not legally competent and this Court must disregard his testimony.
The alterations regulations permit non-accessibility only where the alteration constitutes “normal maintenance.” Certainly, in this case, SEPTA’s demolition of the stairs and construction of new stairs at a different location from the previous stairs at the 15th Street Entrance is far from “normal maintenance.” The photographs of the City Hall Courtyard project clearly show that SEPTA entirely replaced an existing inoperable escalator – which is also far more than normal maintenance. SUF No. 77. SEPTA admitted that the existing stairs at the 15th Street Entrance were demolished and the courtyard was remodeled by constructing a new set of stairs. SUF No. 47. SEPTA recognizes that the stairs at the 15th Street Entrance were unsafe, in disrepair and were entirely replaced. SUF No. 53. Mr. Wolfson admitted that the existing stairs could have been repaired by replacing the concrete treads, i.e. “normal maintenance,” instead of demolishing the stairs and replacing them. SUF No. 54. He admitted that normal maintenance would have included putting new treads on stairs, painting the area, and installing new lighting. SUF No. 55. With regard to the City Hall Courtyard project, SEPTA admits that there is no disputed issue of material fact that the existing unsafe escalator was replaced with another escalator and that the well-way was significantly extended to accommodate the new escalator. SUF Nos. 71-77.
SEPTA and its expert, Donald L. Kloehn, misunderstand and confuse the ADA alterations requirements as established by the Third Circuit in Kinney v. Yerusalim, 9 F.3d 1067
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(3rd Cir. 1993). Mr. Kloehn was questioned regarding whether an accessibility requirement would be triggered by the reconstruction of an existing stairway leading to a train platform. See Plaintiff’s Response Exhibit G at pg. 28, line 25 – pg. 31, line 20. He stated that an accessibility requirement would not be triggered by such a reconstruction because “it made no change in the accessibility of that particular platform.” Id. In Kinney, the court held that the focus on whether particular construction work constitutes an alteration for ADA purposes is on whether the work affected or could have affected the usability of the facility and held that an alteration which affects usability undoubtedly constitutes an alteration under the ADA. 9 F.3d at 1072. The correct focus under ADA alterations is whether the construction affects the usability of the facility not whether it affects accessibility, as SEPTA and its expert argues, which was the old standard under the Rehabilitation Act regulations, 49 C.F.R. § 27.67(b).
The 15th Street Entrance Renovation and the City Hall Courtyard escalator replacement were unequivocally more than just normal maintenance due to the substantial demolition and reconstruction that took place. This work was undertaken so that non-disabled people could use the new stairs and newly installed escalator. Both alterations affected the usability of the entrance and exit for non-disabled people, regardless that there had been a pre-existing set of stairs and pre-existing inoperable escalator. The ADAAG defines alteration as “a change to a building or facility … that affects or could affect the usability of the building or facility or part thereof,” and states that “normal maintenance … is not an alteration unless it affects the usability of the building or facility.” 28 C.F.R. § 36, Appendix A. Therefore, even if a public entity engages in maintenance of a facility in a manner that affects the usability of the facility, then that maintenance can still be considered an alteration under the ADA.
37

Case 2:03-cv-01577-GP Document 155 Filed 11/04/08 Page 39 of 41 Mr. Kloehn admitted that stairs affect the usability of a facility. SUF No. 57. Mr. Wolfson also admitted the obvious fact that stairs affect usability of a facility. SUF No. 56. SEPTA also admitted that the replacement of the escalator affected the usability of the City Hall Station because it was previously inoperable and unusable by people disembarking from the station, but can now be used by people exiting the station. SUF No. 78. There can be no real dispute that the demolition and reconstruction of new stairs and the demolition of an escalator and installation of a new escalator are alterations under the ADA because they affected the usability of the 15th Street Station and City Hall Station as people use the 15th Street Entrance to enter the 15th Street Station and people use the escalator in the City Hall Courtyard after disembarking from the City Hall Broad Street Subway Station. Therefore, there can be no reasonable dispute that SEPTA violated the ADA by not providing access to persons who use wheelchairs as part of the identified renovations of the 15th Street Entrance and the City Hall Station escalator.
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III. CONCLUSION For all the reasons set forth above, Plaintiff respectfully requests that the Court enter
summary judgment in favor of Plaintiff and against SEPTA, declare that SEPTA violated the ADA and Section 504, and order SEPTA to install an elevator at the 15th Street Entrance and to install an elevator in the southeast City Hall Courtyard.
Respectfully submitted, //s// Rocco J. Iacullo _____________________________ ROCCO J. IACULLO, ESQUIRE Attorney Id. No. 86144 Disabilities Law Project The Philadelphia Building 1315 Walnut Street, Suite 400 Philadelphia, PA 19107 (215) 238-8070 STEPHEN GOLD, ESQUIRE Attorney Id. No. 09880 125 South Ninth Street, Suite. 700 Philadelphia, PA 19107 (215) 627-7100 Attorneys for Plaintiff DATED: November 4, 2008
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CERTIFICATE OF SERVICE I, Rocco J. Iacullo, Esquire, hereby certify that Plaintiff's Motion for Summary Judgment, including Statement of Undisputed Facts, Memorandum of Law in support of that Motion, and proposed Order has been filed electronically with the Court on November 4, 2008, and are available for viewing and downloading from the ECF system by the below counsel, who has consented to electronic service:
Jo Bennett, Esquire Stevens & Lee, P.C. 1818 Market Street
29th Floor Philadelphia, PA 19103 Michael G. Tierce, Esquire
Stevens & Lee, P.C. 1818 Market Street
29th Floor Philadelphia, PA 19103
//s// Rocco J. Iacullo _____________________________ ROCCO J. IACULLO
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 Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF PENNSYLVANIA,
Plaintiff,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,
Defendant.

CIVIL ACTION NO. 03-1577 (JUDGE PRATTER) [ELECTRONICALLY FILED]

SEPTA'S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S REMAINING CLAIMS AND IN OPPOSITION TO DIA'S MOTION FOR SUMMARY JUDGMENT L INTRODUCTION
This Court must decide whether the Americans With Disabilities Act ("ADA") and the Rehabilitation Act of 1973 required SEPTA: (1) to install an elevator at the northwest corner of 15th Street and Market Street when SEPTA replaced a street-level stairway leading to the Suburban Station and Penn Center Concourse (collectively, "Suburban Station concourse"), and (2) to install an elevator in the southeast corner of the courtyard at Philadelphia City Hall when SEPTA replaced an escalator that serves as an exit from the concourse level to the streetlevel courtyard. Plaintiff, Disabled in Action ("DlA"), contends in its motion for summary judgment that SEPTA should have installed elevators so that wheelchair-bound individuals could travel between the street and concourse levels. DIA wants the Court to order SEPTA to install

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the elevators. SEPTA files this response to DIA's motion and cross-moves for summary judgment because SEPTA complied with federal law and DIA is not entitled to any relief. I
SEPTA replaced the stairs at the northwest comer of 15th and Market ("the 15th Street Courtyard") as part of renovations to Suburban Station, which SEPTA was required to make accessible pursuant to a consent decree entered into on June 28, 1989 in connection with the case captioned Eastern Paralyzed Veterans Association ofPennsylvania ("EPVA") v. SEPTA, Civil Action No. 86-6797 (E.D. Pa.).2 SEPTA's 13 Regional Rail Lines pass through Suburban Station. The commuter rail passenger station known as Suburban Station consists of two levels - the platform level where passengers board and disembark from trains, and the concourse level, the level between the platfonn level and the street.
SEPTA acknowledges that the ADA required it to install at least one elevator at Suburban Station to make the station accessible to the disabled. Consistent with its legal obligation, SEPTA installed not one, but two street-level elevators - on 16th Street between Market Street and JFK Boulevard, and on JFK Boulevard between 16th and 17th Streets. People in wheelchairs may use either elevator to reach Suburban Station concourse, including the concourse level at the bottom of the stairs at the 15th Street COUltyard3 In 2005, the Federal Transit Administration ("FTA") signaled its approval that SEPTA's Suburban Station renovations complied with the ADA.
DIA contends that the stairway at the 15th Street Courtyard is not part of Suburban Station but instead is an entrance to the 15th Street Station of the Market-Frankford
Through the course of this litigation, DIA has ahandoned many of its arguments against SEPTA, including its arguments related to the "key station" issue. This bIief addresses the two remaining issues in this case as described herein. 2 The regulations issued by the United States Department of Transportation to implement the ADA incorporated the consent decrees in the "key stations" provisions of the ADA. See 49 CFR §37.53. There also are elevators leading from the concourse level to the platform level at Suburban Station, which allow the disabled access to SEPTA's Regional Rail lines.
2
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 3 of 32
Subway-Elevated Line, the east-west subway line. It further contends that SEPTA should have installed an elevator at that location so that people in wheelchairs could travel from street level to the concourse level. DIA's argument ignores the fact that Suburban Station's concourses run from 15th to 18th Streets and from Market to Cuthbert Streets. There are a number of ways to access the 15th Street Station. As an example, one may access the 15th Street Station through the Suburban Station concourse, the stairway on the southwestern corner of 15th Street and Market Streets (under the Clothespin statue), and the Broad Street concourse. Even if SEPTA had installed an elevator in the 15th Street Courtyard, a person in a wheelchair still would not be able to access the 15th Street Station, a point conceded by DIA. Even assuming, arguendo, that the 15th Street Courtyard is an entrance to the 15th Street Station, the replacement of stairs did not constitute an "alteration" that obligated SEPTA to install an elevator.
DIA's contention that federal law required SEPTA to install an elevator at the City Hall Courtyard also fails. The ADA does not require installation of an elevator absent "alterations" to a facility. SEPTA did not make any alterations - rather, as part of its Escalator Replacement Program, SEPTA merely replaced an escalator that no longer was operable. Further, the escalator is neither an entrance to nor exit from the City Hall Station of the Broad Street Line, the north-south subway line. Accordingly, the ADA's "vertical accessibility" requirement was not triggered in any event. The escalator merely provides access to the street level from the concourse level (not the subway platform). II. RELEVANT STATUTORY AND REGULATORY LAW
Subchapter II of the ADA and Section 504 ofthe Rehabilitation Act of 1973 ("Section 504") require public transportation systems to provide service and other program benefits to individuals with disabilities. 42 U.S.C. §§ 12131(1), (2), § 12132; 29 U.S.C. § 794. Both statutes charge the Architectural and Transportation Barriers Compliance Board ("Access
3
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 4 of 32
Board") with establishing and maintaining minimum guidelines and requirements for accessibility. 29 U.S.C. § 792(b)(l), (2), (3); 42 U.S.C. § 12204(a), (b). Under the ADA, the U.S. Department of Transportation ("DOT") must issue regulations covering public transportation systems that are consistent with the Access Board's minimum guidelines and with the regulations issued under Section 504 of the Rehabilitation Act. 42 U.S.C. §§ 12134, 12149, 12163,12164. Thus, the ADA and Section 504 are interpreted consistently. 42 U.S.C. §§ 12146,12147,12148, and 12162.
DOT regulations governing public transit systems may be found at 49 CFR Part 37. In Appendix A to 49 CFR Part 37, the DOT has adopted the Access Board's Americans With Disabilities Act Accessibility Guidelines ("ADAAG" or "Guidelines"), which are codified at 36 CFR Part 1191, Appendices Band D.4 The Guidelines were first published in July 1991 and amended through September 2002 ("1991 Guidelines"). Modified Guidelines were published in July 2004. The 1991 Guidelines are applicable in this case. 49 CFR §37.9(c).5
The ADA imposes three obligations on public transportation systems to make stations accessible to the disabled, including individuals who use wheelchairs. First, a public transportation system is required to designate "key stations" - stations generally that have heavy passenger traffic; are transfer stations, end stations, or major interchange points with other transportation modes; and serve major commerce centers - and make them accessible to the disabled. 42 U.S.C. §§ 12147(b) and 12162(e)(2)(A)(ii) and (iii); 49 CFR §37.51. When Congress enacted the ADA in 1990, it recognized that rail systems in older urban areas such as Philadelphia would face extraordinary costs to meet the key station requirements and thus
, The Guidelines also are available on the Access Board's website, www.access-board.gov. The website contains both the 1991 Guidelines, which apply in tbis case, and modified guidelines published in July 2004. None of the modifications to the 1991 Guidelines is potentially applicable here in any event. 4
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extended the three-year time line for compliance to 30 years for subway lines (i.e., until 2020) and to 20 years for commuter rail lines (i.e., until 2010). 42 U.S.C. §§ 12147(b)(2)(A), (B) and 12162(e)(2)(A)(ii)(II) and (iii).6
SEPTA has continued to work diligently to provide accessibility to its ridership, and to date 33 of its 35 Key Stations, including those on both transit and commuter rails, are accessible to the disabled. SEPTA's Statement of Undisputed Facts ("SUF") 58. Only minor work remains at the two other Key Stations - both on property not owned by SEPTA -- but completion of those projects has been delayed because of litigation involving parties other than SEPTA. SUF 59. Aside from the 33 Key Stations, 54 additional SEPTA stations are accessible to the disabled. SUF 60. As of the date of the filing of this brief, construction is under way at nine additional non-Key Stations that will be accessible to the disabled. SUF 61.
The ADA's second and third requirements regarding stations concern new construction and "alterations" to existing facilities. A public transportation system must make newly built stations accessible to the disabled, including disabled individuals who use wheelchairs. 42 U.S.C. §§ 12146 and 12162(e)(1). When a public transit system makes "alterations" to an existing station, it must make the alterations in such a way that, to the maximum extent feasible, the altered portions are readily accessible to disabled individuals, including individuals who use wheelchairs. 42 U.S.C. §§ 12147(a) and 12162(e)(2)(B).7
6 In 1989, a year before Congress passed the ADA, the City of Philadelphia and SEPTA entered into the settlement agreement with EPVA in which the parties identified stations that would be made accessible to the disabled. The Department of Transportation, through regulation, has determined that the desiguations made under the settlement satisfy SEPTA's obligation to identify key stations under the ADA. See 49 CFR § 37.53.
7 Subpart 1 of Part B, Subchapter II of the ADA covers subway systems [42 U.S.c. § 12141(2)], and Subpart II of Part B, Subchapter II of the ADA covers commuter rail systems. 42 U.S.c. § 12161(1) and (2). Thus, Subpart 1 applies to SEPTA's subway lines, and Subpart II applies to SEPTA's Regional Rail system. Generally, however, the requirements under the two Subparts are similar.
5
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III. ARGUMENT On a motion for summary judgment, the court must decide whether there is an
issue of material fact and, if not, whether the moving party is entitled to judgment at a matter of law. Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999). The non-moving party must, through affidavits, admissions, depositions, or other evidence, demonstrate that a material factual issue exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317,324 (1986). To avoid summary judgment, the non-moving party must do more than show there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586 (3d Cir. 1986). If the non-moving party fails to create "sufficient disagreement to require submission [of the evidence] to ajury," the moving party is entitled to judgment as a matter oflaw. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
A. THE ADA DID NOT REQUIRE SEPTA TO INSTALL AN ELEVATOR AT THE 15th STREET COURTYARD. 1. Stair Replacement at the 15th Street Courtyard Was Part of SEPTA's Suburban Station Renovation Project, Which Included Installation of Two Elevators Near the 15th Street Courtyard. SEPTA's Suburban Station is a "key station" under the 1989 consent decree and
42 U.S.C. § 12162(e)(2)(A)(ii) and (iii). See SUF 1; 49 C.F.R. § 37.53. For more than 50 years, Suburban Station, which serves SEPTA's 13 Regional Rail lines, has been a mixed-use transit complex combining retail, office, and cOffiI)1uter rail operations in an integrated facility that spans from 15th Street to 18th Street and from Market to Cuthbert Streets. SUF 2, 32. The mixed-use nature of Suburban Station has remained consistent throughout this 50-year period. SUF 32.
In February 1995, SEPTA and the City of Philadelphia reached a general agreement concerning the framework for the renovation of Suburban Station, its retail spaces and
6
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its concourses (the "Project"). SUF 3. One objective was to have SEPTA, the City and private ownership enter into cooperative agreements to carry out the renovations without regard to property ownership.8 SUF 4. In its Request For Proposal ("RFP"), SEPTA outlined design requirements for renovations to below-ground concourses, courtyards, station and train operations, corridors, retail spaces, and entrances. SEPTA included ADA accessibility requirements because of Suburban Station's designation as a key station. SUF 5.
In 1997, SEPTA awarded the architectural firm Bower, Lewis & Thrower ("BLT") the design contract. SUF 5. From inception, the 15th Street Courtyard was within the scope ofthe Project. SUF 5-7. Suburban Station has clearly demarcated boundaries -- extending from 15th Street to 18th Street and from Cuthbert Street to Market Street, including the 15th Street Courtyard. SUF 2 & 13. 9 The property lines that defined the scope of the Project and its site are shown on the Zoning Plan and on BLT's schematic drawing of the Suburban Station concourse. See SUF 13 & 15. The Zoning Plan identifies, inter alia, in bold red lines, the Project's perimeter boundary lines and main phase work that SEPTA would undertake on SEPTA, City, and privately owned property within these boundaries. See SUF 13.10 BLT's architectural schematic drawing shows a concourse-level view of the boundary lines ofthe Project highlighted in red, which included the 15th Street Courtyard. See SUF 15.ll
8 This is consistent with 49 C.F.R. § 37.51 which identifies the "responsible parties" and their legal obligations in making key stations in commuter rail systems accessible. SUF 3.
9 The ADAAG defines "Facility," without any regard to ownership, as "all or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property located on a site." 1991 Guidelines, § 3.5. A "Site," in turn, is defined as "[a] parcel ofland bounded by a property line or a designated portion ofa public right-of-way." [d, § 3.5; SUF 8. Clearly, Suburban Station is a facility on more than one site.
10 Ownership within a transit facility is not relevant to the definition of the facility or the scope of a particular renovation project. SUF 8.
11 The property lines defining the scope of the Project are the same as those established for Suburban Station and the Penn Center Complex (as it was then named) by the Pennsylvania Railroad in 1950. SUF 31.
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Because the City owns the 15th Street Courtyard, SEPTA sought the City's cooperation and authorization to obtain a permit to complete that work without an elevator, which involved an appeal to the City Department of Licenses and Inspections for a variance from the Philadelphia Building and Occupancy Code. SUF 25. On October 17,2000, the City's Department of Licenses & Inspections gave SEPTA permission to perform the work at the 15th Street Courtyard. SUF 26. 12 During the course of the work, SEPTA and the City learned that federal grant money was available for the 15th Street Courtyard portion of the Project. SUF 20. SEPTA and the City obtained a $750,000 grant, which required that the work at the 15th Street Courtyard be accelerated. SUF 21. Work at the 15th Street Courtyard began in February 2001 and included replacement of an unsafe stairway, renovations to the escalator headhouse, and replacement of planters. SUF 22. The stairway replacement did not require any major structural modifications. SUF 23. Work at the 15th Street Courtyard concluded in August, 2002.
As part of the renovations at Suburban Station, SEPTA installed an elevator at street level on the east side of 16th Street between Market Street and JFK Boulevard that provides access to the concourse level. SUF 16. The elevator is 340 feet from the 15th Street Courtyard. SUF 18. SEPTA installed signs at street level at the 15th Street Courtyard to direct people who use wheelchairs to the elevator on 16th Street. SUF 19. SEPTA also installed a second elevator at street level near the southeast comer of 17th Street and JFK Boulevard. SUF 16. The 17th Street elevator provides access to Suburban Station concourse and to one
12 The City, a co-defendant in this case, settled with DlA. (Docket No. 49).
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train platform. Id. 13 The total cost of the Suburban Station Renovation Project was
approximately $63 million. SUF 62.
2. The Federal Transit Administration Determined That the Suburban Station Renovations Comply with the ADA. In November 2005, inspectors retained by the FTA determined that the
renovations at Suburban Station, including the stairway at the 15th Street Courtyard,
substantially complied with the ADA. SUF 41. The FTA inspectors concluded that SEPTA had
complied fully with the 1991 Guidelines by providing for the two disabled accessible routes
through Suburban Station by virtue of the 16th Street and JFK Boulevard elevators. SUF 42.
The FTA inspectors specifically observed that a statiou's ADA compliance was determined by
assessing the station facility and its elements under the regulations (Part 37) and the Guidelines.
SUF 41-42. The FTA's compliance review found subtle areas of non-compliance - a sign in an
elevator was mounted too high from the elevator floor, and a call button on an elevator did not
light fully. Id. Critically, the FTA's inspectors nowhere indicated that SEPTA should place an elevator at the 15th Street Cour1yard. Id. 14
3. SEPTA's Suburban Station Renovations Meet ADA Standards. The Guidelines require only one accessible entrance in order for a transit facility
to be comply with the ADA. The 1991 Guidelines, § 10.3.2(1) (Existing Facilities: Key
Stations), state: "Rapid, light, and commuter rail key stations ... and existing intercity rail
stations shall provide at least one accessible route from an accessible entrance to those areas
13 Wheelchair accessibility is available to all aspects of the Suburban Station concourse and that, from either street level elevator, a disabled person can access, barrier-free: (J) all train platforms using four additional concourse level elevators; (2) all transportation functions; and (3) all retail spaces, courtyards and public places. SUP 17. The 15th Street Courtyard is accessible from the 17th Street elevator and from the 16th Street elevator. SUP 18. The distance from the 16th Street elevator to the 15th Street Courtyard at concourse level is approximately 340 feet. SUF 18. Accordingly all of the ADA's applicable accessibility requirements have been met. 1991 Guidelines, § 4.1.6(1), (2) (Accessible Buildings: Alterations); SUF 7.
14 As a result of the inspection, SEPTA prepared a time line for completion ofthe minor issues cited in the ADA Key Assessment and subsequently corrected the deficiencies. SUF 43.
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necessary for use of the transportation system." Similarly, when alterations are made to a building, the Guidelines require only one accessible entrance so long as signage is appropriate. Id. at § Section 4.1.6.(1)(h) (Accessible Buildings: Alterations). While SEPTA does not concede that the 15th Street Courtyard entrance was "altered" within the meaning of the ADA and its regulations, Section 4.1.6(1)(h) of the Guidelines provides that an entrance being altered need not meet ADAAG' s requirements for accessibility so long as there is one accessible entrance. Id. at Section 4.1.6(1)(f) and (h)(Accessible Buildings: Alterations). At Suburban Station, there are two entrances accessible to the disabled.
Multiple federal jurisdictions have concurred that the Guidelines require only one accessible entrance. In Kasten v. Port Authority ofNew York & New Jersey, 2002 WL 31102689 (E.D.N.Y. 2002), the court noted that both DOT regulations and the Guidelines required only one elevator entrance to an airport terminal to meet the requirements of the ADA. Id. at *3. Similarly, in Durante v. County ofBelknap, 2005 WL 361540 (D.N.H. 2005), a case dealing with access to a courthouse, the court held that "the existence of one ADA-compliant entrance necessarily renders the courthouse's services, programs, and activities 'readily accessible' to individuals with disabilities." Id. at *3. See also Disabled inAction ofPennsylvania v. Sykes, 833 F.2d 1113, 1119-21 (3d Cir. 1987), a pre-ADA case, in which the Third Circuit interpreted a regulation under the Rehabilitation Act (49 CFR § 27.67(d) - which is substantially similar to the Guidelines) -- and noted that only one accessible entrance was required; Long v. Coast Resorts, Inc., 32 F. Supp. 2d 1203, 1212 (D.Nev. 1999), ("the ADA does not require every element ofa place of public accommodation to be accessible" and "[eJvery entrance or exit is not required to be wheelchair accessible. "), aff'd in part, rev'd in part on other grounds, 267 F3d 918 (9th Cir. 2001) (emphasis added).
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The ADA required SEPTA to make only one entrance to Suburban Station accessible to the disabled. Because the ADA does not require identical access, and the 16th Street elevator is only 340 feet from the 15th Street Courtyard creating an accessible, unobstructed path from the 16th Street elevator to the 15th Street Courtyard, there was no legal requirement that SEPTA install an elevator at the 15th Street Courtyard. See, generally, Hassan v. Slater, 41 F.Supp. 2d 343, 350 (1999) (disabled person required to travel an additional four and a halfmiles to reach an accessible train station failed to state a claim of discrimination); Civic Association ofthe Deafv. Giuliani, 970 F.Supp. 352, 362 (SD.N.Y. 1997) (reduction in number of street alarm boxes in pilot areas did not prevent system of reporting street emergencies from being "readily accessible" to hearing impaired people as required by ADA absent proof that walking an additional block or two to locate alarm box so difficult as to render system practically inaccessible).
4. The 15th Street Courtyard Is Not An "Entrance" To the 15th Street Station of the Market-Frankford Subway-Elevated Line. Suburban Station and the 15th Street Station of the Market-Frankford Subway-
Elevated Line are two separate and distinct transit facilities that are demarcated by clear property lines and serve two distinct, unconnected rail lines. SUF 13, 15, 30 & 31. 15 A review of the history of the Suburban Station makes this abundantly clear. The Old Broad Street Station, constructed by the Pennsylvania Railroad Company and opened in December 1881, stretched from Market to Filbert Street (now JFK Boulevard) and from 15th to 18th Street. SUF 33. A
15 DIA relies upon the Third Circuit's decision in DIA v. SEPTA, 539 F.3d 199,202 n.1 (3d Cir. 2008) for the proposition that the 15th Street Courtyard is an "entrance" to the Market-Frankford Subway-Elevated Line. In the decision, the Court stated, in a footnote, that "at this stage of the litigation, we accept DIA's characterization ofthe 15th Street Courtyard as an "entrance" to the Market-Frankford Station ... The District Court may take up this nuance and determine its relevance to § 12147(a) liability on remand." Accordingly, this issue is ripe for decision.
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series of elevated viaducts - commonly known as the "Chinese Wall" -- carried the tracks into the station from the west. SUF 34.
After a fire in 1923 damaged the Broad Street Station, the City of Philadelphia and the Pennsylvania Railroad reached agreement on construction of a new station. Suburban Station, built on adjacent land owned by the railroad, opened in 1930. SUF 34. The newly constructed Suburban Station and its 22-story office building occupied the block bounded by 16th and 17th Streets and Cuthbert and Filbert Streets, and offered retail shops at street and concourse levels. SUF 35.
Although the Pennsylvania Railroad intended to demolish the Broad Street Station once Suburban Station opened, the intervention of the Great Depression, World War II, and the lack of money and materials delayed the project until the early 1950s. SUF 36. During demolition, the City and the Pennsylvania Railroad began discussions and Penn Center was "conceived, designed and built as a group of integrated business office buildings placed so as to have direct access to the underground transit facilities of Suburban Station all tied together by a below-street-level concourse area containing shopping, dining, recreation and business services." SUF 37. The Suburban Station facility includes the area from 15th Street on the east to 18th Street on the west, and Cuthbert Street on the north and Market Street on the south. SUF 38. The boundaries of Suburban Station include the 15th Street Courtyard -- the site ofthe old Broad Street Station -- and have always included this area. SUF 38.
One of the ways16 to reach the 15th Street Station of the Market Frankford Subway-Elevated Line is through the Suburban Station concourse. An individual who enters the Suburban Station concourse at the 15th Street Courtyard must travel south in the 15th Street
16 There are a numher of ways to reach the 15th Station. The actual entrance to the 15th Street Station of the Market-Frankford Suhway-Elevated Line is the stairway at the southwest comer of 15th and Market Streets (under the Clothespin statue). SUF 30.
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corridor, exit Suburban Station, and travel over the "hump." Below the hump are underground transit lines for the Subway Surface Trolley Lines and the Market-Frankford Subway-Elevated Line. SUF 30. The scope of the renovations to the corridor adjacent to the 15th Street Courtyard did not extend beyond the Project's boundaries or the property line of the Suburban Station concourse. SUF 27. SEPTA did not perfonn any renovations to the underground connection from Suburban Station to the 15th Street Station. SUF 28. Indeed, as a "key station," renovation of Suburban Station did not require that the underground connections between these two stations be made accessible. See 1991 Guidelines, § 10.3.2(2) (Existing Facilities: Key Stations) (accessible route requirements between facilities contained in § 10.3.1(3), which incorporates Section 4.3, is not applicable to key stations). SUF 18.
While SEPTA acknowledges that the 15th Street Courtyard is owned by the City, ownership is not relevant to defining the facility or the scope of a particular renovation project. SUF 8. Nor is ownership relevant to the ADAAG definitions of "accessible," "facility," "site," "entrance," or "accessible route." 1991 Guidelines, § 3.5. In February 1995, SEPTA and the City reached a general agreement concerning the framework for the Project. SUF 3. One of the objectives was to have SEPTA, the City and private ownership enter into cooperative agreements to implement the renovations without regard to property ownership. SUF 3-4. Accordingly, property ownership is irrelevant to this inquiry both as a matter of law and as a matter of fact.
The 15th Street Courtyard and Suburban Station concourse are well within the property line boundary of Suburban Station. SUF 7 & 15. The architectural schematic of Suburban Station as well as an exhaustive review of the history of Suburban Station demonstrate that the 15th Street Courtyard and Suburban Station's 15th Street corridor are within the Suburban Station concourse property line. SUF 15,33-38. Indeed, the boundary between
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Suburban Station concourse and the 15th Street Market-Frankford Subway-Elevated Station is shown to begin at the seventh step leading out of the Suburban Station corridor to the 15th Street Station. SUF 15,31,38. In light of this undisputed evidence, the 15th Street Courtyard is an "entrance" to Suburban Station.
(a) DIA's Position That The 15th Street Courtyard Is An Entrance To The Market-Frankford Subway-Elevated Line Is Unsupported By Law And Fact.
DIA has argued that the 15th Street Courtyard is an "entrance" to the 15th Street Station and not Suburban Station. In support of this argument, DIA claims that: (1) "diagrams of the concourse depict the close proximity of the 15th Street Entrance to the 15th Street Station ...."; (2) the City recognizes the 15th Street Entrance as an entrance to the 15th Street Station; and (3) SEPTA itself "recognizes the reality that the 15th Street Entrance as an entrance to the 15th Street Station." These arguments have no merit.
(i) "Close Proximity" Is Irrelevant In Determining Whether A Facility Must Be Vertically Accessible.
DIA argues the "close proximity" of the 15th Street Courtyard to the 15th Street Market-Frankford Subway-Elevated Station and implies that proximity makes the 15th Street Courtyard a part afthe 15th Street Market-Frankford Subway-Elevated Station. DIA Memorandum at 22.17 DIA cites no legal authority to support this contention, nor can it. DIA Memorandum at 23. The Guidelines nowhere employ the amorphous notion of proximity to trigger a "vertical accessibility" requirement. The notion of "proximity" is wholly antithetical to
ADAAG's boundary-driven defInitions of "accessibl.e," "facility," "entrance"" "site" and
"accessible route." 1991 Guidelines, §§ 3.5, 4.3. Under ADAAG, each of these controlling
J7 DIA's factually baseless reference to the 15th Street Courtyard as the "15th Street Entrance" will not make the 15th Street Courtyard a part of the 15th Street Market-Frankford Station no matter how often that label is invoked.
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definitions depends upon the applications of particular boundaries. Surely a subjective concept like proximity has no place among ADAAG's architectural guidelines, especially where, as here, vertical accessibility may mean the provision of an elevator at significant cost.
Just as undefined notions of "proximity" cannot re-draw property lines or change the scope of a project, neither the ADA nor the Guidelines provides that renovation of one facility triggers a requirement that another facility in "close proximity" be made accessible. The Key Station provisions exemplify the precision and inherent limits that are clear throughout ADAAG. As a "Key Station," renovation ofthe Suburban Station transit facility did not require that the underground connection between Suburban Station and 15th Street Market-Frankford Subway-Elevated Station be made accessible. 1991 Guidelines, § 10.3.2(2). See SUF 8. Even in new construction a route connecting two facilities need not be made accessible if the facility potentially to be connected to new construction is not accessible. 1991 Guidelines, § 10.3.2(2). Because Suburban Station is fully accessible (with two elevators), there was no requirement that SEPTA install a third elevator at the 15th Street Courtyard.
(ii) DIA's Argument that the City Recognizes 15th Street As An Entrance to the Market-Frankford Subway-Elevated Line Is Without Merit.
Similarly, DINs contention that the City recognizes the 15th Street Courtyard as an entrance to the 15th Street Station of the Market-Frankford Subway-Elevated Line is unavailing. DIA Memorandum at 22-23. DINs reliance upon the testimony of City employee Christopher Zearfoss is misplaced and does not make the 15th Street Courtyard a part ofthe 15th Street Market-Frankford Subway-Elevated Station. See DIA Memorandum at 23. Zearfoss did not testify that one can "directly access" the 15th Street Market-Frankford Subway-Elevated Station from the 15th Street Courtyard. Rather, Zearfoss testified that when one walks down into the 15th Street Courtyard, an individual has entered Suburban Station at one of a number of
IS
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entrances to the Suburban Station 15th Street concourse. See Zearfoss Deposition, 8/13/04, DIA Memorandum at Exhibit "18" at 81. Zearfoss' testimony makes clear that the 15th Street Courtyard is not an entrance to the 15th Street Market-Frankford Subway-Elevated Station.
Zearfoss acknowledged that Suburban Station and the 15th Street Market-Frankford Subway-Elevated Station are at different elevations at both concourse and track levels. Zearfoss' testimony confmns that the 15th Street Courtyard provides an entrance to Suburban Station at its 15th Street corridor and that in order to arrive at the 15th Street Market-Frankford Subway-Elevated Station from the 15th Street Courtyard, one needs to traverse an underground connection and ascend the hump to the 15th Street Market-Frankford Subway-Elevated Station and enter its bounds. See id. at 81. See SUF 30.18 This testimony does not support the contention that the City recognized the 15th Street Courtyard as an "entrance" to the 15th Street Station.
(iii) DIA's Argument that SEPTA Recognizes 15th Street As An Entrance to the Market-Frankford Subway-Elevated Line Is Without Merit.
DIA further asserts that "[e]ven SEPTA itself recognizes the "reality" that the 15th Street Entrance is an entrance to the 15th Street Market-Frankford Subway-Elevated Station." DIA Memorandum at 23. This assertion is incorrect. DIA relies upon a one-page unidentified and unauthenticated document that, in addition to providing hours and fare information, identified 15th Street Market-Frankford Subway-Elevated Station as being on the "Market-Frankford Line" with an "address" at "15th & Market Street." DIA Memorandum at
18 See SUF 31 at Exhibit "I" at 3 (noting !hat "Where is a distinct difference in elevation between !he Market-Frankford Line and !he Suburban Station concourse level," "when standing at !he bottom of the Suburban Station concourse level steps a six feet tall person is looking at the ankles of people on !he Market-Frankford 15!h Street Station mezzanine," and "[t]his property line running between !he Suburban Station concourse level and !he Market-Frankford mezzanine level is the boundary between the Market-Frankford Line and !he Suburban Station Complex.").
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~ 23; DIA Exhibit 6. As DIA is fully aware, both the 15th Street Market-Frankford SubwayElevated Station and the Market-Frankford tracks are located directly under Market Street and are not within the boundaries of the 15th Street Courtyard or the boundaries of Suburban Station. See SUF 15 & 30.
Paragraph 26 ofDIA's Motion also claims that SEPTA's directional signage in the 15th Street corridor of Suburban Station (at the bottom of the 15th Street Courtyard escalator) identifies the 15th Street Courtyard as an entrance to the 15th Street Market-Frankford Subway-Elevated Station. See DIA Motion at Exhibits 15, 16. DIA relies on directional signage located at the base of the 15th Street Courtyard escalator, in Suburban Station. See SUF 30 & 31. This sign simply directs persons entering Suburban Station from the 15th Street Courtyard to various transit lines and Suburban Station's ticketing and platforms. Under the ADAAG, directional signage is of no import in determining what is constitutes an "entrance," "facility," "accessible route," or "site." 1991 Guidelines, § 3.5.19 DIA cites no legal authority under the ADA, its Part 37 regulations or ADAAG for the proposition that the existence or non-existence of directional signage is at all relevant to a determination of the entrances or boundaries of a facility or a site. This is because none exists and it would be an incorrect interpretation of Part 37 and ADAAG.
Finally, DIA relies upon the deposition testimony of Gerald Maier, SEPTA's Director of Real Estate, when he testified that pedestrians "can reach" the 15th Street Market-Frankford Station by utilizing the 15th Street Courtyard. DIA Memorandum at 23; DIA Motion at ~ 27. Maier testified that he considered 15th Street Courtyard to be an entrance to
19 ADAAG does require that, when "alterations" to a building are performed, only one accessible entrance is required as long as signage is appropriale at entrances tbat are not accessible. 1991 Guidelines, § 4.1.6(1)(11). SEPTA bas provided ADA-compliant signage at tbe street level oftbe 15th Street Courtyard that directs disabled individuals to the elevator at 16th Street. SUF 16, 18.
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Suburban Station -- not an entrance to the 15th Street Market-Frankford Subway-Elevated Station -- and that to travel from the bottom of the 15th Street Courtyard to the 15th Street Market-Frankford Subway-Elevated Station requires travel through Suburban Station's 15th Street corridor, and up the steps that lead to the Market-Frankford Station. Maier Deposition, 9/1/05, DIA Memorandum at Exhibit "20" at 66, 67, and 69. Whether an individual "can reach" a particular station --like "proximity" -- is not a defined ADAAG term and is of no pmticular relevance in detennining what constitutes a "facility," "accessible route," "site" or compliance with Key Station accessibility obligations. 1991 Guidelines, §§ 3.5,10.3.2. Obviously, DIA's relimlce is misplaced.
(iv) DIA's Additional Arguments Are Meritless. DIA next asserts that the definition of "facility" under Pmt 37 suggests that the 15th Street Courtyard is a part of the 15th Street Market-Frankford Subway-Elevated Station. (DIA Memorandum at p. 23, 29-31). This too is incorrect. ADAAG clarifies that a facility must be "located on a site" and that a "site" is a parcel ofland "bounded by a property line or a designated portion of a public right of way." 1991 Guidelines, § 3.5. All of Suburban Station, including its 15th Street Courtyard, is a facility located on a site. Similarly, the 15th Street Market-Frmucford Subway-Elevated Station is also a facility, located on its own "site" bounded by property lines -- a site that is wholly separate and apmt from Suburban Station20
20 DIA directs this Court's attention to the definition of a "facility" found in the DOT Part 37 regulations. This definition is phrased differently than the ADAAG definition, but is of equal impact: a "facility" is defined as \\all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, structure, or equipment is located." DIA Memorandum at 23, citing 49 C.F.R. § 37.3. DlA contends that this is a "very broad" definition that supports its claim that the 15th Street Courtyard is a part of the 15th Street Market-Frankford Station. DlA Memorandum at 23, However, this definition also requires that an entrance be part of the "facility" and on the "site," where the "building, facility structure or equipment is located." Simply put, where there is no "site" there can be no "entrance."
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ADAAG's Key Station provisions further illustrate that an entrance must be on
the same site as the facility or building. Under the Guidelines, a Key Station such as Suburban
Station is only required to have "... one accessible route from an accessible entrance to those
areas necessary for use of the transportation system." 1991 Guidelines, § 10.3.2(1); by definition,
an accessible route is defined to be within a facility (which in turn must be located on a site). It
is, therefore, undeniable that the entrance to which the accessible route must connect is an entrance that is located on the same site as the facility or building.21 The ADAAG compels the
conclusion that an entrance to a facility must be located on and be part of the facility -- in this
case Suburban Station -- to which the 15th Street Courtyard is an entrance?2
The applicable ADAAG provisions undermine any contention that the 15th Street
Courtyard is an entrance to the 15th Street Market-Frankford Subway-Elevated Station. There
simply is no doubt that the Suburban Station transit facility, is its own distinct "facility" on its
own distinct "site" with its own distinct "entrances" -- and the 15th Street Courtyard is part of
both Suburban Station and within the scope of the Project. Likewise, the 15th Street
Market-Frankford Subway-Elevated Station is its own distinct "facility" on its own distinct "site"
with its own distinct "entrances." The 15th Street Courtyard is not a part of that facility.
21 See 1991 Guidelines, § 10.3.2(1) ("Rapid, lighl and conunuterrail key stations: An existing intercity rail station shall provide at least one accessible roule from an accessible entrance to those areas necessary for use of the transportation system"). See also 1991 Guidelines, § 4.3.2, Accessible Route (location) ... "one accessible route within the boundary of the site"; § 4.3.2 ... "accessible route shall connect ... buildings, facilities and elements that are on the same site."
22 See 1991 Guidelines, § 3.5 ("Entrance" defmed in part as "[airy access point to a building or portion ofa building or facility used for the purpose of entering."). DlA's argmnent of "equal access" boils down to arguing that there must be an elevator at every stairwell. Even new construction does not mandate this under ADAAG. See, e.g., 49 C.F.R. § 37, Appendix A, § 4.13(8) (requiring only 50% of public eutrances to be accessible). Equal access does not mean that an elevator is required for every stairway or that multiple means of vertical access must be provided to access the same facility. Equal access means, in the coutext of a Key Station, that one accessible route be provided to the primary functiou areas ofthe Key Station. 49 C.F.R. § 37, Appendix A, § 10.3.2(1). The accessible route provides the disabled with complete and equal access to the primary function areas of Key Statious.
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Accordingly, all of the arguments asserted by DIA in support of its contention that the 15th Street Courtyard is an "entrance" to the Market-Frankford Subway-Elevated line are without merit.
5. Even Assuming that the 15th Street Courtyard is an Entrance to the Market-Frankford Subway-Elevated Line, the Replacement of a Stairway in the 15th Street Courtyard Does Not Qualify as an "Alteration" Under the ADA. Even if the 15th Street Courtyard is considered an entrance to the Market-
Frankford Subway-Elevated line (which SEPTA denies), the replacement of the stairway did not constitute an alteration within the meaning of the ADA and ADAAG and, therefore, did not obligate SEPTA to install an elevator. Work on the 15th Street Courtyard began in February 2001 as an accelerated phase of the Suburban Station Renovation Project and included installing a concrete stairway that was unsafe and in disrepair, renovating the headhouse at 15th Street, and replacing planters. SUF 22. No major structural modifications were necessary to install the replacement stairs. Id. The new stairway at the 15th Street Courtyard brings an ambulatory person from street level to the same point within the Suburban Station as the former stairway. SUF 23. The replacement of the stairway did not change the access from the street level to the Suburban Station concourse in any way. SUF 24.
Even the FTA has recognized, specifically with respect to SEPTA, that the replacement of elevators, escalators, and other accessibility features such as stairs simply constitutes normal maintenance. In a June 10, 1999 letter to then-SEPTA General Manager John K. Leary, FTA Regional Administrator Sheldon A. Kinbar pointed out that "under the Americans with Disabilities Act (ADA), where elevators, escalators and other accessibility features exist they must be maintained." SUF 44. Kinbar equated repair or replacement with maintenance. To that end, Kinbar requested, inter alia, "[a]n updated schedule for repair or
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replacement of these elevators and escalators, along with expected sources of ftmding for this purpose and expected completion date." fd.
Tellingly absent from the FTA Regional Administrator's letter is any indication that the replacement of an escalator would carry a concomitant obligation to provide vertical accessibility corresponding with the escalator site. fd. As the FTA plainly recognized in Kinbar's letter, the Guidelines do not mandate that SEPTA provide an elevator where it has replaced an existing stair or escalator, no major structural modifications were undertaken to install the stair or escalator, and duration of inoperability is irrelevant. See id.
The Third Circuit's decision in Sykes, supra, is consistent with ADAAG's provisions that an elevator need not be provided where existing stairs are replaced. In Sykes, the Court held that only the reconstruction ofthe northeast entrance to Columbia Station on the Broad Street Line effected an "alteration" "in a manner that affects or could affect the accessibility of the facility." Sykes, 833 F.2d at 1121. The reconstruction of the northeast entrance consisted ofthe construction of two entirely new stairs and a new escalator. fd. at 1120. Notably, the reconstruction oftwo existing stairs on the southbound side of Columbia Station in Sykes was insufficient to trigger a vertical accessibility requirement. In Sykes, the reconstructed southbound stairs lead "from the street to the southbound terminal at the Columbia Avenue Station." See Sykes, 833 F.2d at 1120. The Court pointedly declined to hold that reconstruction oftwo existing stairways on the southbound side of Columbia Station constituted "alterations." fd. at 1120, 1121. See also SUF 36 & 37.
Sykes is instructive as the Third Circuit: (I) ordered installation of an elevator only where new stairs and a new escalator were constructed, which is not the case here, and (2) did not order vertical accessibility where reconstruction of two existing stairways took place,
21
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 22 of 32
which is twice the number of existing stairways at issue in this case. Standing on its own, the application of Sykes to the instant case compels the conclusion that no elevator is required in the 15th Street Courtyard.
DIA argues that the replacement of the stairs at the 15th Street Courtyard was other than normal maintenance. The evidence does not support this conclusion. In addition to ADAAG's general definition of alterations, ADAAG specifically addresses existing escalators and stairs. Section 4.1.6(l)(f) of the Guidelines provide that vertical access is required only when "an escalator or stair is planned or installed where none existedpreviously and major structural modifications are necessary for such installation." (Emphasis added). In this case, the stairs in the 15th Street Courtyard indisputably existed previously and the project did not rise beyond the level of "normal maintenance." No major structural modifications, such as moving the Courtyard walls - which function as the "stairwell" of the 15th Street Courtyard, were required to put in the replacement stair and the replacement did not change access at the 15th Street Courtyard. SUF 24.
To escape the fundamental fact that the new stair at the 15th Street Courtyard was replacement work constituting normal maintenance, DIA repeatedly invokes either the words "demolished" or "demolition." DIA Memorandum at pp. 26-28. Replacement, of course, is the final act of maintenance that comes at the end of the useful life of any object. SUF 45. Simply put, at the end of an object's useful life, it is replaced without usability being affected. Id. Replacement is simply one point on the continuum of normal maintenance. Id. Even DIA's counsel acknowledges that "demolition" is simply one point on the continuum of normal mam• tenance. "Td.23
23 DIA's effort to equate the plrrase "maximum extent feasible" with the concept "make all possible changes" is flawed. D1A Memorandum at 29-30. As D1A is fully aware by virtue oUts citation to 49 C.F.R. § 37.43(b),
22
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 23 of 32
Performing normal maintenance or changing the mechanical or electrical systems are not alterations that trigger a requirement to provide an elevator. See 49 C.F.R. § 47.3. See also Sykes, supra, 833 F.2d at 1121. In Sykes, the Court recognized that normal maintenance of existing stairs does not trigger a vertical accessibility requirement. ld. at 1121, n.9. That normal maintenance does not trigger accessibility is firmly embedded in both the ADA and ADAAG. See, e.g., 42 U.S.C.A. § 12147(a); 49 C.F.R. § 37.43 (transportation facility need not be made accessible in absence of alterations that affect usability); 1991 Guidelines, § 4.1.6(1)(i) (alteration work that is limited to electrical, mechanical, plumbing, hazardous material abatement, or automatic sprinkler retrofitting does not trigger accessibility requirement).
In sum, DIA cannot demonstrate that the replacement ofthe stairs at the 15th Street Courtyard constituted anything other than maintenance of those stairs. The removal of a deteriorated set of stairs and replacement with another set of stairs without the performance of major structural modifications does not trigger ADA accessibility requirements. SUF 44-45. A replacement stairway is considered maintenance if the existing stairway is beyond repair and does not alter an entrance. ld. Section 4.6(l)(f) of the Guidelines is controlling and installation of an elevator is not required. Put simply, usability and accessibility are not affected in the absence of major structural modifications. Therefore, no "alteration" took place.
6. The Cases Cited by DIA Are Distinguishable. DIA places almost exclusive reliance upon the Third Circuit case of Kinney v.
Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994), to support its contention that SEPTA's replacement of the 15th Street Courtyard stairs constituted an
the phrase "maximum extent feasible" applies (I) where a party seeking accessibility has carried its burden of demonstrating that a planned alteration has triggered a duty to provide accessibility that is technically feasible and (2) providing accessibility is impossible given the idiosyncratic nature of the facility being altered. See 49 C.F.R. § 37.43(b).
23
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 24 of 32
"alteration" under the ADA. Kinney is easily distinguishable from this case. As a threshold matter, Kinney is a case that arises under 49 CFR Part 35, which is not applicable here.24 Kinney addressed whether altered streets must contain curb ramps or sloped areas when a city resurfaces a street; and not with the replacement of existing stairs or escalator under Part 37. Kinney, 9 F.3d at 1069.
Other factors distinguish Kinney. The Court decided Kinney within the context of a Department of Justice regulatory mandate that compelled public entities to fashion a transition plan for providing curb cuts by January 26,1995. Id. at 1071,1072, citing 28 C.F.R. § 35.150(c) and (d)(2). No such mandatory transition plan exists with respect to the replacement of existing stairs and escalators that are at issue in this matter. DIA contends that the Third Circuit "[f]ocused with precision on the concept of usability that is expressed in the statutory language for alterations." However, the Third Circuit utilized ADA Title III criteria with respect to private entities that is wholly inapplicable to public entities providing mass transportation, which is controlled by Title II. Federal, state, and local governments are not covered by Title III. See S.Rept. No. 101-116, IOlst Cong., 1st Sess.
To apply Kinney to this case would violate the basic principles of statutory construction as it would elevate Kinney's general analysis of "usability" in the context of curb cuts above the application of specific DOT regulations and specific ADAAG provisions applicable to this Title II matter. General language of a statute will not apply or prevail over matter specifically addressed in another part of the same enactment. See In Re: Davidson, 120
24 Part 35 thus does not apply to the provisions of Part B of Title II that govern puhlic mass transit. The DOJ regulations promulgated with respect to Part A of Title II of the ADA are found at Part 35 of Title 28 of the U.S.C.A. That Part's purpose is to effectuate suhtitle A of title II of the ADA, 28 C.F.R. § 35.101. The DOJ regulations specifically provide that, "[t]o the extent that puhlic transportation services, programs, and activities ofpuhlic entities are covered by subtitle B of Title II of the ADA (42 U.S.C. 12141), they are not subject to the requirements ofthis part." 28 C.F.R. § 35.102(h) (emphasis added).
24
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 25 of 32
B.R. 777, 787 (D.N.J. 1951). A specific statutory provision will prevail over a general provision. Abramson v. Georgetown Consultants Group, Inc., 765 F. Supp. 255, 262 (D.V.I. 1991), judgment aff'd, 952 F.3d 1391 (3d Cir. 1999). Statutes and regulations are subject to the same rules of construction. See Sekula v. Federal Deposit Ins. Corp., 39 F.3d 448,454 (3d Cir. 1994).
Applying Kinney's analysis would undermine: (1) the ADAAG guideline that requires vertical access at an escalator or stair only where none previously existed and major structural modifications are required for the installation, (2) the ADAAG guideline for entrances to a building that requires only one accessible entrance to a building so long as signage is appropriate, and (3) the ADAAG provision for key stations requiring only one accessible route from an accessible entrance. 49 C.F.R. § 37 Appendix A, § 4.1.6(1 )(f) and (h); 49 C.F.R. § 37 Appendix A, § 10.3.2(1). Kinney is simply not applicable here.
DIA's reliance upon Civic Association ofthe Deafv. Giuliani, supra is also misplaced. Giuliani is distinguishable first as a Part 35 case that is inapplicable to the instant Part 37 matter. Giuliani did not involve stairs or escalators or regulatory provisions and controlling guidelines that specifically address stairs or escalators. The Court in Giuliani, which dealt with the replacement oftwo-button emergency boxes with one-button emergency buttons, found an ADA violation based upon a determination of a change to the physical andfunctional structure of the equipment. Guiliani, supra. at 359. In the instant matter, as is set forth above, there has been no change in the functionality of either the stairs in the 15th Street Courtyard; the replacement stair provides the same access as before. SUF 24.
DIA's reliance upon Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 811-812 (2d Cir. 1996) is similarly misplaced. Molloy did not involve stairs or escalators or regulatory provisions and guidelines that specifically addressed stairs or escalators. Rather, Molloy
25
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addressed, inter alia, a claim that the installation of ticket vending machines in railroad stations constituted "alterations" under the ADA. The Molloy Court, unlike this Court, did not have the benefit of or the requirement to apply specific ADAAG provisions governing key stations, stairs, normal maintenance, and escalators.
Finally, DINs reliance upon DlA v. Sykes, supra, is equally as unavailing. DIA claims that Sykes dealt with "alterations" substantially identical to those in this case. DIA Memorandum at 34. This is not true. In fact, Sykes confronted a situation where the City constructed two new stairways and a new escalator on the northbound side of Columbia station on the Broad Street Line where none existed before. DJA v. Sykes, 833 F.2d at 1120. On the southbound side, the City had either partially or entirely reconstructed two stairways. Jd. at 1120. The Court, applying the Rehabilitation Act, found a vertical access requirement on the northbound side, where the completely new stairs and escalator were placed. Jd. at 1121. However, on the southbound side, the partial or total reconstruction of two sets of stairs still was not enough for the Court to conclude that the work was beyond normal maintenance. Jd. at 1121. In sum, none of the case law cited by DIA supports its motion for summary judgment.
B. SEPTA'S REPLACEMENT OF AN ESCALATOR FROM THE CONCOURSE LEVEL TO THE COURTYARD IN CITY HALL WAS IN FULL COMPLIANCE WITH THE ADA. SEPTA initiated an Escalator Replacement Program in 1999 to replace escalators
that were not already being repaired or replaced as part of other projects. SUF 46. The southeast City Hall Courtyard escalator was replaced as part of Phase II of this city-wide program. SUF47.
26
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 27 of 32
1. The Escalator Is Not An "Exit" from the City Hall Station. As a threshold matter, the southeast escalator is not an "exit" from the City Hall
Station.25 Replacement of the escalator at City Hall leading from the mezzanine, or concourse, level, did not trigger a requirement to install an elevator to subway platforms. The escalator at issue is located wi1hin the concourse level at City Hall and provides an exit from the concourse that is not located within City Hall Station. SUP 51-53. There is no dispute that 1his escalator exited only from the mezzanine and not from subway platforms. SUP 53-54.
DIA argues that the escalator in the southeast area ofthe City Hall Courtyard descends to the Broad Street Subway at City Hall Station. This is not accurate. Rather, the southeast escalator operates as an exit only leading from the mezzanine level below the City Hall Courtyard to the Courtyard level. SUP 51-53. There is no descending escalator or stairs at this location in the City Hall Courtyard. SUP 51. A person disembarking from the Broad Street subway onto the platform at City Hall Station cannot access the escalator without walking up the set of stairs and traveling through the mezzanine to the base of the escalator. SUP 53-54. Accordingly, the southeast escalator is not an "exit" from the City Hall Station.
2. The Southeast City Hall Courtyard Escalator Renovations Do Not Constitute "Alterations" Under the ADA. Even assuming that the escalator in the southeast area of the City Hall Courtyard
was an "exit" from City Hall Station (which SEPTA denies), the replacement ofthe escalator was simply the replacement of out-of-service equipment as part of an ongoing maintenance program. Performing normal maintenance or changing the mechanical or electrical systems are
25 DIA relies in its brief on the footnote included in the Third Circuit's opinion regarding the status of the escalator as an "exif' to City Hall Station. This reliance is misplaced. In its decision, the Third Circuit merely stated in a footnote that "[a]t this stage of the proceedings, we reject SEPTA's hyper-technical defmition of 'exit' ... The District Court may consider the relevance, if any, ofthis dispute on remand." 539 F.2d at 202 n.8. Accordingly, this issue is ripe for decision by this Court.
27
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not alterations that trigger a requirement to install an elevator. See 49 C.F.R. § 47.3. See also Sykes, 833 F.2d at 1121. In Sykes, the Court recognized that normal maintenance of existing stairs does not trigger a vertical accessibility requirement. The Court specifically quoted from the preamble to the DOT "alterations" regulation, 49 C.F.R. § 27.67(b), enacted pursuant to the Rehabilitation Act, which governed the resolution of Sykes:
In the preamble to the final rule, the DOT explained: [49 C.F.R. § 37.67(b)] is based on the belief that alterations present opportunities to design and construct the altered portion or item in an accessible fashion ... The basic requirement in [49 C.F.R. § 27.67(b)] is simply to take the opportuoities afforded by the alterations and, to the maximum extent feasible, use the alteration to make the facility accessible. Thus, normal maintenance may take place in practically all cases without generating an accessibility requirement. 44 Fed. Reg. 31442, 31449. ld. at 1121, n.9 (emphasis added). The straightforward concept that normal maintenance does not trigger an accessibility requirement is firmly embedded in both the ADA and in the ADAAG. See, e.g., 42 U.S.C.A. § l2l47(a) (Alterations of existing facilities), 49 C.F.R. § 37.43 (Alteration of transportation facilities by public entities) (transportation facility need not be made accessible in absence of alterations that affect usability); 1991 Guidelines, § 4.l.6(1)(i) (Accessible Buildings: Alterations) (alteration work that is limited to electrical, mechanical, plumbing, hazardous material abatement, or automatic sprinkler retrofitting does not trigger accessibility requirement). There is no disputed issue of material fact that the existing uosafe escalator in the City Hall Courtyard was replaced with another escalator providing the identical service. SUF 52. The existing escalator was removed from the wellway and a new escalator was installed in the same wellway. SUF 48. Although the wellway was extended at the top and bottom to
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Case 2:03-cv-01577-GP Document 163-4 Filed 01/16/2009 Page 29 of 32
accommodate the new ADA-compliant escalator (two additional steps at top and bottom), no major structural modifications were made. ld. at 113-114; SUF 48-50.
Moreover, the usability of City Hall Station was not affected as the previous escalator ascended from the mezzanine, not City Hall Station. The replacement escalator also ascends from the mezzanine. ld. at 101-102; SUF 52. There was no change in access. Even if an elevator were placed in the location of the escalator, it physically could not descend to City Hall Station. ld. at 114-116, 133; SUF 57. Therefore, the usability ofthe station was not affected by the escalator replacement and there was no opportunity to provide greater access.
Under Section § 4.1.6(f) of the Guidelines, installation of an elevator is required only when "an escalator ... is planned or installed where none existed previously and major structural modifications are necessary for such installations." (Emphasis added). Where an existing escalator is replaced and no structural modifications occur, as here, there is no vertical access requirement under the ADA.
DIA argues that the replacement of the Southeast City Hall Courtyard escalator constituted other than normal maintenance and affected the usability of City Hall Station.26 This is simply not the case. Rather SEPTA replaced one escalator with another escalator that was ADA-compliant and provided the identical service to the identical location. The existing escalator was removed from the wellway and a new escalator was installed in the same wellway. SUF 50.
26 DIA, in a one paragraph argument, contends that "[t]he undisputed documentary evidence identifies the Southeast City Hall Courtyard escalator as part of the City Hall Broad Street Subway Station" and that "[t]here is absolutely no question that the Southeast City Hall Courtyard escalator is part of the Broad Street Subway City Hall Station." DIA Memorandum at 24. Between these two conclusory sentences, DIA points to construction photographs of the Southeast City Hall Courtyard escalator. DIA Memorandum at 24. While certain of the photographs defme the location as "City Hall Station," such description does not make it so. The Southeast City Hall Courtyard escalator is, in fact, located within the concourse level at City Hall and provides an exit from the concourse, but is not located within City Hall Station. SUF 51-54. Regardless of how one characterizes the replacement escalator, it is normal and needed maintenance.
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Although the wellway was extended at the top and bottom to accommodate the replaced escalator, no major structural modifications, such as moving the walls of the wellway, were undertaken. The new escalator, like the old escalator, is in the same wellway. ld The usability of City Hall Station was not affected because as the previous escalator ascended from the mezzanine, (not City Hall Station), the replacement escalator also ascends from the mezzanine. ld. Ofcourse, even if an elevator were placed in the location of the Southeast City Hall Courtyard escalator, it physically could not descend to City Hall Station. ld, SUF 53-54, 57.
The concepts of replacement, useful life, and normal maintenance discussed with respect to the stairs in the 15th Street Courtyard apply with equal force to the replacement of the Southeast City Hall Courtyard escalator. SUP 50-52; 49 C.F.R. § 47.3; Disabled In Action v. Sykes, 833 F.2d at 1121; 42 U.S.C.A. § I 21 47(a); 49 C.F.R. § 37.43; 1991 Guidelines, § 4.1.6(1 )(i). Plainly, the June 10, 1999 letter from Kinbar to Leary specifically addresses the Southeast City Hall Courtyard escalator and did not require vertical accessibility as part of the Escalator Replacement Program. SUF 44. At transit properties throughout the country elevators and escalators are replaced as a matter of course as part of ordinary maintenance. SUF 44. According to the FTA, replacement of an escalator does not trigger ADA accessibility requirements no matter how long an escalator has been out of service. ld.
DIA cannot demonstrate that the replacement ofthe Southeast City Hall Courtyard escalator constituted anything other than normal maintenance that did not involve major structural modifications to replace the escalator. Accordingly, the work at the southeast City Hall Courtyard escalator did not trigger an ADA obligation to install an elevator to the
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mezzanine or to City Hall Station. See 1991 Guidelines § 4.6(1)(f)?7 SEPTA is entitled to summary judgment on this claim as well. IV. CONCLUSION
For all the foregoing reasons, SEPTA respectfully requests that the Court grant its Motion for Summary Judgment and deny DIA's Motion for Summary Judgment.

Dated: January 16, 2009

STEVENS & LEE
By: fsf J0 Bennett Michael G. Tierce Pa. ID No. 49896 mgt@stevenslee.com Jo Bennett Pa. ID No. 78333 jb@stevenslee.com 1818 Market Street, 29th Floor Philadelphia, Pa 19103 (215) 751-2883
Attorneys for SEPTA

27 It is physically impossible to provide vertical access to the subway platforms from the location of the escalator. SUF 53-54, 57.
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CERTIFICATE OF SERVICE
I, Jo Bemlett, certify that on this 16th day of January, 2009, SEPTA's Motion for Summary Judgment on Plaintiffs Remaining Claims, Memorandum of Law in support of SEPTA's Motion and in Opposition to DIA's Motion for Summary Judgment, and proposed Orders were filed electronically and are available for viewing and downloading from the ECF system. I further certify that Plaintiffs counsel were served via the Court's ECF system

Dated: January 16,2009

By: lsi Jo Bemlett Jo Bennett

SLJ 884420vl/007344.00033

 
 Case 2:03-cv-01577-GP Document 171 Filed 09/11/09 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY :

:

:

Defendant

:

03-CV-1577

ORDER AND NOW, this 11th day of September, 2009, upon consideration of Plaintiff’s Motion for Summary Judgment (Docket No. 155), Defendant’s Response thereto (Docket No. 162), Plaintiff’s Reply (Docket No. 166, 168), Defendant’s Motion for Summary Judgment (Docket No. 163), Plaintiff’s Response thereto (Docket No. 167), and following oral argument on June 19, 2009, IT IS HEREBY ORDERED that Plaintiff’s Motion (Docket No. 155) is GRANTED and Defendant’s Motion (Docket No. 163) is DENIED. SEPTA shall, no later than October 30, 2009 submit to the Court, with a copy to Plaintiff’s counsel, a proposed schedule of compliance with this Order.

BY THE COURT:

S/Gene E.K. Pratter GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

 
 Case 2:03-cv-01577-GP Document 111 Filed 06/09/05 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION,

:

Plaintiff,

:

:

vs.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY, :

Defendant.

:

CIVIL ACTION No. 03-1577

O R D E R AND NOW, this 9th day of June, 2005, upon consideration of the Motion for Partial Summary Judgment filed by Disabled in Action (Docket Nos. 85, 86), the response thereto (Docket Nos. 96, 98), and the reply to the response (Docket No. 104), and in light of the fact that (1) discovery in this case remains open and SEPTA has indicated that it has insufficient information from which to respond to several of the facts recited in the Motion, and (2) there remain various disputes with respect to material facts in the case, the Court finds that the filing of the Motion at this time is premature. It is therefore ORDERED that the Motion is DENIED without prejudice.
BY THE COURT: _______________________________ GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

 
 Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 1 of 24

VNITEIl STATES DISTRICT COURT FOR THE EASn.:HN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTJON OF PENNSYLV ANIA
v\
SOUTHEASTLRN PENNSYLVANIA TRANSPORTATION AUTHORITY "SEPTA" 1234 Market Street Philadelphia, PA 191OJ-,3780

CIVIL ACTION NO 03-CV-1577

AND NOW, tbis ..__ day of _ _.

, 2003, upon consideration of Defendant's

Motion to Dismiss ilnd any response thereto, it is hereby ORDERED and DECREED that

Defendant's Motion is GH.ANTEJ), Plaintiffs cornplaint against SEPTA is hereby IJISMISSED,

BY COIIIU

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 2 of 24

? ' : : - -~ - ' ~\

~('\ (\6j
~. -----'"

lUiNNIlTnF:]n) STATTFE:S DmISSTTIRUICT COIlJ)RT FOO!I~l THlIE EF:AASSTERN Im:HSSTTRIUICCT OF PENNSYLVANIA
--,-,-".,_...._,-"",.,-_._._-"".",--

DISABLED IN AC(:TION OF PENNSYLVANIA

'--~
CIVIL ACTION NO. O03}--CC.:YV-1I5577

SOUUTTl-HlEEAASS'TTTE';RN PENNSSYL.YvAN fA 'TfRANNSSPPOORIUTATION AOUTHORITY ·"CSIE'PVTfAA"" 1234 Market Stred Philadelphia, PA 19107-3780

FILE 0

DnFEFFEENNDDANN1T' SOUlJTHEASTERN PENNSYLVANIA THRANSPORTATION AUTfHHOOIRUITYV'S§ RULE 122((1bJ))((7) MOTION TO DISMISS PLAINTTII'FF'S COMPLAIiNT
oDUm~:: TO PLAINTIFF'S FAILURE TO COMPl'LY WITH THE FEDERAL RUllLES REQlmJIRREEMMEENTS UNDER 19(a0) OF COMPULSORY "JOmINNnDEER

Dciendant Southeastern Pennsylvania "'ffrraannssppoorrtation Authority, ("SEPTA"), by and

through its Counsel, hereby mes: this Rule 12(b)(7) Motiorl to Dismiss Plainnttiiffff's COlTlplaint

pursuant to Fed, It Civ. P. 19(a) due to Plaintjiff~~ss failure to join the City of Philadelphia as a

paxJty to this litigation.

1. In this action, Plaintiff~~ Disabled in Action of Pennsy lvania ("UItA") secekks& an order

llom this Court requiring SEPTA to construct an elevator or perform some other alteration to

property owned by the City of Philadelphia, not by SEP'fA. Sec Plaintiffs Complaint attached as

Exhibit A, Paragraph L Prayer for ReliecfCC. D).

2.

The lawsuit arises out of SEPTA 's alleged Hlilure to pnwide acecess to the Frankford~

Market Elevated tnmsportation services to persons \\v'iti1th1 disabilities in connection \\'1il1.1'11 t.he ongoing

restoration of Suburban Station.,

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 3 of 24

3,

SEPTA began the restoration of Suburban Station in the Fall of 2002 \·vhich, once

complete, will include six elevators, t\\/(} ofvvhic'J!1 \vill provIde access to Suburban Station front the

street. The restoration is scheduled to take approximately three )'cars. See Affidavit of (jerald

Maier, ~:14, attached hereto as Exhibit R

4.

SEIYfA began an accelerated phase of the Suburban Station renovation, in part, by

performing renovations to one of the numerous entrances to Suburban Station, the one at tbe

Arc. Northwest corner of 1511\ and Market Streets.

of Maier at 415.

5.

'fhe property where the renovations ,vcre pcrfonn(~d at the] Sill andiVlarket Streets

entrance is owned by the City of Philadelphia, not by

A, AtT. of Maier at ~r6.

6,

Because

A docs not o\,vn the property, SIiPTA is unable to begin additional

construction of an elevator or make any !lew alterations to the property.

7.

Federal Rule of Civil Procedure 19(a)( 1) requires the joinder of a party to an action

if. "in the person's absence complete relief cannot be accorded among those alreildy parties... "

8

Even ifthc Cmni ordered SEPTA to coostruct an elevatot or perJtt>rm other alterations

at l.yh and Market Streets, SEPTA would be unable to act.

9. Consequently,. without tbe City of Philadelphia as a pa.rty to this lawsuit this Court

could not grimt complete reliefto the existing parties, and Plaintiff's Complaint should be dismissed

under Fcdeml Rule of Civil Procedure 19(a)( I).

10. Additionally, FedeeHmlI Rule of Civil Procedure 19(a)(2) requires the joinder ofa party

to an action it~ "the person claims an interest relating to the sul-:jcct of the action and is so situated

that the disposition of the action in the person's absence may (i) as a practical matter impair or

impede the person's ability to protect that interest or (ii) leave any of the persons already parties

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 4 of 24

subject to a substantial risk of incurring double, multiple, or othcnvise inconsistent obligations by

reason of the claimed interest."

11. Since it would be extremely prejudicial to the ('ity of Philadelphia to have this ('ourt

decide whether or not there should be changes nwde to City property without the City's presence in

this litigation, Plaintiff's Complaint should be dismissed under Federal Rule of Civil Procedure

19(a)(2)(11

12. Furthermore, since the City has a claimed ownership in the subject rnatter of the

litigation, i.e. the property located at l)1i> and Market Streets, this could lead to double, multiple or

inconsistent obligations by n.',ason of the City's claimed interest in the properl:J".

1:1 Therefore, pursuant to Fed. R. Civ. P. 19(a)(2)(li), SEPTA's Ruh7 12(b)(7)i\totion

to Dismiss should be granted and P!aintiffshould be required to include the City of Philadelphia in

this litigation.

14 Based upon Plaintiff's hli!ure to include a necessary pUliy to this litigation,

A's

Rule 12(b)(7) Motion to Dismiss Plaintiffs Complaint pursmmt to liederal Rules of Civil Procedure

19(a)(1), 19(a)(2)0) and 19(a)(2)(i1) should be granted.

WHEREFORE, Defendant SEPTA respectfully requests that this ('ourt grant its 12(b)(7)

Motion to Dismiss Plaintiff's Complaint for failure to join a necessary paIiy.

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 5 of 24 Respectfully submitted,
BV, ._~U_~.~._ SA!!!' It KIUcNZEL, LSQIHRE AllAM A. OESIPIO, ESQIJIRE SAUL H. KRENZEL & ASSOCIATES The Robinson Building, Suite 800 42 South! 51h Street Philadelphia, Pi\.' 19102 (215) 977-7230 Attorneys fi)r Defendant SEvrA DATED: April 24, 2003
4

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 6 of 24
L /\DAM A. 1)[SIPIO, ESQUIRE hereby certify that a true and correct copy of Defendant SEJYri\'S Motion to Dismiss Plaintiffs (,'omplainot \vas served via first class mail upon:
Stephen F. Gold, EsqUlre 125 South Ninth Street Suite 700 Philadelphia, PA 19107

DATED: April 24. 2003

SAUL H.I<RENZEL, ESQUIRE AI)AM A. DESH>IO, ESQUIRE SAUL KRENZEL &. ASSOCIATES rhcRobinson Building 42 South 15th Street, Suite 800 Philadelphia, PA 19102 (215) 977·7230
(i\ttorneys for Defendant SEP'rA

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 7 of 24
EEXX~hiibbii~t
((

1
1 1 1 1
1 1 1 1
1 1
j j j j j j j j j j

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 8 of 24

IN THE UNITIm STATES DISTRICT comn

TIm EASTERN DISTRICT OF

ANlA

DISABLLD A( liDS m

P

'iL\/ANIA,

Plalntl

v

SDIJIHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Defendants.

s'7 '7 I IVll Action . 03eV

~ IN. T_ R- OI~ J!J(i- T- 'O~N.... Plaintiff Disabled In Action of Pennsylvania, !nc., a non-profit organization that provides
advocacy and services to persons \-vith disabilities, bnngs thIs action against the Southeastern Pennsylvania TranSpoftatwn Authonty ("SEiP'fA ") for Its flu] ure to pn:l\/lde access to persons vVlth disabilities to the newly renovated entrance to the Market Street elevated services (hereinafter "Frankford-Market Elevated") at the corner of 15 th and Market Streets 111 Philadelphia. '1'11i5 denial of equal access violates of Title II of the Arnericans with Disabilities Act ("ADA") 2nd Section 504 of the RehabilitatIOn Act of 1973 ("§ 504") PlaU1tJtfs seck inJunc1Jve rcllefrequrring SEVeA to provlClc equal access to the nc\vly constructed entrance at j 5th imel 0Aarket Streets to use the Frankford-Market Elevatc,d transportation services.

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 9 of 24

fhl.S court J1.lrlsdictlon of1.1us matter pursuant to 28 U S.c. § 133],28 U.S C. § I 3(3),
and 42 () SJ: § 12] 88(a} Plamtdls' cLums are authonzed by u.s § 198:30 and 28 U.S . §§
220 I and 3 Venue lS appropnate in thiS dIstrict pursuant to 28 U.S, C. §J 39] (b )(2) S11KC ajj of tile events that grve nse to th[fS Complaint occuned in this d!strkt.

4.

PlaintJif DIsabled in Action of Pennsylvama CDIA"), a non~profit corporation, advocates

fix the civd rights of and serVH>c':$ h')r persons >"""lith disabilities. DIA is an organization open to

anyone who bas a disability, !Deluding persons with mobility aneVor visual impainnents.

S.

DIA's primary orgalllzational function is to assist persons with disabilities achieve equality

Wllh nonchsabJlcd persons and to advocate on hehalJofand with persons with disabilities to eradicate

discrimination agmnst people with disabilItles in aU aspects of comrnunity ide, induding accessIble

Fn;mkf~)fd··Market Elevated transportation servtces.

6.

P!amtlffDIA has eXisted since the mid 1970s. Participants use and wantaceess to Septa's

Frankfi:.nd-Markce.rt Elevated transportation services. As defined by the ADA and Rehabilitation Act

of 1973, persons who participate with DrA and who have these. disabilities are "handicapped" with

:nobtllty and/or vlsual impaJrlTlents, and are "othery./lse qualltle,d" to use SEPTA's Frankford-Market

Elevated transportation services. Some persons who have rnobji]lity and)or visual impairments and

who seek D1,A'5 assistance imd/or participate in DIA's meetings and other activities arc and will

continue to be injured by Defendants' refusal to comply with the /\.D/\'::; federal regulations.

7.

SEPTA's violation (ff Its stalut()ry and regulatory obligations directly and concretely injure

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 10 of 24

DrA, by requmng DlA to advocate f(Jr the development and llnprovemenl of nondl.scrimmatory

transportation serVIces, mstead of spend1l1g its tune and resources assJstlng persons V'dth d!sablllties

with other Issues, lllcludlIlg accessible and affordable houslng, ilttendant care servlces, equal

employment opportul1!ties and access to places of public accommodation,

8

DIA 1.5 also directly and concretely hanned by SE:PTA 's fallure to proVIde access to the 15'1\

and Market Streets station because other persons with disabiiitles afC unable to use this station i.o

get to frOlTl meetings, programs a.nd advocacy activities which further cU11aiJs the organiz;:HionaJ

actIvities and goals of DIA.

9.

Defendant SEPT/\ is a public entity which recelYes federal funding and which operates a

fixed route transportation system, induding the Frankford Market Elevated transportation system,

10. Based on mfonnation and belief, SEP'fA altered the 15'11 and Market Streets entrance to the Frankf(nd }vlarket Elevated transportation system by budding a new stairway and impn)'..·ing the escalator. 1). SE:fl'fA did not make the: altered entrance accessible to persons with mobility disabi!lties.

Circuit held that the alteration of the Columbia A venue subway station entrance without making it
accessible vlOJated SectlOn 504 of t.he Rehabilitation Act and the federaj regulations promulgated
by the L ,S.Departrnenl. of Transportation which regImes:
Eaeh bejJity or part of a facility which is altered by, on behalf of, or for usc of a reCIpient . in;;1 manner that affects or could aftect the accessibility ofr.he fac,l!ity or part of the filCiJity shal!, to the maximum extent feasible, be altered in such a manner I,hat the altered portion of the facility is n::adily accessible to and useable by bandIcapped persons. 49 CF ]'Z. § 27.67(b)
)

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 11 of 24

I. j'

rile ncwly altered 15:1> and tVvffaarket Street entrance to the Fral1kford-l'v1arket Street Elevated

transportation system IS maccesslbJe to ;,l.nd not usable by persons wtth dLsabdlties

14. D1A, a disabIlity advocacy mganrzaattiioolnJ, IS an aggnc\'cd"pcrsons" \vtthlll the meanmg of the ADA and § 504 ofrtthhe Rehabl11tatlon /\ct of 1973 42 U S.C § ]21 33,29 U.S ,§ 794a. 15. Defendant SEPTA's construction of the 15 th and Market Street entrance to the Frankf()rdMarket Elevated transportation services, without. providing for accessible for persons with disabilties, violates the Americans \!;,ilth Disabilities Act, 421.J-S.C. § 12101, Subchapter H, Part B and the federal DOT regulations implementing the ADA and § 504 of the Rehabilitation Act of 1973 including 49 CF.R. § 27.67(b). I'RAYER FOR RELIEF
To remedy Defendants' federal statutory violations, Ph.lim>t'fs re.spectfully request that !.illS Court:
A. Exercise jurisdiction over tillS maHer; B. Declare that Defendants alteration to the 15\h and Market Streets entrance to the Frankford-Market Elevated transportation system, without providing for access f(x persons WIth disabilities, violates the ADA and Section 504 and the fl'::deral regulations that implement those statutes. C. Issue prelimlutwry and permanent mjunctive rellef to enjom Defendant to begin construction immcdiateJy ofa elevator at the 151h and Market Street entrance to the Frank f()f(itIvlarket r:::levated transportation system to assure access for persons with disabilltics, and D. Grant PlaintifTs such additional reliefas this Court may deem Jllsf, proper and
4

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 12 of 24

eqUltable, wcJudmg an d\vard of reasonable attorneys' f(~es and costs_

Respcyhdly submiitttteedd'_"1
" "-' BBy-' ~~/1~-;!~1g1('-/1~1~:-)/:~;.8/18J!0?_!ti1/?~

Dated: Mare{! 2003

125 South Ninth Street Sl.llte 700 Plllladc]phia, Pi\. 19to7
15) 627-7100

5

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 13 of 24
--XYlI\olt
G

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 14 of 24

l, (,ERALD MAJER, being duly srI/om, hereby depose and say:

! _ ! have been cnlploY'ed by SEPTA fhr the past I ! years and in that time I have held the

position of Dire,etm of Real r::state.

As Director of Real Estate for SEP'TA, my job responsibilities include the

management of all of SEJyrA's property \\"hich involves acquiring and disposing of SE~PTA'3

property by !ease or by sale. My.' job responsibilities also include \vorking \"'ith various property

ovvners in connection ;vith SEPTA renovation projects.

3.

As part of my duties as Director of Rcal Estate., 1 have beeD, and am, involved in the

ongoing project to renovate Suburban Station in the City of Philadelphia.

4.

SEPTA began the restoration of Suburban Station In (he Fall of 2002 which, once

complete, \'vil! include six elevators, two of which will provide access to Suburban Station fron') the

street. The restoration is scheduled to take approximately three years to complete.

S. SEPTA began an accelerated phase of the Suburban Station renovation, in par!, by

performing renovations to one of the numerous entrances to Suburban Station, the one at the

Northwest corner of I. 5lb and Market Streets_

6, I have reviewed the Complaint fikdagainsr SEPTA (Civil Action No. 03-CV-1577) and the property identified in the Complaint at! 51h and Market Streets is O\vned by the City of

PhlJadelphia, not by SEPTA.

7, The relief sought in the Complaint is not the kind ofre!iefthat SEPTA could provide

because it does not own the property that is the subject matter of the litigation, the Cit}, of

Philadelphia does.

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 15 of 24
Sworn to and subscribed before me this 2f't:}day
of /J;fm / ' 2003
NorARJJii\L SSEEAAL ElIge,nc J. KU)1I1, Notarv Public City of Phhii!haL., Phhiil'ddeellpphh'i'iiil County ;M\]y t::>imnimnii%",ilnn '::ipi,\'S I'chllary I LL 2nD'!

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 16 of 24

VNITKI.l STAn:s llIsnucr COlIIU
n)l( THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF PENNSYLVANIA
SOUTHEASTERN PENNSYLVANIA -IRANSPORTATION AUTHORITV "SEPTA" 1234 Market Street Philadelphia, FA 19107-3780

CIVIL ACTION j3:-03-CV-1577
I (t':D:

I.lEI"ENIMNT SOI.JTHEASTERN PENNSYLVANIA TRANSPORTATION AlJTHORlTY'S IUlLE 12(b)(7) MOTION TO DISMISS PLAINTIFF'S COMPLAINT
PlJRSVANT TO RVLE 19 Defendant Southeastern Pennsylvania 'Tnmsportation Authority, ("SEPIA"), by and through its Counsc!, hereby files this Mcmonmdum of Law in Support of its Rule 12(b)(7) Motion to Dismiss Plaintiffs Complaint pursuant to FccLR< Clv. P. 19(a) due to Plaintiff s failure to join the City of Philadelphia to this litigation, L FACTS In this hn;vsuit, PJaintiffseeks injunctive relief to enjoin Defendant SEPTA to immediately begin construction of an elevator on property not owned by SEPTA. The lawsuit arises out of the ongoing restoration project to Suburban Station in Philadelphia, As one oftlle initial. accelerated phases of the project, SEPlA renovated one of the numerous entrances to the Station, the (mc located at 151h and Market Streets (See r:xhibit B of Mation to Dismiss, Affidavit. of Gera!d Maier at ~}5), 'fhe propefty where this portion oftlle renovation took place is ovv'ned by thc City of Philadelphia, not by SEPTA (Affidavit of Gerald Maier at '16). It is at this ('ity owned location that the Plaintiff seeks to have this (,\nut order SEPTA to construct an elevator

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 17 of 24
or grant additional relief (p!aintiff s Complaint at pp. 4-5} Plaintiff, however, has not meluded t.he City of Philadelphia as a party to this lawsuit. II. 11iSCliSSION
Pursuant to Federal Rule of Civil Procedure 12(b)(7), the Plaintiff's C.'(.Jnlplaint should be dismissed for failure to join the City of Philadelphia as a party under Federal Rule ofCivil Procedure
Hiles, 11 F.3d 399 (3d Cir. 1993) stated that "Federal Rule of Civil Procedure 19 determines \vhen Joinder of a particular lXlrty is cornpulsory, A court must first determine whether a party should be
,joined if 'feasible' under Rule 19(a). The Court further stated that "Rule 19(a) defines the parties "vh,) arc 'necessary' in the sense that their joinder is
compulsory 'iffeasib!e.' It states, in pertinent part: /\. person ... shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, Of otherwise inconsistent obligations by reason of the claimed interest,
F,'ed. R. Civ, P. 19(a). Clauses (1) and (2) of Rule 19(a) are phrased in the disjunctive and should be so treated. Wood & Locker, Inc. v. Doran & Assoes., 708 F. 5'lIpp. 684, 690 (f11 D. Pa. 1989). Thus, any party whose: absenc.e results in any of the problems identified in either subsections (a)( 1) or (a)(2) is a party whose joinder is compulsory if feasible.
"The moving party has the burden of showing why an absent party should be joined pursuant to Rule 19. Raytheon Co, v. ('ontinenta! ('as'. Co" I 23F 5'upp. 2d 22, 33 (l}

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 18 of 24
v. Me-rgarl;tM. 'rm:lgglj.Qnc~~.,aL, 2001 U.S. Dist. LEXIS 16731 (E.D. P!:L Oct. 11, 200!) (class certification granted by tJJ1tiol'\sU Organizf!i:i.rm on Dis<aQltIiiJJiity, (;1 klL.-.Y.J0argar..et M. :Iil@£lione"~etaI" 2001 lJ.S, Dist.LEXTS 16932 (ED. Pa, Oct. 22, 20(1).
In the present case, the joinder of the City of Philadelphia to this case is compulsory under Federal Rules ofCiyil Procedure 19(a)( 1), 19(a)(2)0) and 19(a)(2)(ii) f()r the fo·llo\-ving reasons.
A. Rule 19(,,)(1) "tJnder Rule 19(a), we ask first \vhdher complete relief can be accorded to the parties to the action in the absence of the unjoincd party ,F[,,''eed, R. Ci\'. p, 19(a)( 1). A Rule 19(a)( 1) inquiry is limited to whether the district court can grant complete reliefto the persons already parties to the action, 'The effect a decision rnay have on the absent party is not materiaL Field, 626 F2d at 30] (quoting 3A James W. Moore et al., Moore's Federal Practicer> 19.071[2], at 19-128 (2d cd. 1979)." J'llmc}:,MMoonnttggqqmmeerrYy5cott, Inc. Y, NiJr..§. at 405. In the present case, complete relief cannot be accorded to the parties to this action in the absence oft11e inclusion in this lawsuit of the ('1ty of Philadelphia, The Plaintiff in this case seeks an injunction requiring the I)el:endant to begin construction of an elevator on property owned by the City of Philadelphia, not by SEPTA, at the l)ll1 and Market Streets entrance to Suburban Station. Therefore, even if this Court ordered SEPTA to construct an elevator, or perform other alterations, at that locution, SEPTA could not act because it does not own the property. 'T'he present case is analogous to a case filed in the U.S. District for the Eastern District of Pennsylvania under the /Hnericans with Disabilities Act (A.DA) and §504 of the
3

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 19 of 24
Rehabilitation Act of 1973 (Rehabilitation Act) challenging the City Commissioners' failure to provide talking voting machines and wheelchair accessible voting places, Natif!llal Organization oDJ)isahilit~J(..:taL v.-,M~lrggaa..rr££!! M~J'arttaaEElliioonnee,,ssJJ a1.., 2001 U.S. DisL tEXIS 16731 (E.D.Pa. OcL 11, 200 I) (class certification granted by l::1atiopal.QIg41.n1iizz<<llti(l!LQ1.l 12iJs.?-bility, et ilL v. M.i1}rgar!;;LM~I911agli~!JlQ&jlL 2001 U.S. DisL LJ~X1S 16932 (E,.D. Pa. Oct. 20(1). In that case, the Court granted Defendants' 12(b)(7) Motion to Dismiss pursuant 1to0 Rule IS/(a) where voting machines had to be prc~approvedby the Secretary of the Cornmonwealth and the Plaintiffs had not included the Secretary of the Commonwealth in the Ll\vsuit.
'fhe Court stated that if Plaintiffs "are successful in this action, approval of the:;e voting machines \NOtdd have to be sought fiom the Secretary of the Commonwealth and, if the Secretary does not approve electronic voting machines with audio output technology, a new proceeding would have to be initiated against the Secretary." NatiQnal QJganiz;,ation OIl I2i;s;aabbiilliitt}}""sJ;t;?t-?-LL..YY~~JJvviiaarrggaa[[ct M. JartagIiong, et gJ, at *26. The Court went on to fttrther state that is cleaL under these circumstances, that the Court could not alTord complete relief to the visuaUy impaired PlaintitTs in this matter in the absence of the Secretary of the Commonwealth," hot
Similarly, if Plaintiff is successful in tbe present action, pemlission to begin additional construction on City owned property would have to be sought from the City of Philadelphia and, if the City does not give such permission, a new proceeding would have to be initiated against the CCity. As in the Natigual Or,ganizatl.DllQDJJisabUity. casc, it is dear that this Court cannot afford compk~te relief in the absence of the City of Philadelphia.
4

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 20 of 24

/\ccordingly, DcfendaIlt's Motion to Disrniss should be granted pursuant to Rules 12{bH7)

and 19(a)(1).

Rule 19(0)(2)

LikC\\iisc. Defendant's Motion to Dismiss should be granted pursuant to Rule

19(a)(2). '-'Unlike subsection (a)(l), subsection (a)(2) requires a court to take into

consideration the cflect that resolution of the dispute among the parties before it mali have

on an absent party. See Fc(LR. eiv. P, 19(a)(2)." lmmey !\1.Q..I1..1.gQ1l1§1YJ3coH, In~cj:iilG.s.

at 4()4

l.

Rule 19(u)(2)(I)

"Subsection (a)(2)(i) requires a court to decide \vhether determination of the rights

of the parties before it vi'ould impair or impede an absent party's ability to protect its interest

in the subject matter of the litigation. Fed. R. eiv, P. 19(a)(2)(i). llli:!11ey M.ontgOInm_,~.t.l

In'2.o...Y...:..NilQ5: at406. In the present case, the Clty of Philadelphia clearl'f has an intercstin the

subject matter of the litigation since it owns the property where Plaintiff seeks to have the

injunctive relief performed. It \oiOuld be extremely prejudicial to the City of Philadelphia to

have this Court deciding Wh(~lher or not there should be changes made to City owned

property \vithout the City's presence in this litigation, 3££ MSC'mlLY. PiQIffill, 78 F.H.. D,

347,350 (E.D, Pa. 1978). Since a determination by this Court vvould seriously affect th(~

City'S ability to protect the rights it has over Its own property, this Court should grant

SEPTA's Motion to Dismiss pursuant to Rule 19(a)(2)(i).

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 21 of 24
2. Rule 19(a)(2)j(ii) Under Rule 19(a)(2)(ii), the Court is required to deCIde v\-vhether continuation of this action in the Dbse.nce of the City of Philadelphia would expose the present parties to the ''substantial risk of incurring double,. multlpk, or otherwise inconsistent obligations by reason of the claimed interest." Fed. R. Civ. P. 19(a)(2)(ii), Again, if Plaintiff is successful in the present action, permission t.o make any alteration to the property would have to be sought from tbe City of Philadelphia and, if the City does not approve the cbhanges, a new proceeding would have to be initiated against the City. Since the City has a claimed o'wncrship in th(;~ subjc,ct matter of the litigation, i_e. the property located at 1511> and fvfarket Streets, this could lead to double, rnultiple or inconsistent obliigations by reason of the City's claimed interest in the property. S.i;'s; -eLM Eirul!l(;jal .B.9Lyiccs, Inc..l...~~oastJ9 C0115J Tnl.£king., Inc., 90 B.It 664: 1988 U,S. Dist Ll:XIS 9508 (ED. Fa. Aug. 25, 1998j. Therefi:.1rc, pursuant to Fed. R. eiv. P. 19(a)(2)(ii), SEPTA's 12(b)(7) Motion to Dismiss should be granted and Plaintiff should be required to include the City of Philadelphia in this litigation. III. CONCLUSION Based upon the tbregoing discussion, the authorities cited and the AfI1davit ofGe-raid Maier, SEPTA's 12(b)(7) Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 19(a)(1), 19(a)(2)(i) and 19(a)(2)(ii) should be granted.
6

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 22 of 24

DATED: April 24, 2003

Respectfully subrnitted,
~,,~~~,LL,"-
SAVE H, KRENZEE, ESQUIRE ADAM A, DESll'IO, ESQlIlRE SAULH, KRENZEL& ASSOCIATES 'fhe Robinson Building, Suite 800 42 South 1yn Street Philadelphia, FA 19102
i5) 977,7230
Attorneys for Defendant SEVI'A

7

,

,'

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 23 of 24

1, ADAM /\, DESIPIO, ESQUIRE hereby certify' that a true and correct copy of
Defendant SEPTA '5 Mcmorandurn of L,3W in Support of its Motion to Dismiss Plaintiffs
Cornplaint \vas served via O1'st class mail upon:
Stephen F, GQkL Esquire 125 South Ninth Street Suite 700 Philadelphia, P'A 19107

DATED: April 24, 200}

SAVE If, KRE:NZE:E, E:SQIJIRE ADAM A, DESIPIO, ESQUIRE SAUL H, KRENZEL & ASSOCIATES The Robinson Building 42 South 15th Street Suite 800 Phil£ldclphifL PA j 91 02 (215) 977-7230
Attorneys f{)f Defendant SEVfA

Case 2:03-cv-01577-GP Document 4 Filed 04/24/03 Page 24 of 24

 
 Case 2:03-cv-01577-GP Document 5 Filed 05/15/03 Page 1 of 1

l:'i I [;''''''''

FOIl

FASTlm;;;

IlISI'RI
PENNSYLV

a!ntlff',
v
L\,\ ,,,<\
rRN,SPOR L\ riO, A(' IHORII \" [)cJecndant.

('I\' II

101\

N(). ~!5"?7

PrcsentJ:'i pcndmg 1$ Defendant's 1\'lot10n 10 DismlS$. Plamtlff's (~Olnplalnt pursuant to

I R . P 12(b)(7). "The"

ficatc of SerVICe" attached to Defendant's motlOn Indicates that

Phunuffv,',lS served wIth the motIon on /-\pnI24, 2003. To date. PJaintifJhas not f1led a

response. Therefore, the Court \vi]] grant Defendant's rnot1OO as uncontested pursuant to Local

Rule C'rvd Procedure 7.1(c),

i\!'!D NO"", this ,~_~ (hly of !'vJay, 2JJOJ, upon conslderatlon of Defendant '$

UlKontestcd MotJon to Dlsnnss Plamti 5 ('omplaint pursuant to r,'cd. R. ("lv, P. 12(b)(7), 1'1'

H

ORI)EREn that IJeJcndanfs motion 15 GRANTED.

IIV

 
 Case 2:03-cv-01577-GP Document 49-1 Filed 08/16/04 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF PENNSYL V ANlA,

Plaintiff

v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, and THE CITY OF PHILADELPHIA,
Defendants

CIVIL ACTION No. 03-1577

SElTLEMENT AGREEMENT
SECTION 1. Purpose. This is a Settlement Agreement between the Plaintiff in the above captioned case and the Defendant, City of Philadelphia. The purpose of this Settlement Agreement is to settle, discontinue and end this litigation between these two parties pursuant to the following terms and conditions and to provide that the City of Philadelphia will give permission for the use of City ground for the construction of the facilities sought by Plaintiff in this case under certain routine terms and conditions. SECTION 2. Background Facts This suit by Plaintiff seeks an order, among other things, requiring the Southeastern Pennsylvania Transportation Authority to build elevators in compliance with the Americans With Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("§ 504") at SEPTA's City Hall Station in Philadelphia, Pennsylvania which will supply access to the disabled in compliance with the aforementioned Federal law, so disabled individuals may obtain access at the City Hall station to the Broad Street Subway and to the Market Frankford elevated

8/3/2004 Page I of7

Case 2:03-cv-01577-GP Document 49-1 Filed 08/16/04 Page 2 of 7
line and to the underground concourse area which leads to the concourse shops area and the Penn Center train station. The City of Philadelphia has supported this project and has been in discussions with SEPTA for years to encourage this project ("the City Hall Station renovation"). SEPTA has not submitted a request to the City to begin construction of this project and the City has not denied permission to SEPTA nor has the City stopped this project.
This same suit also seeks to require SEPTA to construct an elevator in compliance with ADA and § 504 at the northwest corner of 15th and Market Streets in Philadelphia at the courtyard entrance to SEPTA's facilities which SEPTA renovated in the year 2000 without constructing any elevator. The City has not received any request from SEPTA for the construction of such an elevator and the City has not denied permission to SEPTA for this elevator, nor has the City opposed the construction of such an elevator.
The Plaintiff initially sued only SEPTA in this case. SEPTA then filed a motion to dismiss on the ground that the City was an indispensable party because the City owned the ground. SEPTA contended that the City, as owner, would need to give permission for construction and should therefore be a party to this litigation. The Plaintiff then filed an amended complaint adding the City as a Defendant. This Settlement Agreement seeks to eliminate the underlying reason for SEPTA's contention that the City is an indispensable party by making clear that the City does not object to the use of City land for these purposes.
SECTION 3. City Permission The City of Philadelphia will give permission (conditioned as provided in this Section) for SEPTA to the construct the City Hall Station renovation project which has been discussed by SEPTA and the Plaintiffs in conceptual form for years. This project includes ADA compliant elevators which would provide access as discussed in Section 2, above. Similarly, the City of
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Case 2:03-cv-01577-GP Document 49-1 Filed 08/16/04 Page 3 of 7
Philadelphia will give permission (conditioned as provided in this Section) for the construction of an ADA compliant elevator at the Northwest comer of 15th and Market Street at the Courtyard which SEPTA renovated in the year 2000, which elevator would provide access to the underground concourse as described in Section 2, above. These permissions are conditioned upon SEPTA applying to the City for permits in the normal manner as provided by law. The City will review these permit applications, in the nomlal course, for compliance with the Philadelphia Code or other applicable law. In this review, the City will review the details of the particular location of these facilities and the details of the design of the facilities in order to ensure that they will be compliant with the ADA as well as other applicable law. For example, this review will entail review under the building code, fire code and electrical code, among other routine reviews.
As is routine when SEPTA requests the use of City property, SEPTA's permission is also conditioned on SEPTA agreeing to an entry agreement with the City and receiving approval from the City for the design of the facility. The City does not oppose the use of the property for these purposes. The entry agreement is needed to set forth the details and provisions by which SEPTA and the City agree to the use of the property.
These reviews, permits and agreement are inJportant for the health, safety and welfare of all persons and are designed, not to slow or prevent the construction of these projects, but to ensure compliance with laws and to protect health, safety, welfare and operational needs for the facilities themselves and the surrounding land and structures. In the course of design review, or any entry agreement, the City of Philadelphia may require SEPTA to make modifications to the the location, design as needed for the above purposes or deal with any other necessary factors to implement the project.
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Case 2:03-cv-01577-GP Document 49-1 Filed 08/16/04 Page 4 of 7
As to the payments for the costs of construction of these facilities, these issues are worked out in the normal course of operations between SEPTA, the Federal Government, The State Government and the City and need not be part of this agreement, nor part of any Court Order. In the unlikely event that financial disputes prevented the execution of any order to construct these facilities, Plaintiff may initiate an action in this Court to resolve such disputes.
The City hereby promises the Plaintiff, that it has no desire to frustrate or delay the construction of any of these facilities and, in fact, supports the construction of all of these facilities. While the final details of these projects have not been presented to the City by SEPTA at this time, the City is not aware at this time of any reason why ADA compliant plans will not be approved or could not be approved for all of the facilities sought by the Plaintiff. To the extent that the Plaintiff seeks to enforce this agreement against the City of Philadelphia, the City consents to the jurisdiction of this Court for that enforcement.
SECTION 4. Stipulation (a). It is the City's legal opinion that SEPTA is legally obligated under the ADA and accompanying Regulations to construct an elevator at the 15th and Market Street Courtyard entrance, which SEPTA renovated. The City only granted permits for that renovation because the City believed SEPTA had agreed to construct elevators in the City Hall Courtyard in lieu of the required elevator at 15th and Market. (b). The 15th and Market Street entrance to the underground Courtyard and concourse is on land owned by the City of Philadelphia which SEPTA uses by permission of the City. (c). The 15th and Market Street entrance is used as ingress and egress to many forms of transportation services, including the Broad Street Subway, the Market-Frankford elevated line, the Suburban Station, the light rail, and the underground concourse.
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Case 2:03-cv-01577-GP Document 49-1 Filed 08/16/04 Page 5 of 7
(d). In the year 2000, SEPTA demolished the existing staircase and constructed a new staircase that provides access to the underground area. SEPTA also made other renovations at the site.
(e). These alterations affected the usability of the Courtyard entrance. (t). The new staircase and the escalator are not readily usable by and accessible to individuals who use wheelchairs. (g). The underground Courtyard provides access to stores, restaurants, the underground concourse, the Market-Frankford elevated line, and Suburban Station. (h). This entrance is "a part of an existing facility used in providing designated public transportation" for the purposes of 49 C.F.R. § 37.43(a)(l). (i). The City believes that the nature of the existing 15th and Market Courtyard entrance facility does not make it impossible to comply fully with the applicable accessibility standards. The City believes that an elevator could be constructed to gain access. The City has not received plans from SEPTA explaining such an elevator project, but the City knows of no reason why an ADA compliant elevator at that location could not be constructed. (j). SEPTA is required under Title II of the ADA and 49 C.F.R. 37.43 to construct an elevator at the 15th and Market Street entrance to the underground Courtyard. (k). Passenger boardings at the City Hall Station entrances to the Broad Street Subway and Market-Frankford elevated lines exceed average station passenger boardings on both lines by more than 15%. (I). The City Hall Station is a transfer point between the Market-Frankford elevated line and the Broad Street Subway.
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Case 2:03-cv-01577-GP Document 49-1 Filed 08/16/04 Page 6 of 7
(m). The City Hall Station is a major interchange point between the Market-Frankford elevated line, the Broad Street Subway, the Subway Surface trolley lines, numerous SEPTA and New Jersey Transit bus routes, and all thirteen SEPTA regional rail lines
(n). The City Hall Station serves many major activity centers, including centers of employment and government, institutions of higher education, hospitals and other major health care facilities, and other facilities that are major trip generators for individuals with disabilities.
(0). City Hall Station meets all of the criteria for key station in the Philadelphia area as defined by Title II of the ADA and 49 C.F.R. §§ 37.47 and 37.51.
(P). SEPTA is required under Title II of the ADA and 49 C.F.R. § 37.51 to identify City Hall as a key station and make accessible entrances to the Market-Frankford elevated line and Broad Street Subway.
(q). It is the City's opinion that the list of identified stations in the Settlement Agreement, EPVA v. Sykes, Civ. No. 86-6797 (E.D. Pa.1989) was meant to be a floor for SEPTA. The list was not meant to be a maximum, and SEPTA is not limited to this list. The list does not minimize SEPTA's legal duty to identify City Hall as a key station.
SECTION 5. Withdrawal of Action Aeainst City In consideration of the promises of the City in this Settlement Agreement, the Plaintiff hereby settles, discontinues and ends this action against the City and removes the City as a Defendant for the claims in this suit against SEPTA: specifically, one, the claim relating to the construction of an elevator at the 15th and Market entrance to the Courtyard; and two, the claim relating to the requirement that SEPTA identify the City Hall Station as a "key station" for purposes of gaining access via elevators to the Broad Street Subway and Market-Frankford elevated lines. The Plaintiff will file this Settlement Agreement with the Court and will serve it
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Case 2:03-cv-01577-GP Document 49-1 Filed 08/16/04 Page 7 of 7
on all parties. The Plaintiff will promptly file a motion, pursuant to Fed.R.Civ.P. 41(a)(2) to move that
the City of Philadelphia be dismissed from this action by Order of Court. Plaintiff will also seek the agreement of SEPTA for a dismissal of this action against the City pursuant to Fed.R.Civ.P. 41(a)(I)(ii). The City agrees to dismissal by either method.

The duly authorized legal counsel on behalf of the Plaintiff and the City of Philadelphia

have signed their names below, intending their clients to be legally bound thereby.

"',;Ji!!' /:5;4 Fo<PI,... '0;""".

P ,• •. " ,. . ., , ,

i.j

HE . G D, Esquire

Dii:/ I I

125 Soul Ninth Street

Suite 700

Philadelphia, PA 19107

TEL: 215-627-7100, FAX: 215-627-3183 (Attorney for Disabled in Action of Pennsylvania)

Rocco J acullo, Esquire

Date

7

Disabilities Law Project

1315 Walnut St.

Suite 400

Philadelphia, Pa 19107

TEL: 215-238-8070, FAX: 215-3126 (Attorney for Plaintiff Disabled In Action of Pennsylvania)

For Defendant City of Philadelphia:

--~~Mark R. Zecca

¢b~

Date 7

I

Senior Attorney

City of Philadelphia Law Department

1515 Arch Street, 17th Floor

Philadelphia, PA 19103

TEL: 215-683-5024, FAX: 215-683-5071 (Attorney for the City of Philadelphia)

8/3/2004 Page 7 of7

 
 Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 1 of 15

UNITED STATf:S IJI STRJCT COURT FOR HIE EASTERN DISTRICT OF PENNSYLVANIA

DISABI ED IN ACTION OF PENNSYLVANIA,
PlruntifT,
v.
SOUTIIEASTERN PENNSYLVANlA TRANSPORTATION AUTHORITY,
Defendant.

CIVIL ACTION NO. 03-1577

CONSENT DECREE I. INTRODUCTION
J Disabled in Action ofPennsylvnnia (oiD IA") filed this lawsuit on March 14,2003 against Soulheastem Pennsylvania Transportation Authority ("SEPTAj. The lawsuit, as described in the Fourth Amended Complaint,allcged that SEPTA violated Title 11 of the Americans with Disabilillcs Act (,·ADA"), 42 U.S.C. §§ 12141 - 12165, Section 504 ofthc RchabliilOtion Act ("RA"), 29 U.S.c. § 794, and 42 U.S.C. § 1983 by: (I) failing to Install an elevator when SEPTA demolished a staircnsc between the street and concourse levels at the northwest comer of 15lh and Market Streets in !lhiladclphia; (2) foiling to install an elevator when SEPTA replaced an inoperable escalator between the street and concourse levels in the southeast comer oreity IlaU Courtyard; and (3) fai ling to designate 15th Street Station oflhe Market-Frankford Subway·Hevated Line ("Market·Frankford Line') and the City Hall Station afthe Broad Street Subway Line ("Broad Street Line"') as "kcy stations" and to make both sta.tions fully accessible for people with disabilities, including those who use wheelchairs.

- - -_. - --_._._.. ._.....- .._. ........... _... ...... ....
Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 2 of 15
2. By Order and Opinion dated November 17,2006, the Court granted summary judgment in favor of SEPTA and against OIA . lbe Oi,tnct Court held that. (I) DIA's "ohemlions" claims were time-barred and (2) DIA did not have a private right of action to
enforce federal regulations concerning SEPTA's determination of 'Which stations should be "key
stations." 3. DIA appealed the Court's rulmg on the statute of limitallons issue, but did not appeal
the Court's decision on the "key station" claims. The Third Circuit reversed this Court's ruling that DlA's alterations cJrums wcre lime-barred and remanded for further proceedings on the merits.
4. On September 11,2009, this Court granted summary judgment in favor of DlA and against SEPTA. The Court concluded that SEPTA had violated the ADA and the RA when it failed to instllli elevators as part of the renovutions at 15th and Markel Streets and in the southeast comer of the City Hall Coun)'ard. This Court further ordered SEPTA to submit to the Court a proposed schedule ofcompliance.
S. On October 9, 2009, SEPTA filed a Notice of AppeaJ concerning this Court's decision gmnling summary judgment in favor ofDIA and agBinst SFPTA . On February 16, 201l , lhe U.S. Court of Appeals for the Third Circuit aflinned this Court's decision granting summary judgment in favor of DIA
6. On March 29, 2011, DIA filed a Motion for Attorneys' Fees, Litigation Expenses and Costs. SEPTA opposed DIA 's mOlion in part, and the Coun heard oral argument on DIA's motion on June 2, 2011 . During the hearing. the parties advised the Court that they had been in discussions concerning 8 proposal by SEPTA to implement this Court' s Order of September II , 2009 and possible resolution of DIA's petition for fees and costs.
2
S1.1 109S I92vI1OO1144 ooon

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 3 of 15
7. DIA and SFPTA now enter into this Consent Decree to provide 8 remedy that will resolve the remaining issues in this case amicably and to avoid the risks and expense of further litigation. II. SEPTA'S OBLIGAT IONS
A. Ce.nter C ity Dis trict 's DiI\\ o rth Pl aza I)roj ect I. SEPTA will pay to the Center City District the full cost nec~sary to instaJllwO
elevators at Dilworth Plaza, an open bi-Ievel public space that is located between the western wall of Philadelphia City 11a11 and the eastern edge of 15th Street and affords pedestrians the ability to connect street level to concourse level at Penn Center and at City HaJl Subway Station Concourse.
2. One elevator to be instalJed pursuant to Section Il.A \VilJ be located at the southern end of Dilworth Plaza (Elevator PEl in Exhibit A. which is incorporated by reference in this Consent Decree). This elevator will connect the street level with the concourse level.
3. The second elevator to be installed pursuant to Section ItA will be located at the
northern end of Dilworth Plaza (Elevator PEl in Exhibit A). This elevator will connect the street level, the concourse level, and the westbound platfonn level at 15th Street Station on SEPTA's Subway-Swface Trolley Line.
4. Center City District, a private-sector business improvement district authorized under Pennsylvaniu's Municipality Authorities Act., has secured federal and stale grants to renovate
Dilworth Plaza.
5. The elevators identified in Section II.A will be installed no later than December 31, 2013, provided thot if SEPTA discloses to DIA, through a status report as required by Section Il.F, that there are any construction interruptions caused by weather condi tions; or by strikes, lock-outs, embargoes, fire , unavoidable casualties, or any other causes that are deemed 10
3
SLII09SI92vI1OO1144 00033

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 4 of 15
be beyond SEPTA's control, the parties wiU meet within (30) days of receipt of SEPTA's status repon to discuss and, if possible, agree to an extension of the completion deadline. Tfthe parties are unable to reach an agreement for an ex-tension of the completion deadline, the parties shall submit the issue 10 the Court for resolution,
B. Elevators at ISlh Str eet Station on th e Markc1-Fr:mkford Subwny-Elevated Line I. SEPTA will instalilwo elevators that provide access between the concourse level
underneath Dilworth Plaza and the platform levels at 15th Street Station of the MarketFrankford Line so that 15th Street Station will be fully accessible to and usable by people who use wheelchairs.
2. One of the elevators to be installed pursuant to Section U.B will provide access between the concourse level underneath Dilwonh Plaza and the eastbOlmd platform level at 15th Street Station of the Market-Frankford Line (Elevator PE3 in Exhibit A),
3. The second elevator 10 be installed pursuant to Section ILB wiJI provide access between the concourse level underneath Dilwonh Plaza and the westbound platfonn level at 15th Street Slation of the Market-Frankford Line (Elevator PE4 in Exhibit A),
4. The elevators identified in Section II.B will be installed no laler than December 31, 2013, provided that if SEPTA discloses 10 DIA,lhrough a status repon os required hy SecLion
H,P, that there are any construction interruptions caused by weather condilions; or by strikes, lock-outs, embargoes, fire. unavoidable casualties, or any other causes that nre deemed to be beyond SEPTA's control, the parties will meet within (30) days of receipt of SEPTA 's stalus repon to discllss and, if possible, agree to an extension of the completion deadline. If the parties are unable to reach an agreement for an extension of the completion deadline, the panies shaJi submit the issue to the Coun for resolution.
4
S1.1 1095191"lto07344 0003)

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 5 of 15
C. Elcvutor to th e ISlh Street East bound Subw ay Surface Platform I. SEPTA will install an elevator between the concourse underneath the Dilworth PI81'..8
and the eastbound platform at 15th Street Station of the Subway Surface Trolley Line. (Elevator P 12 in Exhibit A).
2. The elevator identified in Section LI.C will be installed no later than December 31, 2013, provided that if SEPTA discloses to DIA, through 8 status report as required by Section II.F,lhat there are any conslnaction interruptions caused by weather conditions; or by strikes, lock-outs, embargoes, flIe, unavoidable casualties, or any other causes that are deemed to be beyond SEPTA's control, the parties will meet within (30) days of receipt of SEPTA's status report to discuss and, if possible. agree to an extension of the completion deadline. If the parties are unable to reach an agreement for an extension of the completion deadline, the parties shall submit the issue to the Court for resolution.
D. Accessible Fare Lin es I. SEPTA will construct new farc lines 011 concourse level beneath Dilworth Plaza. The
fare lines wi ll be ruJly accessible for people with disabilities, including those who use wheelchairs, and will serve 15th Street Station on the Market-Frankford Line.
2. The new fare lines also will serve City Ilall Subway Statioo on the Broad Street Line, replacing the existing fare lines at City Hall Subway Station. SEPTA will noi undertake any additional construction aL or below concourse level that i.mpacts City Hall Subway Station.
3. SEPTA retained a consultant to advise the agency on ADA compliance with regard to the Dilworth Plaza projecL The consultant, Don Kloehn. bas provided a declaration that is attached to this Consent Decree as Exhibit B.
5
SLI 10IH192vtlOO7344000J3

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 6 of 15
4, OIA does not endorse Mr. Kloehn's opinion,· but, as described in Section IlJ below.
has agreed to gmnt SEPTA a release from claims with regard to the new fare lines. 5, The accessible fare lines identified in Seclion 11.0 will be installed no Inter thun
December 31. 2013, provided thaI if SEPTA discloses to DIA. through a status report as required by Section 11."', that there are My construction interruptions caused by weather
conditions; or by strikes, lock-outs, embargoes, lire, unavoidable casualties, or any other causes Lhat are deemed to be beyond SEPTA's control, the parties will meet within (30) days of receipt of SEPTA's status report to discuss and, if possible. agree to an extension of the completion
deadline. If the parties are unable to reach an agreement for an extension of the completion deadline, the panies shall submillhe issue to the Court for resolution.
E. Payment of Attorneys' Fees, Liligation [:tpenscs, and Costs I. SEPTA wiU pay Disability Rights Network $267,745.19 in fees and costs within
three (3) days from the date the Court approves this Consent Decree. The amounts that SEPTA will pay to Disability Rights Network have been negotiated and agreed to by the parties and represent a full and complete settlement of DLA 's claim for attorney's fees and costs in this litigation through the date the Court approves this Consent Decree.
2. SEPTA will pay Stephen F. Gold, Esquire S228, 144.18 in fees and costs within three (3) days from the date the Court approves th,is Consent Decree. The amounts that SEPTA will pay to Mr. Gold have been negotiated and agreed to by the panies and represent a full and complete settlement of DlA's claim for attorney's fees and costs in this litigation through the date the Court approves this Consent Decree.
Entty of this Consent Decree shall not be interpreted as an adoption or 8 rejectiOfl by the Coun of Mr.
Kloehn's declaration or opinion
6
SLl lcmln" llOO7344 ooo:n

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 7 of 15
3. Nolhing in this Consent Decree should be construed to entitle Plaintiff or to preclude Plaintiff from making application for or recovering attorneys' fees, expenses W1d costs incurred after the dute the Court approves this Consent Decree.
F. Sial us Reports I. No later than January 31, 2012 and every three (3) months thereafter until this
Consent Decree is terminated, SEPTA's counsel will provide to Plaintif'Ps counsel a report concerning the status of implementation of SEPTA's obligations under this Consent Decree. The reports shall identify and describe any construction interruptions caused by weather conditions; or by stri,kes, lock.oQuts, embargoes, fire, unavoidable casualties, or any other causes that SEPTA deems to be beyond its control. ID. PLAINTIFF'S RELEASES
1. [n exchange for SEPTA' s promises contained herein, and SEPTA's compliance with the obligations set forth in this Consent Decree to pay for the two elevators included in the Center City District project, as set forth in Section ILA. above, and to install the three elevators as described ill Sections II .S. and H.C. above, and without waiving DlA' s rigbl to reinslate the litigation pursuallt to Section IV .2. DlA releases SEPTA from any and all claims relating 10 SEPTA's failure to install an elevator when it built a new stairway nllhe northwest comer of 15th and Market Strects and relating to SEPTA's failure to install an elevator wben it replaced tbe inoperable escalator in City I (all Courtyard.
2. In excbange for SEPTA' s promises contained herein, and SEPTA's compliance with the obligations 10 install new fare lines as described in Section ll.D. above, DIA releases SEPTA from any and all claims that SEPTA violated federal or state laws by installing those fare Jines without making the City Hall Station on the Broad Street Subway Line fully accessible to and usable by people ..vith disabilities, including those with mobility disabilities.
7

_ ------ -- .. -

- - _ .. -. .. . .. .....•- ............ ............ ....

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 8 of 15

IV. AP I'llOVAL, J U IU S l)l crI O~, ENFO RCEMENT, AN I) TERM INATI ON 1. DIA and EPTA will jointly presenl this Consent Decree 10 the District Court for
appro...al, If the District Court does not approve the Consent Decree, the case will resume in the same procedural posture as it existed prior to the presentation of the Conscm Decree.
2. If the elevators arc not instn1led as provided in Sections n .A, II B, and !I.e oflhis Consent Decree, DIA may reinstate its request for injuncth·c rc:liefthat the Court order SEPTA to install an elevator at the northwest comcr of 15th and Market Street and an elevator at the southeast comer of City Hall Courtyard, and SEPTA retains all defenses thcreto.
3. If the District Court approves the Consent Decree, it will retain continuing jurisdiction over this lawsuit for purposes of interpretation and enforcement of the Decree and. if necessary, for reinstatement of the litigation pur-mant to Section IV.2.
4. At least thirty (30) days before DIA files any motion for enforcement of the Consent Decree, DIA will provide notice to SEPTA of the alleged violation and otTer SEPTA the opportunity to meet with DIA to discuss the alleged violation in an ctTort to resolve the dispute without judicinl intervention.

8
Sll 10'IS19Zt 11O(7)44 000))

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 9 of 15
5. The Consent Decree w;11 tenninate mnety (90) days after SEPTA has fulfilled all of its obligations under Section It of the Consent Decree. unless there IS an enforcement motion
pending, the lawsuit has been reinstated pursuant to Section rv .2. or the Decree has been
amended to change the tennmation date.

By: ::-1~~JLL~=----
Step n F. 1709 Benj in Frnnklin Parkway 2d Floor Philadelphi.. PA 19103
BY:~~ Roceo lacullo Disability Rights Network ofPA 1315 Walnut Street, Suite: 500 Philadelphia. PA 19107-4705
Auomeys for Plaintiff

-

--

By: ~74'4~::::::~~--
Jo

S v s&Lee

I 8 Market Street. 29th Floor

Philadelphi.. PA 19103-1702

Attorneys for Defendant

SO ORDERED this

2011.

U.S.DJ.

ooon Slll~I91¥I!OOlJ44

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 10 of 15
EXHIBIT A
091J412011 SLl 470738v I 09999900852

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 11 of 15

City Hall Co urtyard Escalator
belWeen Concourse- and Cour1ya'l1
(Up onlY)
between

Elevat'" PEl
Plaza level

Elevator PE2
between Plaza le I, Upper Concourse aOd Trolley lmes WB Pl<ltform (byeeO)
CENTER CITY DISTRICT'S DILWORTH PLAZA PROJECT AND SEPTA'S CITY HALL STATION EARLY ACTION PHASE
PROPOSED ELEVATOR LOCATIONS AXONOMETRIC CUT-AWAY VIEW
12 May2011

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 12 of 15
EXHIBITB
0911412011 SLI 470738vl 099999.00852

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 13 of 15

IN THE UNITED STATES DISTRICT COURT FOR TfiE EASTERN IJrSTRrCT OF I'ENNSYLYANIA

DISAB LED IN ACTION OF PENNSYLVANIA.
Plaintiff,

CIVIL ACTION NO . 03-1577

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTIIORJTY,

Defendant.

DECLARATION OF DON KLOEAN
Don Kloehn hereby declares that:
1. I am currently employed as a Senior Project Manager for Tindale·Oliver &
Associates, Inc., a planning and engineering firm based in Florida. I have more than 36 years of experience in the transportation field , with involvement in aJlasptcts oftrnnsit facility design ,
construction, maintenance, and opernlions. I have been certified as an Accessibility Inspector and Plans Examiner by the International Code Council .
2. I am familinr with state and federal codes relating to the application of tile
Americans with Disabilities Act ("ADA") to the transportation industry, including the U.S. Department of Transportation's Final Rule, 49 CFR Parts 27 and 37, and the ADA Accessibility Guidelines promulgated by the U.S. Access Board . The Dcpartrncnt of Transportation in large part has adopted the Accessibility Guidelines as the regulatory standard for the construction of new transportation facilities and the aheration of ex.isting facilities .
3. I also am familiar with SEPTA' s City Iiall Station Earl y Action Phase
Proposed Elevator Locations (" Early Action Phase") project and with the Center City District's

SLlI081lllOY2JQ07l-« OOOlJ

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 14 of 15
planned renovation of Dilworth Plaza. Both projectS include alterations to areas tnal connect to SEPTA rail facilities beneath Dilworth Plaza. I have reviewed the plans for botn projects and
made a site visit. 4. Subpart C of Deparullcnt of Transportation regulations require that all newly
conslnlctcd trnnsportntion facilities be readily accessible and usable by individuals with diSAbilities. The regulations also require tnat any alterations to existing transportation fucilities be made in such a way that the altered portions be readily accessible to the disab led to the maximum extent possible.
5. As part of the Early Action Phase project, SEPTA intends to construct new fare lines at the concourse level below Dilwonh Plaza to serve City Hall Subway Station on the Broad Street Subway Line and ISit! Street Subway Station on the Market-frankford SubwayElevated Line. The fare lines will accommodate individuals who use wheelchairs with an accessible fare gate.
6. Based on my review of SEPTA's Early Action Phase project plan, the new fare lines comply wilh Department of Transportalion regulations because lhe fare lines will be accessible 10 and usable by individuals with disabilities, including individuals who use wheclchnirs. The Early Action Phase project does not include any modifications at City Ii all Subway Station other than construction of the rare lines.
7. The Center City District's Di lworth PlaZCI project includes two new stairs between streel level and concourse level and two elevators between street level and concourse level. The elevators will provide individuals who use wheelchairs with access to the concourse, as well as access to the new fare lines.
2
su IOSZI!OvMlO734400031

Case 2:03-cv-01577-GP Document 193 Filed 09/16/11 Page 15 of 15
8. Individuals who use wheelchairs will be able to access both the eastbound and westbound platforms or 15th Street Subway Stalion on the Market-Frankford Subway-Elevated Line by elevators thm provide access between concourse level and platrorm level.
9. It is my opinion that the work to be perfonned at Dilworth Plazll by SEPTA complies with Department of Transportntion regu lations. The concept of the regulations is to ensure that each of the elements that are newly built or altered include the required accessibility improvements so that when, over lime. all elements of a futility are improved or replaced, the entire facilicy will become accessible.
I declare under penalty of perjury that the foregoing is true and correct. Executed on August 22, 20 11
Don Kloehn
3
SLI lO&lrSI>v:MlO73440003J

 
 655 F.Supp.2d 553 (2009)
DISABLED IN ACTION OF PENNSYLVANIA, Plaintiff, v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Defendant.
No. 03-CV-1577.
United States District Court, E.D. Pennsylvania.
September 11, 2009.
554 *554 Rocco J. Iacullo, Disabilities Law Project, Stephen F. Gold, Philadelphia, PA, for Plaintiff.
555 *555 Adam A. Desipio, Saul H. Krenzel & Assoc., Jo Bennett, Michael G. Tierce, Stevens & Lee, Natalie Klyashtorny, Nochumson PC, Philadelphia, PA, Lisa Marie Scidurlo, King of Prussia, PA, for Defendant.
MEMORANDUM
PRATTER, District Judge.
In a case with a long and disputatious history before this Court, the parties once again seek summary judgment. Plaintiff Disabled in Action of Pennsylvania (DIA) and Defendant Southeastern Pennsylvania Transportation Authority (SEPTA) both urge this Court to conclude the case, brought under the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act of 1973 (RHA), 29 U.S.C. §§ 701, et seq., by ruling summarily in its favor. At stake are, according to DIA, the rights of handicapped individuals who wish to have equal access to Philadelphia public transit, or, according to SEPTA, the fruitless expenditure of scarce resources.
FACTUAL AND PROCEDURAL BACKGROUND[1]
DIA is a non-profit corporation that advocates for the civil rights of, and services for, persons with disabilities. DIA Statement of Facts ¶ 1. SEPTA is "a body corporate and politic which exercises the public powers of the Commonwealth of Pennsylvania as an agency and instrumentality thereof and which provides public transportation in various Southeastern Pennsylvania locales." SEPTA Resp. to DIA Statement of Facts ("SEPTA Resp.") ¶ 8. SEPTA operates a "vast network of fixed-route services including bus, subway, subway-elevated, regional rail, light rail, and trackless trolley, as well as customized community service." DIA Statement of Facts ¶ 9 (quoting DIA Mot. Summ. J. Ex. 3, SEPTA Fiscal Year 2006 Capital Budget, 5). Many of DIA's members use SEPTA for public transportation. Id. ¶ 2.
The Market-Frankford Elevated Subway Line is a high speed rapid rail line that runs through the City of Philadelphia. SEPTA Resp. ¶ 12. The Broad Street Subway Line runs through the City from Fern Rock Station to Pattison Avenue Station. DIA Statement of Facts ¶ 62. Both stations at issue in this case, namely, the 15th and Market Street Station on the Market-Frankford Line and the City Hall Station on the Broad Street Line, are close to one another in a geographically central location[2] and are interchanges for multiple SEPTA rail lines. See DIA Statement of Facts ¶¶ 17, 70; SEPTA Resp. ¶¶ 17, 70. The 15th and Market Streets Station is located underground in the vicinity of 15th Street and Market Street. DIA Statement of Facts ¶ 15; SEPTA Resp. ¶ 15. The City Hall Station is located underground in the vicinity of Broad and Market Streets. DIA Statement of Facts ¶ 56; SEPTA Resp. ¶ 56.
There are two primary means of ingress by which a pedestrian can descend from 15th and Market Streets to the concourse and subway entrances below. From the southwest side of Market Street at 15th Street, a pedestrian 556 may utilize a stairway which leads directly to a concourse area and the Market-Frankford Line cashier *556

booths. See SEPTA Resp. ¶ 20 ("15th Street Market-Frankford Station has its own street level open-air entrance located at the southwest corner of 15th and Market Streets in an area commonly known as `the Clothespin.'") From the northwest side of Market Street at 15th Street, another stairway descends to the 15th Street Courtyard which, if one turns northward, leads to Suburban Station and, if one turns southward and travels about 20 feet, leads to the cashier booths for the Market-Frankford Line. See SEPTA Resp. ¶ 20 ("[I]n order to reach the 15th Street Market-Frankford Station, an individual who enters the Suburban Station Transit Facility at the 15th Street Courtyard must travel south in the 15th Street corridor, exit Suburban Station, and travel over underground transit lines before entering 15th Street Market-Frankford Station."); June 19, 2009 Tr. at 20, 32. The parties dispute whether the stairway located on the northwest side of Market Street is an entrance to the 15th Street MarketFrankford Station or an entrance to the Suburban Station transit facility. DIA Statement of Facts ¶ 20; SEPTA Resp. ¶ 20.
There are several ways to access the City Hall Station on the Broad Street Subway Line. There are two stairways, one at Dilworth Plaza at street level, on the west side of City Hall, which leads to the lower north concourse, and another at street level at the City Hall Courtyard, which leads to the lower south concourse. DIA Statement of Facts ¶ 65. There is also a single escalator that runs from the lower south concourse to the southeast portion of the City Hall Courtyard.[3] DIA Statement of Facts ¶ 66. From the lower south concourse under the City Hall Courtyard, a pedestrian can head east, without using any stairs, to reach the 13th Street and 11th Street Stations on the Market-Frankford Line, DIA Statement of Facts ¶ 68; SEPTA Resp. ¶ 68, and can travel east and then south, again without using any stairs, to reach the South Broad Street concourse, the Walnut-Locust Broad Street Subway Station and the Port Authority Transit Corporation (PATCO) station located at 15th and Locust Street. DIA Statement of Facts ¶ 69; SEPTA Resp. ¶ 69.
Originally, plans to replace the stairway at 15th and Market were included in a project that encompassed renovations in an area bounded by 15th, 18th, Market and Cuthbert Streets. SEPTA Statement of Facts ¶ 6; DIA Resp. ¶ 6. Ten years ago, on or about September 27, 1999, the United States Department of Commerce notified SEPTA that SEPTA and the City of Philadelphia were the recipients of an Economic Development Administration Award to partially fund a proposed project entitled "Renovation of 15th and Market Streets Headhouse at Suburban Station." SEPTA Mot. Summ. J. Ex. 54 at COP-247. The Award letter included a "project definition" stating that the project "would involve various renovations to the 15th and Market Street entrances and related areas serving the renovation of entrances to the underground train station concourse; demolition of existing facilities; the construction/installation of new stairs, landscaping, lighting, signage, finishes, canopies; and all appurtenances." Id. at COP-251. The terms of the Award required that construction commence within 18 months after receipt of the Award and that the construction period would be 29 months. Id. at COP-250. Therefore, the 557 construction of the new stairway was put into an "accelerated *557 phase" of the project. SEPTA Statement of Facts ¶ 21; DIA Resp. ¶ 21.
Prior to the commencement of the construction project prompted by the Award, the entrance at the northwest corner of the 15th and Market Streets consisted of a stairway that descended into the center of a courtyard and two escalators enclosed within a headhouse. DIA Statement of Facts ¶ 45; SEPTA Resp. ¶ 45.
In February 2001, SEPTA began construction to replace the concrete stairway. DIA Statement of Facts ¶ 47; SEPTA Resp. ¶ 47. When the project was concluded, the stairway was replaced and situated along the southeastern wall of the courtyard. The replacement stairway brings an ambulatory person from street level to the same point within the courtyard as did the old stairway. See DIA Statement of Facts ¶ 47; SEPTA Resp. ¶ 47. The parties agree that these stairs were replaced because, due to deterioration of the concrete, the old staircase was beyond repair. DIA Statement of Facts ¶¶ 50, 53; SEPTA Resp. ¶¶ 47, 53. The new stairway was opened to the public on August 8, 2002. DIA Statement of Facts ¶ 58; SEPTA Resp. ¶ 58. Later, as part of the Suburban Station Renovation Project, two elevators were installed that provided vertical access from street level to the Suburban Station concourse level at JFK Boulevard near 17th Street and on 16th Street between Market Street and JFK Boulevard. SEPTA Statement of Facts ¶ 16; DIA Resp. ¶ 16.
In August 2003, SEPTA completed the replacement of an escalator in the southeast corner of the City Hall Courtyard. DIA Statement of Facts ¶ 71; SEPTA Resp. ¶ 71. The parties agree that the escalator that was replaced had deteriorated and was inoperable. SEPTA asserts that it reasonably opted to replace the escalator

rather than to try to repair it. DIA Statement of Facts ¶ 72; SEPTA Resp. ¶ 72. The escalator ascends from the City Hall concourse, one level above the City Hall Station boarding area, to the City Hall Courtyard. SEPTA Resp. ¶ 73.
The replacement of this escalator was part of the Escalator Replacement Program that SEPTA initiated in 1999. DIA Statement of Facts ¶ 73; SEPTA Resp. ¶ 73. Although the parties dispute the reason for doing so, SEPTA relocated the truss in the wellway for the new escalator.[4] DIA Statement of Facts ¶ 75, 76; SEPTA Resp. ¶¶ 75, 76. The new escalator was installed in the same wellway that the old escalator had occupied. SEPTA Resp. ¶¶ 75, 76. The headhouse of the escalator bears the words "Broad Street Subway Exit Only." See Pl.'s Ex. 44 (photograph of escalator headhouse).
In this litigation, DIA seeks declaratory and injunctive relief under the ADA and RHA that would ultimately require SEPTA to modify the Courtyard at the northwest corner of 15th and Market Street and the exit from the lower southeast concourse to the southeast portion of the City Hall courtyard to make them accessible to individuals who use wheelchairs. The procedural background of this case is fully set forth in the opinion at DIA, 2006 WL 3392733, at *8-10. In that opinion, the Court granted SEPTA's motion for summary judgment and denied DIA's 558 motion *558 for summary judgment. Specifically, the Court dismissed DIA's Count I on statute of limitations grounds. DIA timely appealed the Court's decision, and the Third Circuit Court of Appeals reversed the Count I portion of this Court's decision to hold that Count I was not barred by the statute of limitations. See DIA v. SEPTA, 539 F.3d 199 (3d Cir.2008). Upon the remand of the case here, both parties again filed motions for summary judgment.[5]
DISCUSSION
A. Standard of Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id. The standards by which a court decides a summary judgment motion do not change when, as here, the parties file cross-motions. SEPTA v. Pa. Pub. Util. Comm'n, 826 F.Supp. 1506, 1512 (E.D.Pa.1993).
B. The ADA and the Rehabilitation Act of 1973
The ADA and the Rehabilitation Act of 1973 require, as to public transportation facilities, that:
[w]ith respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 12132 of this title and section 794 of Title 29, for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations.
42 U.S.C. § 12147(a). As previously framed by Third Circuit Court of Appeals, "the relevant question is to what extent any alterations to a facility provide an opportunity to make the facility more accessible to handicapped persons." DIA v. Sykes, 833 F.2d 1113, 1120 (3d Cir.1987) (discussing a Rehabilitation Act claim). The ADA directed the Department of Transportation to issue regulations to effectuate the provisions of the ADA relating to public transportation and to do so in a manner consistent with the guidelines issued by the Architectural and Transportation Barriers Compliance Board.[6]See 42 U.S.C. § 12149. The Department of Transportation's

regulations can be found at 49 C.F.R. Part 37. They state, in pertinent part, that a transportation facility is readily 559 accessible if it complies with the DOT's regulations and with ADAAG. See *559 49 C.F.R. § 37.9.[7]
No one disputes that SEPTA is a public entity. Nor does SEPTA challenge DIA's assertion that DIA has standing to pursue this case. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379,102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (organization has standing when it suffers "concrete and demonstrable" injury, for instance, when its resources must be expended on remedying allegedly discriminatory actions by defendant). Thus, the present dispute comes down to three questions: 1) Was the construction done at the 15th and Market Courtyard and/or at the City Hall Courtyard an "alteration" under the ADA? 2) Are the altered facilities "readily accessible?" 3) Is it technically "feasible" for SEPTA to make the altered facilities (or portions thereof) accessible for individuals who use wheelchairs?
1. Alterations
The first question the Court must answer is whether the construction at issue constituted alterations for purposes of the ADA. Alterations are defined as:
a change to an existing facility, including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building or facility.
49 C.F.R. § 37.3; see also ADA Accessibility Guidelines ("ADAAG") § 3.5 ("An alteration is a change to a building or facility that affects or could affect the usability of the building or facility or part thereof."). SEPTA contends that the replacement of the stairway at the northwest corner of 15th and Market was not an alteration, and neither was the replacement of the City Hall Courtyard escalator. Not surprisingly, DIA claims that both replacements were indeed alterations within the meaning of the law.
There is no dispute that SEPTA demolished the stairs located at the northwest corner of 15th and Market and replaced them with a new set of stairs and that the escalator at City Hall was replaced with an entirely new escalator. DIA argues that these replacements should be considered alterations and cites two Third Circuit Court 560 of Appeals cases, as well as cases from other circuit and district courts to *560 support its position. SEPTA counters that the replacements were merely one step along the continuum of normal maintenance and interprets the cases cited by DIA as either distinguishable or wholly inapplicable.
First, DIA cites Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir.1993). In Kinney, the Third Circuit Court of Appeals examined the meaning of "alteration." Plaintiffs had sued the City of Philadelphia, seeking an injunction that would require the City to install curb ramps at intersections when it resurfaced streets. Id. at 1069. The parties filed cross motions for summary judgment that turned on the issue of whether street resurfacing constituted an alteration for purposes of the ADA. Id. Because resurfacing the street makes driving on and crossing it easier and safer, and prevents damage to vehicles and injury to people, the court upheld the district court's holding that resurfacing enhanced the usability of the street and, therefore, was an alteration. Id. at 1073-74. Hence, DIA argues that, as with street resurfacing, the installation of a new stairway or escalator when an old one is unsafe and in disrepair similarly enhances the usability of the stairway or escalator, making the work at issue in this case ADA "alterations."
SEPTA counters that Kinney was decided under different regulations from the ones applicable here, involved a regulatory mandate compelling public entities to lay out a transition plan with regard to the installation of curb cuts, and used Title III criteria "wholly inapplicable to public entities providing mass transportation," rather than Title II criteria. See SEPTA Resp. at 24.[8]
SEPTA also argues that applying the general reasoning of Kinney inappropriately ignores specific guidance applicable to the instant case, namely guidelines that "(1) ... require[] vertical access at an escalator or stair only where none previously existed and major structural modifications are required for the installation, (2)... require[]

only one accessible entrance to a building so long as signage is appropriate, and (3) ... requir[e] only one accessible route from an accessible entrance [in key stations]." Id. at 25.[9]
As to the first guideline that SEPTA contends should be considered here, the referenced regulation states that, "If an escalator or stair is planned or installed where none existed previously and major structural modifications are necessary for such installation, then a means of accessible vertical access shall be provided ..." ADAAG § 4.1.6 (1)(f). ADAAG § 4.1.6(1)(f) does not explicitly say that vertical access is only required under such circumstances. Certainly, one could argue that conclusion is implied, but it is also possible to see this guideline as simply clarifying the requirements in a specific and unequivocal situation without stepping in to the murky waters of other situations involving potential alterations to stairs and escalators. Responding to SEPTA's argument, DIA appears to mischaracterize the requirement regarding new stairs and escalators as a requirement covering new construction, despite the fact that the regulation covers the addition of a staircase or escalator to an existing 561 structure and despite the fact that the regulation appears in a section of the regulations specifically *561 devoted to alterations. Regardless, the guideline simply does not state that a means of vertical access must be provided only when a new staircase or escalator is installed, and the Court refuses to read such a requirement in to the guideline.
Both DIA and SEPTA purport to rely on DIA v. Sykes, 833 F.2d 1113 (3d Cir. 1987), a pre-ADA decision. Sykes concerned renovations to the Columbia Avenue subway station. Id. at 1114-15. In that case, one stairway on the northbound side was either partially or entirely reconstructed, as were two stairways on the southbound side. On the northeast side, a new headhouse, two new stairways, and a new escalator were installed. Id. at 1120. The court held that it was "beyond dispute" that the northeast side construction was an "alteration" for purposes of compliance with applicable regulations. Id. at 1121. As to the construction of the stairways on the southbound side, the appellate court held that it was not clear whether those renovations amounted to normal maintenance or to an "alteration," and so the court remanded the case for consideration of this issue. Id.
The parties disagree as to whether the northbound or southbound construction in Sykes is more like the present case. DIA claims that the northbound side demolition and replacement of a stairway parallels both the 15th Street stairway and City Hall Station escalator reconstruction, omitting the addition of new stairways and a new escalator in addition to the replacement of the stairway in that case. SEPTA, in turn, emphasizes the fact that in Sykes one of the stairways and escalator were installed where none existed previously. SEPTA also contends that the remand of the Sykes case as to the southbound side demonstrates that the construction in this present case is not sufficient to meet the threshold of normal maintenance. Thus, SEPTA ignores that the Third Circuit Court of Appeals expressly refused to rule in Sykes on whether the construction on the southbound side was an alteration, which naturally permits the implication that construction involving the partial or total reconstruction of an existing stairway could be an alteration, not that the partial or total reconstruction of an existing stairway is never an alteration under the statute. All in all, then, the Court concludes that Sykes does not definitively favor either party here.
SEPTA also argues that the replacements of the stairs and escalator do not constitute alterations because the replacements did not change the access to the station; nor did they substantially change the locations of the stairs and escalator.[10] SEPTA points to a letter from FTA Regional Administrator Sheldon A. Kinbar to SEPTA's general manager, noting that under the ADA, "where elevators, escalators and other accessibility features exist, they must be maintained." See Def.'s Ex. 69. The author of this letter asks for a schedule for "repair or replacement" of out-of-service elevators and escalators.
SEPTA contends that these statements, coupled with the absence of any mention that the replacement of an escalator might trigger a vertical accessibility requirement, show that the FTA equates "repair" with "replacement" and, therefore, that a replacement "is merely normal maintenance." SEPTA emphasizes that no "major structural 562 modifications," such as moving walls, were involved in the *562 replacement of either the stairway or the escalator. Rather, in a straight-faced flourish of euphemistic word-smithing, SEPTA declares that "replacement" is simply the "final act of maintenance" in the normal life of a stairway or escalator. See SEPTA Statement of Facts ¶ 45. SEPTA contends that absent "major structural modifications," usability and accessibility cannot be affected, and, therefore, no alteration has taken place. SEPTA also submits the testimony of expert Donald L. Kloehn, who opines that SEPTA's replacements do not constitute alterations. See Def.'s Ex. 50.

DIA responds that SEPTA's argument ignores the plain meaning of the statute, that the terms "remodeling, renovation, rehabilitation, reconstruction," which are included in the DOT's definition of alteration at 49 C.F.R. § 37.3, apply here. DIA also disputes SEPTA's interpretation of the Kinbar letter, noting that Mr. Kinbar did not discuss any requirements related to alterations and that his letter was not a comprehensive consideration of all ADA requirements that could possibly be implicated.[11] DIA claims that SEPTA's expert, Mr. Kloehn, misunderstands the ADA's requirements. DIA suggests that Mr. Kloehn focused on whether a reconstruction altered the accessibility of a facility, not whether it altered the usability of a facility, noting that accessibility was the old standard under the Rehabilitation Act. In this regard, DIA cites Mr. Kloehn's deposition testimony in which he stated that the replacement of the stairway could be called remodeling, renovation, and reconstruction. See Pl.'s Ex. G at 75.
DIA's point regarding the plain language of the governing statute is more persuasive on this issue. It is undisputed that (1) the old stairway and escalator were removed and replaced with a new stairway and escalator, (2) the new stairway and escalator are not the same as the old ones, and (3) the old stairway and escalator were in disrepair when replaced. Indeed, it is difficult to imagine how what was done by SEPTA would not be described by at least one of the four words highlighted by DIA in quoting 49 C.F.R. § 37.3, to wit, remodeling, renovation, rehabilitation, or reconstruction. The Court finds it inescapable as a conclusion that replacing a stairway that is unsafe and an escalator that is inoperable with a safe stairway and an operating escalator unequivocally enhances the usability of the stairway and escalator portions of the SEPTA facilities. Hence, the Court holds that the replacements of the stairway and escalator at issue here were alterations under the statute.
2. Accessibility
a. 15th and Market Courtyard
In order to come within the reach of the statute at issue here, the alterations must be to "an existing facility or part thereof used in the provision of designated public transportation services." 42 U.S.C. § 12147(a). As to the 15th and Market Courtyard, DIA and SEPTA appear to agree that it is a facility or part of a facility used in the provision of public transportation services, but the parties diverge when it comes to the question of which facility it is a part 563 of. Rather than addressing the issue of which station the 15th and Market Courtyard is part of, *563 however, the Court concludes that the choice does not matter.[12]
SEPTA argues that certain of the ADAAG provisions, as well as case law, relieve it from any obligation to provide vertical access at the 15th and Market Courtyard for individuals with wheelchairs if that Courtyard is part of Suburban Station. SEPTA also argues that even if the Courtyard is not part of Suburban Station, individuals in wheelchairs are able to get to the bottom of the stairs at 15th and Market by taking an elevator at 16th between JFK and Market and traveling through the concourse. Thus, SEPTA concludes that the 15th and Market Courtyard is already readily accessible.
DIA, on the other hand, argues that the 15th and Market Courtyard is part of 15th Street Station, and because 15th Street Station has no readily accessible entrance, SEPTA was required to provide one when it altered the 15th and Market Courtyard. In the alternative, DIA contends that even if the 15th and Market Courtyard is part of Suburban Station, the ADAAG does not relieve SEPTA of making the Courtyard accessible to individuals in wheelchairs because the Department of Transportation regulations require more than merely meeting ADAAG's standards and because SEPTA does not, in any event, meet those standards. DIA also argues that an elevator located 340 feet away from the Courtyard does not make the Courtyard "accessible."
Aside from ADAAG § 4.1.6(1)(f), which SEPTA claims obligates it to install an elevator only if a new staircase or escalator is built where none previously existed (an argument which this Court addressed, supra), SEPTA also cites ADAAG §§ 10.3.2(1), 10.3.2(2) and 4.1.6(1)(h).
Sections 10.3.2(1) and 10.3.2(2) concern requirements for Key Stations, of which Suburban Station is one. As DIA points out, the Department of Transportation's regulations regarding alterations make clear that the Key

Station requirements are "separate from and in addition to" the general alterations requirements. 49 C.F.R. §§
37.47(a), 37.51(a). Thus, even if SEPTA is in compliance with the Key Stations guidelines, that does not excuse it from complying with the general alterations guidelines and regulations.[13]

SEPTA also claims that ADAAG § 4.1.6(1)(h) requires only one accessible entrance to a facility, provided that signage is appropriate. ADAAG § 4.1.6(1)(h) states:

Entrances: If a planned alteration entails alterations to an entrance, and the building has an

accessible entrance, the entrance being altered is not required to comply with 4.1.3(8), except to

the extent required by 4.1.6(2). If a particular entrance is not made accessible, appropriate

564

accessible signage indicating the *564 location of the nearest accessible entrance(s) shall be

installed at or near the inaccessible entrance, such that a person with disabilities will not be

required to retrace the approach route from the inaccessible entrance.

ADAAG § 4.1.6(1)(h). Section 4.1.3(8), which is specifically referenced, provides minimum requirements for entrances for newly constructed buildings; the portion of that rule that may possibly come into play here is the requirement that a new building must have at least as many accessible entrances as it has fire exits.[14] However, even if SEPTA has appropriate signage and is exempt from providing as many accessible entrances as it has fire exits, that does not necessarily mean that SEPTA is only obligated to provide one accessible entrance.

DIA apparently has no quarrel with existing signage but counters that if a large facility like Suburban Station only needed to have one accessible entrance, people with disabilities would be unacceptably disadvantaged by having to traverse possibly blocks and blocks while non-disabled people could easily access their desired destination. DIA also points out that the regulations promulgated by the DOT to effectuate the ADA require compliance with ADAAG and with DOT regulations; hence, compliance with ADAAG does not inexorably equal compliance with the ADA. See 49 C.F.R. § 37.9 (stating that a transportation facility must meet the requirements of ADAAG and the requirements of the DOT regulations to be considered readily accessible).

In addition to this regulation, SEPTA cites several cases which, it argues, hold that one accessible entrance is enough under the guidelines. SEPTA's confidence in citing these cases is puzzling. None of them interpret the guideline sections cited by SEPTA, and each is easily distinguishable, as discussed below.

For example, in Kasten v. Port Auth. of N.Y. & NJ, No. 98-CV-4988, 2002 WL 31102689 (E.D.N.Y. Sept. 10, 2002), the court held that one elevator connecting all four floors of an airport terminal was sufficient to comply with the ADA. Id. at *4. However, the Kasten plaintiffs did not contend that the subject terminal was either newly constructed or altered; thus, the more restrictive alteration requirements were not triggered. The court noted in dicta that the guidelines applicable to new construction of airport facilities require at least one accessible route between parking and an accessible building entrance, and that under the circumstances of that case, one elevator would have been enough even if the terminal was newly constructed. However, of considerable significance for present purposes, the court also noted that "the phrase `at least one' indicates that the existence of a single accessible route may not suffice in every situation." See id.; see also, e.g., Durante v. County of Belknap, No. Civ. 03-333-SM, 2005 WL 361450, at *2 (D.N.H. Feb. 16, 2005) (holding that only one accessible entrance was required under the circumstances of that case, but not addressing a situation with alterations or new construction); Long v. Coast Resorts, Inc., 32 F.Supp.2d 1203, 1212 (D.Nev.1999) (noting in dicta that 565 "[e]very entrance or exit is not required to *565 be wheelchair-accessible," but certainly not holding that only one entrance to a facility need be accessible in every case).

SEPTA also cites Sykes for the proposition that only one accessible entrance is required. In Sykes, the court did apply a standard that required "at least one primary entrance" to be wheelchair-accessible. See Sykes, 833 F.2d at 1120. However, not only does that standard predate both the ADA and the ADAAG, but the court did not address whether the language "at least one primary entrance" should be construed as requiring only one accessible entrance or, as the Kasten court posited, as indicating that "the existence of a single accessible route may not suffice in every situation." See Kasten, 2002 WL 31102689, at *4. Indeed, the Sykes court did not explicitly address the issue of whether one or more than one accessible entrance was required.

SEPTA cites two more cases which it argues show that the Courtyard is already readily accessible to disabled individuals because its 16th Street elevator allows individuals in wheelchairs to access the Courtyard: Hassan v. Slater, 41 F.Supp.2d 343 (E.D.N.Y.1999), and Civic Assoc. of the Deaf of NYC, Inc. v. Giuliani, 970 F.Supp. 352 (S.D.N.Y.1997). In Hassan, a disabled individual sued railroad operators when they shut down a train station, requiring him to travel an additional four and a half miles to reach an accessible station. The court ruled against the plaintiff. See Hassan, 41 F.Supp.2d at 344-46. A crucial difference between that case and this one that SEPTA does not address is that in Hassan, the entire facility, i.e., the station, was eliminated for everyone, disabled and non-disabled alike. While the burden of traveling extra distances falls more heavily on disabled individuals under such circumstances than on those who are not disabled, the complete elimination of access for everyone is not as discriminatory as it would be to force disabled individuals to travel extra distances while nondisabled individuals do not have to suffer the burden of additional travel.
In Giuliani, disabled individuals sued the City of New York when the number of street alarm boxes was reduced, arguing that deaf individuals who had to travel an additional distance to report an emergency from the street were discriminated against because hearing individuals could report a street emergency using either the alarm boxes or readily available pay phones. See Giuliani, 970 F.Supp. at 359-63. The court held that there was no alteration, so the question was not whether the City had an affirmative obligation to make the system readily accessible to the maximum extent feasible, but rather whether the system was readily accessible as it existed. Id. at 361. The court found that there was not enough evidence regarding accessibility to support extending a preliminary injunction preventing the City from removing call boxes (or restoring only some call boxes in certain areas), but, ultimately, the court left the question of accessibility open. Id. at 363-64.
The guidelines and cases cited by SEPTA do not excuse SEPTA for failing to make the 15th and Market Courtyard wheelchair-accessible, regardless of whether it is part of Suburban Station (which already has accessible entrances), 15th Street Station (which has no accessible entrance), or both. Still open, then, is the question of whether the Courtyard is readily accessible as required by the statute. SEPTA would have the Court find that an elevator located 340 feet away makes the Courtyard readily accessible. DIA would, obviously, have the Court find that the Courtyard is not readily accessible by the "availability" of the elevator 340 feet away. 566 Counsel for DIA pointed out *566 that a wheelchair-bound individual who wanted to get to the bottom of the 15th and Market Courtyard would have to travel 680 feet more than a person who is not in a wheelchair (340 feet to the elevator from 15th and Market and 340 feet back to the Courtyard). At oral argument, SEPTA's response to this dose of physical reality amounted to little more than a verbal shrug, acknowledging the basic accuracy of the distance calculation.
Requiring individuals in wheelchairs to travel more than the length of two football fields to reach the same point that everyone else can reach without such effort flies in the face of the principles of equal access promoted by the ADA. The Court notes that this same principle is expressed in ADAAG § 10.3.1(1), a guideline governing the new construction of fixed facilities and stations for public transportation, which states that "[e]lements such as ramps, elevators or other circulation devices, fare vending or other ticketing areas, and fare collection areas shall be placed to minimize the distance which wheelchair users and other persons who cannot negotiate steps may have to travel compared to the general public." (emphasis added.) Although this guideline does not apply directly to the alterations here, it affirms that minimizing extra travel burdens on those with disabilities is an important consideration for public transportation facilities. Thus, the Court concludes the 15th and Market Courtyard as SEPTA has now configured it is not readily accessible to individuals with disabilities.
b. City Hall Courtyard
As to the escalator from the concourse level to street level at the southeast corner of the City Hall Courtyard, SEPTA claims that it is not part of the City Hall Broad Street Station, but rather is part of the lower south concourse. SEPTA points out that to get from the bottom of the escalator to the platform, a person must traverse the mezzanine to the ticket booths, go through a turnstile and take a flight of stairs to either the north- or southbound platforms (i.e., access from platforms to the escalator is not direct).

To prove that the escalator is part of City Hall Station, DIA cites to minutes of a April 20, 2001 meeting between SEPTA and the City of Philadelphia which discusses the replacement of the escalator at "City Hall Station (Southeast entrance)" (Pl.'s Ex. 42), as well as renovation schematics labeled "City Hall Station Renovations" that show the escalators, Pl.'s Exs. 33, 34, and photographs showing the escalator headhouse on which the words "Broad Street Subway, Exit Only" appear, Pl.'s Ex. 44.
With respect to the issue of whether the escalator is an exit from (and therefore a part of) City Hall Station, the Third Circuit Court of Appeals called SEPTA's definition of "exit" "hyper-technical." DIA v. SEPTA, 539 F.3d at 205 n. 8. The photograph showing the escalator as clearly labeled "Broad Street Subway Exit Only" suggests that SEPTA's argument is not only hyper-technical, but also disingenuous. What SEPTA seems to be trying to achieve with its "hyper-technical" definition is significant inasmuch as providing an elevator at the location where the escalator is found will not allow disabled individuals to access the platform of the station. While this is undoubtedly true, that fact does not make the escalator any less a part of City Hall Station. As DIA argues, the ADA speaks of alterations to a facility or "a part thereof," see 42 U.S.C. § 12147(a), and the ADA is an incremental statute. Given that eventually SEPTA will alter the stairway to the platform, triggering a requirement 567 of additional accessibility, at that point, wheelchair-bound individuals *567 will have an accessible exit waiting for them at the mezzanine level.
Having concluded that the escalator is a part of City Hall Station, the next question, then, is whether the altered portion of City Hall Station at issue is readily accessible. There are no guidelines regarding exits. The evidence before the Court, then, is that none of the exits (or entrances that also serve as exits) directly from City Hall Station are accessible. Unlike with the 15th and Market Courtyard, SEPTA does not argue that the escalator at City Hall Station is otherwise readily accessible.[15] Thus, the Court concludes the City Hall Courtyard escalator is not readily accessible to individuals with disabilities.
3. Feasibility
The final piece of the puzzle is to determine whether it is technically feasible to grant DIA the relief it seeks. The ADA requires that when alterations are made, they should be completed "in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." See 42 U.S.C. § 12147(a) (emphasis added). According to the Department of Transportation ADA regulations, "the phrase to the maximum extent feasible applies to the occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessibility standards through a planned alteration." 49 C.F.R. § 37.43(b). Thus, contrary to what one might consider-especially during times of inescapable economic challenges in the public and private sectors-under the governing legislation and related regulations, the only considerations to be made when determining whether an alteration was made in an accessible manner to the maximum extent feasible are those of technical feasibility, not economic feasibility. Cf. Title III Final Rule, 56 Fed.Reg. at 35,581 (Department of Justice comments on similar provision applying to Title III cases, which states: "The legislative history of the ADA indicates that the concept of feasibility only reaches the question of whether it is possible to make the alteration accessible in compliance with this part. Costs are to be considered only when an alteration to an area containing a primary function triggers an additional requirement to make the path of travel to the altered area accessible.")
a. 15th and Market Courtyard
DIA argues that Terry G. Heiser, a professional engineer employed by SEPTA as a Senior Project Manager, stated in a March 14, 2006 affidavit, "If the Court were now to order that an elevator should be built in the 15th Street Courtyard, it would take approximately three years to design and construct an elevator in that location. I approximate the total cost of such an elevator to be $810,000." Def.'s Ex. 23 at ¶ 8. Therefore, DIA argues, the addition of an elevator to the 15th and Market Courtyard is "feasible." Trying to retreat from the impact of its engineer's affidavit, SEPTA replies in its response to DIA Statement of Facts ¶ 60, that at his deposition, Mr. Heiser said that it was "probably" feasible to install an elevator, that he would "have to see what the interferences

568 are going down there," and that *568 the likelihood of feasibility was "more than 50/50." See Pl.'s Ex. 24, Heiser Dep. at 54, lines 11-21. However, in a June 26, 2009 letter in which SEPTA clarified its position regarding whether an elevator could feasibly be installed ("June 26, 2009 Letter"), SEPTA disputed the feasibility of installing an elevator at the City Hall Courtyard, but, as to the 15th and Market Courtyard, rested on its argument that only one entrance to a facility be made accessible without pursuing the feasibility issue. Noting also that Mr. Heiser's affidavit followed his deposition by some five months, the Court finds that SEPTA could feasibly install an elevator at the 15th and Market Courtyard.[16]
b. City Hall Courtyard
As to the City Hall Courtyard, the evidence issue is largely similar. DIA argues that Skip Brooke, a professional architect and SEPTA's Director of Engineering in the Bridges and Buildings Department, stated in an affidavit that "[t]he approximate cost to install one elevator in the City Hall Courtyard would be approximately $2 million." See Def.'s Ex. 35 at ¶ 36. It also cites to deposition testimony in which Mr. Brooke stated that "[a]s far as I know, it is technically feasible to install an elevator in [City Hall Courtyard to the concourse level]." See Brooke Dep., Pl.'s Ex. 35 at p. 95, lines 14-16. SEPTA's response is that Mr. Brooke's testimony is "not unequivocal." See June 26, 2009 Letter. SEPTA points to another portion of Mr. Brooke's deposition in which he testified that "[f]rom an engineering point of view, virtually anything is feasible." See Brooke Dep., Pl.'s Ex. 35 at p. 82, lines 24-25. At that point in the deposition, SEPTA's counsel volunteered that Mr. Brooke was not the "right person to ask" about technical feasibility. See id. at p. 83, line 14. Of course, counsel's gratuitous (and possibly improper) comment during the deposition is of no evidentiary value. However, SEPTA also points to Mr. Brooke's testimony that he and his department did not develop any vertical accessibility plans for City Hall Station. See id. at p. 122, lines 6-11. While Mr. Brooke's deposition testimony is "not unequivocal," Mr. Brooke's affidavit clearly lays out the cost and time to install an elevator at the City Hall Courtyard, and neither his deposition testimony nor any other evidence contradicts the concept of the feasibility of such an installation.
SEPTA also argues that because the City of Philadelphia owns the Courtyard, SEPTA would need the City's permission to install an elevator. SEPTA then notes that DIA did not present any evidence regarding the willingness of the City to allow such an installation. Given the City's settlement with DIA, which settlement explicitly granted permission for the installation of an elevator at 15th and Market Courtyard and at least some locations at City Hall Station (albeit not at the location discussed here), see Docket No. 49, there is no evidence from which to reasonably that the City would not allow the installation of an ADA-compliant elevator at the City 569 Hall Courtyard. In fact, *569 the settlement agreement strongly suggests that the City would not oppose such a plan. Thus, the Court finds that SEPTA could feasibly install an elevator at the City Hall Courtyard.[17]
CONCLUSION
For the reasons discussed above, summary judgment with respect to Count I of the Fourth Amended Complaint will be entered in favor of DIA. An appropriate Order follows.
ORDER
AND NOW, this 11th day of September, 2009, upon consideration of Plaintiff's Motion for Summary Judgment (Docket No. 155), Defendant's Response thereto (Docket No. 162), Plaintiff's Reply (Docket No. 166, 168), Defendant's Motion for Summary Judgment (Docket No. 163), Plaintiff's Response thereto (Docket No. 167), and following oral argument on June 19, 2009, IT IS HEREBY ORDERED that Plaintiff's Motion (Docket No. 155) is GRANTED and Defendant's Motion (Docket No. 163) is DENIED. SEPTA shall, no later than October 30, 2009 submit to the Court, with a copy to Plaintiff's counsel, a proposed schedule of compliance with this Order.
The Third Circuit Court of Appeals has specifically approved of the Second Circuit Court of Appeals' burdenshifting approach in Rehabilitation Act claims. See Walton v. Mental Health Assoc. of Southeastern Pa., 168 F.3d 661, 670 (3d Cir. 1999) (adopting the Second Circuit approach, and noting that it "places the burden on the party

holding evidence with respect to the particular issue"). As the Second Circuit Court of Appeals noted in Roberts, such an approach also makes sense in ADA alterations cases where the defendant has "superior access" to facilityrelated information. The Court need not decide whether this approach is the right analytical framework to apply here, however, because the parties here have not attacked each other's positions in terms of having or not having burdens and, in any event, the Court finds that the plaintiff has proved, and the defendant has not disproved, that SEPTA altered its facilities without making them readily accessible to the maximum extent feasible.
[1] Because previous opinions in this case have fully set forth the factual and procedural history of the dispute between DIA and SEPTA, see, e.g., DIA v. SEPTA, No. 03-CV-1577, 2006 WL 3392733 (E.D.Pa. Nov. 17, 2006), the Court will seek the benefits of brevity in setting forth the relevant facts.
[2] Both of the transit stations are located in the central part of Philadelphia's Center City business district, close to City Hall, various government buildings, and many high-rise office buildings.
[3] SEPTA vigorously disputes that this escalator is an "exit" from City Hall Station, contending that it is not. However, SEPTA admits that it is an exit from the lower south concourse. See SEPTA Resp. ¶ 65.
[4] The truss is the structural piece that physically supports the escalator along its length. DIA Statement of Facts ¶ 76. The parties dispute the reason why the truss for the new escalator needed to be relocated. DIA contends that the prior escalator had inadequate vertical clearance for the new escalator, while SEPTA contends that a contractor's mistake resulted in the replacement escalator lacking the necessary vertical clearance. DIA Statement of Facts ¶ 75; SEPTA Resp. ¶ 75.
[5] The present summary judgment motions deal with Count I, the only claim left in the case.
[6] These guidelines are called the ADA Accessibility Guidelines, or "ADAAG," and the portions applicable to the transportation facilities at issue here are the 1991 version of ADAAG. See 49 C.F.R. § 37.9(c); 49 C.F.R. Appendix A.
[7] No Third Circuit court has addressed the issues of the allocation of burdens of proof and persuasion in a case involving alterations under the ADA, either in the context of public transportation facilities or in the context of other types of facilities covered by the ADA, and neither of the parties here has briefed this issue. The Second Circuit Court of Appeals recently addressed the burdens issue in a Title III case. See Roberts v. Royal Atlantic Corp., 542 F.3d 363 (2d Cir.2008). In Roberts, the plaintiffs claimed that the defendant-resort altered portions of the facility without making them readily accessible to the maximum extent feasible. See id. The court borrowed from case law involving "reasonable accommodations" under the Rehabilitation Act in setting out the proper allocation of burdens, holding that a plaintiff bears the burden of production (and "not a heavy one") and must set forth a facially plausible argument that a modification is an alteration and that the alteration could be or could have been made readily accessible. See id. at 370-72. Once the plaintiff does this, the defendant carries the burden of persuasion to establish that the modification is not an alteration and/or that the plaintiff's accessibility proposal is impossible in light of the nature of the facility. The court reasoned that this burden-shifting approach is appropriate because defendants in ADA cases have "superior access" to facility-related information. See id.
[8] DIA counters that the Kinney is not based on Title III, but on Title II, that the alterations requirement there was nearly identical to the alterations requirement at issue in this case, and that the Kinney court relied upon the definition of "alteration" in ADAAG.
[9] The latter reasons 2 and 3 are more appropriately related to the discussion of accessibility, so these arguments will be discussed later.
[10] The new stairway was installed at a different starting point but ends at the same place as the old stairway.
[11] Both parties appear ready to accept the Kinbar letter as admissible evidence and accept that its contents could be officially efficacious. The Court questions those assumptions, but concludes that even if the parties's assumptions were correct, the letter does not help or undermine either litigant.

[12] The Third Circuit Court of Appeals noted in its opinion concerning this case that the 15th and Market Courtyard "undisputedly provides access to the Market-Frankford Station," and thus assumed for purposes of that opinion that the Courtyard is an entrance to that Station, leaving it up to this Court to determine the relevance of the issue on remand. See DIA, 539 F.3d at 202 n. 1. This Court finds that SEPTA has not met the ADA's requirements regardless of which facility, Suburban Station or 15th Street Station, the Courtyard is a part of, so the "geographical" issue is not relevant to liability in this case.
[13] On a related note, with regard to the FTA review that SEPTA argues demonstrates that its Suburban Station renovation project was in compliance with the ADA, see SEPTA Ex. 74, DIA sensibly argues that to the extent the FTA review only looked at whether the renovations met "Key Station" requirements, not all alteration requirements, the FTA approval is of no moment.
[14] The remainder of the guideline directs how many accessible entrances must be part of an accessible route (at least 50%) and how many accessible entrances must be provided for each tenancy in the building; it also sets forth requirements for entrances from garages and tunnels and provides specific guidance for entrances to correctional and judicial facilities. Thus, whether SEPTA is exempt from these other requirements or not has no bearing on the issues here, as many of them are inapplicable in any case.
[15] The parties spent relatively little time in their briefs and at oral argument on the City Hall Station issues, as compared to the 15th and Market Courtyard issues. Given the level of intense engagement exhibited by both parties in this case, however, the Court assumes that if an argument was to be made regarding whether the City Hall Courtyard escalator was readily accessible, it would have appeared in the parties' briefs.
[16] Following the Second Circuit Court of Appeals' approach with respect to burden allocation in Roberts, discussed supra, DIA needed to set forth a facially plausible option to make the altered portion of the facility readily accessible; SEPTA then bore the burden of showing that the option was not feasible. Certainly, SEPTA has failed to present any evidence that an elevator could not be installed at 15th and Market. However, even assigning the burden entirely to DIA, the Court finds that DIA has presented the sworn affidavit of one of SEPTA's own employees estimating the cost and time required to install an elevator at that location, which is uncontradicted by any other evidence. Nowhere does SEPTA's engineer suggest that installation of an elevator is not feasible.
[17] SEPTA also argues, by citation to 49 C.F.R. § 37.43(a)(2) and (e)(1), that it would be absurd to require SEPTA to spend $2 million more on a $1.2 million project. However, the "path of travel" provision that SEPTA invokes to support this argument of disproportionate cost does not apply here. That provision states that when an alteration is made that affects the usability of an area of a facility containing a primary function, the path of travel to the altered area must also be made accessible, unless the cost is disproportionate to the cost of the alterations. This provision only applies when the cost to alter the path of travel is disproportionate, not when the cost of making the alteration itself is disproportionate to an alteration done without accessibility considerations. Moreover, as noted above, under the actually applicable legislative and regulatory scheme, cost is not a relevant factor in considering the feasibility of an accessibility feature.
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 Case: 09-3964 Document: 003110440350 Page: 1 Date Filed: 02/16/2011
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
_____________
No. 09-3964 _____________
DISABLED IN ACTION OF PENNSYLVANIA
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ("SEPTA"),
Appellant
_____________
On Appeal from the District Court for the Eastern District of Pennsylvania
(No. 2-03-cv-01577) District Judge: Honorable Gene E. K. Pratter
___________
Argued October 4, 2010
Before: SCIRICA, FUENTES, and JORDAN, Circuit Judges
(Opinion Filed: February 16, 2011)
Jo Bennett (Argued) Michael G. Tierce Stevens & Lee 1818 Market Street, 29th Floor Philadelphia, PA 19103-1702
Attorney for Appellant

Case: 09-3964 Document: 003110440350 Page: 2 Date Filed: 02/16/2011
Stephen F. Gold (Argued) 1709 Benjamin Franklin Pkwy, 2nd Floor Philadelphia, PA 19103
Mark J. Murphy Rocco J. Iacullo Robin Resnick Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705
Attorneys for Appellee
OPINION OF THE COURT
Fuentes, Circuit Judge:
Disabled in Action of Pennsylvania (“DIA”) has filed suit claiming that the Southeastern Pennsylvania Transportation Authority (“SEPTA”)’s failure to make certain portions of its facilities accessible to individuals with disabilities after undertaking construction work at those facilities violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”), and the Rehabilitation Act, 29 U.S.C. § 794, et seq. (“RA”). O n appeal from the District Court’s grant of summary judgment in favor of DIA, SEPTA argues that certain regulations issued by the Department of Transportation (“DOT”) implementing the ADA establish that it was not required to make those portions of its facilities handicapped-accessible. For the reasons given below, we affirm.
I.
A. Background
The facts of this case are fairly straightforward. Appellant SEPTA, an agency and instrumentality of the Commonwealth of Pennsylvania, provides public transportation, including train, subway, trolley, and
2

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paratransit services in five counties of Pennsylvania. The dispute in this case concerns two separate SEPTA construction projects that involved a total of three of its stations in Philadelphia.
The first of these stations, the 15th and Market Street subway station, serves the Market-Frankford Elevated Subway Line. T his station is not accessible to individuals with disabilities. It is connected with the second station in question, Suburban Station, via the extensive underground Penn Center Concourse, which is lined with shops a nd offices. Suburban Station is a regional rail station.1 On the concourse level connecting Suburban Station and 15th Street Station, at approximately 15th Street and Market, is a courtyard (“the 15th Street Courtyard”). Thr ough underground travel, it is possible to reach either Suburban Station or 15th and Market Street Station from the 15th Street Courtyard.2
In February 2001, as part of a larger renovation project, SEPTA received a permit from the City of Philadelphia (the “City”) to begin replacement of the only stairway in the 15th Street Courtyard. The stairs, which had become unusable, were demolished and replaced, but no modifications were made to any load-bearing structure of the 15th Street Courtyard. The work was concluded in August 2002. Th is project had a budget of approximately $1.5 million dollars; SEPTA’s expert estimated that the cost of installing an elevator in addition to the stairs would have made the project $810,000 more expensive. SEPTA has not

1 “The SEPTA Regional Rail Division provides commuter

rail service on thirteen branches to over 150 active stations in

Philadelphia, Pennsylvania and its suburbs.” W ikipedia,

SEPTA

Regional

Rail,

http://en.wikipedia.org/wiki/SEPTA_Regional_Rail (last

visited November 8, 2010).

2 The parties dispute whether the 15th Street Courtyard is an entrance to the 15th and Market Street Station or to Suburban Station. The District Court did not resolve this issue, and we do not find it necessary to resolve it in order to determine this case.

3

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contended that it would be technically infeasible to install an elevator at that site.
Suburban Station is a “key station” in the SEPTA system and is therefore subject to special accessibility requirements under the ADA. In 2005, as part of its efforts to comply with those accessibility requirements, SEPTA installed two elevators in Suburban Station. The entrance to one of these elevators is on street level at 16th Street between Market Street and JFK Blvd., making it theoretically possible for a person using a wheelchair to descend there to the Penn Center Concourse and travel underground to the 15th Street Courtyard. O therwise, the 15th Street Courtyard is inaccessible to individuals using wheelchairs.
The third station in question, City Hall Subway Station, is located at Broad Street and Market Street and serves the Broad Street Subway Line.3 It, too, is inaccessible to those in wheelchairs. B efore 2002, there was an inoperative escalator leading from a courtyard at the concourse level of City Hall Subway Station to street level in the southeast corner of Philadelphia City Hall Courtyard (the “City Hall Courtyard”).
In June 2001, SEPTA undertook extensive repairs to the inoperative escalator at City Hall Courtyard by, among other things, replacing the internal mechanisms within the escalator’s wheelwell. Again, no modifications were made to any load-bearing structures. T he repairs at City Hall Courtyard cost approximately $1.2 million; SEPTA estimates that the cost of installing an elevator there would raise the total cost to $3.2 million. However, SEPTA has not claimed that it would be technically infeasible to install an elevator there, so long as it had sufficient access to the property.4
3 City Hall Subway Station is not connected to either Suburban Station or the 15th Street Station.
4 City Hall Courtyard is owned by t he City of Philadelphia, not SEPTA.
4

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B. The District Court’s Decision
Appellee DIA is a nonprofit group which advocates for the civil rights of persons with disabilities. It filed a lawsuit against SEPTA in March 2003 a lleging that SEPTA had violated both Title II of the ADA and the Rehabilitation Act5 by failing to make the 15th Street Courtyard accessible to those with disabilities after replacing the stairway at that location. SEPTA moved to dismiss, arguing that the City was a required party to the litigation because the City owns the 15th Street Courtyard. Th at motion was granted as unopposed, but the Court subsequently vacated its order and DIA amended its complaint to add the City as a defendant. In October 2003, DIA filed a second amended complaint. D IA amended its complaint a third time in January 2004, adding an allegation that SEPTA was required to make City Hall Station accessible because that station constituted a “k ey station” as defined by the ADA and relevant regulations.
In August 2004, DIA and the City reached a settlement in which the City agreed to permit SEPTA to use the City’s property to install an elevator at the 15th Street Courtyard.6 In order to resolve DIA’s claim that City Hall Station was a key station required to be made handicapped accessible, the City indicated that it would “give permission … for SEPTA to [] construct the City Hall Station renovation project which has been discussed by SEPTA and the Plaintiffs in conceptual form for years.” I t appears that the “renovation project” referenced by the settlement pertains to the construction of an elevator at Dilworth Plaza, which is a different location than
5 The analysis below applies to both the ADA and the RA claims. “In light of the similarities between ... the ADA and RA and their implementing regulations, we construe and apply them in a consistent manner.” Pennsylvania Prot. and Advocacy, Inc. v Pennsylvania Dep’t of Pub. Welfare, 402 F.3d 374, 379 n.3 (3d Cir. 2005).
6 SEPTA was not a p arty to the settlement reached between DIA and the City.
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the City Hall Courtyard.7 T he District Court dismissed the City from the action in light of the settlement.
DIA’s fourth and final complaint was filed on February 15, 2005. The fourth amended complaint, which named only SEPTA as a defendant, asserted two claims. Count I contended that SEPTA violated the ADA and RA by making “alterations” to the 15th Street Courtyard and the City Hall Courtyard without also making the affected portions of the facilities accessible to individuals with disabilities. T hat was the first time in the litigation that DIA alleged that the extensive work conducted on t he escalator at City Hall Courtyard constituted an “alteration” within the meaning of the ADA. C ount II alleged that SEPTA had violated the ADA and RA by failing to make 15th Street Station and City Hall Station, both allegedly “key stations” within the meaning of the ADA and RA, handicapped accessible. DIA sought relief in the form of, among other things, an injunction requiring SEPTA “to begin construction immediately of elevators [] at the [15th Street Courtyard Entrance] to the Market-Frankford ... Line and at the City Hall Station Courtyard’s Northwest and Southeast entrances to the Broad Street Subway Line to assure access for persons with disabilities, including persons who use wheelchairs ... .”
DIA and SEPTA later moved for summary judgment against each other. I n November 2006, the District Court granted summary judgment in favor of SEPTA, holding that DIA’s claims were time-barred. On appeal, we reversed the District Court’s decision and remanded the case for further proceedings. S ee Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Auth., 539 F .3d 199 ( 3d Cir. 2008). After remand, both parties again moved for summary judgment on the remaining claims. T he District Court granted summary judgment in favor of DIA, finding that SEPTA’s work at both the 15th Street Courtyard and City Hall Courtyard constituted “alterations” w hich triggered requirements under the ADA and the Rehabilitation Act to make both locations “readily accessible to” individuals with disabilities.
7 Elevators at Dilworth Plaza would provide those with disabilities access to City Hall Station via the concourse level.
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SEPTA has now appealed the District Court’s decision.
II.
“We exercise plenary review over a d istrict court’s summary judgment ruling.” Me lrose, Inc. v. City of Pittsburgh, 613 F .3d 380, 387 ( 3d Cir. 2009). “ Summary judgment is appropriate only where, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Id. (citing Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)).
The ADA “provide[s] a cl ear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101( a) (2010). In enacting the law, Congress found that “discrimination against individuals with disabilities continue[s] to be a serious and pervasive problem” in American society and therefore sought to “assure equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities. I d. § 12101( a)(2), (7). I n particular, one of the ADA’s aims is the elimination of “architectural [and] transportation ... b arriers” to full participation in society by individuals with disabilities by, among other things, mandating the improvement of access to public transit. Id. § 12101(a)(5). Therefore, although it does not generally mandate that existing public transit facilities be made accessible, the ADA does impose specific requirements on public entities which build new facilities or make “alterations” to existing facilities.
“With respect to alterations of an existing facility or part thereof used in [public transit] that affect ... the usability of the facility or part thereof,” the ADA provides that it is discriminatory for a public entity to “fail to make such alterations ... in such a m anner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to” individuals with disabilities. 4 2 U.S.C. § 12147(a) (2010) (emphases added). “ Thus, while Congress chose not to mandate full accessibility to existing facilities, it required that subsequent changes to a facility be undertaken in a non-discriminatory manner.” K inney v. Yerusalim, 9
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Case: 09-3964 Document: 003110440350 Page: 8 Date Filed: 02/16/2011
F.3d 1067, 1073 ( 3d Cir. 1993). In other words, if a public entity chooses to make changes rising to the level of “alterations” to a facility, it ordinarily must use that opportunity to make the altered part of the facility accessible, as well.
In order to resolve this case, we must consider in turn the meaning of the phrases “alterations,” “the maximum extent feasible,” and “readily accessible” and then their application to the SEPTA projects at issue.
A. “Alterations”
Section 12147(a) of title 42 doe s not define the terms “alterations” or “the maximum extent feasible.” H owever, the DOT has issued regulations that provide additional guidance as to their meaning. The implementing regulations set forth in 49 C.F.R. § 37.43(a)(1) echo the requirements of 42 U.S.C. § 12147(a). The regulations define “alterations” to mean
a change to an existing facility, including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls ... [but not] [n]ormal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems ... unless they affect the usability of the building or facility.
49 C.F.R. § 37. 3. The refore, “an ‘alteration’ within the meaning of the regulations is a ch ange that affects the usability of the facility involved.” K inney, 9 F .3d at 1072. “Usability” in this context has “an expansive, remedial construction” and “should be broadly defined to include renovations which affect the use of a facility, and not simply changes which relate directly to access.” I d. at 1072-73 (internal citations and quotations marks omitted). S EPTA argued in the District Court that the replacement of the stairway at the 15th Street Courtyard and the elevator repair work at the City Hall Courtyard were not alterations, but
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rather final acts of maintenance. As the District Court noted, however, replacing an unusable stairway with a usable one and extensively changing an inoperative escalator so t hat it operates again surely affects the “usability” of the locations they service. The complete replacement of a stairway or total overhaul of an escalator should also be considered “remodeling, renovation, rehabilitation [or] reconstruction” in the ordinary sense of those words.
SEPTA has now abandoned the “final act of maintenance” argument and instead points to certain Americans with Disabilities Act Accessibility Guidelines (“ADAAG”) standards incorporated into the DOT regulations, which it contends further limit the types of construction which are “alterations” under the ADA.8 It claims that the District Court did not give appropriate deference to these regulations, as mandated by C hevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In particular, SEPTA relies on an ADAAG provision which reads:
If an escalator or stair is planned or installed where none existed previously and major structural modifications are n ecessary for such installation, then a means of accessible vertical access shall be provided that complies with the applicable provisions.
ADAAG § 4.1.6(1)(f). SEPTA argues that this indicates that “alterations,” at least with respect to stairs, includes only changes that involve “major structural modifications.” As it did not undertake “major structural modifications” of either the 15th Street or the City Hall Courtyards, it contends, it is not required to install an elevator in either location.
We assume, and DIA does not dispute, that the DOT regulations should be given Chevron deference in this case. However, the courts owe no deference to SEPTA’s own interpretation of these regulations, and, as the District Court concluded, SEPTA’s interpretation is too narrow. The ADA
8 The relevant ADAAG standards are the 1991 version, codified at 49 C.F.R. Pt. 37, App. A.
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is a remedial statute, meant to bring an end to discrimination against individuals with disabilities in all aspects of American life; it must be construed with all the liberality necessary to achieve such purposes. In our view, the construction carried out by SEPTA in both the 15th Street Courtyard and the City Hall Courtyard constituted “alterations” under the ADA, even without “major structural alterations.” Although ADAAG § 4.1.6(1)(f) addresses one scenario in which an accessible means of vertical access must be provided, it does not clearly indicate that this is the only scenario in which such access must be provided.
SEPTA’s reading is at odds w ith the otherwise broad accessibility mandate of 42 U.S.C. § 12147(a) and 49 C.F.R. § 37.43 and the expansive definition of “usability” adopted by this Circuit. In Kinney, we held that even the resurfacing of a road through the laying down of a new layer of asphalt was an “alteration” sufficient to require that the road be made accessible through curb cuts, 9 F.3d at 1073-74; it cannot be that the much more substantial change of a co mplete replacement of a s et of stairs or an escalator is not an “alteration” unless it is accompanied by major structural modifications.
The DOT regulations confirm this conclusion. SEPTA must “mee[t] the requirements of [49 C.F.R. § 37] and the requirements set forth in [the ADAAG].” 49 C.F.R. § 37.9(a) (emphasis added). This language indicates that public entities must fulfill both § 37 and the ADAAG requirements. The DOT did not envisage the ADAAG by themselves to be an exhaustive statement of regulatory requirements, but rather to be a supplement to the requirements imposed by § 37. Meeting the requirements of Section 4.1.6(1)(f) is not, then, necessarily sufficient to meet the requirements of § 37, and it would be illogical to read Section 4.1.6(1)(f) of the ADAAG to radically curtail the broad mandate of § 37.
Given that the ADA is to be liberally construed to effectuate its purpose of eliminating discrimination, we will not adopt SEPTA’s narrow interpretation of “alterations.” In our view, the construction carried out by SEPTA in both the 15th Street Courtyard and the City Hall Courtyard constituted
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“alterations” under the ADA, even though it did not entail “major structural alterations.”
B. “Maximum extent feasible”
The parties also differ over the meaning of the phrase “maximum extent feasible.” Again, this term is defined in the relevant DOT regulations: “the phrase [‘]to the maximum extent feasible[’] applies to the occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessibility standards ... .” 49 C.F.R. § 37.43(b). DIA argues that “feasible” refers only to technical feasibility, relying on this definition’s lack of explicit reference to costs. S EPTA, in turn, argues that “feasible” must refer to economic feasibility, as well.9
We have never addressed the meaning of “maximum extent feasible” under the ADA as applied to alterations in public transit facilities. S EPTA’s position that “maximum extent feasible” must refer to economic as well as technical feasibility might be plausible if that language stood a lone. However, the narrowness of the exception established in 49 C.F.R. § 37.43(b), which contemplates that the infeasibility of making the altered portion of a facility will be only “occasional” and will arise from “the nature of an existing facility”—not from the budget limitations of a transportation authority, which must be reckoned with at all times—weighs in favor of DIA’s interpretation.
In addition, both 42 U.S.C. § 12147(a) and 49 C.F.R. § 37.43 do c ontain provisions for the consideration of cost in making public transit facilities accessible, but only in different sections establishing requirements for certain additional changes (e.g., to the bathrooms and drinking fountains) that must be made “to the maximum extent
9 Although SEPTA has provided information that the costs of installing elevators at the two courtyards might be disproportionate to the cost of the rest of the construction projects there, it has not actually argued before us that the installation of the elevators was truly economically infeasible, nor has it explained how the Court would make such a determination.
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feasible” if an area that serves a “primary function” is altered. The costs for those additional changes should not be “disproportionate.” S ee 42 U.S.C. § 12147( a); 49 C .F.R. § 37.43(a)(2). The sections addressing “alterations” in general contain no suc h language. The omission of any reference to costs there, when they are mentioned in closely-related sections, indicates that the ADA and the DOT regulations define feasibility primarily with respect to technical, not purely economic, concerns.10
The Second Circuit recently reached the same conclusion with respect to identical language in Title III of the ADA and the relevant federal regulations (specifically, 42 U.S.C. § 12183 a nd 28 C.F.R. § 36.402(c)). Focusing on the language of the statute, it held that the ADA’s “‘maximum extent feasible’ requirement does not ask the court to make a judgment involving costs and benefits ... . The statute and regulations require that such facilities be made accessible even if the cost of doing so—financial or otherwise—is high.” Roberts v. Royal Atlantic Corp., 542 F .3d 363, 371 (2d Cir. 2008). Th e reasoning of Roberts is sound a nd applicable in the Title II context as well.
SEPTA also makes a more specific argument concerning the meaning of “maximum extent feasible” which relies on t he interpretive appendix to 49 C .F.R. § 37 . Appendix D states:
10 Technical infeasibility will likely, in practice, often overlap with particularly excessive costs; that is, the more technically difficult an alteration, the more expensive it is likely to be. But the ADA does contemplate that, in general, if a public entity cannot afford to make alterations to a public transit facility that include making the altered portions accessible, it should not make alterations at all. “C ongress felt that it was discriminatory to the disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded.” Kinney, 9 F .3d at 1073. Although this is a demanding requirement, it is consistent with the ADA’s nature as a far-reaching anti-discrimination statute.
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The term ‘to the maximum extent feasible’ should be construed as not requiring entities to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member unless the load-bearing structural member is otherwise being removed or altered as part of the alteration.
49 C.F.R. Pt. 37 A pp. D. S EPTA interprets this as a limitation designed to prevent excessive expenditures on accessibility measures. It notes that it did not remove or alter any load-bearing structural members in the course of its work in either the 15th Street Courtyard or the City Hall Courtyard. Therefore, it argues, it was not “feasible” to install elevators in either location.
This reading, too, is unpersuasive. The regulations provide that a public entity need not make altered portions of a facility readily accessible if doing so would require removing or altering a load-bearing structural member (unless the movement or alteration is called for by the alterations anyway). They do not state, as SEPTA argues, the converse: that the altered portions of a facility only need be made accessible if the alterations in question involve the drastic change of moving or altering a load-bearing member. And as SEPTA has not taken the position that installing an elevator in either location would require the removal or alteration of a load-bearing member, this provision of Appendix D does not apply on the present record.
Therefore, SEPTA may not refuse to install elevators at the 15th Street Courtyard and the City Hall Courtyard solely because to do so would, allegedly, force SEPTA to incur significant costs.
C. “Readily accessible”
The parties also dispute the meaning of “readily accessible.” SEPTA argues that the 15th Street Courtyard is a part of Suburban Station, not of 15th Street Station, and thus, since the 15th Street Courtyard may be reached from street level by individuals in wheelchairs via one of the Suburban
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Station elevators, it is already “readily accessible.”11 DIA argues that the 15th Street Courtyard is actually a part of 15th Street Station, and since the facility which it is a part of is not wheelchair-accessible, neither is the Courtyard. In addition, DIA argues that, even if the 15th Street Courtyard is part of Suburban Station, it is still not “readily accessible” via Suburban Station.
The District Court did not make a finding as to which station the 15th Street Courtyard is a part of.12 Like the District Court, we need not address the question of which facility the 15th Street Courtyard belongs to because, either way, SEPTA must make it accessible.
If we consider the 15th Street Courtyard Entrance to be part of Suburban Station, as SEPTA contends, it is still not “readily accessible.” P ursuant to ADAAG § 10.1, all transportation facilities must comply with the applicable provisions of §§ 4. 1 through 4.35, §§ 5 t hrough 9, and the applicable provisions of § 10 of the ADAAG. Thr ough a circuitous regulatory route,13 t he “new construction”
11 SEPTA does not argue that City Hall Courtyard is “readily accessible,” and so there is no need to engage in this analysis for that Courtyard.
12 On the first appeal, we noted that the 15th Street Courtyard “undisputedly provides access to” the 15th Street Station, and assumed that it was an entrance to that station. Disabled in Action, 539 F.3d at 202 n.1.
13 Section 10.1 of the ADAAG states that “[e]very station … shall comply with the applicable provisions of 4.1 through 4.35 … . ” S ection 4.1.6(1)(b) mandates that “if existing elements, spaces, or common areas are altered, then each such altered element, space, feature, or area shall comply with the applicable provisions of 4.1.1 to 4.1.3 Minimum Requirements (for New Construction).” Section 4.1.3(8) lays out requirements for the number of accessible entrances but those requirements are, in turn, modified by § 10. 3.1, which says that, “[i]n lieu of compliance with 4.1.3(8), at least one entrance to each station shall comply with 4.14 [and be made accessible].” ADAAG § 10.3.1(2).
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provisions for transportation facilities, found at ADAAG § 10.3.1, permit a public transportation provider to avoid making an altered entrance accessible if at least one entrance to the affected station is already accessible. A DAAG § 10.3.1(2). However, “[i]f different entrances to a station serve different transportation fixed routes or groups of fixed routes, at least one entrance serving each group or route shall [be made accessible].” I d. Here, there is no accessible entrance that serves the 15th Street Station or the MarketFrankford subway line—a different route than those serviced by Suburban Station, which serves commuter rail lines. Thus, even assuming that the 15th Street Courtyard Entrance is a part of Suburban Station, it nevertheless provides access to a different fixed route and therefore must be made accessible. If, on t he other hand, the entrance at issue is a part of 15th Street Station, the alterations performed by SEPTA require that the entrance be made readily accessible since it is undisputed that 15th Street Station is not handicapped accessible.14
Because neither the 15th Street Courtyard or the City Hall Courtyard is “readily accessible,” SEPTA violated Title II of the ADA and the RA by not making those portions of its facilities accessible when it undertook to make alterations at those locations.
14 SEPTA does not deny that the 15th Street Station is not “readily accessible.” Instead, SEPTA argues that “[e]ven if an elevator were installed at the 15th Street [Courtyard Entrance], a person in a w heelchair could not access 15th Street Subway Station” because there is no wheelchair access from the concourse to the subway platform. ( BB at 38.) While SEPTA’s assertion is correct, the District Court already aptly addressed this issue, finding that the ADA is an “incremental statute.” (App. at 26.) According to the District Court, “[g]iven that eventually SEPTA will alter the stairway to the platform, triggering a requirement of additional accessibility, at that point, wheelchair-bound individuals will have an accessible exit waiting for them at the mezzanine level.” ( Id. at 22-23.) Otherwise, to excuse public entities from complying with the accessibility requirements simply because they altered only a portion of a facility would undermine the intent of the ADA.
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D. The City as necessary party
Finally, SEPTA argues that, because it cannot install an elevator at City Hall Courtyard without the agreement of the City, the City is a necessary party to this suit. We may consider this issue despite its not being raised in the District Court, and we conclude that the City is not a necessary party. Finberg v. Sullivan, 634 F.2d 50, 55 ( 3d Cir. 1980). Under the Federal Rules, a party is “necessary” if, in its absence, (1) the court could not accord complete relief among the existing parties; or (2) the absent party claims an interest relating to the subject matter of the action so that disposing of the action in his absence would (i) impair its ability to adequately protect its interest, or (ii) leave an existing party susceptible to a substantial risk of incurring inconsistent obligations. Fed. R. Civ. P. 19(a). SEPTA bears the burden of showing why an absent party should be joined under Rule 19. Pittsburgh Logistics Sys., Inc. v. C.R. Eng., Inc., 669 F. Supp. 2d 613, 618 (W.D. Pa. 2009). DIA claims SEPTA’s failure to assert this defense at an earlier stage of the proceedings renders it unfit for consideration on appeal. See Fed. R. Civ. P. 12(b)(7) (“Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required.”). SEPTA acknowledges its failure to include this defense in any prior motion but nevertheless urges us t o conduct an independent analysis.
While the law permits us to indulge SEPTA’s overtures and consider this Rule 19 issue for the first time on appeal, the parties’ lengthy history of silence on t his issue weighs against adopting SEPTA’s position. We have written that Supreme Court jurisprudence compels us to “take steps to protect an absent party through consideration of the Rule 19 issue, even when that issue was not presented to the district court nor raised by t he parties to the appeal.” GTE Sylvania, Inc. v. Consumer Product Safety Comm’n, 598 F.2d 790, 798 (3d Cir. 1979). However, the opinion from which we gleaned this obligation evinced genuine concern only for protecting an absent party “who of course had no opportunity to plead and prove his interest below.” Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 (1968).
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SEPTA argues that upholding the grant of summary judgment will, as a practical matter, impair the City's ability to protect its interest in City Hall Courtyard. See Fed. R. Civ. P. 19(a)(1)(B)(i). However, though the City was a defendant in this case and was aware that it implicated access by individuals with disabilities to the City Hall Courtyard, it chose to settle with DIA. Although it surely must be aware of DIA’s current position with respect to the necessity of an elevator in City Hall Courtyard, it has not moved to intervene, nor offered any other objections which we are aware of. That neither the City nor SEPTA saw fit to raise this issue at an earlier stage of the proceedings militates against a finding that the City’s ability to protect its interest would be impaired were it not joined as a party. The City’s normal procedures in dealing with SEPTA construction projects that impinge upon City property, such as the process of submitting plans and obtaining required work permits, should be sufficient to protect its interests here.
SEPTA also contends that any relief granted by t he court to DIA would be “hollow” in the absence of the City’s joinder, see Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 315 ( 3d Cir. 2007). Yet it does not actually claim that the City would refuse to permit construction at City Hall Courtyard, merely that the City’s ownership “would legitimately affect SEPTA’s ability to fulfill its obligations under the order.” Although this is very likely true, it would not render a judgment in favor of DIA “hollow”; it simply means that SEPTA will have to work with the City in complying with our decision, something the City has already agreed to do with respect to the 15th Street Courtyard.
III.
For the foregoing reasons, we will affirm the District Court=s grant of summary judgment in DIA’s favor.
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Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transportation Authority, No. 09-3964
JORDAN, Circuit Judge, concurring in part and dissenting in part
I am fully in agreement with the majority’s analysis of the obligations SEPTA has incurred under the ADA and associated regulations by making alterations at the 15th Street Courtyard,1 and, based on the precedential effect of those conclusions, I am strongly inclined to believe that they will compel the further conclusion that SEPTA bears the same obligations with regard to the City Hall Courtyard. I cannot join Section II.D of the opinion, however, because I believe that the City must first be made a party to this action under Federal Rule of Civil Procedure 19 b efore a decision regarding the City’s property can rightly be made.
While SEPTA is free to begin installing an elevator at the 15th Street Courtyard, it is not free to do so a t the City Hall Courtyard, which is owned by the City. As the Majority notes, SEPTA acknowledges the feasibility of installing an elevator at the City Hall Courtyard, but it does so on ly “so
1Although the Majority’s analysis is confined to the ADA, it concludes that the same result is required by t he Rehabilitation Act (“RA”). G iven the close relationship between those two statutory schemes, see McDonald v. Com. of Pa., Dep’t of Public Welfare, 62 F.3d 92, 95 (3d Cir. 1995) (“Whether suit is filed under the Rehabilitation Act or under the Disabilities Act, the substantive standards for determining liability are the same.”), I do not doubt that is so, but it is not necessary to assume or decide that here.
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long as it [has] sufficient access to the property.” (Maj. Op. at 4.) Access to the property is essential and, to be properly granted by a court order, such access must be preceded by the City’s having a seat at the litigation table. This seems selfevident. Ordering the construction of an elevator calls for a “permanent physical invasion” of the City’s property and “eviscerates the owner’s right to exclude others from entering and using [the] property – perhaps the most fundamental of all property interests.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). I have searched in vain for an example of a court ordering such an invasion without the property owner being joined in the case.
Nevertheless, DIA argues, and the Majority accepts, that the District Court can afford DIA complete relief at the City Hall Courtyard, even though doing so w ould require SEPTA to initiate construction on the City’s land. D IA implicitly acknowledges in its brief that the City might object to bulldozers and backhoes showing up on its property, but it suggests that, if the City were to bar SEPTA from making the required alterations, SEPTA could “assert a defense of impossibility to an effort by DIA to enforce the Court’s ruling.” (Answering Brief of Appellee at 48 n.18.) However, the very fact that the Court’s ruling could result in such an “impossibility” is why the City is, by the terms of Rule 19, a “required party” in this lawsuit. See FED. R. CIV. P. 19(a)(1) (“A person … must be joined as a party if … in that person’s absence, the court cannot accord complete relief among existing parties … .”).2
2 Being a “required party” under Rule 19 is contingent upon the party being “subject to service of process” and being a party “whose joinder will not deprive the court of subject-
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Shifting its tack, DIA, with the Majority in tow, breezes past the City’s fundamental interest in this dispute by asserting that the City is aware of the proposal to install an elevator at the City Hall Courtyard and has no objection to it. That may well be true; indeed one hopes that the City would be eager to assist in every way possible the remedying of inaccessibility problems on its property. Bu t we are accustomed to having property owners declare their own interests and intentions rather than having others volunteer their land for construction projects. Th at is why Rule 19, again by its exact terms, requires the joinder of someone who, as a practical matter, would have his ability to protect his interests impeded or impaired if not made a party. F ED. R. CIV. P. 19(a)(1)(B)(i). Making the point more powerfully, the Rule goes on to say that “[i]f a person has not been joined as required, the court must order that the person be made a party.” F ED. R. CIV. P. 19(a)(2) (emphasis added). I t does not say, “add that person if convenient or if you don’t already know what the person really wants.” I t says, straightforwardly, that “the court must order that the person be made a party.”
In trying to understand what may be motivating the willingness to brush aside the City’s obvious interest in a construction project on C ity land, I am left to conclude that there is a concern over further delay in SEPTA’s beginning the already long-delayed start of installing necessary accommodations, and perhaps there is some concern that
matter jurisdiction,” conditions which the City satisfies. FED. R. CIV. P. 19(a)(1).
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SEPTA raised the issue late as a yet another strategic move for procrastination. E ven if those concerns are well-founded, however, they do not dispose of the City’s rights. “A person may be added as a party at any stage of the action on motion or on the court’s initiative … and a motion to dismiss, on the ground that a person has not been joined and justice requires that the action should not proceed in his absence, may be made as late as the trial on the merits … .” Advisory Committee’s Notes on FED. R. CIV. P. 19, 28 U.S.C.App., p. 134.
Nor can the City’s interests be casually dismissed by saying, as the Majority does, that, “[a]lthough [the City] surely must be aware of DIA’s current position with respect to the necessity of an elevator in City Hall Courtyard, it has not moved to intervene, nor offered any objections which we are aware of.” (Maj. Op. at 17.) That statement implies, without record support, that the City somehow waived its rights to protect its property interests in court. The City was added as a party to this case in 2003 and settled with DIA in 2004. If anything, that history demonstrates that the City left the case only when it understood that its rights were no longer implicated. It does not demonstrate that the City should have known that its rights would be implicated once again.3
3 In its settlement agreement with DIA, the City acquiesced to construction of an elevator at the 15th Street Courtyard and agreed to permit construction of an elevator at Dilworth Plaza to service City Hall Station, as had “been discussed by SEPTA and the Plaintiffs in conceptual form for years.” (App. at 89-90.) But Dilworth Plaza is not the City Hall Courtyard, the location where DIA currently seeks to have an elevator installed to service City Hall Station. While
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It is, moreover, somewhat ironic to observe that we are unaware of the City having any objection to plans for its land, since an important reason why a district court must join required parties is so that such parties have the opportunity to voice objections. See Luxliner P.L. Export, Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 72 (3d Cir. 1993) (“Before a party may be deprived of a property interest, due process requires, at a minimum, notice and an opportunity to be heard.”). We approach the problem from the wrong direction when our first reaction is to say to a property owner, in effect, “you failed to intervene at the peril of your rights,” rather than saying to the litigants, “you failed to add a required party at the peril of lengthening these proceedings while that party’s rights are considered.”
DIA maintains, and the Majority agrees, that the City’s normal procedures in dealing with construction projects, such as requiring work permits, should be sufficient to protect its interests here. O nce again, though, this seems a p ainful stretch to avoid dealing with the reality that the City is a required party. The City’s permitting procedures do not provide it with a voice in the District Court by which it can object to orders directly affecting its interest in its own land.
the City and SEPTA have engaged in discussions regarding compliance with the District Court’s order, the record does not reflect that any agreement was reached on the precise location for the installation of elevators at the City Hall Courtyard. Indeed, the Statement of Compliance that SEPTA filed with the District Court says that the “City prefers installation of elevators at locations other than those directed by the Court.” (App. at 1163.)
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The permitting process is, as far as I know (and this is not an issue that has been briefed), designed simply to ensure that construction in the City is completed in accordance with applicable sections of the Philadelphia Code, e.g., the City’s building code, fire code, and electrical code. Those procedures do not afford the City the opportunity to address to the District Court any concerns it may have about where, when, or how an elevator will be installed on City property.
In any event, concern about significant delay is ultimately a matter of pure speculation, and an oddly contradictory bit of speculation at that. I f, as DIA and the Majority assume, the City has no problem at all with the construction of the elevator on City land, then adding the City as a party should involve little or no de lay at all, even as it preserves the principles of due process that are i nherent in Rule 19 a nd which long antedate the Rules of Civil Procedure. Cf. Torrence v. Shedd, 144 U.S. 527, 532 (1892) (holding that, in a case involving interests in real property, since recovery required establishing a t itle that would affect other interested parties, those parties had to be joined). And if, for some reason, the City were to raise objections, the able District Court can require that those objections be dealt with on an expedited basis, as may be appropriate.
I therefore concur in the opinion of the Majority that the construction of the elevator at the 15th Street Courtyard is called for by ope rative federal law, but I would order the joinder of the City so that it can adequately voice its position on how that conclusion should affect its property interests in the City Hall Courtyard.
6

 
 Case 2:03-cv-01577-GP Document 141 Filed 11/17/06 Page 1 of 74

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY, :

:

Defendant

:

03-CV-1577

Gene E.K. Pratter

MEMORANDUM AND ORDER

November 17, 2006

Plaintiff Disabled in Action (“DIA”) and Defendant Southeastern Pennsylvania Transportation Association (“SEPTA”) each move for summary judgment in this non-jury case that concerns the parties’ respective positions under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act of 1973 (“RHA”), 29 U.S.C. §§ 701 et seq. For the reasons discussed below, summary judgment will granted in favor of SEPTA with respect to both counts of DIA’s Fourth Amended Complaint. FACTUAL AND PROCEDURAL BACKGROUND
DIA is a non-profit corporation which acts as an advocate for the civil rights of, and services for, persons with disabilities. DIA Statement of Facts ¶ 1. DIA has approximately 450 active members. Id. ¶ 2. SEPTA is “a body corporate and politic which exercises the public powers of the Commonwealth of Pennsylvania as an agency and instrumentality thereof and which provides public transportation in various Southeastern Pennsylvania locales.” SEPTA Resp. to DIA Statement of Facts ¶ 8. SEPTA operates a “vast network of fixed-route services

Case 2:03-cv-01577-GP Document 141 Filed 11/17/06 Page 2 of 74
including bus, subway, subway-elevated, regional rail, light rail, and trackless trolley, as well as customized community service.” DIA Statement of Facts ¶ 9 (quoting DIA Mot. Summ. J. Ex. 3, SEPTA Fiscal Year 2006 Capital Budget 5). Many of DIA’s members use SEPTA for public transportation. Id. ¶ 2. Other persons with disabilities use SEPTA facilities as well.
In this litigation, DIA seeks declarative and injunctive relief which would, ultimately, require SEPTA to modify the 15th and Market Street subway station on the Market-Frankford Elevated Subway Line and the City Hall subway station on the Broad Street Subway Line to provide access to individuals with disabilities, including individuals who use wheelchairs.1 The facts and the procedural history of this case, beginning with a virtual verbal travelog, are quite lengthy and warrant considerable and careful attention. The following facts are either undisputed or viewed in the light most favorable to DIA.
A. Facts Relevant to Alterations/Modifications of Facilities The Market-Frankford Elevated Subway Line and the Broad Street Subway Line are high speed rapid rail lines that run through the City of Philadelphia. DIA Mot. Summ. J. Ex. 14 at C7, C-8; SEPTA Resp. ¶ 12. Both stations at issue in this case – the 15th and Market Street station on the Market-Frankford Line and the City Hall station on the Broad Street Line– are close to one another in a geographically central location2 and have a higher ridership than many,
1 The City of Philadelphia owns some of the property upon which this dispute is centered. In earlier versions of DIA’s Complaint, the City was named as a defendant. DIA and the City subsequently settled their dispute and, upon this Court’s approval of their settlement agreement over the objection of SEPTA, the City was dismissed from the litigation.
2 Both of these transit stations are located in the central part of Philadelphia’s Center City business district, close to City Hall, various government buildings, and many high-rise office buildings.
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if not most, other stations on either line.3 The 15th and Market Street station is located
underground in the vicinity of 15th Street and Market Street. DIA Statement of Facts, SEPTA
Resp. ¶¶ 15. The City Hall station is located underground in the vicinity of Broad Street and
Market Street. DIA Statement of Facts, SEPTA Resp. ¶¶ 56. A retail concourse area is located
beneath Market Street and includes an entrance to the Suburban Regional Rail Line Station, a railway station for SEPTA’s commuter rail lines.4
There are two primary means of ingress by which a pedestrian can descend from 15th
Street and Market Street to the concourse and subway entrances below. From the southwest side
of Market Street at 15th Street, a pedestrian may utilize a stairway which leads directly to a concourse area and the Market-Frankford Line cashier booths.5 From the northwest side of
Market Street at 15th Street, another stairway descends to the 15th Street Courtyard which, if one
turns northward, leads to Suburban Station and, if one turns southward, leads up a stairway to the
3 Although the parties disagree as to whether the 15th and Market Street station is the “busiest” station on the Market-Frankford Line, they do agree that this station has the highest ridership on that line. See DIA Statement of Facts, SEPTA Resp. ¶¶ 20. The parties also dispute whether the City Hall station is the “heaviest patronized” station on the Broad Street Line. See DIA Statement of Facts, SEPTA Resp. ¶¶ 61. While DIA argues that 57,000 passengers are served from the City Hall station daily, SEPTA counters by asserting that only 2,763 individuals access that station from street level on a daily basis. DIA Statement of Facts, SEPTA Resp. ¶¶ 61. The parties appear to agree that City Hall Station is a location from which patrons may interchange from another line without paying an additional fare. DIA Statement of Facts, SEPTA Resp. ¶¶ 62.
4 The Court notes that the parties even dispute the parameters of Suburban Station. DIA asserts that Suburban Station is located at 16th Street and John F. Kennedy Boulevard, while SEPTA contends that the station is part of an integrated facility that extends from 15th Street to 18th Street and Market Street to Cuthbert Street. DIA Statement of Facts, SEPTA Resp. ¶¶ 19.
5 See SEPTA Resp. ¶ 32 (“15th Street Market-Frankford Station has its own street level open-air entrance located at the southwest corner of 15th & Market Streets in an area commonly known as “the Clothespin.”)
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cashier booths for the Market-Frankford Line.6 The parties dispute whether the stairway located on the northwest side of Market Street is considered an entrance to the Market-Frankford Line or, rather, is an entrance to the Suburban Station transit facility. DIA Statement of Facts, SEPTA Resp. ¶¶ 32.
There are several entrances to and exits from the City Hall Station on the Broad Street Subway Line. There are two stairway entrances, one at Dilworth Plaza at street level , on the west side of City Hall, which leads to the lower north concourse, and another at street level at the City Hall Courtyard, which leads to the lower south concourse. DIA Statement of Facts ¶ 57. There is also a single escalator that runs from the lower south concourse to the street level, southeast portion of the City Hall Courtyard. DIA Statement of Facts, SEPTA Resp. ¶¶ 57. The escalator serves as an exit from the lower south concourse to the City Hall Courtyard. DIA Statement of Facts, SEPTA Resp. ¶¶ 57. From the lower south concourse under the City Hall Courtyard, a pedestrian can travel east, without using any stairs, to reach the 13th Street and 11th Street stations on the Market-Frankford Line, DIA Statement of Facts, SEPTA Resp. ¶¶ 59, and can travel east and then south, without using any stairs, to reach the South Broad Street concourse, the Walnut-Locust Broad Street Subway Station and the Port Authority Transit Corporation (PATCO) station located at 15th Street and Locust Street. DIA Statement of Facts, SEPTA Resp. ¶¶ 60.
B. Renovations of the Stairway in the 15th Street Courtyard
6 See SEPTA Resp. ¶ 32 (“[I]n order to reach the 15th Street Market-Frankford Station, an individual who enters the Suburban Station Transit Facility at the 15th Street Courtyard must travel south in the 15th Street corridor, exit Suburban Station, and travel over underground transit lines before entering 15th Street Market-Frankford Station.”).
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On or about September 27, 1999, the United States Department of Commerce notified SEPTA that SEPTA and the City of Philadelphia were the recipients of an Economic Development Administration Award to partially fund a proposed project entitled “Renovation of 15th and Market Streets Headhouse at Suburban Station.” SEPTA Mot. Summ. J. Ex. 54 at COP-247. The Award letter included a “project definition” stating that the project “would involve various renovations to the 15th and Market Streets entrances and related areas serving the renovation of entrances to the underground train station concourse; demolition of existing facilities; the construction/installation of new stairs, landscaping, lighting, signage, finishes, canopies; and all appurtenances.” Id. at COP-251. The terms of the Award required that construction commence within 18 months after receipt of the Award and that the construction period would be 29 months. Id. at COP-250. Prior to the commencement of the construction project prompted by the Award, the entrance at the northwest corner of 15th and Market Streets consisted of a stairway that descended into the center of a courtyard and two escalators enclosed within a headhouse. DIA Statement of Facts, SEPTA Resp. ¶¶ 42.
On August 3, 2000, Stephen F. Gold, Esquire, then and now counsel to DIA, sent a letter to Edward McLaughlin, the City Commissioner for the Department of Licenses and Inspections. SEPTA Mot. Summ. J. Ex. 25. In this letter, Mr. Gold expressed his understanding that SEPTA had applied for a variance from the accessibility requirements of the Philadelphia Building Code, to waive the requirement to provide a vertical accessible route, i.e., an elevator, “for such a major public access point,”related to a planned replacement of the stairway at the northwest corner of 15th and Market Streets. Id. Mr. Gold also expressed his concern that SEPTA’s planned renovation would not comply with the ADA. Id.
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On September 28, 2000, Mr. Gold wrote a letter to Pete Winebrake, an attorney in the City Solicitor’s Office, to which he attached a copy of his earlier August 3, 2000 letter to Commissioner McLaughlin. SEPTA Mot. Summ. J. Ex. 26. Mr. Gold reiterated to Mr. Winebrake that the “problem [of the requested variance and non-compliance with the ADA] should be resolved before construction commences, or you leave me with very few options.” Id.
On November 14, 2000, Frederick Pasour, an attorney for the City of Philadelphia, wrote to Mr. Gold regarding the replacement of the stairway. SEPTA Mot. Summ. J. Ex. 27. In that letter, Mr. Pasour stated:
I understand that you believe that the ADA, its regulations and the Accessibility Guidelines require an elevator in the 15th Street courtyard. I also understand that you are considering bringing a lawsuit to enjoin the 15th Street courtyard portion of the project if the City issues a building permit based on plans that do not include an elevator in the 15th Street courtyard. This letter is to advise you that the City doe [sic] not share your view that an elevator is required in the 15th Street courtyard and has issued a building permit for the project. Please remember that the 15th Street courtyard will be readily accessible to and usable by individuals with disabilities. As you are aware, elevators are planned for other locations near to the 15th Street courtyard. The current bids for the portion of the project that includes the 15th Street courtyard renovations are only good through December 30, 2000. If, therefore, you plan to bring an action challenging the 15th Street courtyard portion of the project, please do so in an expeditious manner. Id. at P-390. DIA did not bring any legal action with respect to the replacement of the stairway and the City’s determination that installation of an elevator was not required. The City issued a building permit to SEPTA for this project on February 9, 2001, which included the following description of the planned construction:
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Demolition incorporates head house, stair, railings, limited wall, veneer, pavement, and lighting systems. Also to be removed are planters, fountain and ceilings. Construction scope consists of glass head house, stair, (2) retail spaces, railings, storefront sys., planters, lighting and paving installed, as well as new ceiling. DIA Mot. Summ. J. Ex. 26. In February of 2001, SEPTA began construction to replace the concrete stairway. DIA Statement of Facts ¶ 43; SEPTA Resp. ¶ 44. When the project was concluded, the stairway was replaced and situated along the southeastern wall of the entrance. DIA Statement of Facts, SEPTA Resp. ¶¶ 44. The parties agree that the stairs were replaced because the old staircase was beyond repair due to deterioration of the concrete. DIA Statement of Facts ¶ 47; SEPTA Resp. ¶ 44. The replacement stairway brings an ambulatory person from street level to the same point within the courtyard as had the old stairway. SEPTA Resp. ¶ 44. The new stairway was reopened to the public on August 8, 2002. DIA Statement of Facts, SEPTA Resp. ¶¶ 50. C. Replacement of the Escalator in the Southeast Portion of City Hall
Courtyard In August of 2003, SEPTA completed the replacement of an escalator in the southeast corner of the City Hall Courtyard. DIA Statement of Facts, SEPTA Resp. ¶¶ 77. The parties agree that the escalator that was replaced had deteriorated and was inoperable, and SEPTA asserts that it reasonably opted to replace the escalator rather than to try to repair it. DIA Statement of Facts, SEPTA Resp. ¶¶ 78. The escalator ascended from the City Hall mezzanine, one level above the City Hall station boarding area, to the City Hall Courtyard. SEPTA Resp. ¶ 79. The replacement of this escalator was part of an Escalator Replacement Program that
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SEPTA initiated in 1999. DIA Statement of Facts, SEPTA Resp. ¶¶ 79.7 SEPTA included funding for the Escalator Replacement Program in its Capital Budget for Fiscal Year 2001 as a project that was slated to occur between 2001 and 2004. SEPTA Mot. Summ. J. Ex. 16 at SEPTA-1992, SEPTA-2047. The Escalator Replacement Program (along with SEPTA’s proposed budget for 2001 and capital plan for 2001-2012) was discussed at a public hearing on May 22, 2000, for which public notice was given. SEPTA Mot. Summ. J. Ex. 33 at SEPTA9069 to SEPTA-9070. Although no one disclosed as being from DIA was listed as an attendee at that hearing, the Executive Director of DIA stated that she and other people from DIA reviewed SEPTA’s capital budget every year from 1996 to 2002. SEPTA Mot. Summ. J. Ex. 28, N. Salandra Dep. 30:16-23, Nov. 4, 2005.
As of at least August 17, 2001, SEPTA placed barricades around the construction area in the southeast quadrant of the City Hall Courtyard and posted a sign that read “Project of the Pennsylvania Public Transportation Assistance Fund; Escalator Replacement at Erie, Spring Garden, City Hall & 30th Street Stations; Southeastern Pennsylvania Transportation Authority.” SEPTA Mot. Summ. J. Ex. 36. Although the parties dispute the reasons for doing so, SEPTA relocated the truss in the wellway for the new escalator.8 DIA Statement of Facts, SEPTA Resp.
7 According to DIA, future phases of the Escalator Replacement Program will include replacement of a similar escalator located in the northwest corner of the City Hall Courtyard. See DIA Statement of Facts ¶ 79 n.4. Although DIA purports to base a portion of its claim here on the planned replacement of this escalator, one footnote in DIA’s Statement of Facts constitutes DIA’s only reference to this escalator in its motion papers. Id. In addition, counsel for DIA made only one minor reference to the northwest escalator during oral argument on these motions. See June 29, 2006 Tr. 50:14-16 (“And we are now thinking they’re doing another escalator on the northwest side of City Hall, and it’s also going to be inaccessible.”).
8 The truss is the structural piece that physically supports the escalator along its length. DIA Statement of Facts ¶ 82. The parties dispute the reason why the truss for the new escalator
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¶¶ 81-82. The new escalator was installed in the same wellway that the old escalator had occupied. SEPTA Resp. ¶¶ 81-82.
D. Designating “Key Stations” The parties’ dispute regarding the designation of certain stations on SEPTA’s system as “key stations” under the ADA has a lengthy history which began two decades ago.9 In 1986, Eastern Paralyzed Veterans Association of Pennsylvania (“EPVA”) commenced a class action lawsuit10 against the City of Philadelphia, in which EPVA, on behalf of the designated class, sought declaratory and injunctive relief and compensatory damages on the grounds that disabled individuals were being denied access to “altered, renovated, reconstructed and redesigned subway transportation facilities which are part of the federally assisted transit system in Philadelphia” in violation of the RHA. SEPTA Mot. Summ. J. Ex. 1 ¶ 1. SEPTA was subsequently named as a defendant in that case. Id. ¶ 4(c). EPVA’s Amended Complaint alleged that the defendants had “renovated, substantially altered, constructed and redesigned” numerous stations on the Broad Street Subway and Market-Frankford Elevated Subway lines, using federal financial assistance, without making the stations accessible to individuals with disabilities,
needed to be relocated. DIA contends that the prior escalator had inadequate vertical clearance for the new escalator, while SEPTA contends a contractor’s mistake resulted in the replacement escalator lacking the necessary vertical clearance. DIA Statement of Facts, SEPTA Resp. ¶¶ 81.
9 As discussed below, DIA argues that SEPTA has failed to designate the City Hall and 15th and Market Street subway stations as “key stations” under the ADA, which would require SEPTA to make such stations accessible to individuals with disabilities, including individuals who use wheelchairs.
10 Eastern Paralyzed Veterans Association of Pennsylvania, Inc. v. Sykes, No. 86-6797, was filed on November 20, 1986, in the United States District Court for the Eastern District of Pennsylvania.
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including individuals who use wheelchairs. Id. ¶ 38. The EPVA plaintiffs alleged that these
actions and omissions constituted discrimination against individuals with disabilities in violation
of the RHA and numerous other federal statutes and regulations. See id. ¶¶ 47, 49, 51, 53, 56,
58, 60, 62, 64.
On June 28, 1989 – one year before the ADA was enacted11 – EPVA, the City and
SEPTA negotiated a settlement of EPVA’s claims to resolve that lawsuit (the “EPVA Settlement
Agreement”).12 The stated purpose of the EPVA Settlement Agreement was:
to further the process of making the mass transportation system in Philadelphia, and in the area serviced by SEPTA, accessible to the mobility-handicapped, by providing for the renovation on the timetable established herein of certain key stations on SEPTA’s High Speed System, and on SEPTA’s Regional Rail System, to make those certain key stations accessible to the mobility-handicapped . . . in order to provide the preliminary framework for a fully accessible, integrated mass transportation system.
SEPTA Mot. Summ. J. Ex. 2 § 1 (emphasis added). In the EPVA Settlement Agreement, the
parties designated “certain key stations”13 that would be renovated and made accessible to
11 The ADA took effect on July 26, 1990. 12 The parties to the EPVA Settlement Agreement were the Eastern Paralyzed Veterans Association of Pennsylvania, Inc. and James J. Peters (as plaintiffs) and Dudley R. Sykes, as Commissioner of the Philadelphia Department of Public Property, the City of Philadelphia and SEPTA (as defendants). SEPTA Mot. Summ. J. Ex. 2 at SEPTA-3369. 13 The parties dispute the origin and definition of the term “key station.” SEPTA contends that the United States Department of Transportation outlined the “characteristics and accessibility attendant to a rail system’s ‘key stations’” in 1979 in the regulations DOT promulgated to implement Section 504 of the RHA. SEPTA Statement of Facts ¶ 8 n.1. DIA objects to relying on the Department of Transportation’s use of the term “key station” as a basis for the use of the same term in the EPVA Settlement Agreement inasmuch as the DOT rescinded the 1979 regulations in the early 1980s, well before the EPVA Settlement Agreement was negotiated and finalized in 1989. DIA Resp. ¶ 8. The Court notes parenthetically, however, that the Department of Transportation’s April 4, 1991 Notice of Proposed Rulemaking with respect to the proposed regulations to implement the ADA, stated that “[t]he key station criteria in the
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disabled individuals in accordance with a timetable set forth in the Agreement. SEPTA Mot. Summ. J. Ex. 2 at SEPTA-3372 to SEPTA-3376. The list of “certain key stations” designated in the EPVA Settlement Agreement did not include either the 15th and Market Street or the City Hall stations. Id. Notice of the proposed settlement agreement was given to members of the plaintiff class, which included persons with membership in DIA.14 SEPTA Statement of Facts, DIA Resp. ¶¶ 9-11. Following a hearing on the fairness, adequacy and reasonableness of the EPVA Settlement Agreement, the EPVA Settlement Agreement was approved on July 28, 1989. SEPTA Statement of Facts ¶ 12.
The ADA, a violation of which is alleged in the action now pending here, took effect on July 26, 1990. Section 12147 of the ADA stated that
it shall be considered discrimination for a public entity that provides designated public transportation to fail . . . to make key stations (as determined under criteria established by the Secretary [of the Department of Transportation] by regulation) in rapid rail and light rail systems readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. 42 U.S.C. § 12147(b)(1). The United States Department of Transportation (or “DOT”) engaged
proposed rule closely follow the [Department of Transportation’s] 1979 criteria [implementing Section 504 of the RHA] and the discussions in the committee reports. The basic responsibility for determining which stations are key is assigned to the public entity, taking these criteria into account.” Transportation for Individuals With Disabilities, 56 Fed. Reg. 13,856, 13,862 (proposed Apr. 4, 1991) (to be codified at 49 C.F.R. pts. 27, 37).
14 DIA, as an organization, was not a party to the EPVA v. Sykes litigation and was not directly involved with the EPVA v. Sykes lawsuit. According to DIA and Mr. Gold, counsel for DIA, DIA and Mr. Gold were aware of the EPVA litigation only to the extent that DIA and Mr. Gold monitored the case to ensure that DIA’s interests in a separate lawsuit, Disabled in Action v. Sykes, were not adversely affected by the EPVA v. Sykes litigation. See SEPTA Mot. Summ. J. Ex. 3, DIA’s Am. Resp. and Objections to SEPTA’s Req. for Admis 1.
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in a rulemaking process to promulgate regulations to implement this portion of the ADA.15 On April 4, 1991, the Office of the Secretary of the Department of Transportation issued a Notice of Proposed Rulemaking in which it proposed “to amend its rule implementing the Americans with Disabilities Act by adding sections concerning complementary paratransit, transportation facilities, and other matters not covered in its initial ADA final rule.” Transportation for Individuals with Disabilities, 56 Fed. Reg. at 13,856. The Notice set forth a preliminary schedule of public hearings to take place in April and May of 1991 in several cities, including New York City and Washington, D.C.16 Id.
The Notice stated that “[o]ne of the most important provisions of the ADA with respect to rail systems calls for ‘key’ stations to be made accessible.” Id. at 13,862. A “point of interest” set forth in the Notice, originating from a Senate Report regarding the key station issue, was that “[e]xactly what stations will be determined ‘key’ is a decision best left to the local community.” Id. (quoting S. Rep. No. 101-116, at 56 (1989)). The Notice also quoted the Senate Report stating that “[t]he [Senate] Committee does not intend to mandate a process to identify ‘key’ stations except that – in developing the criteria that will be used to determine which stations will be ‘key’ – it is important to significantly involve organizations representing people with disabilities and individual consumers with disabilities.” Id. The Department of Transportation
15 Congress authorized the Department of Transportation to issue regulations “necessary for carrying out” Title II of the ADA. 42 U.S.C. § 12149.
16 No hearing was scheduled to take place in Philadelphia. However, the Court takes judicial notice of the fact that New York City and Washington, D.C. are geographically close enough to Philadelphia, and accessible by train service, for persons from Philadelphia to avail themselves of opportunities to attend hearings in either location without the necessity of an overnight stay.
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also took note of settlement agreements recently negotiated in New York and Philadelphia (i.e., the EPVA Settlement Agreement), and stated that reports from both the Senate and the House of Representatives suggested that “these agreements should be viewed as in compliance with ADA Regulations.”17 Id. (citing S. Rep. No. 101-116, at 56 (1989); H.R. Rep. No. 101-485, pt. 1, at 34 (1990)). The Notice further stated that “[t]he proposed rule is not intended to require a public entity to nominate as a key station every station that may meet one of the criteria,” but rather that provision was aimed at ensuring “that the system, when viewed as a whole, becomes accessible to and usable by individuals with disabilities.” Id. The Department of Transportation sought comment “on the appropriateness of [the key station] criteria and suggestions for modification.” Id.
On September 6, 1991, the Department of Transportation issued its Final Rule implementing the transportation segments of the ADA, containing elements for “. . . provision of nondiscriminatory accessible transportation service.” Transportation for Individuals with Disabilities, 56 Fed. Reg. 45,584, 45,584 (Sept. 6, 1991) (to be codified at 49 C.F.R. pts. 27, 37, 38). While the Final Rule acknowledged comments the DOT received in response to the April 4, 1991 Notice of Proposed Rulemaking, no comment with respect to the propriety of the key
17 The DOT’s Notice of Proposed Rulemaking further stated that “[i]n looking at plans from New York and Philadelphia, the [Department of Transportation] would be mindful of the Congressional reports’ endorsement of them.” Transportation for Individuals with Disabilities, 56 Fed. Reg. at 13,862. Further, with respect to the provision in the proposed rule that would require the public entity to submit a plan to the DOT for complying with the rule, the Notice stated parenthetically that “With respect to those cities in which agreements mentioned by the [Senate and House of Representatives] Committee reports have already been worked out (i.e., New York and Philadelphia), submission of the plans developed under the agreements would satisfy the requirement.” Id.
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stations listed in the EPVA Settlement Agreement was noted.18 Id. at 45,594 to 45,596.
The final regulations promulgated by the DOT state, in pertinent part, that “[e]ach public entity that provides designated public transportation by means of a light or rapid rail system19
shall make key stations on its systems readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs.” 49 C.F.R. § 37.47(a) (emphasis added).
The regulations instruct each public entity to determine which stations on its system are “key
stations,” using a particular planning and public participation process, and taking into consideration various factors such as volume of ridership,20 whether the station functions as a
transfer station, an interchange point or an end station, and whether a station serves “major
activity centers.” 49 C.F.R. § 37.47(b). The regulations further instruct the public entity to
consult with individuals with disabilities affected by the plan “to develop a plan for compliance
with” such regulations. 49 C.F.R. § 37.47(d). However, in another regulation which ties the
EPVA Settlement Agreement to the present dispute, the Department of Transportation declared
18 The Final Rule acknowledged that comments were received from one of the transit providers involved in the New York agreement. See Transportation for Individuals with Disabilities, 56 Fed. Reg. at 45,596.
19 The regulations define a “rapid rail” as “a subway-type transit vehicle railway operated on exclusive private rights of way with high level platform stations.” 49 C.F.R. § 37.3.
20 The Department of Transportation’s Notice of Proposed Rulemaking stated that while high ridership is one of several criteria to be considered, “the criteria would note that where such a station is in close proximity to another accessible station, it is not necessary to designate both as key stations.” Transportation for Individuals with Disabilities, 56 Fed. Reg. at 13,862. Thus, in their final form, the two paragraphs in 49 C.F.R. § 37.47 that contain the “key station” criteria, including the high ridership element, contain the caveat “unless such a station is close to another accessible station.” See 49 C.F.R. § 37.47(b)(1), (b)(4). The list of stations in the EPVA Settlement Agreement includes the transit station at 13th Street on the Market-Frankford Elevated line, which is one block away from City Hall. See SEPTA Mot. Summ. J. Ex. 17, C. Lister Aff. ¶ 4.
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that “the identification of key stations under [the EPVA Settlement Agreement] is deemed to be
in compliance with the requirements” set forth in the regulations. 49 C.F.R. § 37.53(a).21
On July 7, 1992, SEPTA held a public hearing to address (1) a proposed tariff increase
for the Paratransit program and (2) “a plan to make ‘key’ stations of the Subway-Elevated Lines,
the Norristown High Speed Line and the Regional Rail Division accessible for the transportation
disabled.” SEPTA Mot. Summ. J. Ex. 10. According to the public notice for the hearing,22 a
copy of the proposed Key Station Plan was available for public inspection beginning June 17,
21 The Final Rule acknowledged that Section 37.53 (codified at 49 C.F.R. § 37.53) “formally recognizes that agreements concerning key station accessibility in New York City and Philadelphia have identified key stations, which designations were intended to be recognized as complying with ADA key station selection requirements.” Transportation for Individuals with Disabilities, 56 Fed. Reg. at 45,596.
As discussed below, 49 C.F.R. § 37.53(a) is the source of significant dispute between the parties. SEPTA argues that the key stations identified in the EPVA Settlement Agreement meet the requirements of the ADA and that no further inclusion of additional key stations is required under the rules. SEPTA Br. Supp. Mot. Summ. J. 10-14. DIA strongly disagrees, arguing that the list of key stations designated in the EPVA Settlement Agreement did not purport to include all qualifying key stations on SEPTA’s system but that it merely established a “floor” to which additional key stations would be added. DIA Resp. ¶ 18; DIA Mem. Opp’n 6, 24.
22 The parties dispute whether notice of the July 7, 1992 hearing was provided. SEPTA asserts that it published notice of this hearing in the Philadelphia Inquirer and Tribune and that it distributed notice of this hearing on board SEPTA ParaTransit vehicles, commuter rail cars and at all key stations. SEPTA Mot. Summ. J. Ex. 11 at SEPTA-3689. DIA asserts that there was no public notice of the July 7, 1992 hearing, that only the timing of key station accessibility was discussed at the hearing, and that DIA and other disabled advocacy groups were not given an opportunity to address the topic of the identification of key stations. DIA Resp. ¶¶ 39-45. At oral argument here, counsel for DIA further argued that although there was a public hearing with the proposed list of key stations on the agenda, the transcript of that hearing confirms that at no time did SEPTA seek to confirm that there were no objections to the list of key stations. June 29, 2006 Tr. 38:18-24, 39:1-2. SEPTA acknowledges, however, that the July 7, 1992 hearing was held “[i]n order to comply with the 49 C.F.R. § 37.53(b) obligation to use its public participation and planning process solely to develop and submit plans for timely completion of key station accessibility to the Federal Transit Administration . . . .” SEPTA Mot. Summ. J. ¶ 39.
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1992 “or shortly thereafter.” Id.
On July 23, 1992, the SEPTA Board held a meeting in which these two issues comprised the agenda.23 SEPTA Mot. Summ. J. Ex. 13. Dr. Erik von Schmetterling, then the President of
DIA, was present at this Board meeting. Id. at SEPTA-6806. Although the minutes indicate that
the meeting included much discussion and debate about the proposed fare increase, it appears
that only minimal discussion ensued with respect to approval of SEPTA’s Key Station Plan. See
generally id. at SEPTA-6809 to SEPTA-6810. The minutes from the July 23 meeting with
respect to the Key Station Plan state:
Mr. Undercofler [the Chairman of the Board of SEPTA] stated that [the Key Station Plan] resolution had been reviewed and concurred in by the appropriate Board committee in public session.24 He then entertained a motion with respect to this resolution. Id. at SEPTA-6809. The Key Station Plan resolution25 was then moved, seconded and
23 The Board minutes from the July 23, 1992 meeting indicate that the proposed fare increase and the “SEPTA Key Station Plan pursuant to the Americans with Disabilities Act” were the only two items discussed. SEPTA Mot. Summ. J. Ex. 13.
24 It appears that the “public session” mentioned in the minutes from the Board meeting is a reference to the July 7, 1992 hearing. See SEPTA Mot. Summ. J. Ex. 13 at SEPTA-6810 (“WHEREAS, after appropriate publications and postings, Mr. Huss held a public hearing on July 7, 1992, at a convenient, accessible location . . . .”).
25 The Key Station Plan resolution states:
WHEREAS, Federal regulations implementing the Americans with Disabilities Act . . . require the development and submittal [sic] of a plan to make “key” stations accessible in accordance with Federal regulations; and
WHEREAS, SEPTA developed a plan and schedule to make “key” stations accessible in conjunction with the SEPTA Advisory Committee on Services on the Elderly and Disabled; and
WHEREAS, the identification of “key” stations is part of the agreement between 16

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unanimously adopted.26 Id. at SEPTA-6809 to SEPTA-6810.
the Eastern Paralyzed Veterans Association and the City of Philadelphia and SEPTA; and
WHEREAS, the Code of Federal Regulations Part 27, Subpart C, Section 37.53(2) provides that this type of agreement would be in compliance with the regulation identifying “key” stations; and
. . .
WHEREAS, after appropriate publications and postings, Mr. Huss held a public hearing on July 7, 1992, at a convenient, accessible location; and
WHEREAS, persons desiring to do so were given the opportunity to appear at this public hearing and to present testimony, to introduce exhibits and other evidence, and to ask relevant questions of the Authority’s representatives; and
. . .
WHEREAS, persons desiring to do so have had the opportunity to appear before the SEPTA Board at this public meeting for the purpose of presenting argument and/or other material concerning the proposed ADA Key Station Plan.
NOW, THEREFORE, BE IT RESOLVED, that upon consideration of the testimony taken and evidence presented at the public hearing held on July 7, 1992, or otherwise entered into the record, together with any arguments and/or other materials presented at this Board meeting, along with the recommendation of the Hearing Examiner, the SEPTA ADA Key Station Plan, be, and the same is hereby adopted.
SEPTA Mot. Summ. J. Ex. 13 at SEPTA-6809 to SEPTA-6810.
26 Although the minutes of the July 23, 1992 SEPTA Board meeting indicate that the proposed Key Station Plan was discussed, they also indicate that the manner in which the Key Station Plan was treated was different than the manner in which the proposed fare increase was addressed. With respect to the fare increase, the Chairman of the Board called the Board’s attention to a revised resolution before them. SEPTA Mot. Summ. J. Ex. 13 at SEPTA-6802. The Chairman then called on an officer of SEPTA, Carol Lavoritano, to provide a brief presentation concerning the revised resolution, which presentation occupied slightly more than one page of the minutes. Id. at SEPTA-6802 to SEPTA-6803. At least nine named speakers, including Dr. von Schmetterling and other speakers who represented individuals with disabilities, then presented their concurrence with or objections to the revised proposal. Id. at SEPTA-6804 to SEPTA-6806. Ms. Lavoritano then responded to several of the speakers’ concerns. Id. at SEPTA-6806 to SEPTA-6807. Finally, a motion to adopt the resolution was entertained,
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On May 28, 1996, notice concerning a proposed amendment to the EPVA Settlement
Agreement was published.27 A hearing to discuss the amendment, which allowed for the
replacement of two previously designated regional rail stations with two other regional rail
stations, was held on July 9, 1996. SEPTA Mot. Summ. J. Exs. 18-19. That same day an order
was entered approving the amendment. SEPTA Mot. Summ. J. Ex. 19. The EPVA Settlement
Agreement has not been amended in the decade since 1996.28
seconded and the resolution was adopted. Id. at SEPTA-6807 to SEPTA-6809. The Board’s proceedings concerning the fare increase, including the text of the resolution, occupied approximately seven of the nine total pages of minutes. See id. at SEPTA-6802 to SEPTA-6809.
In contrast, the minutes indicate that there was no reported discussion concerning the proposed Key Station Plan except one statement by the Chairman of SEPTA’s Board that the Key Station Plan resolution had been “reviewed and concurred in by the appropriate Board committee in public session. ” The Chairman then entertained a motion with respect to this resolution. Id. at SEPTA-6809. As far as the minutes indicate, the Key Station Plan resolution involved little or no discussion by the SEPTA Board, was not presented to the Board by way of a descriptive presentation by a SEPTA officer, included no speakers on record as publicly commenting either for or against the resolution, and included no question and answer session. The entire proceedings concerning the Key Station Plan were memorialized in less than one and one-half pages of the minutes, including the text of the resolution. See id. at SEPTA-6809 to SEPTA-6810.
27 The notice was published in the Philadelphia Inquirer and the Philadelphia Daily News. See SEPTA Mot. Summ. J. Ex. 18.
28 DIA argues that it remained silent about the list of key stations in the EPVA Settlement Agreement, even as the Department of Transportation was adopting the agreement as SEPTA’s compliance with the ADA, because it believed at that time that the list of “certain” key stations in the EPVA Settlement Agreement was still evolving. June 29, 2006 Tr. 39:2-4. DIA points to the 1996 amendment to the EPVA Settlement Agreement, in which the parties altered the list of key stations, to argue that the parties were still discussing which stations constitute “key stations.” Id.; see also SEPTA Mot. Summ. J. Exs. 18-19 (orders approving 1996 amendment to the EPVA Settlement Agreement).
DIA finally asserts that when the EPVA Settlement Agreement was negotiated and agreed upon, no one involved understood that the agreement would designate a final list of all key stations, but rather that the agreement constituted a preliminary list of certain key stations that
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E. Procedural History of the Present Case Despite the apparent simplicity of DIA’s general demand for SEPTA, a public body that arguably should be sensitive to the needs of all persons who turn to public transportation for matters of necessity and pleasure alike, to make certain stations accessible to individuals with disabilities in compliance with the ADA and the RHA, this case has followed a circuitous and, at times, trying, procedural route to arrive in its present posture. DIA filed its initial complaint in this case on March 14, 2003 against SEPTA as the sole defendant. DIA alleged that under the ADA, certain alterations to an entrance to the Market-Frankford Elevated Line at 15th and Market Streets triggered an obligation to make the 15th and Market Street transit station accessible to disabled individuals. That complaint was dismissed on May 15, 2003, after SEPTA argued that because the City of Philadelphia owned the real property upon which the alleged alterations had been made, the Complaint was deficient for not having named the City as a defendant. DIA subsequently moved for and was granted relief from the dismissal, and DIA filed its first Amended Complaint on June 12, 2003, adding the City of Philadelphia as a defendant. DIA filed its Second Amended Complaint on October 10, 2003 for the purpose of adding an
SEPTA would begin to make accessible to disabled individuals. June 29, 2006 Tr. 36:7-10; DIA Mem. Opp’n 6, 20-26. At oral argument, counsel for DIA asserted that the deposition testimony of James J. Weisman, Esquire supports this contention. June 29, 2006 Tr. 37:14-18. Mr. Weisman was one of the lead counsel for EPVA during the settlement process and was involved in negotiating the EPVA Settlement Agreement. See SEPTA Mot. Summ. J. Ex. 62, Weisman Decl. ¶ 1. In his declaration, Mr. Weisman stated that during the negotiations, EPVA sought to have the City Hall Station declared a key station but that SEPTA was reluctant to do so because of cost constraints. Id. ¶ 6. Mr. Weisman stated that the list of stations identified in the EPVA Settlement Agreement was meant to be a “floor” and that the DOT did not intend that those stations identified would be the only stations designated as “key.” Id. ¶¶ 9, 12.
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attachment which, DIA believed, would facilitate a resolution of the matter.29 On December 15, 2003, after an attempt to resolve the claim failed, DIA sought leave to file a Third Amended Complaint to add an additional count asserting DIA’s alternative theory that both the City Hall and 15th and Market Street stations are “key stations” under the ADA. DIA’s motion was granted over SEPTA’s objection, and DIA filed its Third Amended Complaint on January 7, 2004.
While SEPTA filed an answer to the original complaint and the First and Second Amended Complaints, it did not file an answer to the Third Amended Complaint. Rather, on July 1, 2004, SEPTA moved to dismiss and to strike portions of that complaint. SEPTA specifically argued that the key station portion of the Third Amended Complaint must be dismissed because DIA failed to state a claim upon which relief could be granted. See Docket No. 32, SEPTA Br. Supp. 3. SEPTA further argued that the allegations set forth in the Third Amended Complaint relating to a purported agreement between DIA and SEPTA, in which SEPTA allegedly promised to move forward with the installation of elevators at the City Hall “key station” in lieu of constructing an elevator at the northwest corner of 15th and Market Streets, should be stricken from the pleading.30 Id. at 7. On July 20, 2004, DIA and SEPTA entered into the following stipulation:
29 According to the motion, DIA believed that certain alleged plans of SEPTA to incorporate an elevator which would facilitate access for the disabled to the subway lines through the City Hall Courtyard might assist the parties to settle the claim. The Second Amended Complaint included an attached diagram of the purported proposed elevator. See Docket No. 13, Second Am. Compl.
30 SEPTA alleged that at a conference before the Court on June 16, 2004, DIA had agreed not to pursue this claim and that DIA stated that its case would turn on the sole legal question of whether SEPTA had violated the ADA or the RHA. See Docket No. 32, SEPTA Br. Supp. 7.
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It is hereby stipulated and agreed, by and between the undersigned counsel, with the full authority of their clients, that Plaintiff does not oppose Defendant SEPTA’s Motion to Strike the allegations in Plaintiff’s Third Amended Complaint related to the alleged agreement to construct elevators at City Hall in lieu of construction of an elevator at the northwest corner of 15th and Market Streets. It is further stipulated and agreed that Plaintiff is hereby precluded from presenting any claim that Defendant SEPTA allegedly agreed to construct elevators at City Hall in lieu of construction of an elevator at the northwest corner of 15th and Market Streets or that SEPTA is liable for failing to abide by any such alleged agreement at trial or in any hearing or in any other proceeding; said claims are hereby dismissed without prejudice.
Docket No. 36, Stipulation.
On August 16, 2004, DIA and the City of Philadelphia presented for Court approval a
settlement agreement. As part of that settlement agreement, it was stipulated that
It is the City’s legal opinion that SEPTA is legally obligated under the ADA and accompanying Regulations to construct an elevator at the 15th and Market Street Courtyard entrance, which SEPTA renovated. The City only granted permits for that renovation because the City believed SEPTA had agreed to construct elevators in the City Hall Courtyard in lieu of the required elevator at 15th and Market.
Docket No. 49, Settlement Agreement between DIA and City of Philadelphia § 4(a).31 The
settlement agreement between DIA and the City resolved all claims that DIA had brought against
the City. It was approved by this Court on November 30, 2004, and the City of Philadelphia was
dismissed as a defendant in this case. See Docket No. 68.
On December 27, 2004, in light of the aforementioned stipulation between SEPTA and
31 Federal Rule of Evidence 201, governing judicial notice of adjudicative facts, provides that a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). In this case, the settlement agreement between DIA and the City is a publicly available document that is part of the docket in this case, and the Court therefore may look to the settlement agreement for certain facts. See Docket No. 49.
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DIA, SEPTA’s motion was granted with respect to the removal of any allegations respecting an alleged agreement to construct elevators at City Hall in lieu of constructing an elevator on the northwest corner of 15th and Market Streets. The remaining aspect of the motion was denied with respect to the requested dismissal of the alternative theory that the transit stations in question were, in fact, key stations. See Docket No. 70.
On January 14, 2005, DIA moved to file a Fourth Amended Complaint, ostensibly in order to comply with the Court’s Order directing the removal from the pleadings of the alleged compromise agreement between DIA and SEPTA. See Docket No. 74. DIA also asserted that during the course of discovery in the case it had learned of an additional alteration by SEPTA to the southeast entrance to the City Hall Subway Station on the Broad Street Subway Line, located in the City Hall Courtyard. DIA argued that this alteration would also trigger obligations under the ADA, and, therefore, that DIA wished to add allegations premised upon these allegedly newly discovered facts to its complaint. Over SEPTA’s opposition, the Court granted the motion to amend, and DIA filed its Fourth Amended Complaint on February 15, 2005. See Docket No. 80.
In its Fourth Amended Complaint, DIA argues that the construction of a new stairway at the northwest entrance to the concourse located at 15th and Market Streets, as well as the replacement of a non-working escalator in the southeast portion of the courtyard running from the mezzanine below the City Hall Courtyard to the Courtyard, each constitute an alteration which required SEPTA to make the respective entrances accessible to individuals with disabilities under the ADA, the regulations promulgated to implement the ADA, and the RHA. Docket No. 80, Fourth Am. Compl. ¶ 60. DIA further alleges that SEPTA’s plans to construct a
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new escalator at the northwest entrance of the City Hall Station in the City Hall Courtyard, which would provide access to the Broad Street Subway Lines, also triggers such an obligation. Id. In the second count of the Fourth Amended Complaint, DIA alleges that the City Hall and 15th and Market Street subway stations are, in fact, “key stations,” and as such, SEPTA is required to make them accessible to individuals with disabilities under the ADA and the RHA. Id. ¶¶ 61-62. Throughout this arduous procedural history DIA and SEPTA aggressively pursued and completed discovery, culminating in the pending cross motions for summary judgment. DISCUSSION
A. Standard of Review Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect the outcome of the case under governing law. Id. The standards by which a court decides a summary judgment motion do not change when the parties file cross-motions. SEPTA v. Pa. Pub. Util. Comm’n, 826 F. Supp. 1506, 1512 (E.D. Pa. 1993). SEPTA initially argues that DIA’s claims that the renovation to the stairway in the Market Street Courtyard at the northwest corner of 15th and Market Streets and the replacement of an escalator in the southeast portion of City Hall Courtyard triggered the alteration requirements of the ADA, are both barred by the statute of limitations. SEPTA further argues
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that DIA’s claim that either the 15th and Market Street or City Hall transit stations are “key stations” under the ADA is not a valid claim under the ADA, and further, that such a claim is untimely and invalid, because the Department of Transportation’s approval of SEPTA’s “key station plan” suffices to make SEPTA compliant with those obligations.
B. Count I: Renovations to the 15th and Market Street Stairway and Replacement of the Escalator in the City Hall Courtyard
Section 12147 of the ADA, in pertinent part, provides that: With respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 202 of this Act [42 U.S.C. § 12132] and section 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794], for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 42 U.S.C. § 12147(a). In enacting the ADA, Congress did not include an express period of limitations for bringing claims. Where there is no governing federal statute of limitations, a federal court is to measure the timeliness of a federal civil suit by referring to analogous state law. Hardin v. Straub, 490 U.S. 536, 538 (1989) (“This tradition . . . is based on a congressional decision to defer to ‘the State’s judgment on the proper balance between the policies of repose and the substantive policies of enforcement embodied in the state cause of action.’” (quoting Wilson v. Garcia, 471 U.S. 261, 271 (1985))). For claims in which individuals seek to vindicate civil rights or rights conferred by federal statute, courts have concluded that the statute of limitations for personal injury claims controls, including any relevant state tolling rules. See, e.g., Lake v.
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Arnold, 232 F.3d 360, 368 (3d Cir. 2000); Estrada v. Trager, No. 01-4669, 2002 WL 31053819 at* 3 (E.D. Pa. Sept. 10, 2002). Pennsylvania has a two-year limitation period for personal injury claims. 42 Pa. C.S.A. § 5524(7). The timing of the accrual of a federal cause of action, however, is a federal question to be determined by reference to federal law. Antonioli v. Lehigh Coal & Navigation Co., 451 F.2d 1171, 1175 (3d Cir. 1972).
The dispute regarding the timeliness of DIA’s claims emanates from the difference in how the parties interpret the ADA as to when the alleged discrimination occurs. SEPTA argues that under the case law interpreting the ADA, a claim respecting the replacement of the stairway or the replacement of the escalator would have accrued as soon as the DIA knew, or had reason to know, of the injury which forms the basis of its claim. SEPTA Br. Supp. 27. SEPTA contends that DIA knew that SEPTA would not be installing an elevator at the 15th Street Courtyard as early as August 3, 2000.32 Id. at 26-30. Because DIA filed its initial complaint on March 14, 2003, SEPTA claims that Pennsylvania’s two-year statute of limitations already had expired by that time and, thus, that DIA’s claim on this point is time barred. In addition, SEPTA contends that DIA was aware that SEPTA would be replacing the escalator in the City Hall courtyard as early as June 1, 2001. SEPTA Br. Supp. 37. Because DIA filed its Fourth Amended Complaint on February 15, 2005, SEPTA argues that DIA’s claim on this point is also time barred.
32 SEPTA points to letters sent by Mr. Gold, counsel to DIA, to the Commissioner of the Philadelphia Department of License & Inspection and the City of Philadelphia Solicitor’s Office, dated August 3, 2000 and September 28, 2000, respectively. SEPTA Br. Supp. 26; SEPTA Mot. Summ. J. Exs. 25-26. In his initial letter, Mr. Gold expressed his concern that the City would allow SEPTA to apply for a variance to waive the requirement to provide a “vertical accessible route” at the 15th and Market Street location. SEPTA Mot. Summ. J. Ex. 25.
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Conversely, DIA argues that the ADA must be read to mean that alterations which do not include accommodations for individuals with disabilities are not considered to be discriminatory until the alterations are completed. DIA Mem. Opp’n 27. DIA asserts that its claim with respect to the 15th Street Courtyard accrued on August 8, 2002 when the construction was completed, and that its claim with respect to the alterations of the City Hall Station accrued on August 24, 2003 when construction to replace the escalator was completed. Id. Thus, DIA argues that its claim with respect to the 15th Street Courtyard, which was filed on March 14, 2003, and its claim with respect to alterations of the City Hall Station, which was filed on February 15, 2005, each fall well within the two-year statute of limitations. DIA further argues that the notification it had regarding both projects was insufficient to support an assertion that an inevitable “future” discriminatory act would occur, thereby suggesting that the claims would not have been ripe for judicial review – and the limitation periods would not even begin to run – until the construction was completed. DIA Resp. to SEPTA Supp’l Letter. Therefore, DIA asserts that this interpretation of the ADA is key to determining the timeliness of its claim, and that notification of SEPTA’s planned renovations to the 15th Street Courtyard and the City Hall Courtyard could not have given rise to a cause of action because no discriminatory act and, therefore, no legal injury, had then occurred. DIA Mem. Opp’n 27.
The Court of Appeals for the Third Circuit has not addressed the precise issue as to when, in a suit under the ADA, a discriminatory action is deemed to have occurred, where the alleged discriminatory action is the violation of a statutory obligation to include an accommodation for disabled individuals in planning and completing a construction project. Neither party has cited
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any case which directly addresses the issue.33 Thus, the Court must conduct a singular analysis
and interpretation of the language of the ADA in order to evaluate this fundamental issue. In
conducting such an analysis, DIA suggests that the Court consider the language of the Fair
Housing Act and the Fair Housing Amendments Act of 1988, which DIA asserts is analogous to
the ADA and has been scrutinized by other courts.34
33 While much of the Third Circuit case law cited by SEPTA involves other types of discriminatory behavior (e.g., employment actions), DIA primarily cites cases where courts interpreted the Fair Housing Amendments Act.
34 DIA relies on several cases in which, DIA asserts, courts have concluded that a discriminatory act can occur only when alterations have been completed. These cases include several in which courts have considered claims under the Fair Housing Amendments Act (and, in some cases, the ADA). For example, in Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc., 250 F. Supp. 2d 706, 719 (W.D. Ky. 2003), the court concluded that a plaintiff’s claims under the Fair Housing Amendments Act fell within a two-year statutory period because the “last asserted occurrence of the practice in the [housing development] occurred when the last unit was sold . . . .”
Likewise, in United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129, 1139-40 (D. Idaho 2003), the court considered a plaintiff’s claims brought pursuant to the Fair Housing Amendments Act and the ADA with respect to the design and construction of homes. However, the Taigen court appears to have considered only the statutory limitation with respect to whether construction that allegedly violated the Fair Housing Amendment Act could be considered a continuing violation and whether the plaintiff’s claims for civil penalties and compensatory damages were timely filed. Id. at 1143-48. The court in Taigen first concluded that the continuing violation theory did not apply to the Fair Housing Amendment Act claims, but later concluded that the claim for injunctive relief which plaintiff had requested pursuant to the ADA and the Fair Housing Act could proceed because the alleged “failure” to design and construct an accessible facility did not occur until construction was completed. Id. at 1150 n.16.
In each of the cases relied upon by DIA and discussed herein, the presiding court considered and rejected an argument that the “continuing violation” theory would serve to toll the statutory period with respect to the Fair Housing Amendments Act claim. See, e.g., id. at 1141 (noting that the alleged failure to design and construct housing in compliance with the Fair Housing Act “has a continuing effect rather than constituting a continuing violation” of the Act). One court did, however, acknowledge that the continuing violation doctrine might, in some circumstances, be applicable under the ADA. Id. at 1140 n.6. DIA asserts that it does not argue that its alteration claims are part of a continuing violation theory “but rather argues that the date
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Where alleged discrimination involves a violation of the Fair Housing Act, the “discriminatory act” in question must amount to “a failure to design and construct [the designated dwellings] in such a manner that [would accommodate the needs of individuals in wheelchairs].” 42 U.S.C. § 3604. Thus, courts finding that a claim does not accrue until construction on a facility is completed do not appear to consider the possibility that a plaintiff might have knowledge at an earlier point that a facility, once completed as designed, will not meet the obligations under the statute.
The ADA provides that “[w]ith respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services,” it is discrimination “for a public entity to fail to make such alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations.” 42 U.S.C. §12147(a) (emphasis added). Therefore, in order to apply the interpretation of the Fair Housing Act to determine when a cause of action arises under the ADA, the Court would need to first accept the proposition that the phrase “upon the completion of such alterations” modifies the language beginning “for a public entity to fail to make such alterations” rather than the preceding phrase “the altered portions of the facility are readily accessible to and usable by individuals with disabilities.” That is, in order to read the ADA in the manner that DIA suggests, the Court would have to assume that the phrase “upon the completion of such alterations” modifies the entire definition of what constitutes “discrimination,” and does not
of the running of the statute of limitations is the date of completion of the alterations to the facilities.” DIA Mem. Opp’n 32. Thus, accepting DIA’s own characterization of its claim, the “continuing violation” theory need not be addressed.
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merely suggest that accessibility for disabled individuals must be in place at the time the alterations are completed. The Court declines to adopt such an interpretation as proposed by DIA.
By closely examining the language of the Fair Housing Act, the Court notes that the conjunctive nature of the discriminatory act under that legislation, i.e., to design and construct the dwellings without appropriate accessibility, differs from the linguistic analysis presented here. While this language clearly suggests that actual construction must be completed before a discriminatory act under the FHA is deemed to have occurred, the ADA’s language is far less clear.
Additionally, logic and prudence suggest that it would be impractical to impose upon a defendant the requirement that it fully complete a facility modification before having to address any assertion that modifications that can be clearly understood from design drawings and specifications amount to alterations triggering an obligation under the ADA that might require significant and material modifications that surely would have been more easily, efficiently and economically incorporated well prior to completion of the work.35 It makes no practical or logical sense to wait until the last nail is hammered into place to evaluate the ADA-compliance of a construction project that would necessarily have had to have been carefully designed, specified and engineered for the needs of the disabled long before excavation commences or framing proceeds. Stated differently, to hold that the limitations period begins to run only when
35 This proposition is further supported by the fact that DIA actually did contact SEPTA and the City of Philadelphia during the early planning and design phases of the project to express its concern on the very points now in dispute, and the ultimate response from the City was that DIA should be expeditious in pursuit of its concerns, as the completion of the project was scheduled to proceed relatively quickly. See SEPTA Mot. Summ. J. Exs. 24-27.
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the hammer falls for the last time or only when the paint has dried would imply that up until that time major design and construction feats could still be planned and executed to entirely reengineer the project to add the ADA-compliant features. No real world construction project follows such a course. Moreover, it would be undesirable to permit a potential defendant to perpetually forestall a claim by arguing that, notwithstanding the design and substantial completion of all material elements of a project, no claim could be ripe for presentation to a court simply because finishing touches had not been applied or because an as-yet unfinished project could always be redesigned or otherwise modified to include the sought-after component. See note 37, infra. These considerations, along with the absence of any explicit statutory limitation period in the ADA, lead to the conclusion that it is implausible that the phrase “upon the completion of such alterations” implies a limitation period that could not begin to run until alterations were physically actually completed. Thus, the Court must look elsewhere for guidance as to when a cause of action such as this one accrues.
Under federal law, a claim accrues on the date “when the plaintiff knows or has reason to know of the injury that is the basis of the action.” Smith v. City of Phila., 345 F. Supp. 2d 482, 485 (E.D. Pa. 2004); Toney v. U.S. Healthcare, Inc., 840 F. Supp. 357, 358 (E.D. Pa. 1993), aff’d, 37 F.3d 1489 (3d Cir. 1994). To determine the accrual date of a discrimination claim, a court must focus on when the discriminatory act occurred, not when the effect of that act became painful. See Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (finding that claim for discrimination began upon notification of intent to terminate an employment contract because “the proper focus is on the time of the discriminatory act and not the point at which the consequences of the act became painful”); see also Saylor v. Ridge, 989 F. Supp. 680, 686 (E.D.
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Pa. 1998) (finding that discrete acts of discrimination alleged against employer accrued when plaintiff gained insight as to the discriminatory nature of the acts).36
1. 15th and Market Street Courtyard
a. Statutory Period
DIA had notice that SEPTA did not plan to install an elevator as part of the 15th and
Market Street Courtyard renovations, and DIA also knew that SEPTA believed that SEPTA did
not need to construct an elevator because it was told so by a representative of the City of
Philadelphia Law Department. See SEPTA Mot. Summ. J. Exs. 25-27. DIA argues that the
November 14, 2000 letter it received from Mr. Pasour of the City of Philadelphia Law
Department, in which Mr. Pasour acknowledges that DIA threatened to litigate the issue and
suggests that any such litigation be commenced promptly, cannot reasonably be regarded as a final decision regarding the scope or specifics of the construction.37 As indicated supra, the
36 The “discrimination” in Chardon was in the employment context. Chardon, 454 U.S. at 6. However, the general principle applies in analogous cases of discrimination, as is demonstrated by Saylor, 989 F. Supp. at 685-86, where the plaintiff alleged discrimination with respect to a denial of accommodations under Title II of the ADA.
37 During the oral argument on these Motions and in the subsequent supplemental letter memoranda, the parties shift the focus of when the claim accrued to whether a claim asserted in November of 2000 or during the two years thereafter would have been ripe for adjudication.
Of the several cases cited by both parties in support of their positions relating to ripeness, DIA relies on Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), for the proposition that “when a Defendant has a viable opportunity to take further administrative action which will work to obviate a potential claim, the Plaintiff may not bring a claim until the Defendant has entirely relinquished that opportunity.” DIA Supplemental Letter Mem. 2. DIA then argues that because SEPTA could have modified the building permit after construction began, the notification it received via Mr. Pasour’s letter was not final, and DIA had no basis to bring a claim then. Id.
Williamson, however, presents a factually different scenario than this one and is not 31

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Court disagrees.
The record reveals that the process leading up to the beginning of construction at the 15th
and Market Street Courtyard involved considerable analysis by both SEPTA and the City of
Philadelphia. See SEPTA Mot. Summ. J. Exs. 25-27, 56. This analysis included a consideration
of provisions of the Philadelphia Building Code, the timeliness requirements for use of federal
funding, and compliance with the ADA. SEPTA Mot. Summ. J. Exs. 27, 54, 56. The context
and circumstances of this analysis undeniably included Mr. Gold, as counsel for DIA, having
threatened to file suit to establish that the construction project triggered an obligation under the
dispositive here. In Williamson, the Supreme Court addressed a claim that a township had, by virtue of its zoning decision, taken the property of the plaintiff, a real estate developer, without just compensation. 473 U.S. at 175. In that context, the Court found that the claim was not ripe for adjudication because the plaintiff developer had not yet obtained a final decision regarding how it would be allowed to develop its property. Id. at 194-95.
Here, after attempting to obtain variances from the City of Philadelphia Building Code, SEPTA was informed on October 17, 2000 that no such variance would be necessary. See SEPTA Mot. Summ. J. Ex. 56 at COP-171. Subsequently, on November 14, 2000, counsel for the City, after stating that the City understood DIA to believe that the project did not conform with the ADA, informed Mr. Gold, counsel for DIA, that “the City doe[s] not share your view that an elevator is required in the 15th Street Courtyard. . . .” SEPTA Mot. Summ. J. Ex. 27. Under these circumstances, it is difficult to imagine that SEPTA would, absent some external force, simply modify the plans for a construction project which had been funded and was time sensitive. In addition, it is also difficult to imagine why DIA, upon receipt of the November 14, 2000 letter from the City, would reason that the appropriate course of action would be to sit back and wait until SEPTA completed its planned construction, which it knew would not include an elevator, and then bring suit two and a half years later, in March of 2003.
Moreover, this case is not about an allegedly unconstitutional taking of property. Rather, the parties here differ as to the interpretation of a federal statute and the regulations that were promulgated to implement it. Thus, this matter could properly have been presented to a district court for a ruling as to the correctness of one party’s position that a federal statute was being violated through the implementation of a certain construction project. Therefore, in this case, the Court must reject any finding that litigation brought at the time SEPTA began in material respects the planned construction would not have been ripe for adjudication.
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ADA for SEPTA to install an elevator. SEPTA Mot. Summ. J. Exs. 25-27. Moreover, at his deposition in this case,38 Mr. Gold admitted that, after DIA had been notified that there was no elevator in the construction plan, and none added later once construction began, DIA had considered obtaining an injunction that would stop the project from proceeding until the appropriate changes were made. SEPTA Mot. Summ. J. Ex. 24, S. Gold Dep. 36:17-25; 37:1113, Nov. 4, 2005. In fact, counsel for DIA confirmed that DIA made a deliberate, presumably strategic, decision at that time not to pursue having the elevator installed at 15th and Market Streets. Id. 38:1-25; 39:1-16. For all of these reasons, the Court concludes that DIA’s cause of action with respect to the 15th and Market Street Courtyard accrued no later than November 1, 2000, when DIA was informed that SEPTA would proceed with the planned construction at the 15th and Market Street Courtyard without installing an elevator. This conclusion is, however, subject to being tempered by certain facts that suggest that tolling the statutory period may be appropriate in this case.
b. Potential for Equitable Tolling At oral argument, DIA set forth as a third and, presumably, alternative argument. DIA suggests that its failure to file suit with respect to the demolition and replacement of the stairway at 15th and Market Streets was the result of DIA’s reliance on an assurance by SEPTA executives that although no elevator was planned for that location, SEPTA did plan to install an elevator that would descend to the City Hall Station of the Broad Street Subway Line. June 29,
38 Stephen F. Gold, Esquire, counsel for DIA, was deposed as a witness to some of the facts underlying this case.
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2006 Tr. 31:23-25, 32:1-14, 34:13-17, 49:13-24, 50:1-9.39 Specifically, DIA argues that despite the urging from the City of Philadelphia Law
Department to file a lawsuit quickly (if DIA intended to do so at all), DIA decided not to file the suit as a result of a political compromise with Jack Leary, then-managing director of SEPTA. June 29, 2006 Tr. 31:23-25, 32:1-14. Counsel for DIA asserted that this arrangement was brokered by Frances Egan, who was Mr. Leary’s chief assistant. SEPTA Mot. Summ. J. Ex. 24, S. Gold Dep. 24:19-25. Counsel also asserted that DIA expected that installation of the elevator at City Hall Station would have at least commenced in or before 2002 and, when SEPTA continued to delay and put other projects ahead of making the City Hall station accessible, DIA then decided to pursue a legal, rather than a political, solution. June 29, 2006 Tr. 49:13-24, 50:19. Thus, DIA argues that the statutory period should be tolled.
In response, SEPTA notes that any claim related to such a proposed agreement was dismissed by stipulation of the parties, and that if Ms. Egan had brokered the purported deal, she lacked the authority to do so on behalf of SEPTA. June 29, 2006 Tr. 55:13-25 to 56:1-10.
The doctrine of equitable tolling serves to stop the running of the statute of limitations where the claim’s accrual date has already passed. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). In Oshiver, the Court of Appeals for the Third Circuit outlines three principal, though not exclusive, situations in which equitable tolling may be appropriate. Id. These include: (1) where the defendant has actively misled the plaintiff
39 Interestingly, and of some significance to the consideration of whether the dispute was earlier ripe for adjudication, counsel for DIA stated at oral argument that a purported deal at the time was a political compromise because “everyone knew that . . . I could have won that one [a suit relating to the 15th and Market Street stairway] hands down.” June 29, 2006 Tr. 50:5-6.
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respecting the plaintiff’s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. Id. (citations omitted). To the extent that DIA is attempting to make a tolling argument, it is the first of these three situations that might apply here.
In his deposition for this case, Mr. Gold, counsel for DIA, testified that during the planning stages of the renovations to the 15th and Market Street Courtyard, he believed that the City and SEPTA were concerned that DIA would seek an injunction to halt the project or at least delay its progress. SEPTA Mot. Summ. J. Ex. 24, S. Gold Dep. 14:14-20, 15:21-24. As a result, Mr. Gold attests that he negotiated with Ms. Egan, in her capacity as chief assistant to the managing director for SEPTA, throughout the early stages of the construction until SEPTA and DIA came to an oral agreement that in exchange for DIA not filing a suit, SEPTA would install an elevator in the City Hall Station that would be accessible to wheelchair users. Id. 20:1-7, 21:3-7.
This project was allegedly set to begin in the end of 2002 and be completed in 2004. Id. 17:8-20. Mr. Gold testified that the substance of this agreement evolved over the course of three meetings, after which Mr. Gold placed telephone calls to Ms. Egan and a City representative to inform them that DIA accepted the offer. Id. 19:10-25 to 20:1-7. Aside from the alleged conversations, there was no formalization of the agreement in writing, nor were there ever any plans drawn with specifications for the planned project as described by Mr. Gold. Id. 21:3-7; see also June 29, 2006 Tr. 34:14-17. Mr. Gold further testified that some time either in late 2002 or early 2003, which “might have even been after the ‘02 deadline,” he noted during a personal visit
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with Ms. Egan40 that construction on the project had yet to begin. SEPTA Mot. Summ. J. Ex. 24, S. Gold Dep. 21:11-13, 22:12-17, 23:11-13.
Before proceeding any further with this analysis, the Court notes that pursuant to the July 20, 2004 stipulation between the parties, DIA agreed that it would not present any claim that SEPTA allegedly committed to such an agreement, or any claim that SEPTA is liable for failing to abide by such an agreement. See Docket No. 36. The Court further notes that SEPTA included portions of Mr. Gold’s deposition transcript relating to the purported agreement in its summary judgment submissions, thereby including this material in the record before the Court. See SEPTA Mot. Summ. J. Ex. 24. These materials, along with DIA’s tolling argument, are only considered here to determine whether there is a question of fact as to whether DIA was “actively misled” into not pursuing its claim against SEPTA, and not as a claim by DIA that such an agreement existed. With that qualification and after considering the information outlined above, but quite apart from the issue of Ms. Egan’s authority, the Court concludes that DIA was not actively misled into not more timely pursuing its claim against SEPTA.
When DIA began negotiating its purported deal with SEPTA regarding renovations to the 15th and Market Street Courtyard, DIA was already aware that SEPTA had no plans to install an elevator at that site. In fact, this absence was the stated reason for the negotiations. Yet, as time wore on and the 2002 deadline, acknowledged by Mr. Gold himself, grew closer, DIA took no action either to formalize its agreement with SEPTA or to ask SEPTA for the physical plans and specifications for the project.
40At the time of this visit, Ms. Egan was reportedly gravely ill and was no longer working for SEPTA. Ms. Egan has subsequently passed away.
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The facts presented here are not similar to those in which courts have found that plaintiffs have been actively misled or lulled into non-pursuit of legal rights.41 To the contrary, DIA knew its opponent very well through prior negotiations and litigations. Under such circumstances, it is not reasonable to suggest that DIA would have been lulled by an oral promise made early in the process of construction, particularly where it knew even then that SEPTA and the City were actively trying to avoid a lawsuit regarding the project. From its lengthy history of interacting with SEPTA and the City, DIA surely appreciated the necessarily bureaucratic character of both and knew that neither could be described as engaging in undocumented undertakings that were not embraced at each level up the appropriate chain of command.
Because the facts do not support a finding that DIA was actively misled with respect to the 15th and Market Street Courtyard project, there is no basis to apply the doctrine of equitable tolling here. Moreover, because DIA’s claim with respect to the 15th and Market Street Courtyard project accrued in November of 2000 and equitable tolling does not apply, the Court finds that DIA’s claim, having been filed on March 14, 2003, is tardy. Therefore, summary judgment will be granted in favor of SEPTA with respect to this claim.
2. City Hall Courtyard Escalator In light of the case law discussed above, the Court must next consider whether DIA’s
41 As an example, the Oshiver court explained that active misleading may occur in an employment discrimination case where a defendant employer actively misled the plaintiff as to the reason for the plaintiff’s discharge. See Oshiver, 38 F.3d at 1387. In this case, DIA was fully aware that SEPTA did not plan to install an elevator at the 15th Street Courtyard site and that DIA could seek an injunction to stop the project while a court decided whether the renovation of that site amounted to an alteration that triggered an obligation under the ADA. See SEPTA Mot. Summ. J. Ex. 24, S. Gold Dep. 15:22-24. Thus, it would require an impermissible stretching of the facts to conclude that DIA was lulled into prejudicial complacency by SEPTA.
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claim with respect to the replacement of the escalator in the City Hall Courtyard is also barred by the statute of limitations. DIA sought leave to file its claim with respect to City Hall Courtyard escalator on January 14, 2005, and filed its Fourth Amended Complaint on February 15, 2005. See Docket Nos. 74 and 80. In its motion for leave to file a Fourth Amended Complaint, DIA asserted that it learned of the planned escalator replacement through the discovery process in this case. Docket No. 74, DIA’s Mot. For Leave to File Fourth Am. Compl. ¶ 7. However, the record reflects that information pertaining to SEPTA’s Escalator Replacement Project, which specified that the escalator in the southeast portion of the City Hall Courtyard would be replaced, was publicly available since early 2001. Absent from the record, however, is any indication that prior to January 14, 2005, when DIA sought leave to file its Fourth Amended Complaint, DIA voiced any concern or otherwise argued that the escalator replacement in the southwest corner of the City Hall Courtyard was an alteration that triggered an accessibility requirement under the ADA.
The record shows that SEPTA’s Escalator Replacement Program was listed in SEPTA’s publicly available capital budget in early 2001.42 See SEPTA Mot. Summ. J. Ex. 16 at SEPTA1992, SEPTA-2047. Nancy Salandra, the Executive Director of DIA, testified that she and other people at DIA regularly reviewed SEPTA’s capital budget when it was published each year.43
42 SEPTA’s capital budget for 2001 included a description of the “Escalator Replacement Program,” which stated that the escalator in the “City Hall Station (Southeast entrance)” would be replaced, and that construction was scheduled to start in the third quarter of 2000. SEPTA Mot. Summ. J. Ex. 16 at SEPTA-2047.
43 In her deposition, Ms. Salandra testified that she and “probably a couple of other people” at DIA reviewed SEPTA’s capital budget each year from 1996 through 2002. See SEPTA Mot. Summ. J. Ex. 28, N. Salandra Dep. 30:6 to 31:6. The transcript of Ms. Salandra’s deposition reads as follows:
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SEPTA Mot. Summ. J. Ex. 28, N. Salandra Dep. 30:16-23. Further, at least as early as August
17, 2001, a sign stating “Project of the Pennsylvania Public Transportation Assistance Fund;
Escalator Replacement at Erie, Spring Garden, City Hall & 30th Street Stations; Southeastern
Pennsylvania Transportation Authority” was posted in the City Hall Courtyard on the outside of
the boarded-off construction area where the escalator was being replaced.44 SEPTA Mot. Summ.
J. Ex. 36. Thus, as of August 17, 2001, DIA would have been aware not only that SEPTA had
budgeted and planned to replace the escalator in the southeast quadrant of the City Hall
Courtyard, but also that the project was underway.
The parties’ respective statements of facts in support of their respective motions and/or
Q: [Mr. Woehrle] When you say ‘96 to 2002, are you telling me that DIA each time each year a new capital budget came out that someone from DIA would review that capital budget?
A: [Ms. Salandra] Correct. Q: [Mr. Woehrle] Who would do that for DIA? A: [Ms. Salandra] It would be me and probably a couple of other people.
Id. 30:16-23. 44 The record contains some evidence that the signs were posted around the construction
site in the City Hall Courtyard as early as June 2001. In its Motion for Summary Judgment, SEPTA stated that on or about June 1, 2001, SEPTA contractors posted the aforementioned sign on the barriers that were erected around the southeast escalators. SEPTA Mot. Summ. J. ¶ 86. SEPTA cited to the testimony of, and a written affidavit from, Skip Brook, the Director of Engineering in the Bridges & Buildings section of the Infrastructure Department in the Operations Division of SEPTA. Id. Mr. Brook testified that barricades were erected around the escalator in the southeast corner of the City Hall Courtyard on or about June 1, 2001; Mr. Brook estimated that signs were posted on the barricades and that the construction project to replace the escalator began around that time. SEPTA Mot. Summ. J. Ex. 34, S. Brook Dep. 17:16-25, Sept. 1, 2005; SEPTA Mot. Summ. J. Ex. 35, S. Brook. Aff. ¶¶ 11-13. SEPTA also presented a photograph of the southeast corner of the City Hall Courtyard during the construction project, which displays the sign noted above. SEPTA Mot. Summ. J. Ex. 36. The photograph is dated August 17, 2001. Id. Mr. Brook stated that the sign was displayed until the construction project was completed. SEPTA Mot. Summ. J. Ex. 35, S. Brook Aff. ¶ 13. This construction project was completed in August 2003. DIA Statement of Facts, SEPTA Resp. ¶¶ 77.
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their oppositions to each others’ do not address the issue of when DIA actually knew about SEPTA’s plan to replace the escalator in the southeast quadrant of the City Hall Courtyard. However, the Court notes that even if DIA had failed to notice the references to the planned escalator replacement in SEPTA’s Fiscal Year 2001 Capital Budget, which the Executive Director of DIA claims to have read, or for some reason believed that the project might not occur, DIA and the public in general certainly had notice of the project beginning in June 2001, or at least by August 17, 2001, when physical barricades were placed around the escalator with a sign indicating that the work was part of the Escalator Replacement Project. Yet DIA did not file a claim regarding this escalator replacement until January of 2005, approximately three and onehalf years later. Because this time frame exceeds the two years within which DIA had to file a claim under the ADA, the Court concludes that this claim is also barred by the statute of limitations and summary judgment will be entered in favor of SEPTA on that basis with respect to this claim.
C. Count II: Key Station Designation In the second count of its Fourth Amended Complaint, DIA asserts that SEPTA has not complied with the ADA and the RHA because the City Hall and 15th Street transit stations for the Broad Street Subway and Market-Frankford Elevated Subway lines are subject to the “key station” requirements of the ADA, and are not accessible to individuals in wheelchairs. The root of the parties’ dispute relating to the designation of certain stations as “key stations” lies in the EPVA Settlement Agreement, which was executed on June 28, 198945 – one year before the
45 The suit which gave rise to the EVPA Settlement Agreement was brought pursuant to the RHA. The RHA precludes discrimination against disabled individuals. 29 U.S.C. § 794.
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enactment of the ADA. As discussed above, the EPVA Settlement Agreement resolved a lawsuit between EPVA, as representatives for a class of disabled individuals, and SEPTA and the City of Philadelphia. As part of the EPVA Settlement Agreement, the parties designated “certain key stations” that would be renovated and made accessible to individuals with disabilities. See SEPTA Mot. Summ. J. Ex. 2 at SEPTA-3372 to SEPTA-3375. This list of stations did not include the City Hall or 15th and Market Street transit stations. Id. Congress enacted the ADA in 1990. The ADA and regulations promulgated to implement the ADA required that each “public entity”46 make key stations accessible to individuals with disabilities according to a time frame specified therein. 42 U.S.C. § 12147; 29 C.F.R. § 37.47. An additional regulation provided that the list of key stations in EPVA Settlement Agreement was “deemed to be in compliance with” the ADA’s key station requirements. 29 C.F.R. § 37.53(a). Since the time the EPVA Settlement Agreement was executed in 1989, and the regulations pursuant to the ADA were promulgated in 1991, SEPTA has made 31 of the 35 key stations listed in the EPVA Settlement Agreement accessible to individuals with disabilities, including individuals who use wheelchairs. SEPTA Mot. Summ. J. Ex. 17, C. Lister Aff. ¶ 3. SEPTA has not made the City Hall or the 15th and Market Street stations accessible to individuals with disabilities, including individuals who use wheelchairs.
Both parties now before the Court present a multi-pronged argument with respect to the key station issue. SEPTA first claims that the ADA does not provide a private cause of action to enforce the specific regulations at issue in this case. Thus, SEPTA argues, summary judgment
46 The term “public entity” includes “any State or local government” as well as any “department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(A)-(B). SEPTA does not dispute that it is a public entity.
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should be granted in its favor with respect to Count II of DIA’s Fourth Amended Complaint. 1. Private Cause of Action Regarding Key Station Designation
SEPTA argues that summary judgment in its favor is appropriate with respect to Count II of DIA’s Fourth Amended Complaint because the ADA47 does not confer a right to bring a private cause of action with respect to the designation of key stations or with respect to requiring completion of any station by a specific date. SEPTA Br. Supp. 14 (emphasis added). That is, although SEPTA acknowledges that an individual has a right to sue under the ADA to redress discrimination, SEPTA argues that there is no private right of action to force a transit agency to designate a certain transit station as a “key station.” That decision, SEPTA argues, lies “solely” within the discretion of the transit agency. SEPTA Br. Supp. 15; see also June 29, 2006 Tr. 58:12-22.
In support of this argument, SEPTA relies on the standard set forth by the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001). In Sandoval, a non-English speaking citizen of Alabama asserted that the state’s official policy of administering its driver’s license examination only in English violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. Sandoval, 532 U.S. at 279. Sections 601 and 602 were considered to be the relevant portions of
47 SEPTA argues that there is no private cause of action with respect to the designation of key stations because “the relevant statute and regulations do not provide a private cause of action with respect to key station designations.” SEPTA Br. Supp. 14. While SEPTA does not expressly state that the ADA is the “relevant statute” with respect to this claim, all statutory references within this portion of SEPTA’s Brief in Support of its Motion for Summary Judgment refer to the ADA. Thus, the Court assumes that this argument attacks DIA’s right to pursue a personal cause of action under the ADA. However, since DIA’s Fourth Amended Complaint alleges that SEPTA’s failure to make these transit stations accessible violates both the ADA and the RHA, the Court will consider whether a private right of action exists under either of these statutes. See Docket No. 80.
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the statute. Id. at 278. Section 601 provides that “[n]o person . . . shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity” covered by Title VI. 42 U.S.C. § 2000d. Section 602 authorizes federal agencies to effectuate the provisions of Section 601 by “issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d-1.
In Sandoval, the Supreme Court noted that only Congress may create a private right to enforce a federal statute and that “[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. The Supreme Court acknowledged that Section 601 of Title VI contained “rights creating” language–“[n]o person . . . shall . . . be subjected to discrimination”–that provided a private cause of action. Id. at 288 (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 690 (1979)). In doing so, the Supreme Court noted that Section 601 prohibits only intentional discrimination.48 Id. at 280. Thus, any regulations that prohibit disparate-impact discrimination must have been enacted pursuant to Section 602. Id. at 281-82. The Supreme Court concluded that such “rights creating” language was absent from Section 602. Id. at 289. The Supreme Court noted that Section 602 was phrased as a “directive” to the
48 In framing its opinion in Sandoval, the Supreme Court identified three aspects of the case that “must be taken as given.” Sandoval, 532 U.S. at 279. First, private individuals may sue to enforce Section 601 of Title VI. Id. Second, Section 601 prohibits only intentional discrimination. Id. at 280. Third, the Court assumed of purposes of deciding the case that regulations promulgated under Section 602 may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under Section 601. Id. at 281. Respondents in Sandoval asserted that there is a private right of action to enforce the disparate-impact regulations promulgated under Section 602. The Supreme Court noted that no case that it has considered has held that a private right of action to enforce disparate-impact regulations exists. Id. at 284.
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government agency implementing the statute, and limits those agencies to effectuating rights already created by Section 601. Id. Further, the Supreme Court found that Section 602 was even further removed from creating a right as it “focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating.” Id. Thus, Section 602 did not confer a private right to sue for claims of discrimination alleging a disparate impact. Id.
Since Sandoval, the Court of Appeals for the Third Circuit has concluded that where a statute does not expressly confer an individual right, “the statutory creation of a personal right49 is a predicate to finding an implied right of action in a statute.” Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Auth. of Pittsburgh, 382 F.3d 412, 424 (3d Cir. 2004). There are no postSandoval cases within or outside the Third Circuit addressing whether the particular language of 42 U.S.C. § 12147 and 49 C.F.R. § 34.47 may be construed to confer a personal right allowing an individual to bring a private suit to enforce the identification of a particular key station under the ADA. Thus, under the guidance of Sandoval and its progeny, the Court must consider whether Congress intended to establish such a personal right in enacting the “key station” provisions of the ADA.
Most recently, in Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004), as well as in Three Rivers Center, our Court of Appeals considered whether statutory language imposed a personal right. In Sabree the court considered whether the federal Medicaid statute that requires states to
49 In Three Rivers Center the court noted that “personal right” is a precise term, defined as rights that “inhere in the individual,” are “individually focused” and create “individual entitlements.” 382 F.3d at 419. Use of the term “personal rights,” “maintain[s] the demarcation between ‘personal rights’ and ‘private rights of action.’” Id. at 419 n.9.
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provide medical assistance (including intermediate care facility services) to persons with mental
retardation with “reasonable promptness,” unambiguously conferred a private right upon mentally retarded recipients of such services to enforce the statute by means of Section 1983.50
Id. at 189. In examining the issue, the Sabree court set forth a three-part analysis which included
considering (1) the essential characteristics of “an unambiguously conferred right,” (2) whether
the statutory language imparts such a right; and (3) whether Congress has precluded individual enforcement of the right, if the court concludes that such a right exists.51 Sabree, 367 F.3d at
183.
To determine the characteristics of an “unambiguously conferred right,” the Sabree court
examined the Supreme Court’s previously issued opinions assessing the existence of such a right,
which opinions emphasized that to confer a private right, a statute must include “rights-creating
language.” Id. at 187 (quoting Gonzaga, 536 U.S. at 287). Such language must clearly impart an
“individual entitlement” with an “unmistakable focus on the benefitted class.” Id. (quoting
50 Section 1983 imposes liability on anyone who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The Court notes at the outset of this inquiry, that the inquiry in Sabree was whether the plaintiff had a private right of action to enforce a claim under Section 1983. As our Court of Appeals in Three Rivers Center noted, a court may recognize a private right of action in one or both of two ways: first, a court may interpret the statute to provide for an implied right of action; second, Section 1983 may provide a private right of action. 382 F.3d at 421. As the Court of Appeals explained, these are “separate yet overlapping inquiries.” Id. DIA’s Fourth Amended Complaint contains the phrase “Plaintiff’s claims are authorized under 42 U.S.C. § 1983.” Docket No. 80 at ¶ 4. DIA argues that under Gonzaga University v. Doe, 536 U.S. 273 (2002), if persons with disabilities suffer from discrimination in violation of the ADA and Section 504, they have a private right to enforce a constitutional violation under Section 1983. DIA Mem. Opp’n 8.
51 The third part of the analysis enunciated in Sabree only applies to claims alleged under Section 1983.
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Blessing v. Freestone, 520 U.S. 329, 343 (1997); Cannon v. Univ. of Chicago, 441 U.S. 677,
690-93 (1979)). The court then looked to the text and structure of the Medicaid Act to discern
whether such a right was unambiguously created. The Medicaid Act stated that “[a] State plan
for medical assistance must . . . provide for making medical assistance available ... to all
[eligible] individuals” and that “such assistance shall be furnished with reasonable promptness to
all eligible individuals . . . .” 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10) (emphasis added); see also Sabree, 367 F.3d at 182 n.4, 189. The Sabree court applied the three-pronged Blessing test52 and
concluded that the statutory requirement that a state “must provide” medical assistance services
with reasonable promptness met all three prongs of the test because (1) the plaintiffs were the
intended beneficiaries of the statute, (2) the rights the plaintiffs sought to enforce were specific
and enumerated and (3) the obligation imposed upon the states was unambiguous and binding.
Sabree, 367 F.3d at 189.
52 The plaintiffs in Blessing were five mothers in Arizona whose children were eligible to receive child support services from the state pursuant to Title IV-D of the Social Security Act. Blessing, 520 U.S. at 332. The mothers filed suit pursuant to 42 U.S.C. § 1983 claiming that they had an enforceable individual right to have the state’s program achieve “substantial compliance” with the requirements of the statute, which provided that in order to qualify for funds under the Aid to Families with Dependent Children Act, a state must certify that it would operate a child support enforcement program that conforms with the requirements set forth in the Social Security Act. Id. at 333.
The Blessing Court set forth the three-pronged test to determine whether a statute confers a federal right upon an individual, including whether (1) Congress intended that the provision in question benefit the plaintiff; (2) the right asserted to be protected is so “vague and amorphous” that its enforcement would strain judicial competence; and (3) the statute unambiguously imposes a binding obligation on the states. Id. at 340-41. Where a plaintiff successfully establishes these requirements, a rebuttable presumption of the existence of a right is established; however, such a claim could still be dismissed if, after inquiry with respect to congressional intent, a court concluded that Congress “specifically foreclosed a remedy under § 1983.” Id. at 341 (quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984)).
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Having satisfied the Blessing elements, the court then added that under Gonzaga53 a
further examination was required to ensure that the unambiguous rights asserted were conferred
upon the plaintiffs, and not that plaintiffs merely fell within a “general zone of interest that the
statute is intended to protect.” Sabree, 367 F.2d at 189-90. Noting that the statutory requirement
that a state plan “must provide” services exemplified “rights-creating” language, the court found
that the statutory language was “mandatory rather than precatory.” Id. at 190. Furthermore, the
court noted, the relevant provisions enumerated that such entitlements be made available to “all
eligible individuals,” and, therefore, did not focus on the “entity regulated rather than the
individuals protected.” Id. The Sabree court then concluded that the plain meaning of the
statutory text clearly delineated rights that were both unambiguous and personal in nature, such
that personal rights were indeed intended and that plaintiffs had stated valid and enforceable
claims.54 Id. at 194.
53 The plaintiff in Gonzaga was a former university student who claimed, pursuant to 42 U.S.C. § 1983, that his individual rights conferred by the Family Educational Rights and Privacy Act (“FERPA”) were violated when a university official disclosed the plaintiff’s name to a state teaching certification agency regarding unverified allegations of sexual misconduct that were made against the student. Gonzaga, 536 U.S. at 278. FERPA is a statute that was enacted pursuant to the spending power of Congress and conditioned the receipt of federal funds on certain requirements relating to the access and disclosure of student educational records. Id. The text of FERPA provided that “[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . .) of students without the written consent of their parents to any individual, agency or organization.” Id. In finding that the statute did not confer an individual right, the Supreme Court clarified the test set forth in Blessing, stating that “we now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action under § 1983.” Gonzaga, 536 U.S. at 283.
54 The Sabree court finally considered whether the presumption of the availability of Section 1983 as a vehicle for suit was rebutted either expressly or by the existence of a comprehensive remedial scheme that was designed to preclude individual suits. 367 F.2d at 193.
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In Three Rivers Center, by contrast, the Court of Appeals considered whether Section 504 of the RHA provided a private right of action to enforce regulations promulgated by the Department of Housing and Urban Development (“HUD”) to implement the RHA, and held that no private right exists. 382 F.3d at 431. Plaintiffs in Three Rivers Center sought relief in district court to force the Housing Authority of Pittsburgh to comply with HUD regulations to effect certain reforms to provide accessible public housing to individuals with disabilities. Id. at 415.
The court began its inquiry by stating three general propositions. Id. at 419. First, “Congress may effect its legislative goals by various means.” Id. Second, “Congress can create various types of rights and obligations,” which include personal rights and non-personal rights. Personal rights, the court explained, “inhere in the individual,” are “individually focused,” and “create ‘individual entitlements.’”55 Id. (citations omitted). Non-personal rights, on the other hand, may have a “‘systemwide’ or ‘aggregate’ focus,” and are “defined in terms of obligations of the person or entity regulated rather than in terms of entitlements of the individual protected.” Id. (citations omitted). Third, the court stated, “even when Congress creates rights or obligations (including personal rights), it does not necessarily follow that private parties can enforce them or obtain a direct remedy through the judicial process.” Id. at 420.
After noting that there was no explicit provision excluding individual actions, the court noted that the state faced a “substantial burden” to demonstrate that there was a “comprehensive remedial scheme” which would supplant any remedies provided under Section 1983. Finding that the remedial scheme associated with the Medicaid Act “clearly falls short” of being sufficiently comprehensive, the Sabree court concluded that the plaintiffs had stated valid and enforceable claims. Id. at 194.
55 The court noted that “[p]ersonal rights are those intentionally and ‘unambiguously conferred’ through ‘rights-creating’ language.” Three Rivers Ctr., 382 F.3d at 419-20 (quoting Gonzaga, 536 U.S. at 283-84).
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If a statute does not contain provisions addressing either whether private parties may maintain a right of action or the scope of such right of action, a court may recognize a private right of action by finding that an implied right of action exists and/or that Section 1983 provides a private right of action. Id. at 421. The court noted that Congressional intent in enacting a statute is the “focal point” in determining whether an implied right of action exists, and that Cort v. Ash, 422 U.S. 66 (1975), guides a court’s review in discerning that intent.56 Id. (citations omitted).
The court noted that to determine whether the plaintiffs had a private right of action under the RHA to enforce the HUD regulations at issue, the court must first “examine the scope of the private right of action that exists to enforce Section 504” of the RHA and second, “examine Section 504 and the pertinent HUD regulations to determine whether the HUD regulations construe any personal right that Section 504 creates.” Id. at 425. The court found
56 In Cort v. Ash, the Supreme Court identified four factors that should be considered in discerning Congress’s intent in enacting a statute, which are:
First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,”--that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? [Fourth,] is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Three Rivers Ctr., 382 F.3d at 421 (quoting Cort, 422 U.S. at 78). For an implied right of action to exist, “a statute must manifest Congress’s intent to create (1) a personal right, and (2) a private remedy.” Id.
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that plaintiffs could bring suit to enforce only personal rights that Section 504 creates,57 and that while the HUD regulations at issue may construe rights that Section 504 creates, the HUD regulations “do not construe personal rights that Section 504 creates.” Id. Therefore, the court held that Section 504 of the RHA does not provide a private right of action to enforce the particular HUD regulations at issue in that case. Id.
SEPTA argues that applying the reasoning set forth in Sandoval, the ADA does not confer a private right of action because the statute contains no “rights creating” language with respect to the identification or designation of key stations. SEPTA Br. Supp. 15, SEPTA Reply Br. 5. More specifically, SEPTA asserts that the regulations promulgated to enforce the key station portion of the ADA confer “sole discretion for the designation of key stations” upon transit operators. SEPTA Reply Br. 5; see also SEPTA Br. Supp. 15.
In response, DIA argues that Congress intended a private cause of action to arise from the ADA, and that the identification of a key station, which requires involvement of the affected community, supports such an assertion. DIA Mem. Opp’n 6-9. DIA calls to the Court’s attention two cases cited by the Supreme Court in Sandoval in which Section 504 of the RHA, one of the statutes implicated in this action, was found to confer a private right of action. See School Bd. of
57 The court noted that Section 504’s right of action derives from the implied right of action that exists to enforce Title VI of the Civil Rights Act of 1964. Three Rivers Ctr., 382 F.3d at 426. Further, the remedies available to redress violations of Section 504 are coextensive with the remedies available under Title VI. Id. (citing Barnes v. Gorman, 536 U.S. 181, 185(2002)). Because Sandoval “mandates that an implied right of action can exist only where Congress creates a personal right, a plaintiff can enforce only personal rights through an implied right of action.” Id. Since the remedies (including the scope the any implied right of action) available under Section 504 are coextensive with those available under Title VI, the court held that plaintiffs can only bring suit to enforce personal rights that Section 504 creates and further, that plaintiffs may enforce the HUD regulations only if the regulations construe and define a personal right that Section 504 creates. Id.
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Nassau Cty v. Arline, 480 U.S. 273 (1987) (presenting implicit assumption that cause of action brought by individual pursuant to Section 504 was valid); Alexander v. Choate, 469 U.S. 287 (1985) (allowing cause of action asserting disparate impact under Section 504). Because the Supreme Court has found disparate impact claims brought under the RHA to be privately enforceable, DIA argues that the claims here, brought pursuant to Sections 12132 and 12147 of the ADA, 42 U.S.C. §§ 12132, 12147 and Section 504 of the RHA., 29 U.S.C. § 794, are valid.58 Because DIA argues that a personal right to enforce key station identification arises under both the RHA and the ADA, the Court must consider each statute separately.
a. Section 504 of the RHA Section 504 of the RHA, 29 U.S.C. § 794, is “commonly referred to as the ‘civil rights bill of the disabled.’” Three Rivers Ctr., 382 F.3d at 416 (quoting Ams. Disabled for Accessible Pub. Transp. v. Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989) (en banc)). Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” Section 504 does not, by its terms, explicitly provide for a private right of action. However, the Supreme Court has acknowledged that a private right to enforce Section 504 of the RHA exists. Barnes v. Gorman, 536 U.S. at 185-86.59 Furthermore, numerous courts within the Third Circuit, including
58 DIA also argues that under Gonzaga, if persons with disabilities suffer from discrimination in violation of the ADA and Section 504, they have a private right to enforce a constitutional violation under Section 1983. DIA Mem. Opp’n 8.
59 In Barnes, a paraplegic man suffered serious injuries when he was arrested and subsequently brought suit against various police officials and personnel for discrimination on the basis of his disability in violation of Section 202 of the ADA, 42 U.S.C. § 12132, and Section
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the Court of Appeals, have consistently held that Section 504 of the RHA implicitly provides a
private right of action.”60
504 of the RHA, 29 U.S.C. § 794. In this case, the Supreme Court did not dispute whether a private right of action existed to enforce both statutes; rather, the majority’s opinion acknowledged that such private right exists. Barnes, 536 U.S. at 185-86. The Supreme Court addressed the issue of whether punitive damages were available under each statute, and held that punitive damages may not be awarded in private actions against municipalities under Section 202 of the ADA and Section 504 of the RHA. Id. at 189.
60
See, e.g. Three Rivers Ctr., 382 F.3d at 425 (holding that, although section 504 of the RHA provides a private right of action, it did not provide a private right of action to enforce the particular HUD regulations at issue); Bowers v. NCAA, 346 F.3d 402, 433 (3d Cir. 2003) (acknowledging that an implied right of action exists under Section 504 of the RHA and Section 12132 of the ADA but holding that no implied right of contribution exists under either statute); NAACP v. Medical Center, Inc., 599 F.2d 1247, 1259 (3d Cir. 1979) (holding that a private cause of action is implicit in Section 504 of the RHA for plaintiffs who seek declaratory and injunctive relief); Doe v. Colautti, 454 F. Supp. 621, 626 (E.D. Pa. 1978) (“It is now well-settled that a handicapped individual has an implied private right of action under [Section 504 of the RHA].”), aff’d, 592 F.2d 704 (3d Cir. 1979); Davis v. Bucher, 451 F. Supp. 791, 798 (E.D. Pa. 1978) (holding that Section 504 of the RHA implicitly provides a private cause of action); Di Medio v. Girard Bank, 1987 U.S. Dist. LEXIS 2941 at *5 (E.D. Pa. 1987) (noting that a claimant under Section 504 of the RHA has a private cause of action against a recipient of federal financial assistance).
In Three Rivers Center, the Court of Appeals concluded that an implied right to enforce Section 504 of the RHA exists. 382 F.3d at 425. The Court of Appeals noted that amendments to the RHA compel the conclusion that a private right of action exists. Id. In 1978, Congress added Section 505(a)(2), which states that
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 504 of this Act [29 U.S.C. § 794]. 29 U.S.C. § 794a(a)(2). By incorporating Title VI’s “remedies, procedures and rights” into the RHA, the Court of Appeals noted that Congress essentially provided a private right of action under Section 504. Three Rivers Ctr., 382 F.3d at 425-26. Second, the Court of Appeals noted that Congress confirmed that a private right of action exists to enforce Section 504 when it ratified the Supreme Court’s decision in Cannon v. University of Chicago. Id. at 426. In Cannon, the Supreme Court held that a private right of action exists to enforce Title IX of the Education Amendments of 1972 because Title IX was modeled after Title VI, and when Title IX was enacted, Title VI had already been construed as creating a private right of action. Id. Since
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Applying the Supreme Court’s analysis from Alexander v. Sandoval, it is clear that Section 504 contains the “rights-creating” language–“[n]o otherwise qualified individual with a disability . . . shall . . . be subjected to discrimination”–that the Supreme Court held was paramount to finding (or not finding) a private right of action. See, e.g. Gonzaga, 536 U.S. at 287 (finding that provisions of the Family Educational Rights and Privacy Act of 1974 speak only to the Secretary of Education, directing that “no funds shall be made available” to any “educational agency or institution” which has a prohibited “policy or practice,” and lack “rightcreating” language); Sandoval, 532 U.S. at 288 (finding that the language of Section 601 of Title VI stating that “each Federal department and agency . . . is authorized and directed to effectuate the provisions of [§ 601],” did not constitute “right-creating” language); see also Cannon, 442 U.S. at 690 n.13 (noting that the “right- or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action”).
b. Section 12132 of the ADA Section 12132 of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. This provision was modeled after Section 504 of the RHA and, like Section 504, clearly includes the requisite “rights-creating” language.61 The Supreme Court has
Section 504 was also patterned on Title VI, Section 504 may also be construed as implying a private remedy. Congress subsequently enacted Section 1003 of the Rehabilitation Act Amendments of 1986, 42 U.S.C. § 2000d-7, which the Supreme Court has interpreted as validating the holding in Canon. Id. (citations omitted).
61 Section 12133 of the ADA states: “The remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of 1973 [29 U.S.C. 794a] shall be the remedies, procedures,
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acknowledged that a private right of action exists under Section 12132 of the ADA. Barnes, 536 U.S. at 185-86. The Court of Appeals for the Third Circuit has also acknowledged that a private that a private right of action exists under Section 12132 of the ADA. Bowers v. NCAA, 346 F.3d 402, 433 (3d Cir. 2003) (acknowledging that an implied right of action exists under Section 12132 of the ADA and Section 504 of the RHA but that no implied right of contribution exists under either statute).
c. Section 12147 of the ADA Section 12147(b) is the main “key station” provision of the ADA that applies to rapid rail and light rail transit systems.62 This section states that For purposes of section 12132 of this title [42 U.S.C. § 12132] and section 794 of Title 29 [29 U.S.C. § 794], it shall be considered discrimination for a public entity that provides designated public transportation to fail, in accordance with the provisions of this subsection, to make key stations (as determined under criteria established by the Secretary [of the Department of Transportation] by regulation) in rapid rail and light rail systems readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. 42 U.S.C. § 12147(b). By making specific references to Section 12132 of the ADA and Section 794 of the RHA, Section 12147 encompasses the anti-discrimination provisions of both statutes and provides that a violation of Section 12147– the “fail[ure] . . . to make key stations . . . accessible to and usable by individuals with disabilities”– “shall be considered discrimination” under both Section 12132 of the ADA and Section 504 of the RHA. The Court of Appeals for the Third Circuit has not determined whether Section 12147 itself implies a private cause of
and rights this title provides to any person alleging discrimination on the basis of disability in violation of section 202 [42 U.S.C. § 12132].” 42 U.S.C. § 12133.
62 See also 42 U.S.C. § 12162(e)(A)(i) (containing similar “key station” requirements for intercity and commuter rail transportation systems).
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action.63
While Section 12147 provides that failure of the public entity to make key stations
accessible constitutes discrimination, this provision on its own, does not specify which stations
on a transit system are considered to be “key stations.” It only provides that key stations are
those “determined under criteria established by the Secretary [of the Department of
Transportation] by regulation.” 42 U.S.C. § 12147(b). The regulations promulgated to
implement the ADA, and not the ADA itself, define the process for identifying key stations.
63 Few courts have considered whether a cause of action brought under Section 12147 of the ADA may proceed. In Cupolo v. Bay Area Rapid Transit (BART), 5 F. Supp. 2d 1078 (N.D.C.A. 1997), the District Court for the Northern District of California considered whether BART’s failure to adequately maintain elevators at “key stations” on BART’s system violated Sections 12132 and 12147 of the ADA. Although the court did not specifically address the issue of whether Sections 12132 and 12147 of the ADA confer a private right of action, the court preliminarily enjoined BART to improve maintenance of elevators at its key stations because failure to make key stations in rapid rail and light rail systems readily accessible to individuals with disabilities, including individuals who use wheelchairs, constitutes discrimination under 42 U.S.C. §§ 12132 and 12147(b)(1). Id. at 1086.
In Hassan v. Slater, 41 F. Supp. 2d 343, 351 (E.D.N.Y. 1999), the District Court for the Eastern District of New York considered whether the Metropolitan Transportation Administration’s (“MTA”) decision to close a certain station on its system constituted discrimination against an individual on the basis of his disability. Although not addressing the issue of whether a private cause of action exists under Section 12147, as part of its decision, the court briefly considered whether the failure to designate a certain station as a “key station” violated the ADA. The court stated that
[B]ased on the record currently before it, the Court cannot conclude that the selection of the key stations, or the exclusion of Center Moriches from designation as a key station, was violative of the ADA. It does not appear that the ADA requires the MTA defendants to keep all of its stations open, or even to make all of its stations fully accessible to people with disabilities. Rather, the ADA only requires that they make new stations and its designated key stations readily accessible to and usable by people with disabilities.
Id. (citing 42 U.S.C. § 12162(e)(2)). In Hassan, the court determined that the plaintiff had not met the burden required for the court to grant a preliminary injunction, in that he could not prove that defendants discriminated against him on the basis of his disability. Id.
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Specifically, 49 C.F.R. § 37.47, provides that “[E]ach public entity shall determine which stations on its system are key stations.” 49 C.F.R. § 37.47(b). Thus, for the Court to hold that a private cause of action exists in this case, the Court must find that not only that Section 12147 of the ADA confers a private right of action, but also that it specifically confers a private right of action to enforce the particular regulation at issue, namely, 49 C.F.R. § 37.47.
Following the Court of Appeal’s Sabree analysis, the Court must assess whether the statutory language of Section 12147 of the ADA imparts an “unambiguously conferred right.” 367 F.3d at 183. The Court’s inquiry into the statutory construction of Section 12147 begins by examining the statute itself. Sabree, 367 F.3d at 189 (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Section 12147 states that
For purposes of section 12132 of this title [42 U.S.C. § 12132] and section 794 of Title 29 [29 U.S.C. § 794], it shall be considered discrimination for a public entity that provides designated public transportation to fail, in accordance with the provisions of this subsection, to make key stations (as determined under criteria established by the Secretary [of the Department of Transportation] by regulation) in rapid rail and light rail systems readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. The text of this statute clearly provides that a public entity’s failure to make key stations accessible to individuals with disabilities constitutes discrimination. Thus, Section 12147 creates law, binding on the public entity charged with carrying out such laws–in this case, SEPTA–to make key stations accessible to individuals with disabilities.64 Neither DIA nor SEPTA disputes this contention.65 However, the pertinent question is whether this provision creates an
64 See Sabree, 367 F.3d at 189. 65 Rather, DIA and SEPTA dispute the meaning of the phrase “key station (as determined under criteria established by the Secretary by regulation),” contained in Section 12147, and whether the designation of certain stations as “key stations” applies to only those stations
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unambiguously conferred right. Sabree, 367 F.3d at 189. First, the Court must determine that Section 12147 passes the “Blessing” test. Sabree,
367 F.3d at 189; Blessing, 520 U.S. at 340-41. The Court concludes that Section 12147 passes the Blessing test: first, because DIA, which represents a class of individuals with disabilities, including individuals who use wheelchairs, is among the intended beneficiaries of Section 12147; second, the rights DIA seeks to enforce – the right to compel SEPTA to make “key stations” accessible – are specific and enumerated; and third, the obligations imposed on the public entity – the obligation to make “key stations” accessible to individuals with disabilities, including individuals who use wheelchairs – are unambiguous and binding. See Sabree, 367 F.3d at 189 (quoting Blessing, 520 U.S. at 340-41).
Next, the Court must determine whether Congress used “rights-creating” language. Sabree, 367 F.3d at 189. To confer rights, Congress must use “rights-creating” language that is “individually focused,” and that imparts an individual entitlement. Sabree, 367 F.3d at 187 (quoting Gonzaga, 536 U.S. at 287). As noted above, Section 12147(b) of the ADA states that, for purposes of Section 12132 of the ADA and Section 504 of the RHA, “it shall be considered discrimination for a public entity that provides designated public transportation to fail . . . to make key stations . . . readily accessible to and usable by individuals with disabilities, including
designated as such in the EPVA Settlement Agreement or whether additional stations must be designated as “key stations” (and thus, made accessible) if they fit the criteria prescribed in 49 C.F.R. § 37.47(b). As discussed here, the Court believes that this dispute is grounded in the interaction between two separate regulations promulgated pursuant to the ADA, specifically 49 C.F.R. § 37.47 (which contains the criteria for determining which stations are “key”) and 49 C.F.R. § 37.53 (which exempts SEPTA from the requirements of 49 C.F.R. § 37.47 by virtue of its participation in the EPVA Settlement Agreement). As such, that this point is disputed has no bearing on whether Section 12147 of the ADA is “clear and unambiguous.” Sabree, 367 F.3d at 189.
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individuals who use wheelchairs.” 42 U.S.C. § 12147(b) (emphasis added). The language of Section 12147 differs slightly from the language of certain other statutes that courts have found to imply a private right of action in that it does not include the more familiar “no person shall” language.66 Section 12147 is framed in terms of a specific action that the public entity must not fail to do – i.e., make key stations accessible – lest such action constitute discrimination against certain individuals. As in Sabree, this Court finds that, as a linguistic matter, it is difficult to distinguish the “no person shall” language from the “it shall be considered discrimination” language of Section 12147. Sabree, 367 F.3d at 190. Both of these linguistic formulations constitute “rights-creating” language. Next, it is clear that the “rights-creating” language of Section 12147 is “individually focused.” Although it may seem that Section 12147 focuses on “the [entity] . . . regulated rather than the individuals protected,” Sandoval, 532 U.S. at 289, in that Section 12147 is framed in terms of what actions a public entity must not fail to do, the Court finds that this linguistic difference is not determinative in this case. In Sabree, the relevant Title XIX language was framed in terms of what a state must do– “A State plan must provide”–and our Court of Appeals held that this language was individually focused because the relevant Title XIX provisions enumerated certain entitlements available to “all eligible individuals.” Sabree, 367 F.3d at 190 (quoting 42 U.S.C. § 1396a(a)(8)). Section 12147 clearly
66 See, e.g., 42 U.S.C. § 2000d (“No person in the United States shall . . . be subjected to discrimination under any program or activity receiving Federal financial assistance” on the basis of race, color, or national origin.); 20 U.S.C. § 1681(a) (“No person in the United State shall, on the basis of sex . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance.”); 29 U.S.C. § 794 (“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”).
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“confers rights on a particular class of persons,” California v. Sierra Club, 451 U.S. 287, 294
(1981), and specifically states which class of persons: “individuals with disabilities, including individuals who use wheelchairs.”67 For the reasons stated above, the Court finds that Section
12147 contains the requisite “rights-creating” language.
The court in Sabree then followed the Gonzaga analysis in examining the structure of the statute.68 The structure of the ADA clearly supports the existence of a private right. Beginning
with Section 12101, Congress expressed its findings that, for example, “some 43,000 Americans
have one or more physical or mental disabilities,” 42 U.S.C. § 12101(a)(1), and that “historically,
society has tended to isolate and segregate individuals with disabilities,” 42 U.S.C. §
12101(a)(2). The stated congressional purpose in enacting the ADA was:
(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities. 42 U.S.C. § 12101(b).69 Section 12132 of the ADA, discussed above, precludes discrimination
67 See Sabree, 367 F.3d at 188 n.17 (noting that the express purpose of the inquiry whether a statute confers any right at all, is to “determine whether or not a statute ‘confers rights on a particular class of persons’” (quoting Gonzaga, 536 U.S. at 285 (quoting California v. Sierra Club, 451 U.S. at 294))).
68 See Sabree, 367 F.3d at 191 (“Our judicial function is limited to recognizing those rights which Congress ‘unambiguously confers,’ and in doing so we would be remiss if we did not consider the whole of Congress’s voice on the matter–the statute in its entirety.”).
69 See also Bowers v. NCAA, 346 F.3d 402, 433 (3d Cir. 2003) (quoting same). Our Court of Appeals in Bowers v. NCAA examined the structure of the ADA and explained that:
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via exclusion of disabled individuals from participation in, or denial to such individuals the benefits of the services, programs, or activities of a public entity. 42 U.S.C. § 12132. As noted above, Section 12132 consistently has been held to provide an implied private right of action to enforce anti-discrimination provisions of the ADA. Section 12133 of the ADA provides the remedies, procedures and rights “to any person alleging discrimination on the basis of disability in violation of [42 U.S.C. § 12132].” 42 U.S.C. § 12133 (emphasis added). With respect to new transit facilities, Section 12146 provides that “it shall be discrimination for a public entity to construct a new facility to be used in the provision of designated public transportation services unless such facility is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” 42 U.S.C. § 12146. Almost identical language defining action on the part of a public entity that constitutes discrimination is used in the first part of Section 12147, see 42 U.S.C. § 12147(a), the second part of Section 12147, which is the language at issue in this case pertaining to “key stations” in rapid or light rail systems, see 42 U.S.C. § 12147(b), Section 12148, which pertains to the failure to operate a transportation program, see 42 U.S.C. § 12148, and Section 12162, which pertains to intercity and commuter rail actions considered discriminatory, see 42 U.S.C. § 12162.
Title I of the ADA prohibits discrimination in employment and provides that rights and remedies available under Title VII of the Civil Rights Act of 1964 are available under Title I. 42 U.S.C. § 12117. Title II prohibits discrimination by a “public entity.” 42 U.S.C. § 12132. Rights and remedies available under section 504 of the Rehabilitation Act are available under Title II. 42 U.S.C. § 12133. Finally, Title III prohibits discrimination in public accommodations. 42 U.S.C. § 12182. Rights and remedies available under Title II of the Civil Rights Act of 1964 are available under Title III. 42 U.S.C. § 12188. Bowers v. NCAA, 346 F.3d at 433.
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Congress, in enacting the ADA, demonstrated great effort to define categories of action (or, more accurately, inaction) that constitute discrimination against individuals with disabilities. The Court notes the sections of the ADA above to point out that Section 12147(b), the main statutory provision at issue in this case, is not an isolated “individually-focused” provision in an otherwise “entity-focused” statute. While it is clear that Congress intended to enact a statutory scheme that binds various public entities, and contains directives to public entities to take certain action with a view towards the “elimination of discrimination against individuals with disabilities,” it is clear that Congress directed public entities to take such action expressly for the benefit of individuals with disabilities. Therefore, the Court rejects SEPTA’s argument that there is no private, or individual, cause of action under the ADA available with respect to enforcing the “key station” provisions of Section 12147.
That the Court finds an private right of action to enforce Section 12147 of the ADA does not end the inquiry, however, because the Court finds that DIA is not actually bringing an action to enforce Section 12147 of the ADA. Rather, it is clear from the pleadings and the arguments that DIA challenges SEPTA’s failure to designate certain stations as “key stations.” This requires a more thorny analysis of the criteria governing the determination of key stations that is found in 49 C.F.R. § 37.47. In order for DIA to prevail here on its claim as articulated, the Court would have to find that DIA has a private right of action under Section 12147 of the ADA to enforce 49 C.F.R. § 37.47.
Again, the analysis needs to start with our Court of Appeals’ decision in Three Rivers Center. In Three Rivers Center the court considered whether plaintiffs had a private right of action under the RHA to enforce regulations promulgated by HUD. The analysis must begin
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with an examination of the scope of the private right of action that exists to enforce Section 12147 of the ADA. Three Rivers Center, 382 F.3d at 425. Then, the Court must examine Section 12147 and the pertinent regulations promulgated by the Department of Transportation to determine whether the regulations construe any personal right that Section 12147 creates.
Our Court of Appeals in Three Rivers Center found that the particular HUD regulations there at issue did not articulate a personal right. 382 F.3d at 429. In examining whether Section 504 of the RHA created a private right of action to enforce those particular regulations, the Court of Appeals looked to the scope of the private right of action that Section 504 provides. The Court relied heavily on the close, evolutionary relationship between Section 504 of the RHA and Title VI of the Civil Rights Act of 1964. As noted above, Section 504 of the RHA was patterned after Title VI, and in turn, Section 12132 of the ADA was patterned after Section 504 of the RHA. The evolutionary link between these statutes guides the Court’s determination as to whether the DOT regulations at issue in this case “articulate personal rights.” Three Rivers Ctr., 382 F.3d at 429.
As noted above, the ADA does not explicitly provide a private right of action, yet numerous courts (including, most notably, the Supreme Court) have found that an implied right of action exists to enforce Section 12132. The remedies to enforce Section 12132, which are provided in Section 12133, are coexistent with the remedies available for violations of Section 504 of the RHA, which are found in Section 505(a)(2) of the RHA. See 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2). In turn, the remedies in Section 505 of the RHA are coextensive with the remedies available for a private cause of action brought under Title VI. See Barnes, 536 U.S. at 185; Three Rivers Ctr., 382 F.3d at 426. Actions under Title VI, Section 504 of the RHA and
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Section 12132 are all implied rights of action. Because “Sandoval mandates that an implied right of action can exist only where Congress creates a personal right, a plaintiff can enforce only personal rights through an implied right of action.” Three Rivers Ctr., 382 F.3d at 426. Further, because Section 12132’s remedies, including the scope of its private right of action, are coextensive with Section 504, and Section 504’s remedies are, in turn, coextensive with Title VI’s remedies, DIA “can only bring suit to enforce personal rights” that Sections 12132 or 12147 of the ADA create. See id.
The next step is to examine the relationship between the statutory provisions of the ADA and the pertinent regulations at issue in this case. Section 12149 of the ADA specifically vests responsibility for issuing regulations to implement Title II of the ADA with the Secretary of the Department of Transportation. 42 U.S.C. § 12149. While Section 12147 provides that “it shall be considered discrimination for a public entity . . . to fail . . . to make key stations . . . accessible,” it only provides parenthetically that key stations are those “as determined under criteria established by the Secretary by regulation.” 42 U.S.C. § 12147(b) (emphasis added). Section 37.47(a) of the DOT regulations directs that each public entity “shall make key stations on its system readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” 49 C.F.R. § 37.47(a). Further, Section 37.47(b) provides that “[e]ach public entity shall determine which stations on its system are key stations. The entity shall identify key stations, using the planning and public participation process set forth in paragraph (d) of this section, and taking into consideration” certain enumerated criteria. 49 C.F.R. § 37.47(b).
The Three Rivers Center court considered three possibilities in determining the precise
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relationship between the right of action under a statute and a subsequent regulation: First, the regulations may do no more than construe personal rights that [the statute] creates. Second, the regulations may (instead or additionally) construe non-personal rights or obligations that [the statute] creates. Third, the regulations may also create distinct rights or obligations–either personal or non-personal–in addition to those that [the statute] creates.
Three Rivers Ctr., 382 F.3d at 429. As the court stated, “only in the first instance would plaintiffs have a private right of action to enforce the regulations.”70 Id.
An analysis of the DOT regulations at issue here reveals that they do not “construe personal rights” that the ADA creates.
The first DOT regulation at issue–49 C.F.R. § 37.47(a)–as noted above, directs each public entity to make key stations accessible to individuals with disabilities. This regulation is the “flip-side” of Section 12147 of the ADA, which states that “it shall be considered discrimination for a public entity . . . to fail . . . to make key stations . . . accessible.” That is, the statute clearly dictates that certain inaction, i.e., the failure to make key stations accessible, constitutes discrimination, and the regulation fills the gap by explicitly requiring certain action, namely, that each public entity shall make key stations accessible.71
The DOT regulations are directed at the public entity, i.e., SEPTA, and do not focus on
70 See also Iverson v. City of Boston, 452 F.3d 94, 101 (1st Cir. 2006) (“[A] regulation that announces an obligation or a prohibition not imposed by the organic statute may not be enforced under the aegis of a statutory right of action.”).
71 The first part of the pertinent regulation, 49 C.F.R. § 37.47(a), is very similar to one of the regulations at issue in Three Rivers Center that the Court of Appeals found to be “not couched in terms of any beneficiary’s entitlement,” but aimed at the entity’s conduct. 382 F.3d at 429. In that case, one of the pertinent regulations stated that new housing projects “shall be designed and constructed to be readily accessible to and usable by individuals with handicaps.” 24 C.F.R. § 8.22(a).
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the individual beneficiary. See Sandoval, 532 U.S. at 289 (noting that words “that focus on the
person regulated rather than individuals protected create ‘no implication of an intent to confer
rights on a particular class of persons’” (quoting California v. Sierra Club, 451 U.S. at 294));
Three Rivers Ctr., 382 F.3d at 429. Further, the next clause of this regulation reinforces its
“entity-based” focus by explicitly stating that “[e]ach public entity shall determine which stations
on its system are key stations.” 49 C.F.R. § 37.47(b). The Court acknowledges that in the very
next sentence, the DOT provided that the process of identifying key stations shall include a
certain “planning and public participation process” that includes consultation with individuals with disabilities. 49 C.F.R. § 37.47(b).72 However, that the Department of Transportation sought
to include individuals with disabilities in the “identification” process does not detract from the
clear language of the first sentence of subparagraph (b), which clearly provides that “each public
entity shall determine which stations on its system are key stations.” 49 C.F.R. § 37.47(b).
72 Section 37.47(b) of the regulations implementing the ADA provides the criteria to be applied in identifying a “key station” under the ADA. That section states that:
Each public entity shall determine which stations on its system are key stations. The entity shall identify key stations, using the planning and public participation process set forth in paragraph (d) of this section, and taking into consideration the following criteria: (1) Stations where passenger boardings exceed average station passenger boardings on the rail system by at least fifteen percent, unless such a station is close to another accessible station; (2) Transfer stations on a rail line or between rail lines; (3) Major interchange points with other transportation modes, including stations connecting with major parking facilities, bus terminals, intercity or commuter rail stations, passenger vessel terminals, or airports; (4) End stations, unless an end station is close to another accessible station; and (5) Stations serving major activity centers, such as employment or government centers, institutions of higher education, hospitals or other major health care facilities, or other facilities that are major trip generators for individuals with disabilities.
49 C.F.R. § 37.47(b). 65

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Moreover, the remaining two paragraphs in this regulation are both framed in terms of what actions the required entity is required to complete. See 49 C.F.R. § 37.47(c) (requiring that the public entity “shall achieve accessibility of key stations” by a date certain); 49 C.F.R. § 37.47(d) (requiring that the “public entity shall develop a plan for compliance” with this regulation, albeit while including the participation of individuals with disabilities).73 Given the clear “entitybased” focus of 49 C.F.R. § 37.47, the Court cannot conclude that this regulation merely “construes” personal rights that the ADA creates.” On the contrary, the Court concludes that 49 C.F.R. § 37.47 construes and creates distinct non-personal obligations that the ADA creates.
An additional regulation, however, further complicates the Court’s inquiry. Section 37.53(a) of the DOT regulations states that the identification of key stations under the June 1989 EPVA Settlement Agreement is “deemed to be in compliance with the requirements of this Subpart.” 49 C.F.R. § 37.53(a). This regulation further states that:
To comply with [Sections 37.47(b) and (d)], the entities named in the [EPVA Settlement Agreement] are required to use their public participation and planning processes only to develop and submit to the FTA Administrator plans for timely completion of key station accessibility, as provided in this subpart. 49 C.F.R. § 37.53(b) (emphasis added). Thus, the regulations promulgated to implement the “key station” provisions of the ADA include a specific exception with respect to the identification of key stations in Philadelphia.74
73 Section 37.47(d) requires the public entity to “develop a plan for compliance for this section” to be submitted to the Federal Transit Administration and, in doing so, to “consult with individuals with disabilities affected by the plan.” 49 C.F.R. § 37.47(d), (d)(1).
74 This particular regulation is entitled, “Exception for New York and Philadelphia.” 49 C.F.R. § 37.53(b). In addition to the EPVA Settlement Agreement, Section 37.53 of the DOT regulations granted an exception for a settlement agreement reached in New York City, in which EPVA was also the lead party. See 49 C.F.R. § 37.53.
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DIA argues that the exemption set forth in Section 37.53 of the regulations only serves to exempt SEPTA from Section 37.47(b) and (d), but that the requirements of Section 37.47(a) and (c) must be separately applied. June 29, 2006 Tr. 45:1-25, 46:1-15. DIA specifically argues that Section 37.47(a), which requires that each public entity “shall make key stations on its system readily accessible to and usable by individuals with disabilities,” contains an overarching requirement that all stations that meet the “key station” criteria set forth in Section 37.47(b) must be made accessible. 49 C.F.R. § 37.47(a). Thus, DIA argues that regardless of SEPTA’s deemed compliance with Section 37.47(b) as set forth in Section 37.53, SEPTA is required to make any station that meets the criteria for a key station accessible to disabled individuals. DIA contends that both the City Hall station and the 15th and Market Street station meet the criteria.75 For this reason, DIA argues, SEPTA’s consistent and continuous refusal to make the City Hall and 15th and Market Street stations accessible to individuals with disabilities amounts to discrimination that is actionable under Section 12132 of the ADA and Section 504 of the RHA. June 29, 2006 Tr. 44:10-13.
Notwithstanding the fact that the Court would expect that DIA could make compelling public, political and social arguments as to why SEPTA, in order to fulfill its public mission to all persons, should dedicate resources to make one or both of these stations accessible to individuals with disabilities, the Court cannot embrace DIA’s interpretation of Sections 37.47
75 Laypersons–especially those who regularly use SEPTA facilities–likely would assume that these two stations would be considered as “key” by virtue of their undisputable central location in Center City Philadelphia and consistently high ridership. In that regard, the activity in those locations may be roughly equivalent to the level of use of those stations in 1989 when, for whatever reason, neither was designated as a key station in the EPVA Settlement Agreement. In this litigation neither party has presented the Court with any explanation of this fact.
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and 37.53 of the Department of Transportation’s regulations to compel SEPTA to do so as a legal matter.
Section 37.53 unambiguously provides an exception for the transit agencies in Philadelphia and New York City. The fact that one subparagraph of the exception (Section 37.53(b)) directly addresses Sections 37.47(b) and (d), does not imply that Section 37.47(a) requires the transit agency to identify and designate key stations in addition to the “list of key stations” already identified in the EPVA Settlement Agreement simply because such additional stations may at some unspecified time, then or in the future, meet the requirements set forth in Section 37.47(b). Rather, the Court reads Section 37.47 as a whole as a sequential instruction in which the various subparagraphs depend upon each other for clarity. That is, subparagraph (a) requires the public entity to make all key stations readily accessible, subparagraph (b) provides for the identification of key stations by the public entity, using certain planning and public participation processes, subparagraph (c) allows for the timing for the public entity to make key stations accessible, and subparagraph (d) requires the public entity to consult with affected individuals with disabilities to develop a plan for compliance with Section 37.47 and to submit the plan to the FTA for approval. Subparagraph (b) of Section 37.53 specifically addresses only subparagraphs (b) and (d) of Section 37.47 because that particular paragraph of the overall exception addresses only those two “public participation” portions of the sequence, namely, the portions that involve identifying key stations through the public participation process and consultation with individuals with disabilities to develop a plan for compliance.76 Read together,
76 Section 37.53(b) provides a clear exception to the public participation and planning process that is typically required under paragraphs (b) and (d) of Section 37.47. Section 37.53(b) states that in order to comply with Section 37.47(b) (the requirement that SEPTA determine
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Section 37.47 and Section 37.53 merely impose the requirement that SEPTA make certain key stations – the key stations identified in the EPVA Settlement Agreement – accessible.77
Thus, the Court finds that the ADA does not include a private right of action to enforce
49 C.F.R. § 37.47 with respect to SEPTA’s determination of which stations on its transit systems
are “key stations” under the ADA. For the same reasons, the Court also concludes that DIA
cannot sue to enforce 49 C.F.R. § 37.47 under Section 1983 because plaintiffs can only invoke
Section 1983 to enforce personal rights that Congress creates. Three Rivers Ctr., 382 F.3d at
431. Because the rights that the DOT regulations at issue here articulate are not personal rights,
DIA cannot enforce those rights under Section 1983. Id.
Consequently, summary judgment will be granted in favor of SEPTA with respect to Count II of DIA’s Fourth Amended Complaint.78
which stations on its system are “key stations”) and 37.47(d) (the requirement that SEPTA develop a plan for compliance) SEPTA need only use the public participation process to develop and submit to the FTA Administrator plans for timely completion of key station accessibility. 49 C.F.R. § 37.53(b). In other words, this exception means that SEPTA is not required to “determine which stations on its system are key stations” or to “identify key stations[] using the planning and public participation process set forth in [Section 37.47(d)], and taking into consideration” the stated criteria, 49 C.F.R § 37.47(b), given that SEPTA was viewed as already having made the determination via the EPVA Settlement Agreement.
77 According to SEPTA, as of March, 2006, there are two key stations on the rapid rail system, which were identified in the EPVA Settlement Agreement, for which accessibility remains to be completed. SEPTA Mot. Summ. J. Ex. 17, C. Lister Aff. ¶ 4. These remaining stations are located at 8th Street and 13th Street on the Market-Frankford Elevated Line. Id.
78 SEPTA has argued summary judgment should be granted in its favor for a number of other reasons.
First, SEPTA argues that DIA, by arguing that the City Hall and 15th and Market Street transit stations should be considered key stations for the purposes of the ADA, DIA is, effectively, asserting a challenge under 49 C.F.R. § 37.47(b), which addresses SEPTA’s responsibility for determining which stations are “key,” but also challenging Section 37.53(a)
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itself–the regulation which states that the key stations identified in the EPVA Settlement Agreement “are deemed to be in compliance” with the requirement that SEPTA identify key stations on its system. 49 C.F.R. § 37.53(a). SEPTA argues that DIA has waived its right to object to the exclusion of the City Hall and 15th and Market Street transit stations as “key stations” under the EVPA Settlement Agreement. SEPTA Br. in Supp. of Mot. for Summ. J. at 2-5. At oral argument, SEPTA explained that Congress delegated the role of establishing the criteria to implement the key station portion of the ADA to the Department of Transportation. June 29, 2006 Tr. at 61:14-19. SEPTA further argued that the identification of key stations fell within the scope of the Department of Transportation’s regulatory responsibility. Id. SEPTA argued that any challenge as to the identification of key stations amounted to a direct challenge to the regulation, 49 C.F.R. § 37.53, which specifically stated that the list of key stations reflected in the EPVA Settlement Agreement met the criteria set forth in the ADA. June 29, 2006 Tr. at 61:14-19; SEPTA Br. in Supp. of Mot. for Summ. J. at 2. Therefore, SEPTA argues, that by foregoing its opportunity to object to the list of key stations during negotiations over the EPVA Settlement Agreement, during the Department of Transportation’s rulemaking process, and during the process when SEPTA conducted a public hearing to discuss and approve its key station listing, DIA has waived its right to challenge that regulation. SEPTA Br. in Supp. of Mot. for Summ. J. at 3.
In response, DIA argues that it is neither challenging the federal regulation nor the rulemaking process and, thus, it cannot be “barred by waiver” from objecting to SEPTA’s designation of “key stations.” DIA Mem. Opp’n 3-4. DIA further argues that it is challenging the way in which SEPTA has interpreted the DOT regulations. Id. 5. DIA specifically argues that, properly applied, the criteria set forth in 49 C.F.R. § 37.47 leads to the inescapable conclusion that both the City Hall and 15th and Market Street transit stations are “key stations” and, therefore, that SEPTA must acknowledge and treat them as such. June 29, 2006 Tr. 34:1-2; DIA Mem. Opp’n 5-6, 20-26. However, since the Court holds that no private right of action exists under the ADA to challenge SEPTA’s determination of certain stations as “key stations,” the Court need not consider SEPTA’s waiver argument.
SEPTA also argues that summary judgment should be granted in its favor because the Department of Transportation has, under the authority granted through the ADA, determined that SEPTA is in compliance with the key station regulations. SEPTA Br. Supp. 10-14. This argument would require the Court to review, under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), whether the Department of Transportation acted appropriately in promulgating and enforcing the regulations. Because the Court concludes that there are not exceptional circumstances allowing for consideration of the present challenge to such regulations, it is not necessary to conduct this review.
In addition, SEPTA argues that the doctrine of laches prevents DIA from bringing this challenge because the delay in bringing suit is not excusable and because SEPTA, due to its reliance on the presumption that the EPVA Settlement Agreement defined its key stations, would
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The Court is not unsympathetic to DIA’s frustrations over the apparently perpetual refusal to consider at least the City Hall station a “key station” considering its central location in Center City, its high ridership, and its service as an interchange point between several subway and rail lines. DIA is also incredulous that SEPTA should not be periodically required to re-evaluate the public transit system to see if additional “key stations” must be addressed. However, the regulations promulgated by the Department of Transportation do not permit the Court, 17 years after the EPVA Settlement Agreement was negotiated and 15 years after the DOT regulations took effect, to judge the practical wisdom of selecting certain stations as “key” while not designating other, potentially or possibly more appropriate stations. Congress divided the “key station” provisions of ADA according to facilities that existed at the time the ADA was enacted and facilities that had not yet been built. Compare 42 U.S.C. § 12146 (providing that it will be considered discrimination for a public entity to construct new public transportation facilities without making such facilities accessible) with 42 U.S.C. § 12147(a) (providing that it will be considered discrimination for a public entity to make alterations to existing public transportation facilities without making such facilities accessible) and 42 U.S.C. § 12147(b)(1) (providing that
suffer extreme prejudice. However, because the Court holds that no private right of action exists under the ADA to challenge SEPTA’s determination of certain stations as “key stations,” the Court will not address this argument.
Finally, SEPTA argues that the doctrines of res judicata and collateral estoppel bar DIA’s claim because the issues and claims involved here were essentially the same as those decided in EPVA v. Sykes. SEPTA argues that because the issues in this case are identical to those addressed in EPVA v. Sykes, the parties (which includes DIA by virtue of its members’ class status in EPVA v. Sykes) have already litigated and resolved this issue. DIA disagrees, arguing that SEPTA’s assertion of these arguments misstates DIA’s position with respect to this case. In view of the Court’s resolution of this case as described above, it is likewise not necessary to consider these issues.
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it will be considered discrimination for a public entity to fail to make existing key stations accessible). With respect to existing facilities, i.e., key stations, the ADA expressly provides a finite time frame within which a public entity must make key stations accessible. See 42 U.S.C. § 12147(b)(2)(A) (requiring key stations to be made accessible by July 26, 1993); 29 C.F.R. § 37.47(c)(1) (same); 42 U.S.C. § 12147(b)(2)(B) (providing extensions to the time line for accessibility under certain circumstances); 29 C.F.R. § 37.47(c)(2) (same). Further, the portion of the regulations addressing the public participation process reinforces that the regulations are temporal, and as drafted, do not require a public entity to re-evaluate its choice of “key stations” once it initially determines which stations are “key.” For example, the public entity is required to develop a single “plan” for compliance with the regulations, which shall have been submitted to the FTA by July 26, 1992. See 29 C.F.R. § 37.47(d). These regulations do not require SEPTA, despite DIA’s protestations to the contrary, to designate all stations that met certain criteria as “key stations” or to periodically re-evaluate its choice of “key stations” to see whether additional stations could possibly be considered “key.” Of course, the unavailability of a judicial means to accomplish its goals does not mean that DIA cannot or should not marshal its powers of political persuasion to pursue the Department of Transportation and SEPTA for either direct attention to the two stations DIA wants modified or modification of the regulatory schemes that control the issues at hand.
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Case 2:03-cv-01577-GP Document 141 Filed 11/17/06 Page 73 of 74 CONCLUSION For the reasons discussed above, summary judgment with respect to both Counts I and II of the Fourth Amended Complaint will be entered in favor of defendant SEPTA. An appropriate Order follows.
S/Gene E.K. Pratter Gene E.K. Pratter United States District Judge November 17, 2006
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DISABLED IN ACTION OF

:

PENNSYLVANIA,

:

:

Plaintiff,

:

:

v.

:

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY :

and

:

THE CITY OF PHILADELPHIA,

:

:

Defendants

:

03-CV-1577

O R D E R AND NOW, this 17th day of November, 2006, upon consideration of the Motions for Summary Judgment filed by Southeastern Pennsylvania Transportation Authority (Docket No. 130) and by Disabled in Action (Docket Nos. 129, 131), the responses and replies thereto (Docket Nos. 133, 134, 135, 136, 137, 138), the subsequent letter briefs and after oral argument on the Motions, it is ORDERED that the Motion for Summary Judgment filed by Southeastern Pennsylvania Transportation Authority is GRANTED and the Motion for Summary Judgment filed by Disabled in Action is DENIED. The Clerk of Court is instructed to enter judgment in favor of Southeastern Pennsylvania Transportation Authority, and to mark this case as closed.
BY THE COURT:

S/Gene E.K. Pratter GENE E.K. PRATTER United States District Judge

 
 Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 1 of 19
CLOSED,STANDARD
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:03−cv−01577−GP

DISABLED IN ACTION OF PENNSYLVANIA v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY Assigned to: HONORABLE GENE E.K. PRATTER Case in other court: USCA for the 3rd Circuit, 06−05109
USCA THIRD CIRCUIT, 09−03964 Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff

Date Filed: 03/14/2003 Date Terminated: 11/17/2006 Jury Demand: None Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

DISABLED IN ACTION OF PENNSYLVANIA

represented by ROCCO J. IACULLO DISABILITIES LAW PROJECT 1315 WALNUT ST. SUITE 400 PHILADELPHIA, PA 19107 215−238−8070 Fax: 215−772−3126 Email: riacullo@drnpa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

STEPHEN F. GOLD 1709 BENJAMIN FRANKLIN PARKWAY 2ND FLOOR PHILADELPHIA, PA 19103 215−627−7100 Email: stevegoldada1@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

represented by ADAM A. DESIPIO DLA PIPER LLP ONE LIBERTY PLACE 1650 MARKET STREET SUITE 4900 PHILADELPHIA, PA 19103 215−656−3392 Email: adam.desipio@dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JO BENNETT STEVENS &LEE 1818 MARKET ST. 29TH FL PHILADELPHIA, PA 19103 215−751−2883 Email: jb@stevenslee.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
LAWRENCE R. WOEHRLE BODELL BOVE LLC 1529 WALNUT ST

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 2 of 19

6TH FLOOR PHILADELPHIA, PA 19102 215−940−0480 Fax: 215−561−6913 Email: LWoehrle@bodellbove.com TERMINATED: 10/14/2008 LEAD ATTORNEY

NATALIE KLYASHTORNY NOCHUMSON PC 1616 WALNUT ST. SUITE 1819 PHILADELPHIA, PA 19103 215399−1346 Email: natalie.klyashtorny@nochumson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

SAUL H. KRENZEL SAUL H. KRENZEL &ASSOCIATES 1055 WESTLAKES DR STE 300 BERWYN, PA 19312 215−977−7230 Fax: 215−977−7240 Email: skrenzel@krenzelaw.com TERMINATED: 10/03/2008 LEAD ATTORNEY

LISA MARIE SCIDURLO 620 FREEDOM BUSINESS CENTER SUITE 200 P.O. BOX 62330 KING OF PRUSSIA, PA 19406 610−205−6039 Email: lmsc@stevenslee.com ATTORNEY TO BE NOTICED

MICHAEL G. TIERCE STEVENS &LEE PC 1818 MARKET ST STE 2900 PHILADELPHIA, PA 19103 215−575−0100 Email: mgt@stevenslee.com ATTORNEY TO BE NOTICED

Defendant
THE CITY OF PHILADELPHIA TERMINATED: 11/30/2004

represented by MARK R. ZECCA CITY OF PHILADELPHIA − LAW DEPARTMENT 1515 ARCH STREET 17TH FLOOR PHILADELPHIA, PA 19102 215−683−5022 Fax: 215−683−5071 Email: mark.zecca@phila.gov TERMINATED: 11/30/2004 LEAD ATTORNEY

Date Filed 03/14/2003

# Docket Text
1 COMPLAINT against SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ( Filing fee $ 150 receipt number 884398.),

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 3 of 19

03/14/2003 03/25/2003
03/25/2003 04/24/2003 05/15/2003
05/15/2003 05/16/2003 06/04/2003
06/12/2003
06/12/2003 06/18/2003
08/01/2003 08/01/2003 09/30/2003

filed by DISABLED IN ACTION OF PENNSYLVANIA.(ss, ) Additional attachment(s) added on 3/26/2003 (ldb, ). (Entered: 03/14/2003)
Summons Issued, mailed 3/14/03 as to SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. (ss, ) (Entered: 03/14/2003)
2 SUMMONS Returned Executed by DISABLED IN ACTION OF PENNSYLVANIA re: LATRICE BROOKS served Summons and Complaint upon SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY by PERSONAL SERVICE. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY served on 3/21/2003, answer due 4/10/2003. (jl, ) (jl, ). (Entered: 03/25/2003)
3 NOTICE of Appearance by SAUL H. KRENZEL on behalf of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (jl, ) (jl, ). (Entered: 03/26/2003)
4 MOTION TO DISMISS filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, MEMORANDUM, CERTIFICATE OF SERVICE.(tj, ) Modified on 4/25/2003 (td). (jl, ). (Entered: 04/25/2003)
5 ORDER THAT DEFENDANT'S UNCONTESTED MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED.R.CIV.P. 12 (b)(7) IS GRANTED; ETC.. SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 5/14/03. 5/15/03 ENTERED AND COPIES MAILED.(jl, ) (jl, ). (Entered: 05/15/2003)
***Civil Case Terminated. (kv, ) (Entered: 05/28/2003)
6 DISABLED IN ACTION OF PENNSYLVANIA MOTION FOR RELIEF FROM ORDER, CERTIFICATE OF SERVICE, MEMORANDUM..(jl, ) Additional attachment(s) added on 6/19/2003 (ldb, ). (Entered: 05/16/2003)
7 ORDER THAT PLAINTIFF'S UNCONTESTED MOTION FOR RELIEF FROM THE COURT'S 5/14/03 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT IS GRANTED. IT IS FURTHER ORDERED THAT THE COURT'S 5/14/03 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT IS VACATED; ETC.. SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 6/3/03. 6/4/03 ENTERED AND COPIES MAILED.(jl, ) Additional attachment(s) added on 6/4/2003 (jl, ). (Entered: 06/04/2003)
8 AMENDED COMPLAINT against SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, THE CITY OF PHILADELPHIA, filed by DISABLED IN ACTION OF PENNSYLVANIA., CERTIFICATE OF SERVICE(jl, ) Modified on 6/12/2003 (jl, ). Additional attachment(s) added on 6/18/2003 (ldb, ). (Entered: 06/12/2003)
2 Amended Summons Issued as to SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, THE CITY OF PHILADELPHIA. Forwarded To: STEPHEN GOLD on 6/12/03 (jl, ) (Entered: 06/12/2003)
9 SUMMONS Returned Executed by DISABLED IN ACTION OF PENNSYLVANIA re: STEPHEN GOLD served Summons and Complaint upon SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, THE CITY OF PHILADELPHIA by PERSONAL SERVICE. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY served on 6/18/2003, answer due 7/8/2003; THE CITY OF PHILADELPHIA served on 6/18/2003, answer due 7/8/2003. (jl, ) (jl, ). (Entered: 06/18/2003)
10 ANSWER to Amended Complaint and Affirmative Defenses by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Certificate of Service.(cdd, ) (jl, ). (Entered: 08/01/2003)
Issue Joined. (cdd, ) (Entered: 08/01/2003)
11 DISABLED IN ACTION OF PENNSYLVANIA MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT, MEMORANDUM, CERTIFICATE

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 4 of 19

10/10/2003
10/10/2003 10/10/2003 10/10/2003 10/20/2003 10/31/2003 10/31/2003 11/18/2003 11/26/2003 12/15/2003 01/05/2004 01/05/2004 01/07/2004 01/07/2004

OF SERVICE. (SECOND AMENDED COMPLAINT ATTACHED).. (Attachments: # 1 MEMORANDUM)(jl, ) (Entered: 09/30/2003)
12 ORDER THAT DEFENDANT SEPTA MOTION TO DISMISS IS DISMISSED AS MOOT. PLAINTIFF'S MOTION TO FILE A SECOND AMENDED COMPLAINT IS GRANTED. A RULE 16 CONFERENCE BE HELD ON 10/21/03 AT 11:00 IN CHAMBERS; ETC.. SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 10/9/03.10/10/03 ENTERED AND COPIES MAILED. (jl, ) (jl, ). (Entered: 10/10/2003)
Set/Reset Hearings: RULE 16 CONFERENCE SET FOR 10/21/2003 11:00 AM BEFORE HONORABLE CLIFFORD SCOTT GREEN. (jl, ) (Entered: 10/10/2003)
13 SECOND AMENDED COMPLAINT against SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, THE CITY OF PHILADELPHIA , filed by DISABLED IN ACTION OF PENNSYLVANIA.(jl, ) (jl, ). (Entered: 10/10/2003)
2 AMENDED Summons Issued as to SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, THE CITY OF PHILADELPHIA. Forwarded To: STEPHEN GOLD on 10/10/03 (jl, ) (Entered: 10/10/2003)
14 NOTICE of Appearance by MARK R. ZECCA on behalf of THE CITY OF PHILADELPHIA with CERTIFICATE OF SERVICE. (jl, ) (jl, ). (Entered: 10/21/2003)
15 ORDER THAT A PRETRIAL CONFERENCE WILL BE HELD ON 11/5/03 AT 11:00 IN CHAMBERS; ETC... SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 10/31/03. 10/31/03 ENTERED AND COPIES MAILED.(jl, ) (Entered: 10/31/2003)
16 AFFIDAVIT of Service by STEPHEN GOLD re: served SECOND AMENDED COMPLAINT AND SUMMONES upon COUNSEL TO BOTH DEFENDANTS by MAIL (NO GREEN CARD ATTACHED). (jl, ) (jl, ). (Entered: 10/31/2003)
17 ANSWER WITH AFFIRMATIVE DEFNSES to SECOND Amended Complaint by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, CERTIFICATE OF SERVICE.(jl, ) (jl, ). (Entered: 11/19/2003)
18 AMENDED ANSWER WITH AFFIRMATIVE DEFENSES by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY TO PLAINTIFF'S SECOND AMENDED COMPLAINT, CERTIFICATE OF SERVICE.(jl, ) (jl, ). (Entered: 11/28/2003)
19 DISABLED IN ACTION OF PENNSYLVANIA MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT, MEMORANDUM, CERTIFICATE OF SERVICE. (THIRD AMENDED COMPLAINT ATTACHED).. (Attachments: # 1 MEMORANDUM)(jl, ) (Entered: 12/15/2003)
20 REQUEST FOR EVIDENTIARY HEARING AND ORAL ARGUMENT. by DISABLED IN ACTION OF PENNSYLVANIA. (jl, ) Additional attachment(s) added on 1/6/2004 (jl, ). (Entered: 01/06/2004)
21 DISABLED IN ACTION OF PENNSYLVANIA MOTION FOR PARTIAL PRELIMINARY INJUCTION, MEMORANDUM, CERTIFICATE OF SERVICE..(jl, ) Additional attachment(s) added on 1/6/2004 (jl, ). (Entered: 01/06/2004)
22 ORDER THAT PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT IS GRANTED; ETC. . SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 1/7/04.1/8/04 ENTERED AND COPIES MAILED. (jl, ) (Entered: 01/08/2004)
23 THIRD AMENDED COMPLAINT against SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, THE CITY OF PHILADELPHIA , filed by DISABLED IN ACTION OF PENNSYLVANIA.(jl, ) (Entered: 01/08/2004)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 5 of 19

01/27/2004 01/27/2004 01/27/2004
02/06/2004 02/18/2004 06/14/2004 06/16/2004
06/25/2004 07/01/2004 07/12/2004 07/15/2004
07/19/2004

24 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY RESPONSE TO PLAINTIFF'S REQUEST FOR EVIDENTIARY HEARING AND ORAL ARGUMENT ON ITS MOTION FOR PARTIAL PRELIMINARY INJUNCTION, CERTIFICATE OF SERVICE. (jl, ) (Entered: 01/28/2004)
25 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL PRELIMINARY INJUNCTION, CERTIFICATE OF SERVICE, AFFIDAVIT. (jl, ) (Entered: 01/28/2004)
26 STIPULATION AND ORDER THAT THE TIME FOR DEFENDANT SEPTA TO FILE ITS RESPONSES TO PLAINTIFF'S MOTION FOR PARTIAL PRELIMINARY INJUNCTION AND PLAINTIFF'S REQUEST FOR EVIDENTIARY HEARING AND ORAL ARGUMENT SHALL BE EXTENDED FROM 1/22/04 UNTIL 1/27/04; ETC.. SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 1/27/04. 1/28/04 ENTERED AND COPIES MAILED.(jl, ) (Entered: 01/28/2004)
27 DISABLED IN ACTION OF PENNSYLVANIA REPLY TO SEPTA'S RESPONSE TO THE MOTION FOR PARTIAL PRELIMINARY INJUNCTION, CERTIFICATE OF SERVICE. (jl, ) (Entered: 02/06/2004)
28 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY RESPONSE TO PLAINTIFF'S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR PARTIAL PRELIMINARY INJUNCTION, CERTIFICATE OF SERVICE. (jl, ) (Entered: 02/18/2004)
29 ORDER THAT A CONFERENCE WILL BE HELD IN THE ABOVE CAPTIONED CASE ON 6/16/04 AT 3:00 IN CHAMBERS; ETC. . SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 6/14/04. 6/14/04 ENTERED AND COPIES MAILED.(jl, ) (Entered: 06/14/2004)
30 ORDER THAT PLAINTIFF'S REQUEST FOR AN EVIDENTIARY HEARING AND ORAL ARGUMENT IS GRANTED. DEFENDANT'S REQUEST TO PERMIT THE PARTIES TO TAKE DISCOVERY PRIOR TO THE EVIDENTIARY HEARING IS GRANTED. DISCOVERY SHALL BE COMPLETED WITHIN 90 DAYS OF THIS ORDER; ETC. . SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 6/16/04.6/17/04 ENTERED AND COPIES MAILED. (jl, ) (Entered: 06/17/2004)
31 NOTICE of Appearance by ROCCO J. IACULLO on behalf of DISABLED IN ACTION OF PENNSYLVANIA with CERTIFICATE OF SERVICE. (jl, ) (Entered: 06/28/2004)
32 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO DISMISS AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S THIRD AMENDED COMPLAINT, MEMORANDUM, CERTIFICATE OF SERVICE.. (Attachments: # 1 MEMORANDUM)(jl, ) (Entered: 07/01/2004)
33 INITIAL Disclosure with CERTIFICATE OF SERVICE by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.(jl, ) (Entered: 07/13/2004)
34 MOTION TO COMPEL DEFENDANT CITY OF PHILADELPHIA TO ANSWER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS FILED BY SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, CERTIFICATE OF SERVICE. (Attachments: # 1 CERTIFICATE OF COUNSEL# 2 ORDER# 3 ORDER−2)(mar, ) (Entered: 07/16/2004)
35 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO COMPEL DEFENDANT CITY OF PHILADELPHIA TO FILE AN ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT, MEMORANDUM, CERTIFICATE OF SERVICE.. (Attachments: # 1 MEMORANDUM)(jl, ) (Entered: 07/20/2004)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 6 of 19

07/20/2004
07/26/2004 07/26/2004 07/28/2004
07/29/2004 08/02/2004 08/02/2004 08/05/2004 08/06/2004 08/06/2004 08/10/2004 08/11/2004 08/16/2004

36 STIPULATION AND ORDER THAT THE TIME FOR PLAINTIFF TO FILE ITS RESPONSE TO DEFENDANT SEPTA'S MOTION TO DISMISS THE "KEY STATION" ALLEGATIONS IN PLAINTIFF'S THIRD AMENDED COMPLAINT SHALL BE EXTENDED UNTIL 8/9/04; ETC.. SIGNED BY JUDGE CLIFFORD SCOTT GREEN ON 7/20/04. 7/21/04 ENTERED AND COPIES MAILED.(jl, ) (Entered: 07/21/2004)
37 THE CITY OF PHILADELPHIA MOTION TO LIMIT DISCOVERY PURSUANT TO A DISCOVERY PLAN, MEMORANDUM, CERTIFICATE OF SERVICE.. (Attachments: # 1 MEMORANDUM)(jl, ) (Entered: 07/27/2004)
38 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S THIRD AMENDED COMPLAINT, CERTIFICATE OF SERVICE. (jl, ) (Entered: 07/27/2004)
39 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO COMPEL THE DEPOSITIONS OF CITY REPRESENTATIVES AND MOTION TO COMPEL DOCUMENT PRODUCTION/MOTION FOR CONTEMPT FOR THE CITY'S FAILURE TO RESPOND TO SUBPEONAS, MEMORANDUM, CERTIFICATE OF SERVICE.. (Attachments: # 1 MEMORANDUM)(jl, ) (Entered: 07/28/2004)
40 Response to defendant SEPTA'S motion to compel defendant The City of Philadelphia to answer interrogatories and requests for the production of documents filed by THE CITY OF PHILADELPHIA, certificate of service. (Attachments: # 1 proposed order# 2 certificate of service)(mac, ) (Entered: 07/29/2004)
41 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO COMPEL THE CITY OF PHILADELPHIA TO PROVIDE THE INITIAL DISCLOSURES REQUIRED BY F.R.C.P. 26 (a)(1), MEMORANDUM, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE..(jl, ) (jl, ). (Entered: 08/03/2004)
42 RESPONSE to SEPTA'S Motion TO COMPEL CITY OF PHILA. TO FILE AN ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT, Memorandum, Certificate of service THE CITY OF PHILADELPHIA. (ph, ) Additional attachment(s) added on 9/2/2004 (md, ). (Entered: 08/03/2004)
43 PLAINTIFF'S MOTION TO DISMISS THE CITY OF PHILADELPHIA FROM THE LAWSUIT FILED BY DISABLED IN ACTION OF PENNSYLVANIA, CERIFICATE OF SERVICE.(mac, ) Modified on 8/5/2004 (mac, ). (Entered: 08/05/2004)
44 Plaintiff's response to defendant's motion to dismiss filed by DISABLED IN ACTION OF PENNSYLVANIA, memorandum, certificate of service. (mac, ) (Entered: 08/06/2004)
45 Disclosure with Certificate of Service by THE CITY OF PHILADELPHIA.(ZECCA, MARK) (Entered: 08/06/2004)
46 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY RESPONSE TO THE CITY OF PHILADELPHIA MOTION TO LIMIT DISCOVERY, MEMORANDUM, CERTIFICATE OF SERVICE. (jl, ) (jl, ). (Entered: 08/11/2004)
47 THE CITY OF PHILADELPHIA RESPONSE TO DEFENDANT SEPTA'S MOTION TO COMPEL THE DEPOSITIONS OF CITY REPRESENTATIVES AND MOTION TO COMPEL DOCUMENT PRODUCTION/MOTION FOR CONTEMPT, CERTIFICATE OF SERVICE. (Attachments: # 1 CERTIFICATE OF SERVICE)(jl, ) (Entered: 08/11/2004)
48 RESPONSE in Opposition re 41 MOTION to Compel filed by THE CITY OF PHILADELPHIA. (Attachments: # 1 Text of Proposed Order # 2 Certificate of Service# 3 Exhibit A# 4 Exhibit B# 5 Exhibit C)(ZECCA, MARK) (Entered: 08/16/2004)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 7 of 19

08/16/2004 08/19/2004 08/24/2004
08/25/2004 08/25/2004 09/03/2004
09/08/2004 09/10/2004 09/14/2004
09/15/2004 09/15/2004 09/30/2004

49 SETTLEMENT AGREEMENT by THE CITY OF PHILADELPHIA. (Attachments: # 1 Settlement Agreement# 2 Certificate of Service)(ZECCA, MARK) (Entered: 08/16/2004)
50 ORDER THAT THIS CASE IS REASSIGNED FROM THE CALENDAR OF JUDGE CLIFFORD SCOTT GREEN TO THE CALENDAR OF JUDGE GENE E.K. PRATTER. (SIGNED BY JUDGE MICHAEL E. KUNZ ON 8/19/04.) 8/20/04 ENTERED AND COPIES MAILED.(jy, ) (Entered: 08/20/2004)
51 STIPULATION AND ORDER THAT DEFENDANT SEPTA SHALL HAVE UNTIL 5:00 ON 8/25/04 TO FILE A REPLY TO PLAINTIFF DISABLED IN ACTION'S RESPONSE TO SEPTA'S MOTION TO DISMISS THE THIRD AMENDED COMPLAINT. IT IS FURTHER STIPULATED AND AGREED, BY AND BETWEEN THE UNDERSIGNED COUNSEL, THAT DEFENDANT SEPTA SHALL HAVE UNTIL 5:00 ON 8/25/04 TO FILE A RESPONSE TO PLAINTIFF'S MOTION TO DISMISS THE CITY OF PHILADELPHIA; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 8/23/04. 8/24/04 ENTERED AND COPIES MAILED.(jl, ) (jl, ). (Entered: 08/24/2004)
52 RESPONSE to Plaintiff's MOTION to Dismiss THE CITY OF PHILADELPHIA from this Lawsuit Pursuant to Rule 41(a)(2) filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Memorandum, Certificate of Service. (mar, ) Additional attachment(s) added on 8/27/2004 (mar, ). (Entered: 08/26/2004)
53 MEMORANDUM of Law in Reply to Response to Plaintiff's Answer to Defendant's MOTION to Strike Portions of Plaintiff's Third Amended Complaint filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Certificate of Service. (mar, ) Additional attachment(s) added on 8/27/2004 (mar, ). (Entered: 08/26/2004)
54 DISABLED IN ACTION OF PENNSYLVANIA RESPONSE TO SEPTA'S MEMORANDUM OF LAW IN REPLY TO PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S THIRD AMENDED COMPLAINT, CERTIFICATE OF SERVICE. (jl, ) Additional attachment(s) added on 9/3/2004 (jl, ). (Entered: 09/03/2004)
55 Memorandum of Law in Reply to Response to Motion re 43 MOTION to Dismiss filed by THE CITY OF PHILADELPHIA, Certificate of Service. (Attachments: # 1 Exhibit A# 2 Exhibit B) (ZECCA, MARK) Modified on 9/9/2004 (np). (Entered: 09/08/2004)
56 JOINT MOTION OF PLAINTIFF AND DEFENDANT SOUTHEASTERN PENNSYLVANIA TRANSPORATION AUTHORITY TO EXTEND DEADLINES, CERTIFICATE OF SERVICE.. (Attachments: # 1 CERTIFICATE OF SERVICE)(jl, ) (Entered: 09/13/2004)
57 ORDER THAT THE JOINT MOTION OF PLAINTIFF AND DEFENDANT SEPTA TO EXTEND DEADLINES IS GRANTED. DISCOVERY EXTENDED FOR 90 DAYS. A STATUS CONFERENCE TO BE ATTENDED BY ALL COUNSEL IS SCHEDULED FOR 9/24/04 AT 11:00; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 9/14/04. 9/14/04 ENTERED AND COPIES MAILED.(jl, ) Modified on 9/15/2004 (jl, ). (Entered: 09/14/2004)
58 DISABLED IN ACTION OF PENNSYLVANIA MOTION TO COMPEL DEFENDANT SEPTA'S RESPONSE TO DISCOVERY, MEMORANDUM, CERTIFICATE OF SERVICE..(jl, ) (Entered: 09/16/2004)
59 SUPPLEMENT by DISABLED IN ACTION OF PENNSYLVANIA TO JOINT MOTION TO EXTEND DISCOVERY DEADLINE, CERTIFICATE OF SERVICE.. (jl, ) (jl, ). (Entered: 09/16/2004)
60 ORDER THAT THE PARTIES SHALL, PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 26 (f), MEET SEPARATELY TO DISCUSS, PLAN AND RESOLVE DISPUTES RELATING TO DISCOVERY. UPON COMPLETION OF SUCH CONFERENCES, THE PARTIES SHALL SUBMIT TO THE COURT THEIR INDIVIDUAL LETTER REPORTS OUTLINING ANY REMAINING

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 8 of 19

10/19/2004 10/21/2004 10/26/2004 10/27/2004 11/01/2004
11/01/2004
11/16/2004 11/30/2004

DISCOVERY DISPUTES. THE LETTER REPORTS SHALL BE SUBMITTED ON OR BEFORE 10/21/04; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 9/29/04. 9/30/04 ENTERED AND COPIES MAILED.(jl, ) (Entered: 09/30/2004)
61 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF ITS OPPOSITION TO THE PLAINTIFF'S MOTION TO DISMISS THE CITY OF PHILADELPHIA, CERTIFICATE OF SERVICE. (jl, ) (Entered: 10/19/2004)
62 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ANSWER TO THE MOTION OF PLAINTIFF DISABLED IN ACTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUESTS FOR PRODUCTION, CERTIFICATE OF SERVICE. (jl, ) (jl, ). (Entered: 10/21/2004)
63 MOTION to Strike 61 Supplemental Memorandum of Law Relating to the MOTION TO DISMISS THE CITY OF PHILADELPHIA, OR IN THE ALTERNATIVE, TO Allow the City of Philadelphia to Respond FILED BY THE CITY OF PHILADELPHIA, Memorandum, Certificate of Service. (Attachments: # 1 Memorandum# 2 Text of Proposed Order 1# 3 Text of Proposed Order 2# 4 Certificate of Service) (ZECCA, MARK) Modified on 10/27/2004 (np). (Entered: 10/26/2004)
64 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO FILE ITS EMERGENCY SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT NUNC PRO TUNC, CERTIFICATE OF SERVICE. (SUPPLEMENTAL MEMORANDUM ATTACHED).. (Attachments: # 1 SUPPLEMENTAL MEMORANDUM ATTACHED)(jl, ) (Entered: 10/28/2004)
65 ORDER THAT THE MOTION OF SEPTA TO FILE ITS EMERGENCY SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S THIRD AMENDED COMPLAINT NUNC PRO TUNC IS DENIED, AND DISCOVERY SHALL NOT BE STAYED DURING THE PENDENCY OF THE SEPTA MOTION TO DISMISS, ETC. SIGNED BY JUDGE GENE E.K. PRATTER ON 10/29/04.11/01/04 ENTERED AND COPIES MAILED, E−MAILED AND FAXED. (ac, ) Additional attachment(s) added on 11/1/2004 (ac, ). (Entered: 11/01/2004)
66 ORDER THAT THE MOTION OF DEFENDANT SEPTA TO COMPEL DEFENDANT CITY OF PHILADELPHIA TO ANSWER INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS IS DENIED WITHOUT PREJUDICE. THE MOTION TO DEFENDANT CITY OF PHILADELPHIA TO LIMIT DISCOVERY PURSUANT TO A DISCOVERY PLAN IS DENIED WITHOUT PREJUDICE. THE MOTION OF DEFENDANT SEPTA TO COMPEL THE DEPOSITIONS OF CITY REPRESENTATIVES AND MOTION FOR CONTEMPT FOR THE CITY'S FAILURE TO RESPOND TO SUBPEONAS IS DENIED WITHOUT PREJUDICE AND THE MOTION OF SEPTA TO COMPEL THE CITY TO PROVIDE THE INITIAL DISCLOSURES REQUIRED TO F.R.C.P. 26 (a)(1) IS DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/1/04. 11/2/04 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(jl, ) (Entered: 11/02/2004)
67 ORDER THAT PLAINTIFF DISABLED IN ACTION IN PENNSYLVANIA'S MOTION TO COMPEL DEFENDANT SEPTA'S RESPONSES TO DISCOVERY IS GRANTED IN PART AND DENIED IN PART. THE PLAINTIFF'S REQUEST FOR AN AWARD OF ATTORNEY'S FEES AND EXPENSES INCURRED IN FILING THIS MOTION IS DENIED; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/16/04. 11/17/04 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(jl, ) (Entered: 11/17/2004)
68 MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION TO DISMISS THE CITY OF PHILADELPHIA WITHOUT PREJUDICE IS GRANTED. THE CITY OF PHILADELPHIA IS HEREBY DISMISSED FROM THIS ACTION WITHOUT PREJUDICE. IT IS FURTHER ORDERED THAT THE MOTION TO COMPEL THE DEFENDANT CITY OF PHILADELPHIA TO FILE AN

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 9 of 19

12/21/2004 12/27/2004 12/29/2004 12/30/2004
01/12/2005 01/14/2005 01/14/2005 01/27/2005 01/31/2005 02/02/2005 02/14/2005 02/15/2005

ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT IS DENIED AS MOOT; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/30/04. 11/30/04 ENTERED AND COPIES MAILED.(jl, ) Modified on 11/30/2004 (jl, ). (Entered: 11/30/2004)
69 Certified Copy of Order from THE USCA THAT THE FOREGOING PETITION FOR WRIT OF MANDAMUS AND MOTION FOR STAY OF THE DISTRICT COURT'S 11/16/04 ORDER ARE DENIED; ETC. (jl, ) (jl, ). (Entered: 12/21/2004)
70 ORDER THAT SEPTA MOTION TO DISMISS AND MOTION TO STRIKE PORTIONS OF THE PLAINTIFF'S THIRD AMENDED COMPLAINT IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 12/23/04. 12/28/04 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(jl, ) (Entered: 12/28/2004)
71 NOTICE of Hearing: STATUS CONFERENCE SET FOR 1/13/2005 03:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE GENE E.K. PRATTER. (rab, ) (Entered: 12/29/2004)
72 MOTION AND MEMORANDUM OF LAW FOR A RULE 26(C) PROTECTIVE ORDER OR, IN THE ALTERNATIVE, MOTION FOR RECONSIDERATION OF THE COURT'S ORDER OF NOVEMBER 16, 2004 RELATING TO DIA'S DISCOVERY REQUESTS BY SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.CERTIFICATE OF SERVICE.(stb, ) (Entered: 01/03/2005)
73 DISABLED IN ACTION OF PENNSYLVANIA MEMORANDUM OF LAW IN OPPOSITION TO SEPTA MOTION AND MEMORANDUM OF LAW FOR A RULE 26 (c) PROTECTIVE ORDER OR IN THE ALTERNATIVE, MOTION FOR RECONSIDERATION OF THE COURT'S ORDER OF 11/16/04, CERTIFICATE OF SERVICE. (jl, ) (jl, ). (Entered: 01/12/2005)
74 DISABLED IN ACTION OF PENNSYLVANIA MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT, MEMORANDUM, CERTIFICATE OF SERVICE. (FOURTH AMENDED COMPLAINT ATTACHED)..(jl, ) (Entered: 01/14/2005)
75 Minute Entry for proceedings held before Judge GENE E.K. PRATTER : Status Conference held on 1/13/05. Court Reporter: M. Ciamaichelo. Counsel for Defendant and Plaintiff address the court on Motion for Protective Order;Motion granted in part and denied in part;the Court will issue and order (wgc, ) (Entered: 01/14/2005)
76 ORDER THAT THE MOTION FOR RECONSIDERATION OF THE 11/16/04 ORDER IS DENIED; THE MOTION FOR A RULE 26 (c) PROTECTIVE ORDER IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 1/25/05. 1/27/05 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(jl, ) (Entered: 01/27/2005)
77 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY RESPONSE AND OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT, MEMORANDUM, CERTIFICATE OF SERVICE. (Attachments: # 1 memorandum# 2 order)(jl, ) (Entered: 02/01/2005)
78 NOTICE of Hearing on Motion 74 MOTION for Leave to File: MOTION HEARING SET FOR 2/11/2005 04:00 PM IN COURTROOM BEFORE HONORABLE GENE E.K. PRATTER. (rab, ) (Entered: 02/02/2005)
79 Minute Entry for proceedings held before Judge GENE E.K. PRATTER : 2/11/05 ORAL ARGUMENT ON MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT (jl, ) (Entered: 02/14/2005)
80 FOURTH AMENDED COMPLAINT against SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY , CERTIFICATE OF SERVICE filed by DISABLED IN ACTION OF PENNSYLVANIA.(jl, ) Modified on 2/18/2005 (jl, ). (Entered: 02/16/2005)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 10 of 19

02/16/2005
03/02/2005 03/07/2005 03/08/2005 03/29/2005 03/30/2005 03/30/2005 03/31/2005
04/01/2005 04/01/2005
04/14/2005 04/18/2005 04/18/2005

81 MEMORANDUM AND ORDER THAT THE MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT OF DISABLED IN ACTION IS GRANTED. DISABLED IN ACTION IS DIRECTED TO FILE ITS FOURTH AMENDED COMPLAINT ON OR BEFORE 2/18/05; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 2/15/05.2/16/05 ENTERED AND COPIES MAILED, E−MAILED AND FAXED. (jl, ) (Entered: 02/16/2005)
82 TRANSCRIPT of Proceedings held on 2/11/05 before Judge PRATTER. Court Reporter: MARK CIAMAICHELO. HEARING (jl, ) (Entered: 03/02/2005)
83 ANSWER WITH AFFIRMATIVE DEFENSES to PLAINTIFF'S FOURTH Amended Complaint by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, CERTIFICATE OF SERVICE(jl, ) (Entered: 03/08/2005)
84 NOTICE of Hearing: STATUS CONFERENCE SET FOR 3/30/2005 09:30 AM IN JUDGE'S CHAMBERS BEFORE HONORABLE GENE E.K. PRATTER. (rab, ) (Entered: 03/08/2005)
85 DISABLED IN ACTION OF PENNSYLVANIA MOTION FOR PARTIAL SUMMARY JUDGMENT, MEMORANDUM, CERTIFICATE OF SERVICE, EXHIBITS.. (Attachments: # 1 MOTION# 2 MEMORANDUM)(jl, ) (Entered: 03/30/2005)
86 DISABLED IN ACTION OF PENNSYLVANIA MOTION FOR PARTIAL SUMMARY JUDGMENT, MEMORANDUM, CERTIFICATE OF SERVICE..(jl, ) (jl, ). (Entered: 03/30/2005)
87 Minute Entry for proceedings held before Judge GENE E.K. PRATTER : Status Conference held on 3/30/05. (jl, ) (Entered: 03/30/2005)
88 STIPULATION AND ORDER THAT THE TIME FOR DEFENDANT SEPTA TO FILE A RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT SHALL BE EXTENDED FROM 4/12/05 UNTIL 5/3/05; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 3/31/05. 4/1/05 ENTERED AND COPIES MAILED AND FAXED.(jl, ) (jl, ). (Entered: 04/01/2005)
89 STIPULATION AND ORDER THAT THE TIME FOR DEFENDANT SEPTA TO FILE A RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT SHALL BE EXTENDED FROM 4/12/05 UNTIL 5/3/05; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 4/1/05. 4/1/05 ENTERED AND E−MAILED AND FAXED.(jl, ) (Entered: 04/01/2005)
90 SCHEDULING ORDER THAT DISCOVERY WILL BE SERVED, NOTICED AND COMPLETED BY 11/15/05; ANY MOTIONS FOR SUMMARY JUDGMENT OR DAUBERT MOTIONS SHALL BE FILED AND SERVED ON OR BEFORE 3/15/06; PLAINTIFF'S PRETRIAL MEMORANDUM ARE DUE BY 4/4/06; DEFENDANT'S PRETRIAL MEMORANDUM ARE DUE BY 4/11/06; A FINAL PRETRIAL CONFERENCE WILL BE HELD ON 4/19/06 AT 9:30 A.M.; THE CASE WILL BE PLACED ON THE COURT'S TRIAL POOL LIST ON 4/25/06; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 3/31/05. 4/1/05 ENTERED AND COPIES MAILED, E−MAILED.(jl, ) (Entered: 04/01/2005)
91 ORDER THAT COUNSEL FOR THE PARTIES SHALL ATTEND A CONFERENCE IN THE COURT'S CHAMBERS AT 2:00 P.M. ON WEDNESDAY, APRIL 20, 2005, ETC . SIGNED BY JUDGE GENE E.K. PRATTER ON 04/14/05. 04/14/05 ENTERED AND COPIES E−MAILED AND FAXED.(ac, ) (Entered: 04/14/2005)
92 EMERGENCY MOTION FILED BY SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY TO VACATE THE 4/14/05 ORDER, CERTIFICATE OF SERVICE. (Attachments: # 1 Certificate of Service# 2 Proposed Order)(le, ) (Entered: 04/18/2005)
93 ORDER THAT A CONFERENCE IS SET FOR 5/3/2005 04:30 PM BEFORE HONORABLE GENE E.K. PRATTER.. SIGNED BY JUDGE GENE E.K.

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 11 of 19

04/19/2005 05/03/2005
05/03/2005 05/04/2005 05/04/2005 05/05/2005 05/10/2005 05/11/2005
05/17/2005 05/17/2005 05/23/2005
05/24/2005 05/24/2005

PRATTER ON 4/18/05. 4/19/05 ENTERED AND COPIES MAILED, EMAILED AND FAXED.(wgc, ) Modified on 4/19/2005 (wgc, ). (Entered: 04/19/2005)
94 ORDER THAT SEPTA'S MOTION TO VACATE THE 4/14/05 ORDER IS DENIED AS MOOT. . SIGNED BY JUDGE GENE E.K. PRATTER ON 4/18/05.4/19/05 ENTERED AND COPIES E−MAILED AND FAXED. (wgc, ) (Entered: 04/19/2005)
95 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO DISQUALIFY STEPHEN GOLD AS COUNSEL FOR PLAINTIFF DISABLED IN ACTION FILED PURSUANT TO FED.RUL.CIV.P.7 (b)(1) AND LOCAL RULE 7.1, MEMORANDUM, CERTIFICATE OF SERVICE, EXHIBITS..(jl, ) Additional attachment(s) added on 5/5/2005 (jl, ). (Entered: 05/03/2005)
96 RESPONSE to Motion re 85 MOTION for Partial Summary Judgment and Memorandum of Law filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Certificate of Service. (DESIPIO, ADAM) Modified on 5/5/2005 (np). (Entered: 05/03/2005)
97 Minute Entry for proceedings held before Judge GENE E.K. PRATTER : Status Conference held on 5/3/05. (jl, ) (Entered: 05/04/2005)
98 EXHIBITS by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. TO THEIR RESPONSE TO PLAINTIFF'S RECITATION OF FACTS AND MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM OF LAW. (jl, ) (Entered: 05/04/2005)
99 NOTICE of Hearing on Motion 95 MOTION to Disqualify: MOTION HEARING SET FOR 5/26/2005 04:00 PM IN COURTROOM BEFORE HONORABLE GENE E.K. PRATTER. (rab, ) (Entered: 05/05/2005)
100 Stipulation for Extension of Time to File Response/Reply as to 96 Response to Motion filed by DISABLED IN ACTION OF PENNSYLVANIA. (IACULLO, ROCCO) (FILED IN ERROR BY ATTORNEY) Modified on 5/13/2005 (np). (Entered: 05/10/2005)
101 STIPULATION AND ORDER THAT PLAINTIFF DISABLED IN ACTION SHALL HAVE AN EXTENSION OF TIME TO FILE A REPLY TO DEFENDANT SEPTA'S RESPONSE TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT. PLAINTIFF'S RESPONSE SHALL BE DUE NO LATER THAN 5/23/05; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 5/10/05. 5/11/05 ENTERED AND COPIES MAILED AND FAXED.(jl, ) (jl, ). (Entered: 05/11/2005)
102 NOTICE of Hearing on Motion 86 MOTION for Summary Judgment, 85 MOTION for Partial Summary Judgment: MOTION HEARING SET FOR 6/29/2005 09:30 AM IN COURTROOM BEFORE HONORABLE GENE E.K. PRATTER. (rab, ) (Entered: 05/17/2005)
103 RESPONSE in Opposition re 95 MOTION to Disqualify filed by DISABLED IN ACTION OF PENNSYLVANIA, Memorandum, Certificate of Service. (IACULLO, ROCCO) Modified on 5/18/2005 (np). (Entered: 05/17/2005)
104 REPLY to Response to Motion re 86 MOTION for Summary Judgment Plaintiff's Reply to Defendant SEPTA's Response to Plaintiff's Motion for Partial Summary Judgment filed by DISABLED IN ACTION OF PENNSYLVANIA, Certificate of Service. (Attachments: # 1 Exhibit Excerpt from Debora Russo Deposition Testimony)(IACULLO, ROCCO) Modified on 5/25/2005 (md, ). (Entered: 05/23/2005)
105 REPLY to Response to Motion re 95 MOTION to Disqualify filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. (KRENZEL, SAUL) Modified on 5/27/2005 (md, ). (PDF INCOMPLETE; ATTY HAS RE−FILED DOCUMENT − SEE PAPER #106) (Entered: 05/24/2005)
106 REPLY to Response to Motion re 95 MOTION to Disqualify filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 12 of 19

05/25/2005 05/27/2005 06/01/2005 06/06/2005 06/09/2005 10/12/2005 10/14/2005 10/19/2005 10/21/2005 10/24/2005 11/01/2005 11/01/2005 11/04/2005

Certificate of SErvice. (KRENZEL, SAUL) Modified on 5/27/2005 (md, ). (Entered: 05/24/2005)
107 EXHIBITS by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY TO THEIR REPLY TO SEPTA MOTION TO DISQUALIFY STEPHEN GOLD. (jl, ) (Entered: 05/25/2005)
108 Minute Entry for proceedings held before Judge GENE E.K. PRATTER : Motion Hearing held on 5/26/05 re 95 MOTION to Disqualify filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, (jl, ) (Entered: 05/27/2005)
109 ORDER THAT THE MOTION TO DISQUALIFY STEPHEN GOLD AS COUNSEL FOR PLAINTIFF DISABLED IN ACTION IS DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 5/31/05.6/1/05 ENTERED AND E−MAILED.(jl, ) (Entered: 06/01/2005)
110 TRANSCRIPT of Proceedings held on 5/26/05 before Judge PRATTER. Court Reporter: MARK CIAMAICHELO. HEARING (jl, ) (Entered: 06/06/2005)
111 ORDER THAT THE MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY DISABLED IN ACTION IS DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 6/9/05. 6/9/05 ENTERED AND E−MAILED.(jl, ) (Entered: 06/09/2005)
112 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO COMPEL THE DEPOSITION TESTIMONY OF STEPHEN GOLD, MEMORANDUM, CERTIFICATE OF SERVICE.. (Attachments: # 1 MOTION# 2 MEMORANDUM# 3 CERTIFICATE OF SERVICE)(jl, ) (Entered: 10/12/2005)
113 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO COMPEL DISCOVERY PURSUANT TO F.R.C.P. 37 (a), BRIEF, CERTIFICATE OF SERVICE.. (Attachments: # 1 BRIEF)(jl, ) (Entered: 10/14/2005)
114 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO COMPEL PLAINTIFF'S ANSWERS TO CONTENTION INTERROGATORIES, MEMORANDUM, CERTIFICATE OF SERVICE.. (Attachments: # 1 MOTION# 2 CERTIFICATE OF SERVICE)(jl, ) (Entered: 10/19/2005)
115 ORDER THAT THE MOTION OF SEPTA TO COMPEL PLAINTIFF'S ANSWERS TO CONTENTION INTERROGATORIES IS DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 10/20/05.10/21/05 ENTERED AND E−MAILED, MAILED. (jl, ) Modified on 10/21/2005 (jl, ). (Entered: 10/21/2005)
116 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO COMPEL PLAINTIFF'S ANSWERS TO CONTENTION INTERROGATORIES, MEMORANDUM, CERTIFICATE OF SERVICE, CERTIFICATE OF COUNSEL..(jl, ) Modified on 10/25/2005 (jl, ). (jl, ). (Entered: 10/25/2005)
117 RESPONSE in Opposition re 116 MOTION to Compel and Memorandum of Law In Opposition to Defendant's Motion to Compel Responses to Contention Interrogatories. Certificate of Service. filed by DISABLED IN ACTION OF PENNSYLVANIA. (Attachments: # 1 Text of Proposed Order Proposed Order)(IACULLO, ROCCO) (Entered: 11/01/2005)
118 RESPONSE in Opposition re 113 MOTION to Compel and Memorandum of Law in Opposition to Defendant's Motion to Compel Discovery Pursuant to F.R.C.P. 37(a), Certificate of Service. filed by DISABLED IN ACTION OF PENNSYLVANIA. (Attachments: # 1 Text of Proposed Order Proposed Order)(IACULLO, ROCCO) (Entered: 11/01/2005)
119 ORDER THAT THE MOTION TO COMPEL THE DEPOSITION IS DENIED AS MOOT WITHOUT PREJUDICE TO DEFENDANT TO RE−PRESENT THE

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 13 of 19

11/04/2005 11/07/2005 11/07/2005 11/14/2005
11/21/2005
01/30/2006 03/10/2006 03/14/2006 03/17/2006 04/05/2006 04/05/2006 04/11/2006

MOTION IN THE EVENT THE REPORT OF THE RESOLUTION IS INACCURATE; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/4/05.11/4/05 ENTERED AND COPIES MAILED, E−MAILED.(jl, ) (Entered: 11/04/2005)
120 ORDER THAT SEPTA MOTION TO COMPEL FULL AND COMPLETE RESPONSES TO CONTENTION INTERROGATORIES IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/4/05.11/4/05 ENTERED AND COPIES MAILED, E−MAILED. (jl, ) (Entered: 11/04/2005)
121 STIPULATION AND ORDER THAT THE DISCOVERY PERIOD SHALL BE EXTENDED UNTIL12/6/2005. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/7/05. 11/7/05 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(fdc) (Entered: 11/07/2005)
122 ORDER THAT THE SEPTA'S MOTION TO COMPEL DISCOVERY PURSUANT TO F.R.C.P. 37 (a) IS DENIED AS PREMATURE WITHOUT PREJUDICE; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/7/05. 11/8/05 ENTERED AND COPIES MAILED, E−MAILED.(jl, ) Additional attachment(s) added on 11/8/2005 (jl, ). (Entered: 11/08/2005)
123 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION TO EXTEND DISCOVERY DEADLINE FOR PLAINTIFF TO RESPOND TO SEPTA'S 10/31/05 SECOND SET OF REQUESTS FOR ADMISSION, BRIEF, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE..(jl, ) Additional attachment(s) added on 11/16/2005 (jl, ). (Entered: 11/14/2005)
124 ORDER THAT THE MOTION OF SEPTA TO EXTEND THE DISCOVERY DEADLINE FOR PLAINTIFF TO RESPOND TO SEPTA 10/31/05 SECOND SET OF REQUESTS FOR ADMISSIONS IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/18/05.11/22/05 ENTERED AND COPIES MAILED, E−MAILED. (jl, ) (Entered: 11/22/2005)
125 NOTICE of Hearing: FINAL PRETRIAL CONFERENCE RESCHEDULED FOR 4/18/2006 09:30 AM IN JUDGE'S CHAMBERS BEFORE HONORABLE GENE E.K. PRATTER. (rab, ) (Entered: 01/30/2006)
126 MOTION to Amend the Scheduling Order filed by DISABLED IN ACTION OF PENNSYLVANIA, Certificate of Service.(IACULLO, ROCCO) Modified on 3/14/2006 (cdd, ). (Entered: 03/10/2006)
127 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY RESPONSE TO DIA'S MOTION TO AMEND THE SCHEDULING ORDER, CERTIFICATE OF SERVICE. (jl, ) (Entered: 03/15/2006)
128 SCHEDULING ORDER THAT ANY MOTIONS FOR SUMMARY JUDGMENT OR DAUBERT MOTIONS SHALL BE FILED AND SERVED ON OR BEFORE 4/5/06; THIS CASE SHALL REMAIN IN THE COURT'S 4/25/06 TRIAL POOL; ETC.. SIGNED BY JUDGE GENE E.K. PRATTER ON 3/16/06. 3/20/06 ENTERED AND COPIES MAILED, E−MAILED.(jl, ) (Entered: 03/20/2006)
129 MOTION for Summary Judgment Memorandum of Law in Support of Motion for Summary Judgment and Statement of Undisputed Facts filed by DISABLED IN ACTION OF PENNSYLVANIA.Memorandum, Certificate of Service, Exhibits to Follow in Mail. (Attachments: # 1 Proposed Order)(IACULLO, ROCCO) (Entered: 04/05/2006)
130 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY MOTION FOR SUMMARY JUDGMENT, BRIEF, CERTIFICATE OF SERVICE, EXHIBITS.. (Attachments: # 1 BRIEF# 2 CERTIFICATE OF SERVICE)(jl, ) (Entered: 04/06/2006)
131 EXHIBITS by DISABLED IN ACTION OF PENNSYLVANIA. IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. (jl, ) (Entered: 04/11/2006)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 14 of 19

04/28/2006
05/03/2006 05/03/2006 05/03/2006 05/04/2006 05/10/2006
05/12/2006 06/29/2006 07/17/2006 11/17/2006
11/22/2006 12/15/2006 12/15/2006 12/15/2006 12/21/2006

132 NOTICE of Hearing on Motion 129 MOTION for Summary Judgment Memorandum of Law in Support of Motion for Summary Judgment and Statement of Undisputed Facts: MOTION HEARING SET FOR 6/29/2006 10:00 AM IN COURTROOM BEFORE HONORABLE GENE E.K. PRATTER. (rab) (Entered: 04/28/2006)
133 RESPONSE to Motion re 130 MOTION for Summary Judgment and Memorandum of Law In Opposition Thereto filed by DISABLED IN ACTION OF PENNSYLVANIA, Certificate of Service. (IACULLO, ROCCO) Modified on 5/4/2006 (np). (Entered: 05/03/2006)
134 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ANSWER TO PLAINTIFF DIA'S MOTION FOR SUMMARY JUDGMENT, BRIEF, CERTIFICATE OF SERVICE. (Attachments: # 1 BRIEF# 2 CERTIFICATE OF SERVICE)(jl, ) (Entered: 05/04/2006)
135 EXHIBITS by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY IN SUPPORT OF SEPTA' BRIEF IN OPPOSITION TO DIA'S MOTION FOR SUMMARY JUDGMENT. (jl, ) (Entered: 05/04/2006)
136 EXHIBITS by DISABLED IN ACTION OF PENNSYLVANIA RESPONSE TO DEFENDANT SEPTA'S MOTION FOR SUMMARY JUDGMENT, MEMORANDUM. (jl, ) (Entered: 05/04/2006)
137 REPLY in support of 129 MOTION for Summary Judgment Memorandum of Law in Support of Motion for Summary Judgment and Statement of Undisputed Facts Reply In Support of Motion for Summary Judgment, Certificate of Service filed by DISABLED IN ACTION OF PENNSYLVANIA. (IACULLO, ROCCO) Modified on 5/16/2006 (fh, ). (Entered: 05/10/2006)
138 SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, CERTIFICATE OF SERVICE. (Attachments: # 1 CERTIFICATE OF SERVICE)(jl, ) (Entered: 05/15/2006)
139 Minute Entry for proceedings held before Judge GENE E.K. PRATTER : Motion Hearing held on 6/29/06 re 130 MOTION for Summary Judgment filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, (jl, ) (Entered: 06/29/2006)
140 TRANSCRIPT of Proceedings: Motion for Summary Judgment held on 6/29/06 before Judge GENE E. K. PRATTER. Court Reporter: MICHAEL COYLE. (pr, ) (Entered: 07/17/2006)
141 MEMO AND ORDER denying 129 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, granting DEFENDANTS'S 130 MOTION FOR SUMMARY JUDGMENT. THE CLERK OF COURT IS INSTRUCTED TO ENTER JUDGMENT IN FAVOR OF SEPTA AND TO MARK THIS CASE AS CLOSED. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/17/06.11/17/06 ENTERED AND COPIES MAILED AND E−MAILED. (rab) Modified on 11/21/2006 (rab, ). (Entered: 11/17/2006)
142 CLERK'S JUDGMENT IN FAVOR OF Defendant AGAINST Plaintiff. SIGNED BY JUDGE GENE E.K. PRATTER ON 11/22/2006. 11/22/2006 ENTERED AND COPIES MAILED AND E−MAILED.(rab) (Entered: 11/22/2006)
APPEAL fee: $ 455.00, receipt number 9355288 (jl, ) (Entered: 12/15/2006)
143 NOTICE OF APPEAL as to 141 Order on Motion for Summary Judgment,,,, 142 Clerk's Judgment by DISABLED IN ACTION OF PENNSYLVANIA. Filing fee $ 455. Copies to Judge, Clerk USCA, Appeals Clerk and ROCCO J. IACULLO (IACULLO, ROCCO) (Entered: 12/15/2006)
144 Clerk's Notice to USCA re 143 Notice of Appeal: (jl, ) Modified on 12/18/2006 (jl, ). (Entered: 12/18/2006)
NOTICE of Docketing Record on Appeal from USCA re 143 Notice of Appeal filed by DISABLED IN ACTION OF PENNSYLVANIA,. USCA Case Number 06−5109. (mjo, ) (Entered: 12/21/2006)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 15 of 19

01/02/2007 08/26/2008 08/26/2008 09/10/2008
09/16/2008 09/16/2008 09/29/2008 10/03/2008 10/14/2008 10/21/2008
10/21/2008 11/04/2008 11/25/2008 11/25/2008 12/11/2008

145 Copy of TPO Form re 143 Notice of Appeal: (jl, ) (jl, ). (Entered: 01/02/2007)
146 NOTICE of Appearance by JO BENNETT on behalf of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY with Certificate of Service(BENNETT, JO) (Entered: 08/26/2008)
147 NOTICE of Appearance by MICHAEL G. TIERCE on behalf of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY with Certificate of Service(TIERCE, MICHAEL) (Entered: 08/26/2008)
148 ORDER of USCA as to 143 Notice of Appeal filed by DISABLED IN ACTION OF PENNSYLVANIA. ORDERED AND ADJUDGED THAT THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ENTERED 11/17/06, BE AND THE SAME IS HEREBY REVERSED AND REMAND FOR FURTHER PROCEEDINGS CONSISTENT WITH THE OPINION. ALL OF THE ABOVE IN ACCORDANCE WITH THE OPINION OF THIS COURT; ETC. (jl, ) (Entered: 09/10/2008)
149 ORDER THAT A CONFERENCE IS SET FOR 10/20/2008 AT 2:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE GENE E.K. PRATTER, ETC. SIGNED BY HONORABLE GENE E.K. PRATTER ON 9/15/08. 9/16/08 ENTERED AND COPIES MAILED, E−MAILED.(lisad, ) (Entered: 09/16/2008)
Set/Reset Hearings: CONFERENCE SET FOR 10/20/2008 02:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE GENE E.K. PRATTER. (lisad, ) (Entered: 09/17/2008)
150 NOTICE of Appearance by LISA MARIE SCIDURLO on behalf of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY with Certificate of Service(SCIDURLO, LISA) (Entered: 09/29/2008)
151 NOTICE of Withdrawal of Appearance by SAUL H. KRENZEL on behalf of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY(KRENZEL, SAUL) (Entered: 10/03/2008)
152 NOTICE of Withdrawal of Appearance by LAWRENCE R. WOEHRLE on behalf of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, certificate of service.(jl, ) (Entered: 10/15/2008)
153 NOTICE of Hearing: STATUS CONFERENCE SET FOR 12/1/2008 02:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE GENE E.K. PRATTER. COUNSEL ARE REMINDED THAT ANY AMENDMENTS TO DIA'S BRIEFING ARE DUE NO LATER THAN NOVEMBER 4, 2008, AND ANY AMENDMENTS TO SEPTA'S BRIEFING ARE DUE NO LATER THAN JANUARY 9, 2009.(rab) (Entered: 10/21/2008)
154 Minute Entry for proceedings held before HONORABLE GENE E.K. PRATTER: Status Conference held on 10/20/08. (jl, ) (Entered: 10/21/2008)
155 MOTION for Summary Judgment filed by DISABLED IN ACTION OF PENNSYLVANIA.Memorandum, Certificate of Service.(IACULLO, ROCCO) (Entered: 11/04/2008)
156 NOTICE OF CANCELLATION OF 153 Notice of Hearing WHICH WAS SCHEDULED FOR DECEMBER 1,2008 AT 2:00 P.M. BEFORE THE HON. GENE E.K. PRATTER. (rab) (Entered: 11/25/2008)
157 Order Referring Case to MAGISTRATE JUDGE TIMOTHY R. RICE FOR A SETTLEMENT CONFERENCE. SIGNED BY HONORABLE GENE E.K. PRATTER ON 11/24/08. 11/25/08 ENTERED AND COPIES MAILED AND E−MAILED.(rab) (Entered: 11/25/2008)
158 NOTICE of Hearing:SETTLEMENT CONFERENCE SET FOR 1/7/2009 AT 9:30 A.M., IN JUDGE'S CHAMBERS BEFORE MAGISTRATE JUDGE TIMOTHY R. RICE. NOTICE FAXED TO COUNSEL ON 12/11/08.(cms) (Entered: 12/11/2008)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 16 of 19

01/08/2009
01/08/2009 01/08/2009 01/08/2009 01/15/2009 01/16/2009 01/16/2009
01/28/2009 01/29/2009
01/29/2009 02/13/2009 02/13/2009 02/13/2009
04/20/2009

159 ORDERED THAT DEFENDANT'S REQUEST FOR AN EXTENSION OF TIME TO FILE ITS BRIEF IN THIS MATTER IS GRANTED. DEFENDANT SEPTA SHALL SUBMIT ITS BRIEF ON OR BEFORE JANUARY 16, 2009. SIGNED BY HONORABLE GENE E.K. PRATTER ON 01/07/2009. 01/08/2009 ENTERED AND COPIES MAILED AND E−MAILED.(rab) (Entered: 01/08/2009)
Set/Reset Deadlines as to 155 MOTION for Summary Judgment. RESPONSES DUE BY 1/16/2009. (rab) (Entered: 01/08/2009)
160 Minute Entry for proceedings held before MAGISTRATE JUDGE TIMOTHY R. RICE: Settlement Conference held on 1/7/09. (jl, ) (Entered: 01/08/2009)
161 ORDER THAT A SETTLEMENT CONFERENCE IN THE ABOVE−CAPTIONED CASE WILL BE HELD ON 1/28/09 AT 9:30 A.M. IN ROOM 3029; ETC.. SIGNED BY MAGISTRATE JUDGE TIMOTHY R. RICE ON 1/8/09. 1/8/09 ENTERED AND E−MAILED.(jl, ) (Entered: 01/08/2009)
Mail Returned as Undeliverable. Mail sent to ADAM DESIPIO (jl, ) (Entered: 01/15/2009)
162 RESPONSE to Motion re 155 MOTION for Summary Judgment filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. (Attachments: # 1 Text of Proposed Order Order)(BENNETT, JO) (Entered: 01/16/2009)
163 MOTION for Summary Judgment filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.Brief, Certificate of Service. (Attachments: # 1 SEPTA's Statement of Undisputed Facts, # 2 Exhibit Exhibit 75 to SEPTA's Statement of Undisputed Facts, # 3 SEPTA's Brief in Support of Its Motion for Summary Judgment, # 4 Text of Proposed Order Order)(BENNETT, JO) (Entered: 01/16/2009)
164 Minute Entry for proceedings held before MAGISTRATE JUDGE TIMOTHY R. RICE: Settlement Conference held on 1/28/09. (jl, ) (Entered: 01/28/2009)
165 ORDERED THAT PLAINTIFF'S REQUEST FOR AN EXTENSION OF TIME TO FILE ITS RESPONSE TO RE 163 MOTION for Summary Judgment filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY HAS BEEN GRANTED. PLAINTIFF SHALL SUBMIT ITS RESPONSE ON OR BEFORE FEBRUARY 13,2009. SIGNED BY HONORABLE GENE E.K. PRATTER ON 01/28/2009. 01/29/2009 ENTERED AND COPIES MAILED AND E−MAILED.(rab) (Entered: 01/29/2009)
Set/Reset Deadlines as to 163 MOTION for Summary Judgment. RESPONSES DUE BY 2/13/2009. (rab) (Entered: 01/29/2009)
166 REPLY to Response to Motion re 163 MOTION for Summary Judgment Plaintiff's Reply Brief in Support of its Motion for Summary Judgment and In Opposition to Defendant SEPTA's Motion for Summary Judgment filed by DISABLED IN ACTION OF PENNSYLVANIA. (IACULLO, ROCCO) (Entered: 02/13/2009)
167 RESPONSE to Motion re 163 MOTION for Summary Judgment Plaintiff DIA's Response to Defendant SEPTA's Statement of Undisputed Facts filed by DISABLED IN ACTION OF PENNSYLVANIA. (IACULLO, ROCCO) (Entered: 02/13/2009)
168 REPLY to Response to Motion re 163 MOTION for Summary Judgment Plaintiff DIA's Reply Brief In Support of Its Motion for Summary Judgment and Brief in Opposition to Defendant SEPTA's Motion for Summary Judgment, Certificate of Service filed by DISABLED IN ACTION OF PENNSYLVANIA. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5)(IACULLO, ROCCO) (Entered: 02/13/2009)
169 NOTICE of Hearing on Motion 163 MOTION for Summary Judgment, 155 MOTION for Summary Judgment : MOTION HEARING SET FOR 6/19/2009 02:00 PM IN COURTROOM BEFORE HONORABLE GENE E.K.

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 17 of 19

09/11/2009 09/11/2009
09/22/2009 09/24/2009
09/24/2009 10/09/2009 10/09/2009 10/13/2009 10/20/2009 10/22/2009
10/28/2009 10/30/2009 01/12/2010

PRATTER.(rab) (Entered: 04/20/2009)
170 MEMORANDUM AND/OR OPINION GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. SIGNED BY HONORABLE GENE E.K. PRATTER ON 09/11/09. 09/11/09 ENTERED AND COPIES MAILED and E−MAILED.(rab) (Entered: 09/11/2009)
171 ORDERED THAT PLAINTIFF'S MOTION (DOCKET NO. 155) IS GRANTED AND DEFENDANT'S MOTION (DOCKET NO. 163) IS DENIED. SEPTA SHALL, NO LATER THAN OCTOBER 30, 2009 SUBMIT TO THE COURT, WITH A COPY TO PLAINTIFF'S COUNSEL, A PROPOSED SCHEDULE OF COMPLIANCE WITH THIS ORDER. SIGNED BY HONORABLE GENE E.K. PRATTER ON 09/11/09. 09/11/09 ENTERED AND COPIES MAILED AND E−MAILED.(rab) (Entered: 09/11/2009)
172 MOTION for Extension of Time to File Motion for Attorneys' Fees, Litigation Expenses, and Costs filed by DISABLED IN ACTION OF PENNSYLVANIA.Certificate of Counsel, Certificate of Service.(IACULLO, ROCCO) (Entered: 09/22/2009)
173 ORDER granting 172 PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE ITS MOTION FOR ATTORNEYS' FEES, LITIGATION EXPENSES, AND COSTS. PLAINTIFF SHALL SUBMIT ITS MOTION FOR ATTORNEYS' FEES, LITIGATION EXPENSES, AND COSTS TO THE COURT NO LATER THAN OCTOBER 26, 2009. SIGNED BY HONORABLE GENE E.K. PRATTER ON 09/23/09.09/24/09 ENTERED AND COPIES MAILED AND E−MAILED.(rab) (Entered: 09/24/2009)
Set/Reset Scheduling Order Deadlines: MOTIONS DUE BY 10/26/2009. (rab) (Entered: 09/24/2009)
174 NOTICE OF APPEAL as to 171 Order (Memorandum and/or Opinion), Order (Memorandum and/or Opinion) by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. Copies to Judge, Clerk USCA, Appeals Clerk and JO BENNETT, Certificate of Service. (BENNETT, JO) Modified on 10/13/2009 (nd, ). (Entered: 10/09/2009)
175 Clerk's Notice to USCA re 174 Notice of Appeal, : (jl, ) (Entered: 10/13/2009)
APPEAL fee: $ 455.00, receipt number PPEO10736 (jl, ) (Entered: 10/13/2009)
176 MOTION for Extension of Time to File Motion for Attorneys' Fees, Litigation Expenses, and Costs filed by DISABLED IN ACTION OF PENNSYLVANIA.Certificate of Service. (Attachments: # 1 Exhibit)(IACULLO, ROCCO) (Entered: 10/20/2009)
177 ORDER granting 176 MOTION FOR EXTENSION OF TIME TO FILE. PLAILNTIFF SHALL SUBMIT ITS MOTION FOR ATTORNEYS' FEES, LITIGATION EXPENSES, AND COSTS TO THE COURT NO LATER THAN THIRTY DAYS AFTER THE U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT ISSUES A DECISION ON SEPTA'S PENDING APPEAL. SIGNED BY HONORABLE GENE E.K. PRATTER ON 10/21/09.10/22/09 ENTERED AND COPIES MAILED AND E−MAILED.(rab) (Entered: 10/22/2009)
NOTICE of Docketing Record on Appeal from USCA re 174 Notice of Appeal, filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. USCA Case Number 09−3964 (jl, ) (Entered: 10/28/2009)
178 Statement SEPTA'S STATEMENT REGARDING PROPOSED SCHEDULE OF COMPLIANCE WITH THIS COURT'S ORDER OF SEPTEMBER 11, 2009 by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. (BENNETT, JO) (Entered: 10/30/2009)
179 TRANSCRIPT of HEARING held on 6/19/09, before Judge PRATTER. Court Reporter/Transcriber SUZANNE WHITE. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 18 of 19

01/12/2010 03/23/2011 03/29/2011 03/29/2011 04/05/2011 04/05/2011 04/06/2011
04/06/2011 04/11/2011 05/17/2011
05/24/2011 05/24/2011

through PACER.. Redaction Request due 2/2/2010. Redacted Transcript Deadline set for 2/12/2010. Release of Transcript Restriction set for 4/12/2010. (jl, ) (Entered: 01/13/2010)
180 Notice of Filing of Official Transcript with Certificate of Service re 179 Transcript − PDF, 1/13/10 Entered and Copies Emailed and Mailed.. (jl, ) (Entered: 01/13/2010)
181 ORDER of USCA THAT THE JUDGMENT OF THE DISTRICT COURT ENTERED ON 9/11/09 IS HEREBY AFFIRMED. ALL OF THE ABOVE IN ACCORDANCE WITH THE OPINION OF THIS COURT. THE PARTIES SHALL EACH BEAR THEIR OWN COSTS; ETC. (jl, ) (Entered: 03/24/2011)
182 MOTION for Extension of Time to File Motion for Attorneys' Fees, Litigation Expenses, and Costs filed by DISABLED IN ACTION OF PENNSYLVANIA.Memorandum of Law, Certificate of Service. (Attachments: # 1 Text of Proposed Order)(IACULLO, ROCCO) (Entered: 03/29/2011)
183 MOTION for Attorney Fees Litigation Expenses, and Costs filed by DISABLED IN ACTION OF PENNSYLVANIA.Memorandum of Law, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Exhibits A &B, # 3 Exhibits C, D, E, &F, # 4 Exhibit G, Pt. 1, # 5 Exhibit G, Pt. 2, # 6 Exhibit G, Pt. 3, # 7 Exhibits H, I, &J, # 8 Exhibits K &L)(IACULLO, ROCCO) (Entered: 03/29/2011)
184 RESPONSE to Motion re 182 MOTION for Extension of Time to File Motion for Attorneys' Fees, Litigation Expenses, and Costs filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. (BENNETT, JO) (Entered: 04/05/2011)
185 RESPONSE in Opposition re 183 MOTION for Attorney Fees Litigation Expenses, and Costs filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. (Attachments: # 1 Text of Proposed Order)(BENNETT, JO) (Entered: 04/05/2011)
186 ORDER granting 182 MOTION FOR EXTENSION OF TIME TO FILE. PLAINTIFF'S MOTION FOR FEES IS THEREFORE TIMELY AS PREVIOUSLY FILED. THE PARTIES SHALL HAVE UNTIL APRIL 20, 2011 TO FILE ANY APPLICATION TO THE COURT FOR DELINEATED DISCOVERY IN RELATION TO DIA'S MOTION FOR FEES. THE COURT SHALL HEAR ORAL ARGUMENT ON THE MOTION FOR FEES ON JUNE 2, 2011 AT 10:00 A.M. IN COURTROOM 10B IN THE U.S. COURTHOUSE AT 601 MARKET STREET IN PHILADELPHIA, PA. SIGNED BY HONORABLE GENE E.K. PRATTER ON 4/6/11.4/6/11 ENTERED AND COPIES MAILED AND E−MAILED.(rab, ) (Entered: 04/06/2011)
Set/Reset Deadlines as to 183 MOTION for Attorney Fees Litigation Expenses, and Costs. MOTION HEARING SET FOR 6/2/2011 10:00 AM IN COURTROOM BEFORE HONORABLE GENE E.K. PRATTER. (rab, ) (Entered: 04/06/2011)
Mail Returned as Undeliverable. Mail sent to ADAM DESIPIO (jl, ) (Entered: 04/11/2011)
187 ORDERED THAT UPON CONSIDERATION OF CORRESPONDENCE FROM COUNSEL FOR SEPTA DATED APRIL 19, 2011, IT IS HEREBY ORDERED THAT THE PARTIES HAVE UNTIL MAY 24, 2011 TO SUBMIT ANY LEGAL MEMORANDA RELATING TO THE MOTION FOR FEES FILED BY PLAINTFF. SIGNED BY HONORABLE GENE E.K. PRATTER ON 5/13/11. 5/17/11 ENTERED AND COPIES E−MAILED.(rab, ) (Entered: 05/17/2011)
188 AFFIDAVIT in Support re 183 MOTION for Attorney Fees Litigation Expenses, and Costs Plaintiffs' Supplement to Motion for Attorneys' Fees filed by DISABLED IN ACTION OF PENNSYLVANIA. (Attachments: # 1 Affidavit, # 2 Affidavit)(GOLD, STEPHEN) (Entered: 05/24/2011)
189 RESPONSE in Opposition re 183 MOTION for Attorney Fees Litigation Expenses, and Costs filed by SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. (Attachments: # 1 Text of Proposed Order)(BENNETT, JO)

Case: 2:03-cv-01577-GP As of: 08/29/2012 02:50 PM EDT 19 of 19

08/26/2011 08/29/2011 09/14/2011 09/16/2011

(Entered: 05/24/2011)
190 NOTICE of Hearing: STATUS CONFERENCE SET FOR 9/8/2011 10:00 AM IN JUDGE CHAMBERS, ROOM 10613, BEFORE HONORABLE GENE E.K. PRATTER.(rab, ) (Entered: 08/26/2011)
191 NOTICE of RESCHEDULED Hearing: STATUS CONFERENCE RESCHEDULED FOR 9/12/2011 10:00 AM IN JUDGE CHAMBERS BEFORE HONORABLE GENE E.K. PRATTER.(rab, ) (Entered: 08/29/2011)
192 Minute Entry for proceedings held before HONORABLE GENE E.K. PRATTER: Status Conference held on 9/12/11. (jl, ) (Entered: 09/14/2011)
193 ORDER APPROVING CONSENT DECREE WHICH SETS FORTH ALL ACCEPTED PROVISIONS TO FINALIZE THIS MATTER. SIGNED BY HONORABLE GENE E.K. PRATTER ON 9/15/11. 9/16/11 ENTERED AND COPIES E−MAILED.(rab, ) (Entered: 09/16/2011)

 
 Case: 09-3964 Document: 003110166253 Page: 1 Date Filed: 06/02/2010
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 09-3964
DISABLED IN ACTION OF PENNSYLVANIA, APPELLEE,
V. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY ("SEPTA"), APPELLANT.

APPEAL FROM THE MEMORANDUM AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ENTERED SEPTEMBER 11, 2009 IN CIVIL ACTION NO. 03-CV-1577

BRIEF FOR APPELLEE

STEPHEN F. GOLD 1709 BENJAMIN FRANKLIN PKWY. 2ND FLOOR PHILADELPHIA, PA 19103 (215) 627-7100

MARK J. MURPHY ROCCO J. IACULLO ROBIN RESNICK DISABILITY RIGHTS NETWORK OF PA 1315 WALNUT STREET, SUITE 500 PHILADELPHIA, PA 19107-4705 (215) 238-8070

COUNSEL FOR APPELLEE

Case: 09-3964 Document: 003110166253 Page: 2 Date Filed: 06/02/2010

CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Appellee, Disabled in Action of Pennsylvania, states that it does not have any parent corporation, that it issues no stock, and that there is no publicly held corporation that is not a party to this proceeding which has any financial interest in the outcome of the proceeding.

Dated: June 2, 2010

By: /s/ Stephen F. Gold Stephen F. Gold Co-Counsel for Appellee

Case: 09-3964 Document: 003110166253 Page: 3 Date Filed: 06/02/2010
TABLE OF CONTENTS
Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. SEPTA's Alterations to the 15th Street Courtyard Entrance . . . . . . . 4
C. SEPTA's Alterations to the City Hall Station Exit . . . . . . . . . . . . . . 8
Related Cases and Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
II. SEPTA Violated the ADA's and RA's Accessible Alterations Mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
A. Congress Intended that Public Transportation Providers Assure that Alterations Are Accessible . . . . . . . . . . . . . . . . . 14
B. SEPTA's Demolition and Reconstruction of the Staircase at the 15th Street Courtyard Entrance and Its Replacement of the Inoperable Escalator at the City Hall Station Exit Constitute "Alterations" that Triggered the ADA's Accessibility Mandate . . . . . . . . . . . . . . . . . . . . 17
1. The Total Renovation of the Stairway and Replacement of the Escalator Constitute "Alterations" Under the ADA . . . . . . . . . . . . . . . . . . . 17

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2. This Court's Rulings in DIA v. Sykes and Kinney v. Yerusalim Establish that the Renovations in this Case Are "Alterations" Under the ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3. SEPTA's Narrow Interpretation of the Term "Alterations" to Mean Only Structural Modifications that Impact Load-Bearing Walls Is Contrary to DOT's Regulations and This Court's Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4. The ADA's Accessible Alterations Mandate Does Not Balance Accessibility Against Costs . . . . . . . . . 28
III. The ADA Required the Alterations to the 15th Street Courtyard Entrance to Be Made in an Accessible Manner Even Though There Are Now Elevators in Suburban Station . . . . . . . . 31
A. The 15th Street Courtyard Entrance Is an Independent Facility or Part of the 15th Street Station and, As Such, the Alterations Had to Be Made In An Accessible Manner . . . . . . . . . . . . . . . . . . . . . 32
1. Property Lines Are Not Definitive in Determining Whether the 15th Street Courtyard Entrance Is Part of the 15th Street Station or Suburban Station . . . . . . . . . . . . . . 35
2. The Property Lines of Suburban Station Are Too Muddled to Be Dispositive of the Designation of the 15th Street Courtyard Entrance As Solely Part of Suburban Station . . . . . . 36
B. Assuming Arguendo that the 15th Street Courtyard Entrance Is Part of Suburban Station, the ADA Required SEPTA to Make the 15th Street Courtyard Entrance Alterations Accessible . . . . . . . . . . . . . . . . . . . . . 38
ii

Case: 09-3964 Document: 003110166253 Page: 5 Date Filed: 06/02/2010
1. The ADA Requires Alterations to Key Stations Be Made in an Accessible Manner Regardless of Whether There Are Other Accessible Entrances to the Stations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2. The Installation of Elevators at 16th and 17th Streets After the Inaccessible Alterations to the 15th Street Courtyard Entrance Defeats SEPTA's Reliance on the Alleged "One Accessible Entrance" Standard . . . . . . . . . . . . . . . . . . 44
IV. SEPTA's Untimely Assertion that the City of Philadelphia Is a Necessary Party Is Meritless . . . . . . . . . . . . . . . . . . . . . . . . . . 45 A. SEPTA's Assertion of This Defense Is Untimely . . . . . . . . 45 B. The City Is Not a Necessary Party . . . . . . . . . . . . . . . . . . . . 47
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
iii

Case: 09-3964 Document: 003110166253 Page: 6 Date Filed: 06/02/2010
TABLE OF CITATIONS
Cases
Alcoa, Inc. v. United States, 509 F.3d 173 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
American Eagle Outfitters v. Lyle & Scott, Ltd., 584 F.3d 575 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Arnold v. Blast Intermediate Unit 17, 843 F.2d 122 (3d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30
Disabled in Action v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied, 485 U.S. 989 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20, 21, 22, 23
Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Auth.,
539 F.3d 199 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 33, 41
George v. Bay Area Rapid Transit, 577 F.3d 1005 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
General Refractories Co. v. First State Ins. Co., 500 F.3d 306 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Fireman's Fund Ins. Co. v. Nat'l Bank of Cooperatives, 103 F.3d 888 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Harris v. City of Philadelphia, 47 F.3d 1311 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Ilan-Gat Engineers, Ltd. v. Antigua International Bank, 659 F.2d 234 (D.C. Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
iv

Case: 09-3964 Document: 003110166253 Page: 7 Date Filed: 06/02/2010
Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432 (5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994) . . . . . . . . . . . . . . . . . . . . . 15, 16, 20, 21, 22, 23, 29
Molloy v. Metropolitan Transp. Auth., 94 F.3d 808 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pittsburgh Logistics Systems, Inc. v. C.R. England, Inc., 669 F. Supp. 2d 613 (W.D. Pa. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Roberts v. Royal Atlantic Corp., 542 F.3d 363 (2d Cir. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 1581 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006 (3d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Torretti v. Main Line Hospitals, Inc., 580 F.3d 168 (3d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Cooper, 396 F.3d 308 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
United States v. Rylander, 460 U.S. 752 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
United States ex rel. Morongo Band of Mission Indians v. Rose, 34 F.3d 901 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Statutes, Regulations, and Legislative History
29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
42 U.S.C. § 12101(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 v

Case: 09-3964 Document: 003110166253 Page: 8 Date Filed: 06/02/2010
42 U.S.C. §§ 12131-12165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 12146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 42 U.S.C. § 12147(a) . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 17, 23, 27, 28, 30, 39 42 U.S.C. § 12147(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 42 U.S.C. § 12148(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 12149(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 12149(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 12162(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 12162(e)(2)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 12162(e)(2)(B)(i) . . . . . . . . . . . . . . . . .10, 15, 17, 23, 27, 28, 30, 39 42 U.S.C. § 12163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 12183(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 28 C.F.R. § 35.151(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 49 C.F.R. § 37.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 18, 19, 23, 24, 32, 35 49 C.F.R. § 37.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 49 C.F.R. § 37.9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 26, 39 49 C.F.R. § 37.9(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
vi

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49 C.F.R. § 37.41(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 49 C.F.R. § 37.43(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 27 49 C.F.R. § 37.43(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 49 C.F.R. § 37.47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15 49 C.F.R. § 37.47(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 39, 41 49 C.F.R. § 37.51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 49 C.F.R. § 37.51(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 39, 41 49 C.F.R. § 37.61(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 49 C.F.R. Pt. 37, App. D, § 37.43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 29 ADAAG § 3.5 (1991), codified at 49 C.F.R. Pt. 49, App. A (2006) . . . . 33, 35 ADAAG § 4.1.6(1)(d) (1991), codified at 49 C.F.R. Pt. 49, App. A (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 ADAAG § 4.1.6(1)(f) (1991), codified at 49 C.F.R. Pt. 49, App. A (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 ADAAG § 10.3.1(2) (1991), codified at 49 C.F.R. Pt. 49, App. A (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 ADAAG § 10.3.2(1) (1991), codified at 49 C.F.R. Pt. 49, App. A (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 38, 44 Fed. R. Civ. P. 12(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Fed. R. Civ. P. 12(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Fed. R. Civ. P. 19(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Fed. R. Civ. P. 19(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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Fed. R. Civ. P. 19(a)(1)(B)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 H.R. Rep. No. 101-485, pt. 3 (1990), reprinted in
1990 U.S.C.C.A.N. 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Miscellaneous Merriam-Webster Online Dictionary, available at
http://www.merriam-webster.com/dictionary . . . . . . . . . . . . . . . 19, 36
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STATEMENT OF ISSUES 1. Did the District Court correctly conclude that the massive renovations to the 15th Street Courtyard Entrance and the City Hall Station Exit constitute "alterations," which, under the express mandate of the Americans with Disabilities Act and Rehabilitation Act, must be made in a manner that is readily accessible to and usable by individuals with mobility disabilities? 2. Did the District Court correctly conclude that the ADA and RA required SEPTA to make the alterations to the 15th Street Courtyard Entrance in a manner accessible to individuals with mobility disabilities regardless of the subsequent installation of elevators at Suburban Station? 3. Is the City of Philadelphia an indispensable party with respect to DIA's City Hall Exit claim when SEPTA never raised that defense in the District Court and when the City will not be prejudiced by the District Court's Order granting relief to DIA?
STATEMENT OF THE CASE Plaintiff-Appellee, Disabled in Action of Pennsylvania (DIA or Plaintiff), filed this lawsuit against Defendant-Appellant, Southeastern Pennsylvania Transportation Authority (SEPTA or Defendant), in March 2003. (Docket # 1). In its Complaint, DIA asserted that SEPTA violated the accessibility standards of Title II of the ADA, 42 U.S.C. §§ 12131-12165, and Section 504 of the RA, 29 U.S.C. § 794, by, inter alia, failing to make alterations to its facilities at 15th and

Case: 09-3964 Document: 003110166253 Page: 12 Date Filed: 06/02/2010
Market Streets and City Hall in a manner that made them readily accessible to and usable by individuals with disabilities. Fourth Am. Compl. ¶ 60 (J.A. at 105).
By Memorandum and Order dated November 17, 2006, the District Court granted summary judgment for SEPTA on both of DIA's claims. (Docket # 141). The Court held that federal regulations precluded DIA's key station claim and that the statute of limitations barred its inaccessible alterations claim.1 Mem. at 24-40 (Docket # 141).
On DIA's appeal of that ruling, this Court reversed, holding that DIA had timely filed its inaccessible alteration claim and remanding the case for further proceedings on the merits. Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transp. Auth., 539 F.3d 199 (3d Cir. 2008). Although the Court did not address the merits of the case, it appeared skeptical of two of SEPTA's arguments. First, the Court concluded that "the 15th Street Courtyard indisputably provides access to the Market-Frankford Station." Id. at 202 n.1. Second, the Court labeled as "hyper-technical" SEPTA's assertion that it had no obligation to make the City Hall Station Exit alterations in an accessible manner because it was not an "exit." Id. at 205 n.8.
1 DIA asserted that SEPTA violated the ADA by failing to treat the 15th Street Station and City Hall Station as "key stations" for purposes of accessibility. Fourth Am. Compl. ¶¶ 61-62 (J.A. at 105-06). DIA did not appeal the grant of summary judgment to SEPTA on that claim. See Mem. at 40-72 (Docket # 141).
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On remand, the parties renewed their cross-motions for summary judgment on DIA's inaccessible alterations claim. (Docket ## 155, 163). Following oral argument (J.A. at 1070), the Court granted DIA's motion for summary judgment and denied SEPTA's motion for summary judgment. The Court held that: (1) the renovations to the 15th Street and City Hall Stations were "alterations" that, under the ADA, were required to be made in a manner that was readily accessible to and usable by individuals with mobility disabilities; (2) the altered facilities are not "readily accessible"; and (3) SEPTA failed to establish it was not feasible to make those facilities accessible. Mem. at 9-27 (J.A. at 13-31). SEPTA has now appealed that ruling. (J.A. at 1).
STATEMENT OF FACTS A. The Parties
DIA is a non-profit corporation that advocates for the civil rights of persons with disabilities, including the elimination of disability discrimination in transportation and other aspects of community life so that people with disabilities can achieve equality with their non-disabled peers. Pl.'s Statement of Undisputed Facts (SUF) & Def.'s Resp. ## 1, 3 (J.A. at 988, 1017). DIA's members include people with multiple disabilities, including wheelchair users who travel on SEPTA. Id. # 2 (J.A. at 988, 1017).
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SEPTA is an agency and instrumentality of the Commonwealth of Pennsylvania and a recipient of federal financial assistance, which makes it subject to the requirements of Title II of the ADA and Section 504 of the RA. Pl.'s SUF & Def.'s Resp. ## 8, 11 (J.A. at 989, 1018). SEPTA provides public transportation in southeastern Pennsylvania, including a network of fixed-route services, such as bus, light rail, rapid rail, and commuter rail services. Id. # 9 (J.A. at 989, 1018).
B. SEPTA's Alterations to the 15th Street Courtyard Entrance The 15th Street Station is a station on the Market-Frankford Elevated Line, a rapid rail line that operates from northeast Philadelphia through Center City and west Philadelphia to Delaware County. Pl.'s SUF & Def.'s Resp. ## 12, 13, 14, 18 (J.A. at 990, 1019). The 15th Street Station is located underground in the vicinity of 15th and Market Streets in the heart of Center City Philadelphia. See id. # 15 (J.A. at 990, 1019). The 15th Street Station serves as a major transfer point and interchange with other SEPTA lines, including the Broad Street Subway, the Subway-Surface Trolleys, and the Regional Rail Lines. See Pl.'s Exh. 8 (J.A. at 550, 551). The 15th Street Station is by far the busiest on the Market-Frankford Line, serving almost 30,000 passengers daily -- nearly double the second busiest station. See Pl.'s Exh. 13 at COP-2464 (Docket # 131). There are two entrances adjacent to the 15th Street Station. One is located at the southwest corner of 15th and Market Streets at Claes Oldenburg's Clothespin
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statue. See Def.'s Resp. to Pl.'s SUF # 20 (J.A. at 1020); Pl.'s Exh. 20 at 66-68 (J.A. at 635-36); Def.'s Exh. 58 (J.A. at 445). The other entrance is located in the courtyard on the northwest corner of 15th and Market Streets across from City Hall and Dilworth Plaza. See Pl.'s Exh. at 20 at 66-68 (J.A. at 635-36); Def.'s Exh. 58 (J.A. at 445). The second entrance is the "15th Street Courtyard Entrance" that is at issue in this litigation. Once a person descends the stairs at the 15th Street Courtyard Entrance, it is a short distance to the cashier booths to access the Market-Frankford Elevated Line. Tr. at 20, 32 (J.A. at 1089, 1101); see also Pl.'s Exh. 20 at 66 (J.A. at 635).2
From the 15th Street Courtyard Entrance, a person can walk to the City Hall Station, the Walnut-Locust Station on the Broad Street Subway Station, the Subway Surface Lines, and the PATCO Station at 16th and Locust Streets to the south. See Pl.'s Exh. 15 (J.A. at 552); Pl.'s Exh. 8 (J.A. at 550-51). An individual can also walk from the 15th Street Courtyard Entrance to Suburban Station to the west. See Pls.' Exh. 15 (J.A. at 552). Suburban Station is a "key station" in
2 SEPTA contends that the distance from the 15th Street Courtyard Entrance to the turnstile to enter the 15th Street Station is 150 feet. SEPTA Br. at 14-15. Although one SEPTA employee guessed that it was "probably 150 feet approximately," Pls.' Exh. 24 at 34 (J.A. at 679), this appears inconsistent with the architectural rendering commissioned by SEPTA, which indicates a distance of approximately 20 meters (about 65 feet). Def.'s Exh. 58 (J.A. at 445).
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SEPTA's Regional Rail system, a commuter rail line. See Def.'s SUF # 1 (J.A. at 1003); Pl.'s SUF & Def.'s Resp. # 18 (J.A. at 991, 1020).
Prior to 2001, the 15th Street Courtyard Entrance consisted of a set of stairs and two escalators enclosed within a head house. Pl.'s SUF & Def.'s Resp. # 45 (J.A. at 995, 1026). In 2001, SEPTA began a project to alter the 15th Street Courtyard Entrance. See Pl.'s Exh. 23 (J.A. at 645). As part of this project, SEPTA demolished the existing staircase, which had been located in the middle of the Courtyard, constructed an entirely new staircase at a different location in the 15th Street Courtyard (adjacent to the southeastern wall), and replaced the head house over the escalators at that entrance. See Pl.'s SUF & Def.'s Resp. ## 47, 53 (J.A. at 996, 997, 1026-27, 1029); Pl.'s Exh. 20 at 60-61 (J.A. at 634); Pl.'s Exh. 24 at 14-15 (J.A. at 659-60); Pl.'s Exh. 26 (J.A. at 777). SEPTA admits that the staircase at the 15th Street Courtyard Entrance had to be demolished and completely replaced with a new staircase because deterioration of the concrete rendered the existing staircase unsafe and beyond repair. See Pl.'s SUF & Def.'s Resp. # 53 (J.A. at 997, 1029); Pl.'s Exh. 25 at 13 (J.A. at 762). SEPTA's photographs of the construction project depict the massive scope of the alterations. See Pl.'s Exh. 27 (J.A. at 778-861).
SEPTA completed the renovation of the 15th Street Courtyard in August 2002. Pl.'s SUF & Def.'s Resp. # 58 (J.A. at 998, 1030). SEPTA did not install an
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elevator at that Entrance, although it is undisputed that it would have been structurally feasible to do so. See id. # 59 (J.A. at 998, 1031); Pl.'s Exh. 24 at 54 (J.A. at 699); Def.'s Exh. 23 ¶¶ 1-3, 8 (J.A. at 244-45). As a result, the newly renovated 15th Street Courtyard Entrance is inaccessible to individuals with mobility disabilities. Since neither the Courtyard Entrance nor the Clothespin entrance is accessible, the 15th Street Station has no entrance that is accessible to people with mobility disabilities. See Pl.'s Exh. 8 (SEPTA transit map showing that 15th Street Station is not designated as handicap accessible) (J.A. at 551).
In 2005, three years after completion of the 15th Street Courtyard Entrance alterations, SEPTA completed the installation of two elevators from street level to the Suburban Station concourse. Def.'s Exh. 29 ¶¶ 43, 44 (J.A. at 255). One elevator is located at 17th Street and John F. Kennedy Boulevard, and the second is on 16th Street between Market Street and John F. Kennedy Boulevard. See id.
Although individuals can use the 16th Street elevator to access the Suburban Station concourse and then travel through that concourse to reach the 15th Street Courtyard Entrance, this is a distance of approximately 340 feet. See Def.'s SUF # 18 (J.A. at 1007). Individuals with mobility disabilities at 15th and Market Streets -- including those who use manual or motorized wheelchairs, walkers, canes, or who are otherwise substantially limited in their ability to walk due to arthritis or other impairments -- have to travel 680 feet (340 feet each way) to reach the same
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area that they could have reached directly if SEPTA had made the alterations to the 15th Street Courtyard Entrance in an accessible manner.
C. SEPTA's Alterations to the City Hall Station Exit The City Hall Station is a station on the Broad Street Subway Line, which runs from north Philadelphia to south Philadelphia. Pl.'s SUF & Def.'s Resp. # 62 (J.A. at 998, 1032). The City Hall Station, as its name denotes, is located in and around the area underneath Philadelphia's City Hall, which sits at Broad and Market Streets in Center City Philadelphia. See id. # 64 (J.A. at 998, 1032). The City Hall Station is the busiest station on the Broad Street Subway Line, serving approximately 57,000 passengers daily. Pl.'s Exh. 3 at SEPTA 8503 (Docket # 131). The City Hall Station has several access points for entry or exit, including an escalator from the lower south concourse level (sometimes called the mezzanine) to the southeast courtyard of City Hall. See Pl.'s SUF & Def.'s Resp. # 73 (J.A. at 1000, 1033-34); Def.'s SUF ## 48, 51 (J.A. at 1013); Pl.'s Exh. 7 (J.A. at 548). From the concourse level at the City Hall Station Exit, pedestrians can travel -without using stairs -- to the eastbound platforms of the 11th and 13th Street Stations of the Market Frankford Line, the Walnut-Locust Station concourse of the Broad Street Subway Line, the Regional Rail Lines in Suburban Station, and the
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15th and Locust Street Station of the PATCO transportation system. See Pl.'s SUF & Def.'s Resp. ## 68-70, (J.A. at 999-1000, 1033).
In August 2003, SEPTA completed the total replacement of the escalator at the City Hall Station Exit. See Pl.'s SUF & Def.'s Resp. # 71 (J.A. at 1000, 1033); Def.'s SUF # 50 (J.A. at 1013). SEPTA replaced the escalator because it had deteriorated to the point where it was completely inoperable. Pl.'s SUF & Def.'s Resp. # 72 (J.A. at 1000, 1033). The vertical clearance provided by the existing elevator proved inadequate to install the new escalator, requiring SEPTA to extend the existing wellway at the top and bottom and to relocate the truss (i.e., the structural component that physically supports the escalator along its length) in the wellway. Id. ## 75, 76 (J.A. at 1001, 1034-35). Photographs depict the extensive scope of the renovations. Pl.'s Exh. 44 (J.A. at 910-63).
In undertaking these alterations, SEPTA provided no elevator access to make the Exit accessible to individuals with mobility disabilities, including those who use wheelchairs. See Pl.'s SUF # & Def.'s Resp. 79 (J.A. at 1001, 1036). Since no other exits are accessible, City Hall Station is not an accessible facility. See Pl.'s Exh. 8 (J.A. at 549-51). It is beyond dispute that it is technically feasible for SEPTA to install an elevator at the City Hall Station Exit to provide access from the street level to the concourse level. Pl.'s SUF & Def.'s Resp. # 80 (J.A. at
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1002, 1037); Pl.'s Exh. 34 at 95 (J.A. at 888); Pl.'s Exh. 43 ¶¶ 1, 36 (J.A. at 905, 909); Def.'s SUF # 56 (J.A. at 1014).
RELATED CASES AND PROCEEDINGS SEPTA's recitation of the related cases and proceedings in this matter is accurate. SEPTA's Br. at 2.
SUMMARY OF ARGUMENT The Americans with Disabilities Act and the Rehabilitation Act explicitly make it unlawful for SEPTA to fail to make "alterations" to any part of a transportation facility that affects or could affect usability so that the altered portions of the facility are "readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon completion of the alterations." 42 U.S.C. §§ 12147(a), 12162(e)(2)(B)(i). By assuring that alterations are made in an accessible manner, Congress sought to assure that over time there would be ever-increasing access for people with mobility disabilities. The ADA's accessible alterations mandate does not excuse a transit provider from compliance based on costs; only structural infeasibility -- which is not an issue in this case -- can excuse compliance with the accessibility mandate. As the District Court correctly found, the massive reconstruction and renovations at both the 15th Street Courtyard Entrance and the City Hall Station Exit constituted "alterations" that affected the "usability" of the altered portions so
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as to trigger the ADA's accessibility mandate. Mem. at 14-15 (J.A. at 18-19). Federal regulations define "alteration" to include "remodeling, renovation, rehabilitation, [and] reconstruction." 49 C.F.R. § 37.3. Giving these words their ordinary meaning, SEPTA's complete and total replacement of the dangerous staircase and the inoperable escalator constituted "alterations" required by the ADA to be made in a manner that was accessible to individuals with mobility disabilities.
SEPTA's contention that an "alteration" is limited to structural changes that involve movement of load-bearing walls is devoid of any legal support. This tortured construction is at odds with DOT's regulatory definition as well as this Court's prior interpretation of the term "alterations" in the ADA and RA. Ignoring these dispositive interpretations, SEPTA cites to inapposite regulatory materials to support its untenable interpretation. The District Court did not err in failing to give deference to SEPTA's interpretation of these materials.
SEPTA cannot excuse its failure to comply with the ADA's accessible alterations mandate when it altered the 15th Street Courtyard Entrance by relying on the existence of elevators in Suburban Station. The 15th Street Courtyard Entrance is not part of Suburban Station, which serves the Regional Rail Lines. The Courtyard is an independent facility or part of the 15th Street Station of the Market-Frankford Line. Since there are no accessible entrances to the 15th Street Station, SEPTA was required to make the Entrance accessible.
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Even if the 15th Street Courtyard Entrance is part of Suburban Station, the ADA required SEPTA to make the alterations to that Entrance in an accessible manner. SEPTA's subsequent installation of elevators in Suburban Station cannot excuse its prior failure to make the Courtyard Entrance accessible. Moreover, DOT's regulations explicitly provide that SEPTA had an obligation to comply with the ADA's accessible alterations mandate regardless of whether it had satisfied the accessibility standards for existing key stations. 49 C.F.R. §§ 37.9(a), 37.47(a), 37.51(a).
Finally, SEPTA's argument that the City is a necessary party for relief on the City Hall Exit claim is flawed procedurally and substantively. Given that SEPTA asserts this defense for the first time on appeal, it should be rejected as untimely. Substantively, the argument lacks merit. The District Court was able to afford appropriate relief to DIA on its claims without participation by the City. Moreover, the City was not prejudiced by the disposition of the City Hall Exit claim without its involvement. The City knew about the lawsuit and did not choose to participate, apparently recognizing that existing permit and oversight processes that have been used in the past when SEPTA undertakes construction on City property are sufficient to protect its interests.
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ARGUMENT I. Standard of Review This Court's review of the entry of summary judgment is plenary. Torretti v. Main Line Hospitals, Inc., 580 F.3d 168, 172 (3d Cir. 2009). Summary judgment is appropriate when there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Id.; accord Fed. R. Civ. P. 56(c). "A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts," but, rather, only by the existence of a genuine dispute of a material fact. American Eagle Outfitters v. Lyle & Scott, Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (citation omitted). In assessing whether a factual dispute is genuine, "the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party." Id. This Court can affirm the District Court's judgment on any grounds supported by the record. Torretti, 580 F.3d at 172.
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II. SEPTA VIOLATED THE ADA'S AND RA'S ACCESSIBLE ALTERATIONS MANDATE.
A. Congress Intended that Public Transportation Providers Assure that Alterations Are Accessible. In enacting the ADA, Congress found that isolation, segregation, and discrimination against individuals with disabilities persist in the "critical area[] of ... transportation." 42 U.S.C. § 12101(a)(3). Congress also recognized that "[t]ransportation is the linchpin which enables people with disabilities to be integrated and mainstreamed into society." S. Rep. No. 101-116, at 13 (1989). Accordingly, Title II of the ADA includes detailed standards that define what constitutes unlawful discrimination by public transportation providers, such as SEPTA. The ADA did not require public transportation providers to immediately -and very expensively -- retrofit all of its facilities to make them accessible. Rather, Congress adopted an incremental approach that requires transportation providers to make facilities accessible in the following three circumstances:  "New" facilities must be fully accessible, 42 U.S.C. §§ 12146, 12162(e)(1), 49 C.F.R. § 37.41(a);  Designated "key stations" had to meet certain minimal accessibility criteria by removing some architectural barriers by July 26, 1993, although that time frame can be extended for up to 20-30 years, 42
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U.S.C. §§ 12147(b), 12162(e)(2)(A)(i), 49 C.F.R. §§ 37.47, 37.51; and  "Alterations" which a transportation provider decides to make to any portion of an existing facility undertaken after the ADA's effective date must be made so that the altered portion is accessible, 42 U.S.C. §§ 12147(a), 12162(e)(2)(B)(i), 49 C.F.R. § 37.43(a)(1).3 In other words, with the exception of "key stations," the ADA did not require public transportation providers to make its existing facilities accessible, see 42 U.S.C. §§ 12147(b), 12148(a)(2), 49 C.F.R. § 37.61(b), but it did require them to make any new construction and alterations to existing facilities accessible to and usable by individuals with disabilities. The dichotomy between accessibility standards for new construction and alterations, on the one hand, and existing facilities, on the other hand, is one of the bedrocks of the ADA. See Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994). This distinction reflects Congress's "recognition that modification of such [existing] facilities [when no modification is otherwise planned] may impose extraordinary costs. New construction and
3 Each of these provisions define the prohibited acts as "discrimination" that violates both Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the RA, 29 U.S.C. § 794. 42 U.S.C. §§ 12146-12148, 12162. Thus, although SEPTA's failure to make the alterations in an accessible manner violates both the ADA and RA, DIA will use the shorthand "ADA" to refer to both statutes.
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alterations, however, present an immediate opportunity to provide full accessibility." Id. at 1074. Not only do new construction and alterations present an opportunity to make facilities accessible in a more cost-effective way than retrofitting, but it is "discriminatory to the disabled to enhance or improve an existing facility without making it fully accessible to those previously excluded." Id. at 1073.4 As the Third Circuit noted more than two decades ago, "the relevant question is to what extent any alterations to a facility provide an opportunity to make the facility more accessible to handicapped persons." Disabled in Action v. Sykes, 833 F.2d 1113, 1120 (3d Cir. 1987), cert. denied, 485 U.S. 989 (1988); accord Kinney, 9 F.3d at 1074.
Congress's goal was that "over time, access will be the rule, rather than the exception." H.R. Rep. No. 101-485, pt. 3, at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 486. Accordingly, by requiring that new construction and alterations are made in an accessible manner, the ADA assures that persons with mobility disabilities are afforded increasing -- and increasingly equal -- access to
4 Title II's accessibility requirement for "key stations" appears to be a recognition that, due to the nature and costs of structural changes to public transportation facilities, it could be years before public transportation providers built new facilities or altered existing facilities, resulting in long delays in achieving increased accessibility. Thus, Congress took specific steps to impose time lines to assure that key stations are made accessible even absent new construction or alterations.
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facilities, with the goal that, eventually, all facilities will be accessible to all people regardless of disability.
B. SEPTA's Demolition and Reconstruction of the Staircase at the 15th Street Courtyard Entrance and Its Replacement of the Inoperable Escalator at the City Hall Station Exit Constitute "Alterations" that Triggered the ADA's Accessibility Mandate. 1. The Total Renovation of the Stairway and Replacement of the Escalator Constitute "Alterations" Under the ADA. To achieve its goal of assuring gradual, yet ever-expanding access for people with mobility disabilities in the essential realm of public transit, Congress required transportation providers to assure that alterations that "affect or could affect the usability" of a facility or part of a facility, must be made "in such a manner that, to the maximum extent feasible, the altered portions ... are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations." 42 U.S.C. §§ 12147(a) (rapid rail), 12162(e)(2)(B)(i) (commuter rail). The failure to make alterations in an accessible manner constitutes discrimination in violation of the ADA and RA. Id. Congress did not define the term "alterations" in the ADA. Congress, though, directed the United States Department of Transportation (DOT) to promulgate regulations to implement the ADA's transportation provisions. 42 U.S.C. §§ 12149(a), 12164. In its regulations, DOT defined the term "alteration" as follows:
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[A] change to an existing facility, including, but not limited to remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical or electrical systems are not alterations unless they affect the usability of the building or facility.
49 C.F.R. § 37.3 (emphases added).
It is undisputed that SEPTA demolished the existing stairway at the 15th
Street Courtyard Entrance because it had deteriorated to the point where it was
unsafe for use and replaced it with a new stairway in a new location in the
Courtyard. See discussion, supra, at 6. It is also undisputed that SEPTA removed
the existing escalator at the City Hall Station Exit because it had deteriorated to the
point where it was inoperable and replaced it with a new escalator, including
extending the wellway and relocating the truss. See discussion, supra, at 9. The
photographs of these construction projects (J.A. at 778-861, 910-963) demonstrate
the extraordinary extent of the alterations -- far beyond anything that could be
described as routine maintenance.
As the District Court correctly concluded, "it is difficult to imagine how
what was done by SEPTA would not be described by at least one of the four words
highlighted by DIA in quoting 49 C.F.R. § 37.3, to wit, remodeling, renovation,
rehabilitation, or reconstruction." Mem. at 15 (J.A. at 19) (emphases in original). 18

Case: 09-3964 Document: 003110166253 Page: 29 Date Filed: 06/02/2010
It is a basic tenet of statutory and regulatory construction that words must be interpreted as having their ordinary and literal meaning. See Lin-Zheng v. Attorney General, 557 F.3d 147, 156 (3d Cir. 2009) (relying on dictionary definition); Alcoa, Inc. v. United States, 509 F.3d 173, 181 (3d Cir. 2007) (same). "Reconstruct," for example, means "to establish or assemble again"; "renovate" means "to restore to a former better state"; and "rehabilitate" means "to restore to a former state." See Merriam-Webster Online Dictionary, available at http://www.merriamwebster.com/dictionary. SEPTA's complete and total replacements of an existing stairway and existing escalator are the very essence of renovation, rehabilitation, and, certainly, reconstruction.5
5 SEPTA apparently has abandoned on appeal its argument in the District Court that the renovations at issue in this case were not "alterations," but were simply the "final act of maintenance" in the normal life of those structures -- an argument correctly described by the District Court as "euphemistic wordsmithing." Mem. at 13 (J.A. at 17). Moreover, even "maintenance" is an "alteration" that triggers the ADA's accessibility mandate if it affects the "usability" of the facility, 49 C.F.R. § 37.3, as the complete replacement of the staircase and escalator certainly did.
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2. This Court's Rulings in DIA v. Sykes and Kinney v. Yerusalim Establish that the Renovations in this Case
Are "Alterations" Under the ADA. The District Court's conclusion is fully supported by this Court's rulings in two prior decisions. In Disabled in Action v. Sykes, the Court held that SEPTA violated the Rehabilitation Act when it demolished an existing stairway, constructed a new stairway, and installed an escalator at the northbound Columbia Avenue Station on the Broad Street Subway. 833 F.2d at 1120-21. Applying a regulation under the Rehabilitation Act that, like the subsequently-enacted ADA, required alterations to be made in a manner accessible to individuals with mobility disabilities, the court determined that SEPTA's actions constituted "alterations" so that its failure to install an elevator to make the facility accessible to individuals with disabilities violated the Rehabilitation Act. Id. The Court emphasized:
It is unimportant to define whether the altered portion of a facility is itself an "entrance," "a stairway," or both. Instead, the relevant question is to what extent any alterations to a facility provide an opportunity to make the facility more accessible. Id. at 1120-21 (emphasis added). Disabled in Action v. Sykes is virtually indistinguishable from the present case.6
6 The plaintiff in Disabled in Action v. Sykes also challenged SEPTA's failure to install an elevator at the southbound Columbia Avenue Station when it demolished and reconstructed the stairs. The Court declined to rule on whether those renovations constituted alterations under the RA so as to require the
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Case: 09-3964 Document: 003110166253 Page: 31 Date Filed: 06/02/2010
Kinney similarly requires the Court to affirm the District Court's conclusion that the reconstruction of the 15th Street Courtyard Entrance and replacement of the escalator at the City Hall Exit constitute "alterations" that were required to be made in an accessible manner. The plaintiffs in Kinney asserted that the City of Philadelphia violated Title II of the ADA by failing to install curb ramps at intersections when it resurfaced streets. Kinney, 9 F.3d at 1069. The ADA required public entities to install curb ramps on "[n]ewly constructed or altered" streets. 28 C.F.R. § 35.151(e)(1). Resurfacing can entail simply placing a new layer of asphalt over the existing one, the use of machinery to remove some of the existing asphalt, or complete removal and replacement of both the asphalt and concrete layers of the street. Id. at 1070. The City asserted that the mere resurfacing of streets was not an "alteration" that triggered the ADA's requirement to install curb cuts. This Court disagreed. Id. at 1073-74.
The Kinney Court determined that the crucial issue in assessing whether a change is an "alteration" is whether it "affects the usability of the facility involved." Kinney, 9 F.3d at 1072 (citing 28 C.F.R. § 35.151(b) and ADAAG § 3.5). In other words, "[i]f a street is to be altered to make it more usable for the general public, it must also be made more usable for those with ambulatory
installation of an elevator and remanded the case to the district court to consider that issue. Disabled in Action v. Sykes, 833 F.2d at 1121.
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Case: 09-3964 Document: 003110166253 Page: 32 Date Filed: 06/02/2010
disabilities" by installing curb cuts. Id. at 1073. Since "[r]esurfacing makes driving on and crossing streets easier and safer[,] ... helps to prevent damage to vehicles and injury to people, and generally promotes commerce and travel, ... the street becomes more usable in a fundamental way." Id. at 1073-74. Accordingly, even the minimum street resurfacing project -- the laying of a new asphalt bed on a city block -- is an "alteration" that requires the City to install curb cuts. Id.; cf. Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 812-13 (2d Cir. 1996) (holding that the installation of ticket machines physically modifies transit station and, as such, is an alteration that required those machines to be readily accessible).
The complete removal and replacement of a staircase and escalator entails far greater construction that the minimal repaving of city streets that this Court declared to be an "alteration" under the ADA. Moreover, since the work at issue here, like the street repaving in Kinney, made the altered features more usable and safer for the general public, those benefits must be provided to persons with mobility disabilities.
In sum, this Court's rulings in Disabled in Action v. Sykes and Kinney establish beyond dispute that the work undertaken by SEPTA at the 15th Street Courtyard Entrance and the City Hall Exit constituted "alterations" under the ADA. As such, SEPTA had an obligation to make those alterations in a manner
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accessible to individuals with mobility disabilities. 42 U.S.C. §§ 12147(a), 12162(e)(2)(B)((i).
3. SEPTA's Narrow Interpretation of the Term "Alterations" to Mean Only Structural Modifications that Impact Load-Bearing Walls Is Contrary to DOT's Regulations and This Court's Rulings. SEPTA's primary argument is that the only type of "alteration" that triggers the ADA's accessibility mandate is a "structural modification" and that a "structural modification" is only one that involves removal or alterations to load-bearing walls. SEPTA's Br. at 26-29. SEPTA's position is wrong. SEPTA's argument ignores the express definition of "alteration" in DOT's regulations, 49 C.F.R. § 37.3. DOT's definition of alteration identifies "changes or rearrangement in structural parts or elements" and "changes or rearrangement in the plan or configuration of the walls and full-height partitions" as examples of the types of changes that will constitute "alterations" that trigger compliance with the accessibility mandate. Id. In addition to those examples, DOT's regulations also identify "remodeling, renovations, rehabilitation, and reconstruction" as acts that constitute "alterations" under the ADA. Id.; see discussion, supra, at 18-19. Thus, SEPTA's attempt to limit an "alteration" to structural modifications to load-bearing walls is completely contrary to DOT's definition of that term. SEPTA's argument further disregards this Court's interpretation of the term "alteration" in Disabled in Action v. Sykes and Kinney. Both of those cases
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Case: 09-3964 Document: 003110166253 Page: 34 Date Filed: 06/02/2010
involved alterations that triggered the accessibility mandates of the ADA and RA when structural changes to load-bearing walls were not involved.
Ignoring DOT's definition of alteration and this Court's rulings, SEPTA cites DOT's interpretation of the "maximum extent feasible" exception to the accessible alterations mandate to support its assertion that "alterations" are only those that involve structural modifications to load bearing walls. SEPTA's Br. at 26-27. DOT's regulatory interpretation does not support SEPTA's argument. In explaining the feasibility exception to the ADA's accessible alterations mandate, DOT wrote that a transit agency is not required to make alterations in an accessible manner when doing so requires "removing or altering a load-bearing structural member" unless the alteration involves a change to the load-bearing structural member in which case the alteration does have to be made in an accessible manner. 49 C.F.R. Pt. 37, App. D, § 37.43. Accordingly, contrary to SEPTA's argument, DOT's position is not that only structural changes to load-bearing walls trigger the accessible alterations mandate. Rather, consistent with its definition of "alteration," 49 C.F.R. § 37.3, DOT stated that changes to structural components are one example of when the accessible alterations mandate is triggered. Conversely, if an agency undertakes other types of alterations that do not involve structural changes to a facility, it will be excused from making those alterations in an accessible manner only to the extent that compliance with the accessibility man-
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date would force the agency to make structural changes it did not otherwise plan to make.
SEPTA's argument flips the DOT regulation on its head by focusing only on the "unless" provision and then misapplying it. In the present case, there were no structural changes involving load-bearing walls, but installing elevators at the Courtyard Entrance and City Hall Exit would not require SEPTA to make any structural changes to load-bearing walls. This means that SEPTA has no infeasibility defense; it does not mean that SEPTA had no obligation to make the alterations to those facilities in an accessible manner.
SEPTA also cites Section 4.1.6(1)(f) of the ADA Accessibility Guidelines (ADAAG)7 in support of its erroneous construction of the word "alterations" to mean only structural modifications to load-bearing walls. SEPTA's Br. at 27-28. This guideline states: "If an escalator or stair is planned or installed where none existed previously and major structural modifications are necessary, then a means
7 In accordance with Congress's direction that DOT's accessibility standards should be consistent with the "minimum guidelines" established by the Architectural and Transportation Barriers Compliance Board (Access Board), 42 U.S.C. §§ 12149(b), 12163, DOT adopted the Access Board's guidelines. 49 C.F.R. § 37.9. Since the alterations in this case were completed prior to November 29, 2006, the relevant Access Board regulations are the 1991 ADAAG standards rather than the revised standards promulgated by the Access Board in 2004. 49 C.F.R. § 37.9(c)(1). DIA's references to ADAAG in this Brief are to the 1991 standards codified at 49 C.F.R. Pt. 37, App. A (2006).
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Case: 09-3964 Document: 003110166253 Page: 36 Date Filed: 06/02/2010
of accessible vertical access shall be provided." ADAAG § 4.1.6(1)(f). As the District Court correctly noted, this guideline simply identifies one specific situation in which an elevator must be installed; it cannot be read, as SEPTA insists, to mean that no elevator is required when alterations to existing stairs and escalators are undertaken that do not involve changes to load-bearing walls. Mem. at 11-12 (J.A. at 15-16). In any event, as DOT has explained, compliance with the minimum guidelines of ADAAG is not enough to meet the ADA's accessibility standards. Rather, "a transportation facility shall be considered to be readily accessible to and usable by individuals with disabilities if it meets the requirements of this part and the requirements set forth in [ADAAG]." 49 C.F.R. § 37.9(a) (emphasis added).
SEPTA's lengthy argument that the District Court somehow failed to afford deference to DOT's regulations, as required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45 (1984), and its progeny, SEPTA's Br. at 30-34, is misguided at best, sophistry at worst. The District Court considered, applied, interpreted, and deferred to all relevant DOT regulations as required by Chevron. SEPTA's argument is nothing more than a complaint that the District Court failed to give deference to SEPTA's interpretation of the DOT and ADAAG provisions at issue in this case, which, of course, is not required by Chevron. The DOT and ADAAG provisions SEPTA cites do not require the results SEPTA wants. Indeed, it is SEPTA that ignores relevant DOT regulations -
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Case: 09-3964 Document: 003110166253 Page: 37 Date Filed: 06/02/2010
- including DOT's explicit definition of "alteration" -- in favor of twisting inapt regulatory materials to support its strained arguments.8
SEPTA's interpretation contravenes the explicit statutory and regulatory requirements that when a transportation provider alters all or part of any facility, it must make those alterations in an accessible manner -- not merely when it installs a completely new stairway or escalator with changes in load-bearing walls. 42 U.S.C. §§ 12147(a), 12162(e)(2)(B)(i); 49 C.F.R. § 37.43(a)(1). Since both the statute and DOT's regulations expressly require alterations -- including renovations, rehabilitation, and reconstruction of existing facilities without any changes in load-bearing walls -- to be made in an accessible manner, ADAAG's provisions cannot be interpreted to excuse SEPTA from doing so in this case.
8 In contrast to the present case, the plaintiffs in George v. Bay Area Rapid Transit, 577 F.3d 1005 (9th Cir. 2009), agreed that the transit agency complied with DOT's accessibility regulations, but argued that those federal regulations were arbitrary and capricious. See id. at 1008-09. The appellate court held that DOT's regulations were not arbitrary and capricious. Id. at 1009-11. DIA is not asking the court, as the George plaintiffs did, to hold that a transit agency can be held to violate the ADA even when it complies with the regulatory accessibility standards. Rather, DIA contends that SEPTA did not comply with the ADA's accessibility standards set forth in the statute and applicable regulations.
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Case: 09-3964 Document: 003110166253 Page: 38 Date Filed: 06/02/2010
4. The ADA's Accessible Alterations Mandate Does Not Balance Accessibility Against Costs. SEPTA suggests that the accessible alterations mandate can be excused based on the costs of alterations, asserting that the ADA requires a "balancing approach between accessibility and costs." SEPTA's Br. at 24. In support of this contention, SEPTA cites the statutory language that alterations must be made in an accessible manner only "to the maximum extent feasible." 42 U.S.C. §§ 12147(a), 12162(e)(2)(B)(i). SEPTA's interpretation of the feasibility exception is contrary to regulatory and judicial interpretations, which limit the exception to situations involving structural feasibility without respect to the cost of compliance.9 DOT regulations explicitly state: "As used in this section [relating to alterations], the phrase to the maximum extent feasible applies to the occasional case where the nature of an existing facility makes it impossible to comply fully with applicable accessible standards through a planned alteration." 49 C.F.R. § 37.43(b) (emphasis added). In its preamble to the regulation, DOT explained: [T]he term “maximum extent feasible” means that all changes that are possible must be made. The requirement to make changes to the maximum extent feasible derives from clear legislative history. The Senate Report states--
9 Despite SEPTA's legal argument that costs must be considered, it provides no information about the actual costs of the accessibility alterations in this case, let alone any argument as to why those costs would outweigh the need for and congressional policy in favor of accessibility.
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Case: 09-3964 Document: 003110166253 Page: 39 Date Filed: 06/02/2010
"The phrase “to the maximum extent feasible” has been included to allow for the occasional case in which the nature of an existing facility is such as to make it virtually impossible to renovate the building in a manner that results in its being entirely accessible to and usable by individuals with disabilities. In all such cases, however, the alteration should provide the maximum amount of physical accessibility feasible." 49 C.F.R. Pt. 37, App. D, § 37.43 (quoting S. Rpt. 101-116, at 68 (1989)) (emphasis added). DOT's interpretation is consistent with the ADA, which recognizes that new construction and alterations provide the opportunity to assure accessibility in a cost-effective manner at the time the transportation provider decides to make those changes, instead of requiring the transportation provider to undertake costlier retrofitting of facilities when it had not otherwise planned any construction or alterations. As such, undue cost burden is not a defense when a public entity decides to undertake alterations. See Kinney, 9 F.3d at 1075. When deciding whether, how, and when to make alterations, transportation providers have the opportunity to plan and budget for those alterations so that the accessibility-related costs are taken into consideration. DOT's interpretation has been expressly embraced by the Second Circuit. In a case involving the accessible alterations mandate of Title III of the ADA, 42 U.S.C. § 12183(a), which uses language almost identical to the alterations
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provision at issue in this case, 42 U.S.C. §§ 12147(a), 12162(e)(2)(B)(i), the court explained:
Section 12183's "maximum extent feasible" requirement does not ask the court to make a judgment involving costs and benefits. Instead, it requires accessibility except where providing it would be "virtually impossible" in light of the "nature of the existing facility." ... The statute and regulations require that such facilities be made accessible even if the cost of doing so - financial or otherwise -- is high. Roberts v. Royal Atlantic Corp., 542 F.3d 363, 371 (2d Cir. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 1581 (2009). Accordingly, DOT's interpretation -- which, as SEPTA recognizes, is entitled to deference under Chevron, SEPTA's Br. at 30-34 -- and the courts' rulings demonstrate that the "maximum extent feasible" exception to the ADA's accessible alterations mandate is not an invitation for courts to balance costs with accessibility. Rather, it is an extremely narrow exception that excuses an entity from make alterations to a facility in an accessible manner only if it is "virtually impossible" due to the facility's structure, which is not the case here. As the District Court found, and SEPTA does not dispute, it is structurally feasible to install elevators at both the Courtyard Entrance and City Hall Exit. See discussion, supra, at 7, 9; Mem. at 25, 26 n.16 (J.A. at 29, 30).
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III. The ADA Required the Alterations to the 15th Street Courtyard Entrance to Be Made in an Accessible Manner Even Though There Now Are Elevators In Suburban Station. SEPTA essentially argues that it had no obligation to install an elevator at the 15th Street Courtyard Entrance when it completely demolished and reconstructed the stairway because it is part of Suburban Station.10 SEPTA contends that Suburban Station, a key station, complies with ADAAG's requirements because it has two elevators. See ADAAG § 10.3.2(1) (there must be "at least one accessible route from an accessible entrance" in existing key stations, like Suburban Station) (emphasis added). The distance of those elevators from the 15th Street Courtyard, SEPTA asserts, is irrelevant since there is no "distance test" for accessible entrances in transit stations. SEPTA's Br. at 34-39. SEPTA's argument cannot withstand analysis. The 15th Street Courtyard Entrance is not part of Suburban Station and, thus, the existence of elevators in Suburban Station is irrelevant. Either considered as its own distinct facility or as part of the 15th Street Station to the Market-Frankford Elevated Line, the alterations to the 15th Street Courtyard Entrance were required to be made in an
10 SEPTA on appeal confusingly refers to Suburban Station as the "Penn Center Concourse." The Penn Center Concourse is not a transit facility, though it encompasses several transit facilities, including Suburban Station, the 15th Street Station of the Market-Frankford Elevated Line, and the City Hall Station of the Broad Street Subway Line, as well as numerous retail shops and commercial buildings.
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accessible manner since there was no other accessible entrance. Alternatively, even if the 15th Street Courtyard Entrance is part of Suburban Station, SEPTA had an obligation to make that Entrance accessible when it reconstructed the stairway since the elevators at 16th and 17th Streets did not exist at the time SEPTA made the alterations to the Entrance. See Mem. at 16-21 (J.A. at 20-25).
A. The 15th Street Courtyard Entrance Is an Independent Facility or Part of the 15th Street Station and, As Such,
The Alterations Had To Be Made In An Accessible Manner. The ADA expressly requires that alterations to a "facility" or any "portion of a facility" be made in an accessible manner. SEPTA's argument that elevators in Suburban Station excuses it from making the 15th Street Courtyard Entrance alterations in an accessible manner rests on the mistaken assumption that the Courtyard Entrance is part of the Suburban Station facility. It is not. DOT has specifically defined the term "facility" for purposes of the public transportation requirements of the ADA:
Facility means all or any portion of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where any building, property, structure or equipment is located. 49 C.F.R. § 37.3 (emphasis added). ADAAG defines "facility" somewhat differently: All or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passage-
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ways, parking lots, or other real or personal property located on a site. ADAAG § 3.5 (emphasis added). The 15th Street Courtyard Entrance can be viewed as an independent facility because, at minimum, it is a structure -- a staircase and head house -- located on a separate site and owned by the City of Philadelphia. Pl.'s SUF & Def.'s Resp. # 38 (J.A. at 994, 1025); Def.'s Exh. 48 (J.A. at 395). Alternatively, the Courtyard Entrance can be considered part of the 15th Street Station of the Market-Frankford Line, which has no accessible entrances. As this Court has previously acknowledged, "the 15th Street Courtyard indisputably provides access to the Market-Frankford Station." Disabled in Action of Pennsylvania., 539 F.3d at 202 n.1. The facts support the conclusion that functionally the 15th Street Courtyard is one of the two entrances and paths of travel to the 15th Street Station of the Market-Frankford Elevated Line,11 and that SEPTA considers it to be so.  It is a short distance from the bottom of the 15th Street Courtyard Entrance in the concourse to the cashier booths to enter the 15th Street Station platforms. See discussion, supra, at 5 n.2.
11 The Clothespin entrance on the southwest corner of 15th and Market Streets across Market Street from the Courtyard Entrance is the second entrance to the 15th Street Station.
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 The directional signage installed by SEPTA at the head house at the 15th Street Courtyard also identifies it as the entrance to the 15th Street Station of the Market-Frankford Elevated Line as well as a means to access the Broad Street Subway, Subway-Surface Lines, and Regional Rail Lines. Pl.'s Exh. 16 (J.A. Addendum at 552).
 SEPTA's public information identifies the address of the 15th Street Station as 15th and Market Streets -- the location of the 15th Street Courtyard Entrance. Pl.'s Exh. 6 (J.A. at 547).
 Historically, the 15th Street Courtyard Entrance has been identified as an entrance to the 15th Street Station. See Pls.' Exh. 19 at COP-24502451 (J.A. at 615-16); Pls.' Reply Exh. 1 (J.A. at 1069).
 Passengers use the 15th Street Courtyard Entrance to access the 15th Street Station. See Pl.'s Exh. 20 at 67 (J.A. at 635); Pl.'s Exh. 18 at 81-82 (J.A. at 573-74).
In light of this functional reality, the only reasonable and sensible conclusion is that the 15th Street Courtyard Entrance is part of the 15th Street Station of the Market-Frankford Line, and since there is no accessible entrance to that Station, it is beyond dispute SEPTA was required to make the alterations to the Courtyard Entrance in an accessible manner.
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1. Property Lines Are Not Definitive In Determining Whether the 15th Street Courtyard Entrance Is Part of
the 15th Street Station or Suburban Station. In the District Court, SEPTA argued that the 15th Street Courtyard Entrance could not be considered part of the 15th Street Station because it falls within the property lines of Suburban Station. See SEPTA's Br. in Support of Its Motion for Summary Judgment and in Opposition to DIA's Motion for Summary Judgment at 11-20 (Docket # 163, Att. 3). In other words, SEPTA contended that property lines defined the contours of a "facility." The definitions of facility in the DOT regulations and ADAAG make no reference at all to property lines. See discussion, supra, at 32-33 (quoting 49 C.F.R. § 37.3 and ADAAG § 3.5). The only such reference is in ADAAG's definition of "site" as "[a] parcel of land bounded by a property line or a designated portion of a public right of way." ADAAG § 3.5. A "site," however, is not the only type of "facility" under either DOT's regulations or ADAAG's definition. To the contrary, DOT's regulations define "site" as one of several distinct types of covered facilities, along with "building," "structures," and "complexes." 49 C.F.R. § 37.3. ADAAG similarly does not limit facilities to those on specific "sites"; rather, the term "site" is used only as a modifier for the catch-all phrase "other real or personal property located on a site." ADAAG § 3.5. ADAAG does not link other types of covered facilities -- including structures and complexes -- to sites or
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property lines. There is no reason why a "complex" cannot be an array of buildings or structures that cross property lines.12 Thus, the Court must look at the
totality of facts, not simply property lines, in assessing whether the 15th Street
Courtyard Entrance is part of the 15th Street Station facility or, instead, is only a
part of the Suburban Station facility. Looking at these facts, described supra, at
33-34, the 15th Street Courtyard Entrance is plainly part of the 15th Street Station facility.13
2. The Property Lines of Suburban Station Are Too Muddled to Be Dispositive of the Designation of the 15th Street
Courtyard Entrance As Solely Part of Suburban Station.
Whatever relevance property lines could have in marking the contours of a
"facility" for purposes of the ADA, the property lines relating to Suburban Station
and the 15th Street Station are so muddled as to have little, if any, value in
identifying the facility where the 15th Street Courtyard Entrance is located.
First, SEPTA claims that Suburban Station's property lines extend from 15th
Street to 18th Street and from Market Street to John F. Kennedy Boulevard. Def.'s
12 A "complex" means a whole made of interrelated parts or a building or group of buildings housing related units. Merriam-Webster Online Dictionary, available at http://www.merriam-webster.com/dictionary.
13 Looking solely at property lines, the Court would have to conclude that the 15th Street Courtyard Entrance is a distinct and independent facility -- not part of Suburban Station or the 15th Street Station -- since it is owned by the City of Philadelphia, not SEPTA. Pl.'s SUF & Def.'s Resp. # 38 (J.A. at 994, 1025); Def.'s Exh. 48 (J.A. at 395).
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Br. at 11. Yet, it also acknowledges that within those perimeters there are multiple, discrete property lines owned by other entities that result in "islands of exclusion." See Pl.'s SUF & Def.'s Resp. ## 34, 40 (J.A. at 993-94, 995, 1024, 1025); Def.'s Exh. 48 (identifying separate property lines for buildings, such as Two Penn Center and Three Penn Center) (J.A. at 395).
Second, it is undisputed that the City of Philadelphia owns the 15th Street Courtyard and that the Courtyard has its own discrete property line. Pl.'s SUF & Def.'s Resp. # 38 (J.A. at 994, 1025); Def.'s Exh. 48 (J.A. at 395). It is not part of the property of Suburban Station that is owned by SEPTA.
Third, the underground property line demarcation between 15th Street Station and Suburban Station, according to SEPTA, falls literally midway on the steps to the cashier booth area of 15th Street Station. Def.'s Exh. 58 (showing property line between Courtyard Entrance and cashier area) (J.A. at 445). If this property line is considered dispositive of the determination of "facility," then no alterations to 15th Street Station will ever trigger the accessibility requirement. If, for example, SEPTA decides to reconstruct the cashier area at 15th Street Station, it will claim that it need not be accessible because half of it is, according to these property lines, in Suburban Station.
Finally, and perhaps most importantly, SEPTA has described Suburban Station (as opposed to the technical property lines) as "occup[ying] the block
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bounded by 16th and 17th Streets and Cuthbert and Filbert Streets ...." Def.'s SUF # 35 (J.A. at 1010). SEPTA's description is accurate, as its Property Line Concourse Plan shows a distinct area for "Suburban Station," including the ticket offices and waiting areas in the concourse level and the train platforms at the platform level. See Def.'s Exhs. 48 & 49 (J.A. at 395, 396) (BLT Property Line Concourse Plan showing distinct areas for Suburban Station separate areas for City-owned courtyard and Penn Center buildings).
B. Assuming Arguendo that the 15th Street Courtyard Is Part of Suburban Station, the ADA Required SEPTA to Make the 15th Street Courtyard Entrance Alterations Accessible.
1. The ADA Requires Alterations to Key Stations to Be Made in an Accessible Manner Regardless of Whether
There Are Other Accessible Entrances to the Station. SEPTA argues that its installation of elevators at 16th and 17th Street as part of its Suburban Station key station excused it from complying with the ADA's statutory mandate to make the alterations to the 15th Street Courtyard in an accessible manner. SEPTA relies on Section 10.3.2(1) of ADAAG, which provides that existing key stations, such as Suburban Station, must have at least one accessible route from an accessible entrance. SEPTA's Br. at 37. This argument ignores the statutory and regulatory framework, which the District Court correctly construed to show that "even if SEPTA is in compliance with the
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[ADAAG] Key Stations guidelines, that does not excuse it from complying with the general alterations guidelines and regulations." Mem. at 16-17 (J.A. at 20-21).
The ADA's statutory mandate that alterations be made in an accessible manner, 42 U.S.C. §§ 12147(a), 12162(e)(2)(B)(i), does not exempt alterations made to key stations that, absent any alterations, would be in compliance with the ADA's accessibility standards because they have another accessible entrance. Any doubt that the ADA's accessible alterations mandate supplements the ADA's key station accessibility requirements in ADAAG is laid to rest by the DOT regulations. First, DOT's regulations -- which SEPTA recognizes are entitled to deference -- explicitly state that the requirement that key stations must be readily accessible to and usable by individuals with disabilities "is separate and apart from and in addition to requirements" that alterations must be accessible to such individuals. 49 C.F.R. §§ 37.47(a), 37.51(a) (emphasis added). Second, DOT's regulations further instruct that "a transportation facility shall be considered to be readily accessible to and usable by individuals with disabilities if it meets the requirement of this part and the requirements set forth in [ADAAG]." 49 C.F.R. § 37.9(a) (emphasis added).
Since the ADA's statutory provisions and DOT's regulations explicitly require that all alterations to SEPTA's transit facilities, including Suburban Station, must be made so as to be accessible to people with mobility disabilities regardless
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of whether they meet minimum ADAAG key station standards, SEPTA cannot rely on compliance with the ADAAG's key station standards alone to excuse its failure to install an elevator when it altered the 15th Street Courtyard Entrance.14
By requiring that transit providers make all alterations to key stations in a manner accessible to individuals with mobility disabilities regardless of whether they complied with the minimum barrier removal standards in ADAAG for existing key stations, DOT assured that the ADA's goal of expanding accessibility and achieving equality over time is met. DOT's requirements that transit providers comply with both ADAAG and the statutory and regulatory accessible alterations mandate guarantee that as existing key stations are altered, transit providers will take advantage of the opportunities to expand their accessibility to provide equal access to individuals with mobility disabilities.
SEPTA reliance on the ADAAG's "new construction" requirements to excuse its failure to make the 15th Street Courtyard Entrance alterations in an accessible manner is misplaced. SEPTA asserts that ADAAG provides that newly
14 For this reason, SEPTA's reliance on the FTA's review of its overall Suburban Station Renovation Project, SEPTA's Br. at 38 n.20, is unavailing. This review simply assessed whether the renovations satisfied the ADA's key station requirements and did not address whether SEPTA had complied with the ADA's alteration requirements when it altered the 15th Street Courtyard Entrance. See Mem. at 17 n.13 (J.A. at 21). Thus, the District Court's opinion did not render the FTA opinion meaningless, but, rather, correctly recognized its limited scope.
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constructed stations -- which Suburban Station is not -- need have only one accessible entrance and that the general provisions of ADAAG state that there is no requirement for greater accessibility for alterations than for new construction. SEPTA Br. at 36-37 & n.18 (citing ADAAG §§ 4.1.6(1)(d), 10.3.1(2)). SEPTA's reliance on ADAAG's provisions relating to new stations fails for several reasons.
First, ADAAG's provisions for newly constructed transit stations, if applied to Suburban Station, would have required SEPTA to assure that the 15th Street Courtyard Entrance was accessible. Section 10.3.1(2) of ADAAG provides that newly constructed transit stations that serve different transportation fixed routes or groups of fixed routes must provide accessible entrances to each group or route. Assuming arguendo that the 15th Street Courtyard Entrance is part of Suburban Station, it plainly serves a different fixed route -- the Market-Frankford Elevated Line -- from the rest of Suburban Station, which serves the Regional Rail Lines. Thus, SEPTA would have to install an accessible entrance to the Market-Frankford Elevated Line.
Second, DOT's regulations, to which this Court must defer, explicitly state that key stations must meet both the ADAAG key station requirements and the accessible alterations mandate. 49 C.F.R. §§ 37.47(a), 37.51(a). Accordingly, ADAAG's general statement that alterations need not exceed the accessibility requirements of new construction, ADAAG § 4.1.6(d), simply cannot be read to
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apply to the specific accessibility provisions for existing key stations. DOT's regulations and the Access Board's ADAAG standards must be read so as to give meaning to all of them and avoid rendering any provisions superfluous. See Disabled in Action, 539 F.3d at 210; United States v. Cooper, 396 F.3d 308, 312 (3d Cir. 2005). Adoption of SEPTA's argument that a key station need have only one accessible entrance -- regardless of future alterations to other entrances -would render superfluous DOT's explicit rules that require key stations to meet both the ADAAG requirements and Congress's accessible alterations mandate in the text of the ADA. It would also undermine the ADA's goal of incremental achievement of equal access.
SEPTA also suggests that it had no obligation to install an elevator when it altered the 15th Street Courtyard Entrance because there currently is no wheelchair access from the Concourse level to the 15th Street Station platform. SEPTA's Br. at 38-39. This argument fundamentally misunderstands the ADA, which, as discussed above, adopted a gradualist approach to accessibility of existing facilities. See discussion, supra, at 14-17. Congress required even "portions" of a facility to be made accessible when those portions are altered, understanding that eventually other portions of the facility will be altered and, if all the portions are altered in an accessible manner, the entire facility will eventually be accessible. Accordingly, when in the future SEPTA alters the platforms at the 15th Street
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Station so as to make them accessible, an accessible entrance at the nearby 15th Street Courtyard will give patrons with mobility disabilities a nearly direct entrance to that Station.15
Finally, SEPTA's argument that the District Court inappropriately imposed a "distance requirement" to justify its decision, SEPTA's Br. at 34-36, is a red herring based on a misinterpretation of the ruling. The District Court did not hold that SEPTA was required to install an elevator at the 15th Street Courtyard Entrance because it was a 680-foot round-trip from the 16th Street Elevator. Rather, the District Court held that SEPTA was required to install an elevator at that location because it had undertaken alterations to the 15th Street Courtyard Entrance when it completely demolished and reconstructed the stairway. The District Court discussed the distance between the 16th Street elevator and the Courtyard Entrance to refute SEPTA's argument that the Courtyard Entrance alterations need not be made accessible because the Courtyard Entrance already was accessible to individuals with mobility disabilities given the allegedly
15 An accessible entrance at the 15th Street Courtyard would afford immediately improved access to the 15th Street Station of the Market-Frankford Elevated Line for individuals who use canes, crutches, or walkers due to mobility disabilities. An elevator at the Courtyard Entrance would significantly reduce the number of stairs that they must use to travel from the ground level to the platform at the 15th Street Station.
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negligible distance to the 16th Street elevator. Thus, the District Court correctly rejected SEPTA's distance argument. Mem. at 20-21 (J.A. at 24-25).
2. The Installation of Elevators at 16th and 17th Streets in Suburban Station After the Inaccessible Alterations to the 15th Street Courtyard Defeats
SEPTA's Reliance on the Alleged "One Accessible Entrance" Standard. SEPTA's suggestion that the existence of elevators at 16th and 17th Street
excused it from installing an elevator when it altered the 15th Street Courtyard ignores the fact that those elevators were not installed until 2005 -- three years after SEPTA completed alterations of the 15th Street Courtyard Entrance in 2002. Thus, at the time SEPTA made the alterations to the 15th Street Courtyard Entrance, there were no accessible entrances to Suburban Station, and thus SEPTA was not in compliance with the ADAAG accessibility standards that required existing key stations, such as Suburban Station, to have at least one accessible entrance. ADAAG § 10.3.2(1). Accordingly, assuming arguendo that the ADA exempts a transit provider from installing an elevator when it makes alterations to a key station entrance that has another accessible entrance, SEPTA cannot benefit from that exemption since it did not have an accessible entrance to Suburban Station when it altered the 15th Street Courtyard Entrance.
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IV. SEPTA's Untimely Assertion that the City of Philadelphia Is A Necessary Party Is Meritless.
A. SEPTA's Assertion of This Defense Is Untimely.
SEPTA contends that the City of Philadelphia is a necessary party to this
action pursuant to Federal Rule of Civil Procedure 19 because the City owns the
City Hall Courtyard, where the District Court required SEPTA to install an elevator at the City Hall Exit. SEPTA's Br. at 39-43.16 Failure to join a party
under Rule 19 is a defense that must be asserted in a party's pleadings, in a motion
to dismiss or for judgment on the pleadings, or at trial. Fed. R. Civ. P. 12(b)(7),
12(h)(2). SEPTA did not assert that the City was a necessary party in its Answer,
see SEPTA's Answer at 17-20 (Docket # 83) or in a proper motion or, indeed, at any time in the District Court. 17
16 SEPTA's argument that the City is a necessary party relates only to DIA's claim involving the City Hall Exit -- not the 15th Street Courtyard Entrance. As discussed, infra, at 49, the 15th Street Courtyard Entrance is the subject of an agreement between DIA and the City in which the City has indicated that it would permit SEPTA to install an elevator in the Courtyard if the District Court so ordered.
17 SEPTA states that it raised the argument in a letter brief. SEPTA's Br. at 42 n.22. In fact, this letter -- submitted after oral argument on the cross-motions for summary judgment -- argued only that the lack of explicit approval from the City for installation of an elevator at the City Hall Station was a "feasibility issue" -- not that the City was a necessary party under Rule 19. Letter dated June 26, 2009 (J.A. at 1160).
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SEPTA raises this assertion for the first time on appeal. A party's "failure to present the issue [of the necessity of joinder under Rule 19] to the district court militates that the equities lie on the side of" the non-movant. Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 434 (5th Cir. 1992). This is particularly true in this case, where it is beyond dispute that SEPTA was aware that the City owned the City Hall Courtyard and that the City had participated in this action with respect to the 15th Street Courtyard Entrance. Yet, SEPTA never asked the District Court to join the City as a necessary party with respect to the City Hall Exit claim. SEPTA's inaction in light of its knowledge forecloses it from now seeking to join the City as a necessary party. See Arnold v. Blast Intermediate Unit 17, 843 F.2d 122, 125 n.6 (3d Cir. 1988) (defendant's belated Rule 19 motion to join a necessary party was barred by laches when it failed to do so despite ample opportunity). Plainly, the only reason SEPTA now raises this issue is to further delay this already long-lived case. The Court should refuse to indulge SEPTA's defensive, dilatory tactics. See, e.g., Fireman's Fund Ins. Co. v. Nat'l Bank of Cooperatives, 103 F.3d 888, 896 (9th Cir. 1996); Ilan-Gat Engineers, Ltd. v. Antigua International Bank, 659 F.2d 234, 242 (D.C. Cir. 1981);
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B. The City Is Not a Necessary Party. A person is a Anecessary@ party who must be joined in a litigation if either: (1) the court cannot afford complete relief among existing parties in the person=s absence; or (2) the absent person claims an interest relating to the subject matter of the action so that disposing of the action in his absence would (a) as a practical matter, impair or impede his ability to protect his interest, or (b) leave an existing party subject to substantial risk of incurring inconsistent obligations because of the interest. Fed. R. Civ. P. 19(a)(1); accord General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007). The moving party has the burden of showing why an absent party should be joined under Rule 19. Pittsburgh Logistics Systems, Inc. v. C.R. England, Inc., 669 F. Supp. 2d 613, 618 (W.D. Pa. 2009). SEPTA has failed to meet its burden in this case. SEPTA does not and could not argue that the City is a required party pursuant to Rule 19(a)(1)(A) because the district court could not afford complete relief to DIA. This provision requires a court to determine only whether it "can grant complete relief to persons already named as parties to the action; what effect it may have on absent parties is immaterial." General Refractories, 500 F.3d at 313 (emphasis in original). In affording relief to DIA in the absence of the City, the District Court implicitly determined that it could grant complete relief to the parties in the action on the basis that the "settlement agreement strongly suggests
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that the City would not oppose such a plan." Mem. at 26 (J.A. at 30). This determination was correct. The Court ordered SEPTA to develop a plan to come into compliance with its finding of liability. Order (J.A. at 4). SEPTA's submission to the District Court, although far from a plan, indicates that it began discussions with the City with regard to compliance. SEPTA's Statement Regarding Proposed Schedule of Compliance ¶¶ 7-8 (J.A. at 1163). Although SEPTA stated that it had not reached agreement with the City on a "definitive plan," id. ¶ 8, there is no indication in SEPTA's Statement that the City would preclude SEPTA from complying with the Court's ruling that it provide access to individuals with mobility disabilities at the City Hall Exit. Thus, SEPTA cannot meet its burden of showing that full relief cannot be accorded to DIA in the absence of participation in the litigation by the City.18
SEPTA primarily contends that the City is a necessary party because disposition of the claims in this case will "as a practical matter impair or impede the [City's] ability to protect the interest." Fed. R. Civ. P. 19(a)(1)(B)(i). SEPTA's Br. at 41. Notably, the City -- which has long been aware of this litigation, including the claims involving the City Hall Exit and the District Court's entry of
18 Of course, SEPTA would be able to assert a defense of impossibility to an effort by DIA to enforce the Court's ruling if the City barred it from making the City Hall Exit accessible after SEPTA took reasonable steps to comply with the Order. See United States v. Rylander, 460 U.S .752, 757 (1983); Harris v. City of Philadelphia, 47 F.3d 1311, 1324 (3d Cir. 1995).
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judgment against SEPTA -- has never claimed any interest in it or sought to intervene, which is the best evidence that the City's absence would not impair or impede its ability to protect its interests. See United States ex rel. Morongo Band of Mission Indians v. Rose, 34 F.3d 901, 908 (9th Cir. 1994).
Moreover, the City's interests are protected through the use of routine procedures -- including the permit process, plan reviews, and construction oversight -- described in its Settlement Agreement with DIA relating to the 15th Street Entrance. See Settlement Agreement § 3 (J.A. at 90-91). These procedures have been used in the past when SEPTA has had to engage in construction on Cityowned property and are more than adequate to protect the City's interests in assuring the health, safety, and welfare of the public and enforcing its laws. There is nothing in the Court's Order that would undermine or jeopardize the City's legal interests in any manner.19 Accordingly, the City will not be prejudiced if it is not made a party to this litigation.
19 Steel Valley Authority v. Union Switch and Signal Div., 809 F.2d 1006 (3d Cir. 1006), cited by SEPTA, is inapposite. The party in that case was necessary to the litigation because the plaintiff sought an injunction that would prevent that party from demolishing or altering its property or using it for any other purpose. Id. at 1012, 1014. Unlike the party's property interest in Steel Valley Authority, which formed the crux of the case, the City's property interests in this case are peripheral at best and can be addressed through the processes that have long been used -- without judicial involvement -- when SEPTA has had to construct on City property.
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CONCLUSION For all the reasons set forth above, DIA respectfully requests that this Court affirm the District Court's September 11, 2009 Memorandum and Order that granted DIA's Motion for Summary Judgment and denied SEPTA's Motion for Summary Judgment and remand this matter to the District Court.
Respectfully submitted,

Dated: June 2, 2010

By: /s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Pkwy. 2nd Floor Philadelphia, PA 19103 (215) 627-7100

By: /s/ Rocco J. Iacullo Mark J. Murphy PA Bar No. 38564 Rocco J. Iacullo PA Bar No. 86144 Robin Resnick PA Bar No. 46980 Disability Rights Network of Pennsylvania 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705 (215) 238-8070
Counsel for Appellee

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COMBINED CERTIFICATIONS

I, Rocco J. Iacullo, certify as follows:

1. I am a member in good standing of the Bar of this Court.

2. This Brief complies with Fed. R. App. P. 32(a)(7)(B) because it

contains 11,914 words, excluding the parts of the Brief exempted by Fed. R. App.

P. 32(a)(7)(B)(iii). This Brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. J.A. P. 32(a)(6) because

it has been prepared in a proportionally spaced typeface using Word 2003 in Times

New Roman 14-point font.

3. The text of the electronic brief is identical to the paper copies. A

virus detection program (Symantec Anti-Virus Corporate Edition v. 10.1.800) was

run on the file using the current virus definitions and no virus was detected.

4. On June 2, 2010, the Brief for Appellee was filed with the Court's

ECF system on June 2, 2010 and is available for viewing and downloading by the

following counsel who consented to electronic service and a true and correct copy

was served by first class mail, postage prepaid on the following counsel:

Jo Bennett, Esquire Michael G. Tierce, Esquire
Stevens & Lee 1818 Market Street, 29th Floor
Philadelphia, PA 19103

Dated: June 2, 2010

/s/ Rocco J. Iacullo Rocco J. Iacullo

 
 Case: 09-3964 Document: 003110132097 Page: 1 Date Filed: 05/05/2010

Appeal No. 09-3964
United States Court of Appeals for the Third Circuit

Disabled in Action of Pennsylvania, Plaintiff-Appellee,

v.

Southeastern Pennsylvania Transportation Authority, Defendant-Appellant.

__________________________________________________________________

Appeal from Order of the United States District Court for the Eastern District of Pennsylvania Case No. 2:03-cv-01577 Judge Gene E.K. Pratter
__________________________________________________________________

BRIEF OF APPELLANT, SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY __________________________________________________________________

STEVENS & LEE

By s/ Jo Bennett Michael G. Tierce mgt@stevenslee.com Jo Bennett jb@stevenslee.com 1818 Market Street, 29th Floor Philadelphia, PA 19103-1702 (215) 751-2883

Dated: May 5, 2010

Attorneys for Appellant

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CORPORATE DISCLOSURE STATEMENT Pursuant to F.R.A.P. 26 and Third Circuit LAR 26.1, Appellant, Southeastern Pennsylvania Transportation Authority (“SEPTA”), is a “body corporate and politic [that exercises the] public powers of the Commonwealth of Pennsylvania as an agency and instrumentality thereof.” 74 Pa.C.S. § 1711(a). Therefore, no corporate disclosure statement is required.
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TABLE OF CONTENTS Page
TABLE OF CONTENTS............................................................................................i TABLE OF AUTHORITIES ....................................................................................iv GLOSSARY........................................................................................................... viii I. JURISDICTIONAL STATEMENT................................................................1 II. STATEMENT OF ISSUES PRESENTED .....................................................1
1. Whether the District Court erred when it failed to follow U.S. Department of Transportation regulations entitled to deference under the Chevron doctrine? ......................................1
2. Whether the District Court abused its discretion by ordering SEPTA to install an elevator on City-owned land and not requiring the City of Philadelphia to be joined as a party?.........................................................................1
III. STATEMENT OF RELATED CASES...........................................................2 IV. STANDARD OF REVIEW.............................................................................3 V. STATEMENT OF THE CASE .......................................................................3 VI. STATEMENT OF FACTS..............................................................................8
A. SEPTA Has a Strong Commitment to ADA Compliance. ...................8 B. SEPTA Upgrades Suburban Station and Penn Center Concourse
as Part of SEPTA’s ADA Key Station Compliance Plan. ..................10 1. Suburban Station and Penn Center Combine Retail,
Office and Transportation Operations. .....................................10 2. SEPTA, City Cooperate on Suburban Station/Penn
Center Project............................................................................12
i
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3. The Suburban Station/Penn Center Project Includes Two Wheelchair-Accessible Entrances.............................................13
4. SEPTA, City Receive Grant To Defray the Cost of 15th Street Stairwell Improvements That Were Included in Suburban Station/Penn Center Project......................................15
5. The FTA Determines That the Upgrades at Suburban Station/Penn Center Concourse Complied with the ADA’s Vertical Access Requirements. ....................................19
C. SEPTA Replaces an Inoperative Escalator in City Hall Courtyard.............................................................................................20
VII. SUMMARY OF ARGUMENT.....................................................................23
VIII. ARGUMENT.................................................................................................24
A. The ADA Mandates A Balancing Approach Between Accessibility and Costs. ......................................................................24
B. SEPTA’s Work Projects Did Not Trigger a Requirement for Elevator Installation at the 15th Street Entrance to Penn Center Concourse or at City Hall Courtyard. .................................................26
1. The ADAAG and DOT Regulations Do Not Require Installation of an Elevator Unless the Project Involves Major Structural Modifications. ...............................................26
2. The District Court Ignored DOT’s Regulations, Which Are Entitled to Deference under the Chevron Doctrine. ..........30
C. Penn Center Concourse Meets ADA Standards Because There Are Two Wheelchair-Accessible Entrances........................................34
1. The Access Board Rejected a “Distance” Test for Accessible Entrances. ...............................................................34
2. The ADAAG Standard, Which the DOT Adopted by Regulation, Is Entitled to Deference under the Chevron Doctrine.....................................................................................36
D. The City of Philadelphia Is a Required Party in This Case. ...............39
ii
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IX. CONCLUSION..............................................................................................43 CERTIFICATE OF ADMISSION TO BAR ...........................................................44 CERTIFICATE OF ADMISSION TO BAR ...........................................................44 CERTIFICATE OF COMPLIANCE.......................................................................45 CERTIFICATE OF TEXT.......................................................................................45 CERTIFICATE OF A VIRUS CHECK ..................................................................45
iii
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TABLE OF AUTHORITIES
Cases
American Society for Testing v. Corrpro Cos., Inc., 478 F.3d 557 (3d Cir. 2007) .................................................................................3
Beck v. City of Cleveland, Ohio, 390 F.3d 912 (6th Cir. 2005) ..............................................................................31
Bragdon v. Abbott, 524 U.S. 624 (1998)............................................................................................32
Brown Shoe Co. v. United States, 370 U.S. 294 (1962)..............................................................................................1
Chevron, U.S.A, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)............................................................... 1, 23, 30, 32, 34, 36
Curley v. Klem, 298 F.3d 271 (3d Cir. 2002) .................................................................................3
Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transportation Authority, 539 F.3d 199 (3d Cir. 2008) .................................................................................2
Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir. 1987) ...............................................................................3
Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980) .................................................................................40
Frederick L. v. Thomas, 557 F.2d 373 (3d Cir. 1977) .................................................................................1
George v. Bay Area Rapid Transit, 577 F. 3d 1005 (9th Cir. 2009) ...........................................................................32
Helen v. DiDario, 46 F.3d 325 (3d Cir. 1995) .................................................................................32
Neal v. Board of Trustees of the Cal. State Universities, 198 F.3d 763 (9th Cir. 1999) ..............................................................................32
iv
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Neighborhood Ass’n of the Back Bay, Inc. v. Federal Transit Administration, 463 F.3d 50 (1st Cir. 2006).................................................................................32
Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968)............................................................................................40
Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008)............................................................................................39
Schaar v. Lehigh Valley Health Services, Inc., 598 F.3d 156 (3d Cir. 2010) ...............................................................................31
Shipbuilders Council of America v. United States Coast Guard, 578 F.3d 234 (4th Cir. 2009) ..............................................................................31
Steel Valley Authority v. Union Switch and Signal Division, 809 F.2d 1006 (3d Cir. 1987) .......................................................................40, 41
Tineo v. Ashcroft, 350 F.2d 382 (3d Cir. 2003) ...............................................................................31
Toretti v. Main Line Hospitals, Inc., 580 F.3d 168 (3d Cir. 2009) ...............................................................................31
Statutes, Rules & Regulations 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. § 1331........................................................................................................1 28 U.S.C. § 1343........................................................................................................1 29 U.S.C. § 794........................................................................................................25 29 U.S.C. § 794(a) .....................................................................................................1 42 U.S.C. § 12143(b) ...............................................................................................25 42 U.S.C. § 12147(a) ........................................................................................1,8, 25 42 U.S.C. § 12147(b) .................................................................................................5 42 U.S.C. § 12149(b) ...............................................................................................25
v
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42 U.S.C. § 12204(a), (b).........................................................................................25 74 Pa.C.S. §1711(a) ...................................................................................................8 Fed. R. Civ. P. 19 ...................................................................................39, 40, 42, 43 36 CFR Part 1191.....................................................................................................26 49 C.F.R. Appendix D, Section 37.43 ...............................................................27, 33 49 C.F.R. Part 37................................................................................................26, 27 49 C.F.R. § 37.9 .......................................................................................................26 49 C.F.R. §37.9(c)....................................................................................................26 49 C.F.R. § 37.43 .....................................................................................................27 49 C.F.R. § 37.49 .....................................................................................................16 49 C.F.R. § 37.53 .......................................................................................................7 49 C.F.R. § 37.59 .....................................................................................................16 56 Fed. Reg. 11874, 11876-77 (March 20, 1991) ...................................................35 56 Fed. Reg. 45500, 45505-06 (Sept. 6, 1991)........................................................36 ADAAG § 4.1.3(8)...................................................................................................37 ADAAG § 4.1.6(1)(a) ..............................................................................................28 ADAAG § 4.1.6(1)(b)..............................................................................................28 ADAAG § 4.1.6(1)(c) ..............................................................................................28 ADAAG § 4.1.6(1)(d)..............................................................................................37 ADAAG § 4.1.6(1)(f).........................................................................................27, 28 ADAAG § 4.1.6(3)(b)..............................................................................................28 ADAAG § 4.3.2(2)...................................................................................................37 ADAAG § 4.9 ..........................................................................................................28
vi
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ADAAG § 4.14 ........................................................................................................37 ADAAG § 4.14.1 .....................................................................................................37 ADAAG § 10.3.1 .....................................................................................................37 ADAAG § 10.3.1(2).................................................................................................37 ADAAG § 10.3.2 .....................................................................................................37 ADAAG § 10.3.2(1).................................................................................................37 Phila. Code § B-1110.2.2(9) ....................................................................................16
vii
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GLOSSARY
“15th Street Stairwell” means the well located at the northwestern corner of the intersection of 15th and Market Streets in the City of Philadelphia. Within the well are a stair and two escalators that allow pedestrians to connect street-level and Penn Center Concourse. At the base of the well is a courtyard.
“15th Street Stair” means the stair located within the 15th Street Stairwell that allows pedestrians to connect street-level and Penn Center Concourse.
“Penn Center Concourse” is the collective name for the corridors for pedestrian circulation that are one level below the area bounded by 15th Street, 18th Street, Market Street, and JFK Boulevard.
“Suburban Station” is the bi-level subterranean commuter railroad passenger station, the upper level of which is within part of Penn Center Concourse and the lower level of which contains railroad tracks and pedestrian platforms.
“15th Street Subway Station” is a subterranean passenger station that serves the Market-Frankford Subway-Elevated Line and is located under the intersection of 15th Street and Market Street.
“City Hall Courtyard” is the open space that is located in the center of Philadelphia City Hall.
“City Hall Subway Station” is the subterranean passenger station that serves the Broad Street Subway Line and is located under the western foundation wall of City Hall and Dilworth Plaza.
“City Hall Subway Station Concourse” is collective name for the subterranean corridors that allow pedestrians to connect City Hall Subway Station, 15th Street Subway Station and street-level.

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“Dilworth Plaza” is the open bi-level public space that is located between the western wall of Philadelphia City Hall and the eastern edge of 15th Street and affords pedestrians the ability to connect street-level to Penn Center Concourse and City Hall Subway Station Concourse.
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I. JURISDICTIONAL STATEMENT The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343,
because Appellee, Disabled in Action of Pennsylvania (“DIA”), asserted federal
statutory claims against SEPTA under Section 227 of the Americans With
Disabilities Act (“ADA”), 42 U.S.C. § 12147(a), and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a). See Joint Appendix at JA 5
(hereinafter, the Joint Appendix is cited as “JA at ___”).
This Court has jurisdiction under 28 U.S.C. § 1291, because the
District Court issued a final order granting judgment in favor of DIA and against SEPTA1 (JA at 4).
II. STATEMENT OF ISSUES PRESENTED 1. Whether the District Court erred when it failed to follow U.S. Department of Transportation regulations entitled to deference under the Chevron doctrine? [Suggested Answer: Yes.] 2. Whether the District Court abused its discretion by ordering SEPTA to install an elevator on City-owned land
1 In its Order, the District Court directed SEPTA to file a proposed schedule of compliance within 30 days (JA at 4). This directive does not impact the finality of the District Court’s Order. See Brown Shoe Co. v. United States, 370 U.S. 294, 308 (1962) (district court order that required appellant to submit plan to effectuate the order was a final order); Frederick L. v. Thomas, 557 F.2d 373, 379-81(3d Cir. 1977) (remedial order that required school district to submit plan to identify all learning disabled students was appealable injunctive order).
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and not requiring the City of Philadelphia to be joined as a party? [Suggested Answer: Yes.] III. STATEMENT OF RELATED CASES There have been two earlier appeals from the underlying action, Appeal Nos. 04-4530 and 06-5109. In Appeal No. 04-4530, SEPTA sought issuance of a writ of mandamus and contended that, inter alia, the District Court had abused its discretion by ordering SEPTA to produce discovery on a “key station” claim in DIA’s Third Amended Complaint that had no legal basis under U.S. Department of Transportation (“DOT”) regulations and that SEPTA had moved to dismiss months earlier. This Court denied SEPTA’s petition and declined to stay the District Court’s discovery order. In Appeal No. 06-5109, this Court reversed the District Court’s decision that DIA’s claims against SEPTA asserted in DIA’s Fourth Amended Complaint were barred by the statute of limitations. Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transportation Authority, 539 F.3d 199 (3d Cir. 2008). As a result, this Court remanded for further proceedings, during which both parties moved for summary judgment on the merits. The District Court ruled in favor of DIA, leading to the present appeal.
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IV. STANDARD OF REVIEW This Court’s review of the District Court’s summary judgment ruling
is plenary. American Society for Testing v. Corrpro Cos., Inc., 478 F.3d 557, 566 (3d Cir. 2007); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). Similarly, this Court has plenary review “over a district court’s choice and interpretation of legal precepts.” American Society for Testing, 478 F.3d at 566 (quoting Blasband v. Rales, 971 F.2d 1034, 1040 (3d Cir. 1992)).
V. STATEMENT OF THE CASE DIA initiated this lawsuit against SEPTA on March 14, 2003 and
alleged that SEPTA had violated the ADA and the Rehabilitation Act when it failed to install an elevator at the 15th Street Stairwell, located at the northwest corner of 15th and Market Streets in Philadelphia (JA at 54). DIA contended that SEPTA had “altered” the 15th Street Subway Station of the Market-Frankford Subway-Elevated Line by “building a new stairway and improving the escalator” in the 15th Street Stairwell (JA at 53). In support of its allegations, DIA cited to this Court’s decision in Disabled in Action of Pennsylvania v. Sykes, 833 F.2d 1113 (3d Cir. 1987), a pre-ADA case. The Complaint requested that the District Court order SEPTA to install an elevator.
DIA filed an Amended Complaint on June 12, 2003 to add the City of Philadelphia as an additional defendant (JA at 57-58). The City owns the 15th
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Street Stairwell, and SEPTA contended that the City must be joined in order for DIA to obtain the relief sought in the lawsuit (JA at 56). The Amended Complaint repeated the allegations of the original Complaint (JA at 57-60).
Four months later, on October 10, 2003, DIA filed a Second Amended Complaint and raised new factual allegations (JA at 62-73). DIA alleged that during construction at the 15th Street Stairwell, it had met with representatives from SEPTA and from the City about installation of an elevator at that location (JA at 66). According to DIA, SEPTA and the City proposed instead to build an elevator at Dilworth Plaza, about 225 feet from the 15th Street Stairwell, as a “substitute” for the 15th Street Stairwell elevator, and agreed to build additional elevators at Dilworth Plaza to make City Hall Subway Station on the Broad Street Subway Line wheelchair-accessible (JA at 66). DIA alleged that SEPTA had subsequently reneged on the agreement by delaying funding for the latter projects (JA at 67). DIA sought alternative relief: either an order directing SEPTA to install an elevator at the 15th Street Stairwell, or an order directing SEPTA to install the elevators at Dilworth Plaza (JA at 69).
On January 4, 2004, DIA filed its Third Amended Complaint against SEPTA and the City of Philadelphia (JA at 74-87). The Third Amended Complaint relied on the same underlying facts, but DIA added a “key station” claim. DIA alleged that City Hall Subway Station was a key station under
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42 U.S.C. § 12147(b) and that SEPTA therefore was obligated to make City Hall Subway Station fully accessible to the disabled, including people who use wheelchairs (JA at 74-87). In its Third Amended Complaint, DIA sought an order compelling installation of the elevator at the 15th Street Stairwell and installation of the elevators at Dilworth Plaza (JA at 81).
In August 2004, DIA and the City reached a settlement. Under the terms of the settlement, the City agreed that, if a court ordered SEPTA to install an elevator at the 15th Street Stairwell or to install the elevators at Dilworth Plaza, it would give SEPTA permission to use the City’s property for that purpose (JA at 89-94). The City stated in the agreement that it had issued the permit to SEPTA for the 15th Street Stairwell project without the requirement for elevator installation only because the City believed that SEPTA had agreed to install the elevators at Dilworth Plaza in lieu of the elevator at the 15th Street Stairwell (JA at 91). The District Court dismissed the City as a party to the action (JA at 40, Dkt. #68).
SEPTA vigorously disputed DIA’s allegation that it had agreed to build elevators at Dilworth Plaza as alleged in DIA’s Third Amended Complaint. SEPTA had moved to dismiss the Third Amended Complaint and to strike the allegations regarding the purported agreement about elevator installation at Dilworth Plaza (JA at 37, Dkt. #32). The parties eventually reached a stipulation
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on this point, and by Order dated December 23, 2004, the District Court ordered the allegations relating to the purported agreement stricken from the Third Amended Complaint (JA at 95-96). The District Court further ordered DIA to file a Fourth Amended Complaint without the stricken allegations (JA at 95-96).
When it filed its Fourth Amended Complaint on February 15, 2005, DIA not only restated its “alteration” claim regarding the 15th Street Stairwell and the key station claim involving City Hall Subway Station, but it also added two new claims. DIA alleged for the first time that: (1) 15th Street Subway Station was a key station, and (2) SEPTA had altered City Hall Subway Station in 2003 when SEPTA replaced an inoperative escalator from concourse level to street level at the “southeast entrance located in the City Hall Courtyard”2 (JA at 97-105). The Fourth Amended Complaint sought alternative relief: installation of elevators at the 15th Street Stairwell and in City Hall Courtyard, or installation of three elevators at Dilworth Plaza that would make City Hall Subway Station and 15th Street Subway Station fully accessible as key stations (JA at 106).
On April 5, 2006, the parties cross-moved for summary judgment. By Order and Opinion dated November 17, 2006, the District Court granted summary
2 DIA also alleged that SEPTA intended to replace an escalator in the northwest corner of City Hall Courtyard (JA at 101). No escalator was installed at that location. Thus, there was no issue before the District Court.
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judgment in favor of SEPTA and against DIA. The District Court held that: (1) DIA’s “alterations” claims regarding work performed at the 15th Street Stairwell and in City Hall Courtyard were time-barred, and (2) DIA did not have a private right of action to enforce DOT regulations concerning SEPTA’s determination of which stations should be key stations3 (JA at 46, Dkt. #141).
On appeal, DIA challenged only the District Court’s ruling on the statute of limitations. This Court reversed the District’s Court decision that DIA’s alterations claims were time-barred and remanded for further proceedings in light of its decision. 539 F. 3d at 218.
After remand, the parties resubmitted their motions for summary judgment to address the merits of DIA’s remaining claims. By Order dated September 11, 2009, the District Court granted summary judgment in favor of DIA and against SEPTA. The District Court concluded that the ADA required SEPTA to build the elevators. The District Court found that: (1) the work that SEPTA performed at each location constituted an “alteration” under 42 U.S.C. § 12147(a);
3 In adopting its key station regulations, DOT created an exception for Philadelphia. Under that exception, DOT allowed SEPTA to satisfy its ADA key station obligation by renovating those stations identified as key stations pursuant to a settlement that SEPTA had reached with Eastern Paralyzed Veterans Association of Pennsylvania, Inc. 49 C.F.R. § 37.53. City Hall Subway Station and 15th Street Subway Station are not among the 42 key stations identified in the settlement; however, Suburban Station is one of the 42 key stations (JA at 109-126).
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(2) after SEPTA made the alterations, the facilities were not “readily accessible to” disabled individuals, including people who use wheelchairs, and (3) there were no technical reasons preventing SEPTA from installing the elevators (JA at 5-31).
VI. STATEMENT OF FACTS A. SEPTA Has a Strong Commitment to ADA Compliance. SEPTA, an agency and instrumentality of the Commonwealth of
Pennsylvania, is the nation’s fifth-largest public transportation system and serves 3.9 million customers across a 2,200-square-mile region (JA at 241, ¶ 3; JA at 465); 74 Pa.C.S.A. §1711(a). More than one-half million customers daily and 301 million passengers annually use SEPTA’s network of bus, subway/elevated, trackless trolley, light rail, and commuter rail services (JA at 465). In addition, SEPTA coordinates paratransit services for seniors and disabled individuals throughout the five-county region in which SEPTA operates (JA at 241, ¶ 3; JA at 465).
Since the passage of the ADA in 1990, SEPTA has committed more than one billion dollars to an ongoing, intensive, system-wide initiative to make its services, vehicles and facilities accessible to all customers (JA at 1042-43, ¶ 19). Two years after Congress passed the ADA, SEPTA submitted an ADA Key Station Plan and Schedule (“the Plan”) to the DOT (JA at 129-156). The Plan’s purpose was to ensure that SEPTA’s station upgrades complied with DOT regulations
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implementing the ADA (JA at 130). The Plan provided a schedule for making SEPTA’s key stations fully accessible to people who use wheelchairs, and it provided cost estimates for providing accessibility at each key station (JA at 137140, 142-44).
Since submitting the Plan, SEPTA has made substantial progress toward making all of its stations accessible. To date, 33 of 35 key stations are fully accessible to the disabled (JA at 1039, ¶ 5). Only minor work remains at the two key stations that are not yet accessible, and completion of those projects has been delayed because of litigation involving parties other than SEPTA (JA at 1039, ¶ 5). Aside from SEPTA’s key stations, SEPTA has reconstructed 54 additional stations to make them fully accessible to the disabled (JA at 1040, ¶ 8). Since this litigation began, 13th Street Subway Station on the Market-Frankford SubwayElevated Line, Walnut-Locust Subway Station on the Broad Street Subway Line, and Suburban Station – all key stations -- have been made fully accessible with elevator access from street level to platform level (JA at 1040, ¶ 6).
SEPTA has worked in collaboration with the regional disability community in designing and carrying out many of its projects. The SEPTA Advisory Committee for Accessible Transportation (“SAC”) assists SEPTA in
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maintaining compliance with the ADA4 (JA at 1040, ¶ 9). SAC also acts on behalf of the regional disability community and offers its views when SEPTA undertakes a project that may affect the interests of disabled individuals (JA at 1040, ¶ 9). One such project included SEPTA’s $63 million renovation of Suburban Station/Penn Center Concourse in Center City Philadelphia (JA at 1042-43, ¶ 19).
B. SEPTA Upgrades Suburban Station and Penn Center Concourse as Part of SEPTA’s ADA Key Station Compliance Plan. 1. Suburban Station and Penn Center Combine Retail, Office and Transportation Operations. Suburban Station, which serves SEPTA’s 13 commuter rail lines,
historically has been a mixed-use complex combining retail, office and transit operations (JA at 250, ¶ 12; JA at 281). The Pennsylvania Railroad and the City built Suburban Station in 1929 on land adjacent to the old Broad Street Station (JA at 280-81). When it opened a year later, Suburban Station included a 22-story office building (Suburban Station Building) with retail shops at street level, an underground concourse (part of today’s Penn Center Concourse) with retail shops and offices, and, below the concourse level, train platforms extending toward 15th Street to the east and 18th Street to the west (JA at 281).
4 Information regarding SAC is located on SEPTA’s website at www.septa.org under the heading “SEPTA Partners.”
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In the early 1950s, the railroad demolished Broad Street Station and the “Chinese Wall,” the elevated viaducts that carried trains into downtown Philadelphia from the west (JA at 279, 282). City planners and railroad officials were eager to develop the 22 acres that stretched from 15th Street to 18th Street and from Market Street to Filbert Street (now JFK Boulevard) (JA at 284, 286). When completed in 1959, Penn Center combined office buildings and hotels at street level with an underground concourse level containing restaurants, shops, and rail and bus transportation (JA at 287-288).
The Penn Center Concourse opened into the concourse at Suburban Station (JA at 287-88). Thus, at concourse level, Penn Center spans east to west from 15th Street to 18th Street and from Market Street north JFK Boulevard (JA at 249, ¶ 5; JA at 451). Penn Center Concourse connects to the concourse level of Dilworth Plaza underneath 15th Street (JA at 726-27). This connection includes a ramp to allow a person in a wheelchair to travel between the two sites (JA at 72627). There are seven public stairways the connect the streets and Penn Center Concourse: four on the south side of JFK Boulevard at 15th, 16th, 17th and 18th Streets; two on 16th Street (one at the northeast corner of 16th and Market, and one on 16th Street midway between Market Street and JFK Boulevard); and the 15th Street Stairwell entrance (JA at 394, 686-87).
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2. SEPTA, City Cooperate on Suburban Station/Penn Center Project. In 1995, SEPTA and the City of Philadelphia reached agreement on
improvements at Suburban Station/Penn Center Concourse in order to meet SEPTA’s ADA key station requirements (JA at 301-04). SEPTA issued a request for proposals and, in 1997, awarded the design contract to the architectural and design firm Bower, Lewis & Thrower (JA at 252, ¶ 21; JA at 305-45). The project boundaries ran from 15th Street to 18th Street and from Market Street north to Cuthbert Street5 (JA at 395, 664). SEPTA, the City, and private parties own the various parcels within Penn Center Concourse’s boundaries (JA at 627-29).
The work proceeded in four phases: chilled water system improvements, asbestos abatement, platform ventilation, and the main renovation phase. (JA at 0252, ¶ 23). The main phase included the construction/renovation of elevators, modifications at concourse level, and modifications at street level entrances, including the entrance at the 15th Street Stairwell. (JA at 0253, ¶¶ 2830).
After completing the work at platform level (the first three phases), workers moved to the concourse level. They installed new ceilings; replaced,
5 Cuthbert Street is the northernmost boundary of the concourse below the Suburban Station Building (JA at 395, 664).
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cleaned and polished the marble on concourse walls and columns; repaired, cleaned and polished floors; replaced railings and handrails; and built structures, including a ticket purchase office, a passenger services office, and ticket vending areas (JA at 690). Workers renovated the corridor leading from the stairway at 18th Street and JFK Boulevard to the passenger waiting area in Suburban Station (JA at 691). Workers also cleaned and polished all signage in the concourse, and, in the 15th Street corridor of Penn Center Concourse, workers made improvements to the electrical system, replaced the ceiling, and patched the terrazzo floor (JA at 0253, ¶ 31; JA at 690-91). At the four stairway entrances on JFK Boulevard at 15th, 16th, 17th and 18th Streets, workers repaired the treads, repaired the railings, and cleaned, polished and repaired the balustrades (JA at 691).
3. The Suburban Station/Penn Center Project Includes Two Wheelchair-Accessible Entrances. Although only one elevator was necessary under ADA’s key station
provision, SEPTA installed two elevators at street level to make Suburban Station fully accessible (JA at 255, ¶¶ 44; JA at 394, 1123). The elevators were put into public service in February and June of 2005, and they provide a barrier-free path throughout Penn Center Concourse and, therefore, the concourse level of Suburban Station (JA at 255-56, ¶¶ 43-44).
The elevator on JFK Boulevard near 17th Street is the elevator that provides the most direct route to Suburban Station’s train platforms (JA at 255, ¶
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44). That elevator descends from street level, to concourse level, then down to the platform level at Track 0 (JA at 255, ¶ 44; JA at 975). People who use wheelchairs may access the platforms for Tracks 1-2 and Tracks 3-4 by exiting the JFK Boulevard elevator at concourse level and transferring to the appropriate elevator that connects to the platform below (JA at 255, 396, 410-11, 975). The elevator on JFK Boulevard is next to the stairway entrance at the southeast corner of JFK Boulevard and 17th Street (JA at 255, ¶ 44; JA at 396, 410).
The second elevator is on 16th Street midway between Market Street and JFK Boulevard. At this entrance, SEPTA’s contractors also built a new stair to the concourse next to the elevator (JA at 396). The elevator descends to concourse level and allows a person in a wheelchair to navigate the entire Suburban Station/Penn Center Concourse, including an accessible path through the 15th Street corridor to the bottom of the stair at the 15th Street Stairwell (JA at 256, ¶¶ 50-51; JA at 373, 396, 402).
DIA contended before the District Court that the 15th Street Stairwell is an entrance to the 15th Street Subway Station, which is not wheelchairaccessible (JA at 100). An ambulatory person may enter Penn Center Concourse from the 15th Street Stairwell, turn left and walk about 150 feet and up a set of
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stairs to reach 15th Street Subway Station’s ticket area6 (JA at 445, 635, 679). Underneath the stairs is the Subway/Surface Trolley Line (JA at 642). The property line for 15th Street Subway Station is at approximately the middle of those stairs (JA at 395-96, 445, 694). SEPTA did not perform any work inside the property line of 15th Street Subway Station (JA at 253, ¶ 32; JA at 395, 0396).
4. SEPTA, City Receive Grant To Defray the Cost of 15th Street Stairwell Improvements That Were Included in Suburban Station/Penn Center Project. During the Suburban Station renovation project, SEPTA and the City,
which owns the 15th Street Stairwell, learned about possible grant money to defray the costs of the Suburban Station/Penn Center project (JA at 419-27). SEPTA and the City applied for, and received, a $750,000 grant. (JA at 428-30). The grant, however, required that the work begin within 18 months, forcing SEPTA to accelerate work at the 15th Street Stairwell (JA at 431, 440, 658-59).
SEPTA immediately sought a permit from the City (JA at 442-43). DIA, however, opposed the permit on the ground that SEPTA and the City did not plan to install an elevator at the 15th Street Stairwell. DIA’s counsel, Stephen F.
6 The stair referenced here is not the 15th Street Stair. Rather, the stair referred to here is located within 15th Street Subway Station of the MarketFrankford Subway-Elevated Line.
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Gold, Esq., wrote to Edward McLaughlin, Commissioner of the City Licenses and
Inspections Department:
Despite the fact that SEPTA has provided access for people with disabilities to Suburban Station at two other locations, the City of Philadelphia still has a responsibility to ensure that renovations to its own facilities are done in accordance with the ADA Accessibility Guidelines (ADAAG) to the maximum extent feasible. This courtyard is not only an access point to Suburban Station, but also to many shops, businesses and public offices in the immediate area.7 (JA at 246). The City initially denied the permit on the ground that the project did
not satisfy the requirements of Section B-1110.2.2(9) of the City Code, which
states: “Where building entrances are altered, or when plans are presented to
relocate and provide a new primary entrance, the entrance shall be made
accessible” (JA at 442).
The City subsequently reversed its position. At an appeal hearing
before the City of Philadelphia Accessibility Advisory Board, a technical advisor
to the Board testified that SEPTA’s proposal complied with the City Code because
7 In his correspondence, Mr. Gold appears to argue that the ADA requires the 15th Street Stairwell to be accessible because the City of Philadelphia owns it. That is not a proper reading of the ADA. A large building may occupy multiple parcels that have various owners who lease the parcels to the building’s owner. As to accessibility, the ADA requires consideration of a building or facility (such as Suburban Station) as a whole, not the ownership of the parcels that the building or facility occupies. 49 C.F.R. §§ 37.49, 37.57.
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SEPTA’s broader renovation project included installation of elevators at 16th Street and on JFK Boulevard near 17th Street, thus making the Concourse accessible (JA at 443). The technical advisor also testified that, under the City Code, installation of an elevator was not required, because the cost exceeded 20 percent of the $1.5 million budget for the 15th Street Stairwell phase of the Suburban Station/Penn Center project8 (JA at 443). As a result, the City reversed its decision, and in February 2001 issued a permit allowing SEPTA to proceed with the improvements at the 15th Stairwell without installation of an elevator (JA at 443).
Work began immediately. Workers reconstructed the escalator headhouse, demolished and rebuilt the stairway, made minor repairs, and replaced lighting, handrails and tile in the below-ground courtyard situated at the base of the 15th Street Stairwell (JA at 394, 660). The entrance at the 15th Street Stairwell reopened on August 8, 2002 (JA at 735). There is a sign at the street-level entrance directing people who use wheelchairs to the 16th Street elevator entrance, which is 340 feet across Penn Center Plaza (JA at 250, ¶ 10; JA at 411, 965-66).
8 The SEPTA engineer who oversaw the Suburban Station/Penn Center renovation testified that the cost to install an elevator would exceed $800,000 (JA at 443).
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Although workers demolished and rebuilt the 15th Street Stair, none of the work in the 15th Street Stairwell involved any structural modifications. Terry G. Heiser, who has been a licensed professional engineer for 30 years, managed the Suburban Station/Penn Center project for SEPTA (JA at 244, ¶¶ 1, 3). Heiser, a Senior Project Manager assigned to SEPTA’s Capital Design and Construction Department, reviewed all documents submitted by Bower, Lewis & Thrower, SEPTA’s architect on the project, relating to the technical aspects of the project, such as plans, designs and architectural studies (JA at 244, ¶¶ 1-3). At his deposition, Mr. Heiser testified that the work performed at the 15th Street Stairwell was limited to the replacement of the stair and head house, and the improvement of some architectural finishes. (JA at 660). Based on the scope of the work, Mr. Heiser testified that –
[SEPTA’s contractor] did not make any structural modifications or remove any load bearing walls in performing the work on the stairs in the courtyard. … [and] [n]o structural changes were made to the walls of the 15th Street Courtyard. (JA at 257, ¶ 58). Experts retained by SEPTA for this case likewise confirmed the limited scope of the work (JA at 386, 401, 968-69, ¶ 10). Photographs of the project, which are included in the Appendix, provide documentary proof that the project involved no major structural modifications (JA at 778-861). At the base of the 15th Street Stairwell is a
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courtyard enclosed on three sides by concrete walls, with the remaining side a glass wall and entryway to the 15th Street corridor of Penn Center Concourse (JA at 778-861). The photographs demonstrate that no work was performed on the support structures or walls surrounding the courtyard (JA at 778-861). Instead, all work, including the demolition and reconstruction of the stairs, occurred in the open space in the middle of the courtyard and did not require any modifications to the Stairwell’s supporting structures (JA at 778-861).
5. The FTA Determines That the Upgrades at Suburban Station/Penn Center Concourse Complied with the ADA’s Vertical Access Requirements. Upon completion of the Suburban Station/Penn Center renovation, the
Federal Transit Administration (“FTA”), an administrative division in the DOT, issued an “ADA Key Station Assessment” of the Suburban Station/Penn Center Concourse project (JA at 972-986). The FTA assessment, conducted by the FTA’s Office of Civil Rights, viewed the scope of the project as encompassing the entire area within the boundaries of the Penn Center Concourse, including the 15th Street Stairwell (JA at 975-76). Using regulations and guidelines issued by the DOT and the Architectural and Transportation Barriers Compliance Board (“Access Board”), the FTA determined that SEPTA’s station renovation complied with the ADA’s
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vertical access requirements for people who use wheelchairs9 (JA at 973, 1042, ¶ 17).
C. SEPTA Replaces an Inoperative Escalator in City Hall Courtyard. In 1999, a passenger injury prompted SEPTA to replace escalators at a
number of stations (JA at 868, 970). In June 2001, during the second phase of the escalator replacement project, SEPTA replaced an inoperative escalator leading from City Hall Subway Station Concourse to ground level in the southeast corner of Philadelphia City Hall Courtyard, which is owned by the City (JA at 868-69). The escalator is a means of egress from the City-owned City Hall Subway Station Concourse running east-west under City Hall and is situated about 120 feet east of the paid area (the area in which a passenger must pay a fare to occupy) of City Hall Subway Station (JA at 885, 887). Two other escalators and two sets of stairs in City Hall Courtyard also lead to and from the concourse (JA at 869).
The work in City Hall Courtyard was confined to the escalator and “cosmetic” work to the head house covering the escalator (JA at 268, ¶¶ 17-18). Skip Brooke, Director of Engineering in SEPTA’s Bridges and Buildings Engineering Department, oversaw the escalator replacement program (JA at 266, ¶
9 The FTA determined that the project contained several technical deficiencies unrelated to vertical accessibility (JA at 1042, ¶ 17). SEPTA subsequently corrected those deficiencies (JA at 1042, ¶ 18).
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1; JA at 867, 885). Brooke, a licensed architect for 27 years, described the work during his deposition in this case. Brooke testified:
The scope of the work at was to remove the existing escalator, which was not operable, and replace it with a new escalator in the same general location, period. (JA at 869). Brooke explained that the moving part of an escalator sits in a wellway, which can be thought of as a diagonal “hallway” through which the escalator travels. (JA at 901). Workers removed the old escalator equipment from the wellway and retained some parts for use in the new escalator (JA at 268, ¶ 17; JA at 877). Workers lengthened the edges of the wellway in order to support an ADA-compliant escalator, but did not make any further modifications 10 (JA at 893, 901). Photographs of the project, which are included in the Appendix, depict the extent of the work (JA at 910-63). The photographs demonstrate that all work was confined to the escalator equipment within the wellway and did not involve alteration to any load-bearing structures (JA at 910-63). As the photos show, even the tiles in the wellway remained untouched during the project (JA at 955-58, 960-61). The escalator replacement in City Hall Courtyard cost nearly
10 The ADA requires two consecutive moving steps to become flat at the top and bottom of an escalator in order to extend the area on which an individual may board and exit the elevator (JA at 866). The new escalator complied with this requirement (JA at 866).
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$1.2 million11 (JA at 270, ¶ 35). No work was done at concourse level or within the paid areas at City Hall Subway Station (i.e., the ticket area, passenger waiting area, or platforms) (JA at 869). City Hall Subway Station is not wheelchairaccessible (JA at 871-72).
11 Brooke estimated the cost to install an elevator at approximately $2 million (JA at 270, ¶ 36).
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VII. SUMMARY OF ARGUMENT The District Court committed reversible error when it ordered SEPTA
to install elevators at Suburban Station/Penn Center and City Hall Courtyard in downtown Philadelphia. The District Court ignored DOT regulations that have the force of law and substituted its judgment for the agency’s expertise. DOT’s interpretation of the ADA is entitled to deference under the Chevron doctrine.
The District Court’s rejection of DOT regulations is flawed in two distinct ways. First, neither the stair replacement at the 15th Street Stairwell nor the escalator replacement at City Hall Courtyard involved removal or alteration of a load-bearing structural element. DOT regulations do not mandate installation of an elevator unless the improvements require major structural modifications.
Second, the District Court incorrectly held that the Penn Center Concourse was not readily accessible to people who use wheelchairs even though SEPTA installed an elevator 340 feet from the 15th Street Stairwell. The 16th Street elevator is one of two elevators that SEPTA built at Penn Center as part of the Suburban Station/Penn Center renovation project. The District Court’s holding directly contradicts DOT regulations, which require only one wheelchairaccessible entrance to a facility.
Finally, the District Court also erred when it ordered SEPTA to install an elevator in City Hall Courtyard without requiring the City of Philadelphia to be
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joined as a party. The City, which owns City Hall Courtyard, has not given
SEPTA permission to install an elevator at that location. Thus, the City must be
joined in order for DIA to obtain the relief it seeks in this lawsuit.
VIII. ARGUMENT A. The ADA Mandates A Balancing Approach Between Accessibility and Costs. The ADA balances improvements to access for the disabled against
the costs of those improvements. The statute does not require a transit authority to
incur excess costs, a principle upon which SEPTA relied before the District Court.
The District Court, however, rejected the balancing act mandated by the statute and
concluded:
[U]nder the governing legislation and related regulations, the only considerations to be made when determining whether an alteration was made in an accessible manner to the maximum extent feasible are those of technical feasibility, not economic feasibility. (JA at 28).
The District Court’s conclusion is fundamentally flawed. The
statutory provision on which DIA bases its claims provides, in pertinent part:
With respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 12132 of this title and section 794 of Title 29, for a public entity to fail to make such alterations (or to ensure that the
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alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations. 42 U.S.C. § 12147(a) (emphasis added). 12 In enacting the ADA, Congress charged the Access Board with establishing and maintaining minimum guidelines and requirements for building accessibility, including accessibility to transportation facilities. 42 U.S.C. § 12204(a), (b). The Access Board’s Americans With Disabilities Act Accessibility Guidelines (“ADAAG”) establish scoping and technical requirements for the design, construction, and alteration of buildings and facilities covered by Titles II and III of the ADA. Similarly, Congress charged the DOT with rule-making authority to implement regulations applicable to public transportation services. 42 U.S.C. § 12143(b) (paratransit services); 42 U.S.C. § 12149 (fixed-route services, including rapid and light rail); 42 U.S.C. § 12164 (intercity and commuter rail services). Congress directed that DOT’s regulations be consistent with the Access Board’s minimum guidelines. 42 U.S.C. §§ 12149(b), 12163.
12 DIA also brought its claims under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. See DIA v. SEPTA, 539 F. 3d at 207 n. 11 (“[p]rocedures, rights, and remedies provided by Section 227 of the ADA are identical to those provided by Section 504”).
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DOT has incorporated the ADAAG into its regulations, except where modified by Appendix A to 49 C.F.R. Part 37.13 DOT has not modified any of the ADAAG provisions that SEPTA has cited in support of its legal argument. Under DOT regulations, a transportation facility “shall be considered to be readily accessible to and usable by individuals with disabilities” if it complies with DOT regulations and the ADAAG. 49 C.F.R. § 37.9. Thus, the ADAAG provisions incorporated by the DOT establish the standards for accessible design and effectively operate as a regulation issued by DOT.
B. SEPTA’s Work Projects Did Not Trigger a Requirement for Elevator Installation at the 15th Street Entrance to Penn Center Concourse or at City Hall Courtyard. 1. The ADAAG and DOT Regulations Do Not Require Installation of an Elevator Unless the Project Involves Major Structural Modifications. DOT regulations and the ADAAG establish as a matter of law that
SEPTA had no obligation to install an elevator at the 15th Street Stairwell or in City Hall Courtyard. In the construction and interpretation section of its regulations, DOT provides the following explanation about the meaning of the statutory phrase “to the maximum extent feasible”:
13 The Guidelines are codified at 36 CFR Part 1191, Appendices B and D, and are available on the Access Board’s web site. The 1991 version of the ADAAG is applicable in this case. 49 C.F.R. §37.9(c).
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[T]he term “to the maximum extent feasible” should be construed as not requiring entities to make building alterations that have little likelihood of being accomplished without removing or altering a loadbearing structural member unless the load-bearing structural member is otherwise being removed or altered as part of the alteration. 49 C.F.R. Appendix D, Section 37.43 - Alteration of Transportation Facilities by Public Entities (citing S. Rept. 101–116, at 68)14 (emphasis added).
In its interpretation of the statutory phrase “to the maximum extent
feasible,” the DOT accepted the Access Board’s standard. Critically, ADAAG
4.1.6(1)(f) addresses the circumstances in which an elevator must be installed
between floors where a transit authority is making improvements at a station. This
provision reads:
If an escalator or stair is planned or installed where none existed previously and major structural modifications are necessary for such installation, then a means of accessible vertical access shall be provided that complies with the applicable provisions.
14 The DOT also states: “[I]n looking at facility concepts like “disproportionality” and “to the maximum extent feasible,” the Department will consider any expenses related to accessibility for passengers.” Appendix D to 49 C.F.R. Part 37 - Construction and Interpretation of Provisions, Section 37.43 Alteration of Transportation Facilities by Public Entities.
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ADAAG § 4.1.6(1)(f)15 (emphasis added). In commentary to the ADAAG, the Access Board has explained the meaning of this requirement: “For example, 4.1.6(1) describes the type of work that triggers provision of vertical access between floors (major structural modification resulting from replacement or addition of stairs or escalators).” A Guide to the ADAAG, Alterations [4.1.6] and Historic Preservation [4.1.7] (emphasis added).16
The evidence of record before the District Court establishes that the projects at the 15th Street Stairwell and at City Hall Courtyard involved no alteration or removal of a load-bearing structure, which bears the weight and force resting upon it. This conclusion rests on the testimony of Mr. Heiser, a licensed professional engineer for 30 years who oversaw SEPTA’s Suburban Station project, and Skip Brooke, an architect for 27 years who was in charge of the
15 Section 4.1.6 of the ADAAG lays the framework for building alterations. An alteration may not have the effect of decreasing the accessibility or usability of a facility below the requirement for new construction. ADAAG § 4.1.6(1)(a). The technical criteria for new construction are applied as to each element or space altered, provided the new-construction criteria are technically feasible. ADAAG § 4.1.6(1)(b). Thus, if a stairway is replaced, it must meet the requirements of ADAAG §§ 4.1.6(3)(b) and 4.9 if technically feasible. Compliance may be followed on an element-by-element basis, unless the work amounts to a full alteration of a particular room or space. ADAAG § 4.1.6(1)(c). Thus, piecemeal modifications do not always rise to an “alteration” under the ADAAG. 16 The “Guide to the ADAAG” may be found on the Access Board’s website.
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escalator replacement project (JA at 257, ¶ 58; JA at 869, 893, 901). Their testimony was unequivocal and unrebutted.
Photographs included in the Appendix support the testimony of SEPTA’s witnesses. Photographs taken during construction at the 15th Street Stairwell depict both the demolition and rebuilding of the 15th Street Stair (JA at 778-861). The pictures establish that no work was performed to any of the support structures or walls supporting the Stairwell, which includes a belowground courtyard (JA at 778-861). Instead, the demolition and reconstruction of the stairs occurred in the middle of the 15th Street Stairwell and impacted no roof or walls that required the alteration or removal of load-bearing structural elements (JA at 778-861).
Photographs of the construction site in City Hall Courtyard likewise demonstrate the absence of any major structural modifications. Indeed, they confirm that all work was confined to the escalator equipment within the wellway (JA at 910-63). Even the tiles in the wellway remained untouched during the project (JA at 955-58, 960-61). Accordingly, DOT regulations do not require installation of an elevator at either location, because neither improvement project involved major structural modifications.
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2. The District Court Ignored DOT’s Regulations, Which Are Entitled to Deference under the Chevron Doctrine. In its decision, the District Court did not give deference to DOT’s
interpretation of the ADA. The District Court rejected SEPTA’s contention that
ADAAG § 4.1.6(1)(f) relieved the transit authority from any obligation to install
an elevator at the 15th Street Stairwell and at City Hall Courtyard. The District
Court opined:
Certainly, one could argue that conclusion is implied, but it is also possible to see this guideline as simply clarifying the requirements in a specific and unequivocal situation without stepping into the murky waters of other situations involving potential alterations to stairs and escalators. … [t]he guideline simply does not state that a means of vertical access must be provided only when a new staircase or escalator is installed, and the Court refuses to read such a requirement in to the guideline. (JA at 15-16). Thus, the District Court ignored the requirement that there must be
a major structural modification before the obligation to build an elevator attaches.
The District Court’s opinion runs afoul of the principle established by
the Supreme Court in Chevron, U.S.A, Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). In Chevron, the Supreme Court held that an agency’s
interpretation of statutory language is entitled to deference if Congress has charged
the agency with rule-making authority and the agency’s interpretation of the statute
is a permissible construction of the language. Id. at 844-45. This principle makes
eminent sense, because an agency with specific expertise is better able to articulate
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the policy assumptions underlying statutory language that may not be crystal clear. See also Schaar v. Lehigh Valley Health Services, Inc., 598 F.3d 156, 160, n.6 (3d Cir. 2010) (regulations issued by Secretary of Labor entitled to deference under Chevron doctrine); Toretti v. Main Line Hospitals, Inc., 580 F.3d 168, 174-75 (3d Cir. 2009) (deferring to Health and Human Services regulations interpreting Medicare statute).
Appellate courts have reversed district courts that do not give proper deference to regulatory authority. For example, in Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003), this Court reversed a district court that declined to give deference to the Board of Immigration Appeals’ (“BIA”) interpretation of new legislation that contained an ambiguous provision. Id. at 396-97. Citing Supreme Court authority, this Court concluded that BIA’s interpretation was entitled to deference because Congress had charged the Attorney General with administration and enforcement of immigration laws, including the power to grant authority to the BIA. Id. at 396 (citations omitted). The Court further concluded that BIA’s interpretation was a reasonable, permissible construction of the statute. Id. See also Shipbuilders Council of America v. United States Coast Guard, 578 F.3d 234 (4th Cir. 2009) (reversing district court that failed to defer to Coast Guard's “persuasive” interpretation of statute governing issuance of certificates to trade vessels); Beck v. City of Cleveland, Ohio, 390 F.3d 912, 920-21 (6th Cir. 2005)
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(reversing district court that did not defer to Secretary of Labor's regulations interpreting Fair Labor Standards Act); Neal v. Board of Trustees of the Cal. State Universities, 198 F.3d 763, 770 (9th Cir. 1999) (reversing district court for failing to defer to Department of Education's interpretation of Title IX).
The Supreme Court has recognized that the Chevron doctrine applies with equal force to regulatory authority under the ADA. In according deference to Department of Justice regulations in Bragdon v. Abbott, 524 U.S. 624 (1998), the Supreme Court observed: “As the agency directed by Congress to issue implementing regulations, to render technical assistance explaining the responsibilities of covered individuals and institutions, and to enforce Title III in court, the Department’s views are entitled to deference. Id. at 645. See also Helen v. DiDario, 46 F.3d 325, 331-32 (3d Cir. 1995) (Department of Justice’s regulations interpreting Title II of the ADA are entitled to substantial deference under Chevron).
Similarly, the DOT’s regulations under Title II of the ADA are entitled to deference under the Chevron doctrine. George v. Bay Area Rapid Transit, 577 F. 3d 1005, 1009, n. 6 (9th Cir. 2009); Neighborhood Ass’n of the Back Bay, Inc. v. Federal Transit Administration, 463 F. 3d 50, 59 (1st Cir. 2006). Congress charged the DOT with promulgating rules within its specific expertise. Operating through the Federal Transit Administration, DOT, much like the
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Department of Justice, provides technical assistance and conducts compliance
reviews and assessments to ensure that federally financed projects meet ADA
accessibility standards. For example, the FTA conducted an assessment of
SEPTA’s Suburban Station/Penn Center project (JA at 972-86). The DOT’s
interpretation of the phrase “to the maximum extent feasible” is a reasonable and
permissible construction of the statute, because it reflects Congress’ concerns
about the costs of compliance. 49 C.F.R. Appendix D, Section 37.43 - Alteration
of Transportation Facilities by Public Entities (citing S. Rept. 101–116, at 68).
If this Court declined to defer to the DOT’s interpretation, the
agency’s rule-making authority would be rendered meaningless and courts would
find themselves deciding whether a particular design or feature should have been
included in a transportation project. In George, supra, the Ninth Circuit described
the conundrum in which courts would find themselves if deference were not
accorded to the DOT’s regulations:
The interpretation of the ADA proposed by … [plaintiffs] is very problematic. It would allow any person to file an action contending that, in the opinion of this particular plaintiff, a design feature ought to have been included in … [a] structure. The courts are ill-equipped to evaluate such claims and to make what amount to engineering, architectural, and policy determinations as to whether a particular design feature is feasible and desirable ….It also would be difficult for anyone to design a … structure if the design requirements are subject to being changed retroactively.
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577 F. 3d at 1012 (citation omitted). Here, the District Court ignored the DOT regulations, substituted its
judgment for the DOT’s judgment, and concluded that it should be the arbiter of engineering, architectural and policy determinations. The Chevron doctrine does not permit this result. Accordingly, this Court should reverse the District Court’s decision, remand the case to the District Court, and direct it to apply the DOT’s interpretation of the statutory language.
C. Penn Center Concourse Meets ADA Standards Because There Are Two Wheelchair-Accessible Entrances. 1. The Access Board Rejected a “Distance” Test for Accessible Entrances. The District Court also erred by concluding that Penn Center
Concourse was not “readily accessible” solely because the nearest elevator was 340 feet from the 15th Street Stairwell (JA at 24-25). The District Court opined that the ADAAG “[did] not excuse SEPTA for failing to make the 15th Street entrance wheelchair-accessible, regardless of whether it is part of Suburban Station (which already has accessible entrances), 15th Street Station (which has no
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accessible entrance), or both”17 (JA at 24). The District Court did not cite any regulatory or case authority to substantiate this conclusion. However, the District Court rejected SEPTA’s contention that the ADAAG required only one wheelchair-accessible entrance to the facility.
In its proposed guidelines, the Access Board considered a per-se rule regarding the maximum allowable distance between wheelchair-accessible entrances at a transportation facility. When it issued the proposed guideline on the number of required entrances, the Access Board sought public comment on four options: (1) where station entrances served different transportation fixed routes or groups of fixed-routes, an entrance serving each type of route or group must be accessible; (2) accessible entrances should be no more than 400 feet apart; (3) all entrances should be accessible; and (4) only one entrance should be accessible. 56 Fed. Reg. 11874, 11876-77 (March 20, 1991).
17 According to the District Court, DIA contended that the 15th Street Stairwell was an entrance to the 15th Street Subway Station, and SEPTA contended that it was an entrance to Suburban Station (JA at 20). The District Court did not decide this issue, and instead concluded that this “geographical” issue was not relevant to liability (JA at 19, n. 12). During construction at the 15th Street Stairwell, DIA’s counsel seemed to agree that the entrance served Suburban Station (JA at 246).
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When it adopted final regulations, the Access Board struck a
compromise between options 1 and 4. In comments accompanying the final rule,
the Access Board observed:
The final guidelines have combined option one and option four so that one accessible entrance would be sufficient only if that entrance serves all different transportation fixed routes or groups of fixed routes. This requirement does not necessarily mean that the closest entrance will be the accessible entrance.
* * *
The final guidelines provide that all accessible entrances shall, to the maximum extent practicable, coincide with those used by the majority of the general public. This provision acknowledges that it is not always practicable to place an accessible entrance to coincide with the entrance used by the general public. For example, an elevator may meet the surface at a location different from an escalator.
56 Fed. Reg. 45500, 45505-06 (Sept. 6, 1991). Thus, in the final guidelines, the
Access Board specifically rejected the distance approach adopted by the District
Court in this case.
2. The ADAAG Standard, Which the DOT Adopted by Regulation, Is Entitled to Deference under the Chevron Doctrine. The District Court’s holding that Penn Center Concourse is not
“readily accessible” likewise runs afoul of the Chevron doctrine. The DOT
regulations adopt the ADAAG’s standard that a transportation facility need have
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only one accessible entrance. ADAAG § 10.3.1, 10.3.2; ADAAG § 4.14; ADAAG § 4.1.6(1)(d). Section 10.3.1, which governs new construction of and alterations to stations, provides: “[A]t least one entrance to each station shall comply with 4.14, Entrances.”18 ADAAG § 10.3.1(2). The key station provision, Section 10.3.2, contains the same requirement: “Rapid, light, and commuter rail key stations . . . and existing intercity rail stations shall provide at least one accessible route from an accessible entrance to those areas necessary for use of the transportation system.”19 ADAAG § 10.3.2(1).
The work performed at Suburban Station/Penn Center Concourse exceeded ADAAG’s minimum requirements, because SEPTA built two wheelchair-accessible entrances that provide an accessible route for a person in a wheelchair to travel not only to the train platforms at Suburban Station, but also to navigate the entire Penn Center Concourse level. See ADAAG § 4.14.1 (an accessible entrance “shall also be connected by an accessible route to all accessible spaces or elements within the building or facility”); ADAAG § 4.3.2(2) (“[a]t least
18 ADAAG § 4.1.6(1)(d) reads, in relevant part: “No alteration of an existing element, space, or area of a building or facility shall impose a requirement for greater accessibility than that which would be required for new construction.” 19 The specific requirements of Section 10 governing transportation facilities trump the general rule that at least 50 percent of entrances in new construction be accessible. ADAAG § 4.1.3(8).
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one accessible route shall connect accessible buildings, facilities, elements, and spaces that are on the same site”).
The 16th Street elevator coincides with an entrance used by the general public (JA at 700). That elevator descends into the heart of Penn Center Concourse, which houses many commercial establishments from 15th Street to 17th Street (JA at 287-88). The Suburban Station/Penn Center project made the concourse level accessible to people in wheelchairs to the maximum extent feasible.
Even if an elevator were installed at the 15th Street Stairwell, a person in a wheelchair could not access 15th Street Subway Station. A person in a wheelchair cannot access 15th Street Subway Station from the Penn Center Concourse because there are steps leading from the 15th Street corridor of Penn Center Concourse to the 15th Street Subway Station (JA at 445, 635, 679). The decision to position the elevator at 16th Street – in the middle of Penn Center’s commercial hub – made eminent sense because of its optimal location.20
20 The FTA conducted an assessment of SEPTA’s Suburban Station renovation project and concluded that it met the ADA’s vertical accessibility requirements because it included two wheelchair-accessible entrances to the Suburban Station/Penn Center Concourse (JA at 973, 1042, ¶ 17). The District Court’s opinion renders the FTA assessment meaningless.
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The District Court’s decision that SEPTA must install an elevator at the 15th Street Stairwell because it is too far from the 16th Street elevator has no mooring. The DOT has spoken on this point: There need be only one wheelchairaccessible entrance to a facility. Here, there are two fully accessible entrances to the Penn Center Concourse. Accordingly, the District Court’s decision must be reversed.
D. The City of Philadelphia Is a Required Party in This Case. The City of Philadelphia is a “required party” to this action because it
owns City Hall Courtyard, and the District Court abused its discretion by not requiring that the City be joined as a party. Fed. R. Civ. P. 19 requires that a party be joined when: (1) the court cannot grant complete relief among the existing parties, (2) the party to be joined has an interest in the subject matter of the action, and (3) an existing party or the party to be joined would be prejudiced in the absence of joinder.21
It is well-settled that a court of appeals may remand a case for failure to join a required party under Rule 19, even if the issue has not been raised by the
21 Rule 19 previously referred to “indispensable” parties. The Rule was amended in 2007 and now refers to those parties that are “required” to be joined. The Advisory Committee’s Notes on the 2007 amendment indicate that this and other changes to the Rule were stylistic only. See also Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008) (“the substance and operation of the Rule both pre- and post-2007 are unchanged”).
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parties. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 (1968) (“When necessary . . . a court of appeals should, on its own initiative, take steps to protect an absent party, who of course had no opportunity to plead and prove his interest below.”); Steel Valley Authority v. Union Switch and Signal Division, 809 F.2d 1006 (3d Cir. 1987) (holding that, where district court did not make an explicit Rule 19 determination, court of appeals should “engage in an independent analysis of indispensability”); Finberg v. Sullivan, 634 F.2d 50, 55 (3d Cir. 1980) (“[a]lthough the issue of necessary parties is not strictly jurisdictional, an appellate court should consider, on its own motion, any plausible argument that the interest of an absent party requires that party’s joinder.”).
In Steel Valley Authority, supra, an industrial association sought injunctive relief in state court to prevent a factory closing while it formulated a plan to acquire and operate two plants. The association alleged that the main defendant in the action, American Standard Corp., had threatened to remove equipment and fixtures necessary for plant operation. Id. at 1009. After American Standard removed the case to federal court, the association amended its complaint to name the property owner, Radice-East, as an additional defendant and sought remand because Radice-East’s presence, a non-diverse party, destroyed the court’s jurisdiction. Id. The district court refused to remand the case and held that
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Radice-East had been fraudently joined as a defendant. A short time later, the district court dismissed the complaint. Id. at 1009-10.
On appeal, this Court focused on whether Radice-East was an indispensible party whose joinder would require remand of the proceedings to state court. The Court reasoned, inter alia, that any judgment rendered in the owner’s absence would necessarily prejudice the owner’s property interests because any injunction would preclude the owner’s full use of the property. Id. at 1014. The Court also concluded that any judgment rendered in the owner’s absence would not be adequate, because the owner would not be bound by such judgment. Id. at 1014-15. Thus, the Court held that the district court abused its discretion in failing to find that the property owner was an indispensable party. Id. at 1015.
The Steel Valley Authority analysis supports SEPTA’s position that the City, which owns the City Hall Courtyard, must be joined as a party. The injunction sought by DIA would prejudice the City, because: (1) it would require construction, which is disruptive, and possible even dangerous to the public who uses the Courtyard; (2) it would require the demolition and alteration of City property, action that is usually taken only after public debate and vote; (3) any demolition or alteration would necessarily affect the value of the City’s property; and (4) the City would face potential liability for any injuries or accidents involving the elevator, and for any upkeep or replacement that may become
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necessary. Therefore, as the owner of that property, the City undoubtedly has an interest in this case.
Earlier in the litigation, DIA joined the City as a party because the City owned the 15th Street Stairwell. DIA and the City subsequently reached a settlement under DIA’s Third Amended Complaint. In the settlement, the City agreed that it would give SEPTA permission to build an elevator at the 15th Stairwell and at Dilworth Plaza (JA at 89-90). The settlement agreement, however, makes no reference to an elevator installation in City Hall Courtyard, because DIA did not assert claim regarding City Hall Courtyard until it filed the Fourth Amended Complaint -- six months after the settlement agreement had been reached (JA at 97-108).
Despite SEPTA’s argument that the City was a necessary party, the District Court did not undertake a Fed. R. Civ. P. 19 analysis in its decision. Instead, it stated that “there is no evidence from which to reasonably that [sic] the City would not allow the installation of an ADA-compliant elevator at the City Hall Courtyard”22 (JA at 30). There also is no evidence in the record to conclude that the City would agree to the installation of the elevator in City Hall Courtyard.
22 SEPTA raised the joinder issue in a closing argument to the District Court, but did not file a motion (JA at 1160).
42
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Case: 09-3964 Document: 003110132097 Page: 54 Date Filed: 05/05/2010

Indeed, the City, now under a different administration than the one in office at the

time of the settlement with DIA, has advised SEPTA that it does not want an

elevator installed in City Hall Courtyard (JA at 1163, ¶ 8).

There was no basis for the District Court to assume that the City

would agree to installation of an elevator in City Hall Courtyard. Thus, the District

Court abused its discretion by failing to find that the City is a required party under

Rule 19.

IX. CONCLUSION For the foregoing reasons, SEPTA requests that the Court reverse the

District Court’s decision, remand the case to the District Court, and direct it to

apply DOT regulations and to require the City to be joined as a party.

Respectfully submitted,

Dated: May 5, 2010

STEVENS & LEE

By s/ Jo Bennett Michael G. Tierce mgt@stevenslee.com Jo Bennett jb@stevenslee.com 1818 Market Street, 29th Floor Philadelphia, PA 19103-1702 (215) 751-2883
Attorneys for Appellant

43
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CERTIFICATE OF ADMISSION TO BAR 1. I am a member in good standing of the Bar of the United States

Court of Appeals for the Third Circuit.

2. Pursuant to 28 U.S.C. § 1746, I certify under penalty of perjury

that the foregoing is true and correct.

Dated: May 5, 2010

/s/ Michael G. Tierce Michael G. Tierce

CERTIFICATE OF ADMISSION TO BAR 1. I am a member in good standing of the Bar of the United States

Court of Appeals for the Third Circuit.

2. Pursuant to 28 U.S.C. § 1746, I certify under penalty of perjury

that the foregoing is true and correct.

Dated: May 5, 2010

/s/ Jo Bennett Jo Bennett

SL1 995085v1/007344.00033

Case: 09-3964 Document: 003110132097 Page: 56 Date Filed: 05/05/2010

CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(c) of the Federal Rules of Appellate Procedure, I certify that, according to the word-count feature of the Microsoft Word word processing program, the foregoing Brief of Appellants contains 8,919 words.

Dated: May 5, 2010

/s/ Jo Bennett Jo Bennett

CERTIFICATE OF TEXT I, Jo Bennett, hereby certify that the text of this electronically filed Brief and the text of the hard copies of the Brief are identical.

Dated: May 5, 2010

/s/ Jo Bennett Jo Bennett

CERTIFICATE OF A VIRUS CHECK I, Jo Bennett, certify that a virus check has been performed on the PDF file containing the forgoing Brief. The virus check was completed using McAffee VirusScan Enterprise 8.5i.

Dated: May 5, 2010
SL1 995085v1/007344.00033

/s/ Jo Bennett Jo Bennett

Case: 09-3964 Document: 003110132097 Page: 57 Date Filed: 05/05/2010
CERTIFICATE OF SERVICE I, Jo Bennett, certify that, on this 5th day of May, 2010, I caused to be served via the Court’s CM/ECF filing system electronic copies of Appellant’s Brief (containing Joint Appendix, Vol. I), and hard copies of the Joint Appendix, Volumes II through V, via Federal Express on counsel of record at the following addresses:
Stephen F. Gold, Esq. Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Parkway, 2nd Floor Philadelphia, PA 19103 Rocco J. Iacullo, Esq. Disability Rights Network 1315 Walnut Street Suite 400 Philadelphia, PA 19107
SL1 995085v1/007344.00033

Case: 09-3964 Document: 003110132097 Page: 58 Date Filed: 05/05/2010

To the Clerk’s Office for the Third Circuit Court of Appeals:
1. Ten hard copies each of Appellant’s Brief (containing Joint Appendix, Vol. I) by Federal Express;
2. Four hard copies of Joint Appendix, Volumes II through V, by Federal Express; and
3. One electronic copy of Appellant’s Brief (containing Joint Appendix, Vol. I) via the Court’s CM/ECF filing system.

Date: May 5, 2010

/s/ Jo Bennett Jo Bennett

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 t ,'

,r I

No. 06-5109

,!U.

!

:r.__/_, ;Jrtj n)/5

1N THE UNITED STATES COURT OF APPEALS

I

FOR THE THIRD CIRCUIT

I

DISABLED IN ACTION OF PENNSYLVANIA,

Plaintiff-Appellant
I g.

I

SOUTHEASTERN

PENNSYLVANIA

TRANSPORTATION

AUTHORITY,

I

Defendant-Appellee

I

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

I

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

I

SUPPORTING

APPELLANT AND URGING REVERSAL

i

WAN J. KIM

Assistant Attorney General
I JESSICA DUNSAY SILVER

GREGORY B. FRIEL

i

Attorneys

Department of Justice

I.

Civil Rights Division Appellate Section

Ben Franklin Station

I

P.O. Box 14403 Washington, D.C. 20044-4403

(202) 514-3876

!

I

I TABLE •OF CONTENTS

I

PAGE

I

IDENTITY AND INTEREST OF THE AMICUS CURIAE

AND THE SOURCE OF ITS AUTHORITY

TO FILE THIS BRIEF .................... 1

I

• STATEMENT

OF THE ISSUE ...............................................................................

3

I

STATEMENT

OF THE CASE

3

I

SUMMARY OF ARGUMENT

7

ARGUMENT

I

A.

The District Court's Holding Conflicts With The

I

Statutory Language .............................................................................

9

B°

The District Court's Interpretation

Could Have Negative,

I

Unintended Consequences By Discouraging Informal

Resolution Of Disputes And Unnecessarily

I

Increasing Litigation ........... ..........................................................................

13

C.

The District Court ImProperly Used The "Discovery Rule"

I

To Accelerate The Running Of The Statute Of Limitations

On DIA 's Claims

15

I

D.

Under Appropriate

Circumstances,

A Plaintiff Can Seek

Injunctive Relief To Prevent An Anticipated Violation Of

I

Section 12147(a) Before The Alterations Are Completed;

The Availability Of Such Relief Does Not Accelerate The

I

RunningOf

The Statute Of Limitations

............................................

18

CONCLUSION

•

19

I

COMBINED CERTIFICATIONS

I

I

I

I

I

I

TABLE OF CITATIONS

CASES:
i CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc.,

PAGE

I

357 F.3d 375 (3d Cir. 2004) ..................................................................

15-17

Dasgupta v. University of Wis. Bd. of Regents,

I

121 F.3d 1138 (7th Cir. 1997) .....................................................................

17

I

FranconiaAssocs.

v. United States, 536 U.S. 129 (2002)... ......................

13, 17, 19

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ...............................................

5

I

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004)

5

I

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994) ....... 16

I

Ramey v. District 141,378 F.3d 269 (2d Cir. 2004) ........................................

17-18

Romero v. Allstate Corp., 404 F.3d 212 (3d Cir. 2005)
I

8, 15

Smith v. City of Philadelphia, 345 F. Supp. 2d 482 (E.D. Pa. 2004) .......... ,. ........ 15

I

Swift & Co. v. United States, 276 U.S. 311 (1928) ................................................

18

I

United States v. W.T. Grant Co., 345 U.S. 629 (1953) ..........................................

18

I

STATUTES:

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.

I

42 U.S.C. 12147 ........................ ................... :.............................................

1-2

42 U.S.C. 12147(a) .................... ,. ..................... : ...................................

passim

I

42 U.S.C. !2183(a)(1)

.................................................................................

12

42 U.S.C. 12183(a)(2) .................................................................................

12

42 U.S.C. 12212 ..................................................................

: .......................

14

I

I

-ii-

I

I STATUTES (continued):

PAGE

i

Fair Housing Act, 42 U.S.C. 3601 et seq.

42 U.S.C. 3604(f)(3)(B)

12

!

42 U.S.C. 3604(f)(3)(C)(i).i.

..... ........ i.............. ........ . ..................................

12

42 U.S.C. 3614 ............................................................................................

12

i

Rehabilitation

Act of 1973, 29 U.S.C. 70let seq.

29 U.S.C. 794(a) ..........................................................................................

10

i

42 Pa. Cons. Stat. Ann. § 5524(7) ................ . ......... ......................... .. .......................

5

I

REGULATIONS:

28 C.F.R. 35.170(c) ..................................................................................................

2

i

28 C.F.R. 35.174 ..............................................

.................. : ........................... .......... 2

i

28 C.F.R. 35.190(b)(8)

2

i

49 C.F.R. 27.121-27.129

..............................

...........................................................

2

i

49 C.F.R. 27.125(a)(1)

2

!

49 C.F.R. 37. I 1

2

49 C.F.R. 37.43

2

i

RULES:

i

Federal Rule of Appellate Procedure 29(a) .: ............................................................

1

1

i

Federal Rule of Appellate Procedure 29(d) .... : ..... ,....... . ........................................

20

i

LEGISLATIVE

HISTORY:

136 Cong. Rec. H 2431 (daily ed. May 17, 1990) .................................................

14

I

I

°°o
-111-

I

I

LEGISLATIVE

HISTORY (continued):

I

136 Cong. Rec. H 2616 (daily ed. May 22, 1990)

PAGE 14

I

MISCELLANEOUS:

!

Black's Law Dictionary 631 (8th ed. 2004) ....................................

: ........................

9

I

!

I

I

I

!

I,

I

I

I

I

I

I

-iv-

I

I

I IN THE UNITED STATES COURT OF APPEALS

I

• "FOR THE THIRD CIRCUIT

i

No. 06-5109

DISABLED IN ACTION OF PENNSYLVANIA,

.

Plaintiff-Appellant

i

V°

SOUTHEASTERN

PENNSYLVANIA

i

TRANSPORTATION

AUTHORITY,

Defendant-Appellee
i

i

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

I:

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING

APPELLANT AND URGING REVERSAL

i

•

IDENTITY AND INTEREST OF THE AMICUS CURIAE

i

AND THE SOURCE OF ITS AUTHORITY

TO FILE THIS BRIEF

The United States has an interest in this appeal because it could affect the
I ability of the federal government and private litigants to enforce 42 U.S.C. 12147

!

in federal court. The federal government has authority to file this amicus brief

i

under Federal Rule Of Appellate Procedure 29(a):

This case focuses on the statute of limitations for claims under 42 U.S.C.

!

12147(a). That provision states tha t, under certain circumstances,

the failure to

i

make altered portions of a transportation

facility accessible to persons with

disabilities is a form of discrimination

prohibited by Title II of the Americans

i

i

-2-

I

With Disabilities Act (ADA); 42 U.S.C. 12131_12165 (Title II), and Section 504

i

of the Rehabilitation Act, 29 U.S.C. 794 (Section 504). The Attorney General has

authority to bring civil actions to enforce Title II and Section 504.

I

In the context of public transportation, the Attorney General shares

I

responsibility for enforcing Title II and Section 504 with the Department0f

Transportation (DOT). DOT has promulgated regulations to implement the

I

transportation-related

provisions of Title II, see 49 C.F.R. pt. 3;7, including the

!

requirements of Section 12147, see 49 C.F.R. 37.43. In addition, DOT has issued

regulations to implement Section 504 as it applies to entities (including the
i
Appellee) that receive financial assistance from DOT. See49 C.F.R. pt. 27. DOT

i

has responsibility for administrative enforcement of these Title II and Section 504

I

regulations. See 49 CIF.R. 27.121-27.129, 37.11; 28 C.F:R. 35.170(c),

35.190(b)(8). DOT may refer violations of Title II and Section 504 to the
I Department of Justice, which may then file civil actions to enforce the statutes.

i

See28 C.F.R. 35.174; 49 C.F.R. 27.125(a)(1);28 C.F.R. pt. 35, App. A, subpt. F,

i

at 562-565 (2006).

In addition, th e United States has an interest in ensuring that the ability of

i

private litigants to enforce their rights under 42 U.S.C. 12147 is not unduly

i

restricted. Because the Department of Justice has limited resources, private

litigation pltiys an important role in the enforcement of federal nondiscrimination

I

mandates.

!

I

I -3-

I

STATEMENT

OF THE ISSUE

!

Whether the district court erred in determining which events Wouid trigger

the running of the statute of limitations on a claim alleging disability-based

I

discrimination under 42 U.S.C. 12147(a).

!

STATEMENT

OF THE CASE

1. The Southeastern Pennsylvania Transportation

Authority (SEPTA) is a

I

state agencythat operates a public transportation system in Philadelphia and its

I

suburbs. App. 21-22, 152-153, i68.1 This case involves renovations that SEPTA

!

made at two facilities that are part of its subway system in downtown Philadelphia:

(1) the subway entrance at the 15th and Market Street Courtyard (15th Street

I

entrance), and (2) the subway exit at the City Hall Courtyard (City Hall exit).

l

App. 24-29, 43, 124_ DiA Br. 5-10.

Therenovations

at issue are the replacement of a stairway at the 15th Street

I

entrance and an escalator at the City Hall exit. App. 24-29. SEPTA began

in

replacing the stairway at the 15th Street entrance in February 2001. App. 26-27,

i

158, 194, 497. SEPTA completed the stairway and reopened it to the public on

August 8, 20021 App. 27, 159, 180, 194. In 2001, SEPTA began construction to

I

replace the escalator at the City Hall exit. App. 28, 59 n.44. SEPTA completed

I

the escalator replacement on Augus t 24, 2003. App. 27, 46, 164, 187-188, 320.

i

"App."

refers tO the page number of the appendix filed with Appellant's

opening brief. "DIA Br. " indicates the page number of Appellant's opening

brief in this Court. "Doc__ "is the number of the entry on the district court

docket sheet.

.

'

.

I

I -4-

I

2. On March 14, 2003, Disabled in Action of Pennsylvania (DIA) filed suit

I

alleging, among other things, that SEPTA violated Title II and Section 504 by

failing to install an elevator at the 15th Street entrance when it replaced the

I

stairway at that site. App. 39, 46, 96-100. DIA later'clarified that it was basing its

I

Title II and Section 504 claims on the definition of discrimination in 42 U.S.C.

12147(a). See Doc. 85-3 at 1, 11, 14-18. Section 12147(a) provides, in relevant
I part, that

I

With respect to alterations of an existing facility or part thereof used

in the provision of designated public transportation services that

I

affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 12132 of

this title and section 794 of Title 29 [Section 504 of the

I

Rehabilitation Act], for a public entity to fail to make such alterations (or tO ensure that the alterations are made) in such a manner that, to

the maximum extent feasible, the altered portions of the facility are

I

readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of

Such alterations.

I

42 U.S.C. 12147(a). On February 15, 2005, DIA filed an amended com151aint

|

alleging that SEPTA had violated Section 12147(a) by replacing an escalator at

the City Hall exit without also installing an elevator at that facility. App. 58, 127-
I 129,132-133. 2.

I

The parties filed cross-motions for summary judgment. See Docs. 129 &

I

130; App. 16-17. In its motion, SEPTA argued that DIA's claims regarding the

I

I

2 The United States takes no position on the merits of DIA's claims.

.

I

-5-

I

15th Street entrance and the City Hall exit were time-barred. App. 43, 45,192-

I

199.

3. The district court granted SEPTA's motion for summary judgment,
I denied DIA's cross,motion, and entered final judgment in favor of SEPTA. App.

I

21-95. The court concluded that DIA's claims regarding the alterations at the 15th

I

Street entrance and City Hall exit were time-barred because they were filed outside

the two-year limitations period prescribed by Pennsylvania law for personal injury

I

actions (see 42 Pa. Cons. Stat. Ann. § 5524(7)). 3 App, 44-60.

I

The district court rejected DIA's argument that the statute of limitations did

not begin to run until completion of the alterations. The Court concluded that,

I

despite the phrase "upon completion of such alterations" in 42 U.S.C. 12147(a), a

I

violation of that statute could occur before the defendant had finished the

alterations. App. 48-50. Concluding that "a claim accrues on the date 'when the
I plaintiff knows or has reason to know of the injury that is the basis of the action,'"

I

App. 50, the court held that DIA had either actual or constructive notice of the •

I

alleged violations wellbefore the completion of the alterations at the two sites.

App. 50-531 57-60.

I

3 Because neither Title II nor Section 504 contains a statute of limitations,

I

"federal courts Should apply 'the most appropriate or analogous state statute of

limitations' to [the federal] claims." Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 371 (2004) (quoting Goodman v. Lukens Steel Co., 482 U.S. 656, 660

I

(1987)). The United States takes no position here on the question whether 42 Pa.

Cons. Stat. Ann. § 5524(7) provides the most appropriate or analogous statute of

I

limitations for Title II or Section 504 actions. DIA does not dispute that Section 5524(7) applies to this case. See DIA Br. 11, 13-14.

I

I

I

-6-

I

With regard to the 15th Street entrance, the court held that the statute of

I

limitations began to run no later than November 1, 2000, when the City of

Philadelphia informed DIA that SEPTA could proceed with the planned

I

renovations without installing an elevator. App. 53. Because DIA did not file its

I

complaint until March 14, 2003, the court concluded that DIA had failed to meet

I

the two-year deadline for bringing a claim regarding the 15th Street entrance.

App. 57.

I

As for the City Hall exit, the district court concluded that DIA had

I

constructive notice of the proj.ect no later than August 17, 2001, and thus the

two-year statute of limitations began to run on that date. App. 59-60.

I

Consequently, the court held that DIA's claim Concerning the City Hall exit,

i

I

which was raised in an amended complaint filed on February !5, 2005, was

time-barred. App. 60. In reaching that conclusion, the court first noted that
I SEPTA's publicly available capital budget mentioned the escalator project in early

I

2001 and that DIA officials reviewed SEPTA's budget each year. App. 58-59 &

I

n.43. The court explained that even if the budget did not make DIA aware of the

escalator replacement plans, "DIA and the public in general certainly had notice of

I

the project beginning in June 2001, or at least by August 17, 2001, when physical

I

barricades were placed around the escalator with a sign indicating that the work

was part of the Escalator Replacement Project." App. 60.
I

I

I

-7-

I

SUMMARY OF ARGUMENT

I

The statute of limitations for a claim under 42 U.S.C. 12 i47(a) does not

• begin to run, at the earliest, until the public entity has completed the alterations
I that are the subject of the lawsuit. The district court's contrary holding conflicts

I

with the plain language of Section 12147(a). Moreover, the court's ruling, if

I

upheld on appeal, could trigger unnecessary litigation by encouraging the

premature filing of lawsuits and •discouraging parties from resolving disputes over

I

architectural designs through informal means.

I

The district court's error is attributable in large part to its misapplication of

the "discovery rule." In effect, the district court used the discovery rule to
I accelerate the running of the statute of limitations on DIA's claims. As this Court

I

has held, however, the discovery rule can only be used to postpone - not to

accelerate - the running of the limitations period.
I • The interpretation we advocate in this brief would not precludea plaintiff

-I

from bringing a claim for injunctiverelief,

under appropriate circumstances,

to

I

prevent anticipated violations of Section 12147(a) before the public entity has

completed the facility's alterations. But the availability of such injunctive relief

I

does not accelerate the running of the statute of limitations.

I

I

I

I

.-

-8•ARGUMENT

The district court erred in holding that DIA's claims under 42 U.S.C. 12147(a) were time-barred. The statute of limitations for a Section 12147(a) claim

does not begin to run, at the earliest, Until the public entity has completed the

alterations that are the subject of the lawsuit. 4 Consequently, both of DIA's

Section 12 ! 47(a) claims were timely. DIA's claim Concerning the 15th Street entrance was filed on March 14, 2003, less than two years after the completion of the alterations at that site in August 2002. The claim relating to the City Hall exit

was filed on February 15, 2005, within two years after SEPTA completed the
.
alterations at that facility in August 2003.
! The district court's ruling is based on the mistaken premise thatthe statute

I

of limitations can begi n to run prior to completion of the alterations. This Court

I

should reject that ruling:

!

I

4 Even though the district court borrowed a state statute of limitations for DIA's

claims, federal law determines when the limitations period begins to run. See

Romero v. Allstate Corp., 404 F.3d 212, 221 (3d Cir. 2005).
I 5 Whether the' statute of limitations on a Section 12147(a) claim couldbegin

running later than the completion of the alterations is an open question, which has

I

not been addressed by the parties and is not before this Court. The Court should

not decide whether the "continuing violations" theory or any other theory would

I

affect the running of the statute of limitations on a Section 12147(a) claim. DIA does not rely on such a theory in this appeal (see DIA Br. 31 n. 11), and the district

court declined to address the theory because DiA disavowed reliance on it below.

I

See App. 47-48 n.34. This Court likewise should decline to decidethe issue in

this appeal.

:

I

I

I

-9-

I

A°

The District Court's Holding Conflicts With The Statutory Language

I,

The district court misinterpreted Section 12147, which states, in relevant

part, that
I With respect to alterations of an existing facility or part thereof used

I

in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it

shall be considered discrimination, for purposes of section 12132 of

I

this title and section 794 of Title 29 [Section 504 of the Rehabilitation Act], for a public entity to fail to make such alterations

(or to ensure that the alterations are made) in such a manner that, to

I

the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities,

including individuals who use wheelchairs, upon the completion of

I

such alterations.

42 U.S_C. 12147(a) (emphasis added). The district court's reading of the statute is

I

incorrect.

I

The district court's interpretation conflicts with the "fail[ure]" language of

I

42 U.S.C. 12147(a) . The statute provides that, when certain types of alterations

are made to a facility, it will be considered discrimination for a public entity to

l

"fail to make Such alterations" in way that results in "the altered portions of the

I

facility" being "readily accessible., 42 U.S.C. 12147(a) (emphasis added). In this

context, "fail" means "[t]o be deficient or unsuccessful; to fall short." Black's

I

Law Dictionary 631 (8th ed. 2004). No such "fail[ure]" has occurred if the public

I

entity has made the altered portions of the facility accessible by the time the

alterations are completed. Under those circumstances, the public entity has not
I "fall[en] short" (ibid.) of its statutory obligation to make the altered portions of the

I

facility accessible. Nor can one reasonably say that such a public entity has been

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I

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I

"deficient or unsuccessful"

(ibid.)in ensuring that the altered areas are accessible

I

to persons with disabilities.

Consequently,

the most natural reading of the

"fail[ure]" language is that a violation of Section 12147(a ) cannot occur, at the
I . earliest, until the public entity completes the alterations without having made the

I

altered portions of the facility accessible.

I

This reading of Section 12147(a) is bolstered by the general anti-

discrimination

provisions of Title II of the ADA (42 U.S.C. 12132) and Section

I

504. Section 12147(a) defines a type of discrimination

prohibited by both Section

I

12132 and Section 504. Consequently,

the language of Section 12132 and Section

504 is relevant in construing 42 U.S.C. 12147(a). Section 12132 provides, in
I relevant part, that "no qualified individual with a disability shall, by reason of

I

• such disability, * * * be subjected to discrimination

by any [public] entity." 42

I

U.S.CI 12132 (emphasis added). Similarly, Section 504 states, in relevant part,

that "[n]o otherwise qualified individualwith

a disability * * * shall, solely by

I

reason of her or his disability, * * * be subjected to discrimination

under any

I

program or activity receiving Federal financial assistance * * * " 29 U.S.C. 794(a)

(emphasis added).

I

Section 12132 and Section 504 thus focus on whether an individual With a

I

disability has suffered discrimination.

I n light of that emphasis, it would be

anomalous to conclude; as the district court did here, that a violation of Section
I 12147(a) could occur long before any individual with a disability couid suffer

I

discrimination

related to the altered portion of the facility. While construction is

I

I

I -ll-

I

in progress, •the portions of the facility •undergoing the alterations typically will be

closed to the public. During this period, any inability to use the affected areas Of

the facility will be attributable to their closure, not to any accessibility problem

I

covered by Section 12147(a). Until that facility is reopened to the public after the

I

alterations have been completed, it is not possible for any individual with a

disabilitY to suffer discrimination related to the altered portions of the facility.
I The phrase "upon the completion of such alterations" in42 U.S.C. 12147(a)

I

confirms what is implicit in the other language of Section 12147(a). As previously

I

noted, section 12147 states, in relevant part, that it is discrimination for a public

entity to fail to make alterations "in such a manner that, to the maximum extent

.

feasible, the altered portions of the faciiity are readily accessible to and usable by

I

individuals with disabilities, including individuals who use wheelchairs, upon the

completion of such alterations." 42 U.S.C. ! 2147(a ) (emphasis added). The most
I natural reading of this language is that discrimination, as •defined in Section

I

12147(a), cannot occur prior to "the completion of [the] alterations." Ibid.

I

• Moreover, our reading of Section 12147(a) is consistent with the

Department of Justice's interpretation of other, similarly,worded anti-

I

discrimination provisions of the ADA and the Fair Housing Act that impose

I

accessibility requirements for alterations and new construction. Title III of the

ADA, for example, defines "discrimination" to include, under certain

I

circumstances, "a failure to make alterations in such a manner that, to the

maximum extent feasible, the altered portions of the facility are readily accessible.

I

..

I

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to and usable by individuals with disabilities, including individuals who use

I

wheelchairs." 42 U.SIC. 12183(a)(2). In addition, Title III defines

"discrimination" to include "a failure to design and construct [certain new]
I facilities * ** that are readily accessible to and usable by individuals with

I

disabilities." 42 U.S.C. 12183(a)(1). Similarly, the Fair Housing Act defines

I

"discrimination" to include "a failure to design and construct [certain multi-

family] dwellings in such a manner that * * * the public use and common use

I

portions of such dwellings are readily accessible to and usable by handicapped

I

persons." 42 U.S.C. 3604(f)(3)(C)(i). The Department of Justice has

responsibility for enforcing each of these provisions •in federal court. See 42

I

U.S.C. 3614 (Fair Housing Act), 12188(b) (Title III of ADA). The Department

I

reasonably interprets these Title III and Fair Housing Act provisions to mean that

the statute of limitations cannot begin to run, at the earliest, until the construction
I or alterations at issue have been completed. 6

I

I

I

6 The provisions of Title III and the Fair Housing Act that impose accessibility

I

requirements for new construction and alterations do not include the "completion"

language that is found in Section 12147(a). See 42 U.S.C. 12183(a)(1) (Title III

requirements for new construction of public accommodations and commercial

I

facilities); 42 U.S.C. 12183(a)(2) •(Title III requirements for alterations); 42 U.S.C.

3604(f)(3)(B) (Fair Housing Act requirements for new construction). These

I

provisions, however, contain "fail[ure]" language analogous to that found in Section 12147(a).

I

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I

B.

The District Court's Interpretation Could Have Negative, Unintended

Consequences By Discouraging Informal Resolution Of Disputes And

I,

Unnecessarily Increasing Litigation

The district court's ruling, if endorsed by this Court, could trigger an

I

increase in unnecessary litigation by encouraging the premature •filing• of lawsuits

I

and discouraging attempts to resolvedisputes informally. Cf. Franconia Assocs.

v. United States, 536 U.S. 129, 146-147 (2002) (rejecting argument that notice of
I intent to breach a contract in the future triggered the running of the statute of

I

limitations; relying, in part, on concerns that acceptance of that argument "would

I

surely proliferate litigation"). •It is unclear, under the district court's theory, how

definite a public entity's plans must be before the statute of limitations would

I

begin running on a Section i2147(a) claim. See App. 44-53, 57-60. Faced with

I

such Uncertainty, potential litigants ar e likely to err on the side of caution by filing

lawsuits when plans are merely tentative or where the proposed construction or

I

alterations are scheduled far in the future.

I

Fearing that the clock may be ticking on their Section •12147(a) claims,•

I

potential plaintiffs may be unwilling to spend time trying to resolve disputes

informally before filing suit. Such informal negotiations offer an important

I

opportunity for potential plaintiffs to convince •a builder to modify its plans to

I

address accessibility problems. It is not•unusual forbuilders to revise architectural

designs during the construction process. See DIA Br. 21-22. The Department of

I

Justice, which has enforced the ADA's architectural requirements for more than a

I

decade, has discovered many instances in which builders made significant changes

I.

I

I -14-

I

to designs as the construction progressed.

Because designs often are in flux even

I

after construction begins, individuals with disabilities may be able to influence the

ultimate design of an ongoing project without resorting to litigation. Once a

I

lawsuit is filed, however, parties' positions arelikely to harden, making

I

compromise more difficult than it would have been if the parties hadtried

I

resolving the dispute informally Without litigation.. Consequently,

if the district

court's ruling is allowed to stand, many ADA disputes that Otherwise would have

I

been resolved informally without litigation may instead end up in federal court.

I

Such an outcome would undermine Congress's goal of encouraging

resolution of ADA dispute s through settlement negotiations and other informal

I

means. See 42 U.S.C. 12212 ("Where appropriate and to the extent authorized by

I

law, the use of alternative means of dispute resolution, including settlement

negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and
I arbitration, is encouraged t O resolve disputes .arising under this chapter."). AS

I

Congressman

Glickman emphasized in explaining why he offered the amendment

I

thatultimately

became Section 12212:

There are better ways to achieve the goals of the ADA than litigation

I

and we should encourage confrontation.

cooperation

in achieving those goals, not

I

136 Cong. Rec. H 2431 (daily ed. May 17, 1990); accord id. at H 2616 (daily ed.

May 22, 1990) (statement ofRep. Glickman) ("While the language [of42 U.S.C.
I 12212] is purely voluntary, it establishes an important principle that we ought to

I

try to avoid litigation under this bill, if possible, and that encouraging dispute

I

-15resolution between the parties is a positive idea."). The district court's ruling, if upheld by this Court, could inhibit the very type of cooperative resolution of ADA disputes that Congress intended to encourage. • C. The District Court Improperly Used The "Discovery Rule" To Accelerate
The Running Of The Statute Of Limitations On DIA 's Claims The district court's erroneous ruling in this case is attributable in large part to its misapplication of the "discovery rule." "Typically in•a federal question case, and in the absence of any contrary directive from Congress, courts employ the federal 'discovery rule' to determine when the federal claim accrues for limitations purposes." Romero v. Allstate Corp., 404 F.3d 212, 222 (3d Cir. 2005). "Under the general formulation of the discovery hale, a claim will accrue when the plaintiff discovers, Or with due diligence should have discovered, the injury that forms the basis for the claim." Ibid. Although the district court's opinion in this case did not use the term "discovery rule," the court plainly was invoking that equitable doctrine when it concluded that a claim under 42 U.S.C. 12147(a) accrues "on the date 'when the plaintiff knows Or has reason to know of the injury that is the basis of the action.'" App. 50 (quoting Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 485 (E.D. Pa. 2004)). The district court fundamentally misunderstood the purpose of the discovery rule. As this Court has held, the discovery rule can only be used to postpone - not to accelerate - the running of the statute of limitations beyond the point when the violation occurs. CGB Occupational Therapy, Inc, v. RHA Health Servs. Inc., 357

I

-16-

•

I

F.3d 375,383 (3d Cir. 2004); see also Oshiver v. Levin, Fishbein, Sedran &

I

Berman, 38 F.3d 1380, 1386 (3d Cir. 1994) ("the discovery rule functions to delay •

the initial running of the statutory limitations period") (emphasis added); id. at

I

1386 (the discovery rule functions "to postpone the beginning of the statutory

I

limitations period from the date when the alleged unlawful employment practice

occurred") (emphasis added).
I In CGB, this Court rejected the argument that a claim for tortious

I

interference with contractual relations was time-barred. The defendant in that case

I

had relied on the discovery rule to argue that the statute of limitations began to run

as soon as the plaintiff received notice that a third party intended to terminate its

I

contract with the plaintiff.• •CGB, 357 F.3d at 383-384. This Court disagreed,

I

holding that plaintiff'S cause of action did not accrue, and thus the statute of

limitations did notbegin to run, until the contract was actually terminated. Id. at
I 384. As this Court explained,

I

[Defendant] attempts to take that unremarkable proposition - that the•

statute of limitations shOuld be postponed where •the victim is

I

unaware of the injury _ and reverse it, so as to mandate that the statute of limitations accelerates when the victim becomes aware that

he will suffer injury in the future. That is logically fallacious. The

I

"discovery rule" has nothing to do with this case.

I

The situation in this case is like one person telling another that, in •

three months, he intends to trespass. The tort oftrespass has not

I

occurred until the victim's property is entered by the tortfeasor. That the victim was informed in advance of the inevitable does not alter

the accrual of his damages action for trespass.
I

I

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I

Id. at 384-385 & n.9.

I

The Supreme Court's reasoning in Franconia Assocs. v. United States, 536

U.S. 129 (2002), supports this Court's rationale in CGB. In Franconia, the
I Supreme Court rejected the argument that petitioners' cause of action for breach of

I

contract was time-barred. Franconia involved the federal government's

I

"repudiation" of a contractual obligation - i.e., a "renunciation of a 'contractual

duty before the time fixed in the contract for.., performance.'" Id. at 142-143.

I

The Supreme Court held that the statute of limitations on petitioners' contractual

I

claims did not.begin to run when the goyernment renounced its contractual

Obligation but only later when the breach •of contract actually occurred. The Court

I

held that, although petitioners could have sued immediately by treating the

I

repudiation as a present breach of contract, they were not obligated to do so.

Instead, they had the choice of waiting until the actual breach occurred before the

I

?

clock started to tick on their Cause of action. Id. at 143-148.

I

Other courts of appeals have used similar reasoning in other contexts in

I

concluding that a statement of intent to violate a legal duty in the future does not

trigger the running of the statute of limitations. See Dasgupta v. University of

I

Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir. 1997)(dictum) ("If an

I

employer tells his employee; 'I am going to infringe your rights under Title VII at

least once every year you work for me,' this does not start the statute of limitations
I running on the future violations, violations that have not yet been committed.");

I

Ramey v. District 141,378 F.3d 269,278-279 (2d Cir. 2004) (holding that the

I

I

-iS-

i

statute of limitations for a claim alleging a violation of the duty of fair

I

representation

does not begin to run "when a union announces an intention, even if

it does so unequivocally,

to advocate against the interests of its members in the

! future"; instead, the breach of the duty occurs, and the limitations period begins to

I

run, only "when the union acts against the interests of its members").

I

D.

Under Appropriate Circumstances,

A Plaintiff Can Seek Injunctive Relief

To Prevent An Anticipated Violation Of Section 12147(a)Before

The

Alterations Are Completed; The Availability Of Such Relief Does Not

I

Accelerate The Running Of The Statute Of Limitations

The interpretation we advocate in this brief would not preclude a plaintiff

I

from bringing an action for injunctive relief, under appropriate circumstances, to

I

prevent an anticipated violation that has not yet Occurred. "[A] suit for an

injunction deals primarily, not with past violations, but with threatened future

i

ones." Swift & Co. v. United States, 276 U.S. 311,326 (1928). Consequently,

"an

i

injunction may issue to prevent future wrong, although no right has yet been

I

violated." Ibid. (emphasis added); accord United States v. W.T. Grant Co., 345

U.S.•629, 633 (1953) ("The purpose of an injunction is to prevent future

I

violations, * * * and, of course, it can be utilized even without a showing of past

I

wrongs."). Therefore, a plaintiff who has not yet suffered discrimination under

Section 12147(a) may nonetheless bring an action to •enjoin an anticipated
I violation of the statute, so long as standing and ripeness requirements are met.

I

Allowing a plaintiff to bring an action for injunctive relief before a violation

I

occurs does not accelerate the running of the statute of limitations. See Ramey,

I

I

-19-

I

•378 F.3d at 279 & n.4 (even though a plaintiff may be able to seek injunctive relief

!

to Stop an anticipated breach• of a legal duty, "the PoSsibility of maintaining a

preliminary injunction proceeding does not trigger the statute of limitations,"

I

which does not begin to run until the breach actually occurs); cf. Franconia, 536

I

U.S. at 142-148 (even though plaintiffs can sue immediately upon receiving noti@

I

of defendant's intent to breach a contract in the future, the statute of limitations

does not begin to run until the breach actually occurs). Therefore, even though a

!

plaintiff may seek injunctive relief under appropriate circumstances to prevent an

I

• impending violation of Section 12147(a), the statute of limitations does not begin

to run, at the earliest, until the alterations at issue are completed.

I

CONCLUSION

I

This Court should reverse the district court's ruling that DIA's claims under

42 U.S.C. 12147(a) are time-barred.

Respectfully submitted,

I

WAN J. KIM

•

As_sistant Attorney Geger_

.

i

I

/

JESSICA DUNSAY SPLVER

_"

GREGORY

B. FRIEL

Attorneys

!

Department of Justice ' . Civil Rights Division

Appellate Section

I

Ben Franklin Station

P.O. Box 14403

|

Washington, D.C. 20044-4403 (202) 514-3876

i

I

I COMBINED CERTIFICATIONS

i

(Page 1 of 2)

i

I hereby certify as follows:•

1. This brief complies with the type-volume limitation imposed by Fed. R.

App. P. 29(d) and 32(a)(7)(B ). The brief was prepared using WordPerfect 12 and

I

contains 4,875 words of Proportionally spaced text. The type face is Times New

I

Roman, 14-point font.

2. The text of the electronic version of this brief, which has been emailed to

i

the Court, is identical to the text of the hard copies of the brief that have been sent

I

to the Clerk's Office. The electronic copy has been scanned with the most recent

version of Trend Micro Office Scan (version 7.0) and is virus-free.

I

3. On March 28, 2007, two copies of the foregoing BRIEF FOR THE

!

UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND

I

URGING REVERSAL were served by Federal Express, overnight delivery , on:

I

Stephen F. Gold, Esq. 125 South Ninth Street, Suite 700

Saul H. Krenzel, Esq. Saul H. Krenzel & Associates

Philadelphia, PA 19107

Th e Robinson Building, Suite 800

I

(215) 627-7100 (counsel for Appellant)

42 South 15th Street Philadelphia, PA 19102

(215) 977-7230

i

Mark J. Murphy, Esq. Rocco J. Iacullo, Esq.

(counsel for Appellee)

Robin Resnick, Esq.

!

Disability Rights Network of Pa. !315 Walnut Street, Suite 400

philadelphia, PA 19107-4798

I

(215) 238-8070

(counsel for Appellant)

I

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I

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COMBINED CERTIFICATIONS

I

(Page 2 of 2)

4. On the same date, copies of the United States' brief were sent by Federal
i
Express, overnight delivery, to the Clerk of the United States Court of Appeals for
I the Third Circuit.
i

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March 28, 2007
i

Attomey

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I I i i i I I

 
 539 F.3d 199 (2008)
DISABLED IN ACTION OF PENNSYLVANIA, Appellant, v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
No. 06-5109.
United States Court of Appeals, Third Circuit.
Argued January 10, 2008. Filed: August 19, 2008.
201 *201 Stephen F. Gold (Argued), Philadelphia, PA, Rocco J. Iacullo, Mark J. Murphy, Disabilities Law Project, Philadelphia, PA, Attorneys for Appellant.
Gregory B. Friel (Argued), Jessica D. Silver, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Attorneys for Amicus Appellant.
Saul H. Krenzel (Argued), Saul H. Krenzel & Associates, Philadelphia, PA, Attorneys for Appellee.
Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
In this statutory interpretation case, we must decide when the statute of limitations begins to run in a case arising under the Americans With Disabilities Act (ADA) and the Rehabilitation Act (RA). Appellant Disabled in Action of Pennsylvania (DIA) argues that under the plain language of the statute, its claims accrued "upon the completion" of alterations to two Philadelphia subway stations. Appellee Southeastern Pennsylvania Transportation Authority (SEPTA) argues, and the District Court held, that DIA's claims accrued prior to the completion of the alterations when DIA discovered that the planned alterations would not include elevators.
I.
We view the facts and draw all reasonable inferences in the light most favorable to DIA, the party against whom summary judgment was entered. Feesers, Inc. v. Michael Foods, Inc., 498 F.3d 206, 208 (3d Cir.2007) (citing Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir.2007)).
DIA is a nonprofit corporation that seeks to eliminate discrimination against disabled individuals in all aspects of community life. To achieve this goal, DIA employs a variety of methods including: government monitoring, political 202 activism, *202 direct involvement in municipal planning, and, as a last resort, litigation. Many of DIA's approximately 450 members use wheelchairs and rely on SEPTA for their public transportation needs.
SEPTA is an agency of the Commonwealth of Pennsylvania responsible for providing public transportation in Southeastern Pennsylvania. In Philadelphia, SEPTA's City Transit Division operates a vast network of subway and subway-elevated rapid rails, regional rails, light rails, trackless trolleys, and buses that provide over 850,000 passenger trips per day. SEPTA receives federal funding for many of its activities, including its recent remodeling of an entrance to the 15th Street Station.

A. 15th Street Station and Courtyard
The bustling 15th Street Station is located underground near 15th and Market Streets in downtown Philadelphia. Passengers can access the station in two ways. First, using the stairway at the southwest side of 15th and Market Streets, passengers can descend directly to the platform for the Market-Frankford subway line. Second, using the stairway or escalator at the northwest side of the same block, passengers can descend to the "15th Street Courtyard." From there, they can turn northward toward the Suburban Regional Rail Line Station (Suburban Station), or southward, toward the Market-Frankford platform. SEPTA's renovations to this latter entrance gave rise to the present dispute.[1]
Prior to SEPTA's renovations, the 15th Street Courtyard included a set of stairs and two escalators enclosed within a headhouse. On September 27, 1999, SEPTA received a $700,000 grant from the Economic Development Administration of the United States Department of Commerce for a project entitled "Renovation of 15th and Market Streets Headhouse at Suburban Station." According to the grant, the project was to involve "various renovations to the 15th and Market Streets entrances and related areas" including "renovation of entrances to the underground train station concourse; demolition of existing facilities; the construction/installation of new stairs, landscaping, lighting, signage, finishes, canopies; and all appurtenances."
In accepting the Commerce Department funding, SEPTA agreed to "pursue diligently the development of the Project so as to ensure completion ... within [the] time schedule." Specifically, the grant required SEPTA to begin construction within 18 months of its receipt of the funds and to limit the total construction period to 29 months. In addition, the grant was to expire "five (5) years from the fiscal year of the Grant Award," requiring that the project be "physically and financially completed by September 30, 2004."
Having secured funding, SEPTA applied to the City of Philadelphia for a variance from certain provisions of the 203 Building *203 Code. Among the provisions from which SEPTA sought a variance was Section B-1110.2.2(9),
which requires that "[w]here building entrances are altered, or when plans are presented to relocate and provide a new primary entrance, the entrance shall be made accessible." For obvious reasons, SEPTA's variance application caught the attention of DIA's legal counsel, Stephen F. Gold.
Fearful that SEPTA's renovations would not include an elevator, Gold wrote to Edward McLaughlin, City Commissioner for the Department of Licenses and Inspections. In his letter of August 3, 2000, Gold expressed concern "that the City would allow SEPTA to apply for such a variance on its behalf for such a major public access point." Gold insisted that "[i]n addition to ensuring that renovations ... are carried out in compliance with the Building Code, the City also has an obligation to ensure that such renovations are ... carried out in compliance with the [Americans With Disabilities Act]." He asked McLaughlin to keep him informed "as to how the City plans to proceed with [SEPTA's] variance request."
Gold received no response from McLaughlin and consequently discussed his concerns with Pete Winebrake, an attorney in the City Solicitor's Office. Gold summarized the discussion in a letter dated September 28, 2000: "As I stated on the phone yesterday, this problem should be resolved before construction commences, or you leave me with very few options. I am very concerned that the City's train has already left the station and I must act sooner than later [sic]. I am available to meet with you at your earliest convenience." (Emphasis in original.)
Gold heard nothing more from Winebrake, but received a letter dated November 14, 2000 from Assistant City Solicitor Fredrick K. Pasour regarding the "15th Street Courtyard Portion of the Suburban Station Project." In pertinent part, Pasour's letter stated:
I represent the City of Philadelphia with respect to the above-referenced project. I understand that you believe that the ADA, its regulations and the Accessibility Guidelines require an elevator in the 15th Street courtyard. I also understand that you are considering bringing a lawsuit to enjoin the 15th Street courtyard portion of the project if the City issues a building permit based on plans that do not include an elevator in the 15th Street courtyard.

This letter is to advise you that the City doe [sic] not share your view that an elevator is required in the 15th Street courtyard and has issued a building permit for the project.[2] Please remember that the 15th Street courtyard will be readily accessible to and usable by individuals with disabilities. As you are aware, elevators are planned for other locations near the 15th Street courtyard.

The current bids for the portion of the project that includes the 15th Street courtyard renovations are only good through December 30, 2000. If, therefore, you plan to bring an action challenging the 15th Street courtyard portion of the project, please do so in an expeditious manner.

I understand that you had one meeting with representatives of the City and SEPTA at the 15th

Street courtyard to discuss the project. I believe that another meeting this week may be useful in

order to discuss the project in more detail and to determine if we can reach an agreement that is

204

satisfactory to you, *204 the disabled community, the City and SEPTA.

App'x 477.

Despite Pasour's letter, Gold did not immediately file a lawsuit, and the City issued SEPTA a building permit on or about February 14, 2001, describing the 15th Street Courtyard project as follows:

Demolition incorporates head house, stair, railings, limited wall, veneer, pavement, and lighting systems. Also to be removed are planters, fountain and ceilings. Construction scope consists of glass head house, stair, (2) retail spaces, railings, storefront sys., planters, lighting and paving installed, as well as new ceiling.

App'x 216. SEPTA commenced construction a few days later.

The record suggests several explanations for DIA's decision not to file suit prior to this juncture. First, Gold testified that in 2000, he met with representatives of SEPTA and the City because "they were really anxious to get a commitment from [him] that there would not be a lawsuit regarding 15th Street." See also App'x 477 (referring to a meeting between Gold and "representatives of the City and SEPTA" to determine if the parties could "reach an agreement"). According to Gold, Frances Egan, Assistant to SEPTA's General Manager for Government and Public Affairs, and Deborah Russo, a representative of the City, assured him that in lieu of an elevator at 15th Street, SEPTA "would put in the elevator at City Hall and begin construction in '02 with the completion date of '04."[3]See also App'x 477 (noting that "elevators are planned for other locations near the 15th Street courtyard").

Gold discussed the proposed compromise with DIA, and DIA agreed that it was acceptable. Gold informed Egan of his client's assent, but neither party memorialized the deal.[4] Assuaged nonetheless,[5] DIA took no further action until late 2002 when it appeared that SEPTA was not installing an elevator at City Hall.[6]

205 Gold's explanation for DIA's decision not to file a pre-construction lawsuit is supported *205 by a Settlement Agreement in which DIA voluntarily dismissed its claims against the City, and the City affirmed that it "only granted permits for [the 15th Street Courtyard] renovation because [it] believed SEPTA had agreed to construct elevators in the City Hall Courtyard in lieu of the required elevator at 15th and Market."

Alternatively, the record suggests that at some point, DIA's strategy shifted from obtaining a pre-construction injunction to pursuing post-construction remedies based on Gold's belief that even though "[SEPTA] had started construction or even completed [construction]," the ADA enabled DIA to force SEPTA to install an elevator. Gold admitted that he gave Pasour's admonition to file suit in an expeditious manner "[v]ery, very, very much consideration" but determined that he could "optimize representing [DIA][by] letting [SEPTA] move the stairs and begin[] the construction because [DIA] could always get the elevator and make [SEPTA] put it [in] if necessary along 15th Street." For reasons that are not clear from the record, Gold concluded that if construction did not proceed, "there would be no elevator." Accordingly, he "decided ... to let [SEPTA and the City] sit in their own petard [sic]."[7]

Whatever the reasons for waiting, DIA filed its initial Complaint on March 14, 2003, approximately eight months after the newly renovated 15th Street Courtyard entrance was opened on August 8, 2002 without an elevator. DIA requested "permanent injunctive relief to enjoin [SEPTA] to begin construction immediately of a[n] elevator at the 15th and Market Street entrance... to assure access for persons with disabilities."
B. City Hall Station and Courtyard
The second subject of the present dispute is SEPTA's replacement of an escalator that carried passengers from the concourse above the City Hall Station platform to City Hall Courtyard.[8] Located near the 15th Street Station, City Hall Station is one of the busiest stops on the Broad Street subway line and serves as a transfer point between the Broad Street Line, the Market-Frankford Line, and Regional Rail Lines. For instance, from the concourse below City Hall Courtyard, passengers can access the 11th and 13th Street Market-Frankford Line platforms without using stairs.
206 *206 The City Hall Courtyard project was part of SEPTA's Escalator Replacement Program, launched in 1999 to improve the safety of escalators throughout the system. SEPTA included funding for the program in its FY 2001 Capital Budget after holding a public meeting to discuss the improvements on May 22, 2000. Although no representative of DIA attended the meeting, DIA's Executive Director testified that DIA reviews SEPTA's Capital Budget each year and was aware of the project.
By August 17, 2001, SEPTA had barricaded the area around the City Hall Courtyard escalator and posted signs that read "Project of the Pennsylvania Public Transportation Assistance Fund; Escalator Replacement at Erie, Spring Garden, City Hall & 30th Street Stations; Southeastern Pennsylvania Transportation Authority." SEPTA removed the existing escalator, extended the wellway and relocated the truss upon which it sat, and installed a new escalator. Construction was completed and the escalator was opened to the public on or about August 24, 2003. The finished project did not include an elevator. On February 15, 2005, DIA filed its Fourth Amended Complaint, adding allegations regarding this project.
C. The District Court Proceedings
DIA filed its initial Complaint on March 14, 2003, alleging that SEPTA's renovations to the 15th Street Station entrance violated the ADA and the RA. The District Court dismissed the complaint because DIA failed to name the City of Philadelphia, the owner of the real property upon which the entrance is located, as a defendant. After the Court granted DIA relief from the dismissal, DIA added the City as a defendant in its First Amended Complaint. On October 10, 2003, DIA filed a Second Amended Complaint, which included allegations about a deal between DIA, SEPTA, and the City to install an elevator at the City Hall Courtyard instead of the 15th Street Courtyard.
After an unsuccessful settlement attempt, DIA filed a Third Amended Complaint, adding an ADA "key station" claim. See 42 U.S.C. § 12147(b); 29 C.F.R. § 37.47. SEPTA moved to dismiss the key station claim and argued that portions of the Third Amended Complaint should be stricken pursuant to a stipulation between DIA and SEPTA. The District Court refused to dismiss the key station claim, but DIA agreed to strike its allegations that SEPTA had agreed to install an elevator at City Hall in lieu of 15th Street.
On August 16, 2004, DIA reached a settlement agreement with the City. Therein, the City stipulated that "[i]t is the City's legal opinion that SEPTA is legally obligated under the ADA and accompanying Regulations to construct an elevator at the 15th and Market Street Courtyard entrance, which SEPTA renovated." Moreover, the City asserted that it "only granted permits for [the 15th Street] renovation because [it] believed SEPTA had agreed to construct elevators in the City Hall Courtyard." Based on this agreement, the District Court dismissed the City from the case.
On February 15, 2005, DIA filed a Fourth Amended Complaint in which it added a second claim under § 12147(a) based on SEPTA's renovations to the City Hall Courtyard. DIA alleged that SEPTA's renovations to both the 15th

Street and City Hall Courtyards constituted "alterations" that triggered ADA and RA accessibility obligations.[9] 42 207 U.S.C. *207 § 12147(a); 29 U.S.C. § 794(a). DIA also alleged that both 15th Street and City Hall are "key
stations" that SEPTA must make accessible. 42 U.S.C. § 12147(b); 29 U.S.C. § 794(a). DIA requested, inter alia, an injunction compelling SEPTA to construct elevators at both locations. After completing discovery, the parties filed cross motions for summary judgment.
The District Court granted SEPTA's motion for summary judgment on all counts. As to DIA's § 12147(a) claims, the court reasoned that "[t]o determine the accrual date of a discrimination claim, a court must focus on when the discriminatory act occurred, not when the effect of that act became painful." DIA, 2006 WL 3392733, at *14 (citing Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981)). The District Court rejected DIA's argument that SEPTA's discriminatory acts occurred "upon completion of [the] alterations" to the 15th Street and City Hall Courtyards. Id. at *13 (citing 42 U.S.C. § 12147(a)). Rather, the District Court held that the claims accrued when DIA knew, or had reason to know, that SEPTA's renovations would not include elevators. According to the District Court, DIA had such knowledge regarding the 15th Street Courtyard "no later than November 1, 2000, when DIA was informed that SEPTA would proceed with the planned construction at the 15th and Market Street Courtyard without installing an elevator," id. at * 14, and regarding the City Hall Courtyard, "at least as early as August 17, 2001," when a sign was posted "in the City Hall Courtyard on the outside of the boarded-off construction area where the escalator was being replaced." Id. at *17. Because DIA filed its § 12147 (a) claims more than two years after these dates, the District Court dismissed them as barred by the statute of limitations, id., and DIA appealed.[10]
II.
DIA's claims arise under Section 227 of the ADA, 42 U.S.C. § 12147(a), and Section 504 of the RA, 29 U.S.C. § 794(a).[11] The District Court had jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331 and 1343. We review the District Court's final order granting summary judgment to SEPTA pursuant to 28 U.S.C. § 1291.
Our review is plenary, and we apply the same standard as the District Court. Michael Foods, 498 F.3d at 212. We will affirm the grant of summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" and that SEPTA is "entitled to judgment as a matter of law." FED. R.CIV.P. 56(c). In making this determination, we 208 "view the facts in the light most *208 favorable" to DIA and "draw all inferences" in DIA's favor. Michael Foods, 498 F.3d at 212 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.2000)).
In 1973, Congress passed the Rehabilitation Act to assure that no individual with a disability "shall ... be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794 (a). Seventeen years later, Congress extended this mandate to cover all public transportation providers in Title II of the Americans With Disabilities Act. See 42 U.S.C. §§ 12132 and 12131(1). Title II begins with a general prohibition of disability-based discrimination, § 12132, followed by seven provisions that define what "shall be considered discrimination" for purposes of the statute. 42 U.S.C. §§ 12142, 12143, 12144, 12146, 12147, 12148, and 12162. In this case, we address an important question of first impression regarding one of these provisions: when does a claim under § 12147(a) accrue?
III.
Neither Title II of the ADA nor Section 504 of the RA includes an express statute of limitations. As both statutes were enacted prior to the effective date of the default four-year statute of limitations for federal statutes, see 28 U.S.C. § 1658, we borrow the statute of limitations of the most analogous state law cause of action. North Star Steel Co. v. Thomas, 515 U.S. 29, 33-34, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995); Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The District Court concluded, and the parties do not dispute, that Pennsylvania's two-year statute of limitations for personal injury claims should apply to claims under § 12147(a).

This conclusion is consistent with our precedent regarding the statute of limitations for federal civil rights claims. See, e.g., Lake v. Arnold, 232 F.3d 360, 368 (3d Cir.2000); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir.1993); Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78 (3d Cir.1989). It is also consistent with the majority of Courts of Appeals that have decided the question. See Gaona v. Town & Country Credit, 324 F.3d 1050, 1055 (8th Cir.2003) (noting that "most Courts of Appeal[s] ... have applied the state statute of limitations for personal injury actions to claims under the Rehabilitation Act and the ADA"); Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1409-10 (11th Cir.1998); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir.1996); Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir.1993); Morse v. Univ. of Vermont, 973 F.2d 122, 127 (2d Cir.1992); Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir.1992); cf. Wolsky v. Med. Coll. of Hampton Rds., 1 F.3d 222, 223-25 (4th Cir.1993).
Accordingly, we hold that the statute of limitations applicable to claims under Title II of the ADA and Section 504 of the RA is the statute of limitations for personal injury actions in the state in which the trial court sits. In this case, the applicable statute is 42 PA. CONS. STAT. § 5524, which prescribes a two-year statute of limitations.
IV.
The more difficult question 0907 and the crux of the dispute between DIA and SEPTA 0907 is when this two year statute of limitations begins to run. In answering this question, we note that "[t]he ADA is a remedial statute, designed to eliminate discrimination against the disabled in all facets of society," and as such, "it must be broadly construed to effectuate its purposes." Kinney v. Yerusalim, 812 F.Supp. 547, 551 (E.D.Pa.1993) (citing Tcherepnin v. Knight, 209 389 U.S. 332, 335, 88 S.Ct. 548, *209 19 L.Ed.2d 564 (1967)), aff'd, 9 F.3d 1067 (3d Cir.1993).
A.
Ordinarily, a statute of limitations begins to run from the moment the potential plaintiff has a "complete and present cause of action." Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 195, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941)); Arnold, 232 F.3d at 366 (quoting Ross v. Johns-Manville Corp., 766 F.2d 823, 826 (3d Cir.1985)) (limitations period begins to run "from the time the cause of action accrue[s]"). For federal causes of action, the accrual date is a matter of federal law. Romero v. Allstate Corp., 404 F.3d 212, 221 (3d Cir. 2005).
Where Congress has specified an accrual date by "explicit command" or "by implication from the structure and text of the statute," we defer to its directive. TRW Inc. v. Andrews, 534 U.S. 19, 27-28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001); see Romero, 404 F.3d at 222. "[I]n the absence of a contrary directive from Congress," we apply the "federal discovery rule," which dictates that a federal cause of action accrues "when the plaintiff discovers, or with due diligence should have discovered, the injury that forms the basis for the claim." Romero, 404 F.3d at 222 (internal quotation and citations omitted).[12]
We agree with the parties that Congress did not "explicitly command" an accrual date for § 12147(a) claims as it has done for other civil rights actions. Cf. 42 U.S.C.2000e-5(e)(1) ("A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ...."); id. § 3613 ("An aggrieved person may commence a civil action ... not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice...."). Nevertheless, for the reasons that follow, we hold that the "structure and text of the statute," Andrews, 534 U.S. at 28, 122 S.Ct. 441, evince Congress's intention that claims under § 12147(a) accrue "upon the completion of ... alterations" to public transportation facilities.
1.
The portion of § 12147(a) at issue in this appeal provides:

With respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 12132 of this title and section 794 of Title 29, for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, upon the completion of such alterations.
As the District Court correctly observed, the dispute between DIA and SEPTA "emanates from the difference in how the parties interpret" this provision "as to when the alleged discrimination occurs." DIA, 2006 WL 3392733, at 210 *11. Like the parties and the District Court, we believe § 12147(a)'s concluding phrase 0907 *210 "upon the completion of such alterations" 0907 is of fundamental importance in answering this question.
DIA argues that the phrase modifies the entire definition of what "shall be considered discrimination" because "only when... alterations are completed and the inaccessible facility is re-opened will people with mobility disabilities be subject to discrimination." Therefore, DIA concludes, claims under § 12147(a) do not accrue until alterations are completed.
SEPTA invokes the rule of the last antecedent, arguing that the "upon the completion" phrase only modifies the phrase "the altered portions of the facility are readily accessible to and usable by individuals with disabilities" and not "the entire definition of what constitutes discrimination."[13] Under this interpretation, which the District Court adopted, the function of the "upon the completion" phrase is "merely [to] suggest that accessibility for disabled individuals must be in place at the time the alterations are completed." DIA, 2006 WL 3392733, at *13. In other words, the phrase merely acknowledges that while renovations are in progress, facilities will necessarily be inaccessible to everyone, including "individuals with disabilities," and that this temporary inaccessibility is not what § 12147(a) prohibits.
Our evaluation of these conflicting interpretations is guided by familiar rules of statutory construction. Our primary concern is to give effect to Congress's intent. Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir.2001). We assume that "Congress expresses its intent through the ordinary meaning of its language" and therefore begin "with an examination of the plain language of the statute." Id. If the language is unambiguous, our inquiry is at an end. Id.
A statutory provision is not ambiguous simply because "by itself, [it is] susceptible to differing constructions" because in addition to the "statutory language... itself," we take account of "the specific context in which that language is used, and the broader context of the statute as a whole." In re Price, 370 F.3d 362, 369 (3d Cir.2004) . We assume, for example, that every word in a statute has meaning and avoid interpreting one part of a statute in a manner that renders another part superfluous. Rosenberg, 274 F.3d at 141-42. We also consider he overall "object and policy" of the statute, United States v. Schneider, 14 F.3d 876, 879 (3d Cir.1994), and avoid constructions that produce "odd" or "absurd results" or that are "inconsistent with common sense." See Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (internal quotations omitted); 2A N. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 45:12, at 92 (6th ed.2000) (hereinafter SUTHERLAND).
Applying these principles to § 12147(a), we find DIA's interpretation of the "upon the completion" phrase more persuasive. The language appears in the "specific context" of a single sentence that defines activities that "shall 211 be considered discrimination"; and in the "broader context" of Title II, which assures that no "individual *211 with a disability" is "subjected to discrimination." 42 U.S.C. §§ 12147(a) and 12132. "Discrimination," as it is ordinarily defined, is the denial of "privileges to a certain class because of race, age, sex, nationality, religion, or handicap." BLACK'S LAW DICTIONARY 500 (8th ed.2004). The privileges at stake in § 12147(a) are access to, and use of, public transportation facilities. It is difficult to understand how these privileges are denied to individuals with disabilities by the mere promulgation or approval of renovation plans that do not include accessibility features. Instead, as Congress recognized, it is only when renovations are completed that individuals with disabilities will be excluded from accessing and using such facilities while others will not. This is the time at which disabled individuals are subjected to the disparate treatment that § 12147(a) was enacted to prevent.

SEPTA's argument that the "upon the completion" language merely clarifies that § 12147(a) imposes no duty upon public entities to ensure accessibility while transportation facilities are under construction is specious. We are confident that Congress would not have felt compelled to make such an obvious clarification. See Public Citizen, 491 U.S. at 454, 109 S.Ct. 2558. Faced with a choice between SEPTA's interpretation, which essentially renders the phrase surplusage, and DIA's interpretation, which gives it substantial effect, we choose the latter. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F.3d 28, 31 (3d Cir. 1995) (A statute "should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant."); SUTHERLAND § 45:12, at 94 ("[A] construction that renders a portion of the statute meaningless should not be reached by the court unless that construction is unavoidable."); SUTHERLAND § 46:06, at 190-92 ("No clause[,] sentence[,] or word shall be construed as superfluous, void or insignificant if the construction can be found which will give force to ... all the words of the statute.").
We thus interpret the "upon the completion" clause as modifying the statutory definition of discrimination such that claims under § 12147(a) arise "upon the completion" of inaccessible "alterations."
2.
Our interpretation of this seminal clause in dispute on appeal is bolstered by the remainder of the statute. In fact, even if the "upon the completion" clause was absent from the statute, we would conclude that a claim under § 12147(a) does not accrue until alterations are completed.
As the District Court stated, "[t]o determine the accrual date of a discrimination claim, a court must focus on when the discriminatory act occurred." DIA, 2006 WL 3392733, at * 14 (citing Chardon, 454 U.S. at 8, 102 S.Ct. 28). Section 12147(a) defines two closely related discriminatory acts: the failure (1) "to make" alterations, and (2) the failure "to ensure that ... alterations are made," in such a manner that the altered portions of transportation facilities are accessible and usable.
Regarding the first act, we agree with the amicus curiae submission of the U.S. Department of Justice that as a matter of logic, there can be no "fail[ure] to make" the "altered portions" of a facility accessible until the alterations are completed. The relevant act is "to make" 0907 "to cause (something) to exist." BLACK'S LAW DICTIONARY 975 (8th ed.2004). Merely funding, designing, approving, or even commencing construction of alterations that will not provide accessibility does not "cause" such alterations "to exist," especially in light of the notoriously contingent 212 nature of construction *212 plans. See, e.g., DIA v. Sykes, 833 F.2d 1113, 1115 (3d Cir.1987) (subway station renovation planned and funded in 1979 but modified in 1981 to exclude elevator). Therefore, an individual cannot suffer discrimination under this portion of the statute until the alterations are completed.
Unlike the first discriminatory act, the second act can logically occur before, during, or after construction. For example, a public entity arguably fails "to ensure that... alterations are made" when it fails to insist that construction drawings include certain features.[14] Although rational in vacuo, this reading is unfaithful to the structure of the statute. Price, 370 F.3d at 369. The phrase "or to ensure that the alterations are made" appears in parentheses immediately following the phrase "to fail to make such alterations," indicating that the meaning of the former phrase is related to, or dependent upon, the latter. See Peters v. Ashcroft, 383 F.3d 302, 309 (5th Cir.2004) (noting that parentheses "reduce[] the grammatical import" of the language contained therein); see generally Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 483 (3d Cir.1965) (noting that punctuation can be a relevant factor in statutory interpretation); SUTHERLAND § 47:15, 261 (favoring rule that treats punctuation as a relevant factor in statutory construction). Furthermore, both phrases center around a form of the verb "to make," an additional indication that they are, in DIA's words, "two sides of the same coin." See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 86, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006) ("Generally, identical words used in different parts of the same statute are ... presumed to have the same meaning.") (internal quotation and citation omitted). Given this context, we hesitate to ascribe to the phrase "ensure that the alterations are made" the broad and independent meaning SEPTA urges. See Mizrahi v. Gonzales, 492 F.3d 156, 166 (2d Cir.2007) (declining to ascribe independent meaning to parenthetical statutory phrase beginning with word "or" because "it can reasonably be construed to illustrate or explain" the preceding phrase).

It is more probable that Congress included the parenthetical and used the passive verb form "are made" because it recognized that a public entity is rarely the entity that "make[s]" the alterations. Instead, alterations "are made" by sundry contractors and subcontractors. Without the parenthetical, a public entity could immunize itself from § 12147(a) liability by delegating renovation projects to private entities that are not subject to ADA liability. 42 U.S.C. § 12132. The parenthetical closes this loophole by placing the onus on the public entity, as opposed to its agents, "to ensure" that alterations "are made" in an accessible and usable manner.

This interpretation comports with a similar provision in Title III of the ADA (dealing with public accommodations):

"[D]iscrimination ... includes 0907 with respect to a facility or part thereof that is altered by, on behalf

of, or for the use of an establishment in a manner that affects or could affect the usability of the

213

facility or part thereof, a failure to make *213 alterations in such a manner that, to the maximum

extent feasible, the altered portions of the facility are readily accessible to and usable by

individuals with disabilities."

42 U.S.C. § 12183(a)(2) (emphasis added). Absent from § 12183(a)(2) is the "or to ensure that the alterations are made" phrase. Instead, the statute provides that the offending alterations can be made "by" or "on behalf of" a public entity. This language is consistent with our conclusion that Congress included the parenthetical phrase in § 12147(a) to cover the situation in which alterations to a public transportation facility are made "on behalf of" a public entity.

Moreover, regardless whether the "mak[er]" of the alterations is the public entity itself or the entity's agents, the general activity that § 12147(a) regulates is the same: the "mak[ing]" of alterations. Cf. 42 U.S.C. § 3604(f)(3)(C) (regulating the underlying activities of "design[ing] and construct[ing]" multifamily dwellings) (emphases added). As discussed, the failure to "make" alterations in a certain manner, as opposed to "plan" or "design" them, cannot logically occur until the completion of such alterations.

3.

Finally, to establish whether a public entity committed the discriminatory acts of "fail[ing] to make" alterations, or "fail[ing]... to ensure that ... alterations are made" in an accessible manner, the statute directs us to determine whether "the altered portions of the facility are readily accessible" 0907 not whether the portions to be altered will be readily accessible. 42 U.S.C. § 12147(a) (emphases added). The verb tenses employed by Congress in this phrase (i.e. "altered," past tense, and "are," present tense) further clarify that the time for passing upon a public entity's success or failure in complying with the statute is upon completion of the alterations.
In short, despite the District Court's repeated emphasis on SEPTA's construction plans,[15] the word "plan" is absent from the statute while the phrase "completion of... alterations" is present. Consistent with this language, as well as the structure and purpose of the statute, we hold that the discriminatory acts defined by § 12147(a) occur, and the statute of limitations begins to run, "upon the completion of ... alterations" to public transportation facilities.
B.

Before discussing the policy considerations underlying our holding, we clarify the proper application of the discovery rule as it was the basis of the District Court's holding and the subject of extended debate between the parties. The District Court reasoned:

[In] the absence of any explicit statutory limitation period ... the Court must look elsewhere for

guidance as to when a cause of action such as this one accrues. Under federal law, a claim

214

accrues on the date when the plaintiff knows or has reason to know of the *214 injury that is the

basis of the action. To determine the accrual date of a discrimination claim, a court must focus on

when the discriminatory act occurred, not when the effect of that act became painful.

DIA, 2006 WL 3392733, at *13-*14 (internal quotations and citations omitted). Although largely accurate, two corrections to this statement of law are necessary. First, as discussed in Part IV.A, in addition to arising from an "explicit statutory" directive, id. at * 13, an accrual date can arise "by implication from the structure and text of the statute." Andrews, 534 U.S. at 27-28, 122 S.Ct. 441. Second, the District Court erred in applying the discovery rule to establish when DIA's claims accrued before first determining, per the terms of § 12147(a), when DIA's alleged injuries occurred. These inquiries are analytically distinct.
Because a potential plaintiff cannot discover his injury before it has occurred, the discovery rule only postpones the accrual date of a claim "where the [plaintiff] is unaware of the injury." CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375, 384 (3d Cir.2004). It does not accelerate the accrual date "when the [plaintiff] becomes aware that he will suffer injury in the future." Id.; see Podobnik v. U.S. Postal Serv., 409 F.3d 584, 590 (3d Cir.2005) ("The discovery rule delays the initial running of the statute of limitations, but only until the plaintiff has discovered: (1) that he or she has been injured; and (2) that this injury has been caused by another party's conduct.") (emphasis added); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir.1994) (The discovery rule "postpones the beginning of the limitations period from the date a plaintiff was wronged until the date a plaintiff discovers that he or she was injured.") (emphasis added).
Accordingly, the first step in applying the discovery rule in a situation like the present is to establish when the injurious discriminatory act defined by the statute actually occurred. See Podobnik, 409 F.3d at 590. The second step is to determine whether that injury was immediately discoverable, or whether the accrual date will be postponed until it is reasonable to expect the plaintiff to discover the injury. Oshiver, 38 F.3d at 1386. Having skipped step one, the District Court's application of the discovery rule resulted in an accrual date that preceded the occurrence of DIA's alleged injuries.
Because DIA was not injured before SEPTA completed its alterations, the discovery rule would not have rendered DIA's claims untimely.
C.
We conclude by reviewing the policy considerations underlying our holding. See Price, 370 F.3d at 375. In particular, we appreciate the District Court's concern that:
[I]t would be impractical to impose upon a defendant the requirement that it fully complete a facility modification before having to address any assertion that modifications that can be clearly understood from design drawings and specifications amount to alterations triggering an obligation under the ADA that might require significant and material modifications that surely would have been more easily, efficiently and economically incorporated well prior to the completion of the work.
DIA, 2006 WL 3392733, at *13. This concern 0907 that public entities will incur unnecessary expense if potential 215 plaintiffs can wait until "the last nail is hammered into *215 place" to bring suit 0907 is assuaged by a number of
mitigating and countervailing considerations. Id.
First, our interpretation of § 12147(a) does not prevent a public entity like SEPTA from obtaining preliminary declaratory relief to ensure ADA compliance prior to commencing alterations. See 28 U.S.C. § 2201. Declaratory relief is available "to settle actual controversies before they ripen into violations of a law or a breach of duty." United States v. Fisher-Otis Co., 496 F.2d 1146, 1151 (10th Cir. 1974) (emphasis added); see Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir.1990). Such relief is appropriate where "there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality." Armstrong World Indus., Inc. by Wolfson v. Adams, 961 F.2d 405, 411 (3d Cir.1992) (quoting Md. Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)).
Although SEPTA's activities did not ripen into actual violations of § 12147(a) until SEPTA completed its alterations to the 15th Street and City Hall Courtyards, a substantial, immediate, and real controversy existed between SEPTA and DIA regarding these activities much earlier. On August 3, 2000, DIA's attorney, Stephen Gold, wrote

to City Commissioner Edward McLaughlin expressing DIA's concern that the 15th Street Courtyard project would not comply with the ADA. Gold relayed the same concerns to SEPTA throughout 2000 in a series of meetings with SEPTA and the City. In these meetings, Gold also discussed SEPTA's ADA obligations regarding the City Hall Courtyard project. Because of these interactions, SEPTA was "anxious" to get a commitment from DIA "that there would not be a lawsuit" and was undeniably aware that a substantial controversy existed. Accordingly, to the extent that SEPTA's planned "modifications [could be] clearly understood from design drawings and specifications," SEPTA could have obtained a declaratory judgment to assuage its anxieties before proceeding with construction.
Conversely, our interpretation of § 12147(a) does not prevent an entity like DIA from seeking an injunction prior to the commencement of construction to prevent threatened ADA violations. See 43A C.J.S. Injunction § 8 ("A preliminary injunction is an anticipatory remedy which prevents the perpetration of a threatened wrong...."); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Swift & Co. v. United States, 276 U.S. 311, 326, 48 S.Ct. 311, 72 L.Ed. 587 (1928).
There is little doubt that it would have been better for all if DIA or SEPTA had sought declaratory or injunctive relief before construction began. It does not follow, however, that a claim for relief on the merits under § 12147(a) accrues as soon as claims for declaratory and injunctive relief accrue. Ramey v. District 141, 378 F.3d 269, 279 n. 4 (2d Cir.2004) ("[T]he possibility of maintaining a preliminary injunction proceeding does not trigger the statute of limitations."); see Reiter v. Cooper, 507 U.S. 258, 267, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993) ("While it is theoretically possible for a statute to create a cause of action that accrues at one time for the purposes of calculating when the statute of limitations begins to run, but at another time for purposes of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute."); Dasgupta v. Univ. of Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir.1997) ("If an employer tells his employee, `I am going to infringe your rights under Title VII at least once every year you work for me,' this does not start the statute of limitations 216 running on *216 the future violations, violations that have not yet been committed."). The following hypothetical adapted from our decision in CGB Occupational Therapy, 357 F.3d at 384 n. 9, illustrates our point.
A telephone company informs a homeowner that it has a right-of-way across the homeowner's property, and that next Friday, it plans to utilize the right-of-way to repair an underground line. The homeowner informs the company that he disputes the parameters of the right-of-way. Upon receiving notice of this controversy, the phone company could seek a declaratory judgment to establish the parameters of the right-of-way and protect itself from future trespass liability. See Centel Cable Television Co. v. Admiral's Cove Assocs., Ltd., 835 F.2d 1359, 1361 (11th Cir.1988); Commw. v. Wertelet, 696 A.2d 206, 209-10 (Pa.Super.1997). Conversely, the homeowner could obtain an injunction to prevent the phone company from entering his property until the right-of-way dispute is resolved. See Wertelet, 696 A.2d at 209-10. Even though both declaratory and injunctive relief are available, the homeowner has no trespass claim against the phone company until it physically enters his property. CGB Occupational Therapy, 357 F.3d at 384 n. 9; see United States v. Union Corp., 277 F.Supp.2d 478, 495 (E.D.Pa.2003) (citing RESTATEMENT (2D) OF TORTS § 158).
Assume that neither party seeks preliminary relief and the phone company enters the homeowner's property. At the moment of entry, the homeowner's trespass claim accrues. See CGB Occupational Therapy, 357 F.3d at 384 n. 9; Union Corp., 277 F.Supp.2d at 495. It would be incorrect to say that the statute of limitations on this claim began to run from the time the parties discovered the dispute regarding the right-of-way. Similarly, it would be incorrect to say that the statute of limitations on a § 12147(a) claim begins to run as soon as the parties discover a controversy that may entitle them to preliminary declaratory and injunctive relief.
In light of the availability of preliminary relief to parties facing the dilemma that confronted DIA and SEPTA, we believe the District Court's concern that public entities will be forced to "re-engineer" completed projects "to add the ADA-compliance features" is overstated. DIA, 2006 WL 3392733, at *13. That may be the unfortunate consequence of our decision in this instance, however.
Second, the District Court's desire to give public entities repose from § 12147(a) liability is not advanced by an interpretation of the statute that incorporates the discovery rule. See DIA, 2006 WL 3392733, at *13-*14. The discovery rule dictates that a cause of action accrues when a potential claimant discovers, or should have discovered, the injury that forms the basis of his claim. Romero, 404 F.3d at 222. As DIA argues, it is easy to

imagine a situation where an individual with a disability relocates to Philadelphia many years from now and attempts to use the 15th Street or City Hall Courtyard for the first time. A court might fairly conclude that this individual neither discovered, nor, having moved from some distant locale, should have discovered, the 217 inaccessibility of these stations until his arrival there.[16] Perhaps recognizing this danger, *217 Congress rejected a variable accrual date[17] in favor of a bright-line rule: § 12147(a) claims accrues "upon the completion of ... alterations." We find nothing "implausible," much less imprudent, about this decision. DIA, 2006 WL 3392733, at * 13
To the contrary, we find that Congress struck a wise balance between the plaintiff-friendly accrual rule just described and the defendant-friendly rule advanced by SEPTA. If § 12147(a) dictated that claims accrued during the planning stages of a project as SEPTA suggests, potential claimants would be encouraged to sue early and often, and public entities would have little opportunity to address accessibility concerns informally before being hailed into federal court. See Franconia Assoc. v. United States, 536 U.S. 129, 146-47, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002). This result would be antithetical to Congress's explicit directive that ADA claims be resolved whenever appropriate through "alternative means of dispute resolution." 42 U.S.C. § 12212.
SEPTA's proffered rule also encourages claimants to bring unripe lawsuits that rely on "contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998). Here, for example, SEPTA could have decided to install elevators before completing its renovations, thus making DIA's ADA and RA claims unnecessary.
Third, the facts of this case belie the District Court's suggestion that applying the discovery rule to § 12147(a) will assure that accessibility concerns will be addressed "well prior to completion of the work." DIA, 2006 WL 3392733, at *13. In fact, under the District Court's accrual theory, DIA could have filed a timely claim after SEPTA completed the 15th Street Station renovations. The District Court concluded that DIA had notice of SEPTA's allegedly injurious alterations to the 15th Street Courtyard "no later than November 1, 2000." DIA, 2006 WL 3392733, at * 14. Accepting the District Court's conclusion that DIA's cause of action accrued on this date, DIA would have had until November 1, 2002 to bring suit. SEPTA completed construction on the 15th Street Courtyard on August 8, 2002, three months before November 1, 2002. Thus, it is apparent that the rule of law established by the District Court is ineffectual in preventing cases from being brought after construction is completed.
In sum, although we recognize the District Court's concerns about the inefficiency of requiring public entities to address accessibility deficiencies after the expenditure of substantial resources, that is the "natural effec[t] of the choice Congress has made" when it included the phrase "upon the completion of such alterations" in the statute. Ricks, 449 U.S. at 260 n. 11, 101 S.Ct. 498 (citation omitted). We are bound by this choice.
V.
218 It is undisputed that DIA's § 12147(a) claims were timely if the statute of limitations *218 began to run from the date the alterations to the 15th Street and City Hall Stations were completed. See App'x 159, 180 (15th Street Courtyard project completed on August 8, 2002); App'x 2 (Complaint regarding 15th Street Courtyard filed on March 14, 2003); App'x 164, 188, 320 (City Hall Courtyard project completed in August 2003); App'x 11 (Complaint regarding City Hall Courtyard filed on February 15, 2005). Because we have so held, we reverse the District Court's grant of summary judgment in favor of SEPTA and remand for further proceedings consistent with the opinion.
[1] The parties dispute whether the 15th Street Courtyard is an "entrance" to the Market-Frankford Station or to the Suburban Station. According to SEPTA, "in order to reach the 15th Street Market-Frankford Station, an individual" must first enter "the Suburban Station Transit Facility at the 15th Street Courtyard" and then "travel south in the 15th Street corridor, exit Suburban Station, and travel over underground transit lines before entering the 15th Street Market-Frankford Station." Regardless whether it is technically labeled an "entrance," the 15th Street Courtyard undisputedly provides access to the Market-Frankford Station. Accordingly, at this stage of the litigation, we accept DIA's characterization of the 15th Street Courtyard as an "entrance" to the Market-Frankford

Station. Michael Foods, 498 F.3d at 208, 212. The District Court may take up this nuance and determine its relevance to § 12147(a) liability on remand.
[2] It is unclear to what building permit this statement refers as the City did not issue a permit for the 15th Street Courtyard project until mid-February 2001. App'x 216.
[3] The City Hall project is discussed in Part I.B, infra.
[4] Although the parties stipulated DIA's allegations of the DIA-SEPTA-City agreement out of the litigation, the stipulation only precludes DIA "from presenting any claim that Defendant SEPTA allegedly agreed to construct elevators at City Hall in lieu of construction of an elevator at the northwest corner of 15th and Market Streets." App'x 136 (emphasis added). Here, DIA raises no "claim" based on the alleged agreement. See Disabled in Action of Pa. v. Southeastern Pa. Transp. Auth., No. 03-CV-1577, 2006 WL 3392733, at *16 (E.D.Pa. Nov.17, 2006) (hereinafter DIA). Rather, DIA proffers the agreement as an explanation for its decision not to file suit before construction began on the 15th Street Station entrance.
[5] Gold was confident that he could rely on the assurances of Egan and Russo because of their long professional relationship, and DIA Executive Director Nancy Salandra was content to wait and see if "[SEPTA] would do the right thing."
[6] The foregoing account parallels the allegations in DIA's Second and Third Amended Complaints with one exception. The Complaints state that the negotiations among Gold, SEPTA, and the City occurred "[i]n 2000 while the 15th and Market Street entrance was in construction." App'x 111, 119. Construction on the entrance did not commence until February 2001, however. App'x 212 (SEPTA's Capital Project Progress Report noting that a " [p]re-construction meeting" regarding the "15th Street Entrance" was held on February 5, 2001) (emphases added); App'x 216. Because we must resolve such factual discrepancies in the light most favorable to DIA, we assume that construction had not commenced when the alleged deal among DIA, SEPTA, and the City was brokered. Michael Foods, 498 F.3d at 208, 212.
[7] In the pantheon of misused metaphors, "hoist with his own petard" may be preeminent. A "petard" is a small bomb used to break down doors, but the word was derived from the Middle French "peter," meaning "to break wind." See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1689 (1993). It is no wonder the word found favor with the master of the double entendre. See WILLIAM SHAKESPEARE, HAMLET, Act III, Scene 4 ("For `tis the sport to have the engineer / Hoist with his own petard").
[8] The parties dispute whether this escalator is an exit from the City Hall Station platform or from the City Hall Station mezzanine, a concourse one level above the platform. DIA asserts that the escalator "serves as an exit for patrons disembarking from the Broad Street Subway City Hall Station and pedestrians traversing the concourse." SEPTA admits that the escalator "serves as an exit for pedestrians traversing the concourse" but denies that it is "an exit for patrons disembarking from City Hall Station." Apparently, the City Hall Courtyard escalator does not extend beyond the mezzanine level so that passengers exiting onto the City Hall Station platform must take another escalator to the mezzanine level, then board the City Hall Courtyard escalator to reach street level. At this stage of the proceedings, we reject SEPTA's hyper-technical definition of "exit." Michael Foods, 498 F.3d at 208, 212. The District Court may consider the relevance, if any, of this dispute on remand.
[9] Because the District Court dismissed DIA's § 12147(a) claims as barred by the statute of limitations, it did not reach the vigorously disputed question of whether SEPTA's renovations constituted "alterations" within the meaning of the ADA. We leave this question for the District Court on remand.
[10] The District Court also dismissed DIA's "key station" claims, holding that § 12147(b) does not create a private right of action by which individuals may enforce Department of Transportation regulations designating "key stations." Id. at *29. This decision is not challenged on appeal.
[11] Because the procedures, rights, and remedies provided by Section 227 of the ADA are identical to those provided by Section 504 of the RA, see 42 U.S.C. §§ 12133 and 12147(a), we will generally refer only to the ADA with the understanding that both the ADA and the RA are implicated. See Doe v. County of Centre, 242 F.3d 437, 446 (3d Cir.2001); see also McDonald v. Commw. of Pa., 62 F.3d 92, 95 (3d Cir.1995) ("Whether suit is filed

under the Rehabilitation Act or under the [Americans With] Disabilities Act, the substantive standards for determining liability are the same.").
[12] The Supreme Court has not adopted the "discovery accrual rule" as its own, Andrews, 534 U.S. at 27, 122 S.Ct. 441 (internal citation omitted), and Justice Scalia has criticized the rule as "bad wine of recent vintage." Id. at 37, 122 S.Ct. 441 (Scalia, J., concurring).
[13] The "rule of the last antecedent" is a principle of statutory interpretation under which "a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (emphasis added). This rule does not help SEPTA because the statutory phrase immediately preceding "upon the completion of such alterations" is "including individuals who use wheelchairs." To be precise, SEPTA is arguing for a rule of the second-to-last antecedent 0907 a far more aspirational proposition.
[14] We nevertheless question how plans can "ensure" certain results, for it is axiomatic that even the best laid plans of mice and men often go awry. See, e.g., Sykes, 833 F.2d at 1115; Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 986 (1st Cir.1988); see generally Harris v. N.Y. State Dept. of Health, 202 F.Supp.2d 143, 155 (S.D.N.Y.2002) ("[A]s is common wisdom, even the best laid plans are bound to contain inherent flaws, and 0907 in the course of their evolution from idea to reality, from rudiments to perfected model 0907 to encounter operational and developmental difficulties, and even to be tested by purposeful hindering or corruption of their effective functioning.").
[15] See, e.g., DIA, 2006 WL 3392733, at *12 (referring to "SEPTA's planned renovations") (emphasis in original); id. (formulating the question presented as "when, in a suit under the ADA, a discriminatory action is deemed to have occurred, where the alleged discriminatory action is the violation of a statutory obligation to include an accommodation for disabled individuals in planning and completing a construction project") (emphasis added); id. at *14 (noting importance of SEPTA's intention to "proceed with the planned construction at the 15th and Market Street Courtyard without installing an elevator") (emphasis added).
[16] Although we do not decide this question, we would hesitate to apply the discovery rule in such a manner. The discovery rule originated as an equitable doctrine to extend the period during which victims of latent injuries could seek recovery. Andrews, 534 U.S. at 27, 122 S.Ct. 441 (noting that the "cry for [the discovery] rule is loudest" in "latent disease and medical malpractice" cases); Oshiver, 38 F.3d at 1386 n. 5 (noting that "the discovery rule's origins are in products liability and medical malpractice cases"). We find nothing latent about the injuries defined in § 12147(a) because the fact that newly renovated subway stations do not include elevators should be readily apparent to any reasonably diligent potential plaintiff.
[17] As further evidence of the indeterminate nature of SEPTA's interpretation of § 12147(a), SEPTA's counsel failed at oral argument to identify a point during the planning phases of the 15th Street and City Hall projects (e.g. upon receipt of funding, approval of blueprints, or letting of contracts) at which it would have been reasonable to conclude that DIA should have discovered its alleged injuries.
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