PHILADELPHIA – Plaintiffs in a lawsuit from individuals and three organizations representing persons with disabilities are seeking class action certification, over allegations that the City has failed to maintain its sidewalks to provide proper access to disabled citizens.
Liberty Resources Inc., Disabled in Action of Pennsylvania Inc., Philadelphia Adapt, Tony Brooks, Liam Dougherty, Fran Fulton and Louis Olivo first filed a complaint on Aug. 26 in the U.S. District Court for the Eastern District of Pennsylvania against the City of Philadelphia, alleging violations of the Americans with Disabilities Act.
According to the complaint, the plaintiffs allege the City has “shirked its duty” to people with disabilities residing in the city because it has failed to maintain its sidewalks.
The plaintiffs alleged the City’s sidewalks are “dilapidated, disintegrating and teeming with obstructions, making every day travel difficult and dangerous for the thousands of people with disabilities that call Philadelphia home.”
The plaintiffs alleged they sent a demand letter to the defendant on July 22 to resolve the issue, but that the City did not respond.
Shortly after the suit was filed and before defendant filed an answer or other response to the complaint, the Court ordered on Nov. 4 that the Clerk place this matter in the Civil Suspense File for 90 days, which ended Feb. 2.
The plaintiffs concluded that suspending litigation to allow for further mediation at this early juncture would “not contribute to resolution of this litigation and is not in plaintiffs’ interest”, but that they are willing to continue to engage in such discussion during litigation moving forward.
“For the above reasons, and because the suspense period has expired, plaintiffs report that this litigation is due to continue in the usual course,” U.S. District Judge Harvey Bartle III said on Feb. 20.
On April 7, the plaintiffs filed a motion to certify the lawsuit as a class action.
“U.S. Census data indicates that more than 143,000 non-institutionalized Philadelphia residents have an ambulatory difficulty and more than 49,000 non-institutionalized Philadelphians have a vision difficulty. In addition, many thousands of persons with disabilities that affect mobility likely visit Philadelphia each year for tourism, business, and education. Accordingly, joinder is highly impracticable and class treatment is appropriate,” counsel for the plaintiffs argued.
According to the plaintiffs, federal rules of civil procedure would also be satisfied by such a move.
“Plaintiffs’ complaint seeks class-wide injunctive relief to remedy the City’s discrimination against individuals with disabilities affecting mobility and certification is appropriate pursuant to Rule 23(b)(2). The claims brought in this case are precisely the type of claims that Rule 23(b)(2) was intended to cover,” the motion read, in part.
“Here, plaintiffs seek broad declaratory and injunctive relief – remediation, ongoing maintenance, and system-wide improvements in the City’s pedestrian rights of way program – on behalf of a class of all persons with disabilities or impairments that affect their mobility and who use or will use pedestrian rights of way in the City of Philadelphia. Additionally, the proposed class seeks only class-wide injunctive relief to address the alleged deficiencies and does not seek any damages. Therefore, certification of the proposed class under Rule 23(b)(2) is proper.”
In addition to the approval of motion to certify the class, appoint named plaintiffs the class representatives and appoint David Ferleger and Disability Rights Advocates as class counsel, the plaintiffs are seeking to enjoin the defendant to undertake measures to eliminate physical barriers, attorney fees and court costs.
The plaintiffs are represented by David Ferleger of David Ferleger Law Office in Jenkintown, plus Andrea Kozak-Oxnard, Michelle A. Caiola and Meredith J. Weaver of Disability Rights Advocates in New York City and Berkeley, Calif.
The defendant is represented by Diana P. Cortes, Benjamin H. Field, Eleanor N. Ewing and Sean J. McGrath, of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-03846
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com