PHILADELPHIA – A federal judge has signed a protective order surrounding confidential records for parties involved in a lawsuit that alleges the City of Philadelphia has failed to maintain its sidewalks to provide proper access to disabled citizens, in violation of the Americans with Disabilities Act of 1990.
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 ADA.
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.
“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.”
But on April 24, the City motioned to dismiss the lawsuit for failure to state a claim.
“The plain text of the Title II regulations and the applicable case law make clear that physical pedestrian structures, like sidewalks, curb ramps, and crosswalks, are facilities, as opposed to services, programs, and activities under the ADA,” according to counsel for the city.
The City further alleged the plaintiffs failed to properly claim denial of access to any service, program or activity.
“Plaintiffs’ complaint alleges generally that plaintiffs were denied access to ‘Philadelphia’s pedestrian rights of way.’ This ‘pedestrian rights of way’ is described in the complaint as ‘curb ramps, crosswalks, pedestrian crossings, and other walkways.’ Without any legal support, the complaint then states that ‘pedestrian rights of way themselves constitute a vital program, service or activity under Title II of the ADA,” per the city.
“Plaintiffs have not attempted to limit their claims to facilities that were newly constructed or altered after Jan. 26, 1992, but rather have grouped all components of the right of way, no matter how old, into an alleged ‘program.’ As detailed above, these physical structures are facilities, and do not constitute a ‘program’ in and of themselves. Without denial of access to a service, program or activity, plaintiffs’ ‘program access’ claim must be dismissed.”
On June 4, U.S. District Court Judge Harvey Bartle III authorized a stipulated protective order concerning sensitive records of parties involved in the case. Among several other provisos, it dictated such sensitive information would clearly be stamped “CONFIDENTIAL” and shall not be disclosed to any person, except:
• The requesting party and counsel, including in-house counsel;
• Employees of such counsel assigned to and necessary to assist in the litigation;
• Consultants, experts, or investigators assisting in the prosecution or defense of the matter, to the extent deemed necessary by counsel;
• A witness attending or testifying at any deposition or court proceeding in this action;
• Any outside photocopying, document storage, data processing, or graphic production services employed by any of the parties or the court.
“Furthermore, at the conclusion of litigation, confidential information and any copies thereof shall be promptly returned to the producing party or certified as destroyed or otherwise dealt with as the producing party may agree, except that the parties’ counsel shall be permitted to retain their working files on the condition that those files will remain protected,” Bartle said.
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, plus Kymberly K. Evanson and Paul J. Lawrence of Pacifica Law Group in Seattle.
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