PHILADELPHIA – A group of plaintiffs that sued the City of Philadelphia alleging it failed to maintain its sidewalks to provide proper access to disabled citizens in violation of the Americans with Disabilities Act of 1990 is pushing for judgment in the matter in order to appeal the judge’s dismissal of their case.
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 alleged the City “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 claimed they sent a demand letter to the defendant on July 22, 2019 to resolve the issue, but that the City did not respond.
In response, the City motioned to dismiss the lawsuit for failure to state a claim on April 24.
“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 July 6, Bartle sided with the City as to the requests made by the plaintiffs to effect changes in its right-of-way access for disabled citizens.
“We agree with the City that the pedestrian rights of way are facilities under the ADA and the Rehabilitation Act. The plain language of the regulations, discussed above, create a distinction between programs, services, and activities, and the facilities in which such programs, services, and activities take place,” Bartle said.
“This distinction is significant because it determines a public entity’s duties regarding accessibility. Our Court of Appeals has determined that streets and walkways are facilities under the ADA and the Rehabilitation Act. Similarly, other Courts of Appeals to address the issue have found that facilities are distinguishable from the services, programs, or activities of a public entity.”
Bartle added that “treating pedestrian rights of way as themselves a program, service, or activity would render superfluous the exception in the regulations which provide that a public entity need not make every facility accessible, and thus would contradict the clear language of the regulations.”
Bartle then granted the motion of the City to dismiss the plaintiffs’ complaint, to the extent that the plaintiffs alleged the City’s failure to maintain pedestrian rights of way itself constitutes the denial of or exclusion from a City service, program, or activity.
Moreover, Bartle dismissed the plaintiffs’ request for an injunction compelling the City to comply with self-evaluation and transition plan regulations, as there was no private cause of action mandating that to occur.
“We agree with the City…that such a request must be stricken from plaintiffs’ prayer for relief as no private claim in this regard exists,” Bartle said.
UPDATE
The plaintiffs filed a motion for entry of final judgment in the case on July 20, in order that they may begin the appeals process of Bartle’s recent decision in the case. The plaintiffs believe the decision runs contrary to Title II of the ADA, its Section 504 and their respective implementing regulations.
“Such a limited reading of applicable federal accessibility laws fails to ensure that people with disabilities can travel freely and safely wherever they intend to go and results in blocked pedestrian pathways between the City’s other recognized service, programs, or activities. This dismissal of plaintiffs’ program access claims forecloses plaintiffs from pursuing those claims and obtaining the relief available under such claims,” counsel for the plaintiffs said of Bartle’s ruling.
Counsel for the plaintiffs explained that appeal of the program access claims, different from other claims connected to the case, will “involve analysis of whether the City’s network of pedestrian rights of way constitutes a service, program, or activity under Title II and a program or activity under Section 504 such that the City must provide meaningful access thereto.”
“The program access claims would involve discovery on whether the Plaintiff class can meaningfully access the city-wide pedestrian right of way system when viewed in its entirety. It would likely involve statistical assessments of non-compliant pedestrian rights of way and analysis of the City’s policies on rectifying barriers,” the motion read, in part.
The move to clear the way for an appeal was also in the interest of judicial efficiency, the plaintiffs argued.
“The resolution of this legal issue now, rather than after a trial that determines the appropriate remedies, will also provide certainty in this case as to the appropriate remedies and it will inform others affected by this Court’s decision. A resolution by the Third Circuit would provide clarity as to the state of disability anti-discrimination law, and specifically as to the scope of a city’s obligations with respect to pedestrian rights of way,” per counsel for the plaintiffs.
Alternatively, the plaintiffs ask the Court to adopt a practical revision to ensure that discovery and possible relief, if liability is shown, are appropriately comprehensive.
The plaintiffs are represented by David Ferleger of David Ferleger Law Office in Jenkintown, plus Andrea Kozak-Oxnard, Michelle A. Caiola, Rebecca J. Sobie 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