PHILADELPHIA – A lawsuit between a wheelchair-bound Florida man and a Frankford Avenue business in Philadelphia over alleged barriers preventing him from shopping there in violation of the Americans with Disabilities Act (ADA) has been settled.
Plaintiff Owen Harty first filed a complaint on Nov. 7 in the U.S. District Court for the Eastern District of Pennsylvania against North City Development Co., alleging violation of the ADA.
The suit explained the defendant owns Shelley’s Plaza. Harty, who is a tester for civil rights monitoring of ADA compliance, claimed he “has encountered architectural barriers at the subject property which discriminate against him on the basis of his disability and have endangered his safety.”
“Plaintiff is a Florida resident, lives in Broward County, is sui juris, and qualifies as an individual with disabilities as defined by the ADA. Plaintiff is paralyzed from the waist down and is bound to ambulate in a wheelchair. Plaintiff travels frequently to the Philadelphia metropolitan area to visit his niece, attend gun shows, and maintain his business and client contacts,” the suit stated.
“Plaintiff has suffered and will continue to suffer direct and indirect injury as a result of defendant’s discrimination until defendant is compelled to comply with the requirements of the ADA. Plaintiff is deterred from, and is denied the opportunity to participate and benefit from the goods, services, privileges, advantages, facilities and accommodations at defendant’s property equal to that afforded to other individuals.”
On Feb. 10, the defendants filed an answer, denied Harty’s allegations and called upon a number of affirmative defenses to the lawsuit.
“Plaintiff’s claims are barred or limited, in whole or in part, by the ripeness doctrine. Plaintiff lacks standing to bring the claims. Defendant did not violate plaintiff’s rights under Title III of the Americans with Disabilities Act. Defendant did not violate Title III of the ADA,” the answer read, in part.
“Plaintiff’s claims are barred or limited, in whole or in part, in that the property was constructed prior to the effective date of the ADA and/or its regulations. The removal of the alleged existing architectural barriers is not readily achievable. Plaintiff is not entitled to attorneys’ fees, litigation costs or expenses under Title II of the ADA. Defendant did not violate plaintiff’s rights under federal law. Plaintiff’s claims are barred or limited, in whole or in part, by the doctrine of fundamental alteration.”
The defendant added that the plaintiff’s claims are barred or limited, in whole or in part, to the extent that plaintiff’s claims and/or relief requested cause an undue burden, that the defendant has acted in accordance with applicable federal law and not discriminated against plaintiff, not denied access to the property and not caused the plaintiff to suffer any injury or harm.
UPDATE
Counsel for all the plaintiff communicated to U.S. District Court for the Eastern District of Pennsylvania Judge Jan E. DuBois on Dec. 7 that the issues in the case had been settled, and the judge then issued his own order to that effect.
“It having been reported that the issues between the parties in the above action have been settled and upon order of the court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court, it is ordered that the above action is dismissed with prejudice, by agreement of counsel, without costs,” DuBois said.
Prior to settlement, the plaintiff sought a court order for reasonable modifications to be made at the defendants’ property and all other just relief.
The plaintiff was represented by John F. Ward of Thomas Bacon, in Wayne.
The defendant was represented by Brian R. Elias of Wisler Pearlstine in Blue Bell and Kevin P. O’Brien of Stampone Law, in Cheltenham.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05268
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com