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EASTERN PARALYZED VETERANS ASSN. OF PENNSYLVANIA

September 26, 1988

EASTERN PARALYZED VETERANS ASSOCIATION OF PENNSYLVANIA, INC., and JAMES J. PETERS
v.
DUDLEY R. SYKES, Commissioner, Philadelphia Department of Public Property, CITY OF PHILADELPHIA, and SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE

 This action focuses on the use of federal funds by the City of Philadelphia ("The City") and the Southeastern Pennsylvania Transportation Authority ("SEPTA") for the renovation of various subway stations and whether or not those renovations discriminate against the plaintiffs, an organization of wheelchair-bound individuals and its members, in violation of various federal statutes and regulations. To date, litigation has centered on section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. § 794 and 49 C.F.R. §§ 27.61 - 27.67 (1981).

 I. Procedural Background

 Following this Court's August 17, 1987, memorandum opinion, a status conference was convened. At that conference, the City's attorney informed the court and plaintiffs' counsel that SEPTA would oversee the renovations at several city-owned mass facilities. Approximately one week later, on October 2, 1987, plaintiffs filed an amended complaint which named SEPTA as an additional defendant.

 Presently before the court is defendant SEPTA's supplemental motion for summary judgment pursuant to Fed.R.Civ.P. 56. SEPTA's motion is based on the theory that the amended complaint naming SEPTA as a defendant is barred by the statute of limitations. In short, SEPTA argues that plaintiffs' claim accrued before October 2, 1985. Both sides have filed several memoranda focusing on the statute of limitations defense. After thorough consideration of the parties' arguments and the applicable standards, I have concluded that SEPTA's motion must be denied. My reasoning follows.

 II. Relevant Facts

 Before addressing the parties' positions and the applicable law, a brief review of the events surrounding SEPTA's receipt of the federal funds and the renovation of the Margaret-Orthodox station is in order.

 In October 27, 1982, SEPTA approved the Franklin Elevated Reconstruction Project ("The FERP") and placed the project on its capital budget. See Defendant's Exhibit J; Minutes of October 27, 1982 meeting. SEPTA concedes that the inclusion of FERP in its capital budget was predicated on SEPTA's receipt of federal funds for the project. In short, if there was no federal funding, the project would not have gone forward. At that time, all that existed was a non-specific proposal to renovate at some future date predicated upon the possible receipt of federal funds. All that SEPTA said was that major (but unknown) modifications to the Margaret-Orthodox station, in conjunction with additional work, were recommended and would be subject to federal funding. There was no further delineation of the work.

 On June 13, 1983, SEPTA filed an initial grant application with the Urban Mass Transportation Administration ("UMTA"). See Defendants' Exhibit L, Plaintiffs' Exhibit C. SEPTA maintains that the "section on Margaret-Orthodox makes it clear that elevators will not be part of the renovation." Defendants' Memorandum in Support of the Supplemental Motion for Summary Judgment at p.9. SEPTA's grant application for the renovation also contained an explicit assurance that SEPTA would not discriminate against individuals on the basis of their handicap in programs which received federal assistance. *fn1" Thus, SEPTA's Application for the Mass Transportation Capital Improvement Grant represented that SEPTA's renovation program, as the recipient of federal funds, would comply with 29 U.S.C.A. § 794 and 49 C.F.R. Part 27.

 On July 8, 1983, SEPTA held a public hearing to present, and to permit public debate on, the items in the capital budget for the 1984 fiscal year. A SEPTA administrator described the renovation of the Bridge-Pratt terminal and Margaret-Orthodox station. See SEPTA's Exhibit N; transcript of public hearing July 7, 1983. The administrator described the renovations in the following words: "the station buildings will be renovated and a new pedestrian crossover linking the two station platforms will be installed . . . Passenger facilities such as passenger platforms, windscreens and canopies will be installed." Id. at 194-99. The administrator did not discuss the installation of elevators.

 On September 15, 1983, the Urban Mass Transportation approved SEPTA's application for funding. See SEPTA's Exhibit O. The official grant incorporates by reference the project description contained in SEPTA's application for the grant. Pursuant to the grant, the federal government agreed to provide $ 18,267,584 or eighty percent (80%) of the funding.

 On May 1, 1984, SEPTA filed an amended application with the Urban Mass Transportation Administration which sought an additional federal grant of $ 22,500,000. See SEPTA's Exhibit P. SEPTA requested this additional grant so it could begin construction on specific aspects of the FERP, including the renovation of the Margaret-Orthodox and Allegheny stations. While the amended application incorporated by reference the project description contained in SEPTA's June, 1983, application for funds to renovate the FERP, the amended application also expressly represented that SEPTA's renovation program would not discriminate against individuals on the basis of a handicap. *fn2" See Plaintiffs' Exhibit D.

 On July 31, 1984, the Urban Mass Transportation Administration approved SEPTA's amended application. See SEPTA's Exhibit Q. This approval brought the federal financial assistance for the FERP to $ 52,073,695. Significantly, the terms of the grant ...


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