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KINNEY v. YERUSALIM

February 2, 1993

ELIZABETH KINNEY, et al.
v.
HOWARD YERUSALIM, et al.



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 Plaintiffs, disabled individuals who reside and work in Philadelphia, have filed this class action against Howard Yerusalim, Secretary of the Pennsylvania Department of Transportation (PennDOT), and Alexander Hoskins, Commissioner of the Streets Department of the City of Philadelphia ("City"), under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. *fn1" Plaintiffs seek to compel the City to install "curb ramps" or "other sloped areas" on all streets which the City has resurfaced since January 26, 1992, the effective date of the ADA. Before the Court are the parties' cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.

 Rule 56(c) provides for the entry of summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." See, Celotex Corporation v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In 1992, Congress passed the ADA to address the problem of discrimination against persons with disabilities. Specifically, the ADA prohibits discrimination in employment (Title I), in public services and public transportation (Title II), in public accommodations (Title III), and in telecommunications (Title IV). Title II of the ADA, 42 U.S.C. § 12131 et seq., which is the subject of this dispute, provides:

 
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

 42 U.S.C. § 12132. Rather than outline the specific obligations of public entities under this section, the ADA directed the Department of Justice ("DOJ") to promulgate regulations consistent with the anti-discrimination provisions of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"), and the regulations promulgated thereunder by the DOJ. 42 U.S.C. § 12134. The Rehabilitation Act prohibits discrimination against handicapped individuals by any program receiving public funds.

 The removal of architectural barriers to the disabled, and particularly the installation of curb ramps or slopes, was a major concern of Congress in passing the ADA. In the ADA's statement of purpose, Congress specifically identified the "discriminatory effects of architectural . . . barriers . . ." as one of the evils which the ADA was intended to address. 42 U.S.C. § 12101. To this end, the DOJ in its regulations established a scheme intended ultimately to create a society providing physical accessibility to persons with disabilities. The regulations under Title II attempt to accomplish this goal by means of a two-tiered process which distinguishes between a public entity's responsibilities concerning "existing facilities" on the one hand, and "new construction or alterations" on the other.

 With respect to existing facilities, public entities are not required to modify each facility to provide for access by individuals with disabilities, but must operate all programs, services and activities in a manner such that, when viewed in its entirety, each service or program is "readily accessible to and usable by individuals with disabilities . . ." 28 C.F.R. § 35.150(a). Furthermore, this section provides an undue burden defense, stating that a public entity is not required "to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.150(a)(3).

 In contrast, the regulations are more demanding with respect to new construction and alterations. They require that when the entity undertakes to engage in new construction or to make alterations to existing facilities it must take that opportunity to make its facilities accessible. 28 C.F.R.

 § 35.151 states:

 
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.
 
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable ...

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