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May 24, 1994

PAUL D. CONGDON, JR., et al.

The opinion of the court was delivered by: STEWART DALZELL

 Dalzell, J.

 Plaintiffs Linda Congdon and her husband Paul Congdon filed this action against defendant Walter Strine, Sr. d/b/a Media Real Estate ("Strine"), alleging handicap discrimination in violation of the Fair Housing Amendments Act, 42 U.S.C. §§ 3601-3631 ("FHAA" or "Title VIII") and the Pennsylvania Human Relations Act, 43 Pa.Con.Stat.Ann. §§ 951, et seq. ("PHRA"). Plaintiffs' complaint alleges that defendant's maintenance policies regarding the elevator in the apartment building where the Congdons live fail to take account of Mrs. Congdon's disability, and that defendant's eviction threat was in retaliation for filing complaints with governmental agencies.

 Strine has filed a motion for summary judgment. For the reasons that follow, we will grant his motion.

 The Congdons reside in an apartment at 499 W. Jefferson Street, Media Pennsylvania ("the building"), which Strine owns. Plaintiffs' Complaint ("Complaint"), P 6. The Congdons have lived in this apartment since 1983. Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Plaintiffs' Response"), Exhibit D at P 1. Their apartment is on the fourth floor and may be reached by use of the stairway or the elevator. During the first year of occupancy, the Congdons had a one-year lease; since that time their tenancy has been on a month to month basis. Plaintiffs' Response, Exhibit D at P 5. *fn1"

 Mrs. Congdon suffers from various diseases, and since 1992 has been largely confined to a wheelchair. Complaint at P 5; Plaintiffs' Response, Exhibit D at P 2. Some time before January of 1993, the building's elevator "began to experience recurring breakdowns". Pretrial Stipulation, Agreed Facts, P 3; Plaintiffs' Complaint at PP 10, 11. Because of these breakdowns, Mrs. Congdon "has used the stairs and had some physical problems that may be related to her increased activity." Agreed Facts, P 4; Complaint at P 14.

 In April of 1993, the Congdons filed a complaint with the Bureau of Consumer Protection, Office of the Attorney General, Commonwealth of Pennsylvania, describing the problems with the elevator and their alleged discriminatory effects. Agreed Facts, P 5; Complaint at P 17, Plaintiffs' Response, Exhibit D at P 6. The Congdons also filed complaints with the Delaware County Consumer Affairs Department, and on May 17, 1993, they filed a complaint with the U.S. Department of Housing and Urban Development ("HUD"), alleging a violation of the Fair Housing Act. Agreed Facts, P 14. The next day, HUD referred its complaint to the Pennsylvania Human Relations Commission. Id.

 On May 26, 1993, Strine advised the Congdons that their lease was not being renewed and that they were to vacate the premises by August 31, 1993. Id. at P 5. The Congdons did not vacate the premises by August 31, 1993. Defendant's Motion, Exhibit X at P 5. Strine took no action against them, however, and has neither taken further action to evict plaintiffs nor filed any legal proceedings against them. Id. at P 4, Defendant's Motion p. 5. Strine offered to rent to the Congdons a ground floor apartment in the same building or, alternatively, an apartment in another building he owned, Defendant's Motion, Exhibits P and R, see also Exhibit C, but the Congdons rejected both offers as unsuitable. Defendant's Motion, Exhibit R, Plaintiffs' Response, Exhibit D at P 4.

 The Congdons commenced this suit on July 30, 1993. Strine then filed a motion to dismiss, which we on February 24, 1994, granted in part, dismissing (on plaintiffs' concession) the claim alleging a violation of 42 U.S.C. § 1983. Strine now asks us to grant summary judgment in his favor on the remaining claims alleging violations of the Fair Housing Amendments Act, and of the Pennsylvania Human Relations Act.

 II. Legal Standard

 It is of course well-established that summary judgment is appropriate "if 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 and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law, id. at 248, and all inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).

 On a motion for summary judgment, the moving party bears the initial burden of identifying for the Court those portions of the record that it believes demonstrate the absence of dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To defeat summary judgment, the non-moving party "may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 Specifically, the non-moving party must produce evidence such that a reasonable juror could find for that party, Anderson, 477 U.S. at 248, and "cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. The Bell Telephone Company of Pennsylvania, 24 F.3d 508 (3d Cir., 1994), slip op. at 6. When considering how a reasonable juror would rule, the court should apply the substantive evidentiary standard -- in this instance, a preponderance of the evidence -- that the fact-finder would be required to use at trial. Id. at 252. A mere scintilla of evidence will not require the court to send the question to the fact-finder. Id. at 251 (citing Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867 (1872)).

 The parties have filed a Pretrial Stipulation which, in § 2, sets forth five paragraphs. These stipulated facts provide the necessary predicate to determine this motion, together with the other uncontroverted evidence cited in this memorandum.

 III. Legal Analysis

 The Fair Housing Amendment Act of 1988 amended the Fair Housing Act of 1968 to extend protection to people with disabilities. Pub.L. No. 100-430, 102 Stat. 1619, codified at 42 U.S.C. § 3601, et seq. The Congdons claim that Strine violated 42 U.S.C. § 3604(f) and 42 U.S.C. § 3617, which make it unlawful to discriminate in the sale or rental of housing because of a disability. It is undisputed that Mrs. Congdon is handicapped within the meaning of the statute.

 Denial of Housing under 42 U.S.C. § 3604(f)(1)

 Before we examine whether plaintiffs have made out a prima facie case under Title VIII, we must first determine whether defendant's actions implicate the FHAA. 42 U.S.C. § 3604(f)(1) provides in relevant part that it is unlawful:

to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of --
(A) that buyer or renter;
(B) a person residing in . . . that dwelling.

 This case differs from most Title VIII cases in that there was no actual denial of housing. It is undisputed that Strine continues to rent an apartment to the Congdons and that Linda Congdon has been living in the apartment since 1983. Plaintiffs' Response, Exhibit D at P 1; Defendant's Motion, Exhibit X. There is no evidence that Strine discriminated in renting to Mrs. Congdon or that she has been denied housing. The Congdons essentially claim that the threatened eviction and the refusal to provide reasonable accommodations violate § 3604(f)(1). Plaintiffs' Response, p. 6-7. Thus, we must determine whether Strine's actions fall within the ambit of the "otherwise make unavailable or deny" language of § 3604(f)(1).

 In Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir. 1993), our Court ...

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