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January 5, 2001


The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.


Presently before this Court are the cross-motions of plaintiffs Liberty Resources, Inc. ("LRI") and Consumer Connection (Document No. 9) and defendant Southeastern Pennsylvania Transportation Authority ("Septa") (Document No. 10), for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and the responses thereto. The gravamen of this law suit is plaintiffs' claim that the number and nature of trip denials issued by Septa to disabled persons constitutes a violation of Title II of the Americans with Disabilities Act of 1990, 104 Stat. 337, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U.S.C. § 794. Plaintiffs request equitable and declaratory relief. Pursuant to Federal Rule of Civil Procedure 42(b), I will bifurcate this law suit and rule today only on the issue of liability. Accordingly, upon consideration of the cross-motions for summary judgment, I will grant plaintiffs' motion with respect to liability and deny without prejudice plaintiffs' motion with respect to remedies and will deny defendant's motion.*fn1


Defendant Septa is a statecreated instrumentality that provides public transportation services to individuals in Southeastern Pennsylvania. Septa receives federal monies from the Federal Transit Administration of the United States Department of Transportation. Septa operates a fixed route public transportation system that includes bus lines and rail services and runs according to fixed schedules. In addition, pursuant to 42 U.S.C. § 12143, Septa operates a paratransit system in Philadelphia and several surrounding counties.*fn3

Plaintiff Consumer Connection has about 75-80 members who are individuals with disabilities in the Philadelphia area. Plaintiffs describe Consumer Connection as an "unincorporated association" (Pls.' Mem. of Law in Opp'n. to Def.'s Mot. for Summ. J. and Reply in Supp. of Pls.' Mot. for Summ. J. ("Pls.' Mem. II") at 4) that advocates on issues that affect individuals with disabilities, including transportation, housing, health care, and personal assistance services.

Plaintiffs filed this law suit alleging that Septa fails to provide paratransit services as mandated by Title II of the Americans with Disabilities Act of 1990 ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). (Compl. at ¶ 1.) The parties have stipulated to the data regarding the number of paratransit rides that are denied to individuals with disabilities. These denials are commonly referred to as "trip denials." The crux of the parties' dispute for the purposes of this motion is whether or not the number and nature of trip denials constitutes a violation of either the ADA or Section 504.

In Philadelphia, Septa provides paratransit services to "ADA-eligible riders." These are riders with disabilities who are eligible for paratransit services under the ADA and Section 504. See 49 C.F.R. § 37.123. In Philadelphia, Septa also voluntarily provides paratransit services through its Shared Ride Program ("SRP") to individuals who are 65 or older. Septa is not obligated by statute to provide paratransit services to SRP patrons. Of the total paratransit rides provided by Septa, 50-55% are for SRP riders and 45-50% are for ADA-eligible riders.

The paratransit system provides rides twenty-four hours per day, seven days per week. The centralized reservation system is open Monday through Friday from 7:00 a.m. to 4:00 p.m. and Saturday and Sunday from 7:30 a.m. to 4:00 p.m. Paratransit service is provided on a first-come, first-serve basis to both ADA-eligible and SRP riders. There are two types of ride requests. First, patrons can request a "standing order" which refers to a request for paratransit service that a rider needs on known and regularly repeated times on an ongoing basis. A rider need only call once for such a request. Second, patrons can request a "demand ride" which refers to all other types of trip requests. As mandated by 49 C.F.R. § 37.131(b)(2), Septa is to schedule any requested ride within a two-hour window.*fn4 The patron's request for a ride may be made anytime between one day and seven days before the date of the requested ride.

Septa owns and leases 321 vehicles to provide paratransit service in Philadelphia.*fn5 On an average day, 278 of the 321 vehicles, which are commonly referred to as "tours," are used to provide rides.*fn6 Of the remaining 43, 6 to 30 are not available due to mechanical problems or preventative maintenance.*fn7 On Saturdays, approximately 85 vehicles are used; on Sundays, approximately 67 vehicles are used.

Septa provided monthly charts detailing trip denials for the period between May 1999 and May 2000, inclusive. These charts relate only to ADA paratransit service and do not include data regarding SRP paratransit service. During this 397 day period, there were 1,050,770 rides requested.*fn8 Of these trip requests, 460,846 consisted of standing orders and 589,924 consisted of demand rides. Over this 13month period, there were 29,472 "capacity trip denials." These denials occur when an ADA-eligible paratransit rider requests a ride and Septa is unable to schedule that ride within the two-hour window because all of the available seats are taken by persons who have made prior reservations. Because standing orders are pre-arranged, a capacity trip denial can only be for a demand (i.e., non-standing) ride. The 29,472 capacity trip denials translates into on average daily rate of 74 denials. Statistically, 2.8 percent of total trip requests result in capacity trip denials and 5 percent of demand trip requests result in capacity trip denials.*fn9

During the thirteen-month period, there were 89,131 next-day trip requests, i.e., trip requests for paratransit rides that are made by ADA-eligible paratransit riders on the day before the day of the requested ride. These requests fall into the demand ride category, not the standing order category. Of these requests, 11,948, or 13.4 percent, resulted in capacity trip denials. That data means that on an average day, 30 next-day rides were denied. During this period, there were 112,334 total weekend trip requests that resulted in 8,517, or 7.6 percent, capacity trip denials. That data means that on an average weekend day, 75 rides were denied. Also during this period, there were 290,092 total peak-service hour demand requests on weekdays which netted 18,569, or 6.4 percent, of capacity trip denials. That data means that on an average day, 66 peak-hour rides were denied.

Septa stipulated to the fact that it would be able to provide more services to ADA-eligible patrons if it had additional vehicles, drivers, and funds to pay for them. Cheryl Y. Spicer ("Spicer"), Septa's Chief Operating Officer, testified at her deposition that there were no forces outside of Septa's control that caused trip denials to be issued. (Dep. Test. of Spicer at 14546.) Septa has never requested an undue burden waiver from the Department of Transportation.*fn10 Septa has never conducted a study to determine if reducing the time in which riders may make advance reservations would eliminate capacity trip denials. Nor has Septa determined how much additional funding would be needed in order to meet the full demand for paratransit service. Currently, Septa determines its budget based on the number of trips Septa actually provides. This calculation excludes trip denials.

The Federal Transit Administration ("FTA") of the United States Department of Transportation, after reviewing Septa's paratransit budget and operations in March 2000, recommended that Septa include the number of trip denials when projecting paratransit volume in calculating its budget. Septa will be adjusting its budget request in the upcoming fiscal year; however, it will continue to assume a 2 percent to 3 percent trip denial rate.*fn11 Septa has not requested additional vehicles since Fiscal Year 1997-1998, which ended on June 30, 1998.*fn12 The budget for Fiscal Year 2000-2001, which began on July 1, 2000, does not include funds to increase the total number of paratransit vehicles. Septa will replace about 60 current vehicles during Fiscal Year 2000-2001.


According to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must make its determination after considering the facts and all reasonable inferences drawn from them in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The Court may not resolve factual disputes between the parties. See Linan-Faye Constr.Co., Inc. v. Housing Auth. of Camden, 49 F.3d 915, 926-27 (3d Cir. 1995). When opposing parties file cross-motions for summary judgment, the court must consider each motion separately, and "each side must still establish a lack of genuine issues of material fact and that it is entitled to judgment as a matter of law." United States ex rel. Showell v. Philadelphia AFL-CIO Hospital Ass'n., Civ. No. 98-1916, 2000 WL 424274, at *1 (E.D.Pa. Apr. 18, 2000) (quoting Nolen v. Paul Revere Life Ins. Co., 32 F. Supp.2d 211, 213 (E.D.Pa. 1998)) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). Where, as here, parties have stipulated to all relevant facts regarding liability and the sole dispute concerns conflicting statutory interpretations, summary judgment is appropriate. See Estate of Reddert v. United States, 925 F. Supp. 261, 265 (N.J. 1996); see also, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985) ("summary judgment is proper where the facts are undisputed"); Graham v. Liberty Mutual Group, No. Civ. A. 97-4507, 1998 WL 961376, at *2 (E.D.Pa. Dec. 15, 1998).


A. Standing

An association or organization may gain standing by suing based on injuries to itself, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124-25, 71 L.Ed.2d 214 (1982); Fair Housing Council of Suburban Philadelphia v. Montgomery Newspapers, 141 F.3d 71, 75 (3d Cir. 1998) or based on injuries to its members or constituents. See Hunt v. Washington State Apple Advertising Comm'n., 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Public Interest Research Group of New Jersey v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d Cir. 1997). Defendant attacks plaintiffs' standing on both fronts.*fn13

Septa challenges plaintiffs' standing in their own right on the sole ground that plaintiffs fail to produce sufficient evidence that they have suffered an injury. In order to address the merits of this argument, I find it necessary to review the law of standing with respect to associations and groups. Article III of the United States Constitution limits federal jurisdiction to "Cases" or "Controversies." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). At an "irreducible constitutional minimum," the plaintiff must be able to demonstrate:

[First], an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result [of] the independent action of some third party not before the court. ...

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