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September 13, 2001


The opinion of the court was delivered by: Lee, District Judge.


Fifteen month old Darrin ("D.J.") Majocha suffered from chronic ear infections in 1999. D.J.'s pediatrician referred his parents to Dr. Joseph Turner, M.D., a preeminent specialist at the Pittsburgh Ear, Nose and Throat Associates ("ENT"), to discuss the possibility of surgery to insert tubes in D.J.'s ears. On or about August 25, 1999, Anna Majocha called ENT to make an appointment for her and her husband, Darrin Majocha, to bring D.J. in for an evaluation with Dr. Turner. Darrin Majocha is deaf and has communicated primarily by use of American Sign Language ("ASL") all of his life, and his family has an extensive history of severe hearing impairment.

The parties agree that: (i) an appointment with Dr. Turner was scheduled for September 3, 1999; (ii) Mrs. Majocha informed the receptionist and the office manager, Ms. Joan Hornbake, about Mr. Majocha's hearing impairment; (iii) Mrs. Majocha requested Dr. Turner's office supply a qualified ASL interpreter during the consultation; (iv) Ms. Hornbake indicated that Dr. Turner preferred to communicate with Darrin Majocha by written communication during the office visit; (v) the matter was not resolved on August 25, 1999; (vi) Mrs. Majocha spoke with Ms. Hornbake again on August 27, 1999, at which time Ms. Hornbake informed Mrs. Majocha that Dr. Turner would communicate by written notes and Mrs. Majocha insisted that an ASL interpreter be provided so her husband could fully participate in the consultation and decision about treatment of their son.

The parties disagree about some of the details of these conversations, e.g., how much information Mrs. Majocha gave Ms. Hornbake about her husband's hearing impairment, whether she initially agreed to accept note taking as a substitute or simply agreed to consider it, whether Dr. Turner's staff made it clear that the consultation would be for as long as it took to complete using written communication with Mr. Majocha, whether the parties had agreed to schedule a longer appointment to accomplish communication by written notes. What is not in dispute, however, is that on August 27, 1999, Ms. Hornbake sent the following letter to Mrs. Majocha, after Dr. Turner had reviewed it:

Dear Mr. & Mrs. Majocha:

Per our telephone conversation of this afternoon, I am canceling [D.J.'s] appointment with Dr. Turner on Friday, September 3, 1999.
As indicated during the conversation, we feel we cannot meet your needs in caring for your child. Perhaps another ENT physician would better meet your needs and therefore be able to care for [DJ].
We suggest you contact the ENT department of Children's Hospital or your pediatrician for another referral.


/s/ Joan K. Hornbake Joan K. Hornbake Office Manager cc: GIL Pediatrics. . . .

Complaint, Exhibit A (hereafter, "the Letter").

Defendants have filed a motion for summary judgment (Document No. 18) setting forth a variety of reasons why this Court should grant summary judgment in their favor. After careful consideration of the motion for summary judgment, the memoranda of law in support and in opposition, and the statements of material facts in support and opposition with supporting materials attached, this Court will deny the motion for summary judgment. This is not a close decision.

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.'" Woodside v. School Dist. of Philadelphia Rd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). In following this directive, a court must take the facts in the light most favorable to the non-moving party, and must draw all reasonable inferences and resolve all doubts in that party's favor. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by `showing' — that is, pointing out to the District Court — that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). With these standards in mind, the Court will review defendants' arguments for summary judgment seriatim.

I. Defendants Complied with Title III of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 as a Matter of Law.

There is no doubt plaintiffs have offered more than adequate evidence to support their ADA and Rehabilitation Act claims, notwithstanding defendants' inexplicable assertion that there is not a "shred of evidence" to support their claims. Defendants' argument is based ...

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