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April 21, 2004.

W.G. NICHOLS, INC., Plaintiff

The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge

Memorandum and Order

Plaintiff W.G. Nichols, Inc. ("Nichols") brings this action against Joseph D. and Michele A. Ferguson, ("the Fergusons"), alleging breach of lease agreement, negligence per se, tortious interference with prospective contractual relations, and constructive eviction. Underpinning each of these claims is plaintiff's allegation that defendants' failure to install an elevator at 1020 Andrews Drive, West Chester, Pennsylvania, constituted a violation of both the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Pennsylvania Physically Handicapped Act ("PPHA"), Act of Sept. 1, 1965, P.L. 459 as amended, 71 P.S. § 1455.1 et seq. The relevant facts are undisputed, and both parties have moved for summary judgment. For the reasons detailed below, I will grant defendants' motion for summary judgment and deny plaintiff's motion for partial summary judgment. I. Facts

The facts of this case are familiar to the court and have been rehearsed at length twice before. See W. G. Nichols, Inc. v. Ferguson, 2002 WL 1335118 (E.D. Pa. June 7, 2002) (granting summary judgment for defendants) (Nichols I); W. G. Nichols, Inc. v. Ferguson, 2003 WL 22158794 (E.D. Pa. Sept. 18, 2003) (denying defendants' motion to dismiss) (Nichols II). Because neither party alleges that the facts material to this dispute have changed, this court sees no need to recite the details of the parties' business transaction yet again. For the purposes of resolving the parties' motions for summary judgment, a brief recitation of the relevant facts will suffice.

  On July 16, 1997, plaintiff — a corporation engaged in the publishing business — entered into an agreement with defendants to lease from them a significant portion of 1020 Andrews Drive, a facility conceived and constructed by defendants over the course of the early 1990s.*fn1 See Lease Agreement, attached to Pl.'s Mot. Summ. J. at Ex. 2 ("Lease"). Plaintiff's lease covered the entire second floor of the building, consisting of 6,624 square feet, to be used as offices; 1,400 square feet of a garage bay, to be used as a photo studio; and a triangular office located adjacent to the garage bay, also to be used as a photo studio. See Addendum to Office Lease Agreement ¶ 1. The lease was scheduled to run through August 14, 2002, however plaintiff vacated the facility in April or May, 2000, when — in plaintiffs view — the absence of an elevator connecting the first and second floor began to pose problems for certain disabled employees.*fn2 Pl.'s Mot. Summ. ¶¶, 10-16.

  Because this court's analysis hinges upon the precise number of "stories" housed by the Andrews Drive facility, it is necessary to go into some detail concerning the undisputed layout and dimensions of the building.*fn3 The building located at 1020 Andrews Drive, which has a footprint measuring 19,168 square feet, contains both offices and a warehouse. See Expert Report of Pl.'s Expert Gray Smith, Pl.'s Mot. Summ. J. Ex. 9, at 5 ("Pl.'s Expert Report"). The building is roughly the shape of a triangle, with one side of the triangle facing — and running parallel to — Andrews Drive. Pl.'s Mot. Summ. J. Ex. 6. This side of the building — which I will refer to as the front, because it faces the street and contains the main entrance — houses two floors of office buildings. See id; see also Defs.' Mot. Summ. J. Ex. F. From the vantage point of Andrews Drive, the building appears to be a standard two-level office building with a canopied entrance, two rows of large, three-pane windows running the length of the front of the structure, a flat, level roof, and a small parking lot situated between the building's main entrance and the road. See Defs.' Mot. Summ. J. Ex. F.

  Upon entering the building through the main door, one enters a two-story lobby with high ceilings, a peaked roof, skylights, and a large staircase. See id.; see also Pl.'s Mot. Summ. J. Ex. 6; Pl.'s Expert Report at 5-6. Those offices located on the lower floor of the building are accessed through a door at the rear of the lobby, while the offices on the second floor can be reached via the lobby staircase. Pl.'s Expert Report at 5-6. Each floor's ceiling height, according to the building's architect, is approximately 10-11 feet, a standard height for this type of office building. See Olsen Dep. at 33-34.

  In addition to that portion of the building which houses the two levels of offices, the building has a second section which serves as a warehouse. The warehouse comprises that area of the triangular shape that does not overlook Andrews Drive. While it is difficult to describe the layout of the building with architectural precision, for the purposes of this opinion it is sufficient to note that the warehouse lies directly behind — from the perspective of an observer outside the building, facing the main entrance — the rows of offices which face Andrews Drive. See Pl.'s Mot. Summ. J. Ex. 6. The warehouse floor lies approximately five feet above that of the first floor of offices, while the warehouse roof is even with the roof of the office building, creating a split-level type of structure. See Olsen Dep. at 33; Ferguson Dep. at 73. At no spot on the building's footprint are there three floors stacked vertically atop one another.*fn4 In the front of the building there are two stories, while the warehouse, in the rear, contains one level. There is direct access to the warehouse level from the facility's rear entrance, and it can also be accessed by way of stairs, from within the office building. See Olsen Dep. at 65-66.

  These two sections of the Andrews Drive facility were constructed to serve two separate purposes. The rear warehouse was an industrial area which included open garage bays and was initially used for trucking. See Olsen Dep. at 32-33. Because the warehouse was used for different purposes, it was built — from an architectural standpoint — as a separate building. See id. at 49, 52-53. The warehouse level required a different fire rating, fire locks, a demising wall, and different stairs than the offices. See id. at 49, 59, 61, 50.

  A portion of the warehouse, however, had been set aside for maintenance offices, assembly areas, and a shipping counter. See id. at 32; Ferguson Dep. at 75. When plaintiff decided to lease the second story office space, it "fit-out" a portion of that warehouse space for plaintiff to use as a photography studio. See Ferguson Dep. at 74-75 ("Q: Now, there's a portion of that warehouse space that was fitted for office areas, correct? A: Yes. Q: Describe that for me, if you will. A: Well, that had nothing to do with me. That was Nichols. Nichols did that fit — out on their own. The ran out of space and they converted that to office space."); Van Dalen Dep. at 110-11 (attached to Pl.'s Mot. Summ. J. as Ex. 10).

  Also contained within the Andrews Drive facility is an elevator shaft. Pl.'s Mot. Summ. J. ¶ 7. The elevator shaft does not contain a functioning elevator, as the actual elevator cab and all of the accompanying equipment necessary to operate it were never installed. Id. Defendants' architect testified that an elevator was not needed at the time of construction, but the shaft was nonetheless installed "for future flexibility or present flexibility." Olsen Dep. at 41; see also id. at 38-42 (testimony by architect Olsen that installation of an elevator shaft is less expensive "when you're building brand new" than it would be to install an entire elevator at a later date, and that installing the elevator shaft was a way to give defendants the flexibility to hire employees with disabilities or rent to others). If installed, the elevator would have the capacity to make stops on the first and second office floors, as well as an intermediate stop at the warehouse level. See id. at 33.

  II. Analysis

 A. Legal Standard

  Summary judgment is proper "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). This court may not resolve disputed factual issues, but rather should determine whether there are genuine, material factual issues that require a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," however, there is "no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted). B. ADA Elevator Exemption


  The ADA prohibits discrimination against individuals with disabilities.*fn5 42 U.S.C. § 12182(a). To this end, the Act requires commercial facilities to be designed, constructed, and altered in accordance with the specifications set forth by the Americans with Disabilities Act Accessibility Guidelines*fn6 ("ADAAG"). See 28 C.F.R. § 36.101; id. at § 36.406. The failure to install elevators in most newly-constructed or altered buildings, for example, constitutes a violation of the ADA. 42 U.S.C. § 12183(a). With respect to both new construction and alterations, however, an elevator is not required in buildings that have fewer than three stories. Id. at § 12183(b); see also 28 C.F.R. § 36.404(a) (alterations); id. at § 36.401(d)(2) (new construction). As a result, defendants must install an elevator in 1020 Andrews Drive only if it is a three-story building.*fn7

  The ADAAG define "story" as follows:
That portion of a building included between the upper surface of a floor and the upper surface of the floor or roof next above. If such portion of a building does not include occupiable space, it is not considered a story for purposes of these guidelines. There may be more than one floor level within a story as in the case of a mezzanine or mezzanines.
28 C.F.R. pt. 36, app. A § 3.5 (emphasis added).; see also 59 Fed. Reg. 31676, 31745. A mezzanine, then, is defined in the same section as:
That portion of a story which is an intermediate floor level placed within the story and having occupiable space above and below its floor.
28 C.F.R. pt. 36, app. A § 3.5; see also 59 Fed. Reg. 31676, 31745.

  It is undisputed that the two office levels in the front portion of the Andrews Drive facility are separate stories. The building, therefore, has at least two stories. Plaintiff contends that the warehouse is also a story, resulting in a three-story building. Defendants, conversely, argue that the warehouse — which is situated on an intermediate level — is a separate building and thus cannot constitute a third story.

  The definition of "story" provided by the ADAAG is difficult to apply to the facts before us because of its breadth. Under the ADAAG, any occupiable space between a floor and roof constitutes a story. At the same time, the scope of a "story" is limited by the potential for an intermediate level, which — assuming the presence of both a floor and a roof — would itself also be a story. In addition to the difficulty posed by the definitions themselves, very few courts have had occasion to consider whether a given floor is a "story," as opposed to a "mezzanine" or undefined intermediate level. In fact, I am aware of only one court to have considered the issue.

  In Laird v. Redwood Trust LLC, a night club patron who was confined to a wheelchair sought to require the installation of an elevator in the club pursuant to the ADA. 240 F. Supp.2d 423 (D. Md. 2003). In Laird, the Redwood Trust night club had three levels: a basement; a ground floor with a dance floor and sushi bar; and a third level with a large opening in the middle of the floor enabling patrons to look down upon the dance floor below. Id. at 424. This third level contained a DJ booth, two lounge areas, a bar, and restrooms. Id. The plaintiff in Laird, who could not use stairs, argued that the club was required to install an elevator to service the third level. Id. The court, however, disagreed, finding instead that the third level constituted a mezzanine rather than a story. Id. at 426.

  Noting the sparse authority and imprecise definitions provided by the ADAAG, the Laird court undertook a functional analysis of each floor. Because the third level had "relatively little functional space in comparison with the floor below and offer[ed] the same services as the floor below," the court held that the third level was best characterized as a mezzanine, rather than a story. Id. at 425. Noting that the third floor provided a social experience similar to that of the ground floor, the court emphasized the need to implement "the ADA's goal of guaranteeing individuals with disabilities access to places of public accommodation so that they may participate in mainstream American social life." Id. The Laird court also pointed out that the third level — while comprising 43% of the combined floor space available to night club patrons — nevertheless offered relatively little "functional space" due to its architectural design. Id. at 425-26. In addition to its functional analysis, the court in Laird also offered a linguistic interpretation of the ADAAG definitions. In response to plaintiff's contention that the ADAAG's definition of "mezzanine" requires an intermediate level to be placed between two levels, the court concluded that the word "its" in the prepositional phrase "below its floor" refers "to the phrase `an intermediate floor level placed within the story.'" The court continued:
This reading comports with the common understanding that there is `occupiable space' above and below the floor of a mezzanine. Moreover, under plaintiffs reading a mezzanine could never be located on the top floor of any building. There is no sound reason, in law or in policy, why that should be so.
Id. at 425 n.4. Because the third level of the club offered no unique services, provided relatively little functional space, and created occupiable space above and below its floor, the court found the third level to be a mezzanine and not a story. Id. at 426. Accordingly, the three levels did not amount to three stories, and defendant was not required to install an elevator. The court repeatedly emphasized the "pragmatic" nature of its approach, suggesting that the determination of whether a given structure requires an elevator involves more than simple linguistics.

  In this case, defendants do not contend that the warehouse is a mezzanine level. Rather, they contend simply that the warehouse is a separate building such that it does not constitute a third "story" of the Andrews Drive facility.

  The definitions provided by the ADAAG are obviously not comprehensive enough to encompass each and every manifestation of an architect's imagination. Rather, they provide basic guidance so that courts, like this one, may ensure that the goals of the ADA are achieved. In this case, the warehouse attached to the Andrews Drive facility does not fall neatly within the definitional parameters of either "story" or "mezzanine." The warehouse is a separate structure, governed by separate fire codes and safety regulations, yet attached to an office building that faces the road. It serves a wholly separate function than do the offices. Were this court to adopt the reasoning of the Laird court, this "separate function" could render the warehouse its own "story." The functional analysis performed in Laird, however, was partially dependent upon the fact that the night club in that case was comprised of three levels, stacked one upon the next. It seems to have been taken for granted, therefore, that elevator access to the third level would be necessary if disabled individuals were to ...

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