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