The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.
On March 28, 2006, Plaintiffs, an entity known as Voices for Independence ("VFI") and several disabled persons, filed a class action complaint in the abovecaptioned case against the Commonwealth of Pennsylvania Department of Transportation ("PennDOT") and Allen D. Biehler, the Commonwealth's Secretary of Transportation (collectively, the "Commonwealth Defendants"). The complaint alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. ("ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. ("Rehabilitation Act"), arising from PennDOT's failure to install federally mandated curb ramps along PennDOT highways located in the cities of Erie and Meadville, Pennsylvania. On September 7, 2006, Plaintiffs filed an amended complaint joining the cities of Erie and Meadville as Defendants in the case.*fn1
Presently pending before the Court are a motion for summary judgment filed by the Commonwealth Defendants and a motion for partial summary judgment filed by the City of Meadville, Pennsylvania. Our jurisdiction is premised on 28 U.S.C. §§ 1331 and 1343(a)(3). For the reasons set forth below, Defendants' motions will be denied.
VFI is a membership organization which seeks to promote increased opportunities for the disabled to live independently throughout the Commonwealth of Pennsylvania. VFI's mission includes promoting disabled persons' access to housing, employment and recreation. The fourteen individual Plaintiffs are all disabled persons living in and/or traveling through Erie and Meadville or their surrounding areas who cannot ambulate without wheelchairs or other assistive devices. Certain of the individual Plaintiffs have sight impairments and therefore require the use of detectible warnings.
The gravamen of Plaintiffs' complaint is that, since at least January of 1992, Defendants have engaged in a continuing pattern and practice of failing to install, repair or adequately maintain curb ramps at intersections and sidewalks throughout the Erie and Meadville areas as mandated by the Rehabilitation Act and the ADA and their implementing regulations. Because of Defendants' failure, it is alleged, Plaintiffs and those persons employed or served by VFI cannot ambulate or travel safely on the streets or sidewalks in and around Erie and Meadville. Consequently, these individuals must frequently travel in the stream of traffic and along the curb until they can locate a private driveway or business to re-enter the sidewalk.
Plaintiffs' complaint asserts two separate causes of action against the Defendants for alleged violations of the ADA (Count 1) and the Rehabilitation Act (Count 2). In their complaint, Plaintiffs seek both declaratory and injunctive relief. Specifically, they request a court order directing Defendants to retrofit their intersections and sidewalks to make them readily usable and safe for disabled persons. They also seek an order directing Defendants to enact a detailed system that will ensure compliance with all federal law in the future.
On December 22, 2006, the Commonwealth Defendants and the City of Meadville entered into a court-approved settlement agreement with the Plaintiffs, pursuant to which the City of Meadville and PennDOT agreed to share responsibility for the remediation of non-compliant ramps at intersections where future road resurfacing work is to be performed.*fn2 In addition, the Defendants agreed to a schedule to retrofit those existing non-compliant ramps which should have been remediated as part of resurfacing work performed within the 2-year period predating litigation.*fn3 With respect to older, noncompliant ramps, no agreement could be reached as to whether the applicable statute of limitations would relieve the Defendants of their legal obligations to undertake remediation.
Accordingly, under the terms of the Settlement Agreement, the parties have reserved the right to file dispositive motions on the following legal question: whether claims relating solely to noncompliant curb ramps which were altered, installed, replaced or repaired after January 26, 1992 (the effective date of the ADA) but more than two years prior to the commencement of litigation are barred by any statute of limitations.*fn4
The parties have since filed their motions and briefs concerning this limited legal issue and the matter is now ripe for disposition.
Summary judgment is only appropriate if there are no genuine issues of material fact and if the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In reviewing a motion for summary judgment, we view the facts in a light most favorable to the nonmoving party, and draw all reasonable inferences in the non-movant's favor. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001); Gottshall v. Consolidated Rail Corp., 56 F.3d 530, 533 (3d Cir. 1995).
When a defendant moves for summary judgment on the basis of an affirmative defense for which it would bear the burden of proof at trial, the defendant must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. C.A.R. Transportation Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted); Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 146 (3d Cir. 1999). Thus, "the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transportation Brokerage Co., Inc., 213 F.3d at 480. Assuming the moving party meets its initial burden of proof, the non-moving party must set forth specific facts, by affidavits or otherwise, showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
Plaintiffs' ADA claim, as set forth in their first cause of action, arises under §§ 202, 226 and 227 of Title II of the Act, 42 U.S.C. §§ 12132, 12146, and 12147. Pertinently, § 12132 states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.*fn5 Such discrimination includes the "construct[ion]" of a "new facility to be used in the provision of designated public transportation services" that is not "readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." Id. at § 12146. Discrimination also occurs when "alterations" made to an existing facility fail to ensure, "to the maximum extent feasible," that "the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." Id. at § 12147.
Under the regulations promulgated pursuant to the ADA, the following provisions have relevance here:
(1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.
(2) Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways.
28 C.F.R. § 35.151(e). Precise engineering specifications for curb ramps are set forth in the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities ("ADAAG"), 28 C.F.R. Part 36, Appendix A, compliance with which is deemed to satisfy the requirements of § 35.151 and the ADA. See id. at § 35.151(c). Alternatively, the public entity may depart from the ADAAG standards "when it is clearly evident that equivalent access" is provided. Id.
Plaintiffs' second count arises under § 504 of the Rehabilitation Act which, for present purposes, is "materially identical" to the ADA. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 123 (7th Cir. 1997). See also McDonald v. Commonwealth of Pennsylvania, Department of Public Welfare, Polk Center, 62 F.3d 92, 94-95 (3d Cir. 1995). Thus, both Title II of the ADA and § 504 of the Rehabilitation Act have been construed to protect access for disabled persons to public services and the protections afforded by the two statutes are generally interpreted to be coextensive. See, e.g., Koslow v. Commonwealth of Pennsylvania, 301 F.3d 161, 166 n.3 (3d Cir. 2002) (Section 504 of the Rehabilitation Act and Title II of the ADA offer similar protections for persons with disabilities; Title II applies to all state and municipal governments, while § 504 applies to those agencies or departments receiving federal funds); Doe v. County of Centre, Pennsylvania, 242 F.3d 437, 446 (3d Cir. 2001) (protections found in the ADA and in the Rehabilitation Act are interpreted similarly; ADA is construed as granting at least as much protection as that which is provided by the regulations implementing the Rehabilitation Act).
For purposes of the instant motions it is not disputed that, since January 26, 1992 -- the effective date of the ADA -- a number of curb ramps have been installed along state roads within or around the City of Meadville, certain of which do not comply with the aforecited federal mandates. A question thus arises as to whether claims based on these noncompliant curb ramps are now time-barred where the curb ramp in question was not subject to a "triggering event" (meaning an act of new construction or alteration) within the applicable limitations period.
We begin by noting that neither the ADA nor the Rehabilitation Act contains a statute of limitations. Both sides here agree, as does this Court, that the most appropriate and analogous limitations period is the two-year period applicable to personal injury actions brought under Pennsylvania law, 42 PA. C.S.A. §5524. See Foster v. Morris, No. 05-4765, 208 Fed. Appx. 174, 2006 WL 3712949 *2 (3d Cir. Dec. 18, 2006) ("Because the ADA does not contain a statute of limitations, it too borrows the state limitations period for personal injury actions") (citation omitted). See also Disabled in Action of Pennsylvania v. Southeastern Pennsylvania Transportation Authority, No. 03-cv-1577, 2006 WL 3392733 at *11 (E.D. Pa. Nov. 17, 2006); Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 485 (E.D. Pa. 2004); Barclay v. Amtrak, 343 F. Supp. 2d 429, 433 (E.D. Pa. 2004); Howard v. Mendez, 304 F. Supp. 2d 632, 635 (M.D. Pa. 2004); Saylor v. Ridge, 989 F. Supp. 680, 686 (E.D. Pa. 1998). As this action was commenced against PennDOT on March 28, 2006, it is ...