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McCree v. Southeastern Pennsylvania Transportation Authority

January 22, 2009


The opinion of the court was delivered by: Surrick, J.


Presently before the Court are Defendant's Motion for Summary Judgment (Doc. No. 10), and Plaintiff's Cross Motion to Amend Complaint (Doc. No. 11). For the following reasons, Defendant's Motion will be granted, and Plaintiff's Motion will be denied.


The Southeastern Pennsylvania Transportation Authority ("Defendant" or "SEPTA") is a municipal authority of the Commonwealth of Pennsylvania that provides public transportation services to the Philadelphia Metropolitan Area. SEPTA services are provided through its bus, trolley, subway, and regional railroad systems. On August 16, 2005, at an intersection in South Philadelphia, Marlene McCree ("Plaintiff") attempted to board one of Defendant's buses. (Pl.'s Dep. at 22.) Plaintiff was riding in a motorized scooter as a result of recent foot surgery. (Id. at 8, 23-24, 27-28.) The bus driver therefore deployed a flip-down ramp to the street-level onto which Plaintiff could drive her motorized scooter and board the bus. (Id. at 30, 32; Hickerson Dep. at 8.) Plaintiff proceeded to drive up the ramp, facing forward and "moving slow," when she noticed a "lump" or "hump" in the ramp that she "couldn't get past" to enter the bus. (Pl.'s Dep. at 28, 31-32, 34; see also Pl.'s Interrog. ¶ 6(d) ("There was a lump in the ramp of the SEPTA vehicle.")) The bus driver told her to "go back and come back in" and to "come back in faster" so that the wheels of Plaintiff's motorized scooter could clear the hump. (Pl.'s Dep. at 31-32, 34.) While Plaintiff was backing up the motorized scooter and situated halfway down the ramp, Plaintiff asked the bus driver if she "was okay to go back," and the bus driver answered in the affirmative. (Id. at 33; see also Pl.'s Interrog. ¶ 7(e) ("I asked the driver was I okay to back up[.] He said yes[.]")) Plaintiff's motorized scooter then fell off the side of the ramp, and Plaintiff and the scooter landed on the street.*fn2 (Pl.'s Dep. at 33, 36.) At the time of Plaintiff's fall, the bus was stopped and the ramp was motionless. (Id. at 41-42.) The bus did not move in any way to cause Plaintiff to fall from the ramp. (Id. at 42.) Plaintiff does not know what caused her to fall. (Id. at 33.) The bus driver testified that Plaintiff fell because one of the wheels of Plaintiff's motorized scooter hit the side of the ramp as she was backing up. (Hickerson Dep. at 29.) Plaintiff was injured in the fall. She was taken to the hospital emergency room, treated, and released. (Id. at 37; see also Pl.'s Interrog. ¶ 15(a).)


On April 15, 2007, Plaintiff filed this lawsuit in the Court of Common Pleas of Philadelphia County. (See Doc. No. 10, Ex. A (Compl.)) In her Complaint, Plaintiff alleges that:

The negligence of [Defendant] consisted of but was not limited to the following:

a. Failure to properly train . . . employees in the proper means of assisting handicapped individuals in allowing them to enter or exit the vehicle.

b. Failure to properly maintain the vehicle and handicapped equipment.

c. Failure to properly aid [Plaintiff] in entering the vehicle.

d. Allowing [Defendant's] driver to sit on the bus and render no assistance to [Plaintiff] while attempting to enter the vehicle;

e. Failure to use due care. (Compl. ¶ 11.) On November 16, 2007, at the conclusion of Plaintiff's deposition, Plaintiff's counsel handed Defense counsel a copy of a federal regulation, 49 C.F.R. § 37.165 (2002),*fn3 that was promulgated under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (See Doc. No. 10 ¶ 8; Doc. No. 11 ¶ 8.) Plaintiff's counsel told Defense counsel that it was Plaintiff's position that Defendant violated the federal regulation. (Id.) On November 21, 2007, Defendant filed a Notice of Removal in this Court pursuant to 28 U.S.C. § 1446(b) (2008). The statute provides, in pertinent part, that a notice of removal may be filed "within thirty days after receipt by the defendant, through service of otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . ." (emphasis added). 28 U.S.C. § 1446(b). Defendant removed the action to this Court asserting that the federal regulation constituted "other paper" under Section 1446(b). (See Doc. Nos. 1, 3.)

On December 12, 2007, Plaintiff filed a Motion to Remand arguing that the removal was untimely. (See Doc. No. 2.) Plaintiff contended that Defendant did not file the notice of removal "within thirty days" after receiving notice of a federal claim, since the Complaint placed Defendant "on notice" seven months earlier of the existence of federal claims under the ADA. (Doc. No. 2 ¶ 11.) Specifically, Plaintiff contended that "Defendant was on notice of the exact nature of Plaintiff's claim in April 2007 [when the Complaint was filed] and should have removed the case at that time" since "it is inconceivable that Defendant did not understand" that Plaintiff's lawsuit involved a disabled person's use of transportation, and "Defendant is presumed [to be] aware of the laws and statutes governing passengers with disabilities, including Federal laws." (Doc. No. 2 ¶ 7.) We denied Plaintiff's Motion to Remand, concluding that the Complaint did not put Defendant on notice of a federal question and finding that "the act of providing Defendant with a copy of the federal regulation, accompanied by an oral representation of an intent to rely upon that regulation, constituted notice of Plaintiff's intent to pursue a federal claim." (Doc. No. 7.)

Defendant filed the instant Motion seeking summary judgment on Plaintiff's negligence and ADA claims. (Doc. No. 10.) Defendant contends that Plaintiff's negligence claim is barred by the doctrine of sovereign immunity. In addition, Defendant contends that Plaintiff's federal claim under Title II of the ADA fails because there is no evidence of intentional discrimination or discriminatory animus. Plaintiff filed a Cross Motion to Amend the Complaint "to more fully plead facts in order to adequately allege a violation of the ADA." (Doc. No. 11 at 7.)


Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the nonmoving party's legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (explaining that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). "The nonmoving party . . . 'cannot rely merely upon bare assertions, conclusory allegations or suspicions' to support its claim.'" Townes v. City of Phila., No. 00-0138, 2001 WL 503400, at *2 (E.D. Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. When deciding a motion for summary judgment, we must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). However, we must not resolve factual disputes or make credibility determinations.*fn4 Siegel Transfer, 54 F.3d at 1127.


A. Plaintiff's Negligence Claims

Defendant asserts that it is entitled to summary judgment on Plaintiff's negligence claims based on the Pennsylvania Sovereign Immunity Act, 42 Pa. Cons. Stat. Ann. §§ 8521-8522. Defendant is an agency of the Commonwealth of Pennsylvania that is generally entitled to sovereign immunity under the Sovereign Immunity Act. See 74 Pa. Cons. Stat. Ann. §§ 1711(a), 1711(b)(3) (noting that SEPTA "shall exercise the public powers of the Commonwealth as an agency and instrumentality thereof" and "shall continue to enjoy sovereign and official immunity, as provided [by the statutory provisions that comprise and pertain to the Sovereign Immunity Act]"); see also Cooper v. SEPTA, 548 F.3d 296, 307 (3d Cir. 2008) (citing cases in which Pennsylvania state courts have recognized SEPTA to be a Commonwealth agency under the Sovereign Immunity Act); Jones v. SEPTA, 772 A.2d 435, 444 (Pa. 2001) (holding SEPTA immune in a tort case because the case did not fall within an exception to the Sovereign Immunity Act); Feingold v. SEPTA, 517 A.2d 1270, 1276-77 (Pa. 1986) (finding SEPTA to be "an agency of the Commonwealth" against whom "it would be inappropriate to assess punitive damages"). However, sovereign immunity under the Act "is not absolute." Bottoms v. SEPTA, 805 A.2d 47, 48 (Pa. Commw. Ct. 2002). The Act includes nine exceptions to sovereign immunity. See 42 Pa. Cons. Stat. Ann. § 8522 (listing the nine exceptions). The nine exceptions are as follows: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate highways and sidewalks; (5) potholes and other dangerous conditions on highways; (6) care, custody and control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. Cons. Stat. § 8522(b); Brown v. Blaine, 833 A.2d 1166, 1173 n.15 (Pa. Commw. Ct. 2003) (listing the nine exceptions). The exceptions "must be strictly construed and narrowly interpreted." Bufford v. Pa. Dep't of Transp., 670 A.2d 751, 753 (Pa. Commw. Ct. 1996) (citations omitted). Plaintiff specifically relies on the vehicle liability exception to sovereign immunity in bringing her negligence claim against Defendant.*fn5 (See Doc. No. 11 at 16, citing 42 Pa. Cons. Stat. § 8522(b)(1).) The exception for vehicle liability provides that:

[T]he defense of sovereign immunity shall not be raised to claims for damages caused by:

1) Vehicle liability -- The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, "motor vehicle" means any vehicle which is self-propelled and any attachment thereto[.] 42 Pa. Cons. Stat. ยง ...

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