The opinion of the court was delivered by: Pratter, J.
In a case with a long and disputatious history before this Court, the parties once again seek summary judgment. Plaintiff Disabled in Action of Pennsylvania (DIA) and Defendant Southeastern Pennsylvania Transportation Authority (SEPTA) both urge this Court to conclude the case, brought under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act of 1973 (RHA), 29 U.S.C. §§ 701, et seq., by ruling summarily in its favor. At stake are, according to DIA, the rights of handicapped individuals who wish to have equal access to Philadelphia public transit, or, according to SEPTA, the fruitless expenditure of scarce resources.
FACTUAL AND PROCEDURAL BACKGROUND*fn1
DIA is a non-profit corporation that advocates for the civil rights of, and services for, persons with disabilities. DIA Statement of Facts ¶ 1. SEPTA is "a body corporate and politic which exercises the public powers of the Commonwealth of Pennsylvania as an agency and instrumentality thereof and which provides public transportation in various Southeastern Pennsylvania locales." SEPTA Resp. to DIA Statement of Facts ("SEPTA Resp.") ¶ 8. SEPTA operates a "vast network of fixed-route services including bus, subway, subway-elevated, regional rail, light rail, and trackless trolley, as well as customized community service." DIA Statement of Facts ¶ 9 (quoting DIA Mot. Summ. J. Ex. 3, SEPTA Fiscal Year 2006 Capital Budget, 5). Many of DIA's members use SEPTA for public transportation. Id. ¶ 2.
The Market-Frankford Elevated Subway Line is a high speed rapid rail line that runs through the City of Philadelphia. SEPTA Resp. ¶ 12. The Broad Street Subway Line runs through the City from Fern Rock Station to Pattison Avenue Station. DIA Statement of Facts ¶ 62. Both stations at issue in this case, namely, the 15th and Market Street Station on the MarketFrankford Line and the City Hall Station on the Broad Street Line, are close to one another in a geographically central location*fn2 and are interchanges for multiple SEPTA rail lines. See DIA Statement of Facts ¶¶ 17, 70; SEPTA Resp. ¶¶ 17, 70. The 15th and Market Streets Station is located underground in the vicinity of 15th Street and Market Street. DIA Statement of Facts ¶ 15; SEPTA Resp. ¶ 15. The City Hall Station is located underground in the vicinity of Broad and Market Streets. DIA Statement of Facts ¶ 56; SEPTA Resp. ¶ 56.
There are two primary means of ingress by which a pedestrian can descend from 15th and Market Streets to the concourse and subway entrances below. From the southwest side of Market Street at 15th Street, a pedestrian may utilize a stairway which leads directly to a concourse area and the Market-Frankford Line cashier booths. See SEPTA Resp. ¶ 20 ("15th Street Market-Frankford Station has its own street level open-air entrance located at the southwest corner of 15th and Market Streets in an area commonly known as 'the Clothespin.'") From the northwest side of Market Street at 15th Street, another stairway descends to the 15th Street Courtyard which, if one turns northward, leads to Suburban Station and, if one turns southward and travels about 20 feet, leads to the cashier booths for the Market-Frankford Line. See SEPTA Resp. ¶ 20 ("[I]n order to reach the 15th Street Market-Frankford Station, an individual who enters the Suburban Station Transit Facility at the 15th Street Courtyard must travel south in the 15th Street corridor, exit Suburban Station, and travel over underground transit lines before entering 15th Street Market-Frankford Station."); June 19, 2009 Tr. at 20, 32. The parties dispute whether the stairway located on the northwest side of Market Street is an entrance to the 15th Street Market-Frankford Station or an entrance to the Suburban Station transit facility. DIA Statement of Facts ¶ 20; SEPTA Resp. ¶ 20.
There are several ways to access the City Hall Station on the Broad Street Subway Line. There are two stairways, one at Dilworth Plaza at street level, on the west side of City Hall, which leads to the lower north concourse, and another at street level at the City Hall Courtyard, which leads to the lower south concourse. DIA Statement of Facts ¶ 65. There is also a single escalator that runs from the lower south concourse to the southeast portion of the City Hall Courtyard.*fn3 DIA Statement of Facts ¶ 66. From the lower south concourse under the City Hall Courtyard, a pedestrian can head east, without using any stairs, to reach the 13th Street and 11th Street Stations on the Market-Frankford Line, DIA Statement of Facts ¶ 68; SEPTA Resp. ¶ 68, and can travel east and then south, again without using any stairs, to reach the South Broad Street concourse, the Walnut-Locust Broad Street Subway Station and the Port Authority Transit Corporation (PATCO) station located at 15th and Locust Street. DIA Statement of Facts ¶ 69; SEPTA Resp. ¶ 69.
Originally, plans to replace the stairway at 15th and Market were included in a project that encompassed renovations in an area bounded by 15th, 18th, Market and Cuthbert Streets. SEPTA Statement of Facts ¶ 6; DIA Resp. ¶ 6. Ten years ago, on or about September 27, 1999, the United States Department of Commerce notified SEPTA that SEPTA and the City of Philadelphia were the recipients of an Economic Development Administration Award to partially fund a proposed project entitled "Renovation of 15th and Market Streets Headhouse at Suburban Station." SEPTA Mot. Summ. J. Ex. 54 at COP-247. The Award letter included a "project definition" stating that the project "would involve various renovations to the 15th and Market Street entrances and related areas serving the renovation of entrances to the underground train station concourse; demolition of existing facilities; the construction/installation of new stairs, landscaping, lighting, signage, finishes, canopies; and all appurtenances." Id. at COP-251. The terms of the Award required that construction commence within 18 months after receipt of the Award and that the construction period would be 29 months. Id. at COP-250. Therefore, the construction of the new stairway was put into an "accelerated phase" of the project. SEPTA Statement of Facts ¶ 21; DIA Resp. ¶ 21.
Prior to the commencement of the construction project prompted by the Award, the entrance at the northwest corner of the 15th and Market Streets consisted of a stairway that descended into the center of a courtyard and two escalators enclosed within a headhouse. DIA Statement of Facts ¶ 45; SEPTA Resp. ¶ 45.
In February 2001, SEPTA began construction to replace the concrete stairway. DIA Statement of Facts ¶ 47; SEPTA Resp. ¶ 47. When the project was concluded, the stairway was replaced and situated along the southeastern wall of the courtyard. The replacement stairway brings an ambulatory person from street level to the same point within the courtyard as did the old stairway. See DIA Statement of Facts ¶ 47; SEPTA Resp. ¶ 47. The parties agree that these stairs were replaced because, due to deterioration of the concrete, the old staircase was beyond repair. DIA Statement of Facts ¶¶ 50, 53; SEPTA Resp. ¶¶ 47, 53. The new stairway was opened to the public on August 8, 2002. DIA Statement of Facts ¶ 58; SEPTA Resp. ¶ 58. Later, as part of the Suburban Station Renovation Project, two elevators were installed that provided vertical access from street level to the Suburban Station concourse level at JFK Boulevard near 17th Street and on 16th Street between Market Street and JFK Boulevard. SEPTA Statement of Facts ¶ 16; DIA Resp. ¶ 16.
In August 2003, SEPTA completed the replacement of an escalator in the southeast corner of the City Hall Courtyard. DIA Statement of Facts ¶ 71; SEPTA Resp. ¶ 71. The parties agree that the escalator that was replaced had deteriorated and was inoperable. SEPTA asserts that it reasonably opted to replace the escalator rather than to try to repair it. DIA Statement of Facts ¶ 72; SEPTA Resp. ¶ 72. The escalator ascends from the City Hall concourse, one level above the City Hall Station boarding area, to the City Hall Courtyard. SEPTA Resp. ¶ 73.
The replacement of this escalator was part of the Escalator Replacement Program that SEPTA initiated in 1999. DIA Statement of Facts ¶ 73; SEPTA Resp. ¶ 73. Although the parties dispute the reason for doing so, SEPTA relocated the truss in the wellway for the new escalator.*fn4
DIA Statement of Facts ¶ 75, 76; SEPTA Resp. ¶¶ 75, 76. The new escalator was installed in the same wellway that the old escalator had occupied. SEPTA Resp. ¶¶ 75, 76. The headhouse of the escalator bears the words "Broad Street Subway Exit Only." See Pl.'s Ex. 44 (photograph of escalator headhouse).
In this litigation, DIA seeks declaratory and injunctive relief under the ADA and RHA that would ultimately require SEPTA to modify the Courtyard at the northwest corner of 15th and Market Street and the exit from the lower southeast concourse to the southeast portion of the City Hall courtyard to make them accessible to individuals who use wheelchairs. The procedural background of this case is fully set forth in the opinion at DIA, 2006 WL 3392733, at *8-10. In that opinion, the Court granted SEPTA's motion for summary judgment and denied DIA's motion for summary judgment. Specifically, the Court dismissed DIA's Count I on statute of limitations grounds. DIA timely appealed the Court's decision, and the Third Circuit Court of Appeals reversed the Count I portion of this Court's decision to hold that Count I was not barred by the statute of limitations. See DIA v. SEPTA, 539 F.3d 199 (3d Cir. 2008). Upon the remand of the case here, both parties again filed motions for summary judgment.*fn5
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." Fed. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id. The standards by which a court decides a summary judgment motion do not change when, as here, the parties file cross-motions. SEPTA v. Pa. Pub. Util. Comm'n, 826 F. Supp. 1506, 1512 (E.D. Pa. 1993).
B. The ADA and the Rehabilitation Act of 1973
The ADA and the Rehabilitation Act of 1973 require, as to public transportation facilities, that:
[w]ith respect to alterations of an existing facility or part thereof used in the provision of designated public transportation services that affect or could affect the usability of the facility or part thereof, it shall be considered discrimination, for purposes of section 12132 of this title and section 794 of Title 29, for a public entity to fail to make such alterations (or to ensure that the alterations are made) in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily ...