The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge
This matter is before the Court on Defendant PPL Services Corporation's Motion for Summary Judgment filed July 24, 2009. Plaintiff's Memorandum of Law in Opposition to Defendant PPL Services Corp.'s Motion for Summary Judgment was filed August 17, 2009. With leave of Court, PPL Services Corporation's Reply Brief in Support of Motion for Summary Judgment was filed September 1, 2009. Plaintiff's Clarifying Memorandum of Law in Opposition to Defendant PPL Services Corp.'s Motion for Summary Judgment was filed October 21, 2009. On October 21, 2009, the Court held a telephone conference call with counsel for both parties on the record regarding Defendant's motion. Following the conference, on October 27, 2009, Defendant PPL's Supplemental Memorandum of Law in Further Support of Motion for Summary Judgment was filed. Plaintiff Thomas C. Binder's Supplemental Memorandum of Law in Opposition to PPL's Motion for Summary Judgment was filed October 28, 2009. Having reviewed and considered the contentions of the parties as well as the argument during the telephone conference call on the record, the Court is prepared to rule on this matter.
On July 7, 2006 Plaintiff Thomas C. Binder ("Binder") initiated this matter by filing a Complaint against Defendant PPL Services Corporation ("PPL").*fn1 On September 28, 2006, Binder filed a two-count First Amended Complaint. On September 18, 2007, PPL filed its answer to the Amended Complaint.*fn2
Count I of Binder's First Amended Complaint asserts a federal law cause of action pursuant to Title I of the Americans with Disabilities Act of 1990 ("ADA")*fn3 and a pendent state law cause of action pursuant to the Pennsylvania Human Relations Act ("PHRA").*fn4 Count II asserts retaliation in violation of the ADA and the PHRA.
As noted below, the pertinent facts upon which the ruling on this summary judgment motion was based were derived from the record papers, exhibits, depositions, concessions of the parties in their briefs and during argument on the record, and Defendant PPL Services Corp.'s Statement of Material Facts filed July 24, 2009.
By Amended Rule 16 Status Conference Order of the undersigned dated March 24, 2009, any party in this litigation filing a motion for summary judgment was required to file a brief, together with "a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." See Docket No. 48. The concise statement of facts was required to be supported by citations to the record.
In addition, this Court's Status Conference Order provided that any party opposing a motion for summary judgment was required to file a brief in opposition to the motion and a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required [to be filed by the moving party], as to which it is contended that there exists a genuine issue to be tried.
See Docket No. 48. Moreover, our Status Conference Order provided that "[a]ll material facts set forth in the statement required to be served by the moving party may be taken by the Court as admitted unless controverted by the opposing party." See Docket No. 48.
In this case, PPL filed a concise statement of facts in support of its motion. However, Binder did not file any concise statement in opposition to PPL's concise statement in the manner set forth in our March 24, 2009 Order. Accordingly, the factual assertions set forth by PPL in its statement filed July 24, 2009 are deemed admitted.*fn5 See Kelvin Cryosystems, Inc. v. Lightnin, No. Civ.A. 03-881, 2004 U.S. Dist. LEXIS 23298 (E.D. Pa. November 15, 2004)(Gardner, J.); Higgins v. Hosp. Cent. Servs., No. Civ.A. 04-74, 2004 U.S. Dist. LEXIS 24907 (E.D. Pa. Dec. 9, 2004)(Gardner, J.).
Our requirement for a concise statement and a responsive concise statement is consistent with Rule 56 of the Federal Rules of Civil Procedure. In addition Rule 83(b) of the Federal Rules of Civil Procedure provides that:
A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or local district rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.
Thus, even if our requirement for a separate concise statement is not consistent with Rule 56, we gave Binder actual notice of our requirement, and he did not ...