Kinney v. Yerusalim, 93-1168

• Citation: 9 F.3d 1067
• Decision Date: 23 November 1993
• Docket Number: No. 93-1168,93-1168
• Parties: , 2 A.D. Cases 1470, 3 ADD 444, 4 NDLR P 278 Elizabeth KINNEY; Glenn Niman; Daniel C. Sullivan; Diane Fatula; Cassie James; Erik Von Schmetterling; John Gladstone; Tom Levine; Charles Homiller; Rona Schnall; Mary Barnes; Ann McLaughlin; Disabled in Action of Pennsylvania, individually and on behalf of all others similarly situated. v. Howard YERUSALIM, individually, and in his official capacity as Secretary of the Pennsylvania Department of Transportation; Alexander Hoskins, individually, and in his official capacity as Commissioner of the Philadelphia Streets Department, Alexander Hoskins, Commissioner of the Philadelphia Streets Department, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1067

9 F.3d 1067

62 USLW 2352, 2 A.D. Cases 1470, 3

ADD 444, 4 NDLR P 278

Elizabeth KINNEY; Glenn Niman; Daniel C. Sullivan; Diane

Fatula; Cassie James; Erik Von Schmetterling; John

Gladstone; Tom Levine; Charles Homiller; Rona Schnall;

Mary Barnes; Ann McLaughlin; Disabled in Action of

Pennsylvania, individually and on behalf of all others

similarly situated. v. Howard YERUSALIM, individually, and in his official capacity

as Secretary of the Pennsylvania Department of

Transportation; Alexander Hoskins, individually, and in his

official capacity as Commissioner of the Philadelphia

Streets Department, Alexander Hoskins, Commissioner of the

Philadelphia Streets Department, Appellant.

No. 93-1168.

United States Court of Appeals, Third Circuit.

Argued Sept. 22, 1993.

Decided Nov. 23, 1993.

Judith E. Harris, City Sol., Michael F. Eichert (argued), Office of City Sol., Philadelphia, PA, for appellant.

George R. Specter, Deputy Sol., Gretchen G. Donaldson, Associate Sol., Terri J. Imbarlina, Asst. City Sol., City of Pittsburgh, Dept. of Law, Pittsburgh, PA, for amicus-appellant City of Pittsburgh.

Stephen F. Gold (argued), Robin Resnick, Philadelphia, PA, for appellees.

Thomas K. Gilhool, Frank J. Laski, Public Interest Law Center of Philadelphia, Philadelphia, PA, for amicus-appellees United Cerebral Palsy Associations, Inc.; Adapt; Eastern Paralyzed Veterans of America; Tash: The Ass'n for Persons with Severe Handicaps; Pennsylvania Center for Individual Living.

James P. Turner, Acting Asst. Atty. Gen., Jessica Dunsay Silver, Marie K. McElderry (argued), U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for amicus-appellee U.S. of America.

Before: STAPLETON, ROTH and LEWIS, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

This appeal requires us to determine whether 28 C.F.R. 35.151(e)(1) (1992), issued by the Attorney General pursuant to Section 204 of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. Sec. 12134 (Supp.1991), requires the City of Philadelphia (the "City") to install curb ramps ¹ at intersections when it resurfaces city streets. At issue is whether resurfacing constitutes an "alteration" within the scope of the regulation. The district court held that it does and ordered the City to install curb ramps on those portions of city streets for which resurfacing bids had been taken since January 26, 1992, the effective date of the ADA. On appeal, the City challenges the district court's reading of the term "alteration." Alternatively, it suggests that if resurfacing is, indeed, an alteration, it is entitled to raise an "undue burden" defense under 28 C.F.R. 35.150(a)(3) (1992).

We agree with the district court's interpretation of the regulation and, consequently, we will affirm. Moreover, we agree that the applicability of the "undue burden" defense has been carefully limited to existing facilities and programs. Thus, that defense is not available in the context of alterations.

I.

Plaintiffs are Disabled in Action, a non-profit organization, and twelve individuals with ambulatory disabilities who live and work in Philadelphia. In their complaint, plaintiffs sought injunctive relief under 42 U.S.C. Sec. 1983 (1988) for alleged violations of the ADA. These allegations were based on the City's practice of installing curb cuts only when work on the city streets otherwise affected the curb or sidewalk or when a complete reconstruction of the street was required.

The lack of curb cuts is a primary obstacle to the smooth integration of those with disabilities into the commerce of daily life. Without curb cuts, people with ambulatory disabilities simply cannot navigate the city; activities that are commonplace to those who are fully ambulatory become frustrating and dangerous endeavors. At present, people using wheelchairs must often make the Hobson's choice between travelling in the streets--with cars and buses and trucks and bicycles--and travelling over uncut curbs which, even when possible, may result in the wheelchair becoming stuck or overturning, with injury to both passenger and chair.

The City of Philadelphia has some 2,400 miles of streets, roads and highways. These streets typically consist of three components: a sub-base of stone, covered by a concrete base, finished with a layer of asphalt. For routine maintenance--patching, pothole repairs, and limited resurfacing--the City maintains a crew of roughly 300 people. For more extensive work, including most resurfacing, bids are solicited from outside contractors.

Resurfacing of the streets is done in a variety of ways, affecting different parts of the street structure. Resurfacing at its simplest is "paving," which consists of placing a new layer of asphalt over the old. In other instances, a more complicated process of "milling" is used to ensure proper drainage or contouring of the road. Milling requires the use of heavy machinery to remove the upper 2 to 3 1/2 inches of asphalt. During an ordinary milling and resurfacing job, cracks in the concrete base may be discovered, and, if so, repaired. The most extensive form of resurfacing is "reconstruction," which involves removal and replacement of both the asphalt and the concrete or stone layers.

Whatever the extent of work performed under a contract, the City has certain minimum requirements for resurfacing. Thus, by the City's own specifications, resurfacing requires laying at least 1 1/2 inches of new asphalt, sealing open joints and cracks, and patching depressions of more than one inch. At issue in this appeal are those resurfacings which cover, at a minimum, an entire street from intersection to intersection. Thus, we are not called upon to decide whether minor repairs or maintenance trigger the obligations of accessibility for alterations under the ADA.

At present the City does not include the installation of curb cuts in its milling and resurfacing contracts unless the curb is independently intended to be altered by the scope of the contract. Thus, only those contracts calling for alterations to curbs include curb cuts; contracts for alterations limited to the street surface itself do not.

Plaintiffs brought this class action against Alexander Hoskins, the Commissioner of the Philadelphia Streets Department, and Howard Yerusalim, the Secretary of the Pennsylvania Department of Transportation ("PennDOT"), to compel the installation of curb cuts on all streets resurfaced since the effective date of the ADA. ² After the parties filed cross-motions for summary judgement, the district court granted plaintiffs' motion, ordering the City to "install curb ramps or slopes on every City street, at any intersection having curbs or other barriers to access, where bids for resurfacing were let after January 26, 1992." Kinney v. Yerusalim, 812 F.Supp. 547, 553 (E.D.Pa.1993). The City brought a timely appeal.

II.

The district court had jurisdiction over this action pursuant to 28 U.S.C. Sec. 1331 (1988) and 28 U.S.C. Secs. 1343(a)(3) & (4) (1988). Appellate jurisdiction from a final order of the district court is predicated upon 28 U.S.C. Sec. 1291 (1988). The standard of review applicable to a grant of summary judgement is plenary. "On review the appellate court is required to apply the same test the district court should have utilized initially." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). This court must decide whether a genuine issue of material fact exists and, if not, whether the moving party is entitled to summary judgement as a matter of law. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir.1987).

III.

Title II of the ADA prohibits discrimination in the provision of public services. Section 202 of the Act, 42 U.S.C. Sec. 12132 (Supp.1991), provides:

[N]o 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.

Congress' concern with physical barriers is apparent in both the history and the text of the legislation. For example, the findings section of the Act recounts:

. . . . .

(2) historically, society has tended to isolate and segregate individuals with disabilities ...;

(3) discrimination against individuals with disabilities persists in such critical areas as ... transportation ... and access to public services;

. . . . .

(5) individuals with disabilities continually encounter various forms of discrimination, including ... the discriminatory effects of architectural, transportation and communication barriers....

42 U.S.C. Sec. 12101 (Supp.1991). These general concerns led to a particular emphasis on the installation of curb cuts. The House Report for the legislation noted that "[t]he employment, transportation, and public accommodation sections of this Act would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets." H.Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 367. As such, "under this title, local and state governments are required to provide curb cuts on public streets." Id.

The Act itself does not set forth implementing standards, but rather directs the Attorney General to do so. 42 U.S.C. Sec. 12134(a) (Supp.1991). As guidance, Congress directed that the regulations be consistent both with the ADA and with the coordination regulations issued by the Department of Health, Education, and Welfare under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1988), concerning nondiscrimination by recipients of federal financial assistance. 42 U.S.C. Sec. 12134(b) (1988 & Supp.1991). These regulations are now codified at 28 C.F.R. pt. 41 (1992). With regard to program accessibility in existing facilities and communications, Congre...