Disabled in Action of Penn. v. Se Penn. Transp.

Decision Date19 August 2008
Docket NumberNo. 06-5109.,06-5109.
Citation539 F.3d 199
CourtU.S. Court of Appeals — Third Circuit

Stephen F. Gold (Argued), Philadelphia, PA, Rocco J. Iacullo, Mark J. Murphy, Disabilities Law Project, Philadelphia, PA, Attorneys for Appellant.

Gregory B. Friel (Argued), Jessica D. Silver, United States Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Attorneys for Amicus Appellant.

Saul H. Krenzel (Argued), Saul H. Krenzel & Associates, Philadelphia, PA, Attorneys for Appellee.

Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.


HARDIMAN, Circuit Judge.

In this statutory interpretation case, we must decide when the statute of limitations begins to run in a case arising under the Americans With Disabilities Act (ADA) and the Rehabilitation Act (RA). Appellant Disabled in Action of Pennsylvania (DIA) argues that under the plain language of the statute, its claims accrued "upon the completion" of alterations to two Philadelphia subway stations. Appellee Southeastern Pennsylvania Transportation Authority (SEPTA) argues, and the District Court held, that DIA's claims accrued prior to the completion of the alterations when DIA discovered that the planned alterations would not include elevators.


We view the facts and draw all reasonable inferences in the light most favorable to DIA, the party against whom summary judgment was entered. Feesers, Inc. v. Michael Foods, Inc., 498 F.3d 206, 208 (3d Cir.2007) (citing Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir.2007)).

DIA is a nonprofit corporation that seeks to eliminate discrimination against disabled individuals in all aspects of community life. To achieve this goal, DIA employs a variety of methods including: government monitoring, political activism direct involvement in municipal planning, and, as a last resort, litigation. Many of DIA's approximately 450 members use wheelchairs and rely on SEPTA for their public transportation needs.

SEPTA is an agency of the Commonwealth of Pennsylvania responsible for providing public transportation in Southeastern Pennsylvania. In Philadelphia, SEPTA's City Transit Division operates a vast network of subway and subway-elevated rapid rails, regional rails, light rails, trackless trolleys, and buses that provide over 850,000 passenger trips per day. SEPTA receives federal funding for many of its activities, including its recent remodeling of an entrance to the 15th Street Station.

A. 15th Street Station and Courtyard

The bustling 15th Street Station is located underground near 15th and Market Streets in downtown Philadelphia. Passengers can access the station in two ways. First, using the stairway at the southwest side of 15th and Market Streets, passengers can descend directly to the platform for the Market-Frankford subway line. Second, using the stairway or escalator at the northwest side of the same block, passengers can descend to the "15th Street Courtyard." From there, they can turn northward toward the Suburban Regional Rail Line Station (Suburban Station), or southward, toward the Market-Frankford platform. SEPTA's renovations to this latter entrance gave rise to the present dispute.1

Prior to SEPTA's renovations, the 15th Street Courtyard included a set of stairs and two escalators enclosed within a headhouse. On September 27, 1999, SEPTA received a $700,000 grant from the Economic Development Administration of the United States Department of Commerce for a project entitled "Renovation of 15th and Market Streets Headhouse at Suburban Station." According to the grant, the project was to involve "various renovations to the 15th and Market Streets entrances and related areas" including "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."

In accepting the Commerce Department funding, SEPTA agreed to "pursue diligently the development of the Project so as to ensure completion ... within [the] time schedule." Specifically, the grant required SEPTA to begin construction within 18 months of its receipt of the funds and to limit the total construction period to 29 months. In addition, the grant was to expire "five (5) years from the fiscal year of the Grant Award," requiring that the project be "physically and financially completed by September 30, 2004."

Having secured funding, SEPTA applied to the City of Philadelphia for a variance from certain provisions of the Building Code. Among the provisions from which SEPTA sought a variance was Section B-1110.2.2(9), which requires that "[w]here building entrances are altered, or when plans are presented to relocate and provide a new primary entrance, the entrance shall be made accessible." For obvious reasons, SEPTA's variance application caught the attention of DIA's legal counsel, Stephen F. Gold.

Fearful that SEPTA's renovations would not include an elevator, Gold wrote to Edward McLaughlin, City Commissioner for the Department of Licenses and Inspections. In his letter of August 3, 2000, Gold expressed concern "that the City would allow SEPTA to apply for such a variance on its behalf for such a major public access point." Gold insisted that "[i]n addition to ensuring that renovations ... are carried out in compliance with the Building Code, the City also has an obligation to ensure that such renovations are ... carried out in compliance with the [Americans With Disabilities Act]." He asked McLaughlin to keep him informed "as to how the City plans to proceed with [SEPTA's] variance request."

Gold received no response from McLaughlin and consequently discussed his concerns with Pete Winebrake, an attorney in the City Solicitor's Office. Gold summarized the discussion in a letter dated September 28, 2000: "As I stated on the phone yesterday, this problem should be resolved before construction commences, or you leave me with very few options. I am very concerned that the City's train has already left the station and I must act sooner than later [sic]. I am available to meet with you at your earliest convenience." (Emphasis in original.)

Gold heard nothing more from Winebrake, but received a letter dated November 14, 2000 from Assistant City Solicitor Fredrick K. Pasour regarding the "15th Street Courtyard Portion of the Suburban Station Project." In pertinent part, Pasour's letter stated:

I represent the City of Philadelphia with respect to the above-referenced project. I understand that you believe that the ADA, its regulations and the Accessibility Guidelines require an elevator in the 15th Street courtyard. I also understand that you are considering bringing a lawsuit to enjoin the 15th Street courtyard portion of the project if the City issues a building permit based on plans that do not include an elevator in the 15th Street courtyard.

This letter is to advise you that the City doe [sic] not share your view that an elevator is required in the 15th Street courtyard and has issued a building permit for the project.2 Please remember that the 15th Street courtyard will be readily accessible to and usable by individuals with disabilities. As you are aware, elevators are planned for other locations near the 15th Street courtyard.

The current bids for the portion of the project that includes the 15th Street courtyard renovations are only good through December 30, 2000. If, therefore, you plan to bring an action challenging the 15th Street courtyard portion of the project, please do so in an expeditious manner.

I understand that you had one meeting with representatives of the City and SEPTA at the 15th Street courtyard to discuss the project. I believe that another meeting this week may be useful in order to discuss the project in more detail and to determine if we can reach an agreement that is satisfactory to you the disabled community, the City and SEPTA.

App'x 477.

Despite Pasour's letter, Gold did not immediately file a lawsuit, and the City issued SEPTA a building permit on or about February 14, 2001, describing the 15th Street Courtyard project as follows:

Demolition incorporates head house, stair, railings, limited wall, veneer, pavement, and lighting systems. Also to be removed are planters, fountain and ceilings. Construction scope consists of glass head house, stair, (2) retail spaces, railings, storefront sys., planters, lighting and paving installed, as well as new ceiling.

App'x 216. SEPTA commenced construction a few days later.

The record suggests several explanations for DIA's decision not to file suit prior to this juncture. First, Gold testified that in 2000, he met with representatives of SEPTA and the City because "they were really anxious to get a commitment from [him] that there would not be a lawsuit regarding 15th Street." See also App'x 477 (referring to a meeting between Gold and "representatives of the City and SEPTA" to determine if the parties could "reach an agreement"). According to Gold, Frances Egan, Assistant to SEPTA's General Manager for Government and Public Affairs, and Deborah Russo, a representative of the City, assured him that in lieu of an elevator at 15th Street, SEPTA "would put in the elevator at City Hall and begin construction in '02 with the completion date of '04."3 See also App'x 477 (noting that "elevators are planned for other locations near the 15th Street courtyard").

Gold discussed the proposed compromise with DIA, and DIA agreed that it was acceptable. Gold informed Egan of his client's assent, but neither party memorialized the deal.4 Assuaged nonetheless,5 DIA took no further action until late 2002 when it appeared that SEPTA was not installing an elevator at City Hall.6

Gold's explanation for DIA's decision not to file a...

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