W.G. Nichols, Inc. v. Ferguson, CIVIL ACTION NO. 01-834 (E.D. Pa. 6/__/2002)
| Decision Date | 01 June 2002 |
| Docket Number | CIVIL ACTION NO. 01-834. |
| Parties | W.G. NICHOLS, INC., RICHARD VAN DALEN, and CAROL THOMPSON, Plaintiffs, v. JOSEPH D. FERGUSON and MICHELE A. FERGUSON, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Presently before the court is a motion for summary judgment filed by defendants Joseph ("Ferguson") and Michele Ferguson (collectively "defendants") and a cross-motion for partial summary judgment filed by plaintiffs W.G. Nichols, Inc. ("Nichols"), Richard Van Dalen and Carol Thompson (collectively "plaintiffs"). For the reasons that follow, defendants' motion will be granted and plaintiffs' motion will be denied.
In or around October, 1989, Ferguson retained Olsen and Associates ("Olsen"), an architectural firm, to design a commercial building to be located at 1020 Andrews Drive, West Chester, Pennsylvania ("the facility" or "the building"). Defendants' Motion for Summary Judgment ( ) ¶ 8. Olsen also was to supervise the approval of the building's design and to oversee its construction. Id. On June 19, 1991, Ferguson received from West Goshen Township, the municipality in which the facility is located, a building permit for the outer shell of the facility. Defs.' Motion at Exhibit E; Plaintiffs' Motion for Partial Summary Judgment ( ) at Exhibit 4. Ferguson subsequently had the inside of the building prepared for tenant use, and he received approval for these tenant "fit outs" from the Pennsylvania Department of Labor and Industry ("L & I") in November, 1992. Id. at Exhibit 6. Construction of the facility was completed in late 1993, and an occupancy permit was issued by L & I on December 27, 1993. Defs.' Motion ¶ 16; Plaintiffs' Memorandum of Law in Support of their Motion for Partial Summary Judgment ( ) at 6.
Although the parties contest the date on which space within the building first became available, it is undisputed that by 1997 defendants were seeking tenants to occupy a large portion of the facility. Defs.' Motion ¶ 20; Plaintiffs' Answer to Defendants' Motion for Summary Judgment ( ) ¶ 20. Around the same time, representatives of Nichols, a corporation engaged in the publishing business, desired a new space in which to base the company's operations. The 1020 Andrews Drive building came to their attention as a location that potentially suited the company's needs, and in mid-1997 Nichols management first saw the facility, as Dean Morgantini (the president of Nichols at the time), Glenn Potere (an owner of the company), and their realtor toured the building twice in one day.2 Defs.' Motion ¶ 21. On July 16, 1997, Nichols entered into an agreement with defendants to lease a significant portion of the 1020 Andrews Drive facility. The lease covered the entire second floor of the building, 1,400 square feet of a garage bay, and a triangular office located adjacent thereto. See Addendum to Office Lease Agreement ¶ 1. The agreement was to run until August 14, 2002, although it explicitly provided Nichols with the right to terminate the lease at the end of the third year, provided that defendants were afforded 12 months notice and that Nichols paid defendants a $65,000 buyout in addition to the rent due during the third year of the lease term. See id. ¶ 2.
Although the details of this interaction are reported differently by the parties, it is undisputed that Nichols informed Ferguson some time after Labor Day, 1999 of its intention to vacate the premises.3 Under the terms of the lease, this gave rise to a choice on the part of Nichols. It could either pay the $65,000 buyout, or it could find a subleasee, provided that defendants were afforded notice of any prospective sub-tenants. See Lease ¶ 4(a). Nichols alleges that it considered the buyout but opted instead to sublet the premises. Pls.' Answer ¶ 35. It further is undisputed — although the reasons for this are the subject of one of the fundamental contests in this case — that Nichols never actually found a subleasee for its portion of the building.
On February 20, 2001, Nichols, Thompson and Van Dalen4 filed the instant lawsuit. Count II of the original complaint filed by plaintiffs contained an erroneous caption, and on April 11, 2001 I granted defendants' motion to dismiss this claim pursuant to Fed.R.Civ.P. 12(b)(6) without prejudice to plaintiffs' right to amend their pleading to correct this error. Plaintiffs did so promptly, filing an amended complaint on April 13, 2001. This amended complaint contains five counts, and I will discuss each in turn.
In count I, plaintiffs allege that defendants have violated numerous statutory provisions by failing to make their building accessible to disabled individuals, including the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12182(b)(2)(A)(ii), 12182(b)(2)(A)(iv), 12182(b)(2)(A)(v) and 12183(a)(1) and (2), and Pennsylvania's Physically Handicapped Act ("PPHA"), 71 Pa. Cons. Stat. § 1455.1c(a).5 As a consequence of these asserted violations, plaintiffs seek declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, and 42 U.S.C. § 12188(a)(1)6 respectively. They also seek reasonable attorney's fees as provided for by 42 U.S.C. § 12205. As for the first two forms of relief, plaintiffs specifically desire (1) a declaration that defendants' failure to install an elevator — or some equivalent means of access to the upper portions of the building — during both construction and subsequent alterations to the facility violated Title III of the ADA and the PPHA; and (2) an injunction setting aside, as of June, 2000, the lease for the 1020 Andrews Drive building. See Amended Complaint ¶¶ 27-63.
In count II, Nichols alleges that in violating the ADA and PPHA, defendants also breached the lease agreement. Amended Complaint ¶ 70. Nichols asserts that as a result of this breach, it was forced to expend monies to move to a facility located at 1025 Andrews Drive that provided access to its upper floors to disabled people, and has been unable to sublease its portion of the 1020 Andrews Drive building, as prospective tenants have balked upon learning that the building is not ADA-compliant. Id. ¶¶ 71, 74. As a result of defendants' alleged breach of the lease agreement, Nichols seeks compensatory damages, attorney's fees, costs and interest. Id. at 15.
In count III, Nichols posits that defendants, as lessors, owed it a duty under Pennsylvania common law to lease a structure that complied with the statutory laws of the Commonwealth, specifically with 71 Pa. Cons. Stat. § 1455.1c(a). In violating the PPHA, Nichols's argument goes, defendants simultaneously breached this common law duty. Nichols asserts that defendants' violation of this statutory obligation renders them negligent per se. Nichols further contends that as a result of this negligence it is unable to sublet the building, and that it has been forced to (1) pay two rents simultaneously (i.e. for the facilities located at both 1020 and 1025 Andrews Drive); (2) incur moving expenses; and (3) make additional expenditures on behalf of employees whose disabilities were worsened by defendants' negligence. Amended Complaint ¶¶ 76-81. Plaintiffs allege that as a consequence of this negligence they are entitled to compensatory damages, attorney's fees, costs and interest.
In count IV, Nichols asserts that defendants tortiously interfered with its prospective contractual relations. The crux of this claim is that because defendants failed to make the common areas of its building compliant with the ADA and PPHA, Nichols has lost "potential tenants, rental payments, reimbursement for improvements left with [its former] space, as well as other associated expenses and the continuing rental costs." Amended Complaint ¶ 86. Nichols argues that this interference was knowing and willful, and that it warrants compensatory and punitive damages, attorney's fees, costs and interest.
Finally, in count V, Van Dalen and Thompson aver that despite their repeated requests for elevator access to the upper portions of the building, defendants failed to provide the same, thereby resulting in the worsening of their respective physical impairments. These plaintiffs further assert that they have suffered psychological distress and have incurred various pecuniary expenses as a result of the exacerbation of their disabilities. They seek compensatory and punitive damages, attorney's fees, costs and interest. Amended Complaint ¶¶ 89-94.
On September 17, 2001, defendants moved for summary judgment dismissing each count of the amended complaint. Their arguments, like plaintiffs' responses to them, are fairly straightforward. Both are summarized below.
As for plaintiffs' allegations regarding defendants' violations of the ADA, defendants make three arguments. First, they contend that the 1020 Andrews Drive facility is only two stories high, and that it accordingly falls within the "elevator exception" to Title III of the ADA, codified at 42 U.S.C. § 12183(b). That provision states that "[s]ubsection (a) of this section7 shall not be construed to require the installation of an elevator for facilities that are less than three stories . . . unless [one of four listed conditions is met]."8 42 U.S.C. § 12183(b). Defendants note that the regulations promulgated by the Department of Justice ("DOJ") — the entity responsible for implementing the ADA — define "story" as "[t]hat portion of a building included between the upper surface of a floor and upper surface of the floor or roof next above." 28 C.F.R. § 36, App. A. The regulations go on to state that Id. Though defenda...
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