The opinion of the court was delivered by: Chesler, U.S.D.J.
This matter comes before the Court on the motion for summary judgment filed by Plaintiffs hip (Heightened Independence and Progress), Inc. ("hip"), United Spinal Association, and Peter Gimbel (collectively "Plaintiffs") [docket item no. 59]. Defendant opposed the motion and filed a cross-motion for summary judgment [docket item no. 73]. The Court held oral arguments on June 22, 2011. The Court requested, and the parties provided, supplemental briefing of arguments supported by the record, and, in particular, of the relevance of the Third Circuit's recently decided Disabled in Action of Pennsylvania. v. Southeastern Pennsylvania Transportation Authority, 635 F.3d 87 (3d Cir. 2011). After consideration of the parties' arguments, the Court has determined that it will grant Plaintiffs' motion for summary judgment and deny Defendant's motion for summary judgment. In the following discussion, the Court gives its reasons for the decision.
The case arises from a failure to make a Port Authority Trans-Hudson Corp. ("PATH") station accessible in accordance with the Americans with Disabilities Act, 42 U.S.C. § 12133 (the "ADA"). In 2002, the Port Authority began construction to the east end of the Grove Street Station (the "Station"). The entrance in question is at the corner of Luis Munoz Marin Boulevard and Christopher Columbus Drive, at the east end of the Station ("East Entrance"). The construction was undertaken in large part due to the increased ridership at the Station. The East Entrance was reoponed to the public on May 15, 2005. The Station is multi-level, with a mezzanine level separating the street from the platform, and has no elevators, ramps or lifts and is therefore inaccessible to wheelchair bound persons.
The standard upon which a court must evaluate a summary judgment motion is well-established. Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.
Once the moving party has properly supported its showing of no triable issue of fact and of an entitlement to judgment as a matter of law, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed.R.Civ.P. 56(c) (setting forth types of evidence on which nonmoving party must rely to support its assertion that genuine issues of material fact exist). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). "A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial." Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, . . . there can be 'no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).
B. Title II of the ADA and its Implementing Regulations
Title II of the ADA prohibits discrimination in the provision of public services. Section 202 of the ADA, 42 U.S.C. § 12132, 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.
The ADA required the United States Department of Transportation ("DOT") to promulgate regulations implementing the provisions of the ADA that relate to public transportation in a manner consistent with the Architectural and Transportation Barriers Compliance Board (also known as the "ADA Accessibility Guidelines," or "ADAAG"). Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 655 F. Supp. 2d 553, 558-59 (E.D. Pa. 2009). DOT's implementing regulations state that a "transportation facility is readily accessible if it complies with the DOT's regulations and with ADAAG." Id. (citing 49 C.F.R. § 37.9). DOT's implementing regulations recognize three types of construction which trigger a public entity's obligation to make a facility accessible to persons with disabilities: new construction, additions and alterations. 49 C.F.R. §§ 37.41 and 37.43.
In order to proceed in its analysis, the Court must determine whether the East Entrance constitutes new construction, an addition, or an alteration. The ADA defines an alteration as: a change to an existing facility, including, but not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or ...