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In a ruling that strictly construes the standing requirements of the Americans with Disabilities Act, a federal judge in Philadelphia has dismissed a suit against the owners of an office building brought by a company that claims it was forced to move and was later unable to find any tenants to sublet its office space because the building was not handicapped accessible. In W.G. Nichols Inc. v. Ferguson, U.S. District Judge William H. Yohn Jr. of the Eastern District of Pennsylvania found that Title III of the ADA “grant rights only to disabled individuals and entities that have a known association or relationship with an individual with a known disability.” Significantly, Yohn found that while Nichols satisfied the requirements for Article II standing — by articulating an “injury in fact” that could be redressed by its claim — it nonetheless lacked standing under the ADA. “Nichols’s satisfaction of the requirements imposed by Article III is insufficient to confer upon it standing to assert its Title III claims,” Yohn wrote. “Indeed, not every entity that is being tangibly harmed by a Title III violation has standing to sue under that provision. This is so not due to the operation of any judicially fashioned standing limitation, but rather because Congress itself has limited the class of parties on which that portion of the ADA bestows rights,” Yohn wrote. Yohn also dismissed ADA claims brought by two allegedly disabled Nichols employees, finding they, too, lacked standing to sue since the company has moved to a ground-floor office and they, therefore, cannot claim that they plan to return to second-floor offices that had no elevator. But Nichols may still have a valid lawsuit to press in state court for breach of contract. After dismissing all of the federal claims, Yohn declined to reach defense motions to dismiss the entire case, but instead ruled that the plaintiff company may refile the suit in state court. According to court papers, defendants Joseph and Michele Ferguson hired architects in 1989 to design a commercial building in West Chester, Pa. The Fergusons later had the inside of the building prepared for tenant use and received approval from the Pennsylvania Department of Labor and Industry in November, 1992. Construction of the facility was completed in late 1993, and an occupancy permit was issued in December 1993. In 1997, Nichols agreed to lease a significant portion of the building, including the entire second floor, and 1,400 square feet of a garage bay. The lease ran to August 2002, but explicitly provided Nichols with the right to terminate the lease at the end of the third year if it gave 12 months notice and either paid a $65,000 “buyout” or found a new tenant to sublet the space. In 1999, Nichols informed Ferguson of its intention to vacate the premises. The suit alleges that Nichols found the space unacceptable due to the building’s lack of an elevator. But after moving to nearby ground-floor offices, the suit says, Nichols was unable to find any tenants to sublet the space, allegedly because it was not handicapped accessible. The suit, filed by attorneys Terry Elizabeth Silva and Kenneth J. Benton of Silva, Miller & Associates, sounds in five counts. The first alleges the Fergusons violated numerous provisions of the ADA and the Pennsylvania’s Physically Handicapped Act by failing to make their building accessible to disabled individuals. In Count II, Nichols alleges that in violating the ADA and PPHA, the defendants also breached the lease agreement because Nichols was forced to incur moving expenses and has been paying rent on both spaces because prospective sublet tenants have balked upon learning that the building is not ADA compliant. Count III alleges that the defendants, as lessors, owed Nichols a duty under Pennsylvania common law to lease a structure that complied with the PPHA. In Count IV, Nichols claims the defendants tortiously interfered with its prospective contractual relations because the failure to make the building ADA compliant caused Nichols to lose potential rent reimbursements. In Count V, Nichols’ employees Richard Van Dalen and Carol Thompson claim that their disabilities were made worse by the defendants failure to provide an elevator. The Fergusons’ lawyer, Katherine H. Meehan of Media, Pa.’s Eckell, Sparks, Levy, Auerbach, Monte, Rainer & Sloane, filed a summary judgment motion that attacked all five counts. But Yohn asked both sides to submit briefs that addressed the issue of standing under the ADA for all three plaintiffs. Now the judge has ruled that since neither the company nor either of the two disabled employees has standing to sue under the ADA, the federal claims must all be dismissed. The two employees lack standing to seek “prospective injunctive relief,” Yohn found, because their only connection to the second-floor office space was the presence of their employer when it was in the space. Since Nichols has moved into a single-story building, Yohn found that “it does not appear likely that either of the individual plaintiffs in this case will be present within the facility in the foreseeable future.” Turning to the issue of the company’s standing, Yohn found that it could not assert third-party standing to assert the rights of its two disabled employees since they themselves lacked standing. Yohn also found that Nichols lacked standing to assert an ADA claim on its own behalf for the injuries it allegedly suffered — such as the inability to sublease its former space — because the ADA has statutory standing requirements that limit the law to disabled individuals and entities that have a known association or relationship with an individual with a known disability. If Nichols were allowed to pursue its claim, Yohn said, the ADA’s standing limitations “would be rendered irrelevant, as any party who is in any way injured by a failure to comply with Title III’s requirements would be able to bring suit thereunder, regardless of whether it was discriminated against based on its disability or its association with a disabled individual.” As a corporation, Yohn said, Nichols “is not a disabled individual.” And in the suit, Yohn noted, the company “does not allege that it has suffered discrimination as a result of its known association with one or more disabled persons.” But Yohn found that Nichols may still have a valid claim to assert against the Fergusons, albeit in the form of a state court suit alleging breach of contract. “In essence, Nichols is attempting to convert what is fundamentally a contract dispute into a substantive ADA claim,” Yohn wrote. “The right possessed by Nichols that allegedly has been violated by defendants is not to be free from discrimination on the basis of either its disability or its association with disabled persons, but rather is to an ADA-compliant workplace. The source of this right is not the substantive provisions of the ADA, but rather is a provision that plaintiffs aver to be inherent in their lease.” As a result, Yohn concluded that the case belongs in state court because “the resolution of such commercial disputes is not an end to which the ADA was designed as a means.”

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