Pukanecz v. Barta Transit Auth., 5:20-cv-00561

COURDE V. PUKANECZ, Plaintiff, v. BARTA TRANSIT AUTHORITY and EASTON COACH COMPANY, Defendants

No. 5:20-cv-00561

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

June 24, 2020

OPINION

Defendants' Motion to Dismiss, ECF No. 8 - Granted in Part

Joseph F. Leeson, Jr. United States District Judge

I. INTRODUCTION

Plaintiff Courde V. Pukanecz, who suffers multiple physical and psychological afflictions that render him disabled, alleges that his rights under the Americans with Disabilities Act ("ADA") were violated when a BARTA-operated, Easton Coach paratransit van driver refused to stop and let Pukanecz off the van to urinate while transporting him to a doctor's appointment. This incident, which resulted in police intervention, allegedly exacerbated symptoms of his physical and mental afflictions, requiring inpatient rehabilitation. Pukanecz seeks compensatory damages in his ADA claims, as well as in his state-law claim for Negligent Infliction of Emotional Distress ("NIED"). Defendants move to dismiss the Complaint for lack of subject matter jurisdiction because Pukanecz brought this action under a section of the ADA that only provides for injunctive relief and, also, for failure to state a claim. For the reasons set forth below, the Motion to Dismiss is granted, the Complaint is dismissed without prejudice, and Pukanecz is granted leave to amend.

II. BACKGROUND

Pukanecz is disabled for ADA purposes, as he suffers from medical and psychological afflictions including, but not limited to, Type 1 diabetes, multiple sclerosis, tardive dyskinesia, and bi-polar disorder. See Compl. ¶¶ 1, 8, ECF No. 1. On or about February 5, 2018, Pukanecz requested transportation from Defendant BARTA to receive medical treatment for his Type 1 Diabetes in West Reading, Berks County, Pennsylvania. Id. ¶ 7. At the time he made the reservation, Pukanecz informed BARTA of his medical issues. Id. ¶ 29. BARTA provided a paratransit van operated by Defendant Easton Coach. Id. ¶ 10. While riding the van, Pukanecz experienced an extreme urgency to urinate, which was a common occurrence for him that he previously disclosed to BARTA. Id. ¶ 12. Pukanecz packed a medical vessel and catheter anticipating a possible, uncontrollable need to urinate. Id. ¶ 13.

During transport, Pukanecz experienced urinary incontinence, visible to the driver on his pants, and requested the driver pull over so he could urinate into his medical vessel or self-catheterize. Id. ¶¶ 14, 15. The driver said company policy forbid her from pulling over, leading to an argument between the driver and Pukanecz. Id. ¶¶ 16, 17. Because of the argument, the driver contacted BARTA to report the situation and, in response, BARTA called 911 and requested police assistance. Id. ¶¶ 18, 19. When the police arrived, an officer confronted Pukanecz with his handgun drawn, causing Pukanecz to become nervous and anxious. Id. ¶ 20. The entire incident exacerbated symptoms of Pukanecz's medical and psychological afflictions, causing increased bodily pain, anxiety, embarrassment, and humiliation. Id. ¶ 22. Overall, the incident had such a negative effect on his health and well-being he had to undergo inpatient medical care and rehabilitation to address these problems. Id. ¶ 23.

Pukanecz filed the Complaint on January 31, 2020. The Complaint alleges that Defendants violated Pukanecz's rights under "Title II" of the ADA; however, it cites to 42 U.S.C. § 12188(a), which is Title III of the ADA, as the basis for jurisdiction. There are three counts: (1) a violation of Title II of the ADA against BARTA; (2) a violation of Title II of the ADA against Easton Coach; and (3) an NIED claim against Easton Coach. In all three counts, Plaintiff seeks compensatory damages and attorneys' fees and costs.

Defendants filed a Motion to Dismiss Pursuant to Rule 12(b)(1) and Rule 12(b)(6) on four grounds: (1) lack of subject matter jurisdiction for the ADA claims; (2) failure to state a claim under the ADA; (3) lack of pendant jurisdiction for the NIED claim; and (4) failure to state an NIED claim. See Defs.' Mot. Dismiss 1, ECF No. 8. The matter has been fully briefed. See ECF Nos. 9 and 11.

III. STANDARDS OF REVIEW

A. Motion to Dismiss - Federal Rule of Civil Procedure 12(b)(1)

"[T]here are two types of Rule 12(b)(1) motions: those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact." Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006) (citing Mortensen v. First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir. 1977)). "[A] court must first determine whether the movant presents a facial or factual attack" because the distinction determines the standard of review. In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). A facial attack "challenges subject matter jurisdiction without disputing the facts alleged in the complaint, and it requires the court to 'consider the allegations of the complaint as true.'" Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska, 462 F.3d at 302 n.3). A factual attack challenges "subject matter jurisdiction because the facts of the case . . . do notsupport the asserted jurisdiction." Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). A factual attack "cannot occur until plaintiff's allegations have been controverted[,]" Mortensen, 549 F.2d at 892 n.17, which occurs when the movant files an answer or "otherwise presents competing facts." Aichele, 757 F.3d at 358. "When a factual challenge is made, 'the plaintiff will have the burden of proof that jurisdiction does in fact exist,' and the court 'is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Davis, 824 F.3d at 346 (quoting Mortensen, 549 F.2d at 891). "[N]o presumptive truthfulness attaches to [the] plaintiff's allegations. . . ." Id. (quoting Mortensen, 549 F.2d at 891) (alterations in original).

B. Motion to Dismiss - Federal Rule of Civil Procedure 12(b)(6)

In rendering a decision on a motion to dismiss under Rule 12(b)(6), this Court must "accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if "the '[f]actual allegations . . . raise a right to relief above the speculative level'" has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. (explaining that determining "whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense"). The defendant bears the burden of demonstrating that a plaintiff has failed tostate a claim upon which relief can be granted. See Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

IV. ANALYSIS

A. The Court does not have subject matter jurisdiction for the ADA claims under 42 U.S.C. § 12188(a).

In the Complaint, Pukanecz states that federal jurisdiction is based on 42 U.S.C. § 12188(a) (Title III). Under this section of the ADA, only injunctive relief is available to individuals subjected to discrimination on the basis of disability. Because Pukanecz does not request injunctive relief and seeks only compensatory damages, the Court does not have subject matter jurisdiction over Pukanecz's ADA claims under 42 U.S.C. § 12188(a).

However, Pukanecz asserts that he mistakenly cited the wrong section of the ADA and that his error can be corrected. See Pl.'s Br. 5, ECF No. 9 ("Defendants seized upon the fact that Plaintiff mistakenly cited to Section 308(a) of the Americans with Disabilities Act, 42 U.S.C. 12188(a) as justification that the Court lacks subject matter jurisdiction over Plaintiff's claim against BARTA."). Accordingly, Pukanecz is given leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002) (holding that in the absence of undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment, a court should grant a plaintiff leave to amend a deficient complaint after a defendant moves to dismiss it).

Assuming that the jurisdictional defect will be cured, the Court considers whether Pukanecz has stated an ADA claim against either Defendant.

B. Pukanecz's ADA claim against BARTA fails to state a claim based on discriminatory treatment, but is sufficient based on failure to accommodate.

In the Motion to Dismiss, BARTA argues the Complaint is devoid of facts that show Pukanecz was discriminated against by reason of his disability or that the discrimination wasintentional. In response, Pukanecz generally contends that he has stated a claim against BARTA in Count One under Title II of the ADA, 42 U.S.C. § 12132. No party specifically addresses the different grounds for ADA liability, which is necessary to decide the Motion to Dismiss.

1. ADA liability may be based on discriminatory treatment.

Title II of the ADA states, "[i]t shall be considered discrimination . . . to fail to provide with respect to the operations of its fixed route system . . . transit and other special transportation services to individuals with disabilities." 42 U.S.C. § 12143 (1990). Special transportation services can include paratransit options that pick up and drop off individuals at their destination if the...