CHECKER CAB PHILADELPHIA, INC. et al v. THE PHILADELPHIA PARKING AUTHORITY et al

Filing 129

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 6/6/2017. 6/6/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Checker Cab Philadelphia, et al,
Plaintiffs,
v.

CIVIL ACTION

NO. 16-4669

The Philadelphia Parking Authority and
Vincent Fenerty,
Defendants.
MEMORANDUM RE: MOTIONS TO DISMISS
I.

Introduction
This case was filed by over 300 Philadelphia medallion-holding taxi cab operators

(“Medallion Plaintiffs,” or “Plaintiffs”) against the Philadelphia Parking Authority (“PPA”) and
its former Executive Director under the Equal Protection Clause and Takings Clause of the
United States Constitution.

Their claims relate to the entry of Transportation Network

Companies (“TNCs”), such as Uber and Lyft, into the for-hire transportation market. After
Plaintiffs filed suit, a non-medallion holding taxi company, Germantown Cab Company
(“Intervenor”) intervened. Pending before the Court are two motions brought by Defendants
under Rule 12(b)(6), for failure to state a claim:
(1) Defendants’ Motion to Dismiss the Medallion Plaintiffs’ Amended Complaint; and
(2) Defendants’ Motion to Dismiss Intervenor’s Second Amended Complaint.
Following substantial briefing and argument, the Court will deny the pending Motions to
Dismiss in part and grant them in part.

II.

Factual and Procedural Background
a. Overview
TNCs are technology-based transportation companies that enable a customer to arrange a

ride with a driver via smartphone application. Two well-known TNCs are Uber Technologies,
Inc. (“Uber”) and Lyft, Inc. (“Lyft”). TNCs first entered the Philadelphia market in October
2014 and have increasingly become widespread as an alternative service to traditional taxi cabs.
Medallion Am. Compl. (ECF 70) at ¶ 4. Plaintiffs allege that because of PPA’s immense
regulatory burden on Philadelphia taxis, and no regulation as to TNCs, the TNCs were able to
market themselves as “better, faster, and cheaper” than a taxi. Medallion Am. Compl. ¶ 11.
Plaintiffs allege that at least in part as a result of that, TNCs grew in popularity, at the expense of
taxicab operators such as Plaintiffs. Medallion Am. Compl. ¶ 11. Plaintiffs’ claims are based on
the disparity in treatment between taxis and TNCs. Plaintiffs allege that Defendants violated
their constitutional rights by simultaneously enforcing strict regulations on taxis and failing to
regulate TNCs at all, and are liable for damages.
b. Regulatory Scheme and History
In 1947, the Pennsylvania General Assembly enacted the Parking Authorities Law
(“PAL”), which created municipal parking authorities. Blount v. Philadelphia Parking Auth.,
600 Pa. 277, 278 (2009). In 2004, the General Assembly amended Title 53 of the PAL to give
the Philadelphia Parking Authority (“PPA”)—as opposed to the Pennsylvania Public Utility
Commission (“PUC”)—the responsibility of regulating taxicab and limousine services in
Philadelphia. See 53 Pa. C.S. §§ 5701–5745 (these statutes are commonly referred to as Act 94);
Bucks County Servs, Inc. v. Philadelphia Parking Auth., 71 A.3d 379, 383 (Pa. Commw. Ct.
2013) (“Act 94 transferred jurisdiction over taxicab service within the City from the Commission
to the Authority”).
2

Specifically, Act 94 lists one of the “purposes and powers” of the PPA as being “to act as
an independent administrative commission for the regulation of taxicabs and limousine service.”
53 Pa. C.S. § 5505(23). It further gives the PPA the power to “prescribe such rules and
regulations as it deems necessary to govern the regulation of taxicabs within cities of the first
class under this chapter.” 53 Pa. C.S. § 5722 (emphasis added); see also 53 Pa. C.S. § 5742
(using the same language to allow the PPA to regulate “limousine service”).
Act 94 defines “taxicab” as:
“[a] motor vehicle designed for carrying no more than eight passengers, exclusive
of the driver, on a call or demand service basis and used for the transportation of
persons for compensation either on:
(1) A citywide basis as authorized by a certificate of public convenience and a
corresponding medallion issued by the authority; or
(2) A non-citywide basis as authorized by a certificate of public convenience
issued by the authority and without a corresponding medallion.”
Act 94 defines “call or demand service” or “taxicab service” as:
“Local common carrier service for passengers, rendered on either an exclusive or
nonexclusive basis, where the service is characterized by the fact that passengers
normally hire the vehicle and its driver either by telephone call or by hail, or both.
The term does not include limousine service.”
53 Pa. C.S. § 5701. 1
Under Act 94, medallions are defined as property rights that cannot be revoked or
cancelled. 53 Pa. C.S. § 5713. In addition, the statute limits the number of taxi medallions that
can be issued by the PPA to 1,600 medallions. 53 Pa. C.S. § 5711.
In 2005, pursuant to Act 94 and its delegation of legislative authority, the PPA
promulgated its first set of taxicab and limousine regulations. 53 Pa. C.S. §§ 5722, 5742; Bucks
1

One important legal issue is whether this language covers TNCs. Although the technology used
by TNCSs was not developed at the time this statute was enacted, the TNC rides are initiated via
“smartphone” which may be included in the term “telephone” in the statute.
3

County Servs., Inc., 71 A.3d 379, 383. In 2011, the PPA promulgated the regulations that are
currently operative. See 52 Pa. Code §§ 1011, et seq.
In November 2016, the Pennsylvania General Assembly passed legislation granting
TNCs permanent legal authority to operate throughout Pennsylvania, including within
Philadelphia.

This legislation has been referred to as Act 164.

Act 164 lessens certain

regulations on taxi cabs, and requires TNCs to pay assessments of 1.4% of gross revenues in
Philadelphia to the PPA. Act 164 also directs the PPA to enact a new set of regulations
governing for-hire transportation in Philadelphia to be inclusive of TNCs.
c. Procedural History
1. Preliminary Injunction Phase
Medallion Plaintiffs initially filed suit on August 26, 2016. (ECF 1). On September 1,
2016, Medallion Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary
Injunction. (ECF 2). This Court held evidentiary hearings relating to the Preliminary Injunction
Motion on September 28, 2016, September 29, 2016, and October 4, 2016. Several of Medallion
Plaintiffs’ and Defendants’ witnesses testified and were subject to cross-examination at the
evidentiary hearing. Before the Court could decide the Motion, the Parties were able to reach an
agreement as a result of substantial discussions facilitated by Magistrate Judge Rice. Therefore,
the injunction issues are resolved and are no longer before the Court.
2. Intervenors
Two proposed intervenors, Bucks County Services and Germantown Cab Company, filed
Motions to Intervene on September 19, 2016 and September 21, 2016, respectively. (ECF 17,
ECF 20). This Court granted both motions on October 4, 2016. (ECF 41). Neither intervenor

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filed a Preliminary Injunction motion. 2

On November 14, 2016, Bucks County Services

voluntarily withdrew its complaint, leaving just one intervenor in the case. (ECF 71).
3. Motions to Dismiss
There are two operative Complaints in this case: the Medallion Plaintiffs’ Amended
Complaint, filed November 4, 2016 (“Medallion Amended Complaint”, ECF 70), and
Germantown’s Second Amended Complaint, filed January 4, 2017 (“Intervenor Complaint”,
ECF 89).
The Medallion Amended Complaint advances three claims:
•

Count I: Equal Protection claim

•

Count II: Takings Clause and Due Process claim

•

Count III: Declaratory Judgment claim [resolved]

The Intervenor Complaint advances five claims:
•

Counts I-III: Equal Protection claims

•

Count IV: Declaratory Judgment claim regarding Act 164

•

Count V: Preliminary Injunctive Relief [withdrawn]

Defendants filed a Motion to Dismiss the Medallion Amended Complaint on November
17, 2016. (ECF 74). Medallion Plaintiffs responded on December 1, 2016, Defendants replied
on December 13, 2016, and Medallion Plaintiffs filed a surreply on December 23, 2016. (ECF
80, ECF 84, ECF 87). Defendants filed supplemental memoranda updating the court on recent
relevant case law on January 20, 2017, January 23, 2017, and March 13, 2017. (ECF 98, ECF
99, ECF 120).

2

Intervenor includes a claim for a Preliminary Injunction in its Complaint, but at oral argument
counsel for Intervenor stated on the record that his client was no longer seeking preliminary
injunctive relief.
5

Defendants filed a Motion to Dismiss the Intervenor Complaint on January 20, 2017.
(ECF 96). Intervenor responded on February 17, 2017. (ECF 115). Defendants replied on
March 3, 2017. (ECF 116). In addition, the Medallion Plaintiffs filed a memorandum in partial
support of Defendants’ Motion to Dismiss the Intervenor’s complaint, which the Intervenor
moved to strike. (ECF 107, ECF 114). The Court held Oral Argument on Defendants’ Motion
to Dismiss on May 18, 2017.
III.

Legal Standard
A motion to dismiss for failure to state a claim tests the sufficiency of a complaint. Fed.

R. Civ. P. 12(b)(6); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In evaluating a motion
to dismiss, the court must view factual allegations in a light most favorable to the plaintiff,
drawing all reasonable inferences therefrom. Buck v. Hamilton Twp. Sch. Dist., 452 F.3d 256,
260 (3d Cir. 2002). Taking the well-pleaded facts as true, the court must determine whether the
plaintiff is “plausibly” entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d
Cir. 2009). That is, the pleadings must contain enough factual content to allow a court to make
“a reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 679. In short, a complaint must not only allege entitlement to relief, but must also demonstrate
such entitlement with sufficient facts to push the claim “across the line from conceivable to
plausible.” Id. at 683; accord Holmes v. Gates, 403 F. App’x 670, 673 (3d Cir. 2010). 3

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Counsel for Defendants took the position at oral argument that the Plaintiffs had to meet a
higher pleading standard, and refute all conceivable rational bases for the disparity in treatment.
This principle applies only where the classification at issue was made by statute or by regulation,
and where the decision maker has advanced a rational basis for the difference. Cf. United States
v. Walker, 473 F.3d 71, 77 (3d Cir. 2007) (noting that legislative decision making should be
given deference and presumed rational); see also Newark Cab Assoc. v. City of Newark, 2017
WL 214075 (D.N.J. Jan. 18, 2017) (articulating same standard applicable to statutory and
regulatory exercises of discretion). Here, Medallion Plaintiffs do not challenge a statutory or
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IV.

Parties’ Positions
a. Plaintiffs’ Allegations
Medallion Plaintiffs allege that TNCs are “de facto taxicabs” because they provide the

“exact same service” as traditional medallion taxicabs. Medallion Am. Compl. ¶¶ 27-29.
Medallion Plaintiffs allege that the PPA violated their constitutional rights by heavily regulating
traditional taxicabs and failing to regulate the TNCs altogether. Id. ¶¶ 67-70. The Medallion
Plaintiffs allege that by taking the position that the TNCs were illegally operating, but failing to
credibly enforce that position, PPA allowed the TNCs to operate within Philadelphia free from
regulatory burden. Id. ¶¶ 55-57. Plaintiffs allege that PPA’s failure to regulate the TNCs
violated their Equal Protection rights, and constituted an unconstitutional taking of their
medallion property rights, as conferred by 53 Pa. C.S. § 5713.
Critical to the Medallion Plaintiffs’ position is their allegation that under 53 Pa. C.S. §
5701, which gives the PPA the right to regulate “call or demand” transportation service, the PPA
had the ability to regulate the TNCs. Plaintiffs allege that PPA arbitrarily decided not to regulate
the TNCs at all, largely turned a blind-eye to the TNCs “illegal” operations, and simultaneously
stringently enforced PPA’s regulations against the taxicabs. This allegedly arbitrary disparate
treatment forms the basis of Plaintiffs’ equal protection claim.
b. Intervenor’s allegations
Intervenor Germantown Cab Company is a non-medallion taxi company that operates
with limited rights in the City of Philadelphia. Intervenor Comp. ¶ 1. As a non-medallion taxi
company, Intervenor is not permitted to complete trips that begin and end within Philadelphia,
with the exception of a limited area of the city. Id. In its complaint, Intervenor advances the
regulatory scheme, and PPA does not offer a rational basis for the disparate treatment – PPA
instead argues that the two groups were not similarly situated and were not differently treated.
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same type of allegations as the Medallion Plaintiffs, but adds additional theories of equal
protection violations that post-date the enactment of Act 164. Id. at ¶¶ 62-81. For example,
Intervenor alleges that the PPA is violating its Equal Protection rights by allowing TNCs to
operate throughout Philadelphia pursuant to Act 164, but not allowing Germantown to do the
same. Id. at ¶ 73. Further, Intervenor seeks a declaratory judgment that Act 164 itself is
unconstitutional because it is illegal special legislation and grants TNCs Philadelphia operating
rights that Germantown does not have, and lessens regulatory burden on Philadelphia medallion
taxi cabs that does not apply to non-medallion limited rights holders. See id. at ¶¶ 94-111.
c. Defendants’ Arguments
Defendants argue that they did not treat TNCs preferentially to taxicabs. Defendants
argue that the PPA did not have the authority to create regulations applicable to TNCs under
Pennsylvania law, and that TNCs were operating illegally in Philadelphia despite the PPAs
efforts to prevent them from doing so.

In addition, Defendants cite cases from several

jurisdictions which have been brought by taxi companies alleging similar equal protection
violations. 4 Defendants argue that these cases stand for the proposition that TNCs and taxicabs
are not similarly situated, so Plaintiffs’ claims are insufficient as a matter of law.
V.

Analysis
a. Equal Protection
The Parties discuss several cases (such as the ones cited in Footnote 4, supra) from

jurisdictions addressing whether a traditional taxicab owner or driver is entitled to judicial relief
because of preferential treatment shown to TNCs.
4

In almost all of these cases, plaintiffs

Examples of these cases include: Illinois Transp. Trade Ass’n v. City of Chicago, 134 F. Supp.
3d 1108 (N.D. Ill. 2015) aff’d in part, rev’d in part, 839 F.3d 594 (7th Cir. 2016), cert. denied
(U.S. Apr. 24, 2017); Newark Cab Ass'n v. City of Newark, 2017 WL 214075 (D.N.J. Jan. 18,
2017); Gebresalassie v. D.C., 170 F. Supp. 3d 52 (D.D.C. 2016).
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taxicabs’ equal protection claims were based on the disparity between two regulatory
frameworks that were allegedly unequal. That is, the municipality had instituted one set of
regulations applicable to traditional taxicabs and another set of regulations applicable to TNCs.
The traditional taxicabs objected to the disparate treatment between the two groups, and
advanced equal protection claims asserting that the disparity in treatment was not rationally
related to a legitimate policy goal. In such cases, where there were two regulatory schemes in
place, the courts analyzed each difference in treatment between the two schemes, and determined
whether there was a rational basis for the disparity.
This type of analysis is not controlling here on a Motion to Dismiss, because Medallion
Plaintiffs allege that the PPA arbitrarily failed to regulate the TNCs altogether. There is no
separate scheme to analyze, and no rational basis has been advanced for the PPA’s failure to
regulate the TNCs. Instead, Defendants maintain that they did not have the authority to regulate
the TNCs and have taken the position that the TNCs were operating illegally in Philadelphia.
Plaintiffs allege that the PPA failed to enforce this position, and failed to take any substantial
action against the TNCs, instead allowing the TNCs to operate free of regulation and free from
enforcement actions.
One case that contains similar allegations, and can provide a precedent for the Court’s
analysis here, is Judge Gorton’s opinion in Boston Taxi Owners Ass’n, Inc. v. City of Boston,
180 F. Supp. 3d 108 (D. Mass. 2016) (hereinafter “Boston I”). There, the Boston Taxi Owners
Association filed suit against city and state agencies in Federal District Court, alleging inter alia
that the City and State’s disparate treatment of TNC’s and taxicabs violated the Fourteenth
Amendment Equal Protection Clause. In Boston, the Police Commissioner was authorized by

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state statute to regulate the taxi business within the City, and exercised that grant of authority via
issuance of a comprehensive set of regulations referred to as “Rule 403.” Id. at 113.
Rule 403 defines “hackney carriage” (taxicab) as “a vehicle used or designed to be used
for the conveyance of persons for hire from place to place within the City of Boston.” Id. Under
Rule 403, taxicab operators must, among other things: possess a medallion, maintain a properly
equipped and functioning taxicab, display a license, refrain from cell phone use while operating a
taxicab, and belong to an approved dispatch service. Id. According to Judge Gorton, Rule 403
was not enforced in earnest against TNCs, despite the broad definition of “taxicab” in the
regulation. Id. Further, the Commissioner had not yet issued regulations to specifically address
TNCs, though the City of Boston had convened a Taxi Advisory Committee in October 2014
which was authorized to examine the regulatory framework and develop new policies to account
for Uber and Lyft. Id.
Judge Gorton denied the City of Boston’s Motion to Dismiss plaintiffs’ Equal Protection
claim, holding that the plaintiffs had adequately alleged an equal protection violation. Id. at 118.
In so deciding, Judge Gorton held that plaintiffs had adequately alleged (1) that TNCs and taxis
were “similarly situated” entities that had been treated differently, and (2) that that disparate
treatment was not rationally related to a legitimate government objective. Id. at 118-119
In deciding that plaintiffs had adequately alleged that TNCs and taxis were similarly
situated, Judge Gorton noted that any differences created by regulation could not be used to
argue that the groups are dissimilar. Id. at 118. Though Judge Gorton agreed that there were
some differences between the two groups – such as the fact that taxis can accept street hails and
cash – the court held that for the purposes of equal protection analysis, the groups were similarly
situated. Id.

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In deciding that plaintiffs had adequately alleged that the disparity in treatment between
the two groups was not rationally related to a legitimate government objective, Judge Gorton
considered two policy goals advanced by the City to justify the disparity. Id. at 118-119. First,
the City argued that declining to apply Rule 403 to TNCs enhanced the availability and
accessibility of cost-effective transportation. Id. at 119. Judge Gorton agreed that this was a
legitimate policy goal, but noted that differential treatment in the two commercial enterprises in
furtherance of that cited objective could be considered irrational. Id. Second, the City argued
that it was rational to decline to regulate TNCs for the time being because any action on its part
could have been preempted by future state legislation. Id. Judge Gorton held that this concern
was speculative at best, and that given that the current definition of “hackney carriage” in Rule
403 included both taxis and TNCs, any new statute would probably require re-drafting of the
regulations even if it did not create a new regulation scheme for TNCs. Id.
Defendants point out that despite Boston I, Judge Gorton later dismissed Plaintiffs’
complaint in a December 21, 2016 order. Boston Taxi Owners Ass’n, Inc. v. City of Boston, No.
CV 15-10100-NMG, 2016 WL 7410777, at *3 (D. Mass. Dec. 21, 2016) (hereinafter “Boston
II”). This is accurate, but there is nothing in Boston II that changes the equal protection analysis
laid out in Boston I, or even that would indicate a change in heart by Judge Gorton. Instead,
Boston II turns on preemption and mootness grounds as a result of a subsequent enactment of
legislation that took away the regulatory authority of the defendant municipality regarding
taxicabs and TNCs.
Defendants also pointed out at oral argument that Boston I was appealed to the First
Circuit, and the appeal was dismissed. This is true. Boston Taxi Owners Ass’n, Inc. v. Evans,
No. 16-1412 (1st Cir. Mar. 9, 2017). More specifically, the appeal was voluntarily dismissed by

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Appellant as a result of the Boston II decision. This dismissal has no bearing on this case, and
has no impact on the value of Judge Gorton’s analysis in Boston I for the reasons discussed
above.
Here, the Court will deny the Motion to Dismiss the Plaintiffs’ Equal Protection Claim as
a result of their allegation that PPA failed to take any “substantial” enforcement action against
TNCs prior to the passage of Act 164. Plaintiffs here allege (Medallion Am. Compl. ¶¶ 34-35;
60-61) and introduced evidence at the Preliminary Injunction hearing, that PPA did take some
measures against Uber and Lyft, which a jury might find contradicts PPA’s assertion that they
had no power to regulate TNCs. Plaintiffs’ allegations of arbitrary disparate treatment, coupled
with Plaintiffs’ detailed allegations that taxis and TNCs are similarly situated, are sufficient to
state a plausible Equal Protection Claim. Defendants’ arguments to the contrary are largely
factual in nature and do not warrant granting Defendants’ Motion to Dismiss. To the extent that
the Intervenor’s equal protection claim is based on the same theory of liability, that claim will
also be allowed to go forward. The Intervenor’s claims that are not based on this theory will be
dismissed. 5
The parties should not interpret this finding as any conclusion on the merits. The Court
reaches this decision because of this particular allegation, and the Court’s reluctance to dismiss a
Complaint when there are at least some facts, and a plausible theory, that might warrant relief in

5

Intervenor’s Count I contains this allegation, but the remainder of Intervenor’s claims do not
relate to this theory of the case, and will be dismissed. In particular, Intervenor advances claims
that Act 164 is unconstitutional under an Equal Protection analysis. Intervenor has not alleged
sufficient facts to make this claim plausible – as Act 164 was a legislative decision making
distinctions between groups of transportation providers and is entitled to deference. See United
States v. Walker, 473 F.3d 71, 77 (3d Cir. 2007) (noting that statutory decisions are entitled to
deference and are presumed rational).

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the nature of damages, which Plaintiffs seek under the 14th Amendment for denial of equal
protection.
b. Takings
Medallion Plaintiffs also assert a Takings Clause claim, alleging that the PPA’s failure to
enforce their apparent position that TNCs operated illegally in Philadelphia prior to the passage
of Act 164 constitutes a taking of Plaintiffs’ property by the PPA without the payment of just
compensation.

The Takings Clause of the Fifth Amendment (applied to state and local

government through the 14th Amendment) prohibits the government from taking private property
for public use without compensating the property owner. In re Trustees of Conneaut Lake Park,
Inc., 855 F.3d 519, 525 (3d Cir. 2017). Takings can be either physical appropriations, or
effectuated through regulation. Id. Physical appropriations are per se illegal unless the owner is
compensated, while regulatory takings require more nuanced analyses. Id.
To state a claim under the Takings Clause, the Plaintiff must have a legally cognizable
property interest that has been affected by the government action in question. Prometheus Radio
Project v. F.C.C., 373 F.3d 372, 428 (3d Cir. 2004).

Here, Plaintiffs contend that their

medallions are an exclusive property right under Pennsylvania statutory law. Plaintiffs argue
that this entitles them to an exclusive property right to (collectively) provide taxi service in
Philadelphia. In response, Defendants rely primarily on the Boston I litigation, where Judge
Gorton dismissed a similar claim brought under the Takings Clause. There, Judge Gorton held
that while a license can be a property right; the taxi plaintiffs in that case did not have a property
interest in exclusive operating rights. Judge Gorton reached that decision in part because the city
of Boston could have issued additional medallions at any time, which would have similarly
“diminished” the value of the medallions held by the plaintiffs.

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As discussed in Plaintiffs’ Surreply (ECF 87), and as argued by counsel at oral argument,
Plaintiffs here point out that the legal landscape in Philadelphia is different than in Boston and in
the other cities where similar lawsuits have been brought. Here, Plaintiffs argue that their
property interest in exclusive operating rights is provided for by Pennsylvania Statute.

In

particular, Plaintiffs highlight that the number of taxi medallions available in Philadelphia is
capped by Pennsylvania Statute. See 53 Pa. C.S. § 5711(c)(2).
The Court will deny Defendants’ Motion to Dismiss as to Plaintiffs’ Takings claim, as
Plaintiffs have identified enough of a difference in the statutory structure in Philadelphia to give
rise to a plausible allegation that the taxi owners had a property right in their medallions. As
with the equal protection claim, the Parties should not interpret this finding as any conclusion on
the merits. The Court reaches this conclusion largely due to the potentially unique structure of
Pennsylvania Law and because of the standard of review at this stage.
c. Qualified Immunity
In addition to Defendants’ arguments regarding the sufficiency of Plaintiffs’ and
Intervenor’s complaints, Defendant Vincent Fenerty asserts a qualified immunity defense.
Defendant Fenerty argues that he is entitled to protection from this lawsuit under the qualified
immunity doctrine because his “conduct [did] not violate clearly established statutory or
constitutional rights.” Def. Br. at 32 (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In
response, Plaintiffs argue that Fenerty is not entitled to qualified immunity, citing Boston I. See
Pl. Br. at 21. There, Judge Gorton declined to afford qualified immunity to the individual
government official defendants because the right to equal protection of the laws is clearly
established.

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The Supreme Court has held that because qualified immunity shields officers from suit,
not just from trial, the district court should “resolve any immunity question at the earliest
possible stage of the litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n. 6. However, the
Third Circuit has warned that “it is generally unwise to venture into a qualified immunity
analysis at the pleading stage as it is necessary to develop the factual record in the vast majority
of cases.” Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009); see also Garey v.
Borough of Quakertown, 2012 WL 3562450, at *3 (E.D. Pa. Aug. 20, 2012) (Baylson, J.).
Taking Plaintiffs’ allegations as true, as is required at this juncture, the Court is unable to
hold that Defendant Fenerty is entitled to qualified immunity protection. Defendant Fenerty is
free to reassert a qualified immunity defense at summary judgment or at trial.
VI.

Conclusion
The Court is aware that there has been substantial exchange of documents already in this

case. In addition, the Plaintiffs themselves are numerous in number and can testify at great
length as to their own experiences if, and when trial is reached. As a result, the Court, at this
time, will not require any further document production by either party. As outlined in the Order
accompanying this Memorandum, the Court will allow some limited discovery, but will require
the parties to complete any relevant discovery promptly. The Court will then set a schedule for
Summary Judgment briefing.

O:\CIVIL 16\16-4669 Checker Cab v PPA\16cv4669 Memorandum Op on MTD.docx

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