Schobert v. Marcase

Opinion by

Judge Rogers,

Gibert H. and Thelma Schobert filed a complaint in the Philadelphia Court of Common Pleas seeking injunctive relief and a money judgment from the Philadelphia Superintendent of Schools, the School District of Philadelphia and Caryl Kline,¹ individually, and as Secretary of the Pennsylvania Department of Education. The defendants filed an array of preliminary objections, one of which was a petition raising a question of the court’s jurisdiction based on the fact that one of the defendants was a Commonwealth officer. The court below properly sustained this objection, causing the matter to be transferred to this court. We must dispose of the remaining preliminary objections.

Demurrers have been filed so that the complaint establishes the facts. The Schoberts are the parents of a moderately brain-damaged child who was accepted for attendance during the 1977-78 school year commencing in September, 1977, by Wordsworth Academy, an approved special education facility. In June, 1977, before sending their child to Wordsworth, the Schoberts applied to the Philadelphia School District for approval of the placement, which approval when followed by the approval of’ the Pennsylvania Department of Education, would have created an obligation in the school district or the Commonwealth or both for the child’s expenses at Wordsworth. The Schoberts alleged that by reason of the negligent performance by the defendants of their duty promptly to act on the application it was not approved until March 2, 1978, almost nine months after it was filed, six months after the child was placed in Wordsworth, and after the Schoberts had become obliged in the first instance to pay Wordsworth $4,198.72.

At oral argument, the Schoberts informed us that their child no longer attended Wordsworth and that injunctive relief (seeking restraint of the defendants from causing the child to be removed from Wordsworth) was no longer sought. Therefore only the Schoberts’ claim for judgment for the $4,198.72 they paid Wordsworth is left in the case, which we treat as we would a complaint in trespass in our original jurisdiction.

Further, the parties stipulated below that Eobert Scanlon, the present Secretary of Education, should be substituted for Caryl Kline as the defendant Secretary of Education. It is not clear whether the parties intended that Caryl Kline in her individual capacity was to remain a defendant. Since the substitution was made at a time when injunctive relief was still sought and may have been done in order to ensure the effectiveness of an order granting injunctive relief, if made, we may assume that Caryl Kline individually remains a party.

An examination of the statutes and regulations concerning the assignment of exceptional children to private facilities is appropriate. The Public School Code of 1949 requires that exceptional children he provided with proper education and training. Act of March 10, 1949, P.L. 30, §1371 et seq., as amended, 24 P.S. §13-1371 et seq. The duty to identify exceptional children and to assign them to the proper educational and training program lies in the first instance with the school district of residence. Id. See 22 Pa. Code §13.11 (b). See also West Chester Area School District v. Secretary of Education, 43 Pa. Commonwealth Ct. 14, 17, 401 A.2d 610, 612 (1979). An exceptional child may he placed in a private facility which has been approved by the Secretary of Education if programs offered by the school district do not answer the child’s needs. Section 1372(3) of the Public School Code of 1949, 24 P.S. §13-1372(3); 22 Pa. Code §13.11 (d). The expense of educating the exceptional child in an approved private facility is borne in the first instance by the school district as part of the district’s duty to provide the child with an education and training. 22 Pa. Code §171.13. See Welsch v. Department of Education, 42 Pa. Commonwealth Ct. 41, 400 A.2d 234 (1979). After the school district has approved the assignment of an exceptional child to a private facility, the school district must submit the assignment to the Department of Education for approval. 22 Pa. Code §171.16 (g). The Department “will approve or disapprove” the assignment within fifteen days of receipt of the application. 22 Pa. Code §171.16 (g) (1). If the application is not acted upon by the Department within fifteen days, it shall he deemed approved. Id. After the application is approved by the Department, the Department will in some instances become solely liable for the expense of the child’s education and in others share that expense with the school district in which the child resides. Section 1376 of the Public School Code of 1949, 24 P.S. §13-1376: 22 Pa. Code §171.19.

In view of the regulation at 22 Pa. Code §171.16 (g)(1) imposing oh the Department the 'duty to approve or disapprove an application for assignment within fifteen days, with deemed approval' the result of failure to act, it is difficult to understand how the Department which is not sued, much less Caryl Kline, then the Secretary, could be shown to have caused any injury to the plaintiffs by failing promptly to dispose of their application. Among Caryl Kline’s preliminary objections is a motion for a more specific pleading. We will grant this motion so that the plaintiffs may plead the date upon which the School District submitted the application for assignment to the Department of Education. If it should appear that the Department received the application from the School District within a period of fifteen days before March 2, 1978, when we are told the assignment was approved, there would be clearly no basis for a suit against Caryl Kline for negligently failing to act— assuming that the deemed approval regulation does not itself preclude any possibility of injury resulting from total failure to act. The grant of the motion for more specific pleading makes it unnecessary for us to dispose of Caryl Kline’s objection based on official immunity, a weighty subject which it may prove unnecessary to decide.

The School District has filed two preliminary objections. First, it contends that the plaintiffs have failed to exhaust their right to a due process hearing on the question of the child’s assignment to the Wordsworth Academy prior to the institution of the present action. Parents of an exceptional child are entitled to a due process hearing under the Depart-merit’s regulations on questions concerning the classification or assignment of their child. 22 Pa. Code §§13.31; 13.33. However, the plaintiffs here are not contesting the School District’s classification or assignment of their child; rather, the plaintiffs are challenging the timeliness with which the School District approved the plaintiffs’ request for assignment of the child to the Wordsworth Academy. The Department’s regulations make no mention of a right to a due process hearing in these circumstances. Moreover, common sense tells us that until the School District reached a decision on the child’s assignment, the plaintiffs had nothing upon which to base a request for a hearing. We therefore will overrule the School District’s preliminary objection based on the failure of the plaintiffs to exhaust their statutory remedies.

Finally, the School District demurs to the complaint; asserting that it cannot assign a child to a private facility until the Department approves the assignment (22 Pa. Code §171.16), and that it has no duty to pay for the costs of the child’s education at Wordsworth before the Department approved the assignment on March 2,1978.

The School District’s contentions miss the point of the plaintiffs’ complaint. The plaintiffs are not seeking to impose liability upon the School District for acting in violation of the School District’s duties under the Public School Code of 1949 and the Department’s regulations. They complain that the School District violated its duty to approve or disapprove reasonably promptly. The portions of the complaint directed against the School District say in effect that but for the School District’s negligence, the plaintiffs’ application would have been processed by the School District and transmitted to the Department sooner than it actually was. The Department would then have acted (or been deemed to have acted) within fifteen days and the plaintiffs would have been entitled to reimbursement for the cost of the child’s education at the Wordsworth Academy at some time earlier than March 2,1978. Since the complaint states a cause of action against the School District, the School District’s demurrer will be overruled.

Accordingly, we enter the following:

Order

And Now, this 22nd day of April, 1981, we sustain Caryl Kline’s motion for a more specific complaint; we overrule all other preliminary objections to the complaint.

The plaintiffs are directed to file an amended complaint within twenty (20) days of the notice of this order, with leave to apply for an extension of the time for filing if discovery is necessary.

Judge Wilkinson did not participate in the decision in this case.

1 This name appears in some of tlie pleadings improperly as Carol Klein.