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December 22, 1980

Kenneth and Marcia HARK, individually and as parents of Lester Hark
The SCHOOL DISTRICT OF PHILADELPHIA and Michael P. Marcase, Superintendent and Commonwealth of Pennsylvania, Department of Education and Robert Scanlon

The opinion of the court was delivered by: POLLAK


Kenneth and Marcia Hark brought this action on their own behalf and that of their son, Lester, to obtain reimbursement of funds they expended on the special education Lester requires because of his emotional and consequent learning disabilities. By separate order, the defendants' motions to dismiss are denied in part and granted in part.


 The Harks base their case on several federal statutes: 42 U.S.C. §§ 1981 and 1983 (Civil Rights Act); 20 U.S.C. § 1401 et seq. (Education of the Handicapped Act); and 29 U.S.C. § 794 (Rehabilitation Act). The last of these does not in terms provide for a private cause of action; whether a private cause of action is implied is a question now before the Supreme Court. *fn1" Here, the Harks claim that the defendants including the School District of Philadelphia, and its Superintendent Michael Marcase; and the Commonwealth of Pennsylvania Department of Education, and its Secretary Robert Scanlon failed to provide a free and appropriate education for Lester Hark. Such an education in Pennsylvania is guaranteed by the Education of the Handicapped Act, 20 U.S.C. § 1401 et seq., because the Commonwealth receives federal funds, pursuant to the Education of the Handicapped Act, to provide such an education to children handicapped within the meaning of the Act. That Act also requires a due process hearing system to enable parents to intervene in and contribute to the state's decision-making as it relates to a child's placement, evaluation, and the "provision of a free appropriate public education." 20 U.S.C. § 1415. The Harks petitioned the Philadelphia School District for the special placement of their son in 1977, shortly after he had been diagnosed as emotionally disturbed; he was then, plaintiffs allege, an "exceptional" or handicapped child within the meaning of 22 Pa.Code § 13.1 et seq., requiring a special educational program. 22 Pa.Code. § 13.11. *fn2"

 The Harks activated the due process hearing system, but the responsible officials of the School District reached no decision in time to place Lester before the beginning of the 1977-78 school year. The Harks found what they believed to be an appropriate school in Freeville, New York, and have paid the tuition since.

 The due process hearing procedure was completed in 1978. See 22 Pa.Code § 13.31. This apparently resulted in a determination that Lester's placement in the Freeville school was appropriate, at least as of the time he was initially placed. The matter of reimbursement was raised by the plaintiffs at the hearings, but never determined. Plaintiffs suggest this was because the hearing officer had no authority to determine the issue, and no defendant contests this. See 22 Pa.Code, §§ 13.31, 341.18. *fn3"

 Believing they had received a favorable ruling from the hearing officer, the Harks did not appeal to either the Secretary of Education, 22 Pa.Code § 13.32(24), or a federal court. 20 U.S.C. §§ 1415(c), (e). But their attempts to secure reimbursement have been unsuccessful. Indeed, the Harks allege that there simply is no reimbursement procedure in Pennsylvania; and the record before me does not suggest otherwise. They eventually brought suit here, as parties "aggrieved by the findings and decisions made" in the state administrative proceedings. 20 U.S.C. § 1415(e)(2).


 A. The Statute of Limitations.

 Defendants note that this suit was brought approximately 210 days after the final decision by the hearing officer. As there is no federal statute of limitations for this action, defendants suggest that, as with cases under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, the most closely comparable state statute should be applied. In Pennsylvania, "appeals" must be taken within thirty days of administrative agency decisions appealed from, 42 Pa.C.S.A. § 5571(b) (1980 Pamphlet); that requirement, defendants argue, bars this litigation.

 A necessary, if not sufficient, predicate for defendants' argument is that this federal action is substantially equivalent to one the Harks might have brought in a Pennsylvania court as an appeal from the decision of the hearing officer, or as an appeal from a final decision of the Secretary of Education, had the matter been brought to the Secretary. But the Harks assign no error in the rulings in the state administrative proceedings. They do not "appeal" from the findings and recommendations of the hearing officer. *fn4" Thus, the time limitations of section 5571(b) are not applicable here.

 B. Res Judicata and the exhaustion of administrative remedies.

 Defendants suggest that the reimbursement issue should have been litigated in the administrative proceedings, but was not; under Pennsylvania law, they conclude, this is enough for the imposition of the res judicata bar. See, e.g., County of Lancaster v. Philadelphia Electric Co., 386 F. Supp. 934, 937 (E.D.Pa.1975); Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72, 74 (1974). Certainly, the claim for reimbursement was made, but it is in this case uncontradicted that the claim could not have been adjudicated. Hence, the res cannot possibly be judicata.

 Defendants' corollary theory that the plaintiffs failed to exhaust their administrative remedies is not demonstrated by the absence of a reimbursement order, or plaintiffs' failure to appeal to the Secretary of Education finding. The allegation is that no administrative remedy was ever available; under such circumstances, the exhaustion doctrine is clearly irrelevant. Armstrong v. Kline, 476 F. Supp. 583, 602 (E.D.Pa.1979); Doe v. Koger, 480 F. ...

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