Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Gilbert Schobert and Thelma Schobert, husband and wife, and as parents and natural guardians of Nadine Schobert, minor v. Michael P. Marcase, Superintendent of Schools, and the School District of Philadelphia, and Caryl Kline, Individually and as Secretary of the Department of Education, No. 6212 October Term, 1978.
Robert Lewis Seigle, for Plaintiffs.
Robert T. Lear, for Defendant, Michael P. Marcase.
David M. Donaldson, Assistant Attorney General, with him Margaret Anderson and John Alzamora, Assistant Attorneys General, for Defendant, The School District of Philadelphia.
Ernest N. Helling, Counsel with him Michael A. Davis, Chief Counsel, Maria P. Vickers, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for Pennsylvania Department of Education.
Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers. Judge Wilkinson did not participate in the decision in this case. Concurring and Dissenting Opinion by Judge MacPhail.
[ 58 Pa. Commw. Page 597]
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,*fn1 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
[ 58 Pa. Commw. Page 598]
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 Robert 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 ...