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GERALD T. SILVIO AND CAROL A. SILVIO v. COMMONWEALTH PENNSYLVANIA (01/20/82)

decided: January 20, 1982.

GERALD T. SILVIO AND CAROL A. SILVIO, PARENTS AND NATURAL GUARDIANS OF MELISSA SILVIO, A MINOR, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT



Appeal from the Order of the Secretary of Education in case of In Re: The Educational Placement of Melissa S., a student in the School District of Pittsburgh, Special Education Opinion No. 144.

COUNSEL

Mark J. Goldberg, Goldberg & Wedner, P.C., for petitioners.

Ernest N. Helling, Assistant Attorney General, with him Michael A. Davis, Assistant Attorney General, Chief Counsel, for respondent.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. Judge Palladino did not participate in the decision in this case.

Author: Rogers

[ 64 Pa. Commw. Page 194]

Melissa Silvio, an eight-year-old hearing impaired person, who resides with her parents in the School District of Pittsburgh, had been attending DePaul Institute, an approved private school for hearing impaired children, from the time her impairment was discovered when she was about three years old. Her attendance at DePaul has been publically funded. When Melissa attained the school attendance age of six years, the school district, after a review of her case records kept by DePaul, determined that an appropriate program would be her attendance at the district's Beechwood School, an elementary school having special programs for hearing impaired children. Melissa's parents, the appellants here, objected to the proposed placement, believing that Melissa was making good progress in her ability to speak and understand speech at DePaul and that the district should so provide. They asked for and were accorded the due process hearing provided for at 24 Pa. Code § 13.31. After five days of hearings which produced almost eight hundred pages of testimony, the hearing officer filed a report containing findings and a recommendation to the Commonwealth Secretary of Education that the program proposed by the district for Melissa, her placement at Beechwood, was appropriate. On appeal, the Secretary of Education agreed with the hearing officer's recommendation but by imposing upon the district the duty to provide Melissa with a program which would concentrate on her oral development.

This case is almost identical on the facts with the case of Savka v. Department of Education, 44 Pa. Commonwealth Ct. 62, 403 A.2d 142 (1979) and many of the appellants' objections to the placement of their daughter in the public school system are the same as those made and disposed of adversely to the parents' positions in that case. In this category of complaint is

[ 64 Pa. Commw. Page 195]

    the appellants' contention that the school district should have made its own evaluations instead of relying on records obtained from DePaul, dismissed in Savka on the ground that the petitioners cited no authority prohibiting this practice and the fact that under existing regulations the appellants could have requested a fresh evaluation and did not do so. The same circumstances obtained in this case. In the same stead is the appellants' argument that the records on which the placement determination was made were outdated. The State Board of Education regulations at 22 Pa. Code § 13.31(c) requires that an exceptional person must be evaluated not less than every two years or annually at the request of the parents. No request for an annual evaluation was made by Melissa's parents so that question is solely that of whether the evaluations here used were more than two years old. The school district relied on the psychological, audiological and educational tests made at DePaul in March and November of 1977. Since the placement at Beechwood was made in May, 1978, the evaluation was conducted within two years and therefore was not outdated. In Savka the same determination with respect to evaluation was made somewhat closer to the date of placement.

The appellants also complain that they were denied an impartial hearing because the hearing officer was a professor at Slippery Rock State College and therefore, as they term it, an employee of the Secretary of Education. In Savka, we held this issue to have been waived for failure of the parents to object to the hearing officer's conducting the hearing; here an objection was made. We reject the appellants' thesis on the merits of this case. The only regulation on the subject is that found at 22 Pa. Code § 13.32(12) which states that the hearing officer should not be an officer, employee or agent of the school district or intermediate

[ 64 Pa. Commw. Page 196]

    unit in which the exceptional child resides. In recent cases we have held that due process principles were not violated when the attorneys for the same agency appeared in different roles in an employee demotion proceeding, since functions performed by the attorneys were different and there was no actual prejudice. Miller v. Department of Transportation, 59 Pa. Commonwealth Ct. 446, 429 A.2d 1278 (1981). We have also held that no improper commingling of adjudicatory and prosecutory functions occurred when one assistant state attorney general served as a hearing officer and another prosecuted, an insurance licensure case. Romano v. Pennsylvania Insurance Commission, William J. Sheppard and the Pennsylvania Insurance Commission, 45 Pa. Commonwealth Ct. 19, 404 A.2d 758 (1979). The hearing officer in this class of case does not have final adjudicatory authority; he simply hears the evidence and makes recommendations to the Secretary. Furthermore, the hearing officer here, a professor at Slippery Rock State Teachers College, could hardly be said to be subject to the influence of the Secretary of Education merely because both are functionaries of the Department of Education. Finally, on this subject, a fair reading of this record reveals that the hearing officer's rulings were if anything overly favorable to the appellants. For instance, on the motion of their counsel, the hearing officer sequestered the witnesses although most of the testimony was of a highly technical nature ...


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