Original jurisdiction in case of Wordsworth Academy v. Judith Gaugler and Robert Scanlon, Secretary of Education, and Department of Education, and Superintendent, Exeter School District.
Thomas F. Oeste, with him James J. Garrity, Wisler, Pearlstine, Talone, Craig & Garrity, for petitioner.
Sylvia Meek, for respondent, Judith Gaugler.
Wayne M. Richardson, Regional Legal Counsel, for respondent, Robert Scanlon, Secretary of Education.
Jon S. Malsnee, Edelman, O'Pake, Malsnee & Orwig, for respondent, Exeter School District.
President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Blatt.
[ 70 Pa. Commw. Page 495]
It appears from the pleadings in this case that Wordsworth Academy (Academy) brought a suit in assumpsit in the Court of Common Pleas of Berks County against Judith Gaugler to collect charges for services rendered to Mrs. Gaugler's son, an exceptional child, for the period from the fall of 1976 until the spring of 1978. Subsequently Mrs. Gaugler joined in the action the Secretary of Education (Secretary), the Department of Education (Department) and the Superintendent of Exeter School District (School District) (collectively Additional Defendants) as Additional Defendants alleging, inter alia, that they and not she were liable to the Academy for charges assessed for the period from September 1976 to December 1977.
Preliminary objections were filed by all Additional Defendants. The trial court sustained the objection of the Secretary and the Department to the jurisdiction of the Court of Common Pleas and transferred this case in its entirety to this Court pursuant to the provisions of Section 5103 of the Judicial Code, 42 Pa. C.S. § 5103.
After the case was transferred, the Secretary filed a new set of preliminary objections to which no objection was filed by Mrs. Gaugler. While we believe it would have been more proper for us to address the
[ 70 Pa. Commw. Page 496]
objections as they appeared in the case at the time it was transferred to us, we will proceed to rule upon the Secretary's objections filed in this Court since there is no substantial difference between those and the ones filed in the trial court. The School District briefed for us the preliminary objections it had filed in the trial court. A demurrer is included in those objections.
The demurrers filed by the Additional Defendants assert that Mrs. Gaugler has failed to state a cause of action against them because her complaint nowhere avers that the Commonwealth and/or the School District had ever contracted with the Academy to pay the child's expenses nor does the complaint aver that Mrs. Gaugler's administrative proceedings before the Secretary to obtain approval under Section 1376 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1376 for the payment by the Commonwealth and the School District of the costs of her son's placement were successful. In fact, Mrs. Gaugler's complaint states that in October, 1977, the Secretary overruled a decision of the hearing officer approving such payment. It is not averred in the complaint of Mrs. ...