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ROBERT J. MURPHY v. COMMONWEALTH PENNSYLVANIA (05/27/83)

decided: May 27, 1983.

ROBERT J. MURPHY, JR., ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT



Appeal from the Order of the Secretary of Education in the case of In Re: The Educational Assignment of Robert M., a student in the Towanda Area School District, Special Education Opinion No. 189.

COUNSEL

Jack M. Stover, Shearer, Mette & Woodside, for petitioners.

John A. Alzamora, with him Takashi A. Bufford, Assistant Counsel, and Michael A. Davis, Chief Counsel, for respondents.

President Judge Crumlish, Jr. and Judges Blatt and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 74 Pa. Commw. Page 500]

This is an appeal by Robert J. Murphy, Jr. and Ann N. Murphy (Appellants) on behalf of their learning disabled son, Robert, from the order of the Secretary of Education (Secretary) which adopted the recommendation of a hearing officer placing Robert at the Wordsworth Academy (Wordsworth), a private school located in Pennsylvania. Appellants, who argue that there does not exist, within Pennsylvania, an appropriate program of education for their son, seek placement of Robert at the Landmark School (Landmark), an out-of-state school. Appellants also seek reimbursement of tuition monies paid for Robert's education at Landmark. Following a thorough review of the record, we reverse and remand the order of the Secretary.

Robert, a resident of the Towanda Area School District (District) is an "exceptional person"*fn1 who was enrolled in the District's schools from kindergarten through seventh grade. Since the third grade, Robert had participated in the District's program for the learning disabled. Appellants, however, were disappointed with Robert's progress and therefore removed him from the District's schools. Robert spent his eighth and ninth grades at different parochial schools. Thereafter, Appellants became aware of Landmark, a school for learning disabled and multihandicapped children located in Massachusetts. Robert has been continuously enrolled at Landmark since the 1980 summer session. During the Spring of 1980, Appellants sought approval of the out-of-state placement at Landmark. Following a review by District personnel, a Notice

[ 74 Pa. Commw. Page 501]

    of Recommended Assignment was issued recommending that Robert be placed at Wordsworth which is specifically approved for tuition reimbursable special education of both learning disabled and emotionally disturbed adolescents. Appellants rejected this recommendation, and requested an administrative hearing to test the validity of the District's recommendation. Following a June 2, 1981 hearing, the hearing officer rendered an interim decision on July 20, 1981 wherein he recommended that an Individualized Educational Plan*fn2 (IEP) be established for Robert. On September 10, 1981, Robert's IEP was established by a team which included Appellants and representatives of the District. Based upon this IEP, the District reiterated the original recommendation that Robert be placed at Wordsworth. On October 5, 1981, the hearing officer issued a final decision which supported the

[ 74 Pa. Commw. Page 502]

    recommended placement of Robert at Wordsworth. Appellants filed timely exceptions to the hearing officer's initial and final reports. On January 20, 1982, the Secretary entered an order dismissing Appellants' exceptions and adopting the recommended order of the hearing officer. Appeal to this Court followed.

We must affirm the order of the Secretary unless a violation of constitutional rights has occurred, an error of law has been committed, or the findings of fact are not supported by substantial evidence. West Chester Area School District v. Secretary of Education, 43 Pa. Commonwealth Ct. 14, 401 A.2d 610 (1979).

All handicapped school-aged persons are entitled to an appropriate program of education or training. 22 Pa. Code ยง 13.11(a). An ...


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