Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Mary Beth Agostine v. School District of Philadelphia, No. 193 March Term, 1981.
Lawrence D. Finney, with him, Lisa A. Watkins, Krimsky, Levy, Angstreich & Finney, P.C., for appellant.
Andrew M. Rosen, with him, Robert T. Lear and Patricia A. Donovan, for appellee.
President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Colins dissents. Dissenting Opinion by Judge Barry.
[ 106 Pa. Commw. Page 493]
Mary Beth Agostine appeals a Philadelphia County Common Pleas Court order granting the School District
[ 106 Pa. Commw. Page 494]
of Philadelphia's motion for judgment on the pleadings and dismissing her complaint with prejudice. We affirm.
In 1967 Agostine entered the Philadelphia public school system (District) and was tested and diagnosed as educable mentally retarded (EMR).*fn1 Accordingly, she was placed in a special class for EMR children. Pursuant to the Department of Education's (Department) regulations,*fn2 Agostine was reevaluated every other year and remained in the EMR class until her departure in 1980.
[ 106 Pa. Commw. Page 495]
The following year Agostine sought damages in trespass and alleged that the District negligently diagnosed her as EMR when in fact she was learning disabled (LD).*fn3 The District asserted that the complaint failed to state a claim upon which relief could be granted.
The common pleas court granted the District's motion for judgment on the pleadings, characterizing Agostine's complaint as an educational malpractice action. It treated the complaint as seeking relief under the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 -- 16-1613, and held that "neither the statutes nor the case law of Pennsylvania recognize the existence of an educational ...