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SMITH v. PHILADELPHIA SCH. DIST.

February 3, 1988

Jeanne Smith, By and on Behalf of Katherine Joy Smith and Jeanne Smith, in her own right
v.
Philadelphia School District v. Richard B. Shohen



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, S.J.

 Plaintiffs' complaint attempts to assert a federal civil rights cause of action for damages against the School District of Philadelphia and an individual person, Richard B. Shohen. The dispute between the parties centers around the public educational program provided to Katherine Joy Smith, who was a seven year old, second grade public school student during the school year 1984-1985. Plaintiffs allege that the child Katherine received an "inappropriate education" because of the School District of Philadelphia's policy to "teach all students at the same grade level"; that is, that "all students in one grade are taught at that grade level, rather than dividing each class into groups or tracts." Complaint para. 7. The complaint alleges as the basis for federal jurisdiction, 28 U.S.C. § 1343, Complaint para. 4. The complaint also alleges that "Katherine Joy Smith suffered grievous emotional and physical harm, all of which is in violation of her rights under the laws of the Constitution of the United States, in particular the 14th amendment and 42 U.S.C. § 1383, 1985 and the laws of Pennsylvania." *fn1" Complaint para. 34.

 Defendants have moved to dismiss the complaint for various reasons, including failure to state a claim upon which relief can be granted. The motion to dismiss will be granted.

 For purposes of ruling on the motion to dismiss, the factual allegations of the complaint must, and will, be treated as accurate. Accordingly, Katherine Joy Smith was enrolled in the public school system of the Philadelphia School District when she was six years old, although the mandatory age for enrolling school children is eight years old. During her second grade year at school she was having reading difficulties and difficulty in "keeping up" with her class. Because of these observed problems, she was tested by school authorities to determine whether she should be classified as "learning disabled." Results of some of the tests would characterize her as learning disabled while other tests tended to establish that she was not learning disabled. Complaint para. 8. *fn2" Katherine Smith's mother Jeanne, also a plaintiff, requested that she be permitted to teach her daughter at home, but she was advised "there was no way" she could do this, despite an authorized home teaching program in Pennsylvania. She requested information as to such a program from the School District of Philadelphia, but was never advised about the program.

 Katherine became ill daily because of frustration and pressure exerted upon her by school officials regarding her reading problems. As a result, Jeanne Smith removed her daughter from school without obtaining permission from the school authorities. On April 22, 1985, a criminal complaint was filed against Jeanne Smith for her daughter's truancy. These charges were subsequently dismissed. *fn3" The truancy charges against Jeanne Smith were brought much more quickly than such charges are normally brought following a child's unexcused absences from school. Katherine's school records were altered to show unexcused absences on some occasions when absences had previously been excused.

 The complaint seeks only monetary damage awards. It apparently seeks such damages on behalf of both Katherine and her mother Jeanne Smith for emotional and physical harm caused by the "unlawful actions of defendant." Complaint para. 34. The complaint fails to specify which defendant each plaintiff seeks to hold liable, but apparently Katherine's claim seeks damages only against the School District of Philadelphia.

 Count II of the complaint is entitled, "Smith v. Shohen," but fails to identify which plaintiff is intended. Count II appears to seek monetary damages against defendant Richard B. Shohen. There is no allegation of any basis for federal jurisdiction as to Count II. Plaintiffs' brief in opposition to the motion to dismiss (p.14) contends only that "Federal Court has jurisdiction pursuant to pendant jurisdiction." Also, it would appear from plaintiffs' brief that the claim in Count II is only against defendant Richard B. Shohen. As nearly as can be gleaned from the complaint and plaintiffs' brief, the claim against Richard B. Shohen is either for false arrest, *fn4" malicious prosecution, or some undefined tort of malicious harassment -- possibly intentional infliction of emotional distress.

 The complaint identifies Richard B. Shohen only as "an individual with a place of business at the Watson Comly Elementary School, Byberry annd Kelvin Roads, Philadelphia, Pennsylvania, 19116." para. 3. Nowhere in the complaint is there any allegation that Mr. Shohen had or has any official or even unofficial position, connection or association with the School District of Philadelphia. No affidavit has been filed setting forth his position. The only reference to Mr. Shohen's status is on page 17 of plaintiffs' brief where plaintiffs state that this action "only names the school district and the principal of the school that failed to provide an education for Plaintiff Katherine Smith."

 On the basis of the allegations in the complaint, it is quite clear that there is no federal cause of action against Richard B. Shohen, and any claims against him can only be sustained on the basis of pendent jurisdiction. In order for there to be any possible federal civil rights action asserted against him, in the context of this case, Mr. Shohen's actions or inactions would have to have been taken as a result of "state action." So far as the allegations of the complaint disclose, Mr. Shohen is simply a private individual person. There has been no attempt to amend the complaint. Plaintiffs' counsel is apparently only claiming pendent jurisdiction over Mr. Shohen and asserting only state law claims against him. However, to the extent, if any, that plaintiffs are seeking to assert some violation of their federal civil rights by the defendant Richard B. Shohen, such claims will be dismissed for failure to state a claim upon which relief can be granted.

 The more substantial issue is whether plaintiffs have stated any cognizable federal cause of action against the School District of Philadelphia. The complaint is certainly not clear as to the theory of liability and plaintiffs' brief in opposition to the motion to dismiss is not enlightening. Count I, entitled "Violation of Equal Protection," appears to contend that the allegedly "inappropriate education" being provided by the School District of Philadelphia somehow denies Katherine Smith equal protection of law to which she is entitled by the fourteenth amendment of the Constitution of the United States. In paragraph 28 of the complaint, plaintiffs allege that "Pennsylvania Statue [sic] 24 Pa. § 5002(a) states that is [sic] is the policy of Pennsylvania that all persons should have equal opportunities for education." From this statute, plaintiffs seem to contend that failure to provide an individualized educational program appropriate to each child's individual skills and abilities is a federal constitutional failure to provide equal protection.

 Plaintiffs fail to cite the entire section of Pa. Stat. Ann. tit. 24, § 5002(a) (Purdon 1987), which provides:

 
It is hereby declared to be the policy of the Commonwealth that all persons shall have equal opportunities for education regardless of their race, religion, color, ancestry, national origin or sex.

 Significantly, there is no allegation or contention that the educational opportunities provided to Katherine Smith differed in any way from the educational opportunities provided to other students because of any discrimination or bias on account of her race, religion, color, ancestry, national origin or sex. Instead of treating her differently from other students similarly situated, the complaint makes quite clear that ...


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