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ALESSI v. PENNSYLVANIA

March 27, 1989

CYNTHIA ALESSI, By her parents and next friends RICHARD ALESSI AND ENOLA ALESSI, Plaintiffs,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE and JOHN WHITE, SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, Defendants



The opinion of the court was delivered by: KATZ

 MARVIN KATZ, UNITED STATES DISTRICT JUDGE.

 The parents of Cynthia Alessi, a blind and mentally retarded young woman, brought this civil rights action on her behalf to obtain the state funding that is essential to her placement in a private residential facility. Plaintiff asks this Court for a preliminary injunction ordering Ms. Alessi's immediate placement at either the Royer-Greaves School for the Blind or the Elwyn Institute. Because I find that Ms. Alessi has a property interest receiving adequate services suitable to her needs, I will grant the preliminary injunction.

 The stipulated facts *fn1" are as follows:

 1. Cynthia Alessi is a profoundly mentally retarded and legally blind young woman; in addition to suffering from profound mental retardation and blindness, Ms. Alessi has a congenital heart defect, is hyperactive, has an active seizure disorder, and experiences significant behavioral difficulties.

 2. From 1978 through June, 1986, Cynthia resided at the Royer-Greaves School for the Blind ("Royer-Greaves"), pursuant to an education placement provided by the Haverford School District and the Pennsylvania Department of Education.

 3. During her eight-year stay at Royer-Greaves, Ms. Alessi made significant gains for a person with her disabilities, and had become happy, emotionally stable, non self-abusive, and toilet trained.

 4. At the conclusion of Ms. Alessi's educational entitlement in June of 1986, Ms. Alessi was sent home to her parents. Under applicable federal and state educational statutes and regulations, Ms. Alessi's entitlement to educational services terminated the last day of June following her twenty-first (21st) birthday. 20 U.S.C. § 1412(2)(B); 34 C.F.R. § 104.3(K)(2), 300.300; 24 P.S. § 13-1371; 22 Pa. Code § 13.1, 341.1.

 5. During the time period from her June, 1986 discharge from the Royer-Greaves School to the present time, Ms. Alessi has lost virtually all of the training which she gained during her eight years at Royer-Greaves. For example, Ms. Alessi now engages in self-abusive and self-stimulatory behaviors, has lost all of her toilet training skills, has lost most of the minimal sign language that she had acquired at Royer-Greaves, and has become less physically active and is overweight. During this same time period, Ms. Alessi has increasingly awakened with greater frequency during the middle of the night, and engaged in screaming and self-abusive or self-stimulatory activity.

 6. Inasmuch as Ms. Alessi's parents realized that Cynthia's educational entitlement would end in June, 1986, the Alessis made application to the other mental retardation residential facilities through the Delaware County Mental Health and Mental Retardation Administration during the two years prior to June of 1986. These applications were made to facilities known as Intermediate Care Facilities for the Mentally Retarded ("ICF/MR"), which are federally funded facilities for the mentally retarded. However, the facilities contacted could not provide the full range of services which Cynthia needed and did not accept her.

 7. The Royer-Greaves School continued to be willing and able to provide services to Ms. Alessi. If called to testify at a hearing in this matter, a representative of the Delaware County Mental Health/Mental Retardation Administration ("MH/MR Administration") would testify that the MH/MR Administration was unable to provide these services, due to the receipt of inadequate funds from the Department of Public Welfare ("Department") to provide residential services to all mentally retarded persons in Delaware County who required them.

 8. In October, 1986, Cynthia Alessi's parents petitioned for the involuntary commitment of their daughter to an appropriate mental retardation residential facility pursuant to Section 406 of the Pennsylvania Mental Health and Mental Retardation Act, 50 P.S. § 4406. Neither the Department of Public Welfare nor any of its officials or employees was made a party to the involuntary commitment proceeding, although notice of the proceeding was given. Therefore, no one from the Department was present or had any involvement in that proceeding.

 9. At the conclusion of the commitment hearing, the Honorable Robert A. Wright of the Court of Common Pleas of Delaware County ordered that Cynthia Alessi be committed to the Royer-Greaves School at the expense of the Department of Public Welfare.

 10. The Department of Public Welfare appealed from this Order, and the Commonwealth Court quashed the Department's appeal. Commonwealth v. Alessi, 105 Pa. Commw. 453, 524 A.2d 1052 (1987).

 11. Although the October, 1986 Commitment Order of the Delaware County Court of Common Pleas was not withdrawn or modified following the Commonwealth Court decision quashing the Commonwealth's appeal, the Department of Public Welfare did not comply with this Order and, after hearings in June and July of 1987, was held in contempt by the Delaware County Court of Common Pleas on August 31, 1987.

 12. The Department of Public Welfare appealed from this contempt order, and on August 24, 1988, the Commonwealth Court reversed the trial court's contempt order. Commonwealth v. Alessi, 119 Pa. Commw. 160, 546 A.2d 157 (1988).

 13. In May, 1988, plaintiff filed a civil rights action for declaratory and injunctive relief and damages against the Department of Public Welfare, Secretary White, and two officials of the Department in the Court of Common Pleas of Delaware County to obtain a residential placement. The action alleged a violation of Cynthia Alessi's rights under the Due Process Clause of the Fourteenth Amendment and was brought under 42 U.S.C. §§ 1983 and 1985. Plaintiff filed a motion for a preliminary injunction at the same time the complaint was filed. A hearing on the motion for a preliminary injunctive relief was held on June 9, 1988. At that hearing, the Department raised preliminary objections challenging, inter alia, the jurisdiction of the Delaware County Court of Common Pleas to determine claims against Commonwealth officers for declaratory and injunctive relief brought under 42 U.S.C. § 1983 and § 1985. On November 28, 1988, the Delaware County Court sustained the Department's objections relating solely to the claims for declaratory and injunctive relief under 42 U.S.C. §§ 1983 and 1985 and dismissed the remaining objections. Plaintiff's claims for damages under § 1983 and 1985 against the defendants are pending in the Delaware County Court.

 14. If called to testify at a hearing in this matter, Dr. Dorrie Rapp, Kathleen Moffa of the Delaware County MH/MR Administration, Anna Perry of the Royer-Greaves School and Dr. William Keilbaugh of the Haverford School District would testify in a manner consistent with their testimony at the October 28, 1986 commitment hearing in the Delaware County Court of Common Pleas; a copy of said testimony is attached to the plaintiff's Motion for Preliminary Injunction.

 15. If called to testify at a hearing in this matter, Anna Perry and Richard Alessi (the parent of Cynthia Alessi) would testify in a manner consistent with their testimony at the June 3, 1987, and July 22, 1987 contempt ...


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