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GATEWAY SCHOOL DISTRICT v. COMMONWEALTH PENNSYLVANIA (05/25/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 25, 1989.

GATEWAY SCHOOL DISTRICT, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT

PETITION FOR REVIEW (DEPARTMENT OF EDUCATION)

COUNSEL

Thomas M. Rutter, Jr., Sol., Donald J. Palmer, Goehring, Rutter & Boehm, Pittsburgh, for petitioner.

John Pushinsky, Pittsburgh (Notice of Intervention), for Eric L., Intervenor.

Debra R. Cruel, Yvonne Okonieski, Ernest N. Helling, Asst. Chief Counsel, Jay P. Heubert, Chief Counsel, Harrisburg, for Dept. of Educ.

Craig, Doyle and Palladino, JJ.

Author: Palladino

[ 126 Pa. Commw. Page 258]

Gateway School District (Petitioner) appeals from an order of the Secretary of the Department of Education (Secretary) adopting the recommendation of a hearing officer that Petitioner develop an Individualized Education Program (IEP), for Eric L., which includes college level courses. For the reasons set forth below, we quash Petitioner's appeal.

This case arose when, in October of 1987, Eric L., a gifted student in the Gateway School District, and his parents requested an educational due process hearing. Eric was then attending the twelfth grade during the 1987-1988 school year. He had participated in Petitioner's gifted program since he was in first grade.*fn1 The hearing officer found that the last IEP which included mathematics was designed by Petitioner when Eric was in sixth grade. Finding of Fact No. 5. The hearing officer further found that by the time Eric was in eighth grade, he had completed all of the mathematics courses appropriate for him that were offered by Petitioner. Finding of Fact No. 5. As a result, Eric began attending college-level mathematics classes and has since accumulated approximately thirty (30) credits. Eric's parents paid his tuition and arranged for his transportation to classes, while Petitioner adjusted Eric's high school class schedule in order to accommodate his attendance at the college classes.

At the beginning of the 1987-1988 school year, Petitioner

[ 126 Pa. Commw. Page 259]

    designed an IEP*fn2 for Eric, which provided goals and objectives in the areas of language arts and vocabulary, but not mathematics because neither Eric nor his parents requested such a math program. Thereafter, Eric and his parents requested an educational due process hearing*fn3 for the purpose of determining whether the grades which Eric had earned in his college math courses should be included by Petitioner when computing Eric's grade point average. Eric and his parents also requested Petitioner to provide Eric with a mathematics program in his IEP.

After several hearings, the special education hearing officer issued a recommendation on March 24, 1988 directing Petitioner to develop an IEP for Eric which would include the college math courses he was taking or was scheduled to take during the 1987-1988 school year. In addition, the hearing officer recommended that the grades which Eric had earned or would earn in those courses be averaged into his grade point average. The hearing officer further recommended that Petitioner not be required to average into Eric's grade point average the grades received in his college courses prior to the 1987-1988 school year.

Petitioner filed timely exceptions to the hearing officer's recommended decision, challenging only that portion of the decision directing it [Petitioner] to average Eric's grades from the 1987-1988 college courses into his high school grade point average. By letter dated May 25, 1988, Petitioner filed "amended" exceptions, challenging the hearing officer's recommendation that Petitioner include Eric's 1987-1988 college courses in his IEP for that year.

By order dated May 26, 1988, the Secretary upheld Petitioner's original exceptions, but did not address the "amended" exceptions.*fn4 The Secretary determined that Petitioner

[ 126 Pa. Commw. Page 260]

    was not required to include Eric's college course grades in his high school grade point average, holding that grading policy is a matter of local school district discretion. The Secretary adopted the remainder of the hearing officer's findings of fact, conclusions of law, and recommendations. Petitioner then filed a petition for reconsideration, which was received by the Secretary on June 7, 1988. Because the Secretary did not act on Petitioner's request within thirty (30) days, the request was deemed denied. 1 Pa.Code § 35.241.

On June 24, 1988, Petitioner filed a petition for review with this court, contending that the decision of the Secretary, adopting the hearing officer's recommendation that Petitioner develop an IEP for Eric which includes his 1987-1988 college math courses, is contrary to law, unsupported by substantial evidence, and constitutes an abuse of discretion. Eric L. has filed a motion to strike or quash the petition for review on the ground that the issue raised in the petition was waived by Petitioner because of its failure to timely except to that portion of the hearing officer's decision. Petitioner's petition for review, Eric L.'s motion to strike/quash, and Petitioner's answer thereto are now before this court for disposition.

Initially, we note that exceptions to a hearing officer's proposed report must be filed within thirty (30) days of service of the proposed report. 1 Pa.Code § 35.211. Failure to except in a timely manner shall constitute a waiver of objections. 1 Pa.Code § 35.213. On appeal from a final order of an administrative agency, a reviewing court may address only those issues which were raised in exceptions to the agency. Anthony Iron & Metal Co. v. Department of Transportation, 109 Pa. Commonwealth Ct. 347, 531 A.2d 90 (1987).

Notwithstanding this general limitation, a reviewing court may consider questions involving the validity of a

[ 126 Pa. Commw. Page 261]

    statute, questions involving subject matter jurisdiction, and questions which the court is satisfied could not, by the exercise of due diligence, have been raised before the government agency. Pa.R.A.P. 1551; see also 2 Pa.C.S. § 703 (party proceeding before Commonwealth agency under terms of particular statute shall not be precluded from questioning validity of statute on appeal, but may not raise on appeal any other question not raised before the agency unless allowed by the court upon due cause shown).

In this case, Petitioner contends that the merits of the issue raised in the petition for review, namely, the inclusion of Eric's 1987-1988 college math courses in his IEP, should be considered by this court because of the recent decision of the Pennsylvania Supreme Court in Centennial School District v. Department of Education, 517 Pa. 540, 539 A.2d 785 (1988). Petitioner asserts that the decision in Centennial School District was not available to it at the time the original exceptions were filed.*fn5 Petitioner argues that Centennial School District constitutes both new and dispositive case law on the issue of the extent of a school district's obligations to gifted students.*fn6 Petitioner further

[ 126 Pa. Commw. Page 262]

    asserts that, upon becoming aware of the Centennial School District decision, it filed the amended exceptions in a reasonably prompt manner. Thus, Petitioner contends that it has not waived the issue of inclusion of college courses in Eric's IEP.

This court held in Doe-Spun, Inc. v. Morgan, 93 Pa. Commonwealth Ct. 447, 502 A.2d 287 (1985) that on appeal, a new and different theory of recovery may not be advanced for the first time. However, a party may cite new and different authority for a theory raised below. Id. Here, Petitioner only excepted to that portion of the hearing officer's recommendation which directed Petitioner to include Eric's college course grades when computing his high school grade point average. In this case, Petitioner has offered no reason why it could not have raised the issue of the correctness of the hearing officer's recommendation that Eric's IEP include his 1987-1988 college courses in its exceptions to the hearing officer's decision, other than its assertion that authority favorable to its position came to its attention after it had filed the original exceptions. We conclude that this is insufficient to overcome the waiver rule.*fn7 Anthony Iron & Metal.

Accordingly, we quash Petitioner's appeal.

Order

AND NOW, May 25, 1989, the motion of Eric L. to quash the appeal in the above-captioned matter is granted and Petitioner's appeal is quashed.


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