The opinion of the court was delivered by: RAYMOND J. BRODERICK
Plaintiffs, Michael A. Gaudiello, Jr., a thirteen year old physically disabled child and his parents, Michael A. Gaudiello and Jane Gaudiello, seek in this action to recover damages for alleged violations of section 504 of the Rehabilitation Act 1973 (Count 1) and the Pennsylvania Human Relations Act (Count 2 and 3). Plaintiffs further allege in their complaint, filed on June 13, 1991: Intentional Infliction of Emotional Distress (Count 4), Negligent Infliction of Emotional Distress (Count 5), Declaratory Relief (Count 6), and Injunctive Relief (Count 7). The Defendants, Delaware County Intermediate Unit (the "Intermediate Unit"), Rose Tree Media School District ("Rose Tree"), James F. Shields, Harry J. Jamison, Jr., and Douglas Gaston, have filed a Motion for Summary Judgement pursuant to the Federal Rules of Civil Procedure 56(c) and seek to Strike Plaintiffs' Demand for a Jury Trial.
In connection with defendants' motion for summary judgment, based upon defendants' affidavits and depositions, the material facts concerning which there are no genuine issues are as follows: Plaintiff, Michael A. Gaudiello ("Michael") is a severely physically-impaired 13 year-old. Michael suffers from spinal muscular atrophy and is confined to a wheelchair. He is a handicapped person within the meaning of 504 of the Rehabilitation Act of 1973, the Pennsylvania Human Relations Act, and the Individuals With Disabilities Education Act ("IDEA"). Michael resides in the Chichester School District. However, due to his extreme physical limitations, Michael attended first through fifth grade in the Delaware county Intermediate Unit Program conducted and housed in Rose Tree Media School facilities. The Intermediate Unit provided Michael with an "individualized education program" (IEP).
In April 1990, Michael's parents obtained the services of a support/service dog from Independence Dogs. Prior to this date, in a letter received on March 8, 1990 by defendant Douglas Gaston, Supervisor for the Orthopedically Handicapped Program of the Delaware County Intermediate Unit, Mrs. Gaudiello wrote:
In a few weeks Michael will be taking part in a three-week course in training a dog to help him with his daily everyday activities, the dog will help him be more independent and build self-pride. Instead of Michael waiting for someone to turn on and off a light, get him the telephone opening and closing doors not being able to be left in the house alone for a little while, go to the store by himself like most children his age is doing the dog will be trained to do this. This dog will be Michaels constant companion.
With the time and money going into this program it is important that in order for it to work the dog must attend school with Michael and although there won't be much for the dog to do other than pick up objects and carry books, opening closed doors he is still taking these commands from Michael. This dog will lose a lot of his training if left at home all these hours not doing his duties as he was trained to do.
In closing I would like to add that Michael is a bright and wonderful person who is as independent as he can be at this time in his life and I am very proud of this. But as he gets older his needs will change and I feel as we have to change with him in continuing to help build his independence. Thank you for your time and consideration in this matter.
I received your letter dated March 8, 1990, requesting that Michael be permitted to attend school with a dog that would be trained to assist Michael in achieving greater independence in his activities of daily living. Your letter indicated that continuity in the training of the dog would require the dog's presence in school, although there would be little for the dog to do in school except to pick up objects, carry books, and open and close doors.
After consulting with Michael's teacher, therapists, and support personnel, we believe that an appropriate program of special education can be provided without the use of the service dog. Michael is able to open doors with the assistance of his, motorized chair. He is sometimes assisted by staff in opening doors. His books are carried on the back of his chair. Michael's mobility needs are currently being met.
It appears that the dog's greatest benefit to Michael would be in assisting him outside the educational program. We must recommend against the use of the dog in school because of the lack of any significant benefit to Michael's education.
Upon receiving this letter, Mrs. Gaudiello, asked to meet with Dr. Gaston. The meeting took place on April 20, 1990. By that time, Michael had been participating in a dog ...