This is a redacted version of the original decision. Select details have been removed from the
decision to preserve anonymity of the student. The redactions do not affect the substance of
Special Education Hearing Officer
Child’s Name: C.S.
Date of Birth:
ODR No. 3152-11-12-KE
Parties to the Hearing:
Chichester School District 401 Cherry Tree Road Aston, PA 19014
Carol Herring, Esquire P.O. Box 407
Glen Mills, PA 19342
Thomas C. Warner, Esquire
Sweet, Stevens, Katz & Williams, LLP 331 Butler Avenue
New Britain, PA 18901
Dates of Hearing: November 2, 2012; November 12, 2012
Record Closed: November 18, 2012
Date of Decision: November 18, 2012
Hearing Officer: William F. Culleton, Esquire, CHO
INTRODUCTION AND PROCEDURAL HISTORY
The child named in the title page of this decision (Student) is an eligible student enrolled in the District named in the title page of this decision (District). Student attends a District school. Parent requested due process, regarding an alleged incident in which a school administrator allegedly touched, pushed or struck Student and suspended Student inappropriately. Parent alleged assault and battery, violations of constitutional due process guarantees, spoliation of evidence, procedural violations regarding a three day suspension, and retaliation and discrimination under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. The District moved to dismiss for lack of jurisdiction. In a ruling and order dated November 12, 2012 (HO-14), this hearing officer dismissed for lack of jurisdiction all claims except the section 504 claim, which was scheduled for hearing on November 20.
Despite three hearing dates scheduled and noticed formally, Parent failed three times to convey to the District the five day notice required in due process hearings in Pennsylvania, including the five day notice expressly directed by the Hearing Officer in a ruling forwarded to counsel on November 12, 2012 (HO-11). The District now moves to dismiss all remaining claims, and I hereby dismiss them, although I dismiss certain claims without prejudice.
1. Should the Parent’s Complaint Notice alleging various violations of law, including a violation of section 504, be dismissed for lack of jurisdiction and due to Parent’s repeated failure to provide the usual five day notice to the District prior to hearing?
Based upon a review of the correspondence file in this matter, I find that:
- Parent filed this request for due process on or about May 14, 2012, and the matter was scheduled for hearing on June 4, 2012. (Complaint, May 10, 2012.)
- Parent’s attorney entered an appearance on June 1, 2012. (Letter, Carol Herring, Esquire to ODR, May 10, 2012, attached.)
- The June 4, 2012 hearing date in the matter was cancelled and time lines suspended at Parent’s request to allow for amending the complaint. The June 15 deadline for amending the complaint was extended twice at the request of parent’s counsel, to June 27. Parent filed an amended complaint on June 26. A hearing was scheduled for August 26, 2012. (HO-2.) (Amended Complaint, 6-26-12.)
- The August 26 hearing date was rescheduled three times, twice at Parent’s request and once at District request, to November 2 by telephone conference call for oral argument only on District motions to dismiss for lack of hearing officer jurisdiction. (HO-6-10.)
- Parent’s counsel objected to going forward on November 2 due to lack of notice that oral argument was expected, and the matter was scheduled for an additional session on November 12, 2012 at 9:30 AM. At 7:14 AM on November 12, Parent’s counsel left an email message with District counsel and the hearing officer, stating that counsel and Parent would not appear because counsel decided to go to an emergency room at that time due to a fall that had occurred during the preceding weekend. The hearing commenced, but was terminated after about one hour due to absence of counsel, and an additional session was scheduled for November 20 at 6 PM. (NT 56-75, 97-119; HO-1, 11.)
- The District challenged the hearing officer’s jurisdiction to entertain the complaint on May 22, 2012, and renewed its objection to jurisdiction orally after Parent’s counsel entered appearance. In a conference call, the hearing officer granted permission to Parent’s counsel to file written arguments on the issue of jurisdiction, and extended the time for filing twice at counsel’s request to August 27, 2012. On that date, counsel advised that counsel would not file any papers, and the hearing officer indicated that the jurisdictional issues would be addressed on the first hearing date. On November 2, 2012, the hearing officer invited Parent’s counsel to file briefs at counsel’s discretion prior to the hearing on November 12; Parent’s counsel did not do so. (HO-4, 5.)
- On October 24, the District provided five day notice of witnesses and documents to be offered into evidence. Parent failed to provide the District with five day notice of witnesses and documents to be offered into evidence prior to the October 31, 2012 hearing date, and the hearing dates subsequently scheduled for November 2, November 12 and November 20. (NT 88-93, 97-119; HO-10.)
- On November 9, 2012, District counsel moved to exclude any evidence to be offered by Parent due to failure to provide five day notice of evidence. Counsel again moved to exclude all Parent’s evidence on November 14, 2012. (HO-12, 13.)
- On November 14, the hearing officer provided Parent with an opportunity to respond regarding the failure to provide five day notice, setting a deadline of noon on November 15. Parent failed to either confirm or deny failing to file the five day notice, which was due by November 13. (HO-13.)
- On November 15, School District counsel reported having received from Parent’s counsel a message purporting to be a five day notice, which was received three business days before the scheduled hearing on November 20, 2012. Counsel renewed the District’s motion to dismiss all remaining claims. (HO-13.)