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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlynton School District,
:

Petitioner

:

: No. 1008 C.D. 2002

v.

: Submitted: December 6, 2002

:
D.S. and His Parents,

:

Respondent

:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE
DAN
PELLEGRINI, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION
BY SENIOR JUDGE McCLOSKEY

FILED: January 17, 2003

Carlynton School District (School) petitions for review of an order of
the Special Education Due Process Appeals Review Panel (Appeals Review Panel)
which reversed a hearing officer's decision that D.S. and his Parents (D.S.) were
not denied an appropriate program of education and not entitled to compensatory
education. We affirm in part and vacate and remand in part.

At the time of the due process hearing before the hearing officer, D.S.
was a seventeen-year-old senior in the School. He was found eligible to receive
special education and related services pursuant to the Individuals with Disabilities
Education Act (Act), 20 U.S.C. §§ 1400-1490. D.S. has participated in the
School's Gifted and Talented Education (GATE) Program since second grade.

D.S. did not agree with the Notice of Recommended Assignment
which followed the development of the Gifted Individualized Education Program
(GIEP) for his senior year. As such, he requested a due process hearing. The Act

requires states to provide an impartial due process hearing when requested. 20
U.S.C. § 1415(f). At hearing, D.S. raised concerns involving his GEIPs, as
developed by the School, from his seventh through twelfth grade school years.

At hearing, the School argued that the issues regarding the seventh
through tenth grade school year GIEPs were barred by the statute of limitations and
the ninth and tenth grade school year GIEPs were further barred by res judicata.
The hearing officer determined that only the eleventh and twelfth grade school
year GIEPs would be considered. It was found that the ninth and tenth grade
school years should not be relitigated (R.R. at 113a) and that the seventh and
eighth grade school years were not relevant. (Hearing officer's opinion, Exhibit A,
Appellant's brief).1 The hearing officer also found that the complaints raised by
D.S. were vague and did not rise to the level of a denial of appropriate education.
The hearing officer then found that D.S. was not denied an appropriate program of
education in his eleventh and twelfth grade school years, and was not entitled to a
compensatory education.

D.S. then filed an appeal with the Appeals Review Panel. The
Appeals Review Panel determined that the statute of limitations did not bar review
of D.S.'s seventh through tenth grade school year GIEPs. It further determined
that the doctrine of res judicata did not bar review of the ninth and tenth grade
school year GIEPs. The Appeals Review Panel then decided that the seventh
through twelfth grade school year GIEPs did not include programming for D.S.'s
individual needs and were not reasonably calculated to enable D.S. to make

1 While the hearing officer did not specifically state his reasons for refusing to hear
testimony of the seventh through tenth grade school years, it was presumably based on the
School's arguments regarding res judicata and the statute of limitations.

2

meaningful progress. In finding that the School failed to provide D.S. with an
appropriate education, the Appeals Review Panel determined that D.S. was entitled
to compensatory education.

The Appeals Review Panel ordered the School to design a
compensatory education plan which was to include weekend and/or summer
programming in study and organization skills. It was also determined that
contracting with a school, college, or learning center for courses and programming
was an option. The School was further ordered to provide D.S. with a review
course in algebra to be taken at a school, college or learning center acceptable to
D.S.

The School filed a petition for review with this Court on April 22,
2002.2 It alleged that the Appeals Review Panel erred in determining that no
statute of limitations applied to a request for compensatory education in a special
education due process hearing and that consideration of the ninth and tenth grade
school year GIEPs was not barred by res judicata. The School further alleged that
the Appeals Review Panel erred in awarding compensatory education that
extended beyond the School's current curriculum.

At the time the Appeals Review Panel rendered its decision in this
case, the law regarding the statute of limitations for compensatory education was
unclear. Moreover, this Court had also not decided whether res judicata applied to
issues that had been addressed by a school administratively through a complaint

2 Our scope of review is limited to determining whether there has been a violation of
constitutional law, an error of law was committed or whether the necessary findings of fact are
supported by substantial evidence. New Brighton Area School District v. Matthew Z., 697 A.2d
1056 (Pa. Cmwlth. 1997), petition for allowance of appeal denied, 550 Pa. 723, 706 A.2d 1215
(1998).
3

investigation process. However, this Court has recently decided Montour School
District v. S.T., 805 A.2d 29 (Pa. Cmwlth. 2002), in which we made a
determination as to the statute of limitations in compensatory education cases and a
determination as to the application of res judicata in cases where claims or issues
had been already addressed by way of a procedure that produced a complaint
investigation report (CIR) issued by the Department of Education's Special
Education Bureau of Compliance.

The School's first issue raised on appeal involves the statute of
limitations issue. In Montour, we held that there was generally a one-year statute
of limitations in compensatory education cases. It was determined that a party
could only challenge the one-year period prior to the date a due process hearing
was requested. However, in cases were a party could establish mitigating
circumstances for a delay in requesting a due process hearing, a maximum of two
years prior to the date a due process hearing was requested could be challenged.

In the instant case, the Appeals Review Panel erred in making a
determination based on the seventh through twelfth grade years. As D.S. requested
a due process hearing on November 5, 2001, he is entitled to challenge the one-
year period prior to that date. Thus, we must vacate the Appeals Review Panel's
decision in this regard and remand for findings as to whether mitigating
circumstances can be shown to allow an additional one-year period to be reviewed.
Once it is determined what period is at issue in accordance with the statute of
limitations, it should be further determined if an award of compensatory education
should be granted to D.S.

The School's second issue raised on appeal involves the application of
res judicata to this action. On July 5, 2000, D.S. filed a complaint with the Bureau
4

of Special Education raising issues concerning the GIEP dated October, 1999
through October, 2000. The issues raised as to that GIEP were addressed through
the complaint investigation procedure and decided by way of a CIR. The School
contends that as D.S. has already litigated those issues, any re-litigation, in the
instant action, is barred by res judicata.

Res judicata bars a party from re-litigating an issue that was a cause
of action in another proceeding that has resulted in a final judgment. Knox v.
Pennsylvania Board of Probation and Parole, 588 A.2d 79 (Pa. Cmwlth. 1991). In
Montour, we addressed the res judicata issue as it applies to an IEP examined
through a complaint investigation process and a CIR. We held that "[t]he CIR
process is simply not the adversarial-type proceeding of a fair hearing that the
doctrine of res judicata contemplates." Montour, 805 A.2d at 41. Therefore in the
instant case, the Appeals Review Panel did not err in determining that res judicata
was not applicable to this action.

The third issue raised by the School is whether the compensatory
award ordered by the Appeals Review Panel was proper. As we must remand this
case for a determination of whether a compensatory award is proper in this action
based solely on the time frame allowed under the statute of limitations, we must
also vacate the award granted by the Appeals Review Panel. As such, we need not
address whether the award given was proper. However, we do note that should
any future award be deemed appropriate in this action, it must be limited to
education available within the curriculum of the School, as per our ruling in
Brownsville Area School District v. Student X, 729 A.2d 198 (Pa. Cmwlth.),
petition for allowance of appeal denied, 560 Pa. 731, 745 A.2d 1225 (1999).
5

Accordingly, the decision of the Appeals Review Panel is hereby
affirmed with regard to the issue of res judicata; however, we vacate and remand
the Appeals Review Panel's holding as to the statute of limitations and vacate the
award of compensatory education. We therefore remand to the Appeals Review
Panel for findings consistent with this opinion.

JOSEPH F. McCLOSKEY, Senior Judge

6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlynton School District,
:

Petitioner

:

: No. 1008 C.D. 2002
v.

:

:
D.S. and His Parents,

:

Respondent

:

O R D E R

AND NOW, this 17th day of January, 2003, the holding of the Special
Education Due Process Appeals Review Panel (Appeals Review Panel) is vacated
with regard to its determination that no statute of limitations applies to claims
made in a request for a due process hearing and as to the award of compensatory
education. This matter is remanded to the Appeals Review Panel, which shall
determine whether D.S. and his parents (D.S.) can challenge a one or two-year
period prior to the date the due process hearing was requested and, further, whether
D.S. is entitled to a compensatory education. The Appeals Review Panel is
affirmed with regard to the application of res judicata in this action.
Jurisdiction
relinquished.
JOSEPH F. McCLOSKEY, Senior Judge