Schobert v. Marcase

Concurring and Dissenting Opinion by

Judge MacPhail:

I concur with the majority’s conclusion that the preliminary objection of Caryl Kline in the nature of a motion for a more specific complaint should be sustained and that the preliminary objections of the Philadelphia School District should be overruled. I respectfully dissent, however, as to the majority’s disposition of the demurrer by the defendant Caryl Kline.

The complaint before us is against Michael P. Marcase, Superintendent of Schools, the School District of Philadelphia, Caryl Kline, individually and Caryl Kline as Secretary of the Department of Education. Technically, there are four defendants named in this action. The plaintiffs say that they submitted an application to the School District of Philadelphia *603on June 20,1977 to allow their child to attend Wordsworth Academy and that the chid was accepted at Wordsworth in September of 1977. They say that they submitted an application for payment “to the defendants.” The date of the submission thereof is not set forth nor is the specific identity of the specific defendants to whom such application was made set forth. Plaintiffs complain that they have not been reimbursed for tuition they paid between September of 1977 and March 2, 1978, the date when the Department of Education approved payment. They allege that the “delay in the submission of the application” (by whom, to whom and for what is not specified) was caused by the delay of “either or both defendants” in failing to comply with unspecified time limitations set forth in the Administrative Code.

It will be quickly observed that there are more than two defendants in this action. Which one or two of them the plaintiffs are talking about with respect to alleged negligence is not specified. Nowhere in the complaint is there any reference to what Caryl Kline did or failed to do individually or as Secretary of Education. As a matter of fact, she is nowhere identified in the complaint except in the caption thereof. None of the statutory authorities cited in the ■majority opinion imposes any duty upon the Secretary of Education with respect to the matter here at issue. Throughout that statutory authority, the reference is to the responsibilities of the Department of Education. I see no basis in the complaint whatsoever to hold the defendant Caryl Kline in this suit either as Secretary a (post she no longer holds) or individually and I would sustain the preliminary objection in the nature of a demurrer with respect to that defendant.1

Had a similar objection been interposed on behalf of Michael P. Marcase, I would have sustained that objection as well.