PRICE v. COMMONWEALTH CHARTER ACADEMY CYBER SCHOOL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARY E. PRICE : CIVIL ACTION

Plaintiff, Counterclaim Defendant, :

pro se : NO. 19-4633

:

v. :

:

COMMONWEALTH CHARTER :

ACADEMY CYBER SCHOOL :

Defendant, Counterclaim Plaintiff :

NITZA I. QUIÑONES ALEJANDRO, J. APRIL 14, 2021

MEMORANDUM OPINION

INTRODUCTION

Plaintiff Mary E. Price, in her own right as the parent of minor T.R., commenced this

action against Defendant Commonwealth Charter Academy (“CCA”), under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq.,1 and Section 504 of the

Rehabilitation Act (“Section 504”), 29 U.S.C. § 794, seeking enforcement of a hearing officer’s

administrative decision that granted a compensatory education award to T.R. [ECF 2]. CCA later

asserted counterclaims against Plaintiff for wrongful use of civil proceedings and seeks declaratory

judgment regarding its obligation to pay for compensatory education services for T.R. [ECF 20].

Before this Court are the parties’ cross motions for summary judgment. In CCA’s motion

for partial summary judgment, [ECF 24, 25], CCA moves for summary judgment on Count I of

1 The IDEA was amended and renamed the Individuals with Disabilities Education Improvement

Act (the “Act”), effective July 1, 2005. See Pub. L. No. 108-446, 118 Stat. 2715 (2005). Notwithstanding

this change in the name of the statute, courts and litigants, including the parties in this action, continue to

refer to this statute as the IDEA. See, e.g., H.E. v. Walter D. Palmer Leadership Learning Partners Charter

Sch., 873 F.3d 406, 408 (3d Cir. 2017). For purposes of clarity and consistency, this Court will refer to the

Act as the IDEA in this Memorandum Opinion.

Plaintiff’s complaint (Enforcement of the Hearing Officer’s Decision) and on Count I of its

counterclaims (Declaratory Judgment). In Plaintiff’s motion for summary judgment,2 [ECF 26],

Plaintiff seeks summary judgment on all counts of her complaint and all counts of CCA’s

counterclaims. The motions are fully briefed and ripe for disposition. For the reasons stated

herein, CCA’s motion for partial summary judgment is granted, in part, and Plaintiff’s motion for

summary judgment is denied.

BACKGROUND

When ruling on a motion for summary judgment, a court must consider the evidence in the

light most favorable to the non-movant. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). The

relevant factual background is as follows:3

Plaintiff is the mother of minor T.R., who is a student at CCA. At all

relevant times, CCA was, and continues to be, T.R.’s local education agency

(“LEA”). T.R. is diagnosed with multiple mental disabilities that affect T.R.’s

learning.

In September 2016, following an administrative hearing, Hearing Officer

Charles W. Jelley (the “Hearing Officer”) issued a decision finding that CCA had

denied T.R. a free and appropriate public education (“FAPE”). As relief, the

Hearing Officer granted T.R. a compensatory education award (“CEA”) of 2,820

hours of compensatory education services, to provide “the equitable remedy of

specific performance of [CCA’s] past FAPE duties.” (Hearing Officer’s Decision,

ECF 24-1, Ex. A, at p. 21). In the Hearing Officer’s Decision and Order, he

prescribed the terms for how this CEA could be used. Specifically, in his Decision,

the Hearing Officer indicated: “[CCA] is directed to pay a third party provider to

provide the compensatory education services at the prevailing rate in the

community where the services are provided. The Parent selected third party

provider may use the compensatory education hours to provide whatever specially–

designed instruction, related services, assistive technology, supplemental services,

and aids necessary to make [T.R.] whole. . . . [CCA] should reimburse the service

2 The Court is treating Plaintiff’s filing entitled “brief in support of its motion for summary

judgment,” [ECF 26], as a motion for summary judgment and a response to CCA’s motion for partial

summary judgment.

3 The facts are taken from the parties’ filings and exhibits attached thereto. Any relevant factual

disputes are noted.

provider at the customary rate for services rendered in the market or location where

the services are provided. Four times a year the third party provider, selected by the

Parent, will give the Parent a progress report verifying the Student’s measurable

progress.” (Id. at p. 22). These terms for use of the CEA were reiterated in the

Hearing Officer’s accompanying Order, which indicated: “[CCA] is Ordered to

reimburse the Parent selected provider the costs for the services provided at the

hourly rate charged for the services in the location where the services are provided.”

(Id. at p. 23).

Facts Regarding Fusion Academy

After the CEA was awarded, CCA worked with Plaintiff to use the allocated

hours to provide various services to T.R. In July 2019, Plaintiff notified CCA that

she wanted to use the CEA for T.R. to receive full-time services at a private school,

Fusion Academy (“Fusion”). CCA responded that T.R. could use the CEA award

for that purpose and, because Pennsylvania law requires public schools (like CCA)

to provide a minimum of 990 hours of instructional time per year for a high school

student, 990 hours would be deducted from T.R.’s CEA. While Plaintiff was

communicating with Fusion to finalize the logistics of T.R.’s attendance, Plaintiff

informed CCA that Fusion had proposed to provide 401 50-minute “sessions” of

services to T.R. for the year, resulting in a total of only 334.17 hours of instructional

time for the year, which is less than half of the number of hours that CCA was

obligated to ensure T.R. received.

In response to the deficient number of instructional hours, CCA offered

Plaintiff two options: (1) T.R. could withdraw from CCA and fully enroll at Fusion,

making Fusion T.R.’s LEA and, thereby, the entity responsible for ensuring

compliance with applicable state law; or (2) T.R. could use his CEA for the

approximately 334 hours of instructional time that Fusion proposed to provide, and

CCA would provide the remaining 660 required hours of instruction. Plaintiff

rejected both options and informed CCA that she would work with Fusion to

develop a new course plan that would “allow [T.R.] to receive full-time services

using [Fusion’s] curriculum while still meeting the mandated 990-instructional

hour requirement.” (Plf. Br., ECF 26, at p. 9).

Plaintiff next proposed that Fusion would provide T.R. with 540 one-hour

sessions of services and 540 hours of services in the form of a “homework café” in

which Fusion employees would supervise T.R. completing his homework, for a

total of 1,080 hours for the year. However, Plaintiff insisted that CCA only deduct

540 hours from the CEA because Fusion characterized the “homework café” hours

as “included” with the purchase of the 540 hours of one-hour instructional sessions

and would not impose an additional charge beyond the cost of the one-hour

instructional sessions. CCA rejected Plaintiff’s proposal and indicated that it would

deduct the exact number of hours that Fusion provided from the CEA (1080 hours).

Plaintiff did not agree to that arrangement.

Because the issue remained unresolved, CCA made another proposal that

involved applying an hourly conversion rate of $75 to Fusion’s charges for T.R.’s

full-time services. Under this proposal, instead of deducting the precise number of

hours of instruction provided, CCA would divide Fusion’s total charge for T.R.’s

services ($55,800) by the hourly conversion rate to determine how many hours

would be deducted from the CEA. In other words, the total charge of $55,800,

divided by the hourly conversion rate of $75, would equal $744 dollars, which

would be converted to 744 hours to be deducted from the CEA.4 Under this

proposal, T.R. would receive 1,080 hours of services (a combination of the one-

hour instructional sessions and the “homework café” hours), but CCA would only

deduct 774 hours from the CEA. Plaintiff countered that she wanted a conversion

rate of $125, but later rescinded that proposal.

Ultimately, T.R. did attend Fusion for the 2019-2020 academic year and

CCA paid Fusion’s invoices in full. The parties continued to negotiate, but never

reached an agreement regarding how many hours should be deducted from the CEA

for the services provided.

For the purpose of establishing the prevailing rate charged for similar

services in the location/community where T.R. would receive services, CCA

identified four contracts with different service providers in the geographic area

where T.R. lives5 and where Fusion is located. Collectively, the four contracts

indicate an average rate of $70/hour for tutoring and instruction by a certified

teacher and $48.50/hour for those services provided by an uncertified instructor.

Facts Regarding Advocacy Unlimited

While the aforementioned negotiations were underway, Plaintiff entered

into a “Consultancy Agreement” contract with a company named Advocacy

Unlimited “to provide services on behalf of [T.R.] after negotiations with CCA

regarding [T.R.]’s full-time educational plan at Fusion stalled.” (Plf. Br., ECF 26,

at p. 11). The “Consultancy Agreement” indicated that (1) the contract is between

“[Advocacy Unlimited] and (the “Parent”) Mary Price on behalf of T.R. (the

“child”)” and (2) CCA was the entity that would pay Advocacy Unlimited’s fees,

despite the fact that CCA was not a party to the contract. The only specifically-

defined services mentioned in the Consultancy Agreement were Individualized

Education Program (“IEP”) meeting support, and the vague statement that

Advocacy Unlimited will serve as a “third-party provider to deliver the

compensatory education services to [T.R.] in accordance with the terms of his

[CEA].” (Consultancy Agreement, ECF 2, Ex. D, at p. 114-15).

4 Fusion’s actual hourly rate was approximately $103. Thus, if CCA had used the actual hourly

conversion rate, T.R. would have had 542 hours deducted from his CEA.

5 T.R. lives in Upper Darby School District.

On August 22, 2019, Naomi Studevan, an Education and Behavioral Health

Consultant from Advocacy Unlimited, contacted CCA via e-mail. In the e-mail,

Studevan indicated that she was “supporting Ms. Mary Price on behalf of . . .

[T.R.]” regarding the above-described dispute over T.R.’s CEA. (E-mails from and

to Naomi Studevan, ECF 2, Ex. C, at p. 107). Studevan further indicated that she

believed that CCA’s proposals “not only do[] not abide by what was set forth by

the [Hearing Officer’s Decision and Order], but quite frankly is an unreasonable

request that no consultant, attorney or anyone else looking out for the best interest

of this child, would recommend[.]” Id. She also described CCA’s proposals as

“unethical” and “illegal,” and asked that CCA “approve and pay for the number of

sessions/hours that [Plaintiff and Fusion] have agreed upon[.]” Id. In follow-up e-

mails, Studevan attempted to advocate on Plaintiff’s behalf for Plaintiff’s desired

resolution, and “request[ed], on behalf of [Plaintiff] and [T.R.], an IEP meeting[.]”

Id. at p. 108.

In September 2019, CCA received invoices from Advocacy Unlimited

seeking payment for the services Studevan provided.6 The descriptions of services

on the invoices included the following: phone calls and meetings “with parent”;

“[r]eview of documentation”; “correspondence with CCA via email”;

“[c]orresponding with mom and CCA attorney via email”; and “IEP meeting.”

(Invoices, ECF 2, Ex. D, at p. 118-19). CCA informed Studevan and Plaintiff that

(a) CCA had not contracted with Advocacy Unlimited to provide any services to

T.R., and (b) it could not use T.R.’s CEA hours to pay for the billed services

because Studevan’s services were not the type that the Hearing Officer’s Decision

and Order permitted to be covered by T.R.’s CEA. Plaintiff disagrees with CCA’s

explanation for refusing to pay the invoices and argues that the CEA hours can be

used to pay for Studevan’s services because said services were “necessary to make

TR whole.” (Plf. Br., ECF 26, at p. 7).

6 In a September 30, 2019 e-mail, Studevan referred to the services billed in the invoices as “services

that I have provided to Ms. Price and [T.R.]” and indicated that “Ms. Price was well within her rights to

obtain [Studevan’s] services in the pursuance of the best education and resources for [T.R.]” (E-mails from

and to Naomi Studevan, ECF 2, Ex. D, at p. 124).

In a September 17, 2019 e-mail, Plaintiff referred to the services billed in the invoices as “services

provided on behalf of [T.R.,]” and indicated (1) that Studevan “is currently supporting me on behalf of

[T.R.,]” (2) that Studevan’s services are “services she is provide on [T.R.]’s behalf[,]” and (3) that

Studevan’s services consisted of Studevan “assist[ing] with negotiating the terms of [T.R.’s] educational

services at Fusion Academy, as well as, his programming at CCA.” (E-mails from and to Naomi Studevan,

ECF 2, Ex. D, at p. 121).

LEGAL STANDARD

Federal Rule of Civil Procedure (“Rule”) 56 governs the practice of summary

judgment motions and provides that summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if its existence or

non-existence might affect the outcome of the case, and a dispute is “genuine” if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under Rule 56, the court must

view the evidence in the light most favorable to the non-moving party. Galena, 638 F.3d

at 196.

The movant bears the initial burden of identifying evidence that “demonstrate[s]

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986); see also UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir.

2004). Once the movant has met its initial burden, the non-movant must rebut the motion

by identifying “some evidence in the record that creates a genuine issue of material fact.”

Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). In doing so, the

non-movant must rely on facts in the record and “cannot rest solely on assertions made in

the pleadings, legal memoranda, or oral argument[,]” id., or on “bare assertions, conclusory

allegations[,] or suspicions.” Fireman’s Ins. Co. of Newark v. DuFresne, 676 F.2d 965,

969 (3d Cir. 1982). If the non-movant “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial[,]” then the court should grant summary judgment for the movant.

Celotex, 477 U.S. at 322.

When the parties have filed cross motions for summary judgement, courts must

“rule on each party’s motion on an individual and separate basis, determining, for each

side, whether a judgment may be entered in accordance with the Rule 56 standard.” Auto-

Owners Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388, 402 (3d Cir. 2016). Additionally,

pro se filings must be held “to less stringent standards than formal pleadings drafted by

lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Robredo v. Metro Honda,

689 F. App’x 724, 725 (3d Cir. 2017) (applying this liberal standard of review to pro se

summary judgment filings).

DISCUSSION

As noted, the parties have each filed a motion for summary judgment. This Court

will address each count of the complaint and counterclaims seriatim, in light of the parties’

motions.

Count I of Plaintiff’s Complaint: Enforcement of the Hearing Officer’s Decision

The IDEA grants “[a]ny party aggrieved by the findings and decision of the

administrative proceedings [the right] to bring a civil action in state or federal court.” D.E.

v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 276 (3d Cir. 2014) (citing 20 U.S.C. §

1415(i)(2)) (internal quotations omitted). “[I]ndividuals seeking to enforce a favorable

decision obtained at the administrative level are ‘aggrieved’ for purposes of the IDEA and

may properly pursue such claims in court.” Id. at 278. “The Third Circuit has definitively

interpreted this provision to confer jurisdiction where . . . [a plaintiff alleges that] an LEA

refuses to comply with a hearing officer’s decision . . . .” Lejune v. Khepera Charter Sch.,

327 F. Supp. 3d 785, 793 (E.D. Pa. Aug. 19, 2018) (citing D.E., 765 F.3d at 278).

The relevant portions of the Hearing Officer’s Decision and Order are detailed

supra. Pursuant to that Decision and Order, CCA is required to pay a provider—selected

by Plaintiff—for “whatever specially-designed instruction, related services, assistive

technology, supplemental services, and aids necessary to make [T.R.] whole.” (Hearing

Officer’s Decision, ECF 24-1, Ex. A, at p. 21). Whatever services a provider renders in

order to “make T.R. whole” must attempt to remedy CCA’s past failure to provide a FAPE,

which occurred when CCA implemented IEPs that were “not reasonably calculated to

provide ‘meaningful benefit’ and ‘significant learning.’” Id. at p. 20. In other words, the

services a provider renders must “execute the equitable remedy of specific performance of

[CCA]’s past FAPE duties.” Id. at p. 21. “[This] equitable remedy of specific performance

will provide [T.R.] with the lost benefits promised[.]” Id. at p. 22.

Plaintiff contends that CCA has failed to comply with the Decision and Order in

two ways: (1) by proposing unacceptable plans (and rejecting Plaintiff’s plans) for how to

distribute the CEA hours to facilitate T.R.’s receipt of full-time services from Fusion; and

(2) by refusing to pay for the services rendered by Education and Behavioral Health

Consultant Naomi Studevan. Both parties move for summary judgment on this claim. This

Court will address each alleged failure to comply separately.

I. CCA’s Actions Regarding Fusion Academy

In CCA’s motion for summary judgment, CCA argues that the undisputed facts

establish that it complied with the Hearing Officer’s Decision because its proposals

regarding Fusion’s services for T.R. were consistent with the Hearing Officer’s Decision

and Order, and because each of Plaintiff’s proposals that CCA rejected were inconsistent

with the Hearing Officer’s Decision. In Plaintiff’s motion, she argues that the undisputed

facts establish that CCA’s proposals denied her “full access” to the CEA and that CCA’s

refusal to accept her proposals constitutes a refusal to comply with the Hearing Officer’s

Decision and Order.

At the outset, it is worth noting that the parties do not dispute that Fusion is an

acceptable third-party provider or that the services Fusion provided to T.R. are covered by

CEA—that is, the parties agree that CEA hours can be used for Fusion’s services. The

dispute between the parties is a narrow one: how many hours should be deducted from

T.R.’s CEA for the services Fusion provided? The only applicable, guiding provision of

the Hearing Officer’s Decision is that CCA is obligated to pay Fusion for its services at a

rate that is described three ways: (1) “at the prevailing rate in the community where the

services are provided”; (2) “at the customary rate for services rendered in the market or

location where the services are provided”; and (3) “at the hourly rate charged for the

services in the location where the services are provided.” (Hearing Officer’s Decision,

ECF 24-1, Ex. A, at p. 22-23). Condensing these descriptions into a concisely stated

requirement: CCA is obligated to pay Fusion at the customary, prevailing hourly rate in

the community, market, or location where Fusion provides services to T.R.

In the context of this claim, the parties do not have a dispute regarding the

geographic portion of the requirement; it is undisputed that T.R. lives in Upper Darby

School District and that Fusion is located in Haverford in the adjacent School District of

Haverford Township, which are both located in Delaware County, Pennsylvania. Rather,

the parties dispute the hourly-rate portion of the requirement. Therefore, the relevant

inquiry before this Court is whether CCA violated the Hearing Officer’s Decision and

Order by proposing the rates that it did and by rejecting the rates Plaintiff proposed.

As noted, the parties collectively made seven proposals regarding how to pay for

Fusion’s services.7 Briefly, CCA proposed that: (1) T.R. receive 990 hours of instruction

at Fusion and 990 hours be deducted from the CEA; (2) T.R. withdraw from CCA and fully

enroll at Fusion, making Fusion T.R.’s LEA; (3) T.R. receive 334 hours of instruction at

Fusion (as Fusion’s original enrollment plan suggested) and 660 hours of instruction at

CCA, and 334 hours be deducted from the CEA; (4) T.R. receive 1080 hours of instruction

at Fusion (half of which would be one-on-one instructional sessions and half of which

would be “homework café” sessions) and 1080 hours be deducted from the CEA; and (5)

T.R. receive 1080 hours of instruction at Fusion (in the same proportions previously noted)

and a conversion rate of $75/hour be applied to Fusion’s tuition charges, resulting in 744

hours being deducted from the CEA. Plaintiff proposed that: (6) T.R. receive 334.17 hours

of instruction at Fusion, no additional hours at CCA, and 334.17 hours be deducted from

the CEA; and (7) T.R. receive 1080 hours of instruction at Fusion (in the same proportions

previously noted) and 540 hours be deducted from the CEA. This Court will address the

parties’ arguments regarding each proposal individually to determine whether CCA’s offer

or rejection of each proposal violated the Hearing Officer’s Decision and Order.

CCA’s first offer was that T.R. receive 990 hours of instruction at Fusion and 990

hours be deducted from the CEA. This proposal was consistent with terms of the CEA

because it reflected an hour-for-hour deduction for services rendered. CCA’s second offer

was that either T.R. withdraw from CCA and fully enroll at Fusion, making Fusion T.R.’s

LEA, or (CCA’s third offer) T.R. receive 334 hours of instruction at Fusion (as Fusion’s

7 As noted in the Background Section, Plaintiff had also proposed an hourly conversion rate of

$125/hour, but rescinded that proposal. Since CCA did not reject that proposal, this Court will not address

it here, as it does not involve any conduct by CCA to be evaluated.

original enrollment plan suggested) and 660 hours of instruction at CCA, and 334 hours be

deducted from the CEA. Plaintiff always has the discretion to disenroll her child from

CCA, under which circumstances CCA would no longer “bear[] full responsibility for

providing special education services to students with disabilities.” R.B. v. Mastery Charter

Sch., 762 F. Supp. 2d 745, 752-53 (E.D. Pa. Dec. 29, 2010) (quoting 22 Pa. Code § 711.3

and citing 34 C.F.R. § 300.209(c)). Thus, the offer of disenrolling T.R. from CCA did not

violate the CEA’s terms; rather, it presented a viable alternative to using the CEA for

Fusion’s services, and it reflected CCA’s mindfulness of its legal obligations to ensure T.R.

that receives an education consistent with federal and state law.

The second part of the proposal (CCA’s third offer) in which CCA alternatively

offered for T.R. to receive 334 hours of instruction at Fusion (as Fusion’s original

enrollment plan suggested) and 660 hours of instruction at CCA, and 334 hours be deducted

from the CEA, was also consistent with terms of the CEA because it reflected an hour-for-

hour deduction for services rendered. Not only was this option consistent with the CEA,

it also guaranteed that CCA would be complying with its legal duty, as T.R.’s LEA, to

ensure that T.R. received a minimum of 990 hours of instructional time per academic year.

See 22 Pa. Code § 11.3(a) (minimum required hours of instruction for high school students

is “990 hours for the school term”).

CCA’s fourth offer was that, if T.R. would receive 1080 hours of instruction at

Fusion as Plaintiff suggested in the revised course plan that she and Fusion created, then

CCA would deduct 1080 hours from the CEA. CCA argues that this is merely another

hour-for-hour deduction. Plaintiff, however, argues that this hour-for-hour deduction is

impermissible under the CEA because of how Fusion bills for the 1080 hours of services.

Under the revised course plan, Fusion would provide 540 hours of one-on-one instructional

sessions, for which it would charge its full-tuition charge of $55,800, and provide 540 hours

of “homework café” sessions where instructors would supervise T.R. completing his

homework assignments, for which there would not be an additional fee because the

“homework café” sessions were “included” with the purchase of the 540 hours of one-on-

one instructional sessions. Plaintiff contends that because Fusion would not impose a

separate bill for the 540 “homework café” hours, those hours should not be deducted from

the CEA. CCA disagreed and argues that it can deduct the exact number of hours from the

CEA as the number of hours of services actually rendered.

The CEA requires CCA to pay a provider for “whatever specially-designed

instruction, related services, assistive technology, supplemental services, and aids

necessary to make [T.R.] whole.” (Hearing Officer’s Decision, ECF 24-1, Ex. A, at p. 22).

Therefore, CCA must pay Fusion for the services Fusion renders to T.R. Under this third

proposal, Fusion’s services would undisputedly amount to 1080 hours of services. It is

irrelevant whether instruction or supplemental service are provided during each hour—

only the total number of hours matters. Because Fusion would be providing 1080 hours of

services to T.R., CCA would be required to pay Fusion for 1080 hours of services at a cost

of $55,800. CCA was willing to pay Fusion under this arrangement. Clearly, there is

nothing improper about an hour-for-hour deduction from the CEA. Therefore, this Court

finds that CCA did not violate the Hearing Officer’s Decision and Order when it offered

the 1080 hour-by-hour arrangement.8

8 Contrary to Plaintiff’s assertions, it makes no difference whether Fusion also would have charged

$55,800 for only 540 hours of services. Indeed, CCA offered to pay that same fee and deduct 540 hours

from the CEA, as long as T.R. received the remaining legally-required hours of instruction from CCA (as

described in CCA’s third offer). Plaintiff, however, rejected that proposal, as well. How Fusion, a third-

CCA’s fifth offer was that T.R. receive the 1080 hours of instruction at Fusion

and, instead of an hour-by-hour calculation, it would apply an hourly conversion rate of

$75 to Fusion’s charges for the 1080 hours of instruction, which would result in 744 hours

being deducted from the CEA. Plaintiff argues that this proposal violates the terms of the

CEA because an hourly rate of $75 (a) does not constitute an “hourly rate charged for the

services in the location where the services are provided[,]” as required by the Hearing

Officer’s Decision and Order, (see Plf. Br., ECF 26, at p. 10), and (b) has “absolutely

nothing to do with the $10[3].00 per hour rate that Fusion charges[.]” (Id. at p. 11). In

response, CCA argues that the $75/hour conversion rate does constitute a rate consistent

with the terms of the CEA, which is all that is required by the Hearing Officer’s Decision

and Order, and so it is irrelevant (in determining CCA’s compliance with the terms of the

CEA) what Fusion actually charges.

As noted, a concise statement of the funding requirement is that CCA must pay

Fusion at the customary, prevailing hourly rate in Upper Darby and Haverford Township

school districts. The question then becomes whether the $75/hour rate is a customary,

prevailing rate in those school districts. In its motion, CCA points to definitions of the

words “prevailing” and “customary” as instructive, and Plaintiff does not dispute the

validity or applicability of those definitions. Thus, this Court accepts the offered

definitions of the relevant terms. The word “prevailing” is defined as “widespread” and

“what is most frequent or common at a certain time or . . . place.” (Def. Br., ECF 25, at p.

11) (citing American Heritage Dictionary, Fifth Edition, 2016). The word “customary” is

party provider, chooses to bill for its services is not within the control of either party. Regardless of the

cost of a 540-hour course plan or a 1080-hour course plan, CCA was willing to pay the bill. CCA’s only

clarification was that it would deduct the exact number of hours of services rendered from the CEA. As

previously stated, there is nothing improper about an hour-for-hour deduction from the CEA.

defined as “commonly practice, used or encountered; usual.” Id. As evidence of what

rates are “most frequent or common” and “commonly used” in the relevant school districts,

Defendant points to four contracts for tutoring and instruction with four different service

providers within a twenty-two (22) mile range of T.R.’s school district. Collectively, the

four contracts reflect an average rate of $70/hour for a certified teacher and $48.50/hour

for an uncertified instructor. If Fusion’s hourly rate ($103/hour) is factored into the

calculation along with the four contracts, the average rate becomes $76.60/hour for a

certified teacher, $59.40/hour for an uncertified instructor, and $63.63/hour for a combined

average for certified and uncertified instructors. As CCA pointed out, Plaintiff offers no

evidence regarding what rates are “most frequent or common” and “commonly used” in

the relevant school districts, nor any evidence to contradict the aforementioned contract

evidence provided by CCA. Therefore, this Court must determine whether CCA’s

proposed rate of $75/hour was a customary, prevailing rate in the context of the

aforementioned rates and averages.

Plainly, CCA’s proposed rate of $75/hour is higher—and, therefore, more

generous—than all but one of the four other providers’ rates.9 Additionally, CCA’s

proposed rate is higher than the average rate among the four contracts ($70/hour) and only

$1.60/hour less than the average when Fusion’s rate is included in the calculation. Further,

CCA is correct that Fusion’s actual rate, while potentially relevant to establish the

customary, prevailing rate, is not determinative in evaluating whether CCA complied with

the terms of the CEA. The Hearing Officer’s Decision and Order do not require CCA to

9 The breakdown of the contracts with four different service providers appears in CCA’s brief. (See

Def. Br., ECF 25, at p. 17). Briefly, the hourly rates for certified teachers included hourly rates of $65,

$67, $68, and $80.

pay whatever rate a service provider actually charges; rather, CCA is only required to pay

the customary, prevailing hourly rate in Upper Darby and Haverford Township school

districts. Thus, it is irrelevant whether, as Plaintiff contends, the $75/hour rate has

“absolutely nothing to do with” Fusion’s actual rate. In conclusion, this Court finds that

the aforementioned calculations collectively establish that CCA’s offer of $75/hour was at

least a customary, prevailing rate in the relevant school districts, if not a slightly higher,

more generous rate. Therefore, CCA did not violate the Hearing Officer’s Decision and

Order when it offered the $75/hour conversion rate arrangement.

As demonstrated above, all of CCA’s proposals were consistent with the terms of

the CEA and did not violate the Decision and Order. The two remaining proposals are

those made by Plaintiff. Plaintiff’s first proposal was that T.R. receive 334.17 hours of

instruction at Fusion, no additional hours at CCA, and 334.17 hours be deducted from the

CEA. CCA rejected this proposal because it did not provide T.R. with the 990 hours of

instructional time per academic year required in Pennsylvania. Indeed, CCA could not

agree to Plaintiff’s proposal because it would have resulted in T.R. missing 655.83 hours

of required instruction and, thereby, in CCA failing to fulfill its legal obligations as T.R.’s

LEA and in denying T.R. a FAPE once again. Therefore, CCA’s rejection of this proposal

was consistent with the terms of the CEA, and with CCA’s obligations under state law.

Plaintiff’s second proposal was that T.R. receive 1080 hours of instruction at

Fusion (540 hours of one-on-one instructional sessions and 540 hours of “homework café”

sessions) and only 540 hours be deducted from the CEA. As noted, CCA rejected this

proposal because it insisted on deducting the exact number of hours from the CEA as the

number of hours of services actually rendered. As explained above regarding CCA’s

counteroffer of deducting the exact number of hours (1080 hours) from the CEA (see supra

p. 11-12), there is nothing improper about an hour-for-hour deduction. Thus, CCA did not

violate the Hearing Officer’s Decision and Order when it rejected Plaintiff’s request that

only half of the hours of services rendered be deducted from T.R.’s CEA. As such, this

Court finds that CCA’s rejection of each of Plaintiff’s proposals was consistent with the

terms of the CEA and did not violate the Decision and Order.

In conclusion, this Court finds that the undisputed facts establish that CCA did not

violate, or fail to comply with, the Hearing Officer’s Decision and Order regarding T.R.’s

CEA when it made the various proposals that it did, and rejected Plaintiff’s proposals,

regarding T.R.’s receipt of services from Fusion. Each of CCA’s proposals were consistent

with the terms of the CEA and with CCA’s legal obligations to T.R. as his LEA.

Accordingly, CCA’s motion for summary judgment on Count I of Plaintiff’s complaint is

granted, to the extent that the claim is based on CCA’s actions regarding Fusion, and

Plaintiff’s motion for summary judgment on Count I is denied, to the same extent.10

10 Regarding Plaintiff’s general assertion that CCA’s proposals denied her “full access” to the CEA,

as demonstrated above, each of CCA’s proposals reflected a willingness to use the CEA hours to facilitate

T.R.’s receipt of full-time services at Fusion. At no time did CCA refuse to pay for Fusion’s services, nor

did CCA ever inform Plaintiff that she could not use the full number of hours of the CEA for T.R.’s services

at Fusion. CCA merely made several proposals as to how the CEA hours could lawfully be distributed to

facilitate T.R.’s full-time services at Fusion.

Thus, while Plaintiff is correct that she was “precluded from using the [CEA] to fund the [original]

full-time educational plan for [T.R.],” (Plf. Br., ECF 26, at p. 20), she was so precluded because that plan

failed to satisfy Pennsylvania’s legal requirement that T.R. receive 990 hours of instruction per academic

year. In contrast, the undisputed facts clearly establish that Plaintiff was not precluded from using the CEA

to fund the revised course plan at Fusion. Indeed, T.R. did attend Fusion for the 2019-2020 academic year

and CCA paid Fusion’s invoices in full, using the CEA (although the precise number of hours to be deducted

from the CEA has yet to be determined).

II. CCA’s Actions Regarding Advocacy Unlimited

In CCA’s motion for summary judgment, it argues that the undisputed facts

establish that its refusal to pay for the services rendered by Education and Behavioral

Health Consultant, Naomi Studevan, did not violate the Hearing Officer’s Decision and

Order because the terms of the CEA do not permit the CEA hours to be used for such

services. In Plaintiff’s motion for summary judgment, Plaintiff disagrees and argues that

CCA’s refusal to pay Studevan does violate the Hearing Officer’s Decision and Order

because Studevan’s services were rendered “on behalf” of T.R. and are “completely

consistent with the terms of the [CEA].”11 This Court agrees with CCA.

As noted, the Hearing Officer’s Decision and Order requires CCA to pay a provider

selected by Plaintiff for “whatever specially-designed instruction, related services,

assistive technology, supplemental services, and aids necessary to make [T.R.] whole.”

(Hearing Officer’s Decision, ECF 24-1, Ex. A, at p. 22). It is undisputed that Advocacy

Unlimited did not provide T.R. with “specially-designed instruction” or “assistive

technology.” Thus, the remaining categories of services permitted by the CEA are “related

services” and “supplemental services[] and aids,” both of which are terms of art defined in

the IDEA regulations. This Court must determine whether Studevan’s services could fall

under either remaining category.

The services Studevan rendered included: phone calls and meetings “with parent”;

“[r]eview of documentation”; “correspondence with CCA via email”; “[c]orresponding

11 Notably, in the Argument Section of Plaintiff’s motion, she does not specify how Studevan’s

services are consistent with the CEA. Rather, she merely conclusively states that the services are consistent.

(See Plf. Br., ECF 26, at p. 21-22). However, this Court attempted to glean more specific arguments

regarding the nature of Studevan’s services from the remainder of Plaintiff’s motion.

with mom and CCA attorney via email”; and attending an “IEP meeting.” (Invoices, ECF

2, Ex. D, at p. 118-19). “Related services” is defined in the IDEA regulation as:

transportation and such developmental, corrective, and other supportive

services as are required to assist a child with a disability to benefit from

special education, and includes speech-language pathology and audiology

services, interpreting services, psychological services, physical and

occupational therapy, recreation, including therapeutic recreation, early

identification and assessment of disabilities in children, counseling services,

including rehabilitation counseling, orientation and mobility services, []

medical services for diagnostic or evaluation purposes[, and] school health

services and school nurse services, social work services in schools, and

parent counseling and training.

34 C.F.R. § 300.34(a). None of Studevan’s services are among those listed as “related

services.”

The final remaining category, “supplemental aids and services,” is defined in the

IDEA regulations as: “aids, services, and other supports that are provided in regular

education classes, other education-related settings, and in extracurricular and nonacademic

settings, to enable children with disabilities to be educated with nondisabled children to the

maximum extent appropriate[.]” 34 C.F.R. § 300.42. Again, it is plain that none of

Studevan’s services were provided to T.R. “in regular education classes, other education-

related settings, and in extracurricular and nonacademic settings, to enable [T.R.] to be

educated with nondisabled children.”12 This Court finds that because Studevan’s services

do not fall into any of the identified categories of services permitted under the CEA, T.R.’s

CEA funds cannot be used to pay for those services.

12 See, e.g., M.C. v. Knox Cnty. Bd. of Educ., 2018 U.S. Dist. LEXIS 95943, at *19-20 (E.D. Tenn.

June 7, 2018) (finding that a “paraprofessional” or “aide” may be considered a supplement aid or service

“to the extent that the aide provides itinerant instruction or otherwise works directly with the student. . . .

But to the extent that the aide works with other school staff to the student’s general benefit, such assistance

is more properly characterized as support for school personnel [rather than support for the student].”

(emphasis added)).

Notably, Plaintiff’s arguments regarding this issue are silent on how Studevan’s

services could possibly fall into one of the identified permitted categories of services.

Plaintiff appears to argue that Studevan’s services are consistent with the CEA because

Studevan is a professional in the field of Education Consulting and has previously been

compensated using other children’s CEAs. Those facts, however, are irrelevant;

Studevan’s area of expertise and previous employment regarding other children are

immaterial if the services she rendered in this case do not fall within any of the prescribed

categories permitted by the Hearing Officer’s Decision and Order establishing the CEA, as

is the case here. This Court is sympathetic to Plaintiff’s frustration that led her to hire an

advocate; however, no amount of sympathy and/or frustration changes the terms of the

Hearing Officer’s Decision and Order, which this Court must enforce.

Plaintiff also appears to argue that Studevan’s services are consistent with the CEA

because Studevan’s advocacy services were necessary to secure several agreements from

CCA regarding T.R.’s education. Plaintiff indicates that she had been negotiating with

CCA on her own for several desired outcomes for T.R., such as CCA “includ[ing] present

level documentation in TR’s IEP,” agreeing “to provide course for all of TR’s courses in

hard copy[,]” and finalizing T.R.’s services at Fusion, (Plf. Br., ECF 26, at p. 21), to no

avail; however, when Studevan assisted Plaintiff in advocating for those same outcomes,

they were quickly obtained. (See id.). Even assuming that Plaintiff’s negotiations with

CCA did dramatically improve and became successful because of Studevan’s support, that

fact—again—does not change the fact that Studevan’s services do not fall under any of the

identified permissible categories.13

13 Plaintiff does have the right to choose a provider, but that right is not unbridled—she must choose

a qualified provider that satisfies the requirements of the Hearing Officer’s Decision and Order. See Millay

In addition to the fact that Studevan’s services do not fall into any of the prescribed

categories, the law surrounding the purpose and intent of CEAs further illustrates that those

services are not contemplated by T.R.’s CEA. The purpose of a compensatory education

award (“CEA”) is “to make up for past failures on the part of the [LEA.]” Ferren C. v.

Sch. Dist. of Phila., 612 F.3d 712, 719 (3d Cir. 2010). If a student was deprived of a FAPE,

then “the student could only be fully compensated by [a CEA] that contains elements of a

FAPE that she [or he] was previously denied.” Id. at 720. That is, a CEA “must be

reasonably tailored to address the education deficit that resulted from the educational

agency’s failure to provide the student a FAPE.” Stapleton v. Penns Valley Area Sch. Dist.,

2017 U.S. Dist. LEXIS 204143, at *18 (M.D. Pa. Dec. 12, 2017) (citing C.G. v. Five Town

Cmty. Sch. Dist., 513 F.3d 279, 290 (1st Cir. 2008)). Thus, the disbursement of CEA funds

“must align with identified educational services the student did not receive from the school

district for the period of time he or she was deprived a FAPE.” Id. at 18. The invoices

Advocacy Unlimited issued for Studevan’s services do not indicate that any instructional

or educational services were provided to T.R., or that anyone from Advocacy Unlimited

ever spoke with T.R. (See Def. Br., ECF 25, at p. 18-19). Based on these invoices, none

of the services rendered could “align with the educational services [T.R.] did not receive

from [CCA when CCA deprived T.R.] of a FAPE[,]” as identified in the Hearing Officer’s

Decision and Order. Stapleton, 2017 U.S. Dist. LEXIS 204143, at *18. Nor could the

services conceivably be characterized as “execut[ing] the equitable remedy of specific

v. Surry Sch. Dep’t, 2011 U.S. Dist. LEXIS 31048, at *29-30 (D. Me. March 23, 2011) (noting that using

a CEA to establish a pool of money from which a parent can “draw upon when and how it sees fit . . . has

little resemblance to an [IEP]”).

performance of [CCA]’s past FAPE duties[,]” as the Hearing Officer’s Decision and Order

requires.14 (Hearing Officer’s Decision, ECF 24-1, Ex. A, at p. 21).

In conclusion, the purpose of T.R.’s CEA is to remedy CCA’s past failures and

provide T.R. with a FAPE by implementing an IEP that is “reasonably calculated to provide

‘meaningful benefit’ and ‘significant learning.’” (Id. at p. 20). The services rendered by

Advocacy Unlimited, through Studevan, are not qualifying services under T.R.’s CEA. As

the entity legally responsible for providing T.R. with a FAPE, implementing T.R.’s IEP,

and disbursing the CEA, CCA had not only the right, but the obligation to ensure that hours

from T.R.’s CEA award were used for the services described and permitted by the Hearing

Officer’s Decision and Order. Therefore, CCA did not violate the Hearing Officer’s

Decision and Order when it rejected Plaintiff’s request to use T.R.’s CEA hours to pay for

the advocacy services provided by Studevan. CCA’s refusal to pay Advocacy Unlimited

was consistent with the terms of the CEA and CCA’s legal obligations to T.R. as his LEA.

Accordingly, CCA’s motion for summary judgment on Count I of Plaintiff’s complaint is

granted, to the extent that the claim is based on CCA’s actions regarding Advocacy

Unlimited, and Plaintiff’s motion for summary judgment on Count I is denied, to the same

extent.

Count II of Plaintiff’s Complaint: Section 504 Retaliation

At Count II of the complaint, Plaintiff asserts a retaliation claim under Section 504

of the Rehabilitation Act. This statute provides that no qualified, disabled individual can

14 This requirement, related to the root purpose of CEAs, is further evidenced in T.R.’s CEA’s

requirement that any provider must provide “a progress report verifying [T.R.]’s measurable progress.”

(Hearing Officer’s Decision, ECF 24-1, Ex. A, at p. 21). Here, Advocacy Unlimited would have no basis

for creating a report on T.R.’s progress because it did not actually provide services to T.R. that specifically

performed CCA’s past FAPE duties.

“be excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance”

because of his or her disability. 29 U.S.C. § 794(a). Under the anti-retaliation provision

that applies to the Rehabilitation Act, “[n]o recipient or other person shall intimidate,

threaten, coerce, or discriminate against any individual for the purposes of interfering with

any right or privilege secured by [the Rehabilitation Act], or because he [or she] has made

a complaint, testified, assisted, or participated in any manner in an investigation,

proceeding or hearing . . . .” 34 C.F.R. § 100.7(e).

Plaintiff contends that CCA retaliated against her for engaging in the following

protected activities: (1) filing due process complaints; (2) participating in due process

hearings; and (3) identifying and securing third-party providers pursuant to the Hearing

Officer’s Decision and Order. (Plf. Br., ECF 26, at p. 22). Plaintiff further argues that

CCA retaliated against her by “attempt[ing] to delay compliance with the [Hearing

Officer’s Decision and Order] in an attempt to run out the clock and prevent [Plaintiff]

from fully implementing the [CEA] and utilizing all of the compensatory hours in a timely

manner.” (Id.). Only Plaintiff moves for summary judgment on this claim.

“When the moving party has the burden of proof at trial, that party must show

affirmatively the absence of a genuine issue of material fact: it must show that, on all the

essential elements of its case on which it bears the burden of proof at trial, no reasonable

jury could find for the non-moving party.” Tonglu Rising Sun Shoes Co. v. Natural Nine

(USA) Co., 2016 U.S. Dist. LEXIS 175701, at *5 (D.N.J. Dec. 20, 2016) (quoting In re

Bressman, 327 F.3d 229, 238 (3d Cir. 2003)) (internal quotations omitted). Accordingly,

Plaintiff has the burden of identifying undisputed material facts that establish the elements

of her Section 504 Retaliation claim, to wit: (1) Plaintiff engaged in a protected activity;

(2) CCA engaged in a retaliatory action sufficient to deter a person of ordinary firmness

from exercising his or her rights; and (3) a causal connection between the protected activity

and the retaliatory action. Stapleton, 2017 U.S. Dist. LEXIS 204143, at *22-23 (citing

Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

In its response, CCA argues, and this Court agrees, that Plaintiff’s motion for

summary judgment is deficient in that Plaintiff does not cite to any materials in the record

to support her factual assertions, as Rule 56 requires the moving party to do. CCA further

contends that, contrary to Plaintiff’s assertions, it is not undisputed that CCA engaged in

retaliatory actions and/or that a causal connection exists between those alleged actions and

Plaintiff’s protected activities; indeed, CCA does dispute those allegations. In light of these

glaring disputes of material fact, and Plaintiff’s failure to comply with Rule 56 and identify

particular parts of materials in the record that support her assertions, Plaintiff’s motion for

summary judgment in her favor on her Section 504 Retaliation claim is denied.

Count I of CCA’s Counterclaims: Declaratory Judgment

At Count I of CCA’s counterclaims, CCA seeks a declaratory judgment that

“CCA’s obligation to pay for compensatory education services is limited to the market rate

for such services in the geographic area where the services are provided” and that “the

market rate for tutoring services in the greater Philadelphia area is $75 per hour.”

(Amended Counterclaim, ECF 20, at p. 4). Under the Declaratory Judgment Act, 28 U.S.C.

§ 2201 et seq, a court may “declare the rights and other legal relations of any interested

party” in “case[s] of actual controversy within its jurisdiction[.]” 28 U.S.C. § 2201(a). It

is well-settled that the statute’s phrasing “refers to the types of ‘Cases’ and ‘Controversies’

that are justiciable under Article III [of the U.S. Constitution.]” Matthews v. Pa. Dep’t of

Corr., 827 F. App’x 184, 186 (3d Cir. 2020) (citing MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118, 127 (2007)).

I. Availability of Jurisdiction

Here, the parties disagree as to whether an actual case or controversy exists to serve

as a basis for a declaratory judgment. “A ‘case of actual controversy’ means one of a

justiciable nature. ‘The controversy must be definite and concrete, touching the legal

relation of the parties having adverse legal interests.’” Abraham v. Del. Dep’t of Corr.,

331 F. App’x 929, 931 (3d Cir. 2009) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S.

227, 240-41 (1937)). The United States Court of Appeals for the Third Circuit (“Third

Circuit”) identified three factors for courts to consider in determining whether a case or

controversy exists for the purposes of a declaratory judgment, to wit: (1) whether the parties

have adverse interests; (2) the conclusivity of the proposed judgment; and (3) the practical

utility of the proposed judgment. Step-Saver Data Systems, Inc. v. Wyse Technology, 912

F.2d 643, 647-50 (3d Cir. 1990).

Here, CCA contends that a case of actual controversy exists because all three Step-

Saver factors indicate as much; specifically, (1) the parties have participated in several

lawsuits regarding enforcement of the Hearing Officer’s Decision and Order,

demonstrating their adversity, and the claims in the underlying civil action demonstrate the

explicit disagreement between the parties as to how much providers are to be paid under

T.R.’s CEA; (2) the proposed judgment would set a final dollar-amount for all future

disagreements as to how much the providers are to be paid; and (3) the proposed judgment

would both settle ongoing disputes and prevent tenuous future litigation regarding what

hourly rate applies for services rendered to T.R. under his CEA. This Court agrees that

application of the Step-Saver factors indicates the existence of an actual controversy here.

In opposition, Plaintiff’s only argument is that “CCA had never objected to, or

challenged, the hourly rate being charged [by other service providers].” (Plf. Br., ECF 26,

at p. 24). That is, Plaintiff “denies an actual controversy exists regarding an appropriate

hourly rate because CCA had never previously raised this issue.” (Id.). Plaintiff also adds

that she “has never taken any position as to the prevailing rate[.]” (Id. at p. 23). Plaintiff’s

argument is misguided. First, Plaintiff is incorrect that CCA has never raised an issue

regarding an appropriate hourly rate. To the contrary, some of the underlying claims in

this very lawsuit pertain to how much a service provider (Fusion) should be paid and at

what rate. Second, though she now denies doing so, Plaintiff does, indeed, take a position

as to the prevailing rate—in her motion, Plaintiff wrote that she “denies the payment

obligation is limited to the hourly rate for services that is (sic) customary in the geographic

market.” (Id.). Third, it is irrelevant whether CCA “raised” this issue with Plaintiff prior

to the date Plaintiff filed this lawsuit. What is relevant is whether the issue presently exists,

which the underlying litigation and record clearly indicate it does.

In conclusion, because the Step-Saver factors indicate the existence of an actual

controversy here, and Plaintiff’s arguments do not demonstrate anything to the contrary,

this Court finds that an actual controversy does exist sufficient to serve as a basis for a

declaratory judgment.

II. Decision to Exercise Jurisdiction

Having determined that an actual case and controversy exists, this Court must now

determine whether to exercise its discretion under the Declaratory Judgment Act (“DJA”).

See Allen v. Debello, 861 F.3d 433, 443 (3d Cir. 2017) (“Given the statute’s textual

commitment to discretion, and the breadth of leeway we have always understood it to

suggest, district courts possess discretion in determining whether and when to entertain an

action under the Declaratory Judgment Act” (internal quotations and alterations omitted)).

Declaratory judgment actions are unique in that, “[r]ather than being subject to the normal

principle that federal courts should adjudicate claims within their jurisdiction, district

courts exercising [DJA] discretion are governed by considerations of practicality and wise

judicial administration.” Reifer v. Westport Ins. Corp., 751 F.3d 129, 139 (3d Cir. 2014)

(citing Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995)) (internal quotations omitted).

In Reifer, the Third Circuit

enumerated factors for district courts to consider when exercising DJA

discretion. [District courts are] required . . . to consider four general factors:

(1) the likelihood that a federal court declaration will resolve the uncertainty

of obligation which gave rise to the controversy; (2) the convenience of the

parties; (3) the public interest in settlement of the uncertainty of obligation;

and (4) the availability and relative convenience of other remedies. [The

Third Circuit has] also suggested that courts seek to prevent the use of the

declaratory action as a method of procedural fencing, or as a means to

provide another forum in a race for res judicata.

Id. at 140 (internal quotations and citations omitted). Additionally, “the absence of a

pending state case create[s] a rebuttable presumption in favor of jurisdiction.” Rarick v.

Federated Serv. Ins. Co., 852 F.3d 223, 226 (3d Cir. 2017) (citing Reifer, 751 F.3d).

Here, there is no parallel state litigation, so there is a rebuttable presumption in

favor of this Court exercising jurisdiction over the declaratory judgment claim. Upon

consideration of the factors set forth in Reifer, this Court finds that the presumption is not

rebutted. Regarding the first factor, the requested declaration would resolve the uncertainty

surrounding the rate at which CCA is obligation to pay service providers. Regarding the

second factor, resolving this issue now is clearly convenient for the parties and there is no

obvious inconvenience for either party if the declaration is made. Relatedly, the fourth

factor requires consideration of the availability and comparative convenience of other

remedies. An alternative would essentially include future litigation, which would subject

the parties to additional costs, efforts, and delays in the disbursement of T.R.’s CEA

hours—clearly such an alternative is not more convenient for the parties. The final factor

(the public interest) also weighs in favor of exercising jurisdiction because settling the

uncertainty of CCA’s payment obligations for T.R.’s CEA now would prevent additional

public funds from being needlessly spent in future litigation between the parties, including

the court system’s costs and resources, as well as CCA’s resources, as a public charter

school. In light of these circumstances, this Court will exercise its discretion and retain

jurisdiction of the declaratory judgment claim.

III. Analysis of Declaratory Judgment Claim

CCA seeks a declaratory judgment that “CCA’s obligation to pay for compensatory

education services is limited to the market rate for such services in the geographic area

where the services are provided” and that “the market rate for tutoring services in the

greater Philadelphia area is $75 per hour.” (Amended Counterclaim, ECF 20, at p. 4).

“The standard for granting summary judgment in a declaratory judgment action is the same

as for any other type of relief.” Selective Ins. Co. of Am. v. Novitsky, 366 F. Supp. 3d 638,

644 (M.D. Pa. 2019) (citing Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Marketing

Board, 298 F.3d 201, 210 n.12 (3d Cir. 2002)). CCA bears the burden of proof at trial for

this claim, on which both parties move for summary judgment.

In CCA’s motion, it argues that this Court should grant summary judgment in its

favor because the evidence it produced (regarding the rates charged for tutoring and

instruction in the Upper Darby and Haverford school districts) is not disputed by Plaintiff,

and Plaintiff did not offer any evidence to the contrary to establish what the customary,

prevailing hourly rate for tutoring and instruction is in the community, market, or location

T.R. receives services. In her motion, Plaintiff argues that summary judgment should be

granted in her favor because (1) the Hearing Officer’s Decision and Order “does not limit

services to the greater Philadelphia area[,]” and (2) the “broad range of services should not

be defined by a single arbitrary conversion rate.” (Plf. Br., ECF 26, at p. 25).

First, this Court will address CCA’s request for a declaratory judgment that “CCA’s

obligation to pay for compensatory education services is limited to the market rate for such

services in the geographic area where the services are provided.” As explained supra,15 a

concise statement of the funding requirement imposed on CCA by the Hearing Officer’s

Decision and Order is that CCA must pay service providers at the customary, prevailing

hourly rate in the community, market, or location where T.R. receives services. This

statement is the extent of CCA’s obligation. Contrary to Plaintiff’s assertion, CCA is not

required to pay whatever rate a provider charges. Comparing the language in CCA’s

requested declaration with the language in the Hearing Officer’s Decision and Order

reveals that CCA’s requested declaration substitutes the word “market” for the words

“customary, prevailing hourly” and the word “geographic area” for “community, market,

or location.” Though the meanings of the differing words are similar, the language of the

Hearing Officer’s Decision and Order controls. Accordingly, this Court will grant

15 See supra p. 9.

declaratory judgment in CCA’s favor on this first request, using the language sourced from

the Hearing Officer’s Decision and Order.

As to the second portion of CCA’s request for a declaratory judgment, which seeks

a declaratory judgment that “the market rate for tutoring services in the greater Philadelphia

area is $75 per hour,” the precise language of the Hearing Officer’s Decision and Order

again controls. The Hearing Officer’s Decision and Order establishes that the geographic

area from which to determine the customary, prevailing hourly rate is the community,

market, or location where T.R. receives services. CCA asks this Court to hold that the

“community, market, or location where T.R. receives services” is the Greater Philadelphia

Area. In opposition, Plaintiff argues that the Decision and Order “does not limit services

to the greater Philadelphia area.” Plaintiff is correct. The Decision and Order do not further

define the “community, market, or location” where T.R. receives services. While the

Greater Philadelphia Area arguably could constitute a valid geographic location from

which to pull the applicable data, the parties dispute whether the Greater Philadelphia Area

is the correct or only articulation of the permitted geographic location. Thus, to the extent

CCA seeks a declaration that the applicable rate for tutoring services in the Greater

Philadelphia Area is the rate that applies to all of T.R.’s tutoring services, such a declaration

would be inconsistent with the broader terms of the Hearing Officer’s Decision and Order.

Furthermore, the evidence CCA points to in order to support its claim that the

applicable rate in the Greater Philadelphia Area is $75/hour consists only of example rates

in Upper Darby and Haverford Township school districts. Plaintiff argued that “a single

arbitrary conversion rate” should not be declared. Indeed, even CCA’s proposed

geographic location—the Greater Philadelphia Area—consists of many more than those

two school districts. While the average rate that CCA produced is not arbitrary and is based

on actual tutoring contracts within the Greater Philadelphia Area, to declare that an average

rate within two school districts is representative of the entire Greater Philadelphia area

would not be supported by the record evidence. While CCA is correct that Plaintiff does

not dispute CCA’s evidence of the hourly rates for tutoring and instruction in the in Upper

Darby and Haverford Township school districts, that undisputed evidence is not necessarily

sufficient to satisfy CCA’s burden of establishing the rate in the Greater Philadelphia Area.

Thus, reasonable jurors could disagree as to whether the undisputed evidence that CCA

produced constitutes the proper rate under the Hearing Officer’s Decision and Order.

Accordingly, CCA’s motion for summary judgment regarding this declaration is denied.

Regarding Plaintiff’s motion for summary judgment on this claim, as the previous

discussion demonstrates, the parties dispute the sufficiency of CCA’s proffered evidence.

Therefore, Plaintiff did not meet her own summary judgment burden of identifying the

absence of genuine issues of material fact regarding this declaration. Accordingly,

Plaintiff’s motion for summary judgment regarding this declaration is denied.

Count II of CCA’s Counterclaims: Wrongful Use of Civil Proceedings

At Count II of CCA’s counterclaims, CCA asserts a Wrongful Use of Civil

Proceedings claim against Plaintiff based on the history of thirteen civil actions that

Plaintiff has filed against CCA over the last five years. To prove this claim, CCA will need

to establish that Plaintiff (1) “t[ook] part in the procurement, initiation or continuation of

civil proceedings against” CCA and (2) “act[ed] in a grossly negligent manner or without

probable cause and primarily for a purpose other than that of securing the proper discovery,

joinder of parties or adjudication of the claim in which the proceedings are based[,]” and

that (3) “the proceedings have terminated in favor of [CCA].” 42 Pa. Cons. Stat. § 8351(a).

Only Plaintiff moves for summary judgment on this claim.

In her motion, Plaintiff merely restates her denials of the allegations in CCA’s

counterclaim as first indicated in her answer to CCA’s counterclaim; indeed, Plaintiff

literally continuously states that she “denies” the “allegations” made by CCA. (Plf. Br.,

ECF 26, at p. 26-30). Plaintiff summarizes her argument by stating that “[n]one of her civil

proceedings against CCA have been egregious or initiated and continued with improper

motives.” (Id. at p. 30).16 For summary judgment to be granted in Plaintiff’s favor on this

claim, Plaintiff would needed to show “that there is no genuine dispute as to any material

fact [regarding the Wrongful Use of Civil Proceedings claim] and [that she] is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Not only did Plaintiff not identify any

evidence “demonstrat[ing] the absence of a genuine issue of material fact[,]” Celotex

Corp., 477 U.S. at 323, Plaintiff’s consistent denials of CCA’s factual allegations

demonstrate the very existence of disputed issues of material facts essential to resolving

this claim (i.e.: whether Plaintiff acted in a grossly negligent manner or without probable

cause; whether Plaintiff acted for an improper purpose). Because Plaintiff failed to show

the absence of a genuine issue of material fact, and because the record evidence

demonstrates the continued existence of disputed issues of material facts, Plaintiff’s motion

for summary judgment on CCA’s Wrongful Use of Civil Proceedings claim is denied.

16 Notably, CCA accurately points out that, once again, Plaintiff’s motion does not cite to any

materials in the record to support her factual assertions, as Rule 56 requires her to do.

CONCLUSION

For the reasons stated herein, CCA’s partial motion for summary judgment is

granted, in part, and denied, in part, and Plaintiff’s motion for summary judgment is

denied. An Order consistent with this Memorandum Opinion, which sets forth the

corresponding declaratory judgment, follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.