2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-21-2011

Vincent Dutkevitch v. PA Cyber Charter Sch

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2393

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Recommended Citation

"Vincent Dutkevitch v. PA Cyber Charter Sch" (2011). 2011 Decisions. Paper 836.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________

No. 09-2393

_________

VINCENT DUTKEVITCH, 

a minor by and through his parent Sharon Dutkevitch; 

SHARON DUTKEVITCH, 

individually and on behalf of her son, 

 Appellants

v.

PA CYBER CHARTER SCHOOL; CEO NICK TROMBETTA; 

PA STATE DEPARTMENT EDUCATION;

REBECCA MANNING, Director of Special Education; 

GERALD ZAHORCHAK; PA SECRETARY OF EDUCATION; 

DIRECTOR SPECIAL EDUCATION, 

in their official and individual capacities; 

WEST SIDE AREA VO-TECH SCHOOL; 

PITTSTON AREA SCHOOL DISTRICT; 

ELIZABETH JANE ELLIS, 

Administrative Director in her official and individual capacities

________

On Appeal from the United States District Court

for the Middle District of Pennsylvania 

(D.C. No. 3-07-cv-01672)

Magistrate Judge: Honorable Thomas M. Blewitt

_______

Argued July 12, 2011

Before: SLOVITER, FUENTES, and GARTH, Circuit Judges

(Filed July 21, 2011 )
2

Michael S. Doluisio

Jennings F. Durand (Argued)

Stuart T. Steinberg

Dechert

Philadelphia, PA l9l04

Attorneys for Appellants

John E. Freund, III

Glenna M. Hazeltine

Lucas J. Repka (Argued) 

King, Spry, Herman, Freund & Faul

Bethlehem, PA l8018

Attorneys for Appellees

_____________

OPINION 

_____________

SLOVITER, Circuit Judge.

Vincent Dutkevitch and his mother Sharon Dutkevitch appeal the District Court’s 

dismissal of Vincent’s claims for disability discrimination against the Pittston Area 

School District and West Side Area Vocational Technical School (collectively 

“Defendants”). We will affirm.1

 

1

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, 

and this court has jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291. This court 

exercises plenary review over a dismissal for failure to state a claim pursuant to 

Fed. R. Civ. P. 12(b)(6). In so doing, we “accept all factual allegations as true, 

construe the complaint in the light most favorable to the plaintiff, and determine 

whether, under any reasonable reading of the complaint, the plaintiff may be 
3

Because we write primarily for the parties, we need not discuss the facts or 

procedural history of this case.2 

In their Third Amended Complaint, the Dutkevitches allege that Defendants 

discriminated against Vincent on the basis of his disability by failing to make reasonable 

modifications to their enrollment policies in violation of Section 504 of the Rehabilitation 

Act (“RA”), 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act 

(“ADA”), 42 U.S.C. § 12101 et seq.

3

 The Dutkevitches seek damages in excess of 

$75,000 for “the loss of Vincent’s vocational technical education . . . [that] would have 

increased Vincent’s strengths, preferences and interests in the computer field,” and their 

“present financial hardship” for the cost of Vincent’s post-secondary program at the Art 

Institute of Pittsburgh. App. at 44-45. 

The RA and ADA have parallel requirements. See 29 U.S.C. § 794(a); 42 U.S.C. 

§ 12132. See also, e.g., Helen L. v. DiDario, 46 F.3d 325, 330 n.7 (3d Cir. 1995). The 

parties do not dispute that Vincent is a qualified individual with a disability.4 Rather, the 

 

entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) 

(internal quotation omitted). 

2

The court thanks pro bono counsel, Dechert LLP, for their able 

representation of the Dutkevitches in this matter. 

3

The Dutkevitches did not specifically assert a claim under the Individuals 

with Disabilities Education Act, 20 U.S.C. § 1400 et seq.

4 Neither do the parties dispute that Defendants receive federal financial 

assistance, which is also necessary to establish a violation of the RA.
4

dispute centers on whether Defendants denied Vincent a vocational education because of 

his disability. 

The District Court correctly concluded that the Dutkevitches failed to state a claim 

for disability discrimination because “neither [Pittston] nor [West Side] owed any legal 

obligation to Vincent during any relevant time of this case.” Dutkevitch v. PA Cyber 

Charter Sch., et al., No. 3:CV-07-1672, slip op. at 18 (M.D. Pa. Apr. 8, 2009). Vincent 

was enrolled with the Pennsylvania Cyber Charter School, which operated as Vincent’s 

Local Education Agency (“LEA”) under the Individuals with Disabilities Education Act 

(“IDEA”), 20 U.S.C. § 1400 et seq. Therefore, the Charter School was tasked with 

providing Vincent with a free appropriate public education and Defendants were not 

permitted to intervene. See 20 U.S.C. §§ 1412(b), 1414(b). 

The Dutkevitches argue that “both the [RA] and the ADA impose an affirmative 

duty not to discriminate that is distinct from any duties a school district may owe to a 

student under the IDEA.” Appellant’s Br. at 20. We disagree. The lack of a duty to 

Vincent under the IDEA on the part of Pittston and West Side bears directly on whether 

Defendants violated their obligations not to discriminate against Vincent. 

Pittston’s failure to recommend that Vincent attend a vocational-technical school 

had nothing to do with Vincent’s disability. Rather, Pittston withheld recommendation 

because it “was not Vincent’s LEA” and thus “was not required to make sure Vincent

received . . . computer training.” Dutkevitch, No. 3:CV-07-1672, slip op. at 18. 

Likewise, West Side’s refusal to give Vincent’s mother an application to the school had 
5

nothing to do with Vincent’s disability. Rather, West Side’s decision was based on West 

Side’s admissions policies that are consistent with federal law, see 20 U.S.C. § 1415(j), 

and apply equally to all students who, like Vincent, seek to enroll in a vocational school 

outside their district of residence, see 24 P.S. 18-1847. In other words, as the District 

Court concluded, “there are insufficient allegations that Defendants withheld from 

Vincent any educational services or benefits they owed to him because of his disabilities 

and that they excluded Vincent from any school programs or activities available to other 

students.” Dutkevitch, No. 3:CV-07-1672, slip op. at 18. 

We further conclude that the District Court did not abuse its discretion when it 

denied the Dutkevitches’ request for leave to amend the complaint a fourth time on the 

grounds that amendment on the exhaustion of remedies issue would be futile and would 

cause undue delay and prejudice the Defendants. See Travelers Indem. Co. v. Dammann 

& Co., 594 F.3d 238, 243 n.3 (3d Cir. 2010) (setting forth abuse-of-discretion standard of 

review of an order denying leave to amend); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 

2000) (setting forth justifications for denial of leave to amend). 

Accordingly, we will affirm the order of the District Court dismissing the 

Dutkevitches’ Third Amended Complaint with respect to claims for money damages 

under Section 504 of the Rehabilitation Act and Title II of the Americans with 

Disabilities Act and declining to exercise supplemental jurisdiction over the claim for 

injunctive relief under the Pennsylvania Constitution.