The parties to this action are before the court for rehearing of defendant's motion for summary judgment.*fn1
Plaintiff, James L. Martin, is an applicant for a Pennsylvania real estate salesman's license.*fn2 After satisfying all the eligibility requirements and paying the examination fees, plaintiff twice sat for the required Real Estate Licensing Examinations (hereafter the "R.E.L.E."), on November 11, 1979 and January 12, 1980. The examinations, administered by defendant Educational Testing Service, Inc. (hereafter "ETS") of Princeton, New Jersey, consisted of a uniform test, administered in all jurisdictions using the R.E.L.E., and a state test, developed in close cooperation with Pennsylvania and reflecting that state's particular real estate law and practice.*fn3 Both consist of objective, multiple-choice questions. Passing score, established by Pennsylvania, is 75, and a successful candidate for licensure must pass both parts of the examination. Plaintiff passed the uniform portion, but failed the state test twice, first scoring 67 in November 1979 and then 74 in January 1980.
Plaintiff thereafter made oral and written requests to ETS both to regrade his second examination and to send him copies of the state test. ETS informed plaintiff that under the signed
"agreement" between the parties*fn4 it was under no obligation to provide plaintiff with the requested information. ETS did regrade plaintiff's second examination by hand and found no grading error.
On May 12, 1980 plaintiff filed a pro se complaint against ETS (1) alleging that ETS wrongfully scored his examination*fn5 and (2) requesting copies of the November 10, 1979 and January 12, 1980 examination, as well as plaintiff's and ETS' answers to both examinations for study purposes. Although not stated specifically, it appears from the pleadings that pursuant to the allegation of wrongful scoring plaintiff is requesting this court to rescore his examination and declare that he has passed all requirements for licensure should it be proven that a mistake was made which brought his score below passing level.*fn6
ETS has, among other things, answered that plaintiff's action is barred by the doctrines of waiver and estoppel in that he entered into the alleged "written contract" with ETS (the Bulletin of Information) which, as noted earlier, provided that a failing applicant had no right to review the test results. At the initial hearing ETS further argued that the documents sought were protected under the copyright laws, were confidential and constituted trade secrets.*fn7 Relying on these defenses, ETS moved for summary judgment on both of plaintiff's claims.
Plaintiff, in opposition to the motion for summary judgment, contends that he is unable to prove that ETS wrongfully graded his examination because the examination and answers are in the exclusive possession and control of ETS.
In deciding the issues in this case, it is first necessary to point out that plaintiff claims two distinct rights: (1) the substantive right to have his test graded accurately and (2) the procedural right to discovery as a means of ascertaining any violation of the substantive right. In the absence of a substantive right deserving of judicial protection, the granting of a procedural right would be meaningless.
In Brotspies v. Civil Service Dep't, N.J. , 66 N.J. Super. 492 (App.Div.1961), applicants for a New Jersey Civil Service position challenged, among other matters, the grading of particular questions on an objective, multiple-choice promotional examination,
alleging that the answers considered correct by the Department were, in fact, incorrect. On that issue the court said:
We have carefully reviewed the questions and answers considered correct by the respondent Department, as well as those claimed to be correct by plaintiffs' consensus. We perceive no reason for judicial intervention . . . The answers considered correct by [respondent] . . . have not been shown to be unreasonable or implausible. We are persuaded that respondent exercised a reasonable administrative ...