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H.H. and E.H. On Behalf of Minor Child P.H v. Board of Education of the Township of Wall

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 15, 2011

H.H. AND E.H. ON BEHALF OF MINOR CHILD P.H., PETITIONERS-APPELLANTS,
v.
BOARD OF EDUCATION OF THE TOWNSHIP OF WALL, MONMOUTH COUNTY, RESPONDENT-RESPONDENT.

On appeal from the New Jersey Commissioner of Education, Docket No. 87-4/09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 10, 2011 - Decided Before Judges Lisa and Reisner.

Appellants, H.H. and E.H., the parents of P.H., a minor, appeal from the February 22, 2010 final decision of the Commissioner of Education (Commissioner) dismissing as untimely their claim petition challenging a failing grade P.H. received in her freshman English class during the 2007-2008 school year. Appellants argue that they substantially complied with the notice requirements and that any delay did not cause substantial prejudice to the Wall Township Board of Education (Board). Appellants' arguments lack sufficient merit to warrant discussion in a written opinion, and we affirm substantially for the reasons expressed by the Administrative Law Judge (ALJ) in her January 6, 2010 Initial Decision, which the Commissioner adopted. See R. 2:11-3(e)(1)(D), (E). We set forth a brief summary of the case for the sake of completeness.

P.H. claimed that on March 5, 2008, her English teacher made an inappropriate remark to her in the presence of other students and a teacher's aide. Appellants' attorney wrote to the superintendent of schools on June 30, 2008, inquiring about the incident. An informal meeting was held on July 23, 2008, at which appellants were informed that the failing grade would stand and P.H. would be required to go to summer school to obtain a passing grade. P.H. attended summer school, obtained a passing grade, and was promoted to the next grade level.

In the months that followed, appellants' counsel exchanged a number of items of correspondence with local and State education officials requesting further review of the matter. Counsel was advised on more than one occasion that the only review available was to file a petition of appeal with the Commissioner. Appellants failed to do so. Indeed, on November 18, 2008, rather than filing a petition with the Commissioner, appellants' counsel again wrote to a representative of the Board requesting a hearing at the local level. After further exchanges of correspondence, appellants finally attempted to file a petition with the Commissioner on April 28, 2009, which was defective, and they ultimately filed an amended petition on May 19, 2009.

The matter was referred to the Office of Administrative Law. The ALJ granted the Board's motion for summary disposition. Petitions of appeal must be filed no later than ninety days from the "date of receipt of the notice of a final order, ruling or other action by the district board of education . . . which is the subject of the requested contested case hearing." N.J.A.C. 6A:3-1.3(i). The ALJ concluded that the starting date to trigger the limitation period was July 23, 2008, the date on which appellants met with the local administration and were informed that their daughter's failing grade would not be changed. The ALJ's analysis was as follows:

Adequate notice has been defined as notice "sufficient to inform an individual of some fact that he or she has a right to know and that the communicating party has a duty to communicate." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 587 (1993). The ninety-day period for commencing an action begins to run when the "plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action." [Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978) (emphasis omitted).] The intent of the ninety-day rule is to stimulate litigants to pursue a right of action within a reasonable time, so that the opposing party may have a fair opportunity to defend. [Kaprow, supra, 131 N.J. at 587.] The rule furthermore exists to "penalize dilatoriness and serve as a measure of repose by giving security and stability to human affairs." Ibid. [(quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973) (internal quotation marks omitted)).]

In adopting the ALJ's initial decision, the Commissioner correctly applied the controlling legal principles, made factual findings that are amply supported by the record, and reached a conclusion that is clearly not arbitrary or capricious. We have no occasion to interfere.

Affirmed.

20110215

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