NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2013
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0296-12.
Jeffrey D. Ullman argued the cause for appellant (Ullman, Furhman & Platt, P.C., attorneys; Mr. Ullman, on the brief).
Richard H. Bauch argued the cause for respondent (Bauch Zucker Hatfield, L.L.C., attorneys; Mr. Bauch and Evan M. Lison, of counsel and on the brief).
Before Judges Axelrad and Haas.
Plaintiff Dominic Costanzo, a school superintendent, appeals the July 13, 2012 order of the Law Division dismissing his complaint against defendant Lebanon Borough Board of Education. Judge Peter A. Buchsbaum found the State Commissioner of Education (Commissioner) had primary jurisdiction over this dispute involving tenure charges defendant filed against plaintiff and the non-renewal of plaintiff's employment agreement. We affirm.
Plaintiff is tenured in the position of "Principal, Technology Coordinator, and Supervisor of Curriculum" with the Lebanon Borough School District. On November 12, 2009, defendant entered into a written employment contract with plaintiff to become the Superintendent of Schools. The contract was for a three-year term.
In October 2011, defendant advised plaintiff it did not plan to extend or renew plaintiff's employment contract. On April 13, 2012, defendant filed tenure charges against plaintiff with the Commissioner. Defendant alleged plaintiff had engaged in unbecoming conduct. After the charges were certified, defendant suspended plaintiff without pay. As a result of the charges, there is a tenure revocation proceeding pending before the Commissioner.
On April 26, 2012, plaintiff filed a complaint against defendant in the Law Division. Plaintiff alleged defendant violated the "covenant of good faith and fair dealing incorporated into" his employment contract and that defendant had breached its contract with him. He argued the tenure charges were "bogus" and were "fabricated" by defendant "in the hope . . . to force plaintiff to surrender his tenure rights[.]"
Defendant filed a motion to dismiss the complaint for lack of jurisdiction under Rule 4:6-2(a). In a thoughtful and thorough written decision, Judge Buchsbaum found the Commissioner had primary jurisdiction over this tenure dispute and, therefore, he granted defendant's motion and dismissed plaintiff's complaint.
On appeal, plaintiff concedes that "the disposition of tenure charges is subject to the primary jurisdiction of the Commissioner . . . ." However, he asserts his claim "that the charges were fabricated and filed in bad faith, in breach of [defendant's] contractual obligation to deal with plaintiff fairly, and in good faith[, ] falls outside the purview of the Commissioner, and squarely within the jurisdictional authority of the Law Division." We disagree and affirm substantially for the reasons set forth by Judge Buchsbaum in his written opinion. We add only the following brief comments.
"Primary jurisdiction is defined as the circumstance in which a 'court declines original jurisdiction and refers to the appropriate body those issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.'" Muise v. GPU, Inc., 332 N.J.Super. 140, 158 (App. Div. 2000) (quoting Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 269 n. 1 (1978)). "Where one aspect of a single, integrated dispute is pending before an administrative agency and another aspect of the same dispute is pending before a court, logic commends that the entire matter be dealt with, at least initially, by the entity with plenary ...