THOMAS YARCHESKI v. UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1865-07T31865-07T3

THOMAS YARCHESKI,

Plaintiff-Appellant,

v.

UNIVERSITY OF MEDICINE AND DENTISTRY

OF NEW JERSEY, UMDNJ BOARD OF TRUSTEES,

BRUCE VLADEK, DULA PACQUIAO and

SUSAN SALMOND, as individuals,

Defendants-Respondents.

 

Submitted September 25, 2008 - Decided

Before Judges Winkelstein, Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. C-358-06.

DiFrancesco, Bateman, Coley, Yospin, Kunzman,

Davis & Lehrer, attorneys for appellant (Richard P.

Flaum, of counsel; Thomas R. Basta, on the brief).

SAIBER LLC, attorneys for respondent (Sean R.

Kelly, on the brief).

PER CURIAM

Plaintiff Thomas Yarcheski appeals from the order of the Chancery Division, General Equity Part, dismissing his cause of action against defendant the University of Medicine and Dentistry of New Jersey ("the University"), its Board of Trustees, and three individuals affiliated with the University. After permitting the parties to engage in discovery, the court granted defendants' motion for summary judgment.

Plaintiff now appeals arguing, inter alia, that the motion judge erred: (1) by not recusing himself from hearing this matter; (2) by failing to find that there was an enforceable contract between himself and the University; (3) by not holding that the actions of the University and the other named defendants amounted to a breach of that contract, entitling him to injunctive relief and monetary damages. After reviewing the record before us and in light of prevailing legal standards, we reject these arguments and affirm substantially for the reasons expressed by Judge Levy.

I

In the summer of 2005, plaintiff matriculated in the University's Accelerated Bachelor of Science in Nursing Program. Part of the information plaintiff received upon enrollment was the University's course catalog, which describes the courses offered in the Program. The front page of this document contains the following statement:

This catalog (or bulletin or handbook, or other document) is informational only and does not constitute a contract between UMDNJ and any student. It may be changed by UMDNJ without prior notice to students. Any rules, regulations, policies procedures or other representations made herein may be interpreted and applied by UMDNJ to promote fairness and academic excellence, based on the circumstances of each individual situation.

Plaintiff began his training in September 2005 by enrolling in "Nursing 301 Health Promotion in a Multicultural Society," a class taught by defendant Dr. Dula Pacquiao. This class is a prerequisite to all upper level courses. Dr. Pacquiao provided the students with a nine-page syllabus describing the goals of the class, and how student performance would be evaluated and graded.

Plaintiff became part of a six-student group charged with writing a paper followed by an oral presentation. The group chose "Chinese male with NIDDM" as the topic for discussion.

On November 23, 2005, plaintiff's group gave their oral presentation to the class. In Dr. Pacquiao's opinion, plaintiff's portion of the presentation and the accompanied handout had no relation to the topic selected by the group. After receiving complaints about plaintiff's presentation from the other members of the group, Dr. Pacquiao decided to give plaintiff a separate, individual grade.

Ultimately, Dr. Pacquiao gave plaintiff a zero for the oral presentation. She gave the following explanation for her decision:

This group [is] comprised of 6 members. The first 4 members presented their teaching project for a Chinese male elder . . . using the same set of slides. [Plaintiff] was the 2nd to the last presenter. He began by distributing a one-page handout and asked one of his group mates who was standing on the same side of the room with him to move with the rest of the group mates. Then he proceeded to speak to the three points in his handout. This presentation was totally irrelevant to the group's project. It did not address the criteria nor directions for the project as stated in the syllabus. The presentation focused more on questioning the validity of the teaching project as a course requirement and as a function of the nurse as well as the placement of the course in the curriculum.

[Plaintiff's] group mates requested that his oral presentation be excluded in grading their presentation. They expected him to present the planning portion of the project and they were not informed ahead of time of any change in his plans. The decision by the group was put in writing and sent to [plaintiff] with a copy to the faculty.

[Plaintiff's] oral presentation disregarded the teamwork required in a group project to achieve the objectives of the required, graded project. His presentation failed to contribute, expand, or enrich the group's presentation. It was evident that he intentionally did not want to contribute with the health teaching project and behaved in a manner that compromised the achievement of his group. He used valuable time from his group that could have been better used to present their project more comprehensively.

Dr. Pacquiao directed plaintiff to submit the written portion of the assignment separately from the group. Plaintiff received a grade of "81" (out of a possible 100). When the two grades were combined and averaged (oral "0" and written "81"), plaintiff received a "D" as his final grade for the class; this is not considered a passing grade.

Plaintiff appealed the grade to the Student Affairs Committee. As provided in the University's Student Handbook:

Each UMDNJ-SN program provides to students that programmatic process of academic appeals. In general, the process involves appeal to the faculty member, appropriate Assistant Dean, and the Student Affairs Committee. The UMDNJ-SN Committee's decision shall be final.

On January 17, 2006, the Committee held a hearing and considered the testimony of both plaintiff and Dr. Pacquiao. By letter dated January 24, 2006, the Committee determined that plaintiff was to:

receive an incomplete grade for the course and be allowed to complete an alternative assignment, preferably, an assignment that involves the teaching plan for the family in this case. Part of the assignment should involve the completion of a slide presentation (no less than 20 slides) outlining the plan, interventions and evaluation phases. The details of the assignment should be under the direction of Dr. Pacquiao. . . . At the completion of this assignment, Dr. Pacquiao will grade the assignment and assign a numerical grade and re-compute your final grade for the presentation in lieu of the current of a "0" which you achieved for his oral presentation. The grade for this make-up can range from a "0" to a "100."

In accordance with the Committee's decision, Dr. Pacquiao provided plaintiff with an alternative assignment. What occurred next is disputed by the parties. According to the University, instead of submitting the required assignment, plaintiff engaged in a fruitless letter-writing campaign to petition the University's administration to intervene on his behalf. According to plaintiff, his attorney successfully negotiated with the University's attorneys to permit him to submit a ten-page paper to be graded by a third party in lieu of the presentation owed to Dr. Pacquiao. What is clear, however, is that Dr. Pacquiao had no knowledge of this alleged agreement.

On September 5, 2006, plaintiff finally submitted an alternative assignment to Susan Salmond, Associate Dean for Planning & Graduate Studies. The next day Dean Salmond wrote to plaintiff advising him that his written presentation did not meet "specifications identified" by both the Student Affairs Committee and Dr. Pacquiao. Consequently, his previous grade of "0" would stand.

On September 7, 2006, plaintiff met with Dean Salmond and Professor Collins to discuss his status in the Accelerated Nursing Program. That same day, Dean Salmond sent plaintiff a letter memorializing what had transpired at this meeting. In pertinent part, the letter read as follows:

[T]he requirement for progression in this program is to take Nursing 301, Health Promotions.

. . . .

In consideration of facilitating this requirement while advancing into Level IV courses, I gave you at our meeting today a schedule that accommodates the Health Promotion course along with all level IV courses. During this meeting, you said that you refuse to retake Nursing 301, Health Promotion. This letter serves as official notification that the requirement for progression is to retake Nursing 301.

I am giving you the opportunity to reconsider your refusal and will keep the schedule open for you until Monday, September 11, 2006. If I do not hear from you by then that you agree to retake this course, you will be dismissed from the BSN program.

Plaintiff subsequently enrolled again in the Nursing 301 course in the Fall 2006 semester. Plaintiff failed to attend the first six classes. On October 10, 2006, Dr. Pacquiao sent a letter to plaintiff stating that he was required to attend all future classes as well as complete the other course requirements. Plaintiff failed to attend any classes or take the midterm examination.

On October 25, 2006, plaintiff sent a letter to the University's Office of the Registrar seeking to withdraw from the course. By letter dated that same day, Dean Salmond advised plaintiff that if he withdrew from Nursing 301, he must also withdraw from all other upper level courses. Plaintiff was also required to withdraw by November 10, 2006, the "course-drop" deadline, otherwise it would result in academic dismissal pursuant to the University's policy permitting a student to retake a nursing course only once.

On November 2, 2006, plaintiff filed a complaint and an order to show cause seeking to enjoin defendants from dismissing him from the program. In this complaint plaintiff alleged breach of contract, breach of the covenant of good faith and fair dealing, tortious interference of economic gain, conspiracy, intentional infliction of emotional distress, violation of his due process rights, and violation of his procedural and substantive due process rights. On November 9, 2006, the court denied plaintiff's order to show cause.

Plaintiff did not withdraw from classes before the November 10, 2006 deadline. As a consequence, by letter dated November 13, 2006, Dean Salmond informed him that he had failed to meet any of the requirements of Nursing 301 and had "earned a grade of 'F' in that course." Pursuant to University policy, plaintiff was academically dismissed from the program.

On November 14, 2006, plaintiff appealed his academic dismissal to the Student Affairs Committee. The Committee held a hearing in which plaintiff, Dr. Pacquiao, Dean Salmond, and a representative of the University's registrar all testified. On November 22, 2006, the Committee upheld the dismissal, finding that plaintiff had failed to appropriately withdraw from Nursing 301, and had received a failing grade in the course.

II

Against these facts, the matter came before the trial court by way of cross-motions for summary judgment. After considering oral argument, Judge Levy denied plaintiff's motion, and granted defendants' motions to dismiss the cause of action against them as a matter of law. Judge Levy explained his ruling in a comprehensive, well-reasoned oral decision delivered from the bench on November 9, 2007.

Defendant now appeals, arguing that the motion judge erred: (1) by failing to find that the course syllabus distributed by Dr. Pacquiao to the students enrolled the Nursing 301 class constituted a legally enforceable contract; (2) by failing to recuse himself from hearing this case; (3) by failing to find that the University's student evaluation procedures were arbitrary and capricious; (4) by upholding the University's student appeal policy and procedures; (5) by failing to find spoliation of evidence against Dr. Pacquiao; and (6) by dismissing his claims based on civil conspiracy and tortious interference with a contractual relationship.

The trial court decided this matter on summary judgment. This required the court to find that there were no material issues of fact in dispute, and the prevailing party was entitled to a judgment in its favor as a matter of law. R. 4:46-2. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). All inferences are to be decided in favor of the non-prevailing party. Ibid. We apply the same legal standard in reviewing the trial court's ruling. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We are satisfied that all of the arguments advanced by plaintiff lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We thus affirm substantially for the reasons expressed by Judge Levy in his oral decision, which we incorporate by reference here. We are compelled, however, to make the following brief comments concerning plaintiff's argument regarding Judge Levy's recusal.

Plaintiff asserts that Judge Levy should have recused himself from hearing the summary judgment motion because of "the history of acrimony between Judge Levy and [plaintiff]." Plaintiff claims that Judge Levy was biased against him because plaintiff had written the Essex County Assignment Judge expressing his dissatisfaction with the manner Judge Levy had decided certain discovery issues, and had requested that Judge Levy be disciplined. Plaintiff had also sent a pro se letter to Judge Levy stating that he believed he should "recuse [himself] from considering his former counsel's motion to be relived as counsel in the case."

As a threshold issue, we note that plaintiff did not file a motion before Judge Levy seeking his recusal from deciding the summary judgment motions. In this light, plaintiff is precluded, as a matter of law, from raising this issue here.

A party seeking the removal of a judge in a contested matter must first file a motion before the judge whose disqualification is sought. N.J.S.A. 2A:15-50; Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.), certif. denied, 77 N.J. 468 (1978). The disposition of the motion is, at least in the first instance, entrusted to the "sound judgment" of the trial judge whose recusal is sought. Magill v. Casey, 238 N.J. Super. 57, 63 (App. Div. 1990).

Here, plaintiff failed to raise this issue in a timely fashion before Judge Levy. He is thus barred from raising this issue on appeal absent an indication of plain error. R. 2:10-2. From the record before us, there is no basis to find plain error.

Affirmed.

The policy provides that "[i]f a student earns a grade of less than C+ in any nursing course, the student may retake the course once and must achieve a grade of C+ or better; any subsequent failure in a nursing course will result in dismissal from the program."

(continued)

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A-1865-07T3

December 9, 2008