01-2-9570 Pellegrino Chrysler-Jeep Inc. v. Chrysler Grp. LLC, N.J. Super. App. Div. (per curiam) (26 pp.) Plaintiff, a car dealership in Woodbury Heights, appealed the final agency decision of the Motor Vehicle Franchise Committee denying its protest of a decision by defendant franchisor Chrysler Group LLC to establish a new Chrysler Jeep franchise in Sicklerville, to be owned by Charles Foulke Jr. and the Foulke Management Corp. The panel affirmed substantially for the reasons expressed by the ALJ and adopted by the committee. The panel added that plaintiff’s argument that the ALJ should have considered the Chrysler and Jeep dealerships separately was not raised below and therefore would not be considered. Moreover, the record clearly indicated that all of the parties, including plaintiff, assumed that the protest would be analyzed using a combined dealership. The panel rejected plaintiff’s claim that the decision failed to properly define “market area,” a necessary prerequisite to applying the factors in N.J.S.A. 56:10-23(a)(1) and (3). It also found no error in the ALJ’s decision to credit the testimony of defendant’s expert—that the existing franchisees’ facilities did not provide adequate representation of the line in the market area because of inadequate sales—over the contrary testimony of plaintiff’s expert, or in the ALJ’s finding that defendant had satisfied N.J.S.A. 56:10-23(a)(3), based on that testimony. The panel also rejected plaintiff’s claims that on the basis of Foulke’s history of bad customer service involving consumer complaints, arbitrations and legal actions against it at its other dealerships, Foulke would not materially enhance sales and service to customers. The panel concluded that defendant met its burdens under N.J.S.A. 56:10-23; the committee’s decision did not violate express or implied legislative policies; the record contained substantial evidence to support its findings; and in applying the legislative policies to the facts, the committee did not clearly err in reaching a conclusion that could have been reasonably made upon a showing of the relevant factors.
01-2-9626 Kelly v. N.J. Dep’t of Educ., N.J. Super. App. Div. (per curiam) (12 pp.) Plaintiff, a tenured teacher employed by respondent Lawrence Township Public School District, was convicted in the Pennsylvania Court of Common Pleas of recklessly endangering another person, a second-degree misdemeanor; possessing instruments of crime, a first-degree misdemeanor; simple assault, a second-degree misdemeanor; and disorderly conduct, a third-degree misdemeanor. Respondent Criminal History Review Unit of respondent New Jersey Department of Education determined that, under N.J.S.A. 18A:6-7.1, plaintiff was permanently disqualified from teaching because of his convictions for recklessly endangering another person and possessing instruments of crime. Plaintiff was immediately terminated. He appealed, and the matter was transferred to the Office of Administrative Law as a contested matter. The evidence upon which the jury convicted plaintiff was not considered by either the ALJ or the commissioner when they made their respective determinations. Their knowledge of the facts was derived from an affidavit of probable cause drafted by a police officer, who relayed what the victims had reported to another police officer. The ALJ found that the only issue was whether the two crimes of which plaintiff was convicted were substantially equivalent to those enumerated in N.J.S.A. 18A:6-7.1. She found that they were not, and granted plaintiff’s motion for a summary decision. The commissioner determined that plaintiff’s conviction for recklessly endangering another person was a crime involving the use or threat of force upon another person, an enumerated offense under N.J.S.A. 18A:6-7.1(c)(1), and that he had been properly disqualified from teaching. The appellate panel found that the commissioner failed to ascertain if the jury had found plaintiff used or threatened to use force and that the affidavit of probable cause—which contained double hearsay and factual inconsistencies—did not provide a basis to conclude he did so. Consequently, according to the record, plaintiff could not be disqualified from teaching under N.J.S.A. 18A:6-7.1(c)(1) because of that particular conviction. Since the commissioner did not consider the ALJ’s decision that plaintiff’s conviction for possessing instruments of crime was not substantially equivalent to one of the enumerated offenses in N.J.S.A. 18A:6-7.1, the panel remanded to the commissioner for consideration of that remaining issue.
