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Decision No. 16,659

Appeal of BRAD PRUSAK, on behalf of the students of the East Aurora Union Free School District, from action of the Board of Education and Administration of the East Aurora Union Free School District, regarding physical education.

Decision No. 16,659

(August 20, 2014)

Harris Beach, PLLC, attorneys for respondents, Tracie L. Lopardi and Marnie E. Smith, Esqs., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the actions of the Board of Education and Administration of the East Aurora Union Free School District (collectively referred to as “respondents”) with regard to the district’s physical education program.  The appeal must be dismissed.

Petitioner is a district resident and taxpayer whose children attend respondents’ schools.  The record indicates that, over the last several years, the district has taken various actions to cut costs, including reductions in staffing and programs.  The record further indicates that, at the board’s April 9, 2014 meeting, respondents’ high school principal (“principal”) described a proposal to allow students attending eleventh and twelfth grade, who participate in at least two athletic teams, to waive participation in physical education classes in the 2014-2015 year and to earn physical education credit through participation in such athletic teams (“high school proposal”).  This appeal ensued.

Initially, I note that petitioner’s claims are not entirely clear and the petition contains neither a request for relief nor any factual proof or substantiating documentation.  Petitioner appears to contend that respondents’ physical education program does not meet the requirements set forth in §135.4 of the Commissioner’s regulations.  Petitioner generally alleges that the district “has failed to meet the Physical Education mandate” for his son in grades three, four and five, as well as for his daughter in grade six.  Petitioner also appears to challenge the high school proposal.

Respondents argue that the appeal must be dismissed for improper service, lack of standing, lack of verification and failure to serve a notice of petition.  Respondents also contend that petitioner’s claims are premature and that the petition fails to identify the relief sought and fails to state a claim upon which relief may be granted.  Respondent maintains that its physical education program is in compliance with all applicable requirements.

Initially, I must address the procedural issues.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501). However, the petition submitted to my Office of Counsel contains the requisite verification.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of Johnson, 46 Ed Dept Rep 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949; Appeal of Goldin, 43 id. 20, Decision No. 14,904).  Accordingly, I decline to dismiss the petition for lack of proper verification.

The appeal must be dismissed to the extent petitioner attempts to assert claims on behalf of students other than his own children.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]). An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). While petitioner has standing to bring this appeal on behalf his two children to the extent they are aggrieved, he lacks standing to assert the rights of others (Appeals of Giardina and Carbone, 43 Ed Dept Rep 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  Petitioner also lacks standing to the extent that he attempts to challenge decisions or actions that do not directly affect him or his children (cf. Appeal of Doyle, 52 Ed Dept Rep, Decision No. 16,429).  Specifically, to the extent that petitioner attempts to challenge the high school proposal, he lacks standing as neither of his children are eleventh or twelfth grade students (cf. Appeal of Doyle, 53. Ed Dept Rep, Decision No. 16,439).

The appeal must also be dismissed for lack of proper service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). Pleadings may be served by any person not a party to the appeal over the age of 18 (8 NYCRR §275.8[a]; Appeal of C.D. and P.D., 46 Ed Dept Rep 459, Decision No. 15,563).  The affidavit of service submitted with the petition and signed by petitioner clearly states that he himself served the superintendent, and this fact is confirmed by the superintendent in his affidavit. As petitioner is a party to the action, the petition was not properly served and must be dismissed (see Appeal of Hughes, 48 Ed Dept Rep 299, Decision No. 15,865).

I also find that the appeal must be dismissed based upon the failure of petitioner to serve a notice of petition on respondents.  The petition, without a notice of petition as required by 8 NYCRR §275.11, was served on respondent on May 20, 2014.  The notice of petition secures jurisdiction over the intended respondent and alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (8 NYCRR §275.11(a); Appeal of Hauk, 44 Ed Dept Rep 36, Decision No. 15,090; Appeal of Khalid, 40 id. 621, Decision No. 14,570; Appeal of Heller, 38 id. 335, Decision No. 14,048).  A petition that does not contain the language required by §275.11 is fatally defective, and does not secure jurisdiction over the intended respondent (Appeal of Hauk, 44 Ed Dept Rep 36, Decision No. 15,090).  Although the copy sent to my Office of Counsel did contain a notice of petition, the failure to include such notice with the papers served upon respondents requires dismissal in this matter.

Finally, respondent argues that the petition must be dismissed because it does not contain a clear and concise statement of petitioner’s claims. A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10). Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729). Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  While dismissal on this basis is not undertaken lightly, particularly where a petitioner appears pro se, it is warranted in this instance.  The petition is not clear as to what exactly petitioner seeks to challenge and contains no factual proof or substantiating documentation.  Even under a liberal interpretation of this requirement, the petition does not contain a clear, ascertainable claim or any request for relief.  As such, I must also dismiss this petition for failure to comply with §275.10 of the Commissioner’s regulations (see Appeal of Race, 53 Ed Dept Rep, Decision No. 16,567).

In light of this disposition, I need not consider the parties’ remaining contentions.