For affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan, and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned.
This is an appeal, on direct certification by this Court, 62 N.J. 262 (1973), from a judgment of the Chancery Division reversing an order by appellant, as court-designated Receiver for the Hudson County Employees Pension Commission, vacating and setting aside a disability pension granted by that body to respondent Harold J. Ruvoldt ("Ruvoldt") in December 1963. This action arose out of the following circumstances.
In 1971 the Hudson County Grand Jury investigated the operations of the Pension Commission, resulting in indictments of the five then Commissioners and of the Hudson County Medical Examiner for improprieties in the administration of the county pension fund. Pending trial of those indictments the Attorney General brought a civil action in the Superior Court seeking relief, including appointment of a receiver, for alleged mismanagement, fraud and abuse of power by the Commission. The Assignment Judge of Hudson County appointed appellant Receiver of the Commission pendente lite with power to administer the pension fund and to exercise all the functions, powers and duties of the Commission. The members of the Commission were enjoined from acting officially in the meantime. Ruvoldt was never made a party to those proceedings and has not participated therein. There were ultimately convictions of the commissioners, appeals from which are pending in the Appellate Division, and an acquittal of the medical examiner. The action of the Assignment Judge in appointing a receiver was affirmed on appeal by the Appellate Division.
The Receiver reviewed disability pensions previously granted by the Commission, and, on the basis of pensioners' files and such new information as was submitted, terminated 205 pensions following notice and hearing in each such case. Ruvoldt and others so terminated filed actions in the
Superior Court challenging the terminations of the pensions as illegal on various grounds. The Receiver filed counterclaims demanding return of pension moneys paid each such plaintiff. Notwithstanding that we have been apprised, through oral argument and briefs, as to objections to the Receiver's actions from some of the other pensioners affected, as amici curiae, we will be concerned in this opinion only with Ruvoldt's case, deeming it advisable to withhold any views respecting the cases of the others, particularly since they have not yet been adjudicated by the trial court.
The Chancery Division, on motion for summary judgment in Ruvoldt's case, granted the motion in favor of the plaintiff. While it held the Receiver had the power to terminate the pension, and was not barred by principles of estoppel, laches or waiver, it determined that Ruvoldt was entitled to the pension on the ground that the evidence established that at the time the pension was granted, and ever since, he had a physical disability which permanently incapacitated him from trying cases in court, as required by his duties as an assistant prosecutor of Hudson County, and, since he had been a county employee for over 20 years, that he was entitled to a pension at half-salary pursuant to N.J.S.A. 43:10-3.
Ruvoldt was born in 1910 and entered public service for the County of Hudson in 1935 as secretary to the county auditor. (He had previously been employed by the Jersey City Board of Education.) Later he became an attorney-at-law and was employed as assistant county counsel, and finally, beginning in 1959, as assistant prosecutor.
The documentary pension application record before the pension commission and the Hudson County Prosecutor's office is as follows.
On October 18, 1963 Ruvoldt submitted to Prosecutor Tumulty of Hudson County a pension application signed by Ruvoldt on a form of the pension commission whereby he made "application for retirement under disability served over twenty years" [ sic ], to be effective January 1, 1964.
Ruvoldt requested the prosecutor's "department certification" thereon. The prosecutor forwarded the application to the Commission on November 13, 1963, his covering letter disclaiming knowledge of facts relevant to Ruvoldt's pension status beyond the fact that his current salary was $10,000. The letter closed: "Officially, if approved, I will terminate Mr. Ruvoldt's status in this office as of December 31, 1963."
On November 7, 1963 Ruvoldt wrote a letter to the prosecutor stating he had been under care of Dr. E. F. Ricciardelli, apparently referring to an appended "report" of that physician, and said: "In view of my present medical condition it is imperative that I request sick leave * * *. It would appear that if my condition has not improved by February 1, 1964 that I would then apply for Retirement under Disability * * *." The physician's report certified that he was treating Ruvoldt for "obesity, hypertension, tachycardia and dyspnea" and suggested a three-months cessation of his duties.
On December 27, 1963 Dr. Ricciardelli sent the prosecutor a letter addressed "To whom it may concern:", reciting that based upon observation and treatments of Ruvoldt he was of the opinion "he is physically unable to perform his duties as a member of the Prosecutor's staff". In an affidavit supplied to the Receiver Dr. Ricciardelli deposed that a copy of that certification was at the time sent to the commission at Ruvoldt's request, but the Receiver's findings aver that the letter is not in the pension file.
On December 6, 1963 the commission's then examining physician, Dr. Vincent Butler (since deceased), certified to the commission the results of his examination of Ruvoldt in connection with the pension application. He listed under the heading of "Subjective Complaints" -- "Has become increasingly short of breath. Is under medical care for hypertension and obesity." His "objective findings" were:
"Cardiac Hypertrophy and Dilatation. Tachycardia. Obese. Dyspneic on exertion. Blood pressure 170/90." His recommendation was that the disability pension be approved.
On December 23, 1963 the commission notified both Ruvoldt and the prosecutor in writing that the pension had been approved, effective December 21, 1963. Ruvoldt received pension payments regularly thereafter until their suspension by the Receiver on March 15, 1972.
Ruvoldt accepted the offer of the Receiver to permit him to substantiate his pension rights by proofs before a hearing officer. A hearing was conducted, and, in addition to submission of all the documents aforementioned, evidence was adduced which we herewith summarize. (Proof in ...