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Bobbi Merce For Donald Merce v. Teachers' Pension and Annuity Fund


August 28, 2012


On appeal from the Teachers' Pension and Annuity Fund, Docket No. 1-284626.

Per curiam.


Argued April 24, 2012

Before Judges Messano and Kennedy.

Petitioner Bobbi Merce appeals from a final decision of the Board of Trustees of the Teachers' Pension and Annuity Fund (Board) denying her application for accidental death benefits pursuant to N.J.S.A. 18:66-46 upon the death of her husband, Don Merce.


The tragic facts underlying this appeal are largely undisputed. Don Merce was the principal of the Markham Place School in Little Silver. Appointed to that position in l989, Merce was, by all accounts, highly regarded both for his competence and his devotion to his pupils and staff.

May 6, 2008, was Teacher Appreciation Day and, consistent with his past practice, Merce left home early to buy coffee and doughnuts for the teaching staff. At approximately 7:00 a.m., Merce was on his way to the school after having purchased the coffee and doughnuts when his car collided with an oncoming vehicle that had veered across double-yellow lines into Merce's lane of traffic. Merce died as a consequence of the injuries he sustained in the collision.

Under the Teachers' Pension and Annuity Fund Law (TPAF), N.J.S.A. 18A:66-1 to -93, an active educational professional is entitled to certain additional benefits if he or she suffers death or disability while in the performance of duties. N.J.S.A. 18A:66-46(a)(1) provides an accidental death benefit "[u]pon the death of a member in active service as a result of . . . an accident met in the actual performance of duty at some definite time and place[.]" N.J.A.C. 17:3-6.19(b) states that a member whose duties include regular or occasional travel in the course of employment will be considered "in the actual performance of duty" during such travel if a member's duties "require or authorize" travel between a regularly assigned workplace and "other locations."

Merce's widow, petitioner herein, filed a claim for accidental death benefits. On May 28, 2008, the board of education in Little Silver authorized its business administrator to advise the Division of Pensions and Benefits that Merce's death was not due to an accident in the course of employment. Approximately six months later, after it learned that petitioner's claim for accidental death benefits was denied by the Division, the board of education reversed itself and advised the Division that it concluded that Merce's accident was in the course of his employment.

The Board, which had initially denied the claim, referred the matter to the Office of Administrative Law as a contested case after petitioner renewed her application and submitted additional materials. The Administrative Law Judge (ALJ) assigned to the case denied both parties' motions for summary decision and held plenary hearings on October 26, 2010 and April 20, 2011.

Carolyn Kossack, Ph.D., the superintendent of the Little Silver School District, testified that the duties of a school principal are set forth in a written job description approved by the board of education. Among other things, the job description requires a principal to "[f]oster[] good interpersonal relations among students [and] staff" and to "[a]ssert[] leadership with staff and students in establishing and maintaining an effective learning environment in their school."

Kossack testified that Merce did not have specific authorization from her to buy breakfast for the teachers and was not required to do so. She also explained that Merce's expenses for buying the breakfast were non-reimbursable, and that the Teacher Appreciation Day breakfast provided by Merce with his own funds was not an event sponsored by the board of education.

She stated that Merce did have authority to use space in the school building for the breakfast, and that the breakfast, itself, did promote and enhance Merce's duties to foster interpersonal relationships and assert leadership with the staff. Kossack added that Merce would not have needed her explicit authorization to hold a breakfast event because he was expected to do things that would further his duties and responsibilities as a principal. How he did such things, however, was "his call."

Marjorie Heller, the superintendent in the school district from 1995 to 2007, testified she was aware that Merce would occasionally buy breakfast for teachers, and stated Merce had her permission to do so. She said the breakfasts promoted good morale at school, but conceded that there was no requirement for a principal to host staff breakfast functions. She herself had never hosted a staff breakfast. She also examined Merce's reimbursement record, which showed he never sought nor received reimbursement for the expense of buying breakfasts for Teacher Appreciation Day.

After the record was closed, the ALJ issued a lengthy opinion setting forth his findings of fact and conclusions of law. After reviewing both N.J.S.A. 18A:66-46 and N.J.A.C. 17:3-6.19(b), the ALJ concluded that to be considered as an accident in the "actual performance of duty", as required by the statute, an accident which occurred during travel would only qualify if the travel was "required or authorized" by the employer. If "authorized" by the employer, the travel must be "necessary to the performance of the job in order to be considered the actual performance of duty."

Employing this standard, the ALJ concluded that Merce's travel between the store where he purchased the breakfast items and the school, was clearly not "required" by his job. Further, on the record before him, the ALJ determined that [T]here was a duty to foster good interpersonal relationships and a duty to assert leadership. But the provision of baked goods to faculty members, [on this record], cannot be considered as necessary to the fulfillment of these duties. Nor can it be established that the essential or fundamental or necessary aspect of the trip during which Mr. Merce tragically died was anything other than a commute.

The ALJ also gave "due weight" to the initial determination of the board of education that Merce had not been in the course of employment at the time of the accident.

On October 7, 2011, the Board rejected petitioner's exceptions and adopted the ALJ's decision. This appeal followed.


On appeal, petitioner argues the Board misinterpreted N.J.S.A. 18A:66-46 and N.J.A.C. 17:3-6.19, and that the Board's decision was based on "arbitrary, capricious and unreasonable factual conclusions." Having considered these arguments in light of the record and applicable law, we affirm.

Judicial review of administrative agency determinations is limited. Messick v. Bd. of Review, 420 N.J. Super. 321, 324 (App. Div. 2011). We accord the agency's exercise of its statutorily delegated responsibilities a "strong presumption of reasonableness," City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to its findings of fact. Mazza v. Bd. of Trustees, Police & Firemen's Ret. Sys., 143 N.J. 22, 29 (1995). "[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). Accordingly, we will not upset an agency determination unless it is shown to be arbitrary, capricious or unreasonable, its findings lacked support in the evidence, or that it violated the legislative grant of authority governing the agency. In re Herrmann, 192 N.J. 19, 27-28 (2007).

While we are not bound by an agency's decision on purely legal questions, we will give "substantial deference" to an agency's interpretation of those statutes the agency enforces. Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). If the statute is ambiguous or silent on a particular point, we may not substitute our judgment for that of the agency provided the agency's determination is "based on a permissible construction of the statute." Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 581 (2000) (quoting 2 Am. Jur. 2d Administrative Law § 525 (1994)).

Guided by these principles, we turn to the statute and regulation that govern this dispute. N.J.S.A. 18A:66-46(a)(1) provides, in pertinent part:

Upon the death of a member in active service as a result of:

(1) an accident met in the actual performance of duty at some definite time and place, and not as the result of his willful negligence, an accidental death benefit shall be payable . . . .

N.J.A.C. 17:3-6.19 (a) and (b) provide:

Work-related travel; accidental disability retirement and accidental death benefit coverage

(a) A member whose duties include regular or occasional travel in the course of employment will be considered in the "performance of the member's regular or assigned duties" for the purposes of accidental disability retirement or "in the actual performance of duty" for the purposes of accidental death benefits during employment-related travel as provided in this section. For the purposes of this section, "in performance of duty" means and includes both "performance of regular or assigned duties" and "in the actual performance of duty."

(b) If a member's duties require or authorize the member to travel between a regularly assigned office or workplace and other locations, or among other locations, the member is in performance of duty during travel between a regularly assigned office or workplace and other locations, or among other locations.

Because the interpretation of a statute by agencies empowered to enforce it "are given substantial deference," TAC Assocs. v. N.J. Dep't of Env. Protection, 202 N.J. 533, 541 (2010), we must determine whether the Board's construction of the statute and regulation is permissible. Our ultimate goal, however, is always to give effect to legislative intent. Bosland v. Warnock Dodge, 197 N.J. 543, 554 (2009).

Petitioner contends that "pension statutes must be construed broadly in favor of intended beneficiaries." She cites Kasper, supra, 164 N.J. 564, which considered a claim for accidental disability benefits under N.J.S.A. 18A:66-39(c), as an example of the liberal approach courts must take when considering claims for accidental death or disability benefits. In Kasper, the employee arrived early to distribute media materials to classrooms prior to the official start of the school day. Her early arrival had been approved by the principal. As she was walking up the steps to the school, she was assaulted and suffered injury.

The disability statute allows a benefit for those disabled by a "traumatic event occurring during and as a result of the performance of his regular or assigned duties." N.J.S.A. 18A:66-39(c). The Court allowed the benefit, because the employee was "on premises" performing "an activity preparatory but essential to the actual duty" of the employee. 164 N.J. at 585. Significantly, however, the employee was required by the principal to distribute the media materials prior to the official start of classes. Id. at 570.

Kasper is clearly distinguishable from the case before us. Providing breakfast for Teacher Appreciation Day was neither an essential nor required duty for Merce. Further, he was not "on premises" when the accident occurred. Consequently, Kasper does not mandate the conclusion advocated by petitioner.

As noted earlier, our objective is to ascertain the legislative intent underlying the statute. If the plain language of a statute leads to a clear and unambiguous result, the court's function in interpreting the statute is completed. Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 418-19 (2009); Richardson, supra, 192 N.J. at 195. "It is not the function of [the] court to 'rewrite a plainly-written enactment of the Legislature [or] presume that the Legislature intended something other than that expressed by way of the plain language.'" DiProspero v. Penn, 183 N.J. 477, 492 (2005) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). "A court should not 'resort to extrinsic interpretative aids' when 'the statutory language is clear and unambiguous, and susceptible to only one interpretation . . . .'" Ibid. (quoting Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522 (2004)).

N.J.S.A. 18A 66-46(a)(1) requires that the accident resulting in the death of an active member be "met in the actual performance of duty at some definite time and place" as a condition for recovery of the accidental death benefit. Such plain language is clear and does not require us to embark on an extended examination of the Legislature's intent. On the facts before us, Merce's brief detour that morning to buy breakfast for his staff - a detour neither required nor essential to his job - did not transform his ordinary commute into the actual performance of his duties as a school principal.

Turning to N.J.A.C. 17:3-6.19(b), for the same reasons, we likewise conclude that Merce's duties did not "require" him to travel between the store and the school. Moreover, on this record, we cannot conclude that Merce was "authorized" to undertake such travel. There was never any explicit authorization for Merce to expend his own money to buy breakfast for the teachers, and it is fatuous to suggest that he was authorized "by implication" to undertake a purely voluntary trip to purchase breakfast for the teachers. While, in some measure, buying breakfast would foster good interpersonal relations, it can hardly be characterized as essential to his duties.

Petitioner nevertheless maintains that the evidence adduced before the ALJ suggests that Merce had implicit authorization to purchase breakfast and that such "implicit authorization" should suffice to satisfy her burden of proof.*fn1 Petitioner argues that Kasper "does not state whether the principal's approval was express or implied, or whether any witness other than the claimant herself corroborated that the principal authorized or approved" the educational media specialist's early arrival at school to distribute media materials. While the court in Kasper does not specify whether such approval was explicit or implicit, the court, as noted earlier, states that the employee arrived early "because the school principal required that certain media materials be distributed to various classrooms prior to the official start of classes." Kasper, supra, 164 N.J. at 570 (emphasis added).

Here, by contrast, Merce was not specifically required to purchase breakfast for Teacher Appreciation Day and was in fact prohibited from using school funds to pay for such a purchase.

Thus, the specificity of the requirement to complete a certain task again distinguishes the present case from Kasper.

We arrive at the same conclusion as the ALJ that, in these circumstances, the accident in which Merce tragically died occurred during his usual commute to work, notwithstanding his detour to purchase breakfast for the teachers. See generally Kasper, supra, at 580 (to qualify for benefits, an employee must be engaged in the actual performance of his or her duties, and not simply "coming or going" to work). Consequently, Merce was not "in the actual performance of duty at some definite time and place", as required by N.J.S.A. 18A:66-46(a)(1), at the time of the accident, and, thus, petitioner is not entitled to accidental death benefits.


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