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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 ...

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