In the MATTER OF Corey CORBO, Union City Police Department.

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
In the Matter of Corey Corbo (A-72-17) (081005)
Argued January 14, 2019 -- Decided June 17, 2019
FERNANDEZ-VINA, J., writing for the Court.
The Civil Service Commission (CSC), upholding an initial decision by an
administrative law judge (ALJ), issued a final agency decision removing Officer Corey
Corbo from the Union City Police Department (UCPD) because he ingested cocaine. At
issue in this matter is the Appellate Division’s decision to reverse the CSC’s final
determination without remand for further hearings on the admissibility of medical
records. In other words, the Court considers not the substantive issues raised in this
appeal, but only the remedy imposed.
Officer Corbo became gravely ill while at home with his girlfriend and colleague,
Officer Jessica Garcia. Garcia called 9-1-1 and later admitted that Corbo had ingested
cocaine five days earlier. The paramedics rushed Corbo to the hospital, where his
laboratory results came back positive for cocaine. Relying on the hospital records, which
included the positive lab results, and Garcia’s statement about the cocaine, Union City
terminated Corbo’s employment with the UCPD.
Corbo filed an appeal with the CSC and the Office of Administrative Law (OAL),
and an administrative hearing was held before an ALJ. The City offered both Garcia’s
statement and the hospital records into evidence, and the ALJ relied on both to reach her
decision recommending Corbo’s termination.
The Appellate Division reversed the decision removing Corbo from the UCPD,
holding that the ALJ erred when she admitted the hospital records into evidence without
first requiring the City to lay foundational testimony to satisfy the requirements of the
business records hearsay exception. It also held that the City failed to establish the
reliability of the lab results or to introduce other competent evidence at the hearing but
did not remand for further evidentiary proceedings. That is the crux of this matter.
The City moved for reconsideration seeking a remand, but the Appellate Division
denied the motion. The City then petitioned for certification only as to the Appellate
Division’s disposition of this case through reversal without remand for further fact
finding. The Court granted its petition. 234 N.J. 1 (2018).
1
HELD: The Court modifies the judgment of the Appellate Division and remands this
matter to the OAL for further proceedings to allow the City the opportunity to
demonstrate that the hospital records are admissible as business records, and the
opportunity to present any other theories of admissibility.
1. Case law demonstrates that the preferred remedy to rectify procedural errors at the
administrative level is a remand. Depriving a litigant of an opportunity to adjudicate its
case on the merits runs counter to the well-established goals of the Court’s jurisprudence.
(pp. 10-12)
2. The Appellate Division’s remedy of reversing the ALJ’s determination without
remand prevents the City from arguing its case on the merits. The preferred remedy to
rectify procedural errors at the administrative level is to remand the matter to allow for
further evidentiary findings. (p. 12)
3. The Court does not consider the underlying evidentiary issues raised in this case or
disturb determinations as to those issues. The Court makes no evidential rulings. (p. 13)
The remedy imposed by the Appellate Division is MODIFIED, and the matter
is REMANDED to the Office of Administrative Law for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and SOLOMON join in JUSTICE FERNANDEZ-VINA’S opinion. JUSTICE
TIMPONE did not participate.
2
SUPREME COURT OF NEW JERSEY
A-72 September Term 2017
081005
In the Matter of Corey Corbo,
Union City Police Department.
On certification to the Superior Court,
Appellate Division.
Argued Decided
January 14, 2019 June 17, 2019
Andrew Gimigliano argued the cause for appellant Union
City Police Department (O’Toole Scrivo Fernandez
Weiner Van Lieu, attorneys; Andrew Gimigliano and
Juan C. Fernandez, of counsel and on the briefs, and
Kenneth B. Goodman, on the briefs).
Joshua M. Forsman argued the cause for respondent
Corey Corbo (Caruso Smith Picini, attorneys; Steven J.
Kaflowitz, on the brief).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
The Civil Service Commission (CSC), upholding an initial decision by
an administrative law judge (ALJ), issued a final agency decision removing
Officer Corey Corbo from the Union City Police Department (UCPD) because
he ingested cocaine. At issue in this matter is the Appellate Division’s
decision to reverse the CSC’s final determination without remand for further
hearings on the admissibility of medical records. In other words, we consider
1
not the substantive issues raised in this appeal, but only the remedy imposed
by the Appellate Division based on its resolution of those issues.
Officer Corbo became gravely ill while at home with his girlfriend and
colleague, Officer Jessica Garcia. Garcia called 9-1-1 and later admitted that
Corbo had ingested a “bump” of cocaine five days earlier. The paramedics
rushed Corbo to the hospital, where his laboratory results came back positive
for cocaine. Relying on the hospital records, which included the positive lab
results, and Garcia’s statement about the cocaine, Union City terminated
Corbo’s employment with the UCPD.
Corbo filed an appeal with the CSC and the Office of Administrative
Law (OAL), and an administrative hearing was held before an ALJ. The City
offered both Garcia’s statement and the hospital records into evidence, and the
ALJ relied on both to reach her decision recommending Corbo’s termination.
The Appellate Division reversed, holding that the ALJ erred when she
admitted the hospital records into evidence without first requiring the City to
lay foundational testimony to satisfy the requirements of the business records
hearsay exception. It also held that the City failed to establish the reliability of
the lab results. Since no competent evidence was introduced at the ALJ
hearing, the Appellate Division reversed the decision to remove Corbo.
2
The Appellate Division did not, however, order a remand for further
evidentiary proceedings. That is the crux of this matter. While Corbo argues
that the Appellate Division did not remand because it believed the City’s case
was built upon unreliable hearsay evidence, the City asks this Court to remand
so that it will have the opportunity to adjudicate its case on the merits. We
agree with the City. Accordingly, we do not disturb the Appellate Division’s
decision that the evidence relied on by the OAL was hearsay. We modify the
remedy and remand this matter to the OAL to allow the City the opportunit y to
offer foundational testimony to establish the admissibility of the medical
records.
I.
A.
On June 11, 2014, Officer Corey Corbo was at his home in Monroe
Township with his girlfriend, Officer Jessica Garcia. Both were members of
the UCPD. That day, Garcia called 9-1-1 because Corbo began convulsing and
was struggling to breath. His lips were purple, and he had vomited on his
chest. Emergency personnel arrived and immediately began CPR on Corbo.
Officer Jamey DiGrazio of the Monroe Township Police Department was
dispatched to the scene after receiving a report of an unconscious unresponsive
male. The emergency medical personnel already on the scene informed
3
DiGrazio that both Corbo and the reporting party, Garcia, were police officers.
DiGrazio proceeded to talk with Garcia, who appeared “visibly upset ,”
“worked up, anxious . . . [and] breathing more heavily.” DiGrazio “told her
that [Corbo’s] health was failing fast” and he needed to know whether Corbo
“had ingested anything that may help [the] paramedics give him better care.”
Garcia replied, “[Corbo] did a bump about five days ago.” DiGrazio then
asked, “A bump of what?” Garcia answered, “Cocaine.” Garcia then asked
DiGrazio not to tell anyone about the cocaine use, but he advised her that he
could not make any promises because the medical personnel needed to know in
order to possibly save Corbo’s life. DiGrazio then informed the medical
personnel of Corbo’s alleged cocaine ingestion.
Corbo was taken to the Raritan Bay Medical Center (Raritan Bay) by
ambulance for further treatment. Upon his admission, Raritan Bay collected a
urine sample from Corbo and conducted a laboratory analysis of the sample for
medical treatment purposes only. According to the hospital’s laboratory
results, Corbo’s urine tested positive for the presence of cocaine, opiates, and
benzodiazepine.
The Monroe Township Police Department notified the UCPD about the
incident and provided DiGrazio’s incident report. This triggered an internal
investigation into Corbo’s fitness for duty by the UCPD’s Internal Affairs
4
Department (IAD). As part of its investigation, the IAD interviewed DiGrazio,
ordered Corbo to turn over his medical records, and, once he had sufficiently
recovered and was discharged from the hospital, interviewed Corbo in the
presence of his attorney. The IAD ultimately recommended that the UCPD
terminate Corbo’s employment.
On June 30, 2014, the Chief of the UCPD suspended Corbo immediately
without pay based on the internal investigation. The UCPD also served Corbo
with a Preliminary Notice of Disciplinary Action, advising him of his removal
on charges arising from his positive urine test for cocaine. The Preliminary
Notice advised Corbo that he was removed from his position as a police
officer, effective July 16, 2014. Following a disciplinary hearing, the UCPD
served Corbo with a Final Notice of Disciplinary Action on February 10, 2015.
B.
1.
Corbo appealed his Final Notice by filing a Major Discipline Appeal
Form with the CSC and the OAL. An administrative hearing was held before
an ALJ, who affirmed the disciplinary action entered in the Final Notice,
concluding that the City’s decision was “supported by the preponderance of
the credible evidence [in] its determination to remove [Corbo].” The ALJ
determined that Officer Garcia’s statement about Corbo’s alleged ingestion of
5
the bump of cocaine was indeed hearsay, because neither party called her to
testify at the hearing. However, the ALJ found Garcia’s statement admissible
under the excited utterance hearsay exception, N.J.R.E. 803(c)(2), because
Garcia’s statement related to a startling event -- Corbo’s convulsions, his
struggle for air, and his loss of consciousness -- and was made while Garcia
was under the stress of excitement caused by seeing her boyfriend intubated
and removed from the home by medical personnel.
Once the ALJ concluded “that Officer Garcia’s statement constitute[d]
admissible evidence as an exception to the general rule against hearsay,” she
relied on the residuum rule 1 to find that Garcia’s excited utterance was
foundational and competent evidence that was “supported by the hospital’s
objective and independent verification of a cocaine metabolite” in Corbo’s
system. The ALJ did not find it necessary to qualify the results of the
hospital’s drug screening test because it was an “independent hospital test”
that was conducted “for medical lifesaving purposes,” and it merely buttressed
the “separate and voluntary statement of Garcia.”
1
The residuum rule, N.J.A.C. 1:1-15.5(a), “allows the administrative law
judge the discretion to admit hearsay evidence into the hearing record,” Aqua
Beach Condo. Ass’n v. Dep’t of Cmty. Affairs, 186 N.J. 5, 14 (2006), provided
that “some legally competent evidence . . . exist[s] to support each ultimate
finding of fact to an extent sufficient to provide assurances of reliability and to
avoid the fact or appearance of arbitrariness,” N.J.A.C. 1:1-15.5(b).
6
The ALJ filed her Initial Decision with the CSC for consideration in
accordance with N.J.S.A. 52:14B-10(c), and the ALJ’s recommended decision
was “deemed adopted” as the CSC’s final decision on July 25, 2016, pursuant
to N.J.S.A. 40A:14-204.2 Accordingly, the CSC upheld Corbo’s removal.
2.
Corbo appealed to the Appellate Division. In an unpublished decision,
the court reversed the CSC’s Final Administrative Action because “no
competent evidence was introduced to prove Corbo’s ingestion of cocaine.”
The court determined that both of the City’s proofs presented before the ALJ --
Garcia’s statement to DiGrazio about Corbo’s ingestion of the cocaine, and the
medical records containing the lab results -- were both inadmissible hearsay.
Even though the City was not bound by the rules of evidence in an
administrative hearing, the court observed, “[h]earsay cannot buttress hearsay
under the residuum rule.”
As to the issue central to this matter -- the determination not to remand
the matter to the OAL for further proceedings -- the Appellate Division held
2
At the time the ALJ filed her Initial Decision with the CSC, the CSC did not
have the required number of commissioners to constitute a quorum. Without a
quorum, the CSC could not adopt, reject, or modify the ALJ’s decision within
the prescribed period, and therefore the ALJ’s recommended decision was
“deemed adopted.”
7
that Corbo’s medical records, as well as the lab results embedded in those
records, “were not properly admitted as business records.” While it
acknowledged that courts “routinely permit[] the admission of medical
records,” (quoting Konop v. Rosen, 425 N.J. Super. 391, 403 (App. Div.
2012)), the Appellate Division indicated that the City failed to offer any
additional proof to justify allowing the medical records into evidence. The
court described it as “inexplicable” that “no hospital personnel” or “any other
witness” testified at the hearing to establish that the medical records satisfied
any of the requisite conditions for admissibility. It also held that Corbo’s lab
results, which were embedded in the medical records, were inadmissible
because the “record is also bereft of any proofs.” Since no competent evid ence
was introduced, the court declared that it was “compelled to reverse the
decision” removing Corbo from the UCPD.
The City moved for reconsideration seeking a remand, but the Appellate
Division denied the motion. The City then petitioned this Court for
certification only as to the Appellate Division’s disposition of this case
through reversal without remand for further fact finding. We granted its
petition. 234 N.J. 1 (2018).
8
II.
A.
The City does not challenge the Appellate Division’s determinations as
to the evidentiary issues presented. It challenges only the remedy imposed.
According to the City, the Appellate Division failed to consider that the City
did not offer foundational testimony at the OAL because the ALJ admitted the
medical records over Corbo’s objection without requiring any testimony or
additional evidence. The City contends that the ALJ’s failure to require
foundational testimony about Corbo’s medical records was a process error, and
it stresses that the Appellate Division never concluded that Corbo’s medical
records were substantively deficient. Indeed, the City notes that had the ALJ
sustained Corbo’s objection for lack of foundation, it would have had the
opportunity to lay the proper foundation.
The City asserts that the Appellate Division’s refusal to remand the
matter and allow the opportunity to lay the proper foundation to establish a
business records hearsay exception for Corbo’s drug test “prevents this issue
from being decided on the merits” and contravenes the preference for remand
expressed in numerous published decisions by this Court and the Appellate
Division. The City maintains that remand will not prejudice Corbo’s defense,
nor will it prevent him from having a full and fair opportunity to defend
9
himself. The City argues that reversal without remand, on the contrary, will
ensure that the “City will suffer significant prejudice because Corbo, who
tested positive for cocaine, will evade responsibility and sanction without a
decision on the merits.” As such, the City asks this Court to modify the
decision of the Appellate Division and summarily remand this matter to the
OAL to correct this error.
B.
Corbo maintains that the Appellate Division did not err when it failed to
remand the matter. In his view, the court’s refusal to remand demonstrates
that it concluded the ALJ’s oversight was more than just a procedural error.
Corbo asserts that the Appellate Division determined the evidence was
insufficient, making remand unnecessary.
III.
A.
Case law demonstrates that the preferred remedy to rectify procedural
errors at the administrative level is a remand. “When an administrative
agency’s decision is not accompanied by the requisite findings of fact and
conclusions of law, the usual remedy is to remand the matter to the agency to
correct this deficiency.” DiMaria v. PFRS, 225 N.J. Super. 341, 347 (App.
Div. 1988); see also Perez v. Pantasote, Inc., 95 N.J. 105, 118-120 (1984)
10
(ordering remand because the Judge of Compensation failed to articulate
whether claimant’s functional disability was based upon demonstrable
objective medical evidence); Katz v. Howell Twp., 67 N.J. 51, 63 (1975)
(ordering remand because the Judge of Compensation did not sufficiently
evaluate claimant’s medical proofs, which would have enabled appellate
review as to whether the agency’s decision was supported by substantial
credible proof); Kotlarich v. Mayor & Council of Borough of Ramsey, 51 N.J.
Super. 520, 543 (App. Div. 1958) (“Ordinarily, when it becomes apparent . . .
that the proofs to ground an agency’s findings and conclusions are not
sufficiently shown in the record . . . the proper practice is to remand the matter
to the agency for a rehearing and redetermination.”).
Furthermore, “[u]ntil courts have exhausted means of performing their
shepherding function which do not terminate or deeply affect the outcome of a
case, they ought not to bar a litigant’s way to the courtroom.” Audubon
Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 407
(App. Div. 1986). Indeed, courts are “mindful of the well-established public
policy disfavoring final dispositions based solely on procedural irregularities.”
SWH Funding Corp. v. Walden Printing Co., 399 N.J. Super. 1, 14 (App. Div.
2008). Further, it is important to note that “[c]ourts . . . have discretion to
remand administrative action for further agency proceedings in the interest of
11
justice” when determining whether an agency decision is “unsupported by
substantial credible evidence.” Texter v. Dep’t of Human Servs., 88 N.J. 376,
382-83 (1982).
Depriving a litigant of an opportunity to adjudicate its case on the merits
runs counter to the well-established goals of this Court’s jurisprudence. See
Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 166 (2000)
(O’Hern, J., dissenting). This Court “has always recognized that ‘justice is the
polestar [of our judicial system] and our procedures must be moulded and
applied with that in mind.’” Ibid. (alteration in original) (quoting N.J.
Highway Auth. v. Renner, 18 N.J. 485, 495 (1955)). “[W]e have consistently
held that ‘the paramount policies of our law require that . . . the plaintiff be
afforded an opportunity to have the claim adjudicated on the merits.’” Ibid.(ellipsis in original) (quoting Crispin v. Volkswagenwerk, A.G., 96 N.J. 336,
338 (1984)).
B.
The Appellate Division’s remedy of reversing the ALJ’s determination
without remand prevents the City from arguing its case on the merits. The
preferred remedy to rectify procedural errors at the administrative level is to
remand the matter to allow for further evidentiary findings.
12
For these reasons, we modify the judgment of the Appellate Division and
remand this matter to the OAL for further proceedings to allow the City the
opportunity to demonstrate that the hospital records are admissible as business
records, and the opportunity to present any other theories of admissibility. 3
IV.
The remedy imposed by the Appellate Division is modified, and the
matter is remanded to the OAL for further proceedings. Again, we do not
consider the underlying evidentiary issues raised in this case or disturb the
Appellate Division’s determinations as to those issues.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and SOLOMON join in JUSTICE FERNANDEZ-VINA’S opinion.
JUSTICE TIMPONE did not participate.
3
We note that our decision today does not make any evidential rulings on this
matter. Such rulings shall be left to the ALJ upon remand.
13