ELDRIDGE HAWKINS II v. ANDREW HUTTER, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ELDRIDGE HAWKINS II,

Plaintiff-Appellant,

v.

ANDREW HUTTER, M.D., CENTER FOR

ORTHOPAEDICS, STATE OF NEW

JERSEY, BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT SYSTEM,

WAYNE HALL, RICHARD D. LOCCKE,

FRANK LEAKE, TIMOTHY COLACCI,

MICHAEL POSTORINO, LAUREL BRENNAN,

JOHN SIERCHIO, SUSANNE CULLITON,

VINCENT FOTI, WENDY JAMISON,

Individually and as agent for

the Board of Trustees for the

Police and Firemen's Retirement

System, United Review Services, Inc.,

JENNY PESIC, VALERIE MCMANUS, AND

JOHN MCKEON,

Defendants-Respondents.

and

ANDREW HUTTER, M.D.,

Defendant/Third-Party

Plaintiff-Respondent,

v.

CONVENTUS INTER-INSURANCE EXCHANGE,

Third-Party Defendant-

Respondent.

_____________________________________________

October 7, 2016

Argued September 20, 2016 - Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1115-13.

Eldridge Hawkins, Sr. argued the cause for appellant.

Christin E. Deacon, Deputy Attorney General, argued the cause for respondents State of New Jersey, Board of Trustees, Police and Firemen's Retirement System, Wayne Hall, Richard D. Loccke, Frank Leake, Timothy Colacci, Michael Postorino, Laurel Brennan, John Sierchio, Susanne Culliton, Vincent Foti, Marty Barrett, Wendy Jamison, Valerie McManus, and John McKeon (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Deacon, on the brief).

Jeffrey Campisi argued the cause for respondent Andrew Hutter, M.D. (Sharkey & Campisi, attorneys; Gregory G. Campisi, of counsel; Jeffrey Campisi, on the brief).

James C. Mescall argued the cause for respondent Center for Orthopaedics (Mescall & Acosta, P.C., attorneys; Mitchell J. Decter, on the brief).

Paul Daly argued the case for respondents United Review Services, Inc. and Jenny Pesic (Hardin, Kundla, McKeon, & Poletto, P.A., attorneys; Eric Wagman, on the brief).

Peter E. Mueller argued the cause for respondent Conventus Inter-Insurance Exchange (Harwood Lloyd, L.L.C., attorneys; Mr. Mueller, on the brief).

PER CURIAM

Plaintiff appeals from a February 14, 2014 order granting the State defendants' motion to dismiss with prejudice,1 and an order dated the same day granting defendants United Review Services, Inc.'s (United) and Jenny Pesic's motion to dismiss; a March 14, 2014 order denying plaintiff's motion to reconsider and vacate the February 14, 2014 orders; two April 11, 2014 orders denying plaintiff's motion for summary judgment against defendant Dr. Andrew Hutter, and granting Dr. Hutter's motion for summary judgment; a September 2, 2014 order granting summary judgment to defendant Center for Orthopaedics (CFO); and an October 27, 2014 order dismissing plaintiff's claims against United with prejudice, and entering final judgment as to all issues and parties in the case. We affirm.

Plaintiff was employed as a police officer in West Orange from 2004 to mid-December of 2010. During his tenure as a West Orange police officer, plaintiff filed a discrimination complaint against West Orange and John McKeon, mayor of West Orange,2 because a white employee was hired before him despite being lower on the hiring list. That matter remains unresolved.

In October 2009, plaintiff suffered an injury in a motor vehicle accident while on the job. In either February or March 2010, plaintiff went on leave from his employment as a West Orange police officer, due in part to difficulty performing the requirements of his job without pain, and because of alleged acts of harassment and retaliation. Plaintiff was examined by Dr. Hutter, who rendered a workers' compensation report finding plaintiff one-percent disabled in August 2010.

In December 2010, plaintiff filed an application for accidental disability retirement benefits with the Board of Trustees, Police and Firemen's Retirement System (the Board or PFRS). In March 2011, plaintiff was evaluated by Dr. Jeffrey Lakin, an Independent Medical Examiner (IME), who concluded that plaintiff was permanently and totally disabled as a direct result of a motor vehicle accident he had suffered in October 2009. The Medical Review Board (MRB) agreed with Dr. Lakin's opinion.

In 2011, plaintiff was serving as the Mayor of Orange and the New Jersey League of Municipalities' liaison to the Legislature, where he advocated "the unpopular position of supporting Governor Christie's [p]ension reform package." He alleges that members of the Board were against him as a result of his advocacy for pension reform. The Board first considered plaintiff's application in May 2011, and tabled further consideration to obtain information regarding plaintiff's previous workers' compensation claim, sick leave, and appointment as an auxiliary police officer in Orange during the time period relevant to his disability application.

Plaintiff's disability application was placed back on the Board's agenda in June 2011. The Board voted to postpone the matter once again, this time requesting "the disposition of all past and present litigation between [plaintiff] and West Orange because the information received indicated that since [plaintiff] accepted an appointment with Orange as of July 1, 2008[,]" there was an issue as to whether he was a "member in service" at the time he filed his disability request. N.J.A.C. 17:4-6.7(a)(1). Plaintiff alleges the Board did not inform him about Dr. Lakin's report or the MRB decision. Plaintiff claims that the Board continued to postpone his hearing, which after six months the Board stated that plaintiff would have to see another IME specialist, Dr. Hutter.

In September 2011, after receiving information regarding a disciplinary action against plaintiff from West Orange, the Board once again decided to postpone action on plaintiff's application to November 2011. In October 2011, Dr. Hutter, on behalf of his firm CFO, issued a report adverse to plaintiff's application. The MRB opined that plaintiff was totally and permanently disabled, but not as a direct result of the claimed incident. At its regular meeting in November 2011, the Board denied plaintiff's application for accidental disability retirement benefits. Plaintiff claims that Dr. Hutter issued his opinion knowing it was untrue in an effort "to facilitate his many principals' joint intent of denying plaintiff of his pension to make plaintiff look bad for West Orange's litigation purposes." The CFO was hired by West Orange to provide IME reports for workers' compensation cases, and, as noted previously, Dr. Hutter had previously examined plaintiff in connection with a workers' compensation claim in 2010.

Dr. Hutter provided the IME report to United, to be presented to the Board, without mentioning that he had previously examined plaintiff in the workers' compensation case. United caught this error and directed Dr. Hutter to mention it, which he did at the end of a revised report. Upon inquiry, the CFO explained that it had plaintiff in its system under a misspelled name. Plaintiff alleges this was part of a conspiracy, namely that West Orange successfully convinced the Board to postpone its vote on his application for six months so Dr. Hutter would be able to examine plaintiff and issue a report adverse to his application. Plaintiff alleges Dr. Hutter's reports were written with the goal of "casting plaintiff in a false light to cause prejudice against plaintiff, ruin his reputation and provide a pretext for [the Board's] denial of plaintiff's pension."

In January 2012, plaintiff filed a letter administratively appealing the denial of accidental disability retirement benefits and requesting reconsideration of the Board's denial. In March 2012, the Board transferred the matter to the Office of Administrative Law (OAL) as a contested case.

In February 2013, while the case was pending in the OAL, Dr. Lakin provided an addendum to his report, concluding that after reviewing additional information, plaintiff was not permanently and totally disabled as a result of the accident. Plaintiff alleges that due to Dr. Hutter's conflict, the Board persuaded Dr. Lakin "to change his first report without a re-examination." After Dr. Lakin issued his updated IME, plaintiff's application was tabled by the Board for clarification.

Before the Board or the OAL made any substantive conclusion, plaintiff filed a complaint in the Law Division, and later a verified first amended complaint. In June 2013, the Board tabled plaintiff's matter to request advice from the State Ethics Commission as the members were named individually in the complaint and plaintiff requested they recuse themselves. Plaintiff then filed a second amended complaint.

Plaintiff's second amended complaint names the Board and each of the Board members individually for aiding and abetting and conspiring to assist West Orange; Dr. Hutter, his firm CFO, and United, of which Dr. Hutter is an agent and through which he submitted his report to the Board; Wendy Jamison, Jenny Pesic and Valerie McManus are named as defendants "individually and in their official capacities as . . . employees of [the Board;] [United], and [CFO] who individually, jointly and in a conspiratorially aiding and abetting fashion engaged in actions designed to harm plaintiff and to deny [him his] entitlement to a disability pension"3; and John McKeon, who allegedly used his political contacts to get United a contract with the Board, and in 2011 conspired against defendant by getting Dr. Hutter to provide an IME adverse to plaintiff to deny him his pension and to aid and abet West Orange in its litigation against plaintiff.

Plaintiff asserts five causes of action in his second amended complaint: (1) violation of the New Jersey Law Against Discrimination4 (NJLAD) by all defendants in aiding and abetting West Orange in its defense in plaintiff's separate action and to wrongfully deprive him of pension benefits; (2) malicious use and conspiracy abuse of process by the Board in delaying proceedings so West Orange could succeed on plaintiff's disciplinary charge and provide a reason to deny plaintiff's application; (3) unlawful retaliation under the NJLAD and the New Jersey Civil Rights Act5; (4) violations under Title 59 and the New Jersey Constitution; and (5) casting in a false light, libel, and slander per se.

After receiving authorization from the Ethics Commission, the Board reconsidered plaintiff's application and granted him ordinary disability retirement benefits, but denied his request for accidental disability retirement benefits. Plaintiff's challenge to the denial of his application for accidental disability retirement benefits remains in the OAL.

In December 2013, the State defendants, including McKeon, moved to dismiss in lieu of filing an answer. The judge heard oral argument, determined that the court lacked subject matter jurisdiction over plaintiff's claims, and dismissed the case with prejudice. The judge concluded that plaintiff's claims essentially amount to a collateral attack on the agency's decision to grant or deny benefits to plaintiff, and that plaintiff was required to pursue his application and raise any issues in the administrative process or on appeal after a final determination by the agency. The judge also granted United's and Jenny Pesic's motion to dismiss without prejudice to allow plaintiff to amend his complaint to state a valid cause of action. The other defendants filed an answer, and remained in the case. The judge thereafter granted summary judgment to Dr. Hutter and CFO, and later dismissed the claims against United and Jenny Pesic with prejudice.

Plaintiff raises a panoply of points on appeal, but the primary issue on this appeal is whether the Law Division had subject matter jurisdiction to hear plaintiff's case on the merits. As a threshold matter, whether subject matter jurisdiction exists is alegal issue, which we review de novo. Santiago v. N.Y. & N.J. Port Auth., 429 N.J. Super. 150, 156 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013).

The New Jersey Constitution provides that "[t]he Superior Court shall have original general jurisdiction throughout the State in all causes." N.J. Const. art. VI, 3, 2. This means that the Superior Court of New Jersey is a court of general jurisdiction, having subject matter jurisdiction over all claims, subject to limited exceptions.

One such exception is where an agency is granted exclusive jurisdiction over a particular matter. Pressler & Verniero, Current N.J. Court Rules, comment 2.6 on R. 4:6-2 (2016).

The principle is well established that a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits. State v. Osborn, 32 N.J. 117, 122 (1960); Abbott v. Beth Israel Cemetery Ass'n of Woodbridge, 13 N.J. 528, 537 (1953); Peterson v. Falzarano, 6 N.J. 447, 454 (1951). Such jurisdiction must be granted to the court by the Constitution or by valid legislation, as it "cannot be vested by agreement of the parties." [Osborn, supra, 32 N.J. at 122.] Likewise, subject matter jurisdiction cannot be conferred by waiver resulting from a party's failure to interpose a timely objection to the assumption of jurisdiction. Lay Faculty Ass'n of [Reg'l] Secondary Schools of Archdiocese of Newark v. Roman Catholic Archdiocese of Newark, 122 N.J. Super. 260, supplemented 124 N.J. Super. 369 (App. Div. []), cert[if]. den[ied], 64 N.J. 153 (1973). Objection to jurisdiction of the court over the subject matter is effective whenever made. McKeeby v. Arthur, 7 N.J. 174, [180] (1951).

 
[Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978).]

A party may file a motion to dismiss based on lack of subject matter jurisdiction at any time. R. 4:6-2(a).

The Appellate Division is vested with jurisdiction to review final decisions of State administrative agencies. Rule 2:2-3(a)(2) states that an appeal may be taken as of right

to review final decisions or actions of any state administrative agency or officer, and to review the validity of any rule promulgated by such agency or officer excepting matters prescribed by [R.] 8:2 (tax matters) and matters governed by [R.] 4:74-8 (Wage Collection Section appeals), except that review pursuant to this subparagraph shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise[.]

The Rule contemplates that "every proceeding to review the action or inaction of a [S]tate administrative agency would be by appeal to the Appellate Division." Vas v. Roberts, 418 N.J. Super. 509, 516 (App. Div. 2011) (emphasis omitted) (quoting Pascucci v. Vagott, 71 N.J. 40, 52 (1976)).

Here, plaintiff applied for accidental disability retirement benefits. N.J.S.A. 43:16A-7(1) states

Upon the written application by a member in service, by one acting in his behalf or by his employer any member may be retired on an accidental disability retirement allowance; provided, that the medical board, after a medical examination of such member, shall certify that the member is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties and that such disability was not the result of the member s willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him. The application to accomplish such retirement must be filed within five years of the original traumatic event, but the board of trustees may consider an application filed after the five-year period if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member.

Further, N.J.S.A. 43:16A-13 vests "the general responsibility for the proper operation of the retirement system . . . in [the] board of trustees."

The parties do not dispute that the Board has exclusive jurisdiction to decide claims for ordinary or accidental disability retirement benefits. The issue is whether plaintiff may proceed on a claim for alleged discrimination by the agency members and others who were involved in the decision on his application.

A similar issue was addressed in Beaver v. Magellan Health Servs., Inc., 433 N.J. Super. 430 (App. Div. 2013), certif. denied, 217 N.J. 293 (2014). In Beaver, the plaintiff was a former public employee who had a dispute with the State Health Benefits Commission (SHBC) over coverage for his son's substance-abuse treatment, which the agency denied. Id. at 432-34. The matter was transferred to the OAL for an evidentiary hearing. Id. at 434-35. The administrative law judge and later the SHBC denied the claim, and the plaintiff filed an appeal in the Appellate Division. Id. at 436. The plaintiff then withdrew his appeal and filed a complaint in the Law Division, alleging claims for breach of contract, breach of fiduciary duty, violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to [-204] (CFA), and unjust enrichment. Ibid. The judge dismissed the case for lack of subject matter jurisdiction, and the plaintiff appealed. Id. at 437.

On appeal, we affirmed the judge's decision. Similar to this case, the plaintiff alleged that "his complaint does not challenge the SHBC's final administrative action, but rather is a separate action at law alleging statutory and common law causes of action against [the defendants]." Ibid. In rejecting the plaintiff's argument, we reasoned that the

plaintiff has explicitly stated that his complaint is brought to recover "unpaid benefits" under the Program. Accordingly, to recover, plaintiff must necessarily secure a reversal of the SHBC final agency action upholding the denial of those same benefits. Plaintiff cannot avoid this obvious conclusion by cloaking his claims under the mantle of contract and tort.

[Id. at 441 (emphasis added).]

We concluded that "stripped to their barest essentials, [the] plaintiff's claims, sounding in tort and contract, amount to no more than a collateral challenge to the . . . final agency action upholding the limitation of coverage for plaintiff's health benefit claims[,]" and that "absent an attack on that final agency action, plaintiff's tort and contract claims are patently without basis in fact or law." Id. at 442.

Nevertheless, it is equally true that "some actions or inactions of State agencies and officers do not constitute 'administrative' agency action or inaction that is subject to review by the Appellate Division under Rule 2:2-3(a)(2)." D.J. Miller & Assocs., Inc. v. State, Dept. of Treasury, Div. of Purchase & Prop., 356 N.J. Super. 187, 191 (App. Div. 2002). Thus, the issue is where the line is drawn between what is considered "administrative" action under the rule. At a certain point, the agency's action will become so far removed from its duties that there will no longer be a need to pursue the claim within the agency.

Here, plaintiff claims that defendants were part of a conspiracy to aid and abet discrimination by West Orange, a defendant in another action brought by plaintiff, by denying plaintiff's application for disability benefits. Assuming the viability of plaintiff's causes of action, they inescapably require the fact finder to determine whether or not he was entitled to accidental disability retirement benefits, a role that falls under the exclusive jurisdiction of the agency. To prove his case, plaintiff must collaterally attack the now hypothetical agency determination that he is ineligible for benefits, and then argue that the reason for that denial was discriminatory. Put another way, if the agency grants plaintiff's application, plaintiff's claims are no longer viable, the narrative falls apart; namely, the theory that the Board conspired to deny him a disability pension to assist West Orange in its defense of plaintiff's separate claim fails. Thus, as in Beaver, supra, 433 N.J. Super. at 441, "to recover, plaintiff must necessarily secure a reversal of the . . . final agency action upholding the denial of those same benefits."

This does not mean that plaintiff is without a remedy. Plaintiff, consistent with Rule 2:2-3(a)(2), may appeal from the agency's final determination if it should come to pass that his application for accidental disability retirement benefits is denied. He may then argue to this court that he was denied benefits as a result of a wrongful motive by the Board, which he would contend constitutes an arbitrary, capricious, or unreasonable decision. Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (explaining a final agency decision will be reversed where "it isarbitrary, capricious, or unreasonable, or . . . lacks fair support in the record") (citation omitted).

Plaintiff claims that even if this is so, dismissal of his claim prevents him from recovering damages and prevents him from receiving a trial by jury. In Beaver, supra, 433 N.J. Super. at 442, we dismissed the plaintiff's collateral attack couched as a CFA claim. The CFA provides a host of potential opportunities for greater recovery6 than that offered in an agency proceeding, but since it was a masked collateral attack, we barred the claim, explaining that this court's "exclusive jurisdiction does not turn on the theory of the challenging party's claim or the nature of the relief sought." Ibid.(quoting Mutschler v. N.J. Dept. of Envtl. Prot., 337 N.J. Super. 1, 9 (App. Div.), certif. denied, 168 N.J. 292 (2001)). The same is the case here, plaintiff may not repackage a collateral attack of the agency's determination on disability benefits under the guise of statutory and common law claims.

Further, plaintiff relies on the mistaken premise that because the MRB recommended his claim be granted, the Board was not at liberty to adopt an alternative position. Plaintiff argues that the Board's function "in plaintiff's set of circumstances is ministerial only. An opportunity to disagree with the IME, the [MRB], or to try it again is nowhere given to . . . PFRS to do." This is an incorrect interpretation of the statute. N.J.S.A. 43:16A-8(1) states

Upon the receipt by the retirement system of a written application for a disability retirement allowance, the system shall refer the application to the medical board, which shall designate a physician or physicians to examine the applicant and the report of the medical board shall be considered by the board of trustees in acting upon such application.

[(Emphasis added).]

Moreover, N.J.S.A. 43:16A-13(a)(11) states

The medical board shall pass upon all medical examinations required under the provisions of this act, shall investigate all essential statements and certificates by or on behalf of a member in connection with an application for disability retirement, and shall report in writing to the retirement system its conclusions and recommendations upon all matters referred to it.

[(Emphasis added).]

This court has previously explained that accepting plaintiff's argument

would make the medical board the conclusive determinator of the allowability of the disability retirement, with the board of trustees constituting a mere rubber stamp for the promulgation of the decision of the medical board. The comprehensive statutory scheme is clearly otherwise. The various sections of the statute must be read together. Doing so, it is clear that it is intended that the board of trustees should make the determination for itself as a quasi-judicial body after giving consideration to the report of the medical board, but that it is not at all bound by it.
 
[Fattore v. Police & Firemen's Ret. Sys., 80 N.J. Super. 541, 548 (App. Div.), certif. denied, 41 N.J. 245 (1963), superseded by statute as stated in Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564 (2000).]

We note as to defendants Dr. Hutter and CFO, the judge granted summary judgment in favor of both defendants. On appeal, both Dr. Hutter and CFO join in the argument that the court lacked subject matter jurisdiction to hear the case. It is well settled that this court may determine whether subject matter jurisdiction exists. Wigginton v. Servidio, 324 N.J. Super. 114, 124 (App. Div. 1999) (explaining that the defense of lack of subject matter jurisdiction may be asserted at any time, even on appeal), certif. denied, 163 N.J. 11 (2000). When the judge dismissed the case for lack of subject matter jurisdiction, the case should have been so dismissed as to all parties. The claims asserted against each defendant surround the grant or denial of plaintiff's application for accidental disability retirement benefits. However, as stated previously, the Board has not made a final decision regarding plaintiff's application for accidental disability benefits. Allowing this suit would present a collateral attack upon a decision that has not yet been made. Thus, we conclude that the Law Division lacks subject matter jurisdiction to adjudicate plaintiff's claims as to all defendants.

Affirmed.

1 State defendants are the State of New Jersey, Board of Trustees, Police and Firemen's Retirement System, Wayne Hall, Richard D. Loccke, Frank Leake, Timothy Colacci, Michael Postorino, Laurel Brennan, John Sierchio, Susanne Culliton, Vincent Foti, Marty Barrett, Wendy Jamison, Valerie McManus, and John McKeon.

2 John McKeon is no longer Mayor of West Orange and is now a State Assemblyman.

3 Plaintiff claims these individuals attempted to prevent him from discovering facts about wrongs allegedly committed by Dr. Hutter, CFO, United, and West Orange.

4 N.J.S.A. 10:5-1 to -49.

5 N.J.S.A. 10:6-1 to -2.

6 See, e.g., Lemelledo v. Beneficial Mgmt. Corp. of Am., 289 N.J. Super. 489, 501 (App. Div. 1996), aff'd, 150 N.J. 255 (1997).