In the Matter of Corey Corbo

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.




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                    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.”

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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.
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