LEAH C. WILCOX v. BOARD OF REVIEW, DEPARTMENT OF LABOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3255-04T53255-04T5

LEAH C. WILCOX,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

CAMDEN CITY BOARD OF

EDUCATION, and DEPTFORD

TOWNSHIP BOARD OF EDUCATION,

Respondents.

_____________________________

 

Submitted May 31, 2006 - Decided July 24, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from a final decision of the

Board of Review, Department of Labor,

BR-03-B-05147-000-RO.

South Jersey Legal Services, Inc.,

attorneys for appellant (Alan W. Lesso,

on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent Board of Review

(Patrick DeAlmedia, Assistant Attorney

General, of counsel; Allan J. Nodes,

Deputy Attorney General, on the brief).

Respondent Deptford Township Board of

Education did not file a brief.

PER CURIAM

Claimant, Leah H. Wilcox, appeals from a January 31, 2005, decision of the Board of Review that dismissed her appeal from a denial of unemployment compensation benefits as moot. We reverse and remand.

The facts are not disputed. Claimant was employed as a teacher by the City of Camden Board of Education during the 2001-2002 school year. She was separated from that position effective June 30, 2002. As a result, she applied for, and received, unemployment benefits beginning February 16, 2003. On April 9, 2003, she began to work as a part-time substitute bus driver for the Deptford Township Board of Education. However, as the result of her low wages, she continued to receive partial benefits after April 9, 2003. See N.J.A.C. 12:17-6.2(b).

She continued to work until the school year ended on June 21, 2003, after which she provided no more services. She did, however, anticipate resuming her job after the summer recess. Nevertheless, she continued to receive benefits through the week ending July 5, 2003. On July 11, 2003, the Deputy advised claimant that she was not entitled to the benefits she received for the weeks ending June 21, 2003; June 28, 2003; and July 5, 2003, which she would be required to repay. The Deputy also advised her that she was ineligible for benefits through the summer recess. Claimant appealed to the Appeal Tribunal, which affirmed the Deputy's determination. The Board of Review affirmed in a decision dated December 19, 2003.

That decision concluded that claimant was disqualified from benefits for the period from the week ending June 21, 2003, because she had worked a sufficient number of hours:

In this case, the evidence indicates that the claimant worked 33 hours for [Deptford Township] during the week ending June 14, 2003. This is greater than 80% of what is normally considered full-time work. Therefore, the claimant is ineligible for benefits for the week ending June 14, 2003 under N.J.A.C. 12:17-6.2(b).

The Board also concluded that claimant was ineligible for benefits after June 21, 2003, when the school year had ended and claimant was no longer providing services. That result was consistent with our decision in Patrick v. Bd. of Review, 171 N.J. Super. 424 (App. Div. 1979) construing N.J.S.A. 43:21-4(g)(2). That statute prohibits benefits during the recess between terms if there is a "reasonable assurance" that the claimant will continue to provide "such services" in the next academic year. The statute provides in its entirety:

(1) With respect to service performed after December 31, 1977, in an instructional, research, or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms;

(2) With respect to weeks of unemployment beginning after September 3, 1982, on the basis of service performed in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms, except that if benefits are denied to any individual under this paragraph (2) and the individual was not offered an opportunity to perform these services for the educational institution for the second of any academic years or terms, the individual shall be entitled to a retroactive payment of benefits for each week for which the individual filed a timely claim for benefits and for which benefits were denied solely by reason of this clause[.]

The Board concluded:

In this case, the claimant worked as a substitute bus driver during the 2002-2003 school year, and had a reasonable assurance of returning to the same position for the 2003-2004 school year. In fact, the claimant did return to work. Therefore, as the claimant was a substitute bus driver, she is ineligible for benefits from June 22, 2003 in accordance with N.J.S.A. 43:21-4(g)(2).

As a result of the disqualification for the period during which claimant received benefits, the Board also affirmed the Deputy's decision that claimant must return the overpayments amounting to $1,146.

Claimant appealed that decision. Before issuing an opinion, we granted the Board's motion for a remand to allow reconsideration of its decision. We did not retain jurisdiction. On January 31, 2005, the Board reconsidered its decision and opined that "Division records now indicate that the claimant has exhausted benefits on the claim dated February 16, 2003. Since her entitlement to benefits for the period in dispute is now academic, her appeal is dismissed." It is from that decision that claimant now appeals.

We agree that if claimant has exhausted her benefits, the dispute is moot and the appeal was properly dismissed. "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." New York S. & W.R. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985). In the absence of considerations not present here, courts decline to decide cases presenting only hypothetical issues. Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976). If claimant has received the maximum benefits available, and the Board does not seek to recover any "overpayment," there is no longer a dispute. In that case, there would be no need to decide if the Board properly disqualified claimant from further benefits because, in fact, she would not have been entitled to further benefits.

The difficulty is that there is no factual basis for the Board's conclusion that claimant "has exhausted benefits on the claim dated February 16, 2003." Claimant denies that she has received the benefits to which she is entitled. Neither party quantifies the amount of entitlement or the amount received. The record does not even permit us to identify with any confidence what the Board intended by its comment.

As we understand it, claimant sought benefits on either of two theories: (1) N.J.S.A. 43:21-4(g)(2) should not be interpreted to disqualify her and that we should reexamine Patrick v. Bd. of Review, 171 N.J. Super. 424 (App. Div. 1979) to reach a contrary result; and (2) even if N.J.S.A. 43:21-4(g)(2) does disqualify claimant from benefits resulting from the hiatus in her driver's position, she remains entitled to benefits from her original teaching position in accordance with In The Matter of D.E.E., 93 N.J.A.R.2d 42 (UCC).

The first theory is foreclosed by Patrick. We believe that case properly interpreted the statute and we have neither a basis to reject it nor anything to add to its analysis. The Board commented on the second theory, although its dismissal of the appeal as moot rendered the comments superfluous, by saying:

In support of her position, the claimant cites In the matter of D.E.E.[] wherein we held a substitute school bus driver entitled to benefits during the period between terms based on his base year earnings as a limousine driver. However, that case can be readily distinguished from that of the claimant. Where reasonable assurance exists, the statute prohibits the payment of benefits "based on such services," i.e., services for an educational institution. In the above-cited precedent, the employee had non-school wages sufficient to establish a valid claim and could therefore be paid benefits based solely on that employment during the summer recess. In contrast, the claimant here has no non-school employment in the base year that could qualify her for the payment of benefits during the period in dispute.

We are by no means certain that D.E.E. is distinguishable or that the term "based on such services," means "services for an educational institution" as opposed to the "same services for which there is a reasonable expectation of resumption." Because of the manner in which the Board decided this issue, it has addressed in a cursory fashion, in one paragraph, claimant's argument that D.E.E. applies. Given the absence of complete briefing of this issue and an inability to determine what, if anything, is at stake, we decline to address these issues.

If, for example, claimant has received everything to which she would have been entitled as the result of the loss of her teaching position, without reference to her later driving position, the Board would be correct and this dispute would be moot. Said another way, if claimant has received the benefits to which D.E.E. would entitle her, despite the Board's position that D.E.E. does not apply to her, claimant will have received everything she was entitled to receive. Under those circumstances, the appeal would have been properly dismissed by the Board.

On the other hand, if the Board meant that claimant received benefits to the beginning of the summer recess and that those benefits are all to which she is entitled, the Board would have simply begged the question by assuming the limited entitlement. In that case, we would be required to address the Board's argument that the rationale of D.E.E. does not apply so as to permit an educational employee to receive benefits over a summer recess when her duties are expected to resume in the fall even though she would otherwise be entitled to benefits from a prior educational position that terminated without the likelihood of resumption.

In the absence of an explanation of the basis on which the Board dismissed the matter as moot, we are unable to determine what issues remain to be resolved, if any. Accordingly, we reverse the dismissal of claimant's appeal as moot and remand the matter for a determination of: (a) the amount of benefits to which claimant was entitled if D.E.E. does apply to claimant; that is, the amount to which claimant would be entitled as the result of the loss of her teaching position with Camden; and (b) the amount of benefits she has actually received. On remand, the Board should also determine if claimant remains required to repay $1,146 and, if so, should correlate that repayment with the benefits to which claimant was entitled. The Board should also rule on the disqualification for benefits for the week ending June 21, 2003, to the extent claimant asserts an entitlement to benefits for that week.

Reversed and remanded. We do not retain jurisdiction.

 

The parties have not discussed the validity of this result.

(continued)

(continued)

9

A-3255-04T5

July 24, 2006