BUREAU OF HOUSING INSPECTION v. THEODORE MURNICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5631-06T35631-06T3

BUREAU OF HOUSING INSPECTION,

Respondent,

v.

THEODORE AND MAXINE MURNICK,

Appellants.

___________________________________

 

Argued December 2, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from the Department of Community

Affairs.

Anthony J. Sylvester argued the cause for

appellants (Riker, Danzig, Scherer, Hyland &

Perretti, attorneys; Mr. Sylvester, of counsel and on the brief).

Julie Cavanagh, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel; Ms. Cavanagh, on the brief).

PER CURIAM

Theodore and Maxine Murnick appeal from a final decision of the Commissioner of the Department of Community Affairs in which the Commissioner rejected their challenge to a $4004 fee assessed, pursuant to N.J.S.A. 55:13A-13(b), for reinspection of their eighty-nine-unit apartment building. Because a decision by this court could have no practical effect on any existing controversy between the parties, the appeal is dismissed as moot. Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000).

The fee at issue was imposed due to a reinspection conducted on April 19, 2004 in accordance with an agreement that settled the Murnicks' challenge to a $13,650 penalty assessed on July 30, 2003 for violation of regulations requiring carbon-monoxide alarms. As required by the settlement agreement, the Murnicks paid a penalty of $500, abated the violations and submitted to a reinspection on April 19, 2004. An order assessing the $4004 fee for that reinspection was entered on September 21, 2004.

The Murnicks challenged the order imposing a reinspection fee, and the Commissioner referred the contested case to the Office of Administrative Law. N.J.S.A. 52:14B-10(c). Subsequent to a hearing and entry of an initial decision by the Administrative Law Judge, the Commissioner modified the initial decision and assessed the $4004 fee. See ibid.; N.J.A.C. 1:1-18.6(b). The Commissioner's final decision was issued on June 9, 2006.

The Murnicks filed a notice of appeal with this court on July 2, 2007. In the case information statement filed with the notice of appeal, the Murnicks explained that they did not receive notice of the Commissioner's decision until after they received and inquired about a notice of judgment for failure to pay the $4004 fee and a $13,650 penalty. That notice of judgment was issued in May 2007.

The Commissioner does not explain the May 2007 notice and denies any intent to impose any penalty beyond the $500 that the Murnicks paid under the terms of the settlement agreement. We can only surmise that the reference to the penalty in the May 2007 notice was either a mistake or a now-abandoned effort to assert that non-payment of the reinspection fee was a breach of the settlement agreement, in which the Commissioner retained the right to reimpose the penalty if the Murnicks did not fulfill their obligations under the agreement.

Proceedings subsequent to the filing of this appeal have rendered the case moot. We granted the Commissioner's motion for a remand to permit the Commissioner to withdraw the order and directed that the appeal continue "insofar as it relates to penalties simultaneously imposed." At oral argument the Deputy Attorney General confirmed that the Commissioner had no intention of imposing penalties beyond the $500 settlement, and following oral argument, the Commissioner submitted a copy of the order withdrawing the reinspection fee. The withdrawal of that fee eliminates any possible justification for a penalty based on the Murnicks' breach of the settlement agreement.

It is clear that a decision by this court could have no practical effect. Contrary to the Murnicks' claim, the decision of the Commissioner from which they appeal incorporates the factual findings of the Administrative Law Judge and deviates from that decision solely on legal grounds that do not warrant discussion in the absence of an existing controversy. Marjarum, supra, 336 N.J. Super. at 92.

The appeal is dismissed.

 

The Murnicks' challenge to the notice of judgment should have been indicated in their notice of appeal. R. 2:5-1; Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994).

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A-5631-06T3

January 8, 2009