DALE J. ECKENSBERGER SR v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6241-10T4


DALE J. ECKENSBERGER, SR.,


Appellant,


v.


BOARD OF REVIEW, DEPARTMENT OF

LABOR AND WORKFORCE DEVELOPMENT,

and ISELIN CHEMICAL HOOK &

LADDER CO., DISTRICT 11, and

BOARD OF FIRE COMMISSIONERS,

FIRE DISTRICT 11,


Respondents.

____________________________

May 7, 2012

 

Argued May 1, 2012 - Decided

 

Before Judges Payne and Simonelli.

 

On appeal from the Board of Review, Department of Labor, Docket No. 306,370.

 

Dale Eckensberger, Sr., appellant pro se.

 

Lisa N. Lackay, Deputy Attorney General, argued the cause for respondent Board of Review, Dept. of Labor and Workforce Development (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Lackay, on the brief).

 

Respondent, Iselin Chemical Hook & Ladder Co., District 11, has not filed a brief.

 

Respondent, Board of Fire Commissioners, Fire District 11, has not filed a brief.

 

PER CURIAM

Appellant Dale Eckensberger, Sr. appeals from the final decision of respondent Board of Review (Board), which affirmed the Appeal Tribunal's decision that appellant's claim for unemployment compensation benefits was invalid, and he was liable to refund the amount of $24,676 he had received pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2. We remand to the Director of the Division of Unemployment Compensation to consider appellant's request for a waiver of repayment.

Appellant was an elected, paid Fire Commissioner in the Township of Woodbridge (Woodbridge) from March 2005 to March 2008.1 He was also employed as a janitor by Iselin Chemical Hook & Ladder Co. (Iselin) from 2005 to February 2008. On May 11, 2008, he filed a claim for unemployment benefits, establishing a regular base year from January 1 to December 31, 2007. During that period, he worked for Iselin for eight weeks and earned $3374, and he also worked and earned income as a Fire Commissioner in Woodbridge. Appellant included his employment and income as a Fire Commissioner in determining his eligibility for benefits. A deputy claims examiner deemed appellant eligible for benefits, without disqualification, from May 11, 2008. Appellant received $265 per week from May 17, 2008 to March 20, 2010, for a total of $24,676.

On September 22, 2009, appellant filed for Social Security disability benefits. On March 29, 2010, the Social Security Administration deemed appellant disabled as of August 1, 2009, and entitled to monthly disability benefits beginning January 2010.

On November 21, 2009, Woodbridge appealed the deputy's determination. The Appeal Tribunal held appellant ineligible for benefits pursuant to N.J.S.A. 43:21-19(I) because his employment as an elected official could not be considered employment for the purposes of the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.30. Appellant did not appeal that determination.

On October 27, 2010, the deputy claims examiner issued a determination that appellant's May 11, 2008 unemployment claim was invalid. The deputy claims examiner found that appellant had insufficient base weeks or earnings to establish a valid claim since his income from his elected position in Woodbridge could not be included in determining his eligibility for benefits. That same day, the Director issued a Request for Refund in the amount of $24,676. The Appeal Tribunal affirmed both determinations. The Board affirmed the Appeal Tribunal, but forwarded appellant's request for a waiver to the Director. The Director has not rendered a final decision on appellant's waiver request.

A person is liable to repay benefits in full if the benefits were received by reason of fraudulent or non-fraudulent nondisclosure or misrepresentation or for any other reasons while the person was not eligible for benefits. N.J.S.A. 43:21-16(d). The Director is permitted to provide a waiver of that repayment obligation. Ibid. The Director can waive a non-fraudulent overpayment, such as the overpayment here, if the Director finds that appellant is disabled and no longer able to work or that repayment would be patently contrary to the principles of equity, or if a reasonable repayment schedule would result in economic hardship. N.J.A.C.12:17-14.2(a)(2) and (3)(d). Accordingly, we remand to the Director to render a final decision on appellant's waiver request. The remand shall be completed, and the result reported to this court, within sixty days of the date of this opinion.

Remanded for further proceedings in accordance with this opinion. We retain jurisdiction.

1 In February 2008, appellant lost his bid for re-election to that position.