STEVEN D'AGOSTINO v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4912-15T4

STEVEN D'AGOSTINO,

              Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR AND
WORKFORCE DEVELOPMENT,
J&J PIZZA, INC. and
TOO MUCH MEDIA, LLC,

          Respondents.
_________________________

              Argued November 30, 2017 – Decided December 14, 2017

              Before Judges Haas and Rothstadt.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              079415.

              Steven D'Agostino, appellant, argued the cause
              pro se.

              Christopher Weber, Deputy Attorney General,
              argued the cause for respondent Board of
              Review (Christopher S. Porrino, Attorney
              General, attorney; Melissa Dutton Schaffer,
              Assistant Attorney General, of counsel;
              Christopher Weber, on the brief).
            Respondents J&J Pizza, Inc. and        Too   Much
            Media, LLC, have not filed briefs.

PER CURIAM

       Appellant appeals from the June 17, 2016 final decision of

the Board of Review, which concluded that the Deputy Claims

Examiner properly calculated appellant's $414 weekly benefit rate

on his approved claim for unemployment compensation benefits.            We

affirm.

       By way of background, a claimant's weekly benefit rate is 60%

of the average weekly wage earned by the claimant during his or

her base year, which in turn is comprised of base weeks.        
N.J.S.A.

43:21-3(c)(1).      In pertinent part, 
N.J.S.A. 43:21-19(u) defines

"average weekly wage" as follows:

            For benefit years commencing on or after July
            1, 1986, "average weekly wage" means the
            amount derived by dividing an individual's
            total base year wages by the number of base
            weeks worked by the individual during the base
            year; provided that for the purpose of
            computing the average weekly wage, the maximum
            number of base weeks used in the divisor shall
            be [fifty-two].

A claimant's "base year" consists of "the first four of the last

five    completed    calendar   quarters   immediately   preceding       an

individual's    benefit   year[,]"   
N.J.S.A.   43:21-19(c)(1),     which

begins on the day he or she "first files a valid claim for

benefits[.]"     
N.J.S.A. 43:21-19(d).     A "base week" is defined as


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"any calendar week during which the individual earned in employment

from an employer remuneration not less than an amount [twenty]

times the [New Jersey] minimum wage in effect . . . on October 1

of the calendar year preceding the calendar year in which the

benefit year commences[.]"
1 N.J.S.A. 43:21-19(t)(3).

     In this case, appellant filed his claim for benefits on

January 3, 2016, which established a "base year" that ran from

October 1, 2014 to September 30, 2015, which were "the first four

of   the   last    five   completed       calendar   quarters   immediately

preceding" his benefit year.     
N.J.S.A. 43:21-19(c)(1).        The Deputy

determined that appellant was eligible for benefits and proceeded

to calculate appellant's weekly benefit rate.

     Appellant had two different employers during his base year.

While working for the first employer, appellant earned $4911.73

in gross wages during sixteen base weeks. For his second employer,

appellant worked thirty-seven base weeks and earned $31,038.48 in

gross wages.      Thus, in total, appellant worked fifty-three base

weeks and earned $35,950.21 in gross wages during his base year.

     In determining his "average weekly wage" during this period,

the Deputy divided appellant's $35,950.21 by fifty-two as required




1 In January 2016, when appellant filed his claim for benefits,
a claimant needed to earn $168 or more in a week for it to be
considered a "base week."

                                      3                             A-4912-15T4
by 
N.J.S.A. 43:21-19(u).        Based on this calculation, appellant's

average weekly wage was $691.35.           Finally, the Deputy calculated

60% of this amount, rounded to the next lower multiple of $1, and

determined that appellant's weekly benefit rate was $414.

     Appellant challenged the Deputy's calculation, and argued

that only the wages he earned for his second employer should have

been considered in determining his "average weekly wage." However,

the Appeal Tribunal and the Board rejected appellant's contention.

     As    the   Board    explained   in   its   June   17,   2016    decision,

appellant's argument was based upon the version of 
N.J.S.A. 43:21-

19(u) that was in effect prior to its amendment on March 26, 1984.

L. 1984, c. 24.        At that time, a claimant's average weekly wage

was determined by dividing his or her total wages earned from the

"most recent base year employer with whom he has established at

least [twenty] base weeks, by the number of base weeks in which

such wages were earned."          
N.J.S.A. 43:21-19(u).         However, the

statute was amended in 1984 to provide that "[f]or benefit years

commencing on or after July 1, 1986, 'average weekly wage' means

the amount derived by dividing an individual's total base year

wages by the number of base weeks worked by the individual during

the base year[.]"        Ibid.; L. 1984, c. 24, § 12.

     The Deputy determined appellant's average weekly wage as

required    by   the     amendment    to   
N.J.S.A.     43:21-19(u)     because

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appellant obviously filed his claim after July 1, 1986. Therefore,

the   Board   concluded   that   the     Deputy   properly   calculated

appellant's $414 weekly benefit rate.       This appeal followed.

      On appeal, appellant continues to argue that the Deputy, the

Appeal Tribunal, and the Board misinterpreted 
N.J.S.A. 43:21-19(u)

in determining his weekly benefit rate.           We find insufficient

merit in appellant's arguments to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(D). We add the following brief comments.

      When the language of a statute "clearly reveals the meaning

of the statute, the court's sole function is to enforce the statute

in accordance with those terms."       In re Estate of Fisher, 
443 N.J.

Super. 180, 190 (App. Div. 2015) (quoting         State v. Olivero, 
221 N.J. 632, 639 (2015)), certif. denied, 
224 N.J. 528 (2016).       Here,

the language of the 1984 amendment to 
N.J.S.A. 43:21-19(u) is

clear and unambiguous.

      As noted above, for all claims filed after July 1, 1986, a

claimant's average weekly wage is determined by considering the

claimant's total wages earned during his or her base year.        Ibid.

As our Supreme Court held in Mortimer v. Bd. of Review, 
99 N.J.
 393, 399 (1985), "[p]ursuant to [the 1984 amendment], commencing

July 1, 1986[,] the calculation of the average weekly wage will

be made by combining all eligible base year wages without making

any distinction between employment that lasted more or less than

                                   5                            A-4912-15T4
[twenty] weeks."   The Deputy followed this directive in computing

appellant's weekly benefit rate.     Thus, appellant's contention to

the contrary clearly lacks merit.

    Affirmed.




                                 6                           A-4912-15T4


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