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Salvagno v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 23, 2008

ANTHONY J. SALVAGNO, JR., APPELLANT,
v.
BOARD OF REVIEW AND BOROUGH OF GLEN RIDGE, RESPONDENTS.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 146,482.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2008

Before Judges Wefing and Yannotti.

Anthony J. Salvagno, Jr. appeals from a final determination of the Board of Review (Board), which found that appellant was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(b) because he had been discharged for misconduct connected with the work. For the reasons that follow, the appeal will be dismissed.

Appellant was employed by the Borough of Glen Ridge as a full-time maintenance worker in its Department of Public Works. Appellant was terminated, as of March 2, 2007, because he failed to show up for work after he had been called and told to report for certain emergencies. On March 4, 2007, appellant filed a claim for unemployment benefits. The deputy claims examiner found appellant eligible for benefits and benefits were paid. The Borough appealed and a hearing was held by the Appeal Tribunal on May 23, 2007. Appellant appeared for the hearing with his attorney.

At the hearing, J. A. Weisenbach, Superintendent of Public Works for the Borough, testified that appellant was told when he was hired that he had to work when there is a snowfall or other emergency. Weisenbach said that on January 15, 2006, appellant was called on his cell phone, and a message was left, informing appellant that he should report to work to deal with icy conditions at the train station and certain "mass [transit] areas." Appellant did not report. The following day, Weisenbach told appellant that he has to answer his phone and come in for emergencies. Appellant said that he did not receive the call. Weisenbach gave appellant a verbal warning.

Weisenbach further testified that he called appellant at 5:30 a.m. on January 23, 2006, and left a voice mail message, instructing appellant to report to work to deal with a snow and ice emergency. Appellant did not report. Weisenbach asked appellant why he had not reported to work. Appellant said that he did not get the call.

Weisenbach testified the next incident occurred on February 12, 2006. Appellant was called at 12:00 a.m. and told to report, but he did not come in to work until 9:00 a.m., even though his regular work day began at 7:00 a.m. Weisenbach testified that he questioned appellant why he had not reported earlier and appellant said he did not receive the call. Weisenbach gave appellant a written warning.

The next incident occurred on February 14, 2007. Appellant was called at about 5:00 a.m. and a message was left directing appellant to report to work to deal with a snow and ice emergency. Weisenbach said that appellant did not show up for work at all that day. Appellant came to work the following day. According to Weisenbach, appellant "said nothing." Appellant received a written warning, informing him that disciplinary action would be taken if another similar incident occurred.

Weisenbach additionally testified that, on February 26, 2007, at approximately 4:00 a.m., appellant was called and a message was left, instructing appellant to report to work to deal with a snow emergency. Appellant did not report to work; however, appellant called later in the day and informed Weisenbach that he had injured his back on February 22nd lifting a bag full of newspapers.

Weisenbach said that appellant did not call to report his status on February 27th. He did not report to work, nor did he inform Weisenbach that he would not be in. Appellant sent a hand-written letter to Weisenbach stating that he hurt his back and he was going to go to his own doctor.

Appellant did not call or show up for work on February 28th. He returned to work on March 1, 2007, and worked all day. Appellant did not return the following day, which was the day that he was terminated.

Appellant conceded that he was required to respond to emergency calls. He testified, however, that he never received the calls on January 15, 2006, January 23, 2006, February 12, 2006, February 14, 2007, or February 26, 2007. He said that he was never given any warnings regarding his failure to report to work.

Appellant additionally testified that he called in at 6:00 a.m. on February 26, 2007, to advise that he had injured his back. Appellant said that, later that day, he went to the workplace and provided Weisenbach with a medical note and disability form. He left the documents on Weisenbach's desk.

Appellant stated that he did not file an incident report when he "wrenched his back" because he did not have any pain until the following morning. Appellant asserted that he reported to work on March 1st. Appellant wanted to do light duty but he was told that he "had to work full capacity." He did not report to work on March 2, 2007, the day he was terminated.

The appeals examiner issued a decision in the matter on June 27, 2007. The examiner determined that appellant's duties as a maintenance worker required that he report for "emergency calls," including "snow and ice removal and related task[s]." The examiner found that, in the period from January 15, 2006 through February 14, 2007, appellant failed to report in response to several emergency calls placed to his cell phone. Appellant had been given a final warning on February 15, 2007, and did not report to work for emergency snow clearance on February 26, 2007.

The examiner determined that appellant had neglected his duties in disregard of the employer's interest. The examiner found that appellant's actions constituted misconduct in connection with the work; therefore, appellant was disqualified from benefits pursuant to N.J.S.A. 43:21-5(b), from February 25, 2007 through April 7, 2007.

By letter dated June 29, 2007, appellant appealed to the Board. Appellant stated that, at the time of the hearing before the Appeal Tribunal, he did not have phone records that he had requested from his service provider. He claimed that the phone records would "clearly show" that, contrary to Weisenbach's assertions, he had not been called.

The Board issued its final determination in the matter on August 8, 2007. The Board stated that it had "carefully examined" the findings of fact and conclusions of the appeals examiner. The Board found that appellant had been given a full and impartial hearing, had "a complete opportunity" to present "any and all evidence," and there was "no valid ground for a further hearing." The Board accordingly affirmed the Appeal Tribunal's decision. This appeal followed.

Appellant argues that the Board committed reversible error by refusing to consider additional documentary evidence, which appellant claims is "relevant and material." Appellant argues that the proffered evidence "directly contradicts" Weisenbach's version of the events. Appellant seeks reversal of the Board's decision and a remand to the Board to consider the additional documentary evidence.

The Board argues, however, that the matter is moot. The Board notes that, when an employee is discharged for misconduct connected with the work, the employee is disqualified from receiving benefits pursuant to N.J.S.A. 43:21-5(b) for a six week period. The Board asserts that, following the period of disqualification, appellant re-filed his claim and received the full amount of benefits that he was entitled to receive.

The New Jersey courts "normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring). "A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." Ibid. (citing Oxfeld v. N.J. Bd. of Educ., 68 N.J. 301, 303-04 (1975)). Although we "'ordinarily refuse to examine moot matters due to our reluctance to render legal decisions in the abstract and our desire to conserve judicial resources, we will rule on such matters where they are of substantial importance and are capable of repetition yet evade review.'" Ibid. (quoting In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104 (1988)).

We agree with the Board that this dispute is moot. This appeal was brought seeking reversal of the Board's decision finding that appellant was disqualified for benefits pursuant to N.J.S.A. 43:21-5(b). However, as the State maintains, the statutory disqualification is for six weeks only and, here, appellant sought and received the full amount of benefits on his claim after the disqualification period ended.

Moreover, because appellant had not received any benefits during the statutory disqualification period, there is no basis for any claim by the Department of Labor for the refund of benefits paid. Indeed, the Board has represented to the court that no such claim will be made.

Thus, the dispute between the parties concerning appellant's disqualification for unemployment benefits has been completely resolved. Moreover, the appeal does not present any issue of genuine public importance. Therefore, we see no reason to address the moot issues raised on appeal.

Appellant argues, however, that the matter is not moot because the Board's finding that he was terminated for misconduct connected with his work could have collateral consequences in other matters, specifically his claim for workers' compensation benefits and his action against the Borough for wrongful termination. We disagree.

In Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511 (2006), the plaintiff brought an action alleging that she was terminated from her employment in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to-8. Id. at 513. Previously, the plaintiff sought and was awarded unemployment compensation benefits. Id. at 517-18. The trial court in the CEPA case granted collateral effect to the final decision of the Board, and barred the employer from asserting that the plaintiff left her job voluntarily. Id. at 518-19. The Supreme Court held, however, that "unemployment compensation determinations are not entitled to collateral estoppel effect." Id. at 527. Thus, there is no merit to appellant's contention that the Board's decision in this matter will be given collateral estoppel effect in other litigation arising from his termination.

Accordingly, the appeal is dismissed as moot.

20081023

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