                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in othe r cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3021-18T2

ELENA DANETZ-GOLD,

          Plaintiff-Respondent,

v.

BOARD OF EDUCATION
OF ENGLEWOOD CLIFFS,
BERGEN COUNTY,

     Defendant-Appellant.
________________________

                    Argued telephonically August 10, 2020 –
                    Decided August 21, 2020

                    Before Judges Moynihan and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Bergen County, Docket No. C-
                    000002-18.

                    Stephen R. Fogarty argued the cause for appellant
                    (Fogarty & Hara, attorneys; Stephen R. Fogarty, of
                    counsel and on the briefs; Amy E. Canning and David
                    J. Ulric, on the briefs).

                    Raymond M. Baldino argued the cause for respondent
                    (Zazzali Fagella Nowak Kleinbaum & Friedman, PC,
            attorneys; Richard A. Friedman, Kathleen Naprstek
            Cerisano, and Raymond M. Baldino, of counsel and on
            the brief).

PER CURIAM

      Defendant Board of Education of Englewood Cliffs appeals from a

February 28, 2018 order granting plaintiff Elena Danetz-Gold summary

judgment, finding she was entitled to health insurance benefits and denying

defendant's cross-motion for summary judgment. We affirm substantially for

the reasons set forth in Judge James J. DeLuca's thorough and well-written

decision.

      Defendant employed plaintiff as a speech therapist beginning in 2003, and

she became tenured in 2006. She took a leave of absence during the 2007-08

and 2008-09 school years and returned from leave in September 2009 at a

reduced rate of full-time employment working twenty-one hours per week.

Defendant and the Englewood Cliffs Education Association (Association),

which represented the school district certificated members, including plaintiff,

were parties to an agreement governing, among other matters, leave and health

benefits. Specifically, an agreement was in effect for the period of July 1, 2013

through June 30, 2016, and a second agreement governed the period of July 1,

2016 through June 30, 2019.


                                                                         A-3021-18T2
                                       2
      Pursuant to the agreement, defendant participated in the School

Employees Health Benefits Program (SEHBP). Article 22 of the agreement

addressed leaves of absences and stated:

            C. Maternity Leave—All pregnant teachers may apply
            for a leave of absence beginning in the school year
            during which the child will be born plus up to one . . .
            additional year, both without pay . . . .

                   ....

                   2. A teacher's return date to employment
                   shall be extended for a reasonable period of
                   time at her request for reasons associated
                   with pregnancy, birth or other related
                   cause.

                   ....

            E. . . . A teacher shall not receive increment credit for
            time spent on a leave granted pursuant to Section[] . . .
            C . . . of this Article. All benefits to which a teacher
            was entitled at the time his leave of absence
            commenced . . . shall be restored to him upon his return.

      Plaintiff was enrolled in the SEHBP until 2007 when she waived coverage

and accepted an opt-out waiver payment in lieu of coverage because she received

coverage through her husband's insurance.         She received opt-out waiver

payments for the school years between September 2009 and September 2013.

She did not receive the payments for the 2013-14 school year because she was

on unpaid leave.

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                                        3
      Plaintiff's leave was approved at an October 2012 meeting, wherein

defendant passed a resolution granting her maternity and contractual child-

rearing leave for the second half of the 2012-13 and the entire 2013-14 school

years "with an anticipated return to full-time employment . . . on September 1,

2014." As contemplated, plaintiff returned to work in September 2014. After

her return, she continued to receive the opt-out waiver payment from the 2014-

15 through 2016-17 school years.

      In April 2017, plaintiff contacted defendant's business administrator to

inquire regarding enrollment for benefits under the SEHBP due to her husband's

potential loss of employment. This inquiry prompted a review by defendant,

which concluded plaintiff was ineligible for benefits because she had a break in

service as a result of exercising her right to contractual child-rearing leave

during the 2013-14 school year. Plaintiff filed a Chancery Division complaint

alleging violation of her contractual rights to health benefits, and a second count

asserting defendant was estopped and equitably estopped from denying benefits

for failing to apprise plaintiff she was ineligible for benefits before the leave

and continuing to pay her the opt-out waiver payments during her leave.

Defendant counterclaimed for reimbursement of $12,500, the total amount of




                                                                           A-3021-18T2
                                        4
the opt-out waiver payments it claimed it erroneously paid plaintiff from the

2014-15 through 2016-17 school years.

      Plaintiff and defendant each filed a motion for summary judgment. Judge

DeLuca aptly summarized the issue as follows: "[Defendant contends] that the

childrearing leave of absence taken by [p]laintiff after the birth of her child in

2013 constitutes a break in service, which precludes [p]laintiff's assertion that

she is 'grandfathered' [1] under N.J.S.A. 52:14-17.46.1 . . . ."

      As the judge explained, the SEHBP, N.J.S.A. 52:14-17.25 to -46.12, "was

enacted . . . to provide health insurance coverage to qualified . . . local

government employees." Pursuant to the statute, an employee was defined as a

person working at least twenty hours per week. N.J.S.A. 52:14-17.46(d)(1) and

52:14-17.26(c)(1). Effective May 21, 2010, the statute was amended to define

an employee as a person who worked at least twenty-five hours per week.

N.J.S.A. 52:14-17.46.2(d)(2).         However, pursuant to N.J.S.A. 52:14-

17.46.2(d)(2), the Legislature defined "employee" as "a person employed in a

full-time capacity by an employer who has or is eligible for health benefits


1
  Although we recognize plaintiff did not intend to do so, we decline to utilize
this term because of its prejudiced origins. See Webster's Third New
International Dictionary 987 (2002) (definition of "grandfather clause"); Benno
C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the
Progressive Era, 82 Colum. L. Rev. 835 (1982).
                                                                          A-3021-18T2
                                          5
coverage . . . on [May 20, 2010] and continuously thereafter" even if they

worked less than twenty-five hours per week.

      The parties disputed whether plaintiff was "continuously" employed.

Defendant argued plaintiff's unpaid leave of absence in 2013-14 constituted a

break in service rendering her ineligible for health insurance benefits.

Defendant pointed to N.J.S.A. 52:14-17.32(a), entitled "Health benefits of

retirees", which states:

            The health care benefits coverage of any employee . . . shall
      cease upon the discontinuance of . . . employment or upon cessation
      of active full-time employment subject to such regulations as may
      be prescribed by the commission for limited continuance of
      coverage during . . . leave of absence . . . .

      Plaintiff argued she was an employee as defined by the statute, and by

virtue of having been deemed eligible pursuant to N.J.S.A. 52:14-17.46.2(d)(1),

she did not have a break in service by exercising her right to contractual leave

during the 2013-14 school year. Plaintiff pointed to N.J.S.A. 52:14-17.32(g),

which provides:

            Notwithstanding any other provisions of P.L.1961, c 49
            (C.52:14-17.25 et seq.) to the contrary, the health care
            benefits of any employee of an employer with at least
            three years of service under a permanent appointment
            with that employer . . . may be continued and the
            premiums for the coverage may be paid by the
            employer during any approved leave of absence of the


                                                                        A-3021-18T2
                                       6
            employee with or without pay, for a period of up to two
            years.

      Judge DeLuca concluded "[t]he [a]greement specifically provided that

upon [plaintiff's] return she would receive all benefits to which she was entitled.

[Defendant's] minutes makes clear that her leave of absence began on

approximately January 10, 2013[,] and she was returning to a full-time position

. . . effective September 1, 2014." He rejected defendant's reliance on N.J.S.A.

52:14-17.32(a) because

            N.J.S.A. 52:14-17.32(g), by its terms, allows for the
            continuation of health care benefits to any school
            employee with at least three years of service. Health
            benefits may be available, with or without pay, for up
            to two . . . years under N.J.S.A. 52:14-17.32(g).
            Additionally, . . . [d]efendant's own actions in
            recommencing the cash opt-out waiver payments
            indicates an acknowledgment by [d]efendant that
            [p]laintiff remained eligible for health benefits.

                 An employee on leave of absence remains an
            employee. Kletzkin v. Bd. of Educ., 136 N.J. 275
            (1994).

      We "review the trial court's grant of summary judgment de novo under the

same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment must

be granted if the court determines "there is no genuine issue as to any material

fact challenged and that the moving party is entitled to a judgment or order as a

                                                                           A-3021-18T2
                                        7
matter of law." R. 4:46-2(c). The court must "consider whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party in consideration of the applicable evidentiary standard, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995).

      Defendant raises the following arguments on appeal: (1) the judge erred

because he disregarded the termination provision in the agreement and instead

relied on the extension provision to find plaintiff was continuously eligible for

insurance during her leave; (2) the extension provision is inapplicable because

the Association did not bargain for it and past practice whereby teachers on leave

purchased COBRA benefits after twelve weeks of leave proves there was no

entitlement to benefits during a contractual leave; (3) plaintiff did not receive

opt-out waiver payments during her 2013-14 leave, which demonstrates she was

not continuously eligible for benefits; (4) plaintiff's right to benefits ended when

she ceased full-time employment; (5) the plain language of the agreement does

not support the continuation of coverage because it states benefits shall be

restored upon the return to service; (6) the judge could not make a better contract

for the parties by expanding eligibility in violation of the contractual languag e;


                                                                            A-3021-18T2
                                         8
(7) the restoration of insurance under the agreement was preempted because

plaintiff was not continuously eligible since she was not entitled to benefits

during the 2013-14 school year; (8) the judge confused eligibility for benefits

with employment to conclude plaintiff had no break in service as a basis to

continue her benefits; and (9) the judge erred when he denied defendant

summary judgment and the right to recoup the opt-out waiver payments made to

plaintiff.

       Our de novo review convinces us defendant's arguments are unpersuasive

and we affirm substantially for the reasons Judge DeLuca expressed. Plaintiff

did not cease to be an employee when she went on leave. The agreement clearly

provided that an employee who returned following leave would have benefits

restored. Defendant's resolution approving plaintiff's leave contemplated her

return.

       Plaintiff was also eligible for benefits pursuant to the plain language of

N.J.S.A. 52:14-17.32(g), and N.J.S.A. 52:14-17.32(a), a provision addressing

retiree benefits, did not apply to plaintiff. "In most instances, the best indicator

of [legislative] intent is the plain language chosen by the Legislature

. . . . [W]hen the language of a statute is clear on its face, the sole function of

the courts is to enforce it according to its terms." State v. Frye, 217 N.J. 566,


                                                                            A-3021-18T2
                                         9
575 (2014) (citations and internal quotations omitted). N.J.S.A. 52:14-17.32(g)

clearly applied to plaintiff whereas N.J.S.A. 52:14-17.32(a) plainly did not.

      Plaintiff could not be paid the opt-out waiver payment for the 2013-14

school year because she was on unpaid leave. Finally, defendant did not raise

the past practices argument in its summary judgment motion, and we decline to

consider it on appeal. Nieder v. Royal Indem. Ins. Co., Inc., 62 N.J. 229, 234

(1973).

      For these reasons, summary judgment in plaintiff's favor was appropriate

and defendant was not entitled to summary judgment. To the extent we have

not addressed an argument defendant raised, it is because it is without sufficient

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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