An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1117


Filed: 17 January 2006


         v.                        Ashe County
                                No. 03 CVS 486


    Appeal by respondent Employment Security Commission of North Carolina from an order entered 6 May 2004 by Judge Melzer A. Morgan, Jr. in Ashe County Superior Court. Heard in the Court of Appeals 22 August 2005.

    No brief for petitioner-appellee.

    Fred R. Gamin for respondent-appellant Employment Security Commission of North Carolina.

    No brief for respondent-appellant Ashe Memorial Hospital, Inc.

    BRYANT, Judge.

    The Employment Security Commission (ESC) of North Carolina (respondent-appellant-Commission) appeals an order of the Ashe County Superior Court remanding for new findings rather than ruling on the Commission's final decision disqualifying claimant Barbara Childers from receiving unemployment benefits.
    On or about 20 May 2003, claimant tendered to her employer, Ashe Memorial Hospital, a written resignation with notice of intent to leave employment on 26 May 2003. Her employer accepted the resignation. Although claimant attempted to rescind her resignation prior to her last day of employment, her employer did not accept the attempted rescission. Her employer terminated claimant's employment effective 26 May 2003.
    Thereafter, claimant filed a claim with ESC for unemployment insurance benefits, but she was determined to be “disqualified for unemployment benefits.” Claimant appealed the determination, and hearing Officer Amy Funderburk made the following findings of fact:         
        3. On or about May 20, 2003, claimant gave employer a written resignation with notice of her intent to leave the employment effective May 26, 2003.

        4. Claimant planned to leave this job because she did not want to work her floor with a light duty employee.
        . . . 

        7. Claimant typically worked her shift with one other employee. Claimant and her partner were responsible for CNA duties on one hall of the hospital.
        8. Claimant was required to have the physical ability to lift up to 100 pounds. Claimant's partner typically had the ability to lift 100 pounds.
        9. At the time of her resignation, claimant's partner was on medical restriction and could lift no more than ten pounds. These medical restrictions were expected to last a total of two weeks.

        10. Claimant was directed by the Director of Nursing and Clinical Supervisor to contact employees working on a neighboring hall if she needed assistance that her partner was unable to provide. The employees on the neighboring hall were to provide assistance to the claimant. If the Claimant was unable to locatean employee on the neighboring hall that could assist her, she was to contact the Director of Nursing or the Clinical Supervisor.

        11. Claimant contacted employees on the neighboring hall and they provided assistance when they finished their job duties. Claimant was able to provide for the needs of her patient in a timely manner despite the delay in receiving assistance from another employee.

        12. Claimant contacted the Clinical Supervisor for assistance in lifting a patient on one occasion. Claimant was given the requested assistance.

        13. Claimant was able to locate other employees to assist her on each occasion she requested it.

        14. Claimant was allowed to use her own discretion and knowledge of patients' needs to determine if they needed to be lifted by one person or two. If a patient required assistance by two CNA's, claimant could contact an employee from the neighboring hall or a supervisor for assistance.

        15. Claimant was allowed to work her notice period.

Based upon these findings, the hearing officer concluded that claimant's separation constituted a “leaving” rather than a “discharge” and that “the record evidence and facts found therefrom do not support a conclusion that the claimant has met the burden of showing good cause attributable to the employer for leaving.” Claimant then appealed to the Commission, which affirmed the hearing officer's decision.
    Thereafter, claimant filed a pro se document which was treated as a petition for judicial review, in which she asserted that her leaving was not voluntary. The superior court, after hearing from both claimant and counsel for the Commission, and after reviewingthe entire record on appeal, remanded the matter “for the taking of further evidence and for consideration of whether [claimant's] resignation was voluntary.” From the superior court's order of remand, Respondent-Commission appeals. However, for the reasons stated herein, we dismiss this appeal as interlocutory.

    In general, “there is no right to immediate appeal from an interlocutory order.” Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002); see N.C. Gen. Stat. § 1A-1, Rule 54(b) (2005). However, N.C. Gen. Stat. § 7A-27(d) permits immediate appeal from an interlocutory order that:
        (1) Affects a substantial right, or (2) In effect determines the action and prevents a judgment from which appeal might be taken, or (3) Discontinues the action, or (4) Grants or refuses a new trial[.]

N.C.G.S. § 7A-27(d) (2005). N.C. Gen. Stat. § 1-277(a) also states, in pertinent part, that appeal “may be taken from every judicial order or determination of a judge of a superior or district court . . . which affects a substantial right[.]” N.C.G.S. § 1-277(a) (2005).
    Respondent, while acknowledging the Superior Court order is not a final judgment, cites Edwards v. Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954) for the proposition that this appeal should be allowed. We reject respondent's reliance upon Edwards as misplaced. The appeal in Edwards involved an interlocutory order of the Superior Court remanding to the Industrial Commission to receive newly discovered evidence. As was recognized by our Courtin Blackwelder v. State Dep't of Human Res., 60 N.C. App. 331, 299 S.E.2d 777 (1983):
        The Supreme Court accepted the defendant's appeal [in Edwards] under its supervisory power, N.C. Const. Art. IV, Sec. 8, to avoid a “wholly unnecessary and circuitous course of procedure.” Remand to the Industrial Commission was considered unnecessary in Edwards because the parties initially submitted the case upon an agreed statement of facts. As the plaintiff was thus unable to go outside the stipulated facts, a further hearing by the Industrial Commission was found to be “inconvenient, expensive and futile.”

Blackwelder at 337, 299 S.E.2d at 781 (internal citations omitted).
    Unlike in Edwards, the parties here are not bound by any agreed statement of facts, and, based on the ruling of the Superior Court, additional evidence is necessary to a determination of the ultimate issue of whether claimant is entitled to unemployment benefits. This matter clearly requires further action by the Commission.
    Therefore, in the case sub judice, we conclude claimant's appeal neither affects a substantial right, nor meets any other criteria for immediate appeal, and thus should be dismissed as interlocutory. See, e.g., State ex rel. Employment Sec. Comm'n v. IATSE Local 574, 114 N.C. App. 662, 663-64, 442 S.E.2d 339, 340 (1994) (dismissing as interlocutory an appeal from a superior court order which remanded an ESC order to the ESC Commission) (citing Blackwelder).
        By providing for judicial review of a final agency decision, the General Assembly has expressed an intent that courts are not to review interlocutory administrative decisions. See N.C. Gen. Stat. § 150B-51. “Where astatute provides for 'an orderly procedure for an appeal to the superior court for review . . . this procedure is the exclusive means for obtaining judicial review,' and a civil action is only proper after all administrative remedies have been exhausted.” Johnson v. N.C. [DOT], 107 N.C. App. 63, 70, 418 S.E.2d 700, 705 (1992) (quoting State v. House of Raeford Farms, 101 N.C. App. 433, 442, 400 S.E.2d 107, 113 (1991)).

North Carolina Cent. Univ. v. Taylor, 122 N.C. App. 609, 613, 471 S.E.2d 115, 118 (1996) (emphasis supplied).
    This appeal is dismissed.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

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