ANGELA M. CARRELLO v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5730-03T1

ANGELA M. CARRELLO,

Appellant,

v.

BOARD OF REVIEW,

Respondent.

_______________________________

 

Argued December 5, 2005 - Decided

Before Judges Cuff and Parrillo.

On appeal from a Final Decision of the

Board of Review.

Maria C. Manganaro argued the cause for

appellant.

Alan C. Stephens, Deputy Attorney General,

argued the cause for respondent (Peter C. Harvey,

Attorney General of New Jersey, attorney; Michael J.

Haas, Assistant Attorney General, of counsel; Mr.

Stephens, on the brief).

PER CURIAM

Claimant, Angela M. Carrello, appeals from a final decision of the Board of Review (Board), which affirmed the Appeal Tribunal's decision holding her disqualified for unemployment benefits under N.J.S.A. 43:21-5(a) for having left work voluntarily, without good cause attributable to the work. For reasons that follow, we reverse and remand.

Claimant was employed by respondent, Moonstruck Restaurant, from August 6, 2003, to December 26, 2003, when she resigned from her position as restaurant manager. She filed a claim for unemployment benefits effective December 28, 2003. On January 23, 2004, the Deputy Director (Deputy) of the Division of Unemployment and Disability Insurance found claimant disqualified for benefits for a six-week period from December 21, 2003, through January 31, 2004, on the ground that she was discharged for misconduct connected with the work pursuant to N.J.S.A. 43:21-5(b). Claimant appealed the Deputy's determination to the Appeal Tribunal, and a hearing was held on February 26, 2004. By then, claimant had already received $990 in unemployment benefits.

At the hearing, in which claimant appeared without counsel, it was the employer's position that claimant was not fired for misconduct, but rather left work voluntarily. Yet the notice mailed to both claimant and employer advised only that the issue to be litigated was whether claimant was discharged for misconduct, and not whether she voluntarily quit without good cause attributable to the work. Consequently, during the hearing when the employer's change of position became evident, the Appeal Tribunal examiner briefly interrupted the testimony to advise the parties of their right to advance notice of the issues to be resolved, and their option of either addressing the issue of a voluntary quit now or postponing the hearing:

At this point of the hearing, the issue of voluntary leaving is not listed on the notice that you've both received today, saying that we'll discuss that issue. Now both of you have the option that you can discuss the issue today of a voluntary leaving, or the hearing can be postponed in order for you to receive written notice that the issue of a voluntary leaving will be discussed.

The instruction was repeated:

Yes. The issue, the "Notice of Hearing" only explained that we would be discussing the issue of a discharge for misconduct. The issue of a voluntary leaving was not listed on that hearing notice. So in order for due process, I have to advise you that you have the option that if you're prepared to discuss the issues today regarding a voluntary leaving, you could do so, or you can postpone the hearing in order to receive written notice.

Both parties replied they wished to proceed at that time, at which point the examiner stated further: "I'm advising both parties that the issue of a voluntary leaving, that disqualification if it is imposed, would be an indefinite disqualification as opposed to the six-week disqualification that's already instituted."

The hearing then proceeded to conclusion. Claimant admitted that she resigned, but claimned she did so for good cause attributable to the work. According to claimant, she was originally hired as the banquet, not a general or restaurant, manager, but soon afterwards assumed the additional duties that entailed working excessive hours (over sixty per week) and enduring the drunkenness of fellow employees.

After the close of evidence, on March 2, 2004, the Appeal Tribunal modified the Deputy's determination, holding that claimant was not discharged for misconduct under N.J.S.A. 43:21-5(b), but that she had left work voluntarily without good cause attributable to the work and was, therefore, completely disqualified for benefits under N.J.S.A. 43:21-5(a). Specifically, the Appeal Tribunal found that "claimant's leaving of the work because she was unhappy with the requirements of the position, is not considered a cause sufficient enough to justify leaving the ranks of the employed to join the ranks of the unemployed." Claimant appealed the Tribunal's decision to the Board, and on April 20, 2004, the Board affirmed.

After her disqualification, claimant received a Request for Refund of Unemployment Benefits, advising her that because of her ineligibility, she must return the benefits she had already received in accordance with N.J.S.A. 43:21-16(d). She also received two Summary of Account statements from the Department of Labor, further advising as to the action that may be taken upon her failure to repay the $990 in unemployment benefits she had received. No one disputes that by virtue of her disqualification pursuant to N.J.S.A. 43:21-5(a), claimant is liable for a full refund of the $990 she had received on her claim by operation of N.J.S.A. 43:21-16(d)(1). Upon failure to refund benefits, recoupment is required by law. Claimant has since became reemployed as of March, 2004.

On appeal, claimant argues in part that the failure to receive adequate notice deprived her of procedural due process. We agree.

Among "[t]he basic requirements of procedural due process [is] . . . adequate notice." Malady v. Bd. of Review, 166 N.J. Super. 523, 528 (App. Div. 1979); see also Howard v. Bd. of Review, 173 N.J. Super. 196, 202-03 (App. Div. 1980); Reid v. Dep't of Labor and Indus., 164 N.J. Super. 350, 352 (App. Div. 1978); Ferry v. Bd. of Review, 131 N.J. Super. 99, 102 (App. Div. 1974). The New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, sets forth the requirements of a notice that satisfies due process in contested administrative agency action. The requirements of such notice include: "(1)

. . . the time, place, nature of the hearing; (2) . . . the legal authority and jurisdiction under which the hearing is to be held; (3) [a] reference to the particular sections of the statutes and rules involved; [and] (4) [a] short and plain statement of the matters asserted." N.J.S.A. 52:14B-9(b). And to the extent a statement of the issues involved is not sufficiently explanatory, a party receiving such limited notice is entitled, "upon application[,] [to] more definite and detailed" notification. N.J.S.A. 52:14B-9(b)(4). Moreover, due process requires that the "statement of the matters asserted", ibid., advise the claimant "as to the sanction [or consequences] which might result" upon a finding of disqualification. Malady, supra, 166 N.J. Super. at 532.

Here, the original notice informed the parties that the administrative hearing would address the issue of misconduct connected with the work, with the possible consequences of a six-week disqualification from unemployment benefits pursuant to N.J.S.A. 43:21-5(b). However, the claimant never received advance, pre-hearing notice, written or otherwise, of the

actual ground of ineligibility being asserted, namely, of a voluntary quit without good cause attributable to the work; of the total disqualification from benefits that automatically results from such a finding under N.J.S.A. 43:21-5(a); and further, of her liability for a full refund of benefits received under N.J.S.A. 43:21-16(d)(1).

To be sure, the Appeal Tribunal examiner attempted to cure this defect, but his effort fell far short of the mark. In the first place, the hearing had already commenced and partial testimony taken before the examiner's brief interruption. To compound the matter, claimant appeared without counsel and could hardly be expected to appreciate her right, at that point, to request a fuller, more detailed explanation of the consequences attendant upon a N.J.S.A. 43:12-5(a) disqualification. Equally troublesome, although the examiner vaguely referenced the possibility of an "indefinite disqualification," no mention was made of the fact that such a disqualification, unlike under N.J.S.A. 43:21-5(b), is total and endures until the claimant becomes re-employed and has worked for the requisite number of weeks. N.J.S.A. 43:21-5(a). And finally, the examiner's oral notice completely failed to inform claimant of her exposure to liability for a refund of the benefits she had already received.

We find that such notification, under the circumstances, does not comport with fundamental principles of due process required in the conduct of unemployment benefits proceedings. Although claimant was afforded the option to postpone the hearing, her choice to proceed instead, made before any explanation of the potential consequences, was neither properly informed nor intelligently rendered. Especially because she had already received benefits, claimant should not be exposed to liability for a refund of benefits "without express prehearing notice . . . that this liability was to be considered at the hearing." Reid, supra, 164 N.J. Super. at 351; Agresta v. Bd. of Review, 232 N.J. Super. 56, 62 (App. Div. 1989). As we concluded in Reid, the consequence of an issue exposing a claimant to liability for a refund "require[s] a more precise notice . . . ." 164 N.J. Super. at 352.

We cannot say for sure what claimant would have done differently had she known the full extent of the consequences to which she was exposed. Perhaps, as counsel indicated at argument, claimant would have requested an adjournment, sought counsel, and produced eyewitnesses to her working conditions and hours. Be that as it may, where a claimant has not been given proper advance notice of an issue, we have, in the past, seen fit to remand even though we could not see how such

notice would have enabled preparation not thought to have been necessary otherwise [or how such notice] "would obviously have altered [a claimant's] entire approach to the hearing."

While this latter contention is not so obvious to us as it appears to be to petitioner's counsel, we are satisfied that essential fairness requires she be given the opportunity for a presentation on adequate notice with respect to liability for a refund on the earlier claim.

[Reid, supra, 164 N.J. Super. at 353 (emphasis added).]

Fairness here dictates the same result. We of course intimate no view on claimant's substantive claim that her disqualification under N.J.S.A. 43:21-5(a) was not supported by the record evidence, as that matter will be the subject of our remand.

 
Reversed and remanded.

(continued)

(continued)

9

A-5730-03T1

December 30, 2005