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Hancock v. Board of Review

Decided: October 3, 1957.

ADELINE M. HANCOCK, APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, NEW JERSEY DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Freund, Cafiero and Artaserse. The opinion of the court was delivered by Cafiero, J.s.c. (temporarily assigned).

Cafiero

This is an appeal from a decision of the Board of Review which found that the appellant was entitled to weekly unemployment benefits of $18. The Board held that under the law she was entitled to benefits only from her most recent employment.

Appellant contends that although she worked for two corporations, and her unemployment from one preceded the other, she had only one employer and that her total wages should be used as a basis in determining her weekly benefits.

The facts are not in dispute. Appellant was hired in the latter part of October 1955 by one Girard Keller to work as an assistant bookkeeper. She testified: "I worked Monday, Tuesday and a half a day Wednesday at the Ranch House, and Wednesday afternoon, Thursday and Friday at the Acres. The salary was $25.00 from each place, plus lunch, which was equivalent to $55.00 a week." The Ranch House was the name of a restaurant in Convent, New Jersey, which was owned and operated by The Timbers, Inc.; and the Acres was the name of another restaurant in Whippany, New Jersey, which was owned and operated by the Rod's Acres Corporation. Both corporations operated as separate entities, although they were owned and controlled by the same individual or individuals; and were both under the direct management of Mr. Keller. The corporate records of appellant's employers filed with the respondent Division show that the cash payments of appellant's salary were charged as $25 weekly against each of the two corporations; and in supplying information to the Division upon appellant's claim for benefits, Mr. Keller furnished the information in behalf of The Timbers, Inc., which operated Rod's Ranch House, and indicated his official position was treasurer. The

information in behalf of Rod's Acres Corporation was supplied by M. L. Peters, who gave her official position as "bookkeeper."

Appellant's employment with The Timbers was terminated on May 2, 1956, and by Rod's Acres on May 4, 1956. She had established 28 base weeks with the former and 27 base weeks with the latter.

The question thus presented is whether an individual who works full-time, but divides her time between two employers is entitled to be paid benefits on the basis of the total earnings; or whether, the benefit amount is based only on the wages earned with the employer for whom the services are actually performed on the last calendar day , within the base year.

We agree with the statement of the Board of Review that the answer depends upon a careful reading of the highly technical language of the statute and, if the statute be clear, we must follow it regardless of the result. Alexander Hamilton Hotel Corp. v. Board of Review , 127 N.J.L. 184 (Sup. Ct. 1941).

The court's duty is to construe a statute and not to write into it conditions or qualifications. That is a legislative function. Department of Labor and Industry v. Rosen , 44 N.J. Super. 42 (App. Div. 1957). We are not unmindful of the fact that the beneficent object of this statute is to minimize loss to workers by unemployment compensation benefits. However, we may not accomplish that desired result by extending the application of the statute to factual situations not covered by its provisions. Texas Co. v. Unemployment Compensation Commission , 132 N.J.L. 362 (Sup. Ct. 1945).

"Where wording of statute is explicit and clear, the court is not free to indulge in presumption arising from extrinsic evidence that the Legislature intended something other than that which it actually expressed, and except where uncertainty and ambiguity appear, a statute must speak for itself and must be construed according to its own terms." Rosenthal v. State Employers' Retirement System , 30 N.J. Super. 136 (App. Div. 1954).

The pertinent sections and subsections of the statute are: N.J.S.A. ...


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