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Amico v. Board of Review

Decided: March 27, 1967.

SAMUEL S. AMICO, ET AL., CLAIMANTS-APPELLANTS,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND GENERAL ELECTRIC COMPANY, RESPONDENTS



For reversal of judgment of Appellate Division and affirmance of decision of Board of Review -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

This appeal involves some 150 claims for unemployment compensation. The Board of Review, one member dissenting, found the claims were barred by the labor-dispute disqualification provision in N.J.S.A. 43:21-5(d). In addition, the Board of Review considered whether, notwithstanding their ultimate defeat upon the merits before the Board, the employees should be paid under N.J.S.A. 43:21-6(b)(1) which calls for payment if there are two determinations of entitlement within the administrative agency. At first the Board thought there had been two such determinations and so stated, but upon rehearing the Board deleted that finding.*fn1

The disappointed claimants appealed to the Appellate Division, which dismissed the appeals on motion because the employer was neither named in the notice of appeal nor served with it. We granted the claimants' petition for certification. 46 N.J. 313 (1966).

I

The employer advances a number of procedural objections.

It says the notice of appeal should have named the appellants as required by R.R. 1:2-8(b). The notice reads that "Samuel Amico, et als., Appellants" appeal from the whole of the final judgment of the Board of Review "in BR-L-1-E through BR-L-160-E." We think the appellants were thereby amply identified as all the claimants in the 160 matters bearing the docket numbers just quoted. No one could have understood anything less.

Next the employer says the employees cannot argue the two-determination issue because the decision of the Board of Review upon rehearing was silent upon the subject. We see no substance to this objection. A litigant cannot be denied appellate consideration of a critical claim merely because the final decision below was silent upon it. An appeal from a final judgment brings up every relevant issue urged before the agency or court, whether passed upon or not. If the issue was not resolved below, then, depending upon circumstances, the appellate court may itself decide it, or remand the matter to the tribunal below, or preserve the claim for a further proceeding.

The remaining procedural objection is the one which prevailed in the Appellate Division. Both the employer and the agency maintain that the appeal to the Appellate Division was properly dismissed because the employer was neither named in the notice of appeal nor served with it.

That the employer is a party in interest and must be made a party to the appeal is perfectly plain. See New Jersey Zinc Co. v. Board of Review, 25 N.J. 235, 239 (1957), and N.J.S.A. 43:21-6(b). The agency immediately called the omission to the attention of counsel for the employees. Nonetheless nothing was done before the expiration of the time for appeal, R.R. 1:3-1(b), or the further period in which the time for appeal could be enlarged under R.R. 1:27B(d). See Alberti v. Civil Service Commission, 41 N.J. 147, 152-54

(1963). Rather at a later date appellants merely served and filed an "amended" notice of appeal.

Obscure is the reason why appellants did not join the employer or act promptly when that failure was flagged. Their brief says the change in the Board's position upon the two-determination issue "shifted the focus of attention to a matter involving the Division and obscured the presence of the company." However, in his affidavit filed with us, counsel for appellants asserts he deliberately omitted the employer's name after consulting the rules of court. The affidavit does not reveal the process whereby that decision was reached.*fn2 Our rules dealing with review of a state agency expressly call for service of the notice of appeal, not only upon the agency and the Attorney General, but also upon "all other parties to the proceedings or their attorneys." R.R. 4:88-8(a).

Nonetheless we think appellants should be relieved of their failure. A copy of the notice of appeal was sent to counsel for the employer the day it was filed, and hence the employer was immediately aware of the appeal even though appellants did not intend thereby to "serve" the notice. The employer knew at once that the judgment of the Board of Review was challenged. Any doubt or ambiguity could have been dissipated by ordinary inquiry. Accordingly there was timely substantial compliance with the rule. The total circumstances come within Alberti v. Civil Service Commission, supra, 41 N.J. 147, where the appellant was relieved of a failure, as here, to join a party in interest to a state agency proceeding.

II

We thus reach the merits. The first question is whether the claimants were correctly held to be disqualified. The second is whether they should nonetheless ...


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