On certification to the Superior Court, Appellate Division, Whose opinion is reparted at N.J. Super. (1977).
For affirmance in part, reversal in part and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. Opposed -- None.
At issue is whether the claimant Michael Malady, who engaged in part-time employment while receiving full unemployment benefits, is liable under N.J.S.A. 43:21-16(d) to repay a sum equal to the entire amount so received. That amount was inclusive of the sum to which plaintiff was otherwise entitled as partial unemployment benefits pursuant to N.J.S.A. 43:21-3(b) had he reported his total earnings truthfully and accurately. The Appellate Division, in a per curiam opinion rendered January 3, 1977, found the claimant liable for this aggregate sum, 159 N.J. Super. 530. We affirm the Appellate Division's decision as to claimant's liability to refund the full amount of benefits received substantially for the reasons expressed in its opinion.
From July 1971 to October 1972 claimant was employed by Family Counseling Services and on a part-time basis by the South Bergen Mental Health Center. After being laid off by Family Counseling claimant continued to work part-time for South Bergen. Nevertheless, he filed a claim for full unemployment benefits at the local claims office and over the next year he received benefits totaling $1,824. Had the office been cognizant of claimant's part-time status, it would have still provided claimant with unemployment insurance, but at a reduced rate. N.J.S.A. 43:21-3(b).
Following the discovery that claimant had been working part-time while simultaneously receiving full unemployment benefits, the Division of Unemployment and Disability determined
that pursuant to N.J.S.A. 43:21-16(d) Malady was liable to refund the entire amount of benefits received and further sought the imposition of a fine pursuant to N.J.S.A. 43:21-16(a). Claimant thereafter took his case to the Appeal Tribunal. There, Malady maintained that he had informed the claims office of his part-time status. After some procedural developments not here relevant, the Appeal Tribunal nevertheless found, as a matter of fact, that Malady had fraudulently received unemployment benefits to which he was not entitled and concluded that he was therefore liable under N.J.S.A. 43:21-16(d) to refund the entire amount of benefits claimed and paid out during the weeks in question.
Claimant once again appealed, this time to the Board of Review. The Board simply affirmed without discussion the decision of the Appeal Tribunal. Claimant thereafter filed a notice of appeal to the Appellate Division, from whose decision this petition for certification was granted. 74 N.J. 248 (1977).
Claimant argues here, as he had before the Appellate Division, that N.J.S.A. 43:21-16(d)*fn1 mandated only a refund
of the amount of benefits to which he was not entitled, i.e., the difference between what he actually received from the Division and the sum to which he was otherwise entitled under N.J.S.A. 43:21-3(b). In short, claimant maintains that § 16(d) was not intended to abrogate § 3(b), the partial benefits provision. Permitting the Division to mandate a total forfeiture of his benefits, plaintiff argues, imposes upon him an additional penalty not specifically provided for in the statute and that where penalties are intended in the statute, e.g., § 16(a), (b), and (c), they are made plain.
We find, as did the Appellate Division in this case, that claimant's arguments are without merit. The statute not only grants the director the discretion to determine the manner in which the improperly disbursed sums are collected (e.g., "deducted from any future benefits" or "re[paid]" directly to the Division) but also authorizes him to demand that the claimant turn over "a sum equal to the amount so received by him." N.J.S.A. 43:21-16(d). The language is plain that the claimant can be made obligated to pay the "amount so received", in the instant case a total of $1,824. Thus, we believe that subsection (d), which is found in a provision entitled "Penalties", is intended by the Legislature to give the director the discretion to impose an additional penalty where the claimant purposely fails to make an accurate or truthful report of his income. That the other subsections of N.J.S.A. 43:21-16 also provide separately for some penalty, rather than indicating the contrary, is in fact strong evidence of subsection (d)'s own "penalty" potential. We affirm this portion of the judgment of the Appellate Division.
There is presented still a further issue that deals with the propriety and reviewability of a $480 fine imposed upon claimant by the ...