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Castellucci v. Board of Review

New Jersey Superior Court, Appellate Division


Decided: May 13, 1980.

DIANA G. CASTELLUCCI, PLAINTIFF-APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND XEROX CORPORATION, DEFENDANTS-RESPONDENTS

On appeal from New Jersey Department of Labor and Industry, Board of Review. Reported at 168 N.J. Super.. 301 (App.Div. 1979).

Fritz, Bischoff and Morgan. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

[174 NJSuper Page 290]

The factual background requiring the remand is set out in our prior opinion at 168 N.J. Super. 301 (App.Div.1979). There is no need to repeat it or enlarge upon it here.

On the remand a further hearing was held and testimony taken. Thereafter the Board of Review (Board) concluded that since "the notice of an Appeal Tribunal hearing, and the decision as a result of that hearing, were mailed to the branch of the

[174 NJSuper Page 291]

employer that had no knowledge of [appellant's] employment," "the notice given was insufficient to start the period of limitation" and the employer's appeal was timely. The facts thereby implicated might reasonably have been reached on sufficient credible evidence in the whole record and we will not disturb them. Mayflower Securities v. Bureau of Securities , 64 N.J. 85 (1973); Parkview Village Ass'n v. Collingswood , 62 N.J. 21 (1972). The determination accords with existing law as discussed at length in our prior opinion. With respect to this phase of the appeal we do not hesitate to affirm.

In its original determination the Board summarily affirmed the decision of the Appeal Tribunal which, among other things, distinctly asserted appellant's liability "to refund all benefits received in the total amount of $4056.00." Our prior opinion expressed our concern for the procedure:

Accordingly, should the Board determine on the remand that the notice to Xerox was insufficient to cause the time for appeal to commence whereby the Xerox letter of July 27, 1976 initiated a timely appeal, then in its further determination it shall also reconsider its decision with respect to the claimant's liability for refund or partial refund and accompany this determination with some explication of the factors which conduced to the result. [168 N.J. Super. at 309-310.]

The Board finessed our direction to it to explain to us how the administrative agency (through the Board's affirmance of the Appeal Tribunal) arrived at its declaration of appellant's liability for refund, by relying on statutes investing exclusive discretion

[174 NJSuper Page 292]

to direct recovery in the Director (of the Division of Unemployment and Temporary Disability Insurance). It avoided the issue by restating its declaration of liability and now appending to it "if the Director in his discretion directs recovery."

Since the remand here we have dealt with the matter at length in Howard v. Board of Review , 173 N.J. Super. 196 (1980), and that determination is conclusively instructive here.

The determinations respecting the timeliness of the Xerox appeal and the disqualification of appellant are affirmed. The determination of liability for a refund is set aside without prejudice and the statement expressing that conclusion in the decision of the Board is exscinded. The matter is remanded to the Director of the Division of Unemployment and Temporary Disability Insurance for such further proceedings as he deems appropriate. We do not retain jurisdiction.

19800513


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