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Bocchino v. Board of Review

Decided: July 1, 1985.

DANNY BOCCHINO, PETITIONER-APPELLANT,
v.
BOARD OF REVIEW AND HUDSON COUNTY ACCOUNTS AND CONTROLS, RESPONDENTS-RESPONDENTS



On appeal from the Department of Labor, Board of Review.

Pressler and Cohen. The opinion of the court was delivered by Richard S. Cohen, J.A.D.

Cohen

Danny Bocchino received unemployment compensation benefits totalling $1536 for a 12 week period ending February 27, 1983. After he had received the payments, it was ultimately decided that he was not entitled to them, and he was ordered to repay them. Bocchino appealed to this court. He does not challenge the determination that he was not entitled to benefits, but he contends that he is excused by the statute from repayment. We disagree and affirm.

The statutory provision which Bocchino invokes is N.J.S.A. 43:21-6(b)(1). It is part of a lengthy section outlining the procedures for making and processing claims for unemployment compensation benefits, for the determination by a deputy whether a claimant is "eligible" for benefits, N.J.S.A. 43-21-4,

and whether the claimant is "disqualified" from receiving benefits. N.J.S.A. 43:21-5. Appeals from the deputy's determination may be made to an appeal tribunal and ultimately to the board of review.

N.J.S.A. 43:21-6(b)(1) says, in pertinent part:

The provision uses neither the term "eligible" nor the term "disqualified," but the broader "determinations of entitlement." We construe that to mean determinations that a claimant is both eligible and not disqualified.

The usual situation contemplated by the quoted language is a determination of entitlement made by the deputy and affirmed by the appeal tribunal. In that situation, the language says, repayment will not follow subsequent reversal by the board of review or by this court. The statute does not make the reason clear, and we are not aware of any legislative history. The purpose seems to be to relieve a claimant who, in good faith, accepts and spends benefits sanctioned by two different administrative tribunals and who should, therefore, not have repayment added to the already heavy burden of unemployment. Because the two-determination rule rests on the concurrence of two tribunals on the matter of entitlement, their determinations must be independent and must encompass both essential factors of eligibility and nondisqualification.

The procedural course of Bocchino's claim was a complex one. The board of review argues before us that there were not two complete and independent determinations of entitlement. We agree. The chronology was in these steps:

(1) On December 22, 1982, a deputy held Bocchino eligible but disqualified for benefits.

(2) On January 20, 1983, the appeal tribunal held that Bocchino was not disqualified and remanded the issue ...


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