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Agresta v. Board of Review

Decided: April 5, 1989.

THOMAS S. AGRESTA, APPELLANT,
v.
BOARD OF REVIEW, NEW JERSEY DEPARTMENT OF LABOR, AND 3M COMPANY, RESPONDENTS



On appeal from final decision of the Board of Review, New Jersey Department of Labor.

Pressler, O'Brien and Stern. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

Thomas S. Agresta (claimant) appeals from a decision of the Board of Review affirming a decision of the Appeal Tribunal. We reverse and remand.

After 19 years of employment, claimant lost his position as an engineer with 3M Company*fn1 due to a plant closing. Claimant began receiving unemployment benefits on April 27, 1986. He moved to New York State in May 1986 where he applied for and received out-of-state benefits. See N.J.S.A. 43:21-21. When his base unemployment benefits ended in November 1986, he applied for benefits as a Trade Readjustment Allowance

(TRA).*fn2 Claimant was granted TRA benefits which he received from December 6, 1986 through April 25, 1987.

Since claimant was unable to find a full-time engineering position, he took courses and obtained a real estate license and accepted a position in December 1986 as a part-time real estate salesman on a commission only basis. According to claimant, before beginning this part-time employment, he inquired as to how to handle this in relation to his unemployment benefits. First he inquired of the New York State Unemployment Office which referred him to the New Jersey office. Plaintiff alleges he spoke to someone in the New Jersey office on the telephone and was advised that he should simply report that he was doing part-time real estate sales work and the amount of money he earned in that capacity, which he did.

In April 1987 claimant was told to submit a new claim which was ultimately rejected pursuant to N.J.S.A. 43:21-4(c) on the ground that he was unavailable for work because he was employed as a commissioned real estate salesman. This determination by the deputy was originally mailed on July 7, 1987, but a corrected determination was mailed on July 8, 1987 changing the language from "a real estate agent" to "a commissioned real estate salesman." Claimant does not deny receipt of this notice of determination, nor that he did not appeal from it. At that time claimant concluded he would not appeal since he only had a couple of weeks of remaining eligibility.

The notice of determination had the following language stamped on it: "You are liable to repay all benefits received during the above period of ineligibility/disqualification." The claimant notes this stamp was "smeared and poorly stamped."

Thereafter claimant received a "request for refund of unemployment or disability benefits" mailed on September 14, 1987, seeking repayment of $4,494 for the period December 6, 1986 to April 25, 1987. On the reverse side is shown a schedule of overpayments, noting that claimant did not earn any wages during the period in question. This form contains the following language:

7. ANY APPEAL FROM THIS REQUEST MUST BE IN WRITING AND MUST BE RECEIVED OR POSTMARKED WITHIN TEN DAYS FROM THE DATE OF MAILING OF THIS NOTICE. THIS MAY BE DONE IN PERSON AT THE UNEMPLOYMENT INSURANCE CLAIMS OFFICE NEAREST YOUR RESIDENCE, OR BY MAIL TO THE ABOVE ADDRESS, ATTENTION APPEAL TRIBUNAL. PLEASE KEEP THE ENVELOPE IN WHICH THIS DETERMINATION WAS RECEIVED AND BRING BOTH WITH YOU TO ANY HEARING RESULTING FROM SUCH APPEAL. IF YOU DO NOT APPEAL WITHIN TEN DAYS, THE DETERMINATION REQUEST FOR REFUND COVERED BY THIS NOTICE WILL BECOME FINAL.

On September 24, 1987, plaintiff appealed by letter in which he noted he was told simply to report the information that he was working as a part-time "commission only" real estate sales agent, and that he "started as a part-time 'commission only' sales agent." He reported every two weeks that he received ...


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