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Tricarico v. Board of Review

January 23, 1997


Stein, J., Dissenting. Justice O'Hern joins in this Dissent.


This matter having been duly considered and the Court having determined that certification was improvidently granted;

It is ORDERED that the within appeal be and hereby is dismissed.

WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at Trenton, this 23rd day of January, 1997.

STEIN, J., Dissenting.

Only on the rarest occasions in recent years have any members of this Court Dissented from orders vacating certification as improvidently granted. See Fox v. Woodbridge Township Bd. of Educ., 98 N.J. 513, 516, 488 A.2d 1020 (1985) (Garibaldi, J., Dissenting); Mahony v. Danis, 95 N.J. 50, 54, 469 A.2d 31 (1983) (Schreiber, J., Dissenting). I am moved to write separately in this appeal primarily because the pro se litigant whose petition we granted is entitled to a reasoned Disposition of the issues she presented. Moreover, I am of the view that the basic issue posed by this appeal presents an unsettled "question of general public importance," and that the interest of Justice warrants our review of the matter. See R. 2:12-4.

Preliminarily, I note that petitioner Catherine Tricarico has appeared pro se at every stage of this case, including proceedings before the Department of Labor Appeal Tribunal, the Board of Review, the Appellate Division, and this Court. Petitioner's brief in support of her petition for certification was clear and concise, and sufficiently persuasive to warrant this Court's grant of certification. 143 N.J. 517 (1996).

Pro se arguments by non-lawyers are a rare occurrence in this Court. Although untrained in the law, petitioner argued her appeal before our Court articulately, forcefully, and with unusual poise. From petitioner's perspective, the Court's order stating that certification was improvidently granted lacks any substantive content that clarifies or informs the Court's dismissal of her appeal. For this member, the exceptional quality of petitioner's uncounseled presentation before this Court, combined with the unsettled legal issue raised by her appeal, are reason enough to warrant a Disposition on the merits rather than a dismissal without explanation.


Petitioner's appeal presents two issues: first, whether the agency decision that petitioner was not discharged by her employer, St. Joseph's Hospital and Medical Center, (St. Joseph's) on January 14, 1994, when the hospital administrator ordered her to turn in her badge and keys, clean out her desk and leave the hospital was supported by substantial credible evidence in the record; second, if that agency decision was unsupported by the record, was petitioner obligated to return to work when she was invited to do so by the hospital administrator on January 17 and 18, 1994.

The facts may briefly be summarized based on the testimony elicited at the March 30, 1994 hearing before the Department of Labor Appeals Examiner.

Petitioner worked as a secretary at St. Joseph's from October 1989 until January 14, 1994. Although assigned to work with the Chairman of the Department of Orthopedic Surgery, she also assisted other physicians including Dr. Vincent McInerney, who was responsible for preparing the monthly on-call schedule for the emergency room. Petitioner was required to type and distribute the schedule.

On January 14, 1994, plastic surgeon Dr. Michael Baruch complained to petitioner about the tentative February 1994 on-call schedule, stating that he desired to be scheduled more frequently. Petitioner suggested that he call Dr. McInerney. During their ensuing phone conversation, Dr. McInerney asked to speak with petitioner and allegedly spoke abusively to her, criticizing her for not sending out the February schedule. Petitioner terminated the conversation. Dr. McInerney then called Anthony Pecci, the hospital's Administrative Director of Clinical Services, and complained about petitioner.

Pecci's secretary then informed petitioner that Pecci wanted to see her in his office, but petitioner stated that she had to leave the hospital to take her husband to see his cardiologist. As she was about to leave, Pecci appeared at her office door. According to petitioner's testimony, Pecci criticized her for speaking disrespectfully to Dr. McInerney and petitioner responded by stating: "He can't speak to me the way he ...

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