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Giesler v. Board of Review

August 25, 1998

FRANCIS GIESLER, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, RESPONDENT-RESPONDENT, AND BELL ATLANTIC NEW JERSEY, INC. DEFENDANT.



Before Judges Kleiner and Braithwaite.

The opinion of the court was delivered by: Braithwaite, J.A.D.

[9]    Submitted: August 18, 1998

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

Appellant Francis Giesler was permanently and involuntarily terminated from his employment with Bell Atlantic (Bell) because of "downsizing" on July 15, 1995. He was fifty-nine years of age and had been employed by Bell for thirty-eight years. At the time of termination he "could have retired with full pension rights." He was entitled to receive a monthly pension benefit but instead chose to receive a lump sum benefit that was paid in two installments. In November 1995, he received $245,937.52, and in March 1996, he received the final payment of $62,808.32. The two payments "were sent directly to PaineWebber as an [IRA] rollover." Bell was the sole contributor to appellant's pension.

Following appellant's termination from Bell, he obtained new employment, but pertinent to this appeal he became unemployed and filed for and received unemployment benefits on two separate occasions. Thereafter, based upon information received, the director of the Division of Unemployment Insurance, citing N.J.S.A. 43:21-5a, determined that appellant had been overpaid because his receipt of the lump sum pension benefits required an offset for both periods that he received unemployment benefits.

On one claim the director reduced appellant's weekly benefit from $362 to $66 due to the receipt of the pension. The second claim was reduced from $354 per week to $122 per week for the same reason. Appellant was also notified that as a result of the offset he was obligated to refund $3,712. See N.J.S.A. 43:21-16(d).

He appealed the determination of the director to the Appeal Tribunal, which affirmed the director's decision. His subsequent appeal to the Board of Review resulted in an affirmance of the Appeal Tribunal.

Appellant now appeals the final decision of the Board and contends:

POINT I

THE APPELLANT NEVER "RECEIVED" PENSION BENEFITS AS WOULD JUSTIFY A REDUCTION IN UNEMPLOYMENT BENEFITS PURSUANT TO N.J.S.A. 43:21-5a AND N.J.A.C. 12:17-11.3. (NOT ARGUED BELOW).

POINT II

THE PHRASE "FULL PENSION RIGHTS" CONTAINED IN N.J.S.A. 43:21-5a IS AMBIGUOUS AND SHOULD BE CONSTRUED IN ACCORDANCE WITH THE LEGISLATURE'S INTENT. (NOT ARGUED BELOW).

We have carefully reviewed the record and, in light of applicable law, conclude that appellant's contentions are clearly without merit. R. 2:11-3(e)(1)(D). We add the following comments. N.J.S.A. 43:21-5a provides in part:

The amount of benefits payable to an individual for any week which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or other similar periodic payment which is based on the previous work of such individual shall be reduced, but not below zero, by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week . . . . This statutory provision provides for a pension offset to reduce ...


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