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Jasinski v. Board of Review


October 15, 2010


On appeal from a Final Agency Decision of the Board of Review, Department of Labor, Docket No. 45,270.

Per curiam.


Submitted September 29, 2010

Before Judges R. B. Coleman and J. N. Harris.

This appeal involves unemployment benefits that were paid in 2003 and 2004. Appellant Annmarie Jasinski Caporellie appeals from a final decision of the Board of Review (Board) entered on August 11, 2009, which determined appellant's liability to refund $15,093 in unemployment benefits that the Board determined she was ineligible to receive six years earlier. Because appellant timely sought to appeal her eligibility for those benefits but never was afforded that opportunity by the New Jersey Department of Labor, we vacate the decision of the Board and remand this matter for an entirely new hearing before the Appeal Tribunal that will determine whether appellant was eligible for unemployment benefits.


Appellant was employed by Dotcom Distribution (Dotcom) prior to May 1, 2003. The actual duration of her employment is not disclosed in the record. From what we can cobble together, on April 30, 2003, appellant either was fired or resigned from Dotcom due to personal problems. On May 4, 2003, appellant filed her initial claim for unemployment benefits.

After a fact-finding interview, appellant was found disqualified for unemployment benefits on the ground that she had left work without good cause attributable to the work.

Appellant sought review of that decision in a timely fashion with the Appeal Tribunal. On August 18, 2003, the Appeal Tribunal reversed the initial determination of disqualification. Dotcom appealed from that decision to the Board. On October 31, 2003, the Board remanded the matter to the Appeal Tribunal for a new hearing and decision.

This agency-ordered remand resulted in the Appeal Tribunal affirming the original determination of disqualification. It was now appellant who appealed to the Board. On May 14, 2004, a hearing of some type was conducted that is not explained in the record, and on June 2, 2004, the Board held that appellant was disqualified for benefits and referred the question of the potential refund of benefits received by appellant to the Director, Division of Unemployment Benefits (Director).

Two days later, on June 4, 2004, the Director issued a determination that appellant -- who was paid unemployment benefits in the amount of $15,093 for weeks ending May 10, 2003 through June 14, 2003 and from July 27, 2003 through March 31, 2004 -- refund those benefits. Appellant appealed from the Director's request for repayment, and on October 26, 2004, the Appeal Tribunal affirmed the determination and held appellant liable to refund $15,093. Appellant's appeal to the Board resulted in a slight modification of the weeks of ineligibility, but otherwise the Board's December 17, 2004, determination affirmed the Appeal Tribunal's finding that appellant was liable to refund $15,093.

Appellant's first appeal to this court was timely filed in January 2005. The pro se notice of appeal sought review of "the decision of the Board of Review dated [December 17, 2004]." In a letter received in this court on January 25, 2005, appellant stated, "I still maintain that I was discharged from the position on April 30th 2003."

The Board filed a motion a few months later, in June 2005, seeking a remand to the Board for a full hearing and redetermination because "the Board is unable to locate either the file or the tape of the Appeal Tribunal hearing in this case." In explaining the nature of the appeal that this motion was related to, the Board's moving papers referred to both aspects of appellant's grievance:

This appeal is from a Board of Review decision affirming the Appeal Tribunal's decision finding [a]ppellant ineligible for unemployment benefits and finding her liable for a refund of benefits paid.

Appellant objected to the request for a remand, noting that there had already been "four hearings held via telephone." This objection explicitly referred to several of the hearings at which appellant's eligibility, not just her liability to pay a refund, was in issue. After considering the moving papers and the opposition, we granted the motion and remanded the matter on July 21, 2005. We did not retain jurisdiction.

Inexplicably, more than one year passed before the Board, pursuant to its own request for a remand, referred the matter to the Appeal Tribunal for a hearing. On September 6, 2006, the Board determined that appellant's appeal would be heard by the Appeal Tribunal, but only for "a new decision on holding the claimant liable for refund in the sum of $15,093." The Appeal Tribunal scheduled a hearing for September 21, 2006, but appellant was unable to attend. On that date, the Appeal Tribunal dismissed appellant's appeal without prejudice, permitting its reopening within 180 days of the decision. Unfortunately, the written memorialization of the Appeal Tribunal's decision was not mailed to appellant; instead, it was incorrectly addressed to "Neptune UI, 60 Taylor Ave., Neptune, NJ 07753," which is a local unemployment office, not appellant's mailing address.

Nothing further happened in this dispute for another two years, until November 2008, when appellant applied for unrelated unemployment benefits and was advised that one-half of her weekly benefit would be withheld for repayment of the outstanding $15,093 obligation. This garnishment triggered renewed interest in the matter and the Board reopened the proceedings, set aside its prior decision, and remanded the matter to the Appeal Tribunal for a new hearing and decision.

On May 6, 2009, the Appeal Tribunal took up the remand and issued a decision declaring, "[t]his Tribunal does not have authority to review whether the claimant should be disqualified for benefits but rather only whether she should refund benefits paid." Its rationale for this truncated ruling was based upon appellant's putative failure to timely appeal to this court the eligibility determination of June 2004 and the Appeal Tribunal's crabbed view that the January 2005 appeal was limited to the question of repayment of benefits only.

Appellant immediately took issue with this narrow approach and sought review by the Board. On August 11, 2009, the Board affirmed the Appeal Tribunal, holding:

On the basis of the record below, we agree with the decision reached. This case deals only with the matter of the claimant's liability for a refund. If the claimant wishes to protest the disqualification for benefits which caused the refund, she must appeal to the court and request that it review the merits of the case.

This appeal followed.


A determination of an appellate court in an appeal from a state agency defines the scope of the remand by the administrative agency. Trantino v. N.J. State Parole Bd., 331 N.J. Super. 572, 606 (App. Div. 2000), aff'd 166 N.J. 113 (2001); In re Application of Plainfield-Union Water Co., 14 N.J. 296 (1954); State ex rel. J.M., 222 N.J. Super. 597, 600 (1988) (noting the obligation of a lower court to adhere to and not to deviate from the mandate of higher court). From our close review of the record, we believe that the Board failed to follow the logical consequence of its own motion, and more importantly, the import of our order of July 21, 2005, for a "final remand," by too narrowly treating appellant's appeal as limited to the refund issue.

Clearly, appellant sought appellate review of the determination that she was disqualified from unemployment benefits. However, it is undeniably true that she did not appeal immediately following the Board's June 2, 2004, finding of disqualification and its reference of the refund issue to the Director. Nevertheless, both she and the Board -- at least as reflected in the Board's motion for remand to this court in 2005 -- considered the January 2005 appeal as encompassing the two material issues: (1) eligibility for unemployment benefits and (2) liability for repayment of disqualified unemployment benefits. In reality, the Board's June 2, 2004, disqualification determination was an interlocutory decision, because by contemporaneously referring the question of a refund to the Director, that determination arguably did not resolve all issues as to all parties. In order to be eligible for appeal as a final judgment, the order must be final as to all parties and as to all issues. Mango v. Pierce-Coombs, 370 N.J. Super. 239, 245 n.1 (App. Div. 2004); Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). Accordingly, it was both reasonable and appropriate for appellant to have delayed filing her ultimate appeal to this court until after the refund issue was finally adjudicated by the agency in 2005.

Our order remanding the matter in that year fully comprehended that appellant was seeking review of both the eligibility and the refund liability issues. We view the Board's constricted interpretation of that order as unnecessarily harsh. Appellant has never had her day in our court on the question of her entitlement to unemployment benefits. She is entitled to our consideration, but it must be based upon a full and appropriate record, which does not exist.

In order to put this case to rest, we vacate the Board's August 11, 2009 decision -- together with all other decisions regarding this matter by the Board and the Appeal Tribunal -- and remand the entire matter to the Appeal Tribunal for an entirely new hearing on appellant's eligibility for unemployment benefits in 2003 and 2004. The Appeal Tribunal shall also, depending upon its decision regarding eligibility, determine appellant's liability for repayment of unemployment benefits, if any. The usual right to appeal an adverse decision of the Appeal Tribunal to the Board, as well as further appellate rights thereafter, are preserved to all interested parties. The Appeal Tribunal shall complete its review and render its determination no later than sixty days following the date we have decided this appeal. We do not retain jurisdiction.

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