Von Ouhl v. Board of Review
Von Ouhl v. Board of Review
Opinion of the Court
The opinion of the court was delivered by
Appellant held two part time jobs, one as an animal holder for the Bergenfield Animal Clinic and the other as a substitute teacher for the Fairview Board of Education. On July 2, 1990, the Bergenfield Animal Hospital terminated her employment. As a result, appellant applied for and began receiving unemployment compensation benefits.
On September 11, 1990, a Deputy Director of the Division of Unemployment and Disability Insurance sent appellant three separate determinations. One notified her that she was ineligible for benefits from July 29, 1990 to August 4, 1990, because she had failed to report to the local unemployment compensation office on August 3, 1990. The second stated that she was ineligible for benefits commencing July 15, 1990 because she was an employee of an educational institution who was claiming benefits for a period between academic years even though she had reasonable assurance of performing services the following year. The third stated that appellant was disqualified for benefits commencing July 1, 1990, because she had quit her job voluntarily without good cause attributable to the work.
Appellant filed a timely appeal to the Board of Review limited to the Appeal Tribunal’s determination that she was ineligible for benefits from July 15, 1990 to September 1, 1990. Her letter initiating the appeal stated:
I am appealing determination of the finding against me from July 15, 1990 to Sept. 1, 1990. R.S. 43:21-4(g)(l).
I am only on a list for calling in; not employed nor contracted with an education institution. I also did not have a reasonable assurance I would be put back on the same list. Due to the nature of the work, being a substitute it is never assured there will be work.
It is October 24 and as yet I have not been called in to work, as an example of the inconsistency.
The Bergenfield Animal Hospital failed to appeal from the Appeal Tribunal’s determination that appellant did not voluntarily quit and thus was not disqualified pursuant to N.J.S.A. 43:21-5(a). Furthermore, the Board of Review did not under: take to review this decision on its own motion within the ten day period allowed by N.J.S.A. 43:21-6(c).
Notwithstanding the limited scope of appellant’s appeal, the Board reviewed the Appeal Tribunal’s determination that she had not voluntarily quit her job and reversed that determination. Accordingly, the Board decided that appellant was liable for a refund of all the benefits she had received.
N.J.S.A. 43:21-6(c) provides that a decision of an Appeal Tribunal “shall be deemed to be the final decision of the board of review, unless within 10 days after the date of notification or mailing of such decision, further appeal is initiated pursuant to subsection (e) of this section.” N.J.S.A. 43:21-6(e) authorizes appeals to the Board of Review by interested parties and further provides that the Board “may on its own motion affirm, modify or set aside any decision of an appeal tribunal.” These statutory provisions are implemented by N.J.A.C. 12:20-4.3(a), which provides that “[n]otice of appeal shall be filed within ten calendar days after the date of notification or mailing of the decision which is being appealed” and N.J.A.C. 12:20-4.5(a), which provides that “[wjithin the legal time limit for appeal following a decision by an appeal tribunal and in the absence of the filing by any of the parties to the decision of the appeal tribunal of a notice of appeal, the Board of Review, on its own motion, may withdraw such decision to itself.” When the Board of Review decides to review a decision of an Appeal Tribunal, it must act within the ten day period provided by N.J.S.A. 43:21-6(c). Kaske v. State of N.J., Bd. of Review, 34 N.J.Super. 222, 225-26, 111 A.2d 915 (App.Div. 1955). If a review of an Appeal Tribunal’s decision is not initiated by either an interested party or the Board of Review within the ten day period, the decision becomes “final” and is not subject to review except upon a showing of fraud or other fundamental defect in the proceedings. Ibid.
There is nothing in the enabling legislation governing the Board of Review or its implementing regulations which indicates that an appeal of one part of an Appeal Tribunal’s decision automatically subjects every other part of the decision to the Board’s review. Furthermore, nothing in the Appeal Tribunal’s opinion or the document transmitting the opinion to appellant warned her that an appeal by her from one part of the decision could trigger the Board’s review of other parts.
This case is distinguishable from Charles Headwear, Inc. v. Board of Review, 11 N.J.Super. 321, 78 A.2d 306 (App.Div. 1951), in which an Appeal Tribunal found the claimant ineligible for benefits during two separate periods of time and the Board of Review reviewed both determinations even though the claimant’s notice of appeal challenged only one. In Charles Head-wear the merits of both determinations were fully litigated in an evidentiary hearing before the Board of Review without objection by the employer. Consequently, the Board could have considered the employee’s notice of appeal amended accordingly. Cf. Hopkins v. Board of Review, 249 N.J.Super. 84, 89-90, 591 A.2d 1371 (App.Div. 1991). In contrast, the first notice appellant received that the Board was reviewing the part of the Appeal Tribunal’s decision which was favorable to her was when she received the Board’s final decision, whereupon she promptly objected by means of a motion for reconsideration. Finally, although we have no quarrel with the result in Charles Headwear, we disagree with the part of the opinion which indicates that an appeal to the Board of Review from any part of an Appeal Tribunal’s decision confers jurisdiction upon the Board to review any other part. 11 N.J.Super. at 328, 78 A.2d 306; compare Ludwigsen v. New Jersey, 12 N.J. 64, 70, 95 A.2d 707 (1953) (holding that the Board may determine a claimant’s eligibility on a different basis than the one mentioned in an employer’s notice of appeal).
After appellant filed her notice of appeal, the agency prepared a document which stated, among other things, that "[a] hearing will be scheduled which will cover the determination appealed, and may include any other matters
Reference
- Full Case Name
- TAMARA VON OUHL v. BOARD OF REVIEW
- Cited By
- 4 cases
- Status
- Published