NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4029-21
MARCO DIGIOVANNI,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR
and PANERA, LLC,
Respondents.
_________________________
Submitted February 5, 2024 – Decided April 11, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the Board of Review, Division of
Unemployment Insurance, Department of Labor and
Workforce Development, Docket No. 253256.
Marco DiGiovanni, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent Board of Review, Department of Labor
(Janet Greenberg Cohen, Assistant Attorney General,
of counsel; Ian Michael Fiedler, Deputy Attorney
General, on the brief).
PER CURIAM
Claimant Marco DiGiovanni appeals from a final agency decision by the
Board of Review (the Board), which determined that he was ineligible for
unemployment benefits because he had left work voluntarily without good cause
attributed to such work and was liable to refund the benefits he had received.
Discerning nothing arbitrary, capricious, or unreasonable in the Board's
decision, we affirm.
I.
In 2019 and early 2020, DiGiovanni resided in a halfway house under the
supervision of the Department of Corrections (the DOC). Through a work
release program administered by the DOC, DiGiovanni had been employed by
Panera, LLC (Panera) at a store located in Princeton. DiGiovanni worked at
Panera from June 26, 2019, to January 28, 2020. At the end of January 2020,
DiGiovanni was released from the halfway house, and he moved in with his
sister in a town approximately forty miles away from Princeton.
In March 2020, DiGiovanni filed a claim for unemployment
compensation, and he received benefits at the rate of $163 per week for the
weeks ending March 21, 2020, through April 10, 2021. In May 2021, a deputy
of the Division of Unemployment Insurance determined that DiGiovanni was
A-4029-21
2
not entitled to benefits because he had left work voluntarily when he had moved
out of the area. Accordingly, DiGiovanni was notified of the determination and
was directed to refund the $9,128 he had received in benefits.
DiGiovanni administratively appealed, and an Appeal Tribunal (the
Tribunal) conducted a hearing on July 27, 2021. At that hearing, DiGiovanni
and a representative from Panera testified. The Panera representative testified
that DiGiovanni had provided two weeks' notice to Panera in January 2020,
identifying January 28, 2020, as his final day of employment. DiGiovanni had
told Panera that he would be released from the halfway house program, he was
moving out of the area, and he would not be able to commute to the Princeton
location.
DiGiovanni did not ask Panera if he could continue to work after leaving
the halfway house. Nor did he request to work at a different Panera location.
The representative from Panera testified that had DiGiovanni made those
requests, Panera would have continued to employ him and would have
investigated having him work at a location closer to where he would be living.
Based on that testimony, the Tribunal found that DiGiovanni was
disqualified from receiving unemployment benefits under N.J.S.A. 43:21 -5(a)
because he had left work voluntarily without good cause attributed to the work.
A-4029-21
3
The Tribunal also affirmed the determination that DiGiovanni was liable to
refund the $9,128 in accordance with N.J.S.A. 43:21-16(d).
DiGiovanni appealed that decision to the Board. On July 28, 2022, the
Board issued a decision affirming the Tribunal's determinations. DiGiovanni
now appeals from that final agency decision.
II.
On this appeal, DiGiovanni argues that the Board's decision
misinterpreted and overlooked certain facts and failed to consider the totality of
his circumstances. He also argues that the Board ignored one of the Board's own
regulations concerning overpayment of benefits. Having considered these
arguments in light of the record and law, we discern no basis to reverse the
Board's decision.
Our scope of review of an agency determination is limited. D.C. v. Div.
of Med. Assistance & Health Servs., 464 N.J. Super. 343, 352 (App. Div. 2020).
The agency's decision may not be disturbed unless shown to be arbitrary,
capricious, unreasonable, or unsupported by substantial, credible evidence in the
record. Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Super. 147, 155-56 (App.
Div. 2022). We afford "[w]ide discretion . . . to administrative decisions because
A-4029-21
4
of an agency's specialized knowledge." In re Request to Modify Prison
Sentences, 242 N.J. 357, 390 (2020).
The relevant statute provides that an individual shall be disqualified from
receiving unemployment benefits if "the individual has left work voluntarily
without good cause attributable to such work." N.J.S.A. 43:21-5(a). "While the
statute does not define 'good cause,' . . . courts have construed the statute to
mean 'cause sufficient to justify an employee's voluntarily leaving the ranks of
the employed and joining the ranks of the unemployed.'" Domenico v. Bd. of
Rev., Dep't of Lab. & Indus., 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting
Condo v. Bd. of Rev., Dep't of Lab. & Indus., 158 N.J. Super. 172, 174 (App.
Div. 1978)).
The test for determining whether an employee's decision to leave work
constitutes "good cause" is one of "ordinary common sense and prudence ."
Brady v. Bd. of Rev., 152 N.J. 197, 214 (1997) (quoting Zielenski v. Bd. of Rev.,
85 N.J. Super. 46, 52 (App. Div. 1964)). The employee's decision to quit "must
be compelled by real, substantial and reasonable circumstances[,] not imaginary,
trifling and whimsical ones." Ibid. (quoting Domenico, 192 N.J. Super. at 288).
"A claimant has the 'responsibility to do whatever is necessary and reasonable
A-4029-21
5
in order to remain employed.'" Ibid. (quoting Heulitt v. Bd. of Rev., Dep't of
Lab., 300 N.J. Super. 407, 414 (App. Div. 1997)).
Based on the testimony at the hearing, the Tribunal and Board found that
DiGiovanni had voluntarily resigned from Panera. The representative from
Panera testified that the company did not end DiGiovanni's employment when
he completed his work release program. Instead, the representative testified that
DiGiovanni could have continued to work for Panera and Panera would have
even accommodated him by allowing him to work at a different location closer
to where he was going to be living. DiGiovanni acknowledged in his testimony
that he did not attempt to maintain his employment with Panera and did not
inquire about the availability of continued work or a position at a new location.
Accordingly, the record supports the finding that DiGiovanni left Panera
because of his housing and transportation issues and that those were personal
issues that did not constitute good cause for leaving work. See Roche v. Bd. of
Rev., 156 N.J. Super. 63, 65 (App. Div. 1978) (explaining that an employee who
leaves work because he or she found a different place to live is disqualified from
unemployment compensation); White v. Bd. of Rev., 146 N.J. Super. 268, 269-
70 (explaining that commuting issues are generally not considered good cause,
and holding that an employee who left her job after her work release program
A-4029-21
6
ended because she moved too far from her former employer to commute was not
entitled to unemployment benefits); N.J.A.C. 12:17-9.1(e) (stating that
individuals who leave employment because of lack of transportation or
relocating to another area are considered to have left work voluntarily).
DiGiovanni argues that the Board erred in not considering the totality of
his circumstances, and he cites to the New Jersey Supreme Court decision in
Haley v. Board of Review, Department of Labor, 245 N.J. 511 (2021). In Haley,
the employee was arrested and detained pretrial. Id. at 515. Haley's mother
contacted the employer and requested that his position remain open while he
contested the charges, but the employer refused and terminated his employment.
Ibid. Approximately two months after his arrest, all charges against Haley were
dismissed and he was released from detention. Ibid. Haley applied for
unemployment benefits, but his application was rejected. Id. at 515-16. The
Tribunal, Board, and Appellate Division affirmed. Id. at 516.
The Supreme Court reversed and remanded the Board's decision and held
that "pretrial detention is not an absolute bar to receiving unemployment
compensation benefits for the time following dismissal of the charges and
release from detention." Ibid. The Court reasoned that the relevant statute
required the Board to "review the totality of the circumstances surrounding
A-4029-21
7
Haley's detention and release to determine whether he 'left work voluntarily.'"
Ibid.
The facts in Haley are distinguishable from DiGiovanni's circumstances.
DiGiovanni was not physically prevented from going to work, nor did he take
appropriate steps to preserve his employment. Instead, the evidence at the
hearing established that DiGiovanni chose to move in with his sister and did not
want to commute to Princeton to continue work with Panera. Therefore, the
Board appropriately considered the totality of the circumstances involving
DiGiovanni.
Under N.J.S.A. 43:21-16(d), a claimant must refund benefits to the
Unemployment Compensation Fund if there is a determination that the claimant
was not entitled to receive those benefits. In that regard, the statute directs that
"[w]hen it is determined . . . that any person, . . . for any . . . reason, has received
any sum as benefits . . . while otherwise not entitled to receive such sum as
benefits, such person . . . shall be liable to repay those benefits in full." N.J.S.A.
43:21-16(d)(1) (2014) (amended 2023). Repayment is required even if the
unemployment benefits were received in good faith. See Fischer v. Bd. of Rev.,
123 N.J. Super. 263, 266 (App. Div. 1973) (holding that a claimant was required
A-4029-21
8
to refund erroneously paid unemployment benefits even though she applied for
them in good faith).
DiGiovanni contends that the Board failed to apply N.J.A.C. 12:17-
14.4(a) to (c), which are regulations that address overpayment of benefits when
the Division of Unemployment Insurance has twice determined that the claimant
was entitled to the benefits. A review of the record on appeal does not establish
that DiGiovanni raised this issue before the Tribunal or the Board. Accordingly,
we decline to review an issue that was not raised with the agency. See In re
Stream Encroachment Permit, 402 N.J. Super. 587, 602 (App. Div. 2008)
(explaining that "[n]ormally, we do not consider issues not raised below at an
administrative hearing").
Affirmed.
A-4029-21
9
Marco Digiovanni v. Board of Review
Combined Opinion