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, Respondent s.

_________________________

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).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 4029

- 21

PER CURIAM Claimant Marco DiGiovanni appeals from a final age ncy decision by the Board of Review (the Board), which determined that he was ineligible for unemployment benefits because he had left work volu ntarily without good cause attributed to such work and was liable to refund th e benefits he had received. Discerning nothing arbitrary, capricious, or unreas onable in the Board's decision, we affirm.
I. In 2019 and early 2020, DiGiovanni resided in a ha lfway house under the supervision of the Department of Corrections (the D OC). Through a work release program administered by the DOC, DiGiovanni had been employed by Panera, LLC (Panera) at a store located in Princeto n. 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 fro m Princeton. In March 2020, DiGiovanni filed a claim for unempl oyment 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 determine d that DiGiovanni was3 A- 4029

- 21

not entitled to benefits because he had left work vo luntarily when he had moved out of the area. Accordingly, DiGiovanni was notified of th e determination and was directed to refund the $9,128 he had received in benefits. DiGiovanni administratively appealed, and an Appea l Tribunal (the Tribunal) conducted a hearing on July 27, 2021. At that hearing, DiGiovanni and a representative from Panera testified. The Pa nera representative testified that DiGiovanni had provided two weeks' notice to P anera in January 202 0, identifying January 28, 2020, as his final day of e mployment. DiGiovanni had told Panera that he would be released from the half way 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 D iGiovanni made those requests, Panera would have continued to employ him and would have investigated having him work at a location closer t o where he would be living. Based on that testimony, the Tribunal found that D iGiovanni was disqualified from receiving unemployment benefits u nder N.J.S.A. 43:21-5(a) because he had left work voluntarily without good c ause attributed to the work.4 A- 4029

- 21

The Tribunal also affirmed the determination that D iGiovanni 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. O n 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 t o consider the totality of his circumstances. He also argues that the Board i gnored one of the Board's own regulations concerning overpayment of benefits. Ha ving considered these arguments in light of the record and law, we discer n no basis to reverse the Board's decision. Our scope of review of an agency determination is l imited. 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 s hown to be arbitrary, capricious, unreasonable, or unsupported by substan tial, credible evidence in the record. Sullivan v. Bd. of Rev., Dep't of Lab., 47 1 N.J. Super. 147, 155-56 (App. Div. 2022). We afford "[w]ide discretion . . . to administrative decisions because5 A- 4029

- 21

of an agency's specialized knowledge." In re Reque st to Modify Prison Sentences, 242 N.J. 357, 390 (2020). The relevant statute provides that an individual s hall 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 vol untarily leaving the ranks of the employed and joining the ranks of the unemploye d.'" 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 dec ision 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 dec ision to quit "must be compelled by real, substantial and reasonable ci rcumstances[,] not imaginary, trifling and whimsical ones." Ibid. (quoting Domeni co, 192 N.J. Super. at 288). "A claimant has the 'responsibility to do whatever is necessary and reasonable6 A- 4029

- 21

in order to remain employed.'" Ibid. (quoting Heul itt 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 Tribuna l and Board found that DiGiovanni had voluntarily resigned from Panera. T he representative from Panera testified that the company did not end DiGio vanni's employment when he completed his work release program. Instead, th e 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 D iGiovanni left Panera because of his housing and transportation issues an d that those were personal issues that d id not constitute good cause for leaving work. See Roche v. Bd. of Rev., 156 N.J. Super. 63, 65 (App. Div. 1978) (expl aining that an employee who leaves work because h e or she found a different place to live is disqualif ied from unemployment compensation); White v. Bd. of Rev., 1 46 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 program7 A- 4029

- 21

ended because she moved too far from her former emp loyer 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 l eft work voluntarily). DiGiovanni argues that the Board erred in not cons idering the totality of his circumstances, and he cites to the New Jersey S upreme 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 posit ion remain open while he contested the charges, but the employer refused and terminated his employment. Ibid. Approximately two months after his arrest, all charge s against Haley were dismissed and he was released from detention. Ibid

. Haley applied for unemployment benefits, but his application was reje cted. 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 dismis sal of the charges and release from detention. " Ibid. The Court reasoned that the relevant statute required the Board to "review the totality of the c ircumstances surrounding8 A- 4029

- 21

Haley's detention and release to determine whether he 'left work voluntarily.'" Ibid. The facts in Haley are distinguishable from DiGiov anni's circumstances. DiGiovanni was not physically prevented from going to work, nor did he take appropriate steps to preserve his employment. Inst ead, 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 determinatio n that the claimant was not entitled to receive those benefits. In tha t 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 entit led to receive such sum as benefits, such person . . . shall be liable to repa y 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 required9 A- 4029

- 21

to refund erroneously paid unemployment benefits ev en 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 overpaymen t of benefits when the Division of Unemployment Insurance has twice de termined that the claimant was entitled to the benefits. A review of the record on app eal does not establish that DiGiovanni raised this issue before the Tribun al or the Board. Accordingly, we decline to review an issue that was not raised w ith the agency. See In re Stream Encroachment Permit, 402 N.J. Super. 587, 60 2 (App. Div. 2008) (explaining that "[n]ormally, we do not consider is sues not raised below at an administrative hearing"). Affirmed.