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). 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-4029-21

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 
3 A-4029-21

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. 
4 A-4029-21

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 
5 A-4029-21

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 
6 A-4029-21

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 
7 A-4029-21

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 
8 A-4029-21

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 
9 A-4029-21

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.