Tricarico v. Board of Review
| Decision Date | 23 January 1997 |
| Citation | 147 N.J. 581,689 A.2d 124 |
| Parties | Catherine TRICARICO, Claimant-Appellant, v. BOARD OF REVIEW, Respondent-Respondent. |
| Court | New Jersey Supreme Court |
This matter having been duly considered and the Court having determined that certification was improvidently granted;
It is ORDERED that the within appeal be and hereby is dismissed.
Only on the rarest occasions in recent years have any members of this Court dissented from orders vacating certification as improvidently granted. See Fox v. Woodbridge Township Bd. of Educ., 98 N.J. 513, 516, 488 A.2d 1020 (1985) (Garibaldi, J., dissenting); Mahony v. Danis, 95 N.J. 50, 54, 469 A.2d 31 (1983) (Schreiber, J., dissenting). I am moved to write separately in this appeal primarily because the pro se litigant whose petition we granted is entitled to a reasoned disposition of the issues she presented. Moreover, I am of the view that the basic issue posed by this appeal presents an unsettled "question of general public importance," and that the interest of justice warrants our review of the matter. See R. 2:12-4.
Preliminarily, I note that petitioner Catherine Tricarico has appeared pro se at every stage of this case, including proceedings before the Department of Labor Appeal Tribunal, the Board of Review, the Appellate Division, and this Court. Petitioner's brief in support of her petition for certification was clear and concise, and sufficiently persuasive to warrant this Court's grant of certification. 143 N.J. 517 (1996).
Pro se arguments by non-lawyers are a rare occurrence in this Court. Although untrained in the law, petitioner argued her appeal before our Court articulately, forcefully, and with unusual poise. From petitioner's perspective, the Court's order stating that certification was improvidently granted lacks any substantive content that clarifies or informs the Court's dismissal of her appeal. For this member, the exceptional quality of petitioner's uncounseled presentation before this Court, combined with the unsettled legal issue raised by her appeal, are reason enough to warrant a disposition on the merits rather than a dismissal without explanation.
Petitioner's appeal presents two issues: first, whether the agency decision that petitioner was not discharged by her employer, St. Joseph's Hospital and Medical Center, (St. Joseph's) on January 14, 1994, when the hospital administrator ordered her to turn in her badge and keys, clean out her desk and leave the hospital was supported by substantial credible evidence in the record; second, if that agency decision was unsupported by the record, was petitioner obligated to return to work when she was invited to do so by the hospital administrator on January 17 and 18, 1994.
The facts may briefly be summarized based on the testimony elicited at the March 30, 1994 hearing before the Department of Labor Appeals Examiner.
Petitioner worked as a secretary at St. Joseph's from October 1989 until January 14, 1994. Although assigned to work with the Chairman of the Department of Orthopedic Surgery, she also assisted other physicians including Dr. Vincent McInerney, who was responsible for preparing the monthly on-call schedule for the emergency room. Petitioner was required to type and distribute the schedule.
On January 14, 1994, plastic surgeon Dr. Michael Baruch complained to petitioner about the tentative February 1994 on-call schedule, stating that he desired to be scheduled more frequently. Petitioner suggested that he call Dr. McInerney. During their ensuing phone conversation, Dr. McInerney asked to speak with petitioner and allegedly spoke abusively to her, criticizing her for not sending out the February schedule. Petitioner terminated the conversation. Dr. McInerney then called Anthony Pecci, the hospital's Administrative Director of Clinical Services, and complained about petitioner.
Pecci's secretary then informed petitioner that Pecci wanted to see her in his office, but petitioner stated that she had to leave the hospital to take her husband to see his cardiologist. As she was about to leave, Pecci appeared at her office door. According to petitioner's testimony, Pecci criticized her for speaking disrespectfully to Dr. McInerney and petitioner responded by stating: "He can't speak to me the way he did." Pecci replied:
Petitioner testified that she concluded that she had been discharged. She proceeded to clean out her desk and pack her personal belongings. On her way out of the hospital, one of the nurses was concerned about petitioner's flushed appearance and insisted on checking her blood pressure.
Pecci's testimony confirmed his encounter with petitioner and his demand for her badge and keys. He stated that in ordering petitioner to leave he said, "Don't come back here until I contact you." He testified that he had not discharged petitioner, but simply wanted her out of the hospital while he conducted an investigation.
The other evidence adduced at the hearing pertinent to the discharge issue was a letter from Dr. Michael Baruch, the plastic surgeon whose inquiry about the February on-call schedule had precipitated the disagreement between petitioner and Dr. McInerney. Baruch's letter stated that during the evening of January 14, 1994, Dr. Massoud, an orthopedic resident, informed Baruch that he overheard Pecci fire petitioner, and that two other orthopedists had also overheard Pecci's statements to petitioner. According to Baruch, he telephoned Pecci that evening to request that petitioner be reinstated. Pecci refused, stating that Dr. McInerney and Dr. Ghodabi, petitioner's immediate supervisor, did not want petitioner to work at St. Joseph's any longer.
I note that neither Dr. Baruch nor Dr. Massoud were called as witnesses by petitioner. The statements in Dr. Baruch's letter imply that both physicians, if called to testify, would directly have contradicted Pecci's testimony that he did not discharge petitioner during their conversation on January 14th. Because their testimony would likely have resolved the dispute about the discharge issue, I assume that the Appeals Examiner did not inform petitioner that the applicable regulation permits witnesses for good cause to testify by telephone at Appeal Tribunal hearings. See N.J.A.C. 1:12-14.5. We previously have noted in analogous circumstances that the agency has a duty to see to it that available evidence is presented. See Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 460, 100 A.2d 277 (1953) ().
On Monday, January 19th, petitioner went to the hospital's personnel office. Peter Hill, a personnel office employee, informed petitioner that an administrator had the power to fire an employee "on the spot." Petitioner testified that Hill appeared to assume that she had been discharged.
Later that day petitioner received a message on her answering machine from Pecci requesting that she return to work. Pecci telephoned again the following day. According to petitioner, Pecci said that he had overreacted on Friday and would like her to come back to work. Petitioner replied: "Mr. Pecci, I am so upset, so humiliated, so embarrassed, that I don't think I could work in an atmosphere like that."
That same week petitioner filed a claim for unemployment benefits. A Deputy Director of the Division of Unemployment and Disability Insurance concluded that petitioner had been discharged and qualified for benefits.
The Appeal Tribunal reversed. It reasoned:
Although the claimant may have assumed she was discharged, she was, in fact, merely sent home from work remaining attached to the employer pending an investigation of the incident in question.... It must be concluded therefore that the claimant was never discharged nor did the employer have any intent to terminate her on 01/14/94 when she was told to go home. Accordingly, the Appeal Tribunal concluded that petitioner left work voluntarily without good cause, see N.J.S.A. 43:21-5(a), and was therefore disqualified from receiving unemployment benefits.
The Board of Review affirmed on the basis of the Appeal Tribunal's decision. The Appellate Division affirmed in an unreported opinion.
The...
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