VINCE DILIBERTO,
Plaintiff-Appellant
vs.
ADMINISTRATOR, O.B.E.S., ET
AL., Defendant-Appellees
No. 57181
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA
COUNTY
1989 Ohio App. LEXIS 2859
July 20, 1989, Decided
CHARACTER OF PROCEEDING: Civil appeal
from Common Pleas Court, No. CV-110148.
COUNSEL
James H. French, Esq., Cleveland, Ohio, For
Plaintiff-Appellee.
Sharon D. Tassie, Esq., Assistant Attorney General of Ohio,
Cleveland, Ohio, For
Defendant-Appellees.
JUDGES
DAVID T. MATIA, PRESIDING JUDGE, and EDWIN T. HOFSTETTER, JUDGE,
CONCURS;* ROBERT B. FORD, JUDGE,* DISSENTS.
OPINION
JOURNAL ENTRY and OPINION
PER
CURIAM:
This is an
accelerated appeal brought pursuant to App. R. 11.1 and Loc. R. 25
of the Court of Appeals of Cuyahoga County. Plaintiff-appellant,
Vince Diliberto, appeals from the judgment of the Court of Common
Pleas of Cuyahoga County which found that the decision of the Board
of Review of the Ohio Bureau of Employment Services, requiring the
repayment of benefits, was lawful, reasonable, and supported by the
manifest weight of the evidence.
On December 19,
1984, the appellant filed an application for the determination of
unemployment benefits with the Ohio Bureau of Employment Services.
In completing the application for unemployment benefits, the
appellant claimed his wife as a dependent spouse and indicated on
the application, through a series of checkmarks in "boxes," that
his spouse had not been "employed within the last ninety days" nor
did she receive "income from any other source during the last
ninety days." Based upon this application, the appellant's claim
for benefits was allowed and paid on the basis of a class "B"
dependency.
On March 3, 1985, a
decision by the Administrator of the Ohio Bureau of Employment
Services, which determined that the appellant had fraudulently
misrepresented the dependency of his wife in the application, was
mailed to the appellant. The decision specifically held that the
appellant had fraudulently misrepresented the employment status of
his wife in that the appellant's spouse was actually employed and
receiving wages in the amount of $ 125 per week as a secretary for
Diliberto Gardening during the ninety days prior to the application
for unemployment benefits. Pursuant to R.C. 4141.29(D)(2)(d), R.C.
4141.35(A)(1) and (A)(3), the appellant's unemployment benefits
were cancelled and the appellant was further ordered to repay to
the Ohio Bureau of Employment Services the sum of $ 1,935.00. Upon
reconsideration, the Administrator affirmed the original order of
benefit cancellation and repayment.
On January 3, 1986,
the appellant filed a notice of appeal to the Unemployment
Compensation Board of Review. Upon hearing, the referee affirmed
the decision of the Administrator. The appellant instituted a
further appeal to the Board of Review of the Ohio Bureau of
Employment Services which was disallowed.
On May 16, 1986,
the appellant filed an appeal from the final order of the Board of
Review of the O.B.E.S. with the Court of Common Pleas of Cuyahoga
County. On January 12, 1989, the trial held that the decision of
the Board of Review of the O.B.E.S. was lawful, reasonable, and
based upon the manifest weight of the evidence.
Thereafter, the
appellant timely brought the instant appeal from the trial court's
affirmance of the Board of Review's decision of fraudulent
misrepresentation and order of repayment.
The appellant's
sole assignment of error is that:
"THE BOARD OF
REVIEW AND THE COMMON PLEAS COURT ERRED IN FINDING THAT VINCE
DILIBERTO THE APPELLANT, FRAUDULENTLY MISREPRESENTED HIS WIFE'S
EMPLOYMENT STATUS, WITH THE OBJECT TO OBTAIN BENEFITS."
This assignment of
error is well taken.
R.C. 4141.28(O),
which sets forth the scope of review to be applied in appeals from
the Board of Review of the O.B.E.S. provides in pertinent part
that:
"If the court finds
that the decision was unlawful, unreasonable, or against the
manifest weight of the evidence, it shall reverse and vacate such
decision or it may modify such decision and enter final judgment in
accordance with such modification; otherwise such court shall
affirm such decision"
Herein, the
appellant argues that the finding of fraud with regard to the claim
of his spouse as a dependent was unlawful unreasonable, and against
the manifest weight of the evidence.
R.C.
4141.29(D)(2)(d), which deals with fraud and unemployment
compensation benefits, provides that:
"(d) He has
knowingly made a false statement or representation or knowingly
failed to report any material fact with the object of obtaining
benefits to which he is not entitled."
A claim of fraud
must consist of the following essential elements:
"(a) a
representation or, where there is a duty to disclose, concealment
of a fact,
"(b) which is
material to the transaction at hand,
"(c) made falsely,
with knowledge of its falsity, or with such utter disregard and
recklessness as to whether it is true or false that knowledge may
be inferred,
"(d) with the
intent of misleading another into relying upon it,
"(e) justifiable
reliance upon the representation or concealment, and
"(f) a resulting
injury proximately caused by the reliance."
Friedland v. Lipman (1980), 68
Ohio App. 2d 255.
In addition, this
court in reviewing the instant appeal is guided by R.C. 4141.46
which requires a liberal construction of R.C. Chapter 4141;
Unemployment Compensation. Cf. Dixon v.
Dixon (1983), 4 Ohio St. 3d 160;
Salzl v. Gibson Greeting Cards
(1980), 61 Ohio St. 2d 35; Vespremi v.
Giles (1980), 68 Ohio App. 2d 91.
A review of the
transcript of March 4, 1986 fails to disclose substantial, credible
evidence relating to the specific intent on the part of the
appellant to obtain unemployment benefits vis-a-vis statements as
to his wife's employment and income. The evidence clearly shows
that the appellant was confused in filing his application for
benefits particularly with regard to the claim of his spouse as a
dependent and her employment status. In fact, the record reveals
that the appellant attempted to correct his application for
employment benefits to reflect the fact that his wife was indeed
employed and receiving income. A lack of fraudulent intent on the
part of the appellant, however, does not entitle the appellant to
any benefits received as a result of the improper dependency claim.
Any benefits received by the appellant above and beyond the basic
unemployment benefit to which the appellant was entitled must be
refunded to the O.B.E.S. pursuant to R.C. 4141.35(B).
Therefore, the
decision of the Board of Review of the O.B.E.S. was unreasonable
and against the manifest weight of the evidence. The judgment of
the trial court is reversed and the matter is remanded to the Board
of Review of the O.B.E.S. for further proceedings consistent with
the application of R.C. 4141.35(B).
Reversed and
remanded.
This cause is
reversed and remanded for further proceedings consistent with the
opinion herein.
It is, therefore,
considered that said appellant recover of said appellees his costs
herein.
It is ordered that
a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of
this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure. Exceptions.
N.B. This entry is
made pursuant to the third sentence of Rule 22(D), Ohio Rules of
Appellate Procedure. This is an announcement of decision (see Rule
26). Ten (10) days from the date hereof this document will be
stamped to indicate journalization, at which time it will become
the judgment and order of the court and time period for review will
begin to run.
DISPOSITION
JUDGMENT: REVERSED
AND REMANDED
JUDGES
FOOTNOTES
* SITTING BY ASSIGNMENT:
Judge Edwin T.
Hofstetter, Retired of the 11th Appellate District. Judge Robert B.
Ford, Retired of the Geauga County Common Pleas
Court.