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In re Cianfarra

Filed: March 16, 1982.

IN THE MATTER OF: CHARLES T. CIANFARRA, CLAIMANT-APPELLEE
v.
N.C. DEPARTMENT OF TRANSPORTATION, EMPLOYER-APPELLANT AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, APPELLANT



Appeal by defendant and the Employment Security Commission from Rouse, Judge. Judgment entered 7 April 1981 in Superior Court, New Hanover County. Heard in the Court of Appeals 10 February 1982.

Arnold, Judge. Judge Whichard concurs. Judge Clark dissents.

Arnold

The Department of Transportation (D.O.T.) brings forth three assignments of error on appeal. The Commission brings forth two assignments of error which are substantially similar to the second and third assignments of the D.O.T. and which we shall therefore combine with the D.O.T.'s contentions for purposes of this opinion.

The D.O.T. first contends that the trial court erred by failing to remand this cause for further findings and conclusions by the Employment Security Commission on the question of whether claimant's misconduct was the cause for his discharge. The D.O.T. argues that the Commission failed to make findings of fact regarding D.O.T.'s evidence of claimant's misconduct, and that such findings are required by G.S. 96-15. D.O.T. further argues that it could not except to the Commission's failure at an earlier stage in the appellate process because, until the trial court reversed the Commission's conclusion favoring D.O.T. on another ground, D.O.T. was not a "party aggrieved."

While it is true that D.O.T. was not "aggrieved" by the Commission's determination, we hold that it could have brought its exceptions to the Commission's findings before the superior court, and that its failure to do so precludes consideration of the exceptions by this Court. According to G.S. 96-4(m),

"[f]rom all decisions or determinations made by the Commission or a Deputy Commissioner any party affected thereby shall be entitled to an appeal to the superior court. Before such party shall be allowed to appeal, he shall within 10 days after notice of such decision or determination, file with the Commission exceptions to the decision or the determination of the Commission, which exceptions will state the grounds of objection to such decision or determination. . . . When an exception is made to the facts as found by the Commission, the appeal shall be to the superior court in term time but the decision or determination of the Commission upon such review in the superior court shall be conclusive and binding as to all questions of fact supported by any competent evidence."

D.O.T.'s present appeal makes it clear that it was a "party affected" by the Commission's determinations with regard to Mr. Cianfarra's claim. Its failure to file timely exceptions, therefore, is fatal to this assignment of error.

Both appellants assign error to the court's holding that the Commission's findings of fact did not support its conclusion that claimant was unqualified to receive benefits. G.S. 96-14(1) provides that an individual is not qualified for benefits ". . . if it is determined by the Commission that such individual is, at the time such

claim is filed, unemployed because he left work voluntarily without good cause attributable to the employer."

Claimant here was terminated by D.O.T. effective 11 April 1980. He filed for benefits 13 April 1980. At the time his claim was filed, claimant was unemployed because he had been fired by D.O.T., not because he left work early on 11 April 1980. We hold that Judge Rouse correctly applied the statute to the facts of this case and found that it dictated reversal.

Notwithstanding the court's use of terminology implying fact-finding, we find the "findings" were merely a summary of the case. Appellants cannot prevail on ...


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