JOSEPH L. DESCAFANO v. BOARD OF REVIEW, DEPARTMENT OF LABOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0068-05T30068-05T3

JOSEPH L. DESCAFANO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

and DGR SUBPOENA & MESSENGER SERVICE, INC,

Respondents.

_____________________________________________________________

 

Submitted September 26, 2006 - Decided October 16, 2006

Before Judges Holston, Jr. and Grall.

On appeal from Board of Review, Department of Labor, Docket No. 75,351.

Joseph L. Descafano, appellant pro se.

Anne Milgram, Acting Attorney General, attorney for respondent, Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Joseph L. Descafano, appeals the July 25, 2005 decision of the Board of Review. The Board of Review affirmed the June 17, 2005 decision of the Appeal Tribunal denying appellant unemployment benefits under the unemployment compensation law. N.J.S.A. 43:21-5(a). We affirm.

Appellant was employed as a supervisor in the office of DGR Subpoena and Messenger Service, Inc., in Caldwell, New Jersey from August 1, 1999 until April 15, 2005. Appellant testified that he terminated his employment with his employer because he did not have a safe working vehicle to drive from his home in Milford, Pennsylvania to and from his place of employment in Caldwell. As a result of wear and tear on his vehicle, he had to pay $6,600 in automotive repairs. Appellant claims commuting time from his home to his employer increased from an hour and five minutes four years ago to a "little over" two hours each way. As a result of congestion on the highways and increased commuting time, the cost of gasoline became prohibitive. Further, appellant contends there is no public transportation available to transport him to and from his work place. Lastly, appellant asserts that his employer was unwilling to give him a pay raise. As a result, appellant was required to relocate from Millford, Pennsylvania to Jamesville, Wisconsin, where public transportation exists.

The Appeal Tribunal disqualified petitioner from unemployment benefits on the basis that he left work voluntarily and not for reasons directly attributable to the actions of his employer or the conditions of his employment. The Appeal Tribunal found that "claimant left the job because of the commute, which was a person[al] reason," and that "commuting to and from work . . . is not ordinarily to be considered a cause that is connected with or attributable to work." The Board of Review concluded that "on the basis of the record below, we agree with the decision reached."

Appellant contends that he would be eligible for unemployment compensation under Pennsylvania's unemployment compensation law if he could show that his loss of transportation was through no fault of his own and that his transportation problems are virtually insurmountable. However, New Jersey law governs this application. N.J.A.C. 12:17-1.1(c).

An employee who leaves work voluntarily has the burden of proving that he did so for good cause attributable to the work, which means "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 Review, 192 N.J. Super. 284, 287 (App. Div. 1983) (quoting Condo v. Bd. of Review, 158 N.J. Super. 172, 174 (App. Div. 1978)). "Good cause" is defined in the regulations as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).

Appellant maintains that he "did not quit his job because of the commute," but that "[a] total lack of transportation was the actual reason he left." This lack of transportation forced him to terminate and rendered him unable to satisfy a "condition of employment, meaning reporting to the office for his job, which was a job requirement." Thus, he argues, he did not leave his job for a personal reason. Rather, he left "with good cause attributable to the condition of employment." Appellant's argument lacks merit.

Our review of the record confirms that at the hearing appellant testified he left his job with DGR for two reasons: (1) because he could no longer afford the commute; and (2) because his employer advised him "he couldn't give me any more money." In Morgan v. Board of Review, 77 N.J. Super. 209, 214 (App. Div. 1962), we held that commuting to work is a personal problem of the employee and "is not ordinarily to be considered a cause that is connected with or attributable to the work." In Self v. Board of Review, 91 N.J. 453, 457-58 (1982), the Supreme Court determined that "leaving work because of transportation difficulties is a voluntary quit."

Appellant acknowledged that he understood that DGR could not raise his pay, and there is no evidence in the record that DGR was contractually obligated to increase appellant's salary. Appellant's inability to acquire a pay increase "does not constitute good cause within the statutory intendment" for him to quit his job. DeSantis v. Bd. of Review, 149 N.J. Super. 35, 38 (App. Div. 1977).

We are satisfied that the record supports the Board of Review's findings that the reasons appellant left his job were personal in nature and not for good cause attributable to his work. We also reject appellant's argument that the Division of Unemployment should apply Pennsylvania law to this claim. Appellant filed a claim under N.J.S.A. 43:21-1 to -24.4, the New Jersey unemployment compensation law, based on wages he earned from a New Jersey employer. He is, therefore, subject to the provisions of New Jersey's law and the Board of Review had no authority to apply Pennsylvania law to appellant's claim for new Jersey unemployment benefits.

It is well settled that "a presumption of correctness attaches to an administrative agency decision." Smith v. Bd. of Review, 281 N.J. Super. 426, 434 (App. Div. 1995). if the court is satisfied, after reviewing the record, that the evidence presented and the inferences to be drawn therefrom support the agency's determination, the decision must be affirmed even if the court believes it might have reached a different result. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). An appellate court will reverse a decision of an administrative agency only if it can be demonstrated that the decision "was arbitrary, capricious, or unreasonable." Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001).

We are satisfied that the decision of the Board of Review, affirming the decision of the Appeals Tribunal was based on substantial credible evidence and was not arbitrary, capricious or unreasonable. The decision correctly applied the applicable law to the facts testified to by appellant as to his reasons for leaving his employment.

Affirmed.

 

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A-0068-05T3

October 16, 2006