PATRICIA FAGAN v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and SCIENTIFIC PARTS AND SERVICES, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6156-07T36156-07T3

PATRICIA FAGAN,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF

LABOR AND WORKFORCE DEVELOPMENT,

and SCIENTIFIC PARTS AND

SERVICES, INC.,

Respondents.

_________________________________

 

Submitted July 7, 2009 - Decided

Before Judges Grall and Gilroy.

On appeal from a Final Decision of the New Jersey Department of Labor, Board of Review, Docket No. 182,873.

Patricia Fagan, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review, Department of Labor and Workforce Development (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Scientific Parts and Services, Inc., has not filed a brief.

PER CURIAM

Claimant Patricia Fagan appeals from a final determination of the Board of Review (Board), finding her ineligible for unemployment compensation benefits. We affirm.

Claimant and four other individuals formed Scientific Parts and Services, Inc. (the company) in 1969. Claimant remained employed with the company from its inception through cessation of its operations in February 2008. At the time the company ceased operating, claimant was its President and owned 10% to 20% of its stock. On February 24, 2008, claimant filed a petition for unemployment compensation benefits based on the wages the company paid her. At the time claimant filed her petition, the company had not been formally dissolved, nor had it filed a bankruptcy petition.

On March 24, 2008, a Deputy Claims Examiner found claimant ineligible for unemployment compensation benefits. On April 3, 2008, claimant filed an administrative appeal with the Appeal Tribunal. The Appeal Tribunal conducted a hearing in the matter on April 28, 2008. On April 30, 2008, the Appeal Tribunal issued its decision, determining that claimant was ineligible for benefits, pursuant to N.J.S.A. 43:21-19(m)(1)(A).

The claimant was a corporate officer for a corporation on which the claim for unemployment benefits . . . was based. The corporation has not filed for bankruptcy or filed a certification of dissolution. The claimant is not considered "unemployed" as provided by [N.J.S.A.] 43:21-19(m)(1) and [N.J.A.C.] 12:17-12.1[.] Therefore, the unemployment claim . . . is invalid.

On May 12, 2008, claimant filed an appeal with the Board. On June 26, 2008, the Board affirmed the decision of the Appeal Tribunal.

On appeal, claimant argues that she is unemployed through no fault of her own, the company having lost its prime contract, providing Hewlett Packard equipment to the State of New Jersey in December 2007. Claimant contends that, because the company's accounting firm requires additional time to complete and file necessary documentation for dissolution of the company with the State of New Jersey, which is beyond her control, she is being unfairly punished.

Appellate courts have a limited role in reviewing decisions of an administrative agency. Circus Liquors, Inc. v. Governing Body of Middletown Twp., ____ N.J. ____, ____ (2009) (slip op. at 7); In re Herrmann, 192 N.J. 19, 27 (2007). There should not be an independent assessment of the evidence by the appellate court. In re Taylor, 158 N.J. 644, 656 (1999). The appellate court must accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525, appeal dismissed sub nom., Smith v. Brandt, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982); Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). Thus, the determinations of the administrative agencies must be given great deference. Circus Liquors, supra, (slip op. at 8); State v. Johnson, 42 N.J. 146, 159 (1964). We cannot overturn an agency's decision that is based on sufficient evidence, even if this court would have reached a different result. Circus Liquors, supra, (slip op. at 8); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 578 (1988).

We have reviewed the record in its entirety and conclude that claimant's argument is without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Nevertheless, we add the following comment.

A person who holds more than a 5% equitable interest in a corporation is ineligible for unemployment compensation benefits where the corporation has neither been dissolved nor filed for bankruptcy. N.J.S.A. 43:21-19(m)(1)(A); N.J.A.C. 12:17-12.1(a). This is so, regardless of the reason the corporation has not been dissolved or filed for bankruptcy. Rudbart v. Bd. of Review, 339 N.J. Super. 118, 125 (App. Div. 2001). We express no opinion as to the merits of any petition claimant may file after the company has been dissolved or has filed for bankruptcy.

 
Affirmed.

(continued)

(continued)

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A-6156-07T3

August 21, 2009