MARC N. COOPER v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1301-13T3

MARC N. COOPER,

Appellant/

Cross-Respondent,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR,

Respondent,

and

ALLIANCE ORAL SURGERY, L.L.C,

Respondent/

Cross-Appellant.

________________________________________________________________

October 21, 2015

Argued September 17, 2015 Decided

Before Judges Fuentes and Koblitz.

On appeal from Board of Review, Department of Labor, Docket No. 417,327.

Nicholas D. Bliablias argued the cause for appellant/cross-respondent (Schwartz Simon Edelstein & Celso, L.L.C., attorneys; Stephen J. Edelstein, of counsel; Mr. Bliablias, Ari D. Schneider and Jody T. Walker, on the briefs).

Peter H. Jenkins, Deputy Attorney General argued the cause for respondent (John J. Hoffman, Acting Attorney General; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief).

Hayes Young argued the cause for respondent/cross-appellant (Law Office of Hayes Young, P.A.; Mr. Young, on the brief).

PER CURIAM

Oral surgeon Dr. Marc Cooper appeals from the Board of Review's October 4, 2013 decision determining that he was ineligible for unemployment compensation because he voluntarily quit his job. Given our deferential standard of review, we affirm.

After leaving his employment, Cooper was initially awarded unemployment compensation, based on his claim that his employer substantially reduced his pay contrary to a written contract. His employer, Alliance Oral Surgery, LLC (Alliance) appealed. The Appeal Tribunal held a hearing at which the following evidence was adduced. Cooper sold the assets of his dental practice to Alliance in 2009 for a principal amount of $290,000, plus interest, payable in seventy-two monthly installments of more than $4670. Alliance is owned by Dr. John Frattellone. Cooper also became an employee of Alliance for five years pursuant to an employment agreement. The agreement called for Cooper to receive approximately forty to forty-five percent of the amount billed by Alliance for his services. According to Frattellone, this compensation scheme resulted in Cooper receiving $433,000 in 2011. Any modification of the agreement had to be in writing and signed by both parties.

According to Frattellone, health insurance reimbursements were set to change in January 2013, requiring a new business model and lower compensation for Cooper and the other doctors. The two doctors had been discussing this change for a year, but were unable to come to terms. According to Cooper, they came to an oral agreement, Frattellone reneged on this agreement in an email, and thus Cooper justifiably left a note saying "I will consider myself Terminated." He also sent a text message indicating the final two dates he would provide patient services, stating "And this will complete my responsibilities for yr [sic] 2012."

Frattellone testified that they were still in the process of negotiation when Cooper screamed at him over the telephone and hung up precipitously. Frattellone testified further that Cooper quit in December, prior to any reduction in salary, and was not terminated.

The Board found that Cooper and Frattellone did not reach an agreement regarding a change to Cooper's compensation before Cooper resigned, nor was a reduction in pay instituted. Thus, the Board found that Cooper was ineligible for unemployment benefits because he "left work prematurely without good cause attributable to such work." See N.J.S.A. 43:21-5(a). "[T]he burden of proof is upon claimant to establish his right to unemployment compensation." Zielenski v. Bd. of Review, Div. of Emp't Sec., 85 N.J. Super. 46, 51-52 (App. Div. 1964).

The New Jersey Unemployment Compensation Law was designed to prevent the spread of involuntary unemployment "and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family." N.J.S.A. 43:21-2. "[T]he primary objective of the [Act] is to provide a cushion for the workers of New Jersey 'against the shocks and rigors of unemployment.'" Carpet Remnant Warehouse, Inc. v. N.J. Dep't of Labor, 125 N.J. 567, 581 (1991) (quoting Provident Inst. for Sav. v. Div. of Emp't Sec., 32 N.J. 585, 590 (1960)). "The purpose of the act is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own . . . ." Battaglia v. Bd. of Review, Emp't Sec. Div., 14 N.J. Super. 24, 27 (App. Div. 1951). "[T]o further its remedial and beneficial purposes, the law is to be construed liberally in favor of allowance of benefits." Yardville Supply Co. v. Bd. of Review, Dep't of Labor, 114 N.J. 371, 374 (1989). However, "it is also important to preserve the fund against claims by those not intended to share in its benefits." Ibid.

"[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). Appellate courts must "accept as binding on appeal any finding of fact by an administrative agency that is supported by substantial evidence in the record." Bustard v. Bd. of Review, 401 N.J. Super. 383, 387 (App. Div. 2008). "[W]here an agency decision bespeaks inadequate consideration of factual issues fairly distilled and presented by the parties for resolution, it is not entitled to deferential review." Ibid. However, "[a] strong presumption of reasonableness accompanies an administrative agency's exercise of statutorily-delegated responsibility." Gloucester Cty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983).

The record provides substantial evidence to support the Board's determination that the parties were engaged in negotiations. While a contract may have a provision requiring modifications be in writing, a "writing requirement may be expressly or impliedly waived by the clear conduct or agreement of the parties." Home Owners Constr. Co. v. Glen Rock, 34 N.J. 305, 316-317 (1961). However, an "'[a]mbiguous course of dealing from which one party might reasonably infer that the original contract was still in force, and the other that it had been changed,' will not support a modification." County of Morris v. Fauver, 153 N.J. 80, 99-100 (1998) (citing 17A C.J.S. Contracts 375 (1963)) (internal citations omitted). The parties' intent to modify must be "mutual and clear." Id. at 99. This situation was far from clear. Each doctor had a different interpretation of the other's behavior.

"An employer who accepts an unequivocal notice of resignation from an employee is entitled to rely upon it." Nicholas v. Bd. of Review, Dep't of Labor & Indus., 171 N.J. Super. 36, 38 (App. Div. 1979) (alterations in original) (internal citations omitted) (quoting Guy Gannett Publ'g Co. v. Me. Emp't Sec. Comm'n, 317 A.2d 183, 187 (Me. 1974)). Cooper communicated beyond any possible doubt that he was no longer working for Alliance. His pronouncement that he considered himself terminated did not make it so. Cooper did not remain long enough to find out whether his salary would be reduced by Alliance unilaterally in the coming year. Alliance did not breach the parties' written employment contract before Cooper quit.

The Board had substantial credible evidence to support its determination that Cooper voluntarily quit his job and was therefore not entitled to unemployment benefits.

Affirmed.