ASHER S. ROST v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3716-04T13716-04T1

ASHER S. ROST,

Claimant-Appellant,

v.

BOARD OF REVIEW,

Respondent-Respondent.

_______________________________________________________________

 

Submitted January 17, 2006 - Decided February 16, 2006

Before Judges Parker and C. S. Fisher.

On appeal from the Board of Review,

Department of Labor, 53,111.

Asher S. Rost, appellant pro se.

Peter C. Harvey, Attorney General of New

Jersey (Patrick DeAlmedia, Assistant Attorney

General, of counsel; Allan J. Nodes, Deputy

Attorney General, on the brief).

PER CURIAM

Claimant Asher S. Rost appeals from a March 2, 2005 decision by the Board of Review (Board) denying his claim for unemployment benefits. We affirm.

On October 10, 2004, claimant filed for unemployment compensation. Claimant was a full-time student who worked during the winter recess from December 22, 2002 to January 22, 2003; spring break from March 15 to March 22, 2003; and during summer vacation from May 14 to September 2003.

After his claim was denied, claimant appealed to the Appeal Tribunal, and after a telephonic hearing, it was determined that he was not eligible for benefits because N.J.S.A. 43:21-5(i) disqualifies full-time students from unemployment benefits unless the student earned sufficient wages during the base year, as defined under N.J.S.A. 43:21-4(e), during periods when school is in session.

In this appeal, claimant argues that (1) the Board failed to acknowledge the evidence presented and misrepresented the law and facts; and (2) that he met the minimum requirement of twenty weeks employment as a student at a minimum of $103 per week to qualify for benefits. In his reply brief, he argues that he is entitled to the alternative base period to qualify for benefits as a full-time student. Specifically, claimant argues that:

The Appeals Tribunal made the following legal and factual errors:

1) The Appeals Examiner failed to apply the alternate base period as allowed by N.J.A.C. 12:17-5.3, which would have qualified Appellant for benefits, i.e. Mr. Barbour [hearing examiner], as did the DOL before him, ignored the Appellant's Pepsi-Cola Bottling Group, LLC time of employment; [and]

2) The Appeals Examiner erred in the time-frame when Appellant attended classes at Middlesex County College in the summer on or about June 1 - July 9, 2004.

Claimant maintains that the Board of Review made the following legal and factual errors:

1) BOR failed to review the evidence provided by the Appellant de novo;

2) BOR made the naked assertion that Appellant was employed by an "Educational Institution" disqualifying the Appellant for unemployment benefits;

3) BOR denied Appellant's student exception as per N.J.S.A. 43:21-5(i);

4) BOR failed to apply the alternate base period as per N.J.A.C. 12:17-5.3;

5) BOR failed to cite specific reasons and facts to corroborate their decision to deny unemployment benefits to the Appellant.

We have carefully considered the record, and we are satisfied that claimant's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(D). Nevertheless, we add the following comments.

As the Appeal Tribunal noted, since the claim for benefits was filed on October 10, 2004, the base year was July 1, 2003 through June 30, 2004. N.J.S.A. 43:21-5(i) disqualifies full-time students from unemployment benefits unless the student earned $5,150 during the base year during periods when school was in session. N.J.S.A. 43:21-5(i), -4(e). Claimant's total wages for the base year amounted to $3,470.68, clearly short of the $5,150 required. Alternatively, claimant must demonstrate that he worked twenty weeks during the base year in which he earned at least $103 per week.

Accepting claimant's representations as undisputed, his earnings for the base year were as follows:

Work Week

Employer Ending Gross Pay Attending College

American Eagle Outfitters 11/01/2003(1) $157.63 Livingston College

American Eagle Outfitters 11/29/2003(2) $131.63 Livingston College

Rutgers U Foundation 3/12/2004(3) $148.50 Livingston College

Bloomingdale's 3/27/2004(4) $187.37 Livingston College

Bloomingdale's 4/03/2004(5) $148.87 Livingston College

Bloomingdale's 4/10/2004(6) $146.30 Livingston College

Bloomingdale's 4/17/2004(7) $143.93 Livingston College

Bloomingdale's 4/24/2004(8) $154.19 Livingston College

Bloomingdale's 5/01/2004(9) $142.03 Livingston College

Bloomingdale's 5/08/2004(10) $116.07 Livingston College

Bloomingdale's 5/15/2004(11) $284.34 Livingston College

Bloomingdale's 6/05/2004(12) $284.82 Middlesex College

Bloomingdale's 6/12/2004(13) $199.31 Middlesex College

Bloomingdale's 6/19/2004(14) $261.25 Middlesex College

Bloomingdale's 7/03/2004(15) $183.07 Middlesex College

Pepsi-Cola Bottling Group 9/04/2004(16) $260.00 Livingston College

Pepsi-Cola Bottling Group 9/11/2004(17) $204.00 Livingston College

Pepsi-Cola Bottling Group 9/18/2004(18) $128.00 Livingston College

Pepsi-Cola Bottling Group 9/25/2004(19) $248.00 Livingston College

Pepsi-Cola Bottling Group 10/02/2004(20) $228.00 Livingston College

Claimant argues that the Board overlooked the wages he earned during the summer of 2004 while he was attending summer session at Middlesex County College and that he qualified under the alternative base year. The Board rejected that argument, stating:

[T]he claimant is not qualified for the alternative base year as he has a valid claim in accordance with N.J.A.C. 12:17-5.3.

N.J.A.C. 12:17-5.3 [provides]:

Alternative base year periods may be used to qualify for benefits only when the individual cannot qualify for benefits due to insufficient base weeks and/or wages during the regular base year. (Emphasis added).

The Board determined that claimant would have qualified for benefits if he had not been a student and the weeks during which school was closed were not excluded from his base earnings calculations. The statute imposes strict standards on full-time students before they may qualify for unemployment benefits. Under the applicable statutes and the administrative code, claimant does not qualify for benefits because he had insufficient wages during the base year and because some of his earnings during the base year cannot be included.

Our scope of review of administrative decisions is limited. State-Operated Sch. Dist. v. Gaines, 309 N.J. Super. 327, 331 (App. Div.), certif. denied, 156 N.J. 381 (1998) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); See Campbell v. Dep't of Civil Service, 39 N.J. 556, 562 (1963). We accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982); City of Newark v. Natural Resource Council, 82 N.J. 530, 539 (1980), cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We do not make an independent assessment of the evidence. In re Taylor, 158 N.J. 644, 656 (1999). If there is sufficient credible evidence in the record to support the agency's conclusions, we must uphold those findings even if we would have reached a different result. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). While we do not act simply as a rubber stamp of an agency's decision, we will only reverse such a decision when we find that it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80; Marro v. Dep't of Civil Serv., 57 N.J. Super. 335, 346 (App. Div. 1959).

 
Affirmed.

(continued)

(continued)

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A-3716-04T1

February 16, 2006