DAWN C. DEGREGORIO v. BOARD OF REVIEW DEPARTMENT OF LABOR and BELL-MARK SALES CO., INC
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2759-08T1
DAWN C. DEGREGORIO,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR and
BELL-MARK SALES CO., INC.,
Respondents.
______________________________
Submitted May 18, 2010 - Decided August 26, 2010
Before Judges Carchman and Lihotz.
On appeal from the Board of Review,
Department of Labor, Docket No. 202,015.
Dawn C. DeGregorio, appellant pro se.
Paula T. Dow, Attorney General, attorney for
respondent Board of Review (Lewis A.
Scheindlin, Assistant Attorney General, of
counsel; Ellen A. Reichart, Deputy Attorney
General, on the brief).
Respondent Bell-Mark Sales has not filed a
brief.
PER CURIAM
Claimant Dawn C. DeGregorio appeals from a final decision
of the Board of Review (Board) requiring her to refund
unemployment compensation benefits previously paid during a
period when she was found ineligible to receive benefits. The
Board affirmed the determination of an appeals tribunal, which
found claimant liable to repay the benefits previously paid.
N.J.S.A. 43:21-16(d)(1). Following our review, we conclude the
final decision of the Board was properly premised upon facts in
the record and its determinations were consonant with relevant
statutory provisions. Accordingly, we affirm.
Claimant was employed by Bell-Mark Sales Co., Inc. (Bell-
Mark) as an accounts receivable clerk from October 2006 to
October 4, 2007. While employed, claimant often told her co-
worker Lorraine Ciuta of her plans to relocate to Florida. She
even showed Ciuta pictures of a house claimant and her husband
intended to purchase when they moved. Claimant was scheduled to
undergo surgery on October 5, 2007, and return to work on
October 8, 2007. Although claimant's surgery was re-scheduled,
on October 5, 2007, she neither notified her employer nor
attended work. During the appeal tribunal hearing, claimant
testified she later called Bell-Mark on October 8, 2007, to
advise she was sick and requested the day off. On October 9,
2007, claimant again called her supervisor, James Pontrella Jr.,
finally disclosing that she was in Florida. She also called
Ciuta, explaining her husband had secured employment in Florida;
they had purchased a home, and intended to relocate. Finally,
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in an October 10, 2007 telephone conversation with Pontrella,
claimant confirmed her intention to relocate to Florida.
Pontrella stated Bell-Mark would replace her.
Claimant filed for unemployment compensation benefits. Her
application was denied by a deputy claims examiner, who found
she had "left work voluntarily without good cause attributable
43:21-5(a). Claimant appealed.
to such work[.]" N.J.S.A.
During a telephonic hearing before the appeals examiner,
claimant testified she was terminated. No representative from
the employer appeared. Consequently, the appeals tribunal
(tribunal) found claimant was discharged by her employer and she
did not intend to leave her job. Claimant was awarded $8,788.00
in benefits. Bell-Mark appealed, challenging the determination.
The Board remanded the matter to an appeals tribunal for
additional evidence regarding claimant's separation from
employment. Upon remand, the same appeals examiner conducted a
telephonic hearing during which claimant, her husband, Ciuta and
Pontrella testified. The tribunal concluded claimant had not
been discharged but instead voluntarily left her employment,
making her ineligible to receive benefits. Claimant appealed to
the Board, which affirmed the tribunal's decision.
In a separate matter, the Director of the Division of
Unemployment Insurance issued a Request for Refund of the monies
A-2759-08T1
3
previously paid to claimant. Claimant also appealed that
determination. A tribunal concluded claimant was liable for
refunding all benefits erroneously paid. Following its review,
the Board affirmed that determination.
In disputing the Board's findings, claimant argued Bell-
Mark dismissed her despite the fact that she was ready, willing
and able to return to work and continued to reside in New
Jersey. Additionally, because she maintains she is eligible to
receive benefits, claimant asserts she should not be required to
repay the monies she had received.
The scope of our review of administrative agency decisions
is limited. Brady v. Bd. Of Review,
152 N.J. 197, 210 (1997);
Campbell v. Dep't of Civil Serv.,
39 N.J. 556, 562 (1963). The
agency's determination carries a presumption of correctness, and
a claimant carries a substantial burden of persuasion.
Gloucester Cty. Welfare Bd. v. Civil Serv. Comm'n,
93 N.J. 384,
390-91 (1983). "We are obliged to defer to the Board when its
factual findings are based on sufficient credible evidence in
the record," Lourdes Med. Ctr. v. Bd. of Review,
197 N.J. 339,
367 (2009) (internal quotations and citations omitted), and
overturn an agency determination only if "'it is found to be
arbitrary, capricious or unreasonable or it is not supported by
substantial credible evidence in the record as a whole.'" Barry
A-2759-08T1
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v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting
Gloucester Cty., supra,
93 N.J. at 391). Finally, we accord
substantial deference to an agency's interpretation of the
statute it is charged with enforcing. Board of Educ. v. Neptune
Tp. Educ. Ass'n,
144 N.J. 16, 31 (1996).
The purpose of New Jersey's Unemployment Compensation Act
(Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for
the worker earning nothing, because he is out of work through no
fault or act of his own[.]" Yardville Supply Co. v. Bd. of
Review,
114 N.J. 371, 375 (1989) (quotation omitted). "The
basic policy of the [Act] is advanced . . . when benefits are
denied in improper cases as when they are allowed in proper
cases." Id. at 374.
The governing statute, N.J.S.A. 43:21-5(a), provides an
individual is disqualified for unemployment benefits where the
"individual has left work voluntarily without good cause
Self v. Bd. of Review,
91 N.J. 453,
attributable to such work."
456-57 (1982). "Good cause means cause sufficient to justify an
employee's voluntarily leaving the ranks of the employed and
joining the ranks of the unemployed[.]" Heulitt v. Bd. of
Review,
300 N.J. Super. 407, 414 (App. Div. 1997) (internal
citation omitted).
A-2759-08T1
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Our review of the record discerns the Board's determination
denying claimant benefits was properly supported by substantial
credible evidence. The Board rejected claimant's contention
that Bell-Mark fired her. She departed for Florida after
postponement of a medical procedure on October 5, 2007, and she
did not report for work on October 5, and October 8 through 10.
Additionally, the evidence included Ciuta's testimony relating
claimant's disclosures of her move and the purchase of a home,
along with Pontrella's statement that claimant resigned, which
he confirmed in an October 11, 2007 letter to claimant stating,
"Congratulations on your relocation plans to Florida. I wish
you and your husband the best in your move and his new job." We
have no basis to interfere with the Board's reasonable
conclusion to deny claimant's request for benefits because she
voluntarily resigned her employment in order to relocate to
See Lourdes Med. Ctr., supra,
197 N.J. at 367-68;
Florida.
Campbell, supra,
39 N.J. at 562.
Finally, because claimant had been paid benefits that she
was not entitled to receive, she is liable to refund the
benefits paid pursuant to N.J.S.A. 43:21-16(d). See Kugel v.
Bd. of Review,
66 N.J. Super. 547, 550 (App. Div. 1961).
In Bannan v. Bd. of Review,
299 N.J. Super. 671, 674 (App.
Div. 1997), we held that full repayment of benefits is required
A-2759-08T1
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from anyone "who, for any reason, regardless of good faith, was
not actually entitled to those benefits." Indeed, recovery of
such benefits "furthers the purpose of the unemployment
compensation laws" and preserves the Unemployment Trust Fund
"for the payment of benefits to those individuals entitled to
receive them." Ibid. (citations omitted). Moreover, "federal
law requires that a state recover improperly paid unemployment
compensation benefits[,]" id. at 675; see 42 U.S.C.A. ยง
503(a)(9), as do our own regulations. N.J.A.C. 12:17-14.1 to
-14.3. In fact, the only restriction the Legislature has placed
on recoupment is that the Division must seek a refund "before
four years have elapsed from the time the benefits in question
were paid." N.J.S.A. 43:21-16(d)(1). Here, the request for a
refund was timely.
In sum, the Board's dual decisions, rendered after a
hearing that comported with due process, Malady v. Bd. of
Review,
166 N.J. Super. 523, 528 (App. Div. 1979), are supported
by substantial credible evidence in the record as a whole.
Barry, supra,
100 N.J. at 71. Accordingly, no basis has been
presented to intervene in its considered determinations.
Affirmed.
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