MARK R. PISCITELLO v. BOARD OF REVIEW DEPARTMENT OF LABOR and SALERNO PONTIAC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2847-08T12847-08T1

MARK R. PISCITELLO,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and SALERNO PONTIAC,

Respondents.

___________________________________________________

 

Argued March 23, 2010 - Decided

Before Judges Grall and Messano.

On appeal from the Board of Review, Department of Labor, Docket No. 202,637.

Mark R. Piscitello, appellant, argued the cause pro se.

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief).

Respondent Salerno Pontiac has not filed a brief.

PER CURIAM

Mark R. Piscitello appeals from the final decision of the Board of Review (the Board) that affirmed the Appeal Tribunal's decision finding him ineligible for extended unemployment compensation (EUC). We have considered the arguments raised on appeal; we affirm.

The facts are not in dispute. Appellant had worked at Salerno Pontiac for a number of years but left in March 2005. He was rehired in November 2007 as a used car sales manager, and remained in that position until April 2008. He filed a claim for unemployment benefits on June 15, 2008.

Appellant's application for EUC was denied on September 24 and he appealed. After a telephonic hearing during which appellant testified, the Appeal Tribunal concluded that during the 2007 base year that governed his claim, appellant had worked seven base weeks during the last quarter, and earned base wages in the amount of $7921.96. Under the federal EUC statute, appellant was ineligible for benefits because he had not worked a minimum of twenty base weeks in the base year, nor had he earned wages during the base year that exceeded forty times his weekly benefit rate of $560. Upon review, the Board affirmed the Appeal Tribunal's decision and issued its final decision on January 20, 2009. This appeal followed.

"The judicial capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing Public Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)). Only if the Board's "action was arbitrary, capricious, or unreasonable" should it be disturbed. Brady, supra, 152 N.J. at 210.

Congress enacted the Emergency Unemployment Compensation Act of 2008 (the Act), Pub. L. No. 110-252 4001, Title IV, 122 Stat. 2323, 2353-57 (2008), on June 30, 2008. Pursuant to 4001 of the Act, individual states were permitted to enter into agreements with the United States Secretary of Labor and receive federal funds to extend unemployment benefits to individuals under certain conditions. One such condition is contained in 4001(d)(2) of the Act, which provides,

[T]he terms and conditions of the State law which apply to claims for regular compensation and to the payment thereof shall apply to claims for emergency unemployment compensation and the payment thereof, except--

(A) that an individual shall not be eligible for emergency unemployment compensation . . . unless, in the base period with respect to which the individual exhausted all rights to regular compensation under the State law, the individual had 20 weeks of full-time insured employment or the equivalent in insured wages, as determined under the provisions of the State law implementing section 202(a)(5) of the Federal-State Extended Unemployment Compensation Act of 1970 . . . .

The "equivalent of insured wages" was defined pursuant to the 1970 Act as "earnings covered by the State law for compensation purposes which exceed 40 times the individual's most recent weekly benefit amount . . . ." 26 U.S.C.A. 3304 n. 202(a)(5).

"Our function is to enforce the legislative will as expressed by the clear language of the statute." Pagan v. Bd. of Review, 296 N.J. Super. 539, 543 (App. Div.) (citing Howell Twp. v. Manasquan River Reg'l Sewerage Auth., 215 N.J. Super. 173, 181 (App. Div. 1987), certif. denied, 150 N.J. 24 (1997). Applying the statutory requirements to the facts at hand, appellant had seven weeks of "full-time insured employment" during the 2007 base year, and therefore did not qualify for EUC under that criterion. Additionally, he had earned $7921.96 during the base year, an amount that did not "exceed 40 times [his] most recent weekly benefit amount," i.e., $560 x 40 = $20,400. Therefore, he was ineligible under that criterion also. The Board properly denied appellant's application for EUC.

 
Affirmed.

The Act appears as a note to 26 U.S.C.A. 3304, which it amends.

(continued)

(continued)

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A-2847-08T1

April 27, 2010