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Pedalino v. Board of Review

Decided: May 11, 1964.

DOMENICK R. PEDALINO, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENT



Gaulkin, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.

Foley

Claimant appeals from a decision of the Board of Review (Board), Division of Employment Security (Division), Department of Labor and Industry, declaring him ineligible for unemployment compensation and directing the repayment of certain benefits which he has received.

Claimant was employed by the DeLuxe Reading Corp. as a quality production manager at a weekly salary of $140. On December 8, 1961 he was separated from employment because of lack of work. He filed a claim for unemployment benefits on December 11, 1961, which was honored.

On February 25, 1962, while he was receiving such benefits, he purchased a franchise for the operation of a car rental agency for $3,000. On March 1, 1962 he commenced doing business under the trade name Econo-car Rental System. At that time his wife assisted him in the operation of the business and he had no employees. He rented two offices in Lyndhurst, New Jersey, one of them at 609 Ridge Road. He received all of the commissions derived from the business and paid all expenses, including rent, telephone, telephone answering service, utilities and advertising.

On April 13, 1962 he hired one employee to work for him full time. The employee's principal duties were to answer the telephone and arrange for the rental of automobiles. This employee was discharged on June 1, 1962. Thereafter, claimant conducted the business without help until the latter part

of November 1962 when he hired another full-time employee. On June 17, 1963, the date of the hearing before the Board, he was still engaged in the car rental business.

Upon filing the claim for unemployment benefits, and at each reporting date thereafter, claimant represented and certified to the Division that he was unemployed, able to work, available for work, and seeking full-time employment. In reliance upon these representations the Division paid him unemployment benefits for 19 weeks ending April 15, 1962. Benefits for subsequent weeks were withheld.

Claimant did not disclose to the Division that he had entered the car rental business. He represented to the Division that he was not in business for himself, but that his wife had opened a car rental office at 609 Ridge Road, Lyndhurst.

On November 30, 1962 a representative of the Division determined, pursuant to N.J.S.A. 43:21-16(d), that claimant was ineligible for benefits from March 1, 1962 because as of that date he became the sole owner and operator of a car rental business. Demand was then made by the Division for a refund of the benefits paid to him.

Claimant appealed to the Appeal Tribunal of the Division which, after a hearing, found him ineligible for benefits and liable to repay all benefits he had received. See N.J.S.A. 43:21-4(c). He then appealed to the Board which affirmed claimant's liability for the repayment of the benefits above set forth.

Claimant's contention is that he was entitled to benefits under N.J.S.A. 43:21-4(c), which provides eligibility if a claimant "is able to work, is available for work, and has demonstrated that he is actively seeking work * * *." He maintains that if these requirements were met it was of no significance that he coincidentally owned and operated a car rental business.

The Board, on the other hand, argues that upon the commencement of the car rental business claimant removed himself from the labor market and consequently became ineligible ...


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