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Tronco v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2007

JENNIFER TRONCO, CLAIMANT-APPELLANT,
v.
BOARD OF REVIEW AND THE PICTURE PEOPLE, INC., RESPONDENTS-RESPONDENTS.

On appeal from the Board of Review, Department of Labor, 103,263.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 16, 2007

Before Judges Parker and Messano.

Claimant Jennifer Tronco appeals from a final decision of the Board of Review (Board) rendered on April 21, 2006 after a hearing before the Appeals Tribunal. The Board found that claimant was not eligible for unemployment benefits because she left work voluntarily without good cause attributable to the work. We affirm.

Claimant was employed in a photography shop in Eatontown from October 1998 through April 1, 2005. In September 2003, claimant became a full-time college student. On April 1, 2005, the store manager met with claimant to discuss her hours and indicated that he needed her to work full-time. Alternatively, she was offered a position as part-time assistant manager, working twenty-five hours a week. Claimant declined the part-time job because it did not provide health benefits or as great an hourly wage as her previous full-time position. Claimant then resigned because the full-time job conflicted with her class schedule.

After a hearing on March 27, 2006, the Appeal Tribunal determined that claimant voluntarily left her employment without good cause attributable to the work and was thereby disqualified from receiving unemployment benefits. N.J.S.A. 43:21-5.

In this appeal, claimant argues that she did not receive proper notice of the employer's appeal. Nevertheless, she participated in the Appeal Tribunal telephonic hearing on March 27, 2006. Although claimant asked when the employer filed the appeal, she did not object to proceeding after the hearing officer said the employer filed a timely appeal within ten days of the initial determination.

Claimant had the opportunity to fully present her case and to ask the employer and hearing officer any questions she had. At the conclusion of the hearing, claimant asked whether she would be liable for the benefits already paid to her if the Appeal Tribunal ruled against her. The hearing officer responded, "Yes."

A party who participates in a proceeding without objection waives any claim of untimely notice. R. 4:4-6; see also Hill v. Warner, Berman & Spitz, P.A., 197 N.J. Super. 152, 167 (App. Div. 1984).

In its decision mailed on March 13, 2006, the Appeal Tribunal found that claimant declined to accept the part-time position offered by the employer and she resigned because her college class schedule conflicted with the full-time work hours. She was denied unemployment benefits on the ground that "she voluntarily left her job without good cause attributable to the work." N.J.S.A. 43:21-5(a). The Board affirmed on April 21, 2006.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). We give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

We have carefully considered the record in light of claimant's arguments and the applicable law. We are satisfied that the Board's decision is supported by sufficient credible evidence in the record as a whole. R. 2:11-3(e)(1)(D).

Affirmed.

20070628

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