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Gattuso v. Board of Review

February 21, 2008

MICHAEL D. GATTUSO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND DMR SIGN SYSTEMS, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 109,538. Michael D. Gattuso, appellant pro se.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 29, 2008

Before Judges Skillman and Yannotti.

Michael D. Gattuso appeals from a final determination of the Board of Review (Board) finding him ineligible for unemployment benefits from January 15, 2006, and ordering the refund of benefits paid for the weeks ending January 21, 2006 to March 4, 2006. For the reasons that follow, we affirm.

The facts that inform our decision are relatively straightforward. Gattuso left his employment at DMR Sign Systems on January 20, 2006 and collected unemployment benefits in the amount of $3,221 for the weeks ending January 21 through March 4, 2006. However, a deputy claims examiner determined that Gattuso was not eligible for unemployment benefits and ordered him to refund the $3,221 he had received. Gattuso filed a timely appeal from that determination, and the Appeal Tribunal conducted an evidentiary hearing in the matter on May 9, 2006.

At the hearing, Gattuso testified that he worked as a cabinet maker for DMR from December 1, 2005 to January 20, 2006. Gattuso said that he resigned from his position at DMR "to devote all of [his] efforts to begin self-employment." He asserted that, when he began working for DMR, he informed the employer that he would only be working there for a short time because his goal was to begin self-employment.

Gattuso additionally testified that, after he left DMR, he devoted his time to establishing his new business. He stated that initially, the business did not realize any profit and he did not earn any wages. Gattuso collected unemployment benefits through March 4, 2006. From March 13 to 17, 2006, Gattuso took a training course, at which he learned to use software that was required to operate a machine that he purchased for his business.

Grace Turkel, the Vice President and Creative Director for DMR, testified that Gattuso quit his job at the company to start his own business. Turkel said that DMR and Gattuso agreed at the outset that he would be employed on a temporary basis. She stated that the company anticipated that it would have enough work for Gattuso in December 2005. However, Turkel said that after "the first of the year," Gattuso's employment would be based on the company's needs.

Turkel stated that, "[i]f we had more work, it may not have been steady weeks of work. [We] may have had two, [or] three weeks and then [we might have] called him back for one week of work. So it would have been just temporary as needed work." Turkel acknowledged that it was a coincidence that there was a lack of work for appellant when he resigned.

In a decision mailed on May 10, 2006, the appeal tribunal found that the only reason Gattuso left his position at DMR was to begin self-employment. The appeal tribunal therefore found that Gattuso was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(a), because he left his position for personal reasons, not for a "good cause attributable to the work." The appeal tribunal further found that under N.J.S.A. 43:21-5(i), Gattuso was exempt from the disqualification for benefits from March 13 to March 17, 2006, because in that period, he attended an "approved training program" that enhanced his work skills. However, Gattuso was required to return the unemployment benefits in the amount of $3,221 that had been paid to him for the weeks ending January 21, 2006 through March 4, 2006.

Gattuso filed a timely appeal to the Board. The Board issued a final decision that was mailed on June 23, 2006. The Board adopted the findings and conclusions of the Appeal Tribunal. This appeal followed.

Gattuso argues that he was not disqualified from unemployment benefits under N.J.S.A. 43:21-5(a) because his "motive" for leaving his job "at DMR was to earn more income to support [his] family" and "stay off unemployment benefits once [his new] business was solvent." Gattuso contends that the months in which his business was not profitable "were temporary[.]" He maintains that his situation was "no different" from that facing another individual seeking a job who is unemployed "while applying for work." Gattuso therefore argues that he was qualified to receive unemployment benefits for the weeks ending January 21 through March 4, 2006.

We have carefully reviewed the record in light of appellant's arguments and the applicable law. We are convinced that appellant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We therefore affirm substantially for the reasons stated by the Appeal Tribunal ...


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