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Anthony P. Noce v. Board of Review and Flagship Resort Development Corporation

April 14, 2011

ANTHONY P. NOCE, APPELLANT,
v.
BOARD OF REVIEW AND FLAGSHIP RESORT DEVELOPMENT CORPORATION, RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 277,796.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued March 29, 2011

Before Judges Parrillo and Roe.

Defendant, Anthony P. Noce, appeals from a June 30, 2010 decision of the Board of Review affirming the appeal tribunal's denial of his disqualification for unemployment benefits. We affirm.

Noce was employed as a salesman with Flagship Resort Development Company. He voluntarily resigned from his employment at Flagship Resorts to accept a new job at a higher rate of pay with a construction company. On his first day of work, Noce had a disagreement with his prospective employer. He never began his employment nor did he ever receive any wages from the construction company. Rather than return to employment with Flagship Resorts after the date of his resignation September 20, 2009, Noce began taking classes for his stockbroker's license by utilizing his savings. On February 28, 2010, only after his savings were exhausted, Noce filed a claim for unemployment benefits.

At hearing, Noce testified he had a good relationship with Flagship Resorts. While he could have returned to their employ, he chose not to, as he had invested too much money taking the stockbroker courses and wanted to study for the licensing exams.

The appeal tribunal found Noce voluntarily left work for a better paying job. Noce was disqualified for benefits from September 20, 2009 pursuant to N.J.S.A. 43:21-5(a) as he had left work for personal reasons, not attributable to the work. On June 30, 2010, the Board of Review confirmed the decision of the appeal tribunal. This appeal followed.

On appeal, Noce contends he was wrongfully denied unemployment benefits from September 2009 when he left employment at Flagship. He maintains he became involuntarily unemployed when his subsequent employment with the construction company never materialized. Noce also appeals the denial of unemployment on the basis that he was trying to improve his earning capacity by attending school. Since the Department of Labor and Workforce Development permits individuals to attend school to enhance their employment opportunities, Noce submits he is entitled to collect benefits.

Appellate courts have a limited role in reviewing decisions of administrative agencies. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the ultimate determination of an agency unless it is shown that the decision was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied and the act governing the agency or the findings upon which the decision is based are not supported by the evidence. Campbell v. Dep't. of Civil Serv., 39 N.J. 556, 562 (1963); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985); Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n., 93 N.J. 384, 391 (1983). In determining whether an agency determination is supported by substantial credible evidence, the reviewing court is obligated to accord deference to the administrative agency's credibility findings. Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985).

In Worthington v. Fauver, 88 N.J. 183 (1982), our Supreme Court defined an arbitrary and capricious action of administrative bodies as "willful and unreasoning action, without consideration and in disregard of circumstances." Id. at 204. We may not vacate an agency's determination simply because of doubts as to its wisdom or because the record may support more than one result. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). If we find sufficient credible, competent evidence in the record to support the agency's conclusions, then we must uphold the agency's findings. Clowes v. Terminix Int'l., Inc., 109 N.J. 575, 585 (1988); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 29 (1981).

N.J.S.A. 43:21-5(a) of the New Jersey Unemployment Compensation Law provides that a claimant is disqualified for benefits "[f]or the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works for [four] weeks in employment. . .and has earned in employment at least [six] times the individual's weekly benefit rate, as determined in each case."*fn1

N.J.A.C. 12:17-9.1(e) provides that an individual has voluntarily left work when he leaves work to accept another job. An employee who has left work voluntarily has the burden of proving that he did so with good cause attributable to the employment. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962). In 1961, the legislature amended the unemployment compensation law to require that "good cause" for leaving work be "attributable to such work." Stauhs v. Bd. of Review, 93 N.J. Super. 451, 457-58 (App. Div. 1967); See also, Self v. Bd. of Review, 91 N.J. 453, 457 (1982).

The unemployment compensation statute was designed to serve the general public interest from the adverse impact of involuntary unemployment and not just the interest of the unemployed. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964). The legislative intent was that employment compensation benefits be paid only to those individuals who have become unemployed ...


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