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Dennis Fridmann v. Board of Review

June 13, 2012

DENNIS FRIDMANN, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, GEVITY HR III, L.P., TRINET ACQUISITION CORP., AND MERCEDES BENZ OF CHERRY HILL, RESPONDENTS.



On appeal from Board of Review, Department of Labor, Docket No. 283,913.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 18, 2012

Before Judges Fuentes and Koblitz.

Dennis Fridmann appeals from the February 22, 2011 decision by the Board of Review affirming the decision of the Appeal Tribunal, which denied him unemployment benefits because he "left work voluntarily without good cause attributable to the work." After reviewing the record in light of the contentions advanced on appeal, we affirm.

Fridmann, a high-earning car salesman, was employed by Mercedes Benz of Cherry Hill (Mercedes Benz) from June 2006 to April 23, 2010.*fn1 At the hearing before the Appeals Examiner, Fridmann and the General Manager of Mercedes Benz, Edward Albertas, presented differing versions of why Fridmann left the company.

Fridmann testified that Albertas became angry and fired him after Fridmann made an approved purchase of a 2002 Dodge Intrepid for $2000 for the use of his son.

Albertas testified that a Baltimore Mercedes Benz dealer told him that Fridmann had contacted the other dealer in an attempt to "curb cars."*fn2 Albertas stated he warned Fridmann that if he learned of any other instances of curbing cars, it would be a problem. Albertas testified that Fridmann responded by saying that he "might as well leave now," then packed up his desk and left work permanently. Albertas testified that Fridmann was a successful salesman and his job was not in jeopardy by the report of an attempt to curb cars.

Albertas also denied he was concerned about Fridmann's purchase of the $2000 used car, but acknowledged he was annoyed about Fridmann's outstanding $900 bill for service to his personal vehicles.

Fridmann countered that the dealership's owner had promised him that his service bill would be forgiven if he sold $400,000 in cars for the Porsche Audi dealership managed by the owner's daughter. Fridmann testified that although he was given a "token," he was "never compensated for the extra money that [the owner] told me he was going to take care of . . . ." Fridmann later admitted he had received a commission from the Porsche Audi dealer, but claimed the owner had promised him payment in addition to the commission.

The Appeals Examiner found Albertas to be more credible than Fridmann, at least in part, because she determined Fridmann's testimony with regard to his compensation from the Porsche Audi dealership to be inconsistent. She concluded that Fridmann voluntarily left work without good cause attributable to the work, which was accepted by the Board "on the basis of the record below."

On appeal, Fridmann argues that (1) the Examiner misunderstood his testimony, which led her to discount its veracity, (2) the inaudible portions of the transcript require a remand for a new hearing, and (3) the examiner erred when she precluded evidence of Fridmann's age.*fn3 He also maintains that the Examiner erred when she failed to evaluate Fridmann's good cause for leaving employment.

We review Fridmann's contentions in accordance with our established standard of review. The Board's determination that Fridmann was disqualified from receiving benefits must be affirmed unless it is "arbitrary, capricious, or unreasonable," or is not supported by substantial credible evidence in the record as a whole. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In determining whether an agency's decision is supported by substantial credible evidence, we are obliged to accord deference to the agency's fact finding. Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 588 (App. Div. 1974).

"We may not vacate an agency's determination merely because of doubts as to its wisdom or because the record may support more than one result." In re Petition of Cnty. of Essex, 299 N.J. Super. 577, 591-92 (App. Div.), certif. denied, 151 N.J. 463 (1997), cert. denied, 522 U.S. 111, 118 S. Ct. 1043, 140 L. Ed. 2d 108 (1998). "In reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Futterman v. Bd. of Review, Dep't of Labor, 421 N.J. Super. 281, 287 (App. Div. 2011) (quoting Brady, supra, 152 N.J. at 210). Therefore, if the record contains ...


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