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Durish v. Board of Review

Superior Court of New Jersey, Appellate Division

December 16, 2013

ROBERT J. DURISH, Appellant,
v.
BOARD OF REVIEW and PAPER MILL PLAYHOUSE, Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 18, 2013

On appeal from the Board of Review, Department of Labor, Docket No. 360, 395.

Sanford R. Oxfeld argued the cause for appellant (Oxfeld Cohen, PC, attorneys; Mr. Oxfeld, of counsel; Timothy C. King, of counsel and on the brief).

Christopher J. Hamner, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Hamner, on the brief).

Respondent Paper Mill Playhouse has not filed a brief.

Before Judges Nugent and Accurso.

PER CURIAM

Appellant, Robert J. Durish, appeals from the final decision of the Board of Review disqualifying him for benefits from December 12, 2010, and finding him liable to refund $21, 592. The Board found that appellant was disqualified for benefits not only because he left work voluntarily without good cause attributable to his work, but also because when he left he was anticipating a temporary layoff of ten weeks or less and had a definite recall date. Both situations disqualify an applicant for benefits. Appellant argues that the Board's decision was incorrect because he had been notified of an impending layoff before he resigned from his employment, and employees who leave work after receiving notice that they will be separated within sixty days are not disqualified for benefits. Having considered appellant's arguments, the record, and controlling law, we affirm.

Appellant worked as a stage hand or assistant prop person for the Paper Mill Playhouse in Milburn from August 1990 through December 18, 2010. The work was not steady and uninterrupted, but depended instead on the number of plays produced at the playhouse during any given year. The stage hands who worked at the shows, including appellant, were members of International Alliance of Theatrical Stage Employees Local 21. When the Paper Mill Playhouse produced a play, its management personnel would contact the union's business manager, Stanley Gutowski, and he would notify union members, who would then work for the duration of the play. When the play ended, the union stage hands would be laid off until the playhouse produced its next play. According to Gutowski, the union members who staffed the plays were considered part-time casual employees.

In December 2010 the Playhouse produced Les Miserables, which ended December 30. The union members "loaded it out" on December 31, 2010, and January 1, 2011. The playhouse produced A Funny Thing Happened On The Way To The Forum in March 2011. Had appellant not resigned effective December 18, 2010, he would have worked through January 1, 2011, and likely would have worked during the production of A Funny Thing Happened On The Way To The Forum as well, because he was the assistant prop man and Gutowski would have called him first to do that job.

Appellant resigned to move to South Carolina. He had sold his house and was scheduled to close on January 20, 2011, which would have permitted him to continue working through January 1, 2011, but the closing on his house was changed to December 20, 2010. After appellant's lawyer told him about the new closing date, appellant and his business agent explained the situation to "management" at the Paper Mill Playhouse. Appellant requested permission to leave after December 18, 2010. According to appellant and the business agent, appellant was granted permission to leave and was told there would be no problem with unemployment.

On December 10, 2010, appellant submitted a written resignation by email, which stated:

My house . . . has been sold. The expected closing date is December 20 of 2010. Having no place to stay . . . regrettably, I will not be able to finish the Les Mis run. My last day of work must be December 18[, ] 2010. My many years at Paper Mill are ...

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