SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6497-94T2
HUGH J. LOGAN, JR.,
Petitioner-Appellant,
v.
BOARD OF REVIEW,
Respondent-Respondent.
_________________________________________________________________
Submitted December 3, 1996 - Decided April 7, 1997
Before Judges Pressler, Humphreys and Wecker.
On appeal from the Board of Review, Department of
Labor.
Stark & Stark, attorneys for appellant (Perry S.
Warren, of counsel and on the brief).
Peter Verniero, Attorney General, attorney for
respondent (Mary C. Jacobson, Assistant Attorney
General, of counsel, Geetha Nimmagadda, Deputy Attorney
General, on the brief).
The opinion of the court was delivered by
HUMPHREYS, J.A.D.
The claimant was "laid off" from his job. While collecting
unemployment compensation benefits, he and two others started a
business. The Appeal Tribunal of the New Jersey Department of
Labor found that he was not available for work during the time he
worked for his business and was therefore ineligible for
unemployment benefits. He was directed to repay the benefits he
had received, fined $1,617.00 and disqualified from benefits for
one year.
The Board of Review affirmed. The Board said it was "clear
the claimant restricted his availability to work with his
corporation where he had a substantial investment and that [the]
corporation benefitted from his services at the expense of the
unemployment insurance trust fund."
The claimant appeals, contending: (1) he was available for
work; and (2) he did not falsely, fraudulently or otherwise
misrepresent his employment status and therefore should not have
been disqualified for benefits.
We affirm the Board's decision on the refund. We reverse on
the fine and one year disqualification.
An adjudication by an administrative agency will be
sustained on appeal unless the decision is arbitrary, capricious
or unreasonable or is unsupported by substantial credible
evidence in the record as a whole. Henry v. Rahway State Prison,
81 N.J. 571, 579-80 (1980); see also Clowes v. Terminix Int'l,
Inc.,
109 N.J. 575 (1988). The appellate court must also give
due regard to the opportunity of the one who heard the witnesses
to judge their credibility. Jackson v. Concord Co.,
54 N.J. 113,
117 (1969).
The Board's finding that the claimant was not available for
work was a reasonable determination. The claimant had a one-third interest in the business. He worked for the business five
days a week, spending about thirty hours a week. Although he was
reimbursed for certain expenses, he was not on the payroll of the
business while he was collecting unemployment benefits. However,
the claimant was sufficiently involved in the new business that
the Board could reasonably find that he was not "available for
work" during that period. See Ford v. Board of Review,
287 N.J.
Super. 281, 286 (App. Div. 1996); see also Pedalino v. Board of
Review,
83 N.J. Super. 449, 452 (App. Div.), certif. denied,
43 N.J. 129 (1964). Accordingly, the claimant should refund the
unemployment benefits.
As to the fine and disqualification, the Appeal Tribunal
found by a preponderance of the evidence that the claimant
"knowingly failed to disclose a material fact when he did not
disclose he owned a business" and that he had "misrepresented
himself as unemployed on his weekly claims for benefit."
However, the Appeal Tribunal Examiner also found that claimant
did not inform the unemployment office of the business or his
services to the business "because he received no compensation and
did not consider the services employment." The Board "deleted"
that finding. The Board gave no reason for its deletion. The
Board did not hear the evidence and was therefore in a poor
position to determine the credibility of the claimant. Under
these circumstances, the finding of the Appeal Tribunal should
not have been deleted.
The Appeal Tribunal apparently concluded that the claimant
did not disclose his ownership of a business and his services to
the business because he honestly believed these facts were not
relevant to his employment status. Fines and disqualifications
should ordinarily not be grounded on innocent misrepresentations,
except in cases involving penal or regulatory statutes. See
Morissette v. United States,
New Jersey's Unemployment Compensation Law is social
legislation which should be remedially construed. Carpet Remnant
Warehouse, Inc. v. Department of Labor,
Affirmed in part and reversed in part.