Opinion
DOCKET NO. A-5792-12T3
06-10-2015
RICHARD J. AMABILE, Appellant, v. BOARD OF REVIEW, SLOAN & COMPANY, INC., and NEW JERSEY CARPENTERS UNION, Respondents.
Richard J. Amabile, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief). Respondent Sloan & Company, Inc. has not filed a brief. Respondent New Jersey Carpenters Union has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 418,093. Richard J. Amabile, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief). Respondent Sloan & Company, Inc. has not filed a brief. Respondent New Jersey Carpenters Union has not filed a brief. PER CURIAM
Appellant Richard J. Amabile appeals from the June 11, 2013 final decision of the Board of Review (Board), which affirmed the decision of the Appeal Tribunal reducing his unemployment benefits to zero pursuant to N.J.S.A. 43:21-5a, and N.J.A.C. 12:17-8.1(a) and -8.2(a)(1) based on his receipt of pension benefits. For the following reasons, we affirm.
Amabile also appealed from the Board's decision affirming the Appeal Tribunal's decision that he is liable for a refund in the amount of $611 pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2. Because Amabile did not address this issue in his merits brief, it is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).
We derive the following facts from the record. Amabile had been a member of the New Jersey Carpenters Union (the Union) since 1967. From 1967 to 2001, he worked for numerous employers who each contributed to his pension, which the Union maintained. In May 2001, he began working for Sloan & Company, Inc. (Sloan). Sloan was the sole contributor to his pension.
On July 1, 2012, Amabile filed a claim for unemployment benefits. The claim established a weekly benefit rate of $611 and a maximum benefit amount of $15,886. The claim was established based on Amabile's earnings from Sloan during the base year period. Sloan was the sole contributor to his pension during that base year period.
It is unclear from the record when Amabile was laid off from his employment with Sloan. He states in his merits brief that he was laid off in March 2013, but testified at the hearing before the Appeal Tribunal in April 2013 that he was still employed by Sloan. In any event, he filed his claim for unemployment benefits in 2012, and it is undisputed that during the base year period used to establish his eligibility for unemployment benefits, Sloan was his only employer who contributed one hundred percent to his pension.
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On January 1, 2013, Amabile began receiving pension payments of $3388 per month. He also continued receiving $611 in weekly unemployment benefits until the week ending February 9, 2013. On March 13, 2013, the Deputy Director found Amabile eligible for unemployment benefits from January 22, 2013, but reduced the weekly benefit to zero based on his monthly pension payment.
Amabile appealed the Deputy Director's determination, arguing that Sloan was not the sole contributor to his pension over the course of his career and that the reduction in his unemployment benefits should be prorated according to the percentage that Sloan contributed to his pension. The Appeal Tribunal rejected this argument and affirmed, finding that Amabile received pension benefits of $3388 per month from a pension to which Sloan, "the base year chargeable employer," had solely contributed. Accordingly, the Appeal Tribunal reduced Amabile's weekly unemployment benefit rate to zero, effective January 6, 2013, pursuant to N.J.S.A. 43:21-5a, and N.J.A.C. 12:17-8.1(a) and -8.2(a)(1).
Amabile appealed the Appeal Tribunal's decision. The Board affirmed on the record below. In the present appeal, Amabile reiterates the argument he raised before the Appeal Tribunal. We reject that argument as well.
Our review of an administrative agency decision is limited. Frazier v. Bd. of Review, 439 N.J. Super. 130, 133 (App. Div. 2015). "'[We] will not upset an agency's ultimate determination unless the agency's decision is shown to have been arbitrary, capricious, or [] unreasonable, or not supported by substantial credible evidence in the record as a whole.'" Ibid. (second alteration in original) (quoting Barrick v. State, 218 N.J. 247, 259 (2014)). An administrative agency's decision "carries with it the presumption of reasonableness." Id. at 134. "We defer to an agency's interpretation of its own regulations unless 'plainly unreasonable.'" Ibid. (quoting In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)). If, however, the agency's decision is plainly mistaken, "it is entitled to no such deference and must be reversed in the interests of justice." Ibid. Applying these standards, we discern no reason to disturb the Board's decision.
When an individual is found eligible for unemployment benefits, but is simultaneously receiving pension payments, the amount of unemployment benefits
shall be reduced . . . by an amount equal to the amount of such pension . . . which is reasonably attributable to such week . . . in the case of a pension . . . under a plan maintained or contributed to by a base period or chargeable employer[.]See also N.J.A.C. 12:17-8.1(a) (providing that "[w]hen a pension is received from a base period or chargeable employer benefits shall be reduced if the pension . . . is under a plan maintained or contributed to by such employer"). Thus, the reduction applies where, such as here, the chargeable employer contributed to the claimant's pension.
[N.J.S.A. 43:21-5a.]
Further, N.J.A.C. 12:17-8.2(a)(1) provides that "[i]f [a pension] payment is made under a plan to which the individual did not contribute, the weekly and maximum amount of benefits payable to the individual shall be reduced by an amount equal to the amount of the pension . . . which is reasonably attributable to such week[.]" Thus, the full amount of the pension is applied to reduce unemployment benefits where, such as here, the pension is one hundred percent employer funded.
Because Amabile was receiving pension payments of $3388 per month, and because Sloan, the base period chargeable employer, was the sole contributor to his pension during the base year, the Board correctly reduced the amount of his unemployment benefits to zero. The Board's decision was amply supported by the record and is not arbitrary, capricious or unreasonable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION