PEDRO DIBLASI VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3504-16T1

PEDRO DIBLASI,

Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR, and
DAVIDSON HOTEL COMPANY, LLC,

Respondents.
________________________________

Submitted May 30, 2018 – Decided July 17, 2018

Before Judges Sumners and Natali.

On appeal from the Board of Review, Department
of Labor, Docket No. 105,948.

Pedro Diblasi, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney
for respondent Board of Review (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Shareef M. Omar, Deputy Attorney
General, on the brief).

Respondent Davidson Hotel Company, LLC, has
not filed a brief.

PER CURIAM
 Pedro Diblasi appeals from a final agency decision of the

Board of Review concluding that he was disqualified for

unemployment benefits under N.J.S.A. 43:21-5(a) because he left

work voluntarily without good cause attributable to his work. We

affirm.

The facts are not in dispute. Employed by Davidson Hotel

Company, LLC, Diblasi's request for a one-month leave of absence

to attend to his terminally ill mother – who resided in another

country – was denied because he did not work long enough to qualify

for federal or state family leave.1 To avoid termination for job

abandonment and to conclude his employment on good standing for

possible re-employment, Diblasi submitted a resignation letter

stating that he was leaving his job in three weeks due to a family

emergency.

Upon his return from taking care of his mother, Diblasi

applied for unemployment benefits. The Appeal Tribunal denied his

request, ruling:

[Diblasi] sought a leave of absence, but was
denied due to the lack of sufficient time
working for the employer. The evidence
supports the conclusion [he] was aware he was
being denied leave, he elected to sever the
employer-employee relationship and that he
understood he would have to reapply for work
upon his return.

1
Diblasi worked for six-and-a-half months.

2 A-3504-16T1
 [Diblasi] left work to care for a family
member. This was a personal reason and was
not attributable to the work. Therefore,
[Diblasi] is disqualified as of [March 20,
2016], under N.J.S.A. 43:21-5(a), as he left
work voluntarily without good cause
attributable to such work.

The Board agreed with the Appeal Tribunal's decision.

On appeal, Diblasi argues he is eligible for benefits because

his employer's denial of his family leave request constituted a

discharge under N.J.A.C. 12:17-10.2; thus, he neither abandoned

nor quit his job. He maintains the Board's determination is

arbitrary and capricious, which denies him due process and

fundamental fairness. We find no merit to these contentions.

The scope of our review of an administrative agency's final

determination is strictly limited. Brady v. Bd. of Review, 152

N.J. 197, 210 (1997). The agency's decision may not be disturbed

unless shown to be arbitrary, capricious or unreasonable. Ibid.

Therefore, "[i]f the Board's factual findings are supported 'by

sufficient credible evidence, courts are obliged to accept them.'"

Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).

We see no reason to disturb the Board's decision. N.J.S.A.

43:21-5 provides that a person is ineligible for unemployment

benefits for resigning because it is not for good cause

attributable to work. Hence, our Supreme Court has explained that

an employee who voluntarily leaves employment for good, but

3 A-3504-16T1
personal reasons, is not deemed to have left work voluntarily for

good cause. Brady, 152 N.J. at 213. The record here clearly

shows that Diblasi did not qualify for family leave and decided

to leave his job in order to take care of his ailing mother. There

is nothing in the record to suggest that he was forced to leave

his job, or that his resignation letter was not a voluntary act.

While we appreciate the unfortunate circumstances confronting

Diblasi, the consequence is that under N.J.S.A. 43:21-5(a) he is

not entitled to unemployment benefits.

Diblasi's reliance upon N.J.A.C. 12:17-10.2 is misplaced.

The regulation provides that an employee may not be disqualified

from benefits if discharged from employment where there was good

cause for being absent from work. N.J.A.C. 12:17-10.2(a). Good

cause is defined as "any compelling personal circumstance,

including illness, which would normally prevent a reasonable

person under the same conditions from reporting to work."

N.J.A.C. 12:17-10.2(b). Yet, "[a]n unauthorized absence for five

or more work days may constitute job abandonment" and cause

disqualification for benefits. N.J.A.C. 12:17-10.2(c). Because

Diblasi was not terminated for not reporting to work – he gave

notice that he was resigning in order to take care of his mother

for a month – N.J.A.C. 12:17-10.2 does not apply.

4 A-3504-16T1
 Accordingly, the Board's decision does not violate the state

or federal constitutions, is not contrary to express or implied

legislative policies, and is supported by substantial, credible

evidence in the record. See Brady, 152 N.J. at 210-11.

Affirmed.

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