NOT FOR PUBLICATION WITHOUT THE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-3452-15T2
GEORGE M. THORN,
Appellant,
v.
BOARD OF REVIEW and
NORTH HANOVER TOWNSHIP
BOARD OF EDUCATION,
Respondents.
___________________________
Submitted June 21, 2017 – Decided September 6, 2017
Before Judges Fuentes and Koblitz.
On appeal from the Board of Review, Department
of Labor, Docket No. 058,789.
Maselli Warren, PC, attorneys for appellant
(Perry S. Warren, of counsel and on the brief;
James Kilduff, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Peter H. Jenkins, Deputy
Attorney General, on the brief).
Respondent North Hanover Township Board of
Education has not filed a brief.
PER CURIAM
George M. Thorn appeals from the final decision of the Board
of Review (Board) which upheld the decision of the Appeal Tribunal
that found Thorn disqualified for benefits under N.J.S.A. 43:21-
5(g) as April 27, 2015, for one year, from the date the Division
of Unemployment Insurance discovered the illegal receipt or
attempted receipt of benefits. The Board also found Thorn was
obligated to refund $23,822 he received as unemployment benefits
for the weeks ending on September 4, 2010 through June 25, 2011,
in accordance with N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-
14.2(b). Finally, under the authority provided in N.J.S.A. 43:21-
16(a), the Board ordered Thorn to pay a fine in the amount of
$5,955.50, which constitutes 25% of the amount fraudulently
obtained.
In this appeal, Thorn argues the Appeal Tribunal's decision
"fails to reference any testimony or legal argument" raised during
"the approximately one-hour-long" telephonic hearing conducted by
an Examiner on December 2, 2015. Thorn, who was represented by
counsel at the hearing, maintains that he did not intentionally
or knowingly misrepresent his employment status when he applied
for partial unemployment compensation benefits.
The followings facts are uncontested. Thorn was employed by
the North Hanover Township School District as a fulltime Teacher
of Physical Education/Health for the school year 2009-2010. His
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annual salary was $47,785. On March 3, 2010, Thorn received a
letter from the Superintendent of Schools informing him that "the
potential exists" that his contract would not be renewed for the
2010-2011 school year. On April 20, 2010, the Superintendent of
Schools apprised Thorn that "[e]nrollment concerns and the related
staffing levels made it impossible for the District to offer you
continued employment. As the District's needs for 2010-2011 are
finalized in the next several months, please do not hesitate to
apply for any posted positions for which you qualify."
On May 11, 2010, the Superintendent of Schools advised Thorn
that in accordance with the provisions of the collective bargaining
agreement the School District had negotiated with the North Hanover
Township Education Association, he was offering Thorn "employment
for the 2010-2011 school year as a PE/Health Teacher . . . at a
salary of $19,114 which will be adjusted accordingly upon
completion of current negotiations." As Thorn explained, this
represented part-time employment as a teacher. He signed a
contract accepting the position, which stated he would work two
days per week at a prorated annual salary of $20,028.40.
On July 4, 2010, nearly two months after he received and
accepted the part-time employment offer, Thorn applied for
unemployment benefits. He stated that he spoke to a claims
representative on the phone and "explained to her that I was
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employed with the District for the two days. I was very clear
about the situation and had no intention to mislead or submit
false information." Thorn received weekly unemployment
compensation benefits in the amount of $544 from September 4, 2010
to June 25, 2011. His weekly benefits payments ended when he was
hired as a fulltime teacher for school year 2011-2012.
Robert Skorochocki is an investigator for the Bureau of
Unemployment Benefits Payment Control (Bureau). He testified at
the telephonic hearing conducted by the Examiner on behalf of the
Appeal Tribunal. Skorochocki interviewed Thorn in 2011 concerning
the alleged overpayment of benefits. The North Hanover Township
School District also provided documentation that showed Thorn
earned $20,140.90 from September 2010 to June 2011. Thorn also
collected $544 weekly unemployment benefits during this same time
period, totaling $23,822. Skorochocki testified that the Bureau's
records confirmed that Thorn did not report any of his earning
from his part-time employment.
The record before the Appeal Tribunal also shows that after
he applied for unemployment benefits on July 4, 2010, Thorn
received a "blue book entitled Unemployment Insurance: Your Rights
and Responsibilities." Skorochocki directed the Examiner to the
relevant part of this document which contained the following
information: "It is a serious offense to claim and or receive
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unemployment insurance benefits fraudulently. It can lead to
severe fines, denial of future benefits or penalties including
criminal prosecution and imprisonment." Among the examples
provided of fraudulent behavior, the book specifically mentioned
failure to disclose income derived from part-time employment.
On cross-examination by appellant's counsel, Skorochocki
confirmed that the Bureau did not have anything in writing from
Thorn in which he denied receiving income as a part-time teacher
from September 4, 2010 to June 25, 2011. As Skorochocki explained,
Thorn made his application by phone. The phone application
procedure is an electronic system in which the applicant responds
to "yes" or "no" questions designed to illicit material information
to determine eligibility for benefits. It is also undisputed that
Thorn would have been entitled to receive partial benefits if he
had disclosed his part-time employment status. Skorochocki
testified that Thorn would have received weekly benefits "in the
range" of $200.
The following colloquy between appellant's counsel and
Skorochocki makes this point clear.
APPELLANT'S COUNSEL: So were it not for this
unilateral conclusion by the Division that Mr.
Thorn's conduct arouse to the level of fraud
then he would in fact be entitled to $200 and
some dollars and you are in a better position
to calculate the exact amount using your
formula, $200 and some dollars per week for
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each during the time period in question,
correct?
BUREAU INVESTIGATOR: That's right, if non-
fraud determination was made he would have
been entitled to the difference from the
partial and his actual earnings. That is
correct.
APPELLANT'S COUNSEL: And if the outcome of
this hearing is that Mr. Thorn did not engage
in fraud then he would in fact be entitled to
that $200 and some dollars per week for each
week during this time period, correct?
BUREAU INVESTIGATOR: That is correct. If
after the Appeal Hearing and the Appeals
Examiner determines it non-fraud he would be
entitled to that, that is correct.
. . . .
APPELLANT'S COUNSEL: Okay, so the question was
. . . the first time that anyone from the
Division and we will count the department of
unemployment . . . communicated with Mr. Thorn
either in writing or verbally between
September of 2010 and June of 2011; the answer
to that question is, yes, correct?
BUREAU INVESTIGATOR: Correct.
APPELLANT'S COUNSEL: So Mr. Thorn made no
false statement to the . . . Division or the
department of unemployment?
BUREAU INVESTIGATOR: An actual statement, no.
APPELLANT'S COUNSEL: Not verbally?
BUREAU INVESTIGATOR: No.
APPELLANT'S COUNSEL: Not in writing?
BUREAU INVESTIGATOR: No.
6 A-3452-15T2
APPELLANT'S COUNSEL: So the Division bases
this determination of fraud solely on Mr.
Thorn having pushed button two rather than
button one or "A" or "B" or whatever during
the . . . time period that he received
unemployment?
BUREAU INVESTIGATOR: Yeah, that is correct.
The Examiner followed up on this issue when Thorn testified.
EXAMINER: Okay, now the investigator indicated
that you certified for benefits by telephone,
do you recall doing that, sir?
APPELLANT: Yes.
EXAMINER: Do you recall the question that the
investigator had read into the record, . . .
question number seven; it is a yes or no
answer. The question was: "Did you work
during the period in question[?]" [D]o you
recall answering that question, sir?
APPELLANT: Does the question sound familiar,
as to the exact verbiage . . . I can't say I
do but I do remember reading it and in my
actual mind believing what I was pressing was
true based on the claim that I made that I was
claiming the three days non-working so in my
mind that was true to me.
. . . .
EXAMINER: . . . how did you answer that
question, sir?
. . . .
APPELLANT: No, I responded, "No"
EXAMINER: Okay, so you pushed button two that
you did not work?
7 A-3452-15T2
APPELLANT: Yes.
APPELLANT'S COUNSEL: Well, wait, let me
clarify here; he said he doesn't recall what
the question was.
EXAMINER: Okay, the question was: "Did you
work it was yes or no?
APPELLANT: For the days that I was claiming,
no.
The Appeal Tribunal issued its decision on December 2, 2015.
The Tribunal found appellant answered "No" to the question "Did
you work during the weeks claimed?" despite the fact that he was
working on a part-time basis for the same employer. Citing
appellant's testimony, the Tribunal found that appellant received
these benefits as "a result of false or fraudulent representation."
The Tribunal tabulated the overpayment weeks and determined, as a
matter of law, that appellant had violated N.J.S.A. 43:21-16(d)(1)
and was therefore "liable to repay those benefits in full" in the
sum of $23,882. The Tribunal also imposed a fine of $5,995, which
represented 25% of the amount fraudulently obtained. N.J.S.A.
43:21-16(a). The Board accepted the Tribunal's decision without
modification.
Citing Banco Popular N. Am. v. Gandi, 184 N.J. 161 (2005),
appellant argues that viewing the record objectively, his conduct
was, at worse, merely negligent not fraudulent. In Banco Popular,
our Supreme Court defined the four elements necessary to prove the
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tort of common-law fraud: "(1) a material misrepresentation of a
presently existing or past fact; (2) knowledge or belief by the
defendant of its falsity; (3) an intention that the other person
rely on it; (4) reasonable reliance thereon by the other person;
and (5) resulting damages." Id. at 173 (quoting Gennari v.
Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Here, the
fraudulent conduct that triggers the statutory sanctions has been
defined by the Legislature in N.J.S.A. 43:21-16(d)(1). The statute
requires an applicant or another's "nondisclosure or
misrepresentation . . . of a material fact." The Legislature
created this statutory standard to recover benefits that appellant
was not entitled to receive.
The Supreme Court confronted a similar situation in Malady
v. Board of Review, 76 N.J. 527 (1978):
Thus, we believe that subsection [N.J.S.A.
43:21-16](d), which is found in a provision
entitled "Penalties", is intended by the
Legislature to give the director the
discretion to impose an additional penalty
where the claimant purposely fails to make an
accurate or truthful report of his income.
That the other subsections of N.J.S.A. 43:21-
16 also provide separately for some penalty,
rather than indicating the contrary, is in
fact strong evidence of subsection (d)'s own
"penalty" potential.
[Id. at 531]
9 A-3452-15T2
"Our scope of review of an administrative agency action is
limited and highly deferential." In re Y.L., 437 N.J. Super. 409,
412 (App. Div. 2014). As long as the Board's decision is supported
by sufficient credible evidence in the record and was not
"arbitrary, capricious, or unreasonable," it will be affirmed.
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We review the
record to determine: "(1) whether the agency's decision conforms
with relevant law; (2) whether the decision is supported by
substantial credible evidence in the record; and (3) whether, in
applying the law to the facts, the administrative agency clearly
erred in reaching its conclusion." Twp. Pharmacy v. Div. of Med.
Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (2013).
Against this standard of review, we discern no legal basis
to disturb the Board's review determination.
Affirmed.
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