                        NOT FOR PUBLICATION WITHOUT THE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

                                    2                                  A-3452-15T2
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

                                        3                                A-3452-15T2
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

                                    4                            A-3452-15T2
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

                                        5                             A-3452-15T2
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

                                 8                          A-3452-15T2
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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