VINCENT M. RICCORDELLA VS. BOARD OF REVIEW (DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3455-17T3
VINCENT M. RICCORDELLA,
Appellant,
v.
BOARD OF REVIEW, and
INTERNATIONAL FIDELITY
INSURANCE CO.,
Respondents.
_____________________________
Submitted April 4, 2019 – Decided April 17, 2019
Before Judges Simonelli and Whipple.
On appeal from the Board of Review, Department of
Labor and Workforce Development, Docket No.
047,455.
Vincent M. Riccordella, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Alexis F.
Fedorchak, Deputy Attorney General, on the brief).
Respondent International Fidelity Insurance has not
filed a brief.
PER CURIAM
Appellant Vincent Mark Riccordella appeals from the March 23, 2018
final decision of respondent Board of Review (Board) affirming the February 1,
2018 decision of the Appeal Tribunal that appellant was discharged from his
employment as a result of gross misconduct connected with the work, within the
meaning of N.J.S.A. 43:21-5(b), and must refund unemployment benefits he
improperly received in accordance with N.J.S.A. 43:21-16(d). We affirm.
We derive the following facts from the record. On January 15, 2009,
appellant began his employment with International Fidelity Insurance Company
(IFIC) as a consultant. IFIC permanently hired him on March 30, 2009 as a
Senior Vice President Risk Management, and promoted him to Chief Financial
Officer on July 1, 2009.
In March 2014, IFIC discovered an accounting irregularity and retained
an accounting firm to conduct a forensic investigation. The investigation
revealed that appellant had transferred over one million of IFIC's funds to
accounts held in his name and/or the names of companies he solely owned. The
investigation did not reveal any business reason for these transfers or any
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legitimate reasons for money to go from IFIC into these accounts. As a result
of the investigation, IFIC terminated appellant on March 28, 2014 for gross
misconduct. Appellant did not return the money he transferred. IFIC filed a
civil action against appellant, which the court dismissed with prejudice after the
parties entered into a confidential settlement agreement.
On March 30, 2014, appellant filed a claim for unemployment benefits.
The Deputy Assistant Commissioner (Deputy) found appellant was disqualified
for unemployment benefits as of March 23, 2014, because he was discharged for
theft by deception.
Appellant appealed to the Appeal Tribunal. The Appeal Tribunal held a
hearing on July 17, 2015, at which IFIC failed to appear. The Appeal Tribunal
found appellant was not disqualified under N.J.S.A. 43:21-5(b), nor liable for a
refund of $4452 under N.J.S.A. 43:21-16(d). IFIC appealed the Appeal
Tribunal's decision to the Board. The Board remanded the matter to the Appeal
Tribunal.
The Appeal Tribunal held a hearing on March 31, 2016, at which IFIC
presented the facts stated above. Appellant denied he made the transfers. The
Appeal Tribunal thereafter affirmed the Deputy's decision that appellant was
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disqualified for unemployment benefits as of March 23, 2014, and held him
liable for a refund of $4452.
What happened thereafter is set forth in our opinion in Riccordella v.
Board of Review, No. A-4701-15 (App. Div. July 21, 2017), and need not be
repeated here. Ultimately, the Appeal Tribunal held another hearing on January
16, 2018. At the hearing, appellant admitted he transferred over one million of
IFIC's funds into accounts he owned and controlled, but claimed he did so "with
the full knowledge of senior management of the company" and "was authorized
to do whatever [he] needed to do with the money per an investment agreement."
He testified he made the transfers in complicity with senior management in order
to subvert State regulations and avoid the scrutiny of financial regulators so as
not to adversely affect IFIC insurance rates.
The Appeal Tribunal affirmed the Deputy's decision. The Appeal
Tribunal rejected appellant's explanation for the transfers and concluded he was
disqualified for benefits under N.J.S.A. 43:21-5(b) because he was discharged
for gross misconduct connected with the work, namely committing an act
punishable under N.J.S.A. 2C:20-3 (theft by unlawful taking or disposition) and
N.J.S.A. 2C:21-4.6 (insurance fraud). The Appeal Tribunal held appellant liable
for a refund of $4452.
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Appellant appealed to the Board. The Board affirmed the Appeal Tribunal
on the record below. This appeal followed.
On appeal, appellant contends the Board's decision constituted harmful
error because the Appeal Tribunal erroneously relied on N.J.S.A. 2C:21-4.6 with
no support in the record that appellant committed insurance fraud. Appellant
also contends the Board's decision was arbitrary, capricious and unreasonable;
he was denied due process by the Board's bias and prejudice and inclusion of
evidence into the record without his knowledge; and the Board missed the
deadline to submit the statement of items comprising the record.
Our review of the Board's decision is limited. Brady v. Bd. of Review,
152 N.J. 197, 210 (1997). "[I]n reviewing the factual findings made in an
unemployment compensation proceeding, the test is not whether [we] would
come to the same conclusion if the original determination was [ours] to ma ke,
but rather whether the factfinder could reasonably so conclude upon the proofs."
Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div.
1985)). "If the Board's factual findings are supported 'by sufficient credible
evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of
Review, 91 N.J. 453, 459 (1982)). We also defer to the Board's credibility
findings. Logan v. Bd. of Review, 299 N.J. Super. 346, 348 (App. Div. 1997).
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Unless the Board's action was arbitrary, capricious, or unreasonable, [its] ruling
should not be disturbed." Brady, 152 N.J. at 210. Applying these standards, we
discern no reason to reverse the Board's decision.
An employee shall be disqualified for benefits:
For the week in which the individual has been
suspended or discharged for misconduct connected
with the work, and for the five weeks which
immediately follow that week, as determined in each
case.
....
If the discharge was for gross misconduct connected
with the work because of the commission of an act
punishable as a crime of the first, second, third or fourth
degree under the "New Jersey Code of Criminal
Justice," [N.J.S.A. 2C:1-1 to -104-9], the individual
shall be disqualified in accordance with the
disqualification prescribed in subsection (a) of this
section and no benefit rights shall accrue to any
individual based upon wages from that employer for
services rendered prior to the day upon which the
individual was discharged.
[N.J.S.A. 43:21-5(b).]
N.J.S.A. 2C:20-3 provides as follows:
a. Movable property. A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over,
movable property of another with purpose to deprive
him thereof.
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b. Immovable property. A person is guilty of theft if he
unlawfully transfers any interest in immovable property
of another with purpose to benefit himself or another
not entitled thereto.
That the Appeal Tribunal relied on N.J.S.A. 2C:21-4.6 is no reason to
reverse. There is sufficient credible evidence in the record to support the Board's
determination that appellant was discharged for gross misconduct connected
with the work by committing an act that was punishable under N.J.S.A. 2C:20-
3. The Board accepted the Appeal Tribunal's finding that appellant's explanation
for the transfers was not credible and that credibility determination is entitled to
deference. Logan, 299 N.J. Super. at 348. We are satisfied there is sufficient
competent credible evidence supporting the Board's decision, and the decision
is not arbitrary, capricious or unreasonable.
To the extent we have not specifically addressed any of appellant's
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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