SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0225-17T2

JULIO PENDOLA,

Petitioner-Appellant,

v.

MILENIO EXPRESS, INC.,

d/b/a CLASSIC,

Respondent-Respondent.

_______________________________

Argued June 26, 2018 - Decided October 26, 2018

Before Judges Nugent and Accurso. 

On appeal from the Department of Labor and 

Workforce Development, Division of Workers'

Compensation, Claim Petition No. 2014-31102.

Pablo N. Blanco argued the cause for appellant (The 

Blanco Law Firm, LLC, attorneys; Pablo N. Blanco, on 

the brief).

Robert M. Gilbert argued the cause for respondent (Law 

Offices of Styliades and Jackson, attorneys; Robert M. 

Gilbert, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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The Division of Workers' Compensation dismissed Julio Pendola's claim 

petition for compensation benefits against Milenio Express, Inc. d/b/a Classic, 

on the basis that Pendola was not Classic's employee. Pendola appeals, claiming 

he established an employment relationship because his work was an integral part 

of Classic's business and controlled by the company. We agree and reverse.

Pendola, an auto cab driver in Newark, fractured his ankle in 2014 picking 

up a customer. The facts of Pendola's accident and injury are not at issue in this 

appeal.1 The parties agreed to bifurcate the trial, with the court first addressing

whether Pendola was an employee of Classic or an independent contractor. Only 

two witnesses testified, Pendola and Veronica Solano, a Classic supervisor.

Pendola testified he had worked exclusively as a driver for Classic since 

2003, at first driving someone else's car. When he purchased his own car, a 

Crown Victoria, he consulted with Classic. Classic required that he paint the 

car silver, the color assigned the company by the City, and affix the Classic logo 

to the sides and front of the car, along with the company's telephone number. 

The company also required that he purchase a two-way radio to be installed in 

the car. Pendola testified he paid for all of those expenses as well as for his 

 

1 We note, however, that the injury was a serious one, requiring surgery. 

Pendola had no other insurance and medical bills of over $63,000, some of 

which were paid by charity care. 
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medallion, gas, maintenance on his car and liability insurance. The company 

told him where to pick up customers and supplied him with business cards, 

receipts and vouchers, "whatever we needed to work," all bearing the Classic 

logo. 

Pendola explained he was not permitted to pick up passengers off the 

street as a taxi driver would. The only passengers he was permitted to pick up 

were those dispatched through Classic. He testified he paid Classic $150 a week

and was permitted to keep all of his fares. He estimated he grossed between 

$500 and $700 a week. He could work whatever hours he chose. Pendola 

testified that Classic had rules for drivers, which they enforced. Asked what 

kind of rules, he said, "Like you had to get well dressed. Keep the car clean. 

Be polite with the people . . . [and] [b]e on time on the pick ups." If a driver 

failed to follow the rules, he would be suspended. Pendola said he was 

suspended a couple of times for picking up another driver's fare or being late for 

pick-ups. He testified that on those occasions he was suspended for a few hours 

or the rest of the day. He also claimed Classic stopped letting some drivers work 

after "they got nasty."

Pendola testified Classic was owned by six people and the company had
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over 100 cars. Driving for Classic was Pendola's only job and it represented his 

only source of income for his entire tenure. 

Solano testified that Classic, although owned by one individual, her 

cousin, was "more of like a family business." "The people that supervise are 

family members" and "[m]ost of the family members also have vehicles working 

with the company." Solano testified that although she did not drive, her husband 

did, and they had "two more drivers" who rent the cars and pay the couple a 

weekly fee.

Solano testified that Classic is a "dispatching service." The drivers are 

"called independent owners/operators" who have their own cars, their own 

medallions and Classic charges them "a weekly dispatching fee for the service." 

Asked about the company's requirement that the drivers paint their cars silver 

and carry the Classic name and phone number, Solano explained that the "[t]he 

City of Newark Taxi Division requires that each company have a color" and that 

Classic had been assigned "the silver color for many years." "So if they're going 

to work with our transportation company they have to have our color; they have 

to have our logos." Solano further explained that the drivers also "have to have

the Newark license in the back in case there's an accident . . . then the other 
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person can actually see what company it is, what the auto cab license number 

is."

Solano testified that Classic is not a taxi service but an auto cab company 

and that its customers have to "call our office . . . for the ride." She explained 

that at the time of Pendola's accident, Classic "had two different [radio] channels

at [its] office besides the phone operators."2 When a driver 

would want to start to work[,] he would turn on the 

radio and he would listen to the dispatcher calling out 

the jobs and if he was close to one of those jobs he 

would what we say "punch for the ride" or "request the 

ride."

He would press his microphone. The number 

would come up at the office so we would know that he 

was requesting that job. He would be put in a list along 

with the other people that are requesting the ride, and 

then the dispatcher will assign the ride according to 

who was next on the list, who was waiting longer for 

the next ride. 

Solano explained that Classic does not "force [the drivers] to go and pick 

up a certain fare. That's up to them. They're their own boss." She also testified 

that "[t]he rules that [the drivers] have to follow . . . are pretty much the ones 

that we enforce according to what [the] Taxi Division requests." Although 

 

2 Since the accident, Classic has abandoned two-way radios and now dispatches 

drivers via computer tablets the drivers purchase themselves.
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A-0225-17T2

testifying that Classic enforced the rules in order to "try to help [the drivers] 

out" by avoiding tickets issued by the Taxi Division, she conceded "[o]f course, 

we want our customers to have nice vehicles, clean vehicles, proper attired 

drivers, you know." Solano testified if a driver violated the rules, Classic "put 

them out for [two] hours." She provided an example of a customer calling and 

telling her "[t]he vehicle that I'm riding in right now is extremely dirty and has 

a hole in the floor." Solano said "[s]o I called the driver and I said: A customer 

is telling me that you have this and that. You need to come here so we can look 

at the vehicle, and you are going to be out until you do so. You have [two]

hours."

When asked whether Classic routinely inspected the drivers' cars, Solano 

responded: "We have — we don't really do it but we have certain people that 

check the vehicles and if they see that there's something they will call us and 

they'll tell us: That person needs to go to a car wash. The car is dirty." She 

testified that Classic did not furnish any equipment for the drivers but provided 

them with Classic "business cards, receipts, vouchers for credit cards that they 

would need" and sometimes purchased key chains and pens for them "to give to

the customers." Solano also explained the company advertised its transportation 

service via a website and has "an app for our customers . . . to request service." 
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She testified that Classic has no written agreements with the drivers and "[t]hey 

don't receive a 1099 or anything from us. They're not our employees." She did, 

however, concede that Classic drivers were not free to pick up fares in a silver 

Classic car dispatched through another company, explaining "[t]hey're auto cabs

and that's how it works." 

Applying the twelve-factor Pukowsky

3

test, the framework the Court 

adopted "for assessing a worker's employment status in the context of social 

legislation" in D'Annunzio v. Prudential Insurance Co. of America, 192 N.J. 

110, 122-24 (2007), and "endorse[d] for purposes of determining whether the 

Compensation Act applies" in Estate of Kotsovska ex rel. Kotsovska v. 

 

3

 Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998). The 

twelve factors are as follows:

(1) the employer's right to control the means and 

manner of the worker's performance; (2) the kind of 

occupation-supervised or unsupervised; (3) skill; (4) 

who furnishes the equipment and workplace; (5) the 

length of time in which the individual has worked; (6) 

the method of payment; (7) the manner of termination 

of the work relationship; (8) whether there is annual 

leave; (9) whether the work is an integral part of the 

business of the “employer[”;] (10) whether the worker 

accrues retirement benefits; (11) whether the 

“employer” pays social security taxes; and (12) the 

intention of the parties.

[Ibid. (citation omitted).]
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Liebman, 221 N.J. 568, 576, 595 (2015), the compensation judge concluded 

Pendola was not an employee of Classic. The judge found Classic "exercised 

very little control over the means and manner of [Pendola's] performance." He 

noted that although Pendola was required by the "Taxi Division to paint his 

vehicle silver and to place the name 'Classic'" and the company's phone number 

on it, "he was otherwise left on his own to drive and pick up fares and 

unaccountable to Milenio/Classic." The judge noted Pendola set his own 

schedule and was free to accept or reject the fares dispatched to him by Classic.

The judge also found Classic did not supervise Pendola, that he was 

required to have an auto cab license and comply with the rules of the Taxi 

Division, that he furnished his own car and that, although he had been 

"associated with" Classic for eleven years, it was "only to the extent of being a 

driver of an auto cab which was dispatched by Milenio/Classic." The judge 

further found Pendola received no salary from Classic but was required to pay a 

dispatching fee of $150 per week. As to factor seven, the manner of termination

of the relationship, the judge found that Pendola "would only be prohibited from 

operating an auto cab by the Taxi Division for failing to comply with the Taxi 

Division rules and regulations, which would result in the revocation of his auto 

cab license by the Taxi Division." The judge found there was no annual leave.
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As to factor nine, whether Pendola's work was an integral part of Classic's 

business, the judge found Classic's business was "dispatching [Pendola] and 

drivers of auto cabs." He found Classic was not dependent on Pendola, 

reasoning that were he "not available to transport a fare, another cab driver was 

waiting to do so. No one driver was essential to the effective functioning of the 

business." 

The judge further found that Pendola did not accrue retirement benefits 

and Classic did not pay social security taxes. As to the final factor, the judge 

found "based upon the arrangement" between the parties, "it is clear there was 

no intention that petitioner was to be an employee of Milenio/Classic."

Pendola appeals, arguing the compensation court underestimated the 

degree of control Classic exercised over its drivers relevant to factor one of the 

Pukowsky test and misconstrued critical factor nine, representing the "relative 

nature of the work test," which measures "the extent of the economic 

dependence of the worker upon the business he serves and the relationship of 

the nature of his work to the operation of that business." Marcus v. E. Agric. 

Ass'n, Inc., 58 N.J. Super. 584, 603 (App. Div. 1959) (Conford, J.A.D., 

dissenting), rev'd on dissent, 32 N.J. 460 (1960). We agree.
10 A-0225-17T2

Because the question before us involves an interpretation of law and the 

legal consequences of established facts, our review is de novo. Manalapan 

Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995). 

The Supreme Court has reiterated on numerous occasions that our State's 

comprehensive statutory scheme of workers' compensation coverage "for the 

compensation of injured workers 'is remedial social legislation and should be 

given liberal construction in order that its beneficent purposes may be 

accomplished.'" Cruz v. Cent. Jersey Landscaping, Inc., 195 N.J. 33, 42 (2008) 

(quoting Torres v. Trenton Times Newspaper, 64 N.J. 458, 461 (1974)).

As the Court held in D'Annunzio, and reiterated in Kotsovska, "when 

'social legislation must be applied in the setting of a professional person or an 

individual otherwise providing specialized services allegedly as an independent 

contractor,' the trial court should consider three factors: '(1) employer control; 

(2) the worker's economic dependence on the work relationship; and (3) the 

degree to which there has been a functional integration of the employer's 

business with that of the person doing the work at issue.'" Kotsovska, 221 N.J. 

at 594 (quoting D'Annunzio, 192 N.J. at 122); see also Hargrove v. Sleepy's, 

LLC, 220 N.J. 289, 310 (2015) (emphasizing those three of the twelve Pukowsky

factors as most pertinent when applying socially remedial legislation). 
11 A-0225-17T2

Here, of course, there was no dispute regarding Pendola's economic 

dependence on Classic. Pendola had been driving for Classic for eleven years, 

and it was his sole source of income. Although one could debate whether the 

requirement that Pendola paint his car silver and display prominently the Classic 

name and phone number was indicia of control by Classic or merely enforcement 

of Newark auto cab regulations, other aspects of the relationship point

unequivocally to a significant level of control by Classic over its drivers. 

Besides requiring its drivers install a two-way radio in the cars, at their 

expense, the drivers were subject to Classic's rules as to which drivers would 

receive a dispatched fare. Drivers were not free to pick up any nearby passenger

calling Classic for a ride. They were required, pursuant to rules established by 

Classic, to request the ride from the dispatcher, who would decide which driver 

would pick up the passenger based on how long the driver had waited since his 

last fare. Further, as explained by Classic supervisor Solano, when customers 

complained about the condition of a car, a supervisor would immediately contact 

the driver and tell him, "[y]ou need to come here so we can look at the vehicle, 

and you are going to be out until you do so. You have [two] hours." The 

testimony demonstrated not only that Classic maintained rules for its drivers, 

but that it enforced them.
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Even more important, however, we conclude the judge of compensation 

misapplied factor nine, "whether the work is an integral part of the business of 

the 'employer.'" Pukowsky, 312 N.J. Super. at 183. As Justice LaVecchia 

explained in D'Annunzio, that factor "allows for examination of the extent to 

which there has been a functional integration of the employer's business with 

that of the person doing the work." 192 N.J. at 123. 

Several questions elicit the type of facts that would 

demonstrate a functional integration: Has the worker 

become one of the "cogs" in the employer's enterprise?

Is the work continuous and directly required for the 

employer's business to be carried out, as opposed to 

intermittent and peripheral? Is the professional 

routinely or regularly at the disposal of the employer to 

perform a portion of the employer's work, as opposed 

to being available to the public for professional services 

on his or her own terms? Do the "professional" services 

include a duty to perform routine or administrative 

activities? If so, an employer-employee relationship 

more likely has been established.

[Id. at 123-24.]

Asking those questions here, in our view, makes plain the functional 

integration of Pendola's work into Classic's business. It cannot be seriously 

disputed that Pendola was one of the "cogs" in Classic's operation. His work as 

a driver willing to provide the rides Classic arranged was essential to the success 

of its business. The work of the drivers was certainly continuous, Classic 
13 A-0225-17T2

operated twenty-four hours a day, and thus needed many drivers day and night

to carry out its operations. Drivers such as Pendola could not use their own

silver Classic car to pick up fares dispatched from competitors of Classic or 

those attempting to call them directly. The drivers were thus prohibited from 

using their own cars to further any business but Classic's. And although a 

driver's passengers or hours might vary, the daily routine of picking up Classic's 

customers and delivering them to their destinations throughout Newark did not

change.

We agree with Pendola that the judge of compensation's finding that

Classic's business was limited "solely [to] dispatching [Pendola] and drivers of 

auto cabs" is not supported by the evidence. Although Solano began her 

testimony by asserting that Classic was only "a dispatching service," she also

referred to it as a "transportation company" and the riders as Classic's customers, 

who Classic wooed with web ads, apps, keychains and pens with the company's 

name and "nice vehicles, clean vehicles" and punctual, "proper attired drivers." 

We also agree with Pendola that the judge of compensation erred in finding that 

Classic was not dependent on Pendola because if he "was not available to 

transport a fare, another auto cab driver was waiting to do so." The 

compensation judge's finding that "[n]o one driver was essential to the effective 
14 A-0225-17T2

functioning of the business" misapprehends the test. The point, of course, is that 

Classic was dependent on Pendola and other drivers like him. That the business

required multiple drivers to operate does not reduce Pendola's importance to 

Classic's business or make him any less a "cog" in Classic's enterprise. 

D'Annunzio, 192 N.J. at 123. Accordingly, we conclude that application of the 

Pukowsky test establishes Pendola as an employee of Classic under our workers' 

compensation laws.

We are not the first panel of this court to conclude that Classic's drivers 

are its employees and not independent contractors. In 1999, another panel 

considering the same question concluded that "according to the criteria of the 

'relative nature of the work' test, each of Classic's taxicab [sic] drivers was an 

integral part of its total operation and that they were therefore 'employees' for 

purposes of workers' compensation." Santos v. Classic Sedan Limo, Inc., A5356-97 (App. Div. July 2, 1999) (slip op. at 8), certif. denied, 163 N.J. 12 

(2000). 

The petitioner in Santos was shot by a passenger dispatched by Classic. 

Santos, slip op. at 1. Santos owned his own cab, which was painted the 

company's silver color and had "Classic Sedan Limo" and the company's 

telephone number displayed on its doors, like all the cabs dispatched by Classic, 
15 A-0225-17T2

in order "to convey the impression that they were a fleet of taxis operated by a 

single company." Id. at 2. We explained how the service worked as follows:

Classic placed a listing for taxi services in the 

telephone yellow pages, and perhaps elsewhere, 

advertising the availability of its taxis. Classic 

maintained a dispatcher who received customers' calls 

for taxis and undertook to broadcast each call to 

whomever of its nearby drivers had been waiting the 

longest since his last fare. To receive these calls, each 

driver was required to purchase a prescribed radio from 

Classic. Classic's drivers were permitted to accept only 

passengers assigned to them by the dispatcher. 

[Ibid.]

We noted the company maintained an extensive set of rules, which it 

enforced by "suspending" drivers who violated them. Id. at 3. We explained 

that "[t]he dispatcher would not assign waiting passengers to a suspended driver, 

thus effectively docking his pay during the period of his suspension." Ibid. We 

noted Santos owned and paid for his own cab, keeping the fares he collected and 

paying for "gasoline, repairs, insurance, and a fee of $150 a week to Classic,"

making him "financially dependent on his affiliation" with the company. Id. at 

3-4. 

We found Santos' relationship with Classic satisfied both the "right to 

control" test as well as the "relative nature of the work" test, finding "Classic 

possessed and exercised the power to control Santos in his performance of his 
16 A-0225-17T2

work," and that he was "economically dependent on Classic." Id. at 5-6. We 

specifically rejected the judge of compensation's finding "that Classic is 'in the 

business of soliciting fares for the owners of the cabs,'" noting the judge also 

observed "that Classic was 'holding [itself] out to the public as . . . a safe[,] 

reliable source of transportation' and that it was important for the drivers to 

maintain uniform standards and discipline to assure that the 'overall operation

functioned.'" Id. at 8. We found those "observations show that Classic was in 

the business of providing transportation, not merely dispatching. There would 

be no customers to dispatch in return for the owner-drivers' weekly payments if 

steps were not taken to assure that the total enterprise provided satisfactory

service to the public." Ibid. We thus concluded "that according to the criteria 

of the 'relative nature of the work' test, each of Classic's taxicab drivers was an 

integral part of its total operation and that they were therefore 'employees' for 

purposes of workers' compensation," thereby reversing the contrary finding of 

the compensation judge. Id. at 8-9.

In its brief and at oral argument, Classic made no attempt to explain why 

our prior opinion is no longer binding on the company. See Raymond v. N.J. 

State Parole Bd., 221 N.J. Super. 381, 384 n.1 (App. Div. 1987) (noting that 

"[w]hile an unpublished opinion does not have stare decisis effect, it is 
17 A-0225-17T2

nevertheless binding as against a party . . . whose conduct is thereby prescribed." 

(citing R. 1:36-3)). Its only response is the one relied on in its brief that "it 

should be noted that [Santos] was a 1999 decision and things have changed 

considerably in the taxicab business since the rendering of that decision." 

Perhaps so, but it is nevertheless apparent that at the time of Pendola's accident 

at least, the relationship between Classic and its drivers remained remarkably 

constant.

Reversed and remanded for further proceedings not inconsistent with this 

opinion.