ALICE V. POCH v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5471-04T25471-04T2

ALICE V. POCH,

Appellant,

v.

BOARD OF REVIEW,

Respondent,

and

QUALCARE, INC.

___________________________________________

 

Argued April 26, 2006 - Decided May 10, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Board of Review, Department of Labor, BR-70434.

Tina Velantzas-Austin argued the cause for appellant.

Alan C. Stephens, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Michael J. Haas, Assistant Attorney General, of counsel; Mr. Stephens, on the letter-brief).

PER CURIAM

Appellant appeals a denial of unemployment benefits. Appellant's appeal was filed with the Appeal Tribunal eight days beyond the statutory ten-day time period. Appellant's explanation for the short delay was, in part, that she had received two conflicting notices, one indicating a denial and one suggesting otherwise. Here is what counsel says as to the State's contention that the confusion matters not:

The State does not deny claimant received two conflicting notices both with the mailing date of March 17, 2005, one holding she was qualified for benefits, the other that she was not qualified. There was no indication on the disqualification notice that claimant should disregard any notice awarding benefits. Thus, she was confused and waited.

. . . .

On the timeliness issue, the State picks and chooses certain statements by claimant to defeat her argument that she was indeed confused and waited "to sort things out" and see if she received a check before taking further steps. The State concedes that claimant was confused by the two conflicting determinations.

In answer to the question, "Did you read the appeal rights on the form, saying you have ten days to appeal[?", c]laimant testified ". . . it was until I could sort all this out . . . Then when I realized when I was down [realized she had been denied benefits], I went there and I filled out the appeal form. That's basically it. There was a little confusion and stress, you know, but I cannot say that I wasn't aware . . . . . I waited to see if I was going to get a check [since she had two conflicting decisions]. So I was waiting for a check, and, I thought that would be proof."

The State points out that appellant initially testified that "the main reason and only reason" for the delay was that she "was concentrating on [her] health issues." But she thereafter continued:

Also I received, I believe on that Friday, this must have been the 18th of March, I received a letter from the Unemployment services talking about that I was approved, and that there was going to be reduction for my pension. And I understood that, that's how the system works - that if you're receiving a pension, there is a reduction. So I received that, also dated March 17.

. . . .

Then I received the other one on Monday, and it was confusing. I said, "Well, I've got to figure this out," but then I got involved with my health issues. I mean I can't say anything other than there was so much going on, and I was confused until I finally realized that when no check came that it must have been denied. But yet I had another document in my possession that said I was going to get reduced benefits because of the pension. So there was confusion . . . .

. . . .

I have to say I did see [the ten-day notice requirement]. It's . . . well, I do go down to the Unemployment center in New Brunswick. I'm active member of the PSG Professional Services Group, and um I did what. I must have asked someone there a question, and then I did, I did make a phone call. I don't know the date. I don't know the name of the person I spoke to unfortunately. I didn't mark that down, and she mentioned that the second letter superceded the first letter. So even though they were both dated March 17th. So it, it was until I could sort all of this out. It took a little while for me to sort the information out. Then as soon as I realized when I was down, I went to there and I filled out that appeal form. That's basically it. . . .

Appellant's testimony was not disbelieved by the Appeal Tribunal or the Board of Review. Rather, they thought it deficient to establish a good cause exception to the required time limit. See Rivera v. Bd. of Review, 127 N.J. 578 (1992). We disagree. The receipt of two conflicting notices was beyond appellant's control and could not have been foreseen by her. N.J.A.C. 12:20-3.1(i)1,2. They gave her reasonable basis for being uncertain of the resolution of her claim and good cause for her short delay.

Reversed and remanded for consideration of the merits of appellant's claim. We do not retain jurisdiction.

 

(continued)

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A-5471-04T2

May 10, 2006