HWEI-CHUN CHOU v. BOARD OF REVIEW and NEWAGESYS, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5689-07T35689-07T3

HWEI-CHUN CHOU,

Appellant,

v.

BOARD OF REVIEW,

and NEWAGESYS, INC.,

Respondents.

___________________________________________________________

 

Submitted March 2, 2009 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Board of Review, Department of Labor, Docket No. 156,840.

Hwei-Chun Chou, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

Respondent Newagesys, Inc. has not filed a brief.

PER CURIAM

Appellant Hwei-Chun Chou filed for unemployment compensation benefits on April 1, 2007. On July 5, 2007, the determination of the deputy claims examiner was mailed to appellant, finding her ineligible for benefits from April 1, 2007, on the basis that appellant was unavailable for work, contrary to N.J.S.A. 43:21-4(c)(1). N.J.S.A. 43:21-4(c)(1) requires that claimants be able to work, be available to work, and demonstrate that they are actively seeking work. Appellant appealed this determination, and on August 4, 2007, the Appeal Tribunal also found that she was ineligible for benefits.

On October 22, 2007, the Board of Review remanded the matter to the Appeal Tribunal for a new hearing on all issues. On November 9, 2007, the Appeal Tribunal again issued a decision finding appellant ineligible for benefits under N.J.S.A. 43:21-4(c)(1) from April 15, 2007 through August 18, 2007, because she was not unemployed, and ineligible from August 19, 2007 through November 3, 2007, because she was not considered to be unemployed while operating her own business. Appellant took no further action until April 2008. She claims she never received a copy nor a notice of the November 9, 2007, decision.

On April 10, 2008, appellant received a Notice of Determination, which informed her of the Board's decision of November 9, 2007. That Notice apprised appellant of her right to appeal within seven days after delivery or within ten days after the date of mailing of the Notice. The Notice gave April 21, 2008, as the deadline for an appeal to be filed. The Board contends the April 10, 2008 Notice of Determination was sent in error. Nonetheless, Chou sent a timely letter of appeal to the Board postmarked April 21, 2008. She contends she is entitled to challenge the determination of the Appeal Tribunal. The Board of Review denied appellant's right to appeal by order dated June 16, 2008 on grounds of untimely filing from the Appeal Tribunal's decision of November 9, 2007. Appellant Chou appeals the Board of Review's order of dismissal.

Due process requires a claimant to be provided "'notice and an opportunity for hearing appropriate to the nature of the case.'" Rivera v. Bd. of Review, 127 N.J. 578, 584 (1992) (quoting Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656, 94 L. Ed. 865, 873 (1950). Our Supreme Court has held that state statutes which provide unemployment compensation benefits "create in the claimants for those benefits property interests protected by due process." Rivera, supra, 127 N.J. at 584 (citing Wilkinson v. Abrams, 627 F.2d 650, 664 (3rd Cir. 1980)). In Rivera, the Court held that in circumstances where a statutory appeal period does not provide adequate notice, considerations of due process require that there be an ability to grant "good cause" exceptions which provide tolling of the statutory limitations period. Id. at 586.

Since the Rivera decision, the Board has adopted a regulation defining "good cause" for the filing of late appeals. N.J.A.C. 12:20-3.1(i). "Good cause" may be found, thus allowing an appeal to be considered on its merits, in a case where it is demonstrated that the delay in filing of the appeal was due to circumstances beyond the control of the appellant, or in circumstances which could not have been reasonably foreseen or prevented. N.J.A.C. 12:20-3.1(i)1-2.

In the adoption of Rule 8:4-2(b), service by mail was implicitly authorized. Since there is no requirement that service by mail be registered or certified, forwarding judgments to the parties by regular mail is permissible. Rule 8:4-1(a)(2) provides that service by mail shall be deemed complete as of the date the judgment is mailed. That is to say, when authorized, service by mail is deemed complete when the notice is (1) deposited in the post office, (2) properly addressed, and (3) with the proper amount of postage. Borgia v. Bd. of Review, 21 N.J. Super. 462 (App. Div. 1952). In Borgia, we held that "mere notation of the date of mailing on the notice of determination, without more, is not the competent proof necessary to establish the fact of the mailing . . . ." Id. at 469.
Here, however, the "good cause" regulation explicitly provides "[d]elivery of notification of an initial determination means actual receipt of the determination by the claimant or any interested party to the appeal." N.J.A.C. 12:20-3.1(h). The claimant asserts that notice of the Board's decision was never received by her in November 2007, and that she was provided notice, for the first time, when she received the Notice of Determination in April 2008. We find this a plausible "good cause" defense to the statutory period of limitations considering claimant's appeal was timely on the notice she actually received. Further, there is no evidence in the record which affirmatively addresses whether appellant was in "actual receipt" of the final agency decision in November 2007.

The Board argues, incorrectly so, that regardless of claimant's defense, she failed to meet the statutorily imposed deadline, rendering this court without jurisdiction to review the matter on the merits. However, it is well settled that strict adherence to limitation periods, with no regard to their underlying purposes, disserves the goals of justice. Our highest Court has instructed:

For purposes of determining whether a substantive limitation provision may be tolled, there is no significant difference between such a restriction on administrative action and a comparable restriction on the enforceability of a claim in a court of law.

Both in effect are restrictions on what is often imprecisely termed the "jurisdiction" of the forum to provide the particular relief authorized by the Legislature. Whether the substantive limitation period applies to administrative or judicial action, the focus of the judicial inquiry must remain on the question of legislative intent.

[White v. Violent Crimes Compensation Board, 76 N.J. 368, 387 (1978).]

The adequate due process for which we remand requires the Board to develop the record regarding claimant's lack of notice defense, and if justice so requires, to allow her appeal to continue on a "good cause" exception to the limitation period. We express no opinion as to the merits of appellant's unemployment benefits claim.

Remanded. We do not retain jurisdiction.

 

It was determined that appellant started her own consulting business and worked for a paying client from April until August 18, 2007, and thereafter, continued to be self employed although she may have had no paying clients.

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A-5689-07T3

September 9, 2009