DARLENE M. TERRILL v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND TRIM GYM FITNESS CENTER, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3551-08T23551-08T2

DARLENE M. TERRILL,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR AND TRIM GYM

FITNESS CENTER, LLC,

Respondents.

________________________________________________________________

 

Submitted January 20, 2010 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Board of Review,

Department of Labor, Docket No. 174,293.

Daniel K. Newman, attorney for appellant.

Paula T. Dow, Acting Attorney General,

attorney for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel;

Brady Montalbano Connaughton, Deputy

Attorney General, on the brief).

Respondent Trim Gym Fitness Center, LLC has

not filed a brief.

PER CURIAM

Appellant Darlene M. Terrill appeals from a final decision of the Department of Labor and Workforce Development Board of Review affirming the Appeals Tribunal dismissal of appellant's appeal. In addition, the Board affirmed the determination that appellant was liable for the refund of unemployment benefits of $8,554. We reverse and remand for a new hearing on the merits of appellant's claim.

These are the relevant facts. In February 2006, appellant was employed as a sales manager at respondent Trim Gym Fitness Center, LLC. On February 12, 2007, appellant informed her employer that she was resigning effective March 1, 2007, due to health problems, which she attributed to work. She filed a claim for unemployment benefits and received benefits in the sum of $8,554. Thereafter, on December 27, 2008, the Appeals Tribunal determined that appellant was disqualified for benefits because she "left work voluntarily." In addition, the Tribunal concluded that appellant "failed to discuss [her] problems with [her] employer in an attempt to obtain other work prior to leaving." The Tribunal found that appellant's reason for leaving did not constitute good cause and that she was ineligible for benefits.

Two documents were sent to appellant. The first, the decision of the Appeals Tribunal, was mailed on December 27, 2007, and enclosed instructions regarding the appeal noted that the time for an appeal ran from "seven (7) calendar days after delivery or within ten (10) calendar days after the mailing of this notice." The second document was the request for refund of unemployment benefits and according to the face of that document, it was mailed on December 31, 2007. Appellant responded by submitting a single letter appealing the decision of the Appeals Tribunal as well as the alleged overpayment. That letter was dated January 8, 2008, and postmarked January 10, 2008. The appeal was timely as to the overpayment and four days delinquent as to the denial of her claim on the merits.

Appellant participated in a telephonic hearing on February 15, 2008. At the hearing, she testified that she received the Notice of Refund, which was date stamped as being mailed on December 31, 2007, on January 4, 2008. Appellant was unaware of the date on which she received the Notice of Determination, which was mailed on December 27, 2007. On February 19, 2008, the Appeals Tribunal issued a decision holding that the appeal was timely, and that appellant was disqualified for benefits, as she had left work voluntarily without good cause attributable to work. The Tribunal affirmed the determination of the deputy and the Director, and held appellant liable for refund of benefits in the sum of $8,554, received for weeks ending April 28, 2007 through October 20, 2007.

Appellant filed a timely appeal of the Appeals Tribunal's decision, and on April 14, 2008, the Board of Review remanded the matter for additional testimony regarding appellant's working conditions and how such conditions affected her health, for medical documentation to support her contentions, as well as to rule on the issue of timeliness of her appeal of the deputy's determination. The appellant and the employer appeared at a hearing on May 8, 2008. Appellant again noted that she did not recall when she received the notice of determination of the deputy. When asked by the hearing examiner, "Is there any reason that you didn't file your appeal sooner? Sooner to, in other words, they give a specific date on here." Appellant replied, "I don't-I don't have an answer."

On May 16, 2008, the Appeals Tribunal dismissed the appeal as untimely citing N.J.S.A. 43:21-6(b)(1). The Tribunal found no good cause having been established. The Appeals Tribunal made the following findings of fact:

The Deputy and the Director mailed a determination to the appellant's address of record on 12/27/2007. The claimant is unaware [sic] of when she received the determination of the Deputy or how long she had it.

The claimant received the determination of the Director on 1/4/2008.

The claimant filed an appeal to both determinations on 1/10/08. The appeal was not filed earlier because she did not decide to do so until this time.

On a claim for benefits dated 4/22/2007 with a weekly benefit rate of $329.00 the claimant received benefits totaling $8,554.00 for weeks ending 4/28/2007 through 10/20/2007.

The appellant filed a late appeal with good cause on December 13, 2008. On January 30, 2009, the Board of Review affirmed the decision of the Appeals Tribunal.

On appeal, appellant challenges the merits of the determination while the Board focuses on the procedural failure of appellant to appeal in a timely manner. We address the procedural issue.

N.J.S.A. 43:21-6(b)(1) provides:

Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final . . . .

These appeal times are not jurisdictional, Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992), and may be extended upon a showing of good cause. Id. at 590. "Good cause" is defined by regulation.

Good cause [for filing a late appeal] exists in circumstances where it is shown that:

1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or

2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

[N.J.A.C. 12:20-4.1(h).]

Although at the hearing, appellant, who was focusing on the merits of her claim, was unable to articulate a reason for the delay, our review of the facts establishes an obvious basis for the delay of four days.

As we have noted, appellant received two notices regarding her unemployment claim. The first denied her claim on the merits and the second requested repayment of her benefits. The notices were received within days of each other and by one piece of correspondence dated January 8, and postmarked January 10. Her letter appealing the decision was timely as to one notice and untimely as to the other.

We recognize that in the initial hearing before the Appeals Tribunal, the appeal was considered timely, and the Tribunal addressed the merits. The Board sua sponte, remanded for further factual information as to the merits as well as for a review of the timeliness of the appeal. On the remand, the Appeals Tribunal concluded that the appeal of the deputy's determination, finding that appellant was not entitled to benefits, was untimely. The Tribunal did not consider the merits of appellant's claim, concluding that it was without jurisdiction to do so. The same tribunal then correctly concluded that the appeal from the Director's determination that appellant must refund the paid benefits, was timely. Not surprisingly, it then ordered repayment consistent with N.J.S.A. 43:21-16(d), yet clearly premised on the absence of a meritorious appeal on the merits.

We recognize that our review of a decision of the Board of Review is limited. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Applying these standards here, we conclude that the Board's decision was arbitrary and capricious, and the Board erred. By failing to recognize the unique circumstances of the dual notices and nature of the communication advising of the appeal, the Board created a "catch 22" whereby by denying appellant consideration of her appeal on the merits, the Board denied the possibility of any relief on the issue of repayment.

Fundamental fairness, applied to the unique facts here, requires that a full testimonial hearing be held affording appellant the opportunity to establish the merits of her appeal. The two notices sent, in close proximity to each other, prompting a timely appeal as to the latter notice, is obviously confusing. The Appeals Tribunal so recognized in its first consideration of the appeal. Why it changed its view is inexplicable. Any doubt must inure to the benefit of appellant. Accordingly, we reverse the January 30, 2009 decision of the Board and remand for proceedings consistent with this opinion. We do not retain jurisdiction.

 
Reversed and remanded.

"Catch 22," derived from Joseph Heller's 1961 novel of the same name, is defined as "a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule." http://www.merriam-webster.com/dictionary/catch 22.

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A-3551-08T2

March 8, 2010