ELLEN B. LYNCH v. BOARD OF REVIEW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ELLEN B. LYNCH,

Appellant,

v.

BOARD OF REVIEW, and

DEAN'S NATURAL FOOD MARKET,

Respondents.

__________________________________________________

October 15, 2014

Submitted October 7, 2014 Decided

Before Judges Fisher and Nugent.

On appeal from the Board of Review, Department of Labor, Docket No. 402,079.

Law Offices of Gregory S. Schaer, LLC, attorneys for appellant (Mr. Schaer, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Paul Buonaguro, Deputy Attorney General, on the brief).

Respondent Dean's Natural Food Market has not filed a brief.

PER CURIAM

Ellen B. Lynch, a seventy-five-year old widow, seeks review of a final agency decision which was not based on the merits, but on the agency's rejection of her pro se administrative appeal because it was filed two days late. Because of appellant's understandable confusion about her rights in these circumstances, we conclude there was a "good cause" reason for her tardiness and reverse and remand for a consideration of the appeal on its merits.

The record reveals that appellant was laid off from her position with Abel PEO Services, Inc., and filed a claim for unemployment benefits on May 30, 2010. A month later, she began working part-time at Dean's Natural Foods, earning $9.50 per hour. She reported her wages from Dean's to the Division of Unemployment Insurance (Division) and continued to collect unemployment benefits. Appellant terminated her relationship with Dean's in January 2012. She never sought unemployment benefits due to ending her relationship with Dean's.

On August 29, 2012, the Division notified appellant that she was disqualified for benefits beginning on January 1, 2012, because she left Dean's without good cause. The notice advised appellant she had ten days to file an appeal, i.e., by September 10, 2012; appellant did not file her appeal until September 12, 2012. But, as later argued, appellant was confused because she had not filed a claim for benefits regarding her departure from Dean's. Further confusion was engendered by the fact that the Division mailed to her also on August 29, 2012 a notice advising of her eligibility for emergency unemployment compensation. And, on September 21, 2012, the Division mailed yet another notice a request for a refund of employment benefits. Appellant timely appealed that last determination.

The appeal tribunal conducted a hearing on May 1, 2013, at which appellant's understandable confusion about the multiple notices was revealed. The next day, the appeal tribunal ruled against her, finding the appeal of the disqualification to be untimely and, therefore, the timely appeal of the refund request was academic. The tribunal explained that the disqualification notice was mailed on August 29, 2012, and the appeal filed on September 12, 2012 as to which there is no dispute but responded to appellant's confusion about the multiple mailings and the fact that she never filed for unemployment benefits regarding her separation from employment with Dean's, by saying only

There was no dispute that the original claim was based on other employment, however, the claimant did have a disqualifying separation during a time she was receiving benefits. Additionally, if she was confused, she made no effort to clarify any confusion. Thus her contentions were rejected.

The appeal was not filed within the statutory time limits and good cause has not been shown for the appeal being filed late.

A timely appeal of that decision was filed, and the board of review rendered a written opinion in which, with little explanation, the board concluded it had carefully examined appellant's arguments and, because "appellant was given a full and impartial hearing and a complete opportunity to offer any and all evidence, there is no valid ground for a further hearing."

In her appeal to this court, appellant argues

I. THE REDETERMINATION THAT CLAIMANT IS LI-ABLE FOR A REFUND BASED UPON CLAIMANT HAVING VOLUNTARILY LEFT SUBSEQUENT PART-TIME EM-PLOYMENT IS CLEARLY ERRONEOUS AND CONTRARY TO ESTABLISHED LEGAL PRINCIPLES AND PRECE-DENT.

II. THE APPEAL TRIBUNAL'S DISMISSAL OF CLAIMANT'S APPEAL ON THE BASIS OF TIMELINESS IS CONTRARY TO ESTABLISHED LEGAL PRINCIPLES AND PRECEDENT.

III. THE APPEAL TRIBUNAL AND BOARD FAILED TO ADDRESS WHETHER THERE WAS GOOD CAUSE FOR PLAINTIFF TO LEAVE HER POST-TERMINATION EMPLOYMENT.

We do not reach at this time the first point because the board of review erred in concluding there lacked good cause for the two-day delay in filing the administrative appeal.

"State statutes providing for the payment of unemployment compensation benefits create in the claimants for those benefits property interests protected by due process." Wilkinson v. Abrams, 627 F.2d 650, 664 (3d Cir. 1980). As our Supreme Court explained

Here plaintiff contributed to the unemploy-ment insurance system from his own wages. Moreover, the Department is not simply seek-ing to cease future payments but to recoup past payments, which in all likelihood have already been spent by the recipient. The significant property interest in those bene-fits is unquestionable and thus protected by the Fifth Amendment.

[Rivera v. Bd. of Review, 127 N.J. 578, 584 (1992).]

In responding to this appeal, the Department has argued that the right to benefits "is purely statutory" and its procedural aspects "governed entirely and exclusively" by statute, which contains an "absolute deadline," quoting Lowden v. Board of Review, 78 N.J. Super. 467, 469-70 (App. Div. 1963). The Department's reliance on Lowden, however, is misplaced. Since Lowden was decided, "our understanding of property rights and the nature of due process has evolved significantly." Rivera, supra, 127 N.J. at 585.

In light of evolving standards of due process, the Rivera Court concluded that "little explains the inflexible application of the ten-day limit on appeals," particularly in light of the four years the Department has within which to recoup payments wrongly made. Id. at 589-90. Consequently, the Court determined that, among other things, the "absolute deadline" referred to in our Lowden opinion should be viewed as containing a "good cause" exception. Id. at 590.

The current applicable regulation defines good cause as permitting the consideration of a late appeal on its merits if the delay "was due to circumstances" beyond appellant's control or caused by "circumstances which could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-3.1(i). The regulation does not expressly include a claimant's confusion as good cause for excusing a late filing, but the appeal tribunal and board of review here recognized claimant confusion as a legitimate ground and found only that the burden of clearing away the confusion rested on appellant, who failed to sustain it. We think this interpretation falls short of what due process requires. Appellant presented a colorable good cause argument by asserting she felt no imperative need to file an appeal from the notice of disqualification in light of the notice of her eligibility for emergency unemployment compensation mailed to her the same day. Additionally cause was presented by the fact that she had never applied for benefits when she departed Dean's and yet the notice in question disqualified her from benefits as a result of that event.

In addition, there can be no prejudice to those charged with administering these benefits by permitting this late appeal. Notwithstanding the timeliness of the appeal, the agency was still required to conduct a hearing. See also Rivera, supra, 127 N.J. at 590 (noting that because "claimants who file late appeals receive hearings but are then not allowed to raise substantive issues[,] [n]o fewer administrative resources would have been expended" had the appeal been permitted on its merits).

For these reasons, we conclude that appellant presented good cause for her brief delay in filing the administrative appeal, and we reverse and remand for a full and fair consideration of her appeals of both the disqualification notice and the request for reimbursement on their merits.

Reversed and remanded. We do not retain jurisdiction.