Opinion
DOCKET NO. A-5057-12T1
08-26-2014
HEATHER DEVORE, Appellant, v. BOARD OF REVIEW, AND SONY MOBILE COMMUNICATIONS, Respondents.
Heather DeVore, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Leone. On appeal from the Board of Review, Department of Labor, Docket No. 403,927. Heather DeVore, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole M. DeMuro, Deputy Attorney General, on the brief). PER CURIAM
Claimant Heather DeVore appeals the final decision of the Board of Review (Board) of the New Jersey Department of Labor and Workforce Development, affirming the dismissal by the Appeal Tribunal (Tribunal) of her appeal from the denial of unemployment benefits from June 3, 2012 to July 14, 2012. The Tribunal dismissed claimant's appeal because she failed to appear for the scheduled telephone hearing. The Board affirmed the Tribunal because claimant did not show good cause for her nonappearance. We affirm.
I.
Claimant filed an application for unemployment benefits in May 2012. However, claimant failed to make biweekly reports to the Division of Unemployment Insurance (Division) to claim unemployment benefits. On August 16, 2012, claimant was notified by the Division's Deputy that she was found ineligible for unemployment benefits from June 3 through July 14, based on her failure to report to claim benefits. Additionally, the Deputy's letter stated that claimant's request to backdate benefits was denied because her "reason for failing to report [did] not constitute good cause."
Claimant by letter appealed the Deputy's determination to the Tribunal. Her letter argued that a representative of the Division had told her to wait for written notice rather than begin filing for biweekly unemployment benefits. The Tribunal sent claimant a Notice of Telephone Hearing on February 14, 2013. The notice identified a hearing time of 4:30 p.m. on March 1, 2013, and stated: "IMPORTANT: YOU MUST CALL THE OFFICE OF APPEALS ON THE DATE OF HEARING (SHOWN BELOW) ABOUT 15 TO 30 MINUTES BEFORE THE HEARING TIME. COLLECT CALLS WILL BE ACCEPTED. GIVE YOUR NAME, AREA CODE AND TELEPHONE NUMBER." Claimant did not call the Office of Appeals, and thus no hearing occurred. On March 4, the Tribunal found that claimant "failed to participate in a telephone appeal hearing and pursue the appeal." The Tribunal ruled: "As there was no evidence presented to upset the findings of the Deputy, that determination will not be disturbed, and the appeal is dismissed."
Claimant sent a letter dated March 11 appealing the dismissal of her claim. Her letter stated she "was sitting at [her] phone, waiting for unemployment to call [her] from 4:30— 5:30 p.m.," and "didn't realize that [she] needed to call 15 minutes prior to the meeting to confirm the phone number." She explained that "[i]n past appointments with unemployment, they always contacted [her] at the scheduled appointment time," and she "thought it would be the same case with [the] appointment" with the Tribunal. Finally, "[w]hen no one contacted [her], [she] dug out the original paperwork and realized [her] error." She claimed that "[t]his was an honest mistake on [her] part," and requested "another hearing appointment" so she could "have a chance for [her] case to be heard."
On May 8, 2013, the Board issued an order affirming the Tribunal's dismissal of claimant's appeal. The Board stated claimant failed to show "good cause" for nonappearance, and the appeal was "dismissed in accordance with N.J.A.C. 1:12-14.4(a)." Claimant appeals to this court.
II.
In an appeal from an order of the Board denying unemployment compensation, our review "is limited to determining whether the agency acted arbitrarily, capriciously, or unreasonably." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 360 (2009). We must hew to our limited standard of review.
We cannot say that the Board acted arbitrarily, capriciously, or unreasonably in affirming the Tribunal's dismissal of claimant's appeal. The governing regulation provides: "If the appellant fails to appear for a hearing before an appeal tribunal, the appeal tribunal may proceed to make its decision on the record or may dismiss the appeal on the ground of nonappearance unless it appears that there is good cause for adjournment." N.J.A.C. 1:12-14.4(a).
In her letter appealing the Tribunal, claimant admitted she had received the notice telling her she had to call in advance of the hearing, but she did not read or recall that instruction until after the time for the hearing had passed. Given the letter's clear instruction, the Board could conclude that claimant's lack of familiarity with appeal procedures did not constitute good cause for adjournment. See In re Haft, 98 N.J. 1, 7 (1984) (holding a respondent's lack of experience with appellate procedures did not "excuse his nonappearance before the Court"). Claimant also argued that, in other types of appointments with the Unemployment Office, the Office had called her. This argument similarly fails given the clarity of the Tribunal's instructions. Thus, the Board could properly determine that claimant failed to show good cause for her nonappearance before the Tribunal and, therefore, the Tribunal properly dismissed her claim.
In a letter dated June 3, 2013, addressed to the Unemployment Office after the Board rendered its decision, claimant asserted she "wasn't able to access [her] original paperwork prior to the [telephone hearing] because [her] son had a medical emergency at the babysitter['s] house," and she "was only able to get back to [her] house right before the [scheduled] unemployment call." Generally, we decline to consider facts that were not presented to the factfinder. See Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 230 (1998); Saul v. Midlantic Nat'l Bank/S., 240 N.J. Super. 62, 82 (App. Div.), certif. denied, 122 N.J. 319 (1990). Further, "[q]uestions not raised below 'will ordinarily not be considered on appeal.'" State v. Cryan, 320 N.J. Super. 325, 332 (App. Div. 1999) (quoting State v. Bobo, 222 N.J. Super. 30, 33 (App. Div. 1987)); see also State v. Lakomy, 126 N.J. Super. 430, 437 (App. Div. 1974). Thus, claimant's contention that she had an emergency with her son is not properly before us because she did not raise that contention before the Board. See State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (noting an appellate court must consider an appeal based solely on the evidence presented below).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION