Opinion
DOCKET NO. A-1652-13T3
03-31-2015
DOREEN C. KINNICK, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ANTONIOS TSOMPANIDIS, D.O., P.C., Respondents.
Mashel Law, LLC, attorneys for appellant (Stephen T. Mashel, of counsel and on the brief; Anthony S. Almeida, on the brief). John H. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Vernone, Deputy Attorney General, on the brief). Respondent Antonio Tsompanidis has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from the Board of Review, Department of Labor, Docket No. 433,199. Mashel Law, LLC, attorneys for appellant (Stephen T. Mashel, of counsel and on the brief; Anthony S. Almeida, on the brief). John H. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Adam Vernone, Deputy Attorney General, on the brief). Respondent Antonio Tsompanidis has not filed a brief. PER CURIAM
Appellant appeals from a final determination of the Board of Review, dismissing as untimely her appeal from an initial denial of her unemployment benefit claim. We reverse and remand to the Board with direction to decide the merits of appellant's claim.
Appellant worked as an office manager in a doctor's office for over ten years. On June 3, 2013, she submitted a letter of resignation. At the Appeal Tribunal hearing, appellant alleged that her employer was embezzling money from her paycheck; permitting unauthorized individuals to see patient records; and improperly prescribing medications. When the employer refused to meet with her to discuss these issues, appellant stated she felt she had no other choice but to resign.
On July 1, 2013, appellant's application for unemployment compensation benefits was denied by the Director of the Division of Unemployment Insurance, who found that appellant had left work voluntarily without good cause attributable to the work. The Director's decision was mailed to appellant that same date. Appellant testified she received the decision on July 9, 2013.
Pursuant to N.J.S.A. 43:21-6(b)(1)(D), appellant had the opportunity to appeal the Director's decision to the Appeal Tribunal, provided she filed her appeal "within seven calendar days after delivery of" the decision "or within [ten] calendar days after such notification was mailed to" her by the Director. Because appellant did not receive the Director's decision until July 9, she had until July 16, 2013 to file her appeal.
An applicant may file an appeal to the Appeal Tribunal by mail. N.J.A.C. 12:20-4.1(c) states that "[t]he date on which an appeal is filed is the date of the postmark . . . ." Appellant testified that she went to the post office on July 16, 2013 and mailed her letter of appeal to the Appeal Tribunal by certified mail. However, the post office postmarked it July 17, 2013.
Appellant's letter was also dated July 16, 2013.
The Appeal Tribunal accepted appellant's testimony that she did not receive the Director's decision until July 9, 2013, and made no adverse credibility findings concerning her testimony that she mailed her appeal letter at the post office on July 16, 2013. However, based solely on the July 17, 2013 postmark appearing on the envelope, the Tribunal dismissed appellant's appeal as untimely.
Appellant filed an appeal to the Board of Review, and explained that she mailed her appeal letter at the post office on July 16, 2013, but, because it was mailed after 3:00 p.m., the post office postmarked it for the next day, July 17, 2013. In spite of this reasonable explanation, the Board affirmed the Appeal Tribunal's decision. This appeal followed.
In Rivera v. Bd. of Review, 127 N.J. 578 (1992), the Supreme Court established that, in certain circumstances, a "good cause" exception to the time limitation on filing unemployment compensation appeals should be employed. Subsequently, the Board promulgated a regulation establishing the factors to be considered in determining good cause. N.J.A.C. 12:20-4.1(h). That regulation states:
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause 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.
In the present appeal, appellant testified without contradiction that she mailed her appeal letter on July 16, 2013 by going to the post office and arranging for it to be delivered to the Appeal Tribunal by certified mail. She further explained that the July 17, 2013 postmark on the envelope was caused by the post office's internal policy of postmarking mail received after 3:00 p.m. with the next day's date. Thus, the record demonstrates that appellant timely mailed her appeal to the Appeal Tribunal on July 16, 2013.
Even if this were not the case, however, the post office's "delay" in postmarking the envelope was plainly a "circumstance[] beyond the control of the appellant[,]" as well as a "circumstance[] which could not have been reasonably foreseen or prevented" by her. N.J.A.C. 12:20-4.1(h). Thus, appellant was entitled to a "good cause" exception to the time limitation requirement.
We therefore reverse the determination of the Board and remand for a decision on the merits of appellant's claim.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION