Opinion
DOCKET NO. A-5643-11T4 DOCKET NO. A-6387-11T4
04-05-2016
ALFRED C. RONZONI, JR., Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and PERSHING ADVISOR SOLUTIONS, LLC, Respondents.
Keith Talbot argued the cause for appellant (Legal Services of New Jersey, attorneys; Melville D. Miller, Jr., of counsel; Mr. Talbot, Anisa Rahim and Sarah Hymowitz, on the briefs). Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief). Respondent Pershing Advisor Solutions, LLC has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Board of Review, Department of Labor, Docket Nos. 261,114 and 350,936. Keith Talbot argued the cause for appellant (Legal Services of New Jersey, attorneys; Melville D. Miller, Jr., of counsel; Mr. Talbot, Anisa Rahim and Sarah Hymowitz, on the briefs). Alan C. Stephens, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Stephens, on the brief). Respondent Pershing Advisor Solutions, LLC has not filed a brief. PER CURIAM
In this consolidated appeal, unemployment compensation claimant Albert C. Ronzoni, Jr., appeals from two orders of the Board of Review (Board) entered June 4 and June 8, 2012. The Board rejected Ronzoni's late appeal from a 2009 decision, which temporarily disqualified him for benefits because of misconduct. Ronzoni sought review of the 2009 decision in 2011, after learning that the finding of misconduct had the additional consequence of preventing him from receiving extended benefits. Ronzoni contends that due process principles required the Division of Unemployment Insurance (Division) to inform him that the misconduct finding would affect his eligibility for extended benefits at some point in the future. Rather than reach Ronzoni's constitutional argument, we conclude that Ronzoni presented good cause for filing his appeal late, and the agency should have considered it. We therefore reverse and remand.
I.
We discern the following facts from the record.
Ronzoni applied for unemployment compensation after Pershing Advisor Solutions terminated his employment on October 6, 2009. A weekly benefit rate of $584 and a maximum benefit amount of $15,184 were established. After a telephone interview with Ronzoni, the Division Director disqualified Ronzoni for a six-week period (the week in which he was terminated, plus five more weeks). The Director found Ronzoni was discharged for misconduct connected with his work. Specifically, the Director found the termination was "for performance related issues after hav[ing] been warned one month prior," and his actions "constitute[d] a willful and deliberate disregard of the standards of behavior your employer had a right to expect." The Notice of Determination stated, "You are disqualified for benefits from 10/04/09 through 11/14/09."
The notice informed the claimant of his right to appeal on the back of the document. The appeal rights section stated:
A determination becomes final unless a written appeal is filed within seven calendar days after delivery or within ten calendar days after the mailing of the determination. Your appeal must be received or postmarked within one of the appeal periods. If the last day allowed for the appeal occurs on a Saturday, Sunday or legal holiday, the appeal will be accepted on the next business day. The appeal period will be extended if good cause for late filing is shown. Good cause exists in situations where it can be shown that the delay was due to circumstances beyond the control of the appellant which could not have been reasonably foreseen or prevented.
To file an appeal, you must mail your appeal to the address listed below. Please give your reasons for disagreeing with the determination, and if late, the reason for the delay. Be certain that the claimant's name, social security number, address, and telephone number, if available, are clearly written on the appeal.
The reverse side of the notice also included a reference to N.J.S.A. 43:21-5(b) as it then existed, stating:
Subsequent to the notice, the Legislature amended N.J.S.A. 43:21-5 to provide for a seven-week disqualification period for misconduct, and added a category of "severe misconduct." L. 2010, c. 37, § 2.
An individual shall be disqualified for benefits:
(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week (in addition to the waiting period), as determined in each case. In the event the discharge should be rescinded by the employer voluntarily or as a result of mediation or arbitration this subsection (b) shall not apply, provided, however, an individual who is restored to employment with back pay shall return any benefits received under this chapter for any week of unemployment of which the individual is subsequently compensated by the employer.
Ronzoni filed an appeal with the Board on November 20, 2009. Ronzoni explained in a letter that he had received satisfactory reviews during the five years he worked for Pershing in its Jersey City office. He asserted that a new management team, which arrived in 2009, found fault in his performance and ultimately terminated him. He denied that he willfully or deliberately disregarded workplace standards of behavior.
Ronzoni testified that when he initially filed his appeal, he believed he was disqualified from all benefits. After filing, he consulted an attorney who informed him that his disqualification was temporary, and he would be entitled to all benefits, except the six-week period. Ronzoni asserted that someone with the Division orally confirmed in a phone call that he was "entitled to [his] initial 26 weeks and all extensions."
Thus assured, Ronzoni then withdrew his appeal. He explained that since he would receive "almost 100% of what [he] was entitled to," there was no reason to suffer the inconvenience of pursuing the appeal in New Jersey, since he lived in Queens, New York. The record reflects that Ronzoni was summoned to appear at an in-person hearing in Jersey City on January 25, 2010. The withdrawal of his appeal was memorialized in a January 25, 2010, decision of the Appeal Tribunal.
Ronzoni remained unemployed. He eventually applied for extended benefits on July 31, 2011, but was informed he was disqualified because of the misconduct related to his 2009 claim. Ronzoni filed a written appeal on August 19, 2011 and subsequently received a Notice of Determination dated September 9, 2011 stating, "You are disqualified [from] benefits from 7/31/11 and will continue to be until you meet the legal requirement to end this disqualification. You were disqualified from 7/31/11 for misconduct on your initial claim."
Ronzoni did so after exhausting his twenty-six weeks of regular benefits, as well as benefits under the Emergency Unemployment Compensation Act of 2008, P.L. 110-252, § 4001(a), 122 Stat. 2323, 2353 (June 30, 2008).
The notice cited N.J.S.A. 43:21-24.19(g), which states:
An individual who has been disqualified for regular benefits under the provisions of subsection (b) or (c) of [N.J.S.A.] 43:21-5 will not meet the eligibility requirements for the payment of extended benefits unless the individual has had employment subsequent to the effective date of disqualification for regular benefits and has earned in employment remuneration equal to not less than four times the individual's weekly benefit rate.Ronzoni timely appealed again, through counsel, from the September 9, 2011 notice.
In a November 2, 2011 hearing before the Appeal Tribunal, Ronzoni sought review of the original misconduct finding. Relying on the assertions we described above, he argued that he was misled by a Division employee as to his eligibility to receive extended benefits and, as a result, withdrew his appeal. He attempted, without success, to address the merits of the misconduct appeal.
The Appeal Tribunal denied his extended benefits appeal in a November 7, 2011 decision. The Tribunal did not reach the underlying misconduct finding, nor Ronzoni's argument regarding why he withdrew the appeal. Rather, accepting the misconduct as established, the Tribunal denied extended benefits based on the prior finding of misconduct and Ronzoni's failure to earn at least four times his weekly benefit rate, or $2336.
Ronzoni appealed to the Board of Review. He argued that he was entitled to appeal the underlying misconduct determination. He contended the Division violated his right to due process by failing to inform him that the sanction for misconduct made him ineligible for extended benefits. He also argued that the misinformation provided to him by the Division representative constituted good cause for considering his late appeal from the misconduct determination.
The Board of Review issued two decisions. In a June 4, 2012 decision, the Board affirmed the Appeal Tribunal's decision in the case of the 2011 appeal, finding the appellant was given a full and impartial hearing and there was no valid ground for a further hearing.
The Board added that the appeal to the Tribunal appeared to be late, but even if it was late for good cause, the decision was correct on its merits.
In a June 8, 2012 decision, the Board deemed Ronzoni to have appealed from the January 25, 2010 order, which noted the withdrawal of his 2009 appeal. The Board dismissed the appeal as late, without good cause. However, the Board stated, "The claimant can petition the Appeal Tribunal for a reopening of this case."
Ronzoni sought reconsideration and reopening before the Appeal Tribunal in a June 20, 2012 submission. The Tribunal failed to rule on Ronzoni's request for over a year. Ronzoni filed his notices of appeal from the two Board orders on July 19, 2012.
Ronzoni argues that he should be granted a hearing on his 2009 appeal from the misconduct determination. He contends the Division denied him his due process right to be notified that he would become ineligible for extended benefits as a consequence of the misconduct determination. He also contends that the Division's failure to inform him constitutes good cause for his late request to revive his 2009 appeal.
II.
We ordinarily defer to an agency's determination unless it is arbitrary, capricious, or unreasonable or is unsupported by substantial credible evidence. Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). We may intervene if the agency decision offends the State or Federal Constitutions; violates legislative policies; lacks the support of substantial evidence in the record; or could not reasonably have been made upon applying legislative policies to the facts. Id. at 211. Although we provide some deference to the agency's interpretation of statutes and regulations it is responsible for enforcing and implementing, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue . . . ." Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (citations omitted).
An initial determination of benefits is final unless a claimant files an appeal within ten days of mailing, or seven days of receipt. N.J.S.A. 43:21-6(b)(1). However, our Supreme Court has recognized that modern notions of due process tempers rigid application of time limitations that may impact a claimant's property interests in unemployment benefits. Rivera v. Bd. of Review, 127 N.J. 578, 585-86 (1992).
In light of Rivera, the Division adopted regulations formally authorizing a claimant to file a late appeal upon a showing of good cause. See N.J.A.C. 12:17-4.7 (stating a claimant is required to file an appeal within seven days of delivery or ten days after mailing, unless there is "good cause" for a late filing); N.J.A.C. 12:20-3.1(i) ("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." Ibid.
We have permitted an application for benefits to be predated where the late filing was due solely to misinformation from agency personnel. Meaney v. Bd. of Review, 151 N.J. Super. 295, 300 (App. Div. 1977). That is consistent with the general principle that a State agency has an obligation to "turn square corners" in dealing with members of the public who are subject to its regulations. W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 561-62 (1989).
We conclude that Ronzoni demonstrated good cause for seeking to revive his appeal from the 2009 misconduct determination. We reach this conclusion mindful of the remedial purposes of the unemployment compensation law. See Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 374 (1989) ("In order to further its remedial and beneficial purposes, the law is to be construed liberally in favor of allowance of benefits.").
The Board misperceives Ronzoni's request as one to permit a late appeal from the Tribunal's 2009 decision. The Tribunal's 2009 "decision" simply acknowledged that Ronzoni had withdrawn his appeal. It was not a decision on the merits. See N.J.S.A. 43:21-6(c) (stating "unless such appeal is withdrawn, an appeal tribunal . . . shall affirm or modify the findings of fact and the determination") (emphasis added). Ronzoni seeks the opportunity to reopen the appeal before the Tribunal — in effect, to seek review of the Notice of Determination he received in November 2009.
Ronzoni testified that a Division employee misinformed him that notwithstanding the 2009 misconduct determination, he would be eligible for extended benefits. Nothing in the written notice would have led Ronzoni to question the staff-person's advice; the only consequence of the misconduct determination identified in the notice pertained to the six-week delay of benefits under N.J.S.A. 43:21-5(b). In reasonable reliance on the staff-person's advice, and absent any indication to the contrary in the written notice, Ronzoni decided to withdraw his appeal then pending before the Appeal Tribunal to avoid a required appearance in Jersey City. The only consequence of Ronzoni's withdrawal, as far as he knew, was a six-week delay in benefits. If he remained unemployed, he would not suffer any loss in benefits.
Although the Board argues in its brief that Ronzoni could have appeared by telephone, citing N.J.A.C. 1:12-14.5(b), the provision states that telephone hearings shall be conducted only if a person lives fifty miles from the hearing, which Ronzoni did not, the person has a disability, or presents other good cause. In any event, he was not notified of the opportunity to request a telephone hearing. Rather, he was advised to report in person for a hearing in Jersey City. --------
Ronzoni therefore had good cause for the delay until 2011, when he was denied extended benefits, to revive his appeal. He could not have reasonably foreseen that he would be denied extended benefits because of the misconduct determination. Those circumstances justified his late filing. Consequently, the Tribunal should reinstate Ronzoni's 2009 appeal from the misconduct determination, and schedule a new hearing. At that hearing, the Tribunal shall consider both Ronzoni's appeal from the misconduct determination; and his appeal from the denial of extended benefits, if the misconduct determination is reversed.
We recognize that the Appeal Tribunal did not expressly address Ronzoni's factual contention that an unnamed Division staffperson misadvised him. However, in the absence of any evidence to the contrary, and the extensive delays that already have occurred, we accept Ronzoni's assertion as true, and see no point in remanding for a determination of that issue. Cf. Rivera, supra, 127 N.J. at 590 (noting that "[n]o fewer administrative resources would have been expended" to give the claimant a hearing on the merits of his appeal than to give him a hearing on the timeliness of his appeal request).
Having decided that Ronzoni is entitled to a hearing on his appeal, we need not reach his argument that his constitutional right to due process required the Division to notify him that, pursuant to N.J.S.A. 43:21-24.19(g), he would be ineligible to receive extended benefits as a consequence of the 2009 misconduct determination. We generally shall not reach a constitutional issue "unless its resolution is imperative to the disposition of the litigation." Randolph Town Ctr., L.P. v. Cty. of Morris, 186 N.J. 78, 80 (2006).
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