JEFFREY HERSH VS. BOARD OF REVIEW (DEPARTMENT OF LABOR)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 29, 2020
• Docket: A-2958-18T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2958-18T2

JEFFREY HERSH,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR, TROPICANA CASINO & RESORT, HARRAH'S ATLANTIC CITY, and BORGATA HOTEL & CASINO,

Respondents. __________________________

Submitted October 13, 2020 – Decided October 29, 2020

Before Judges Fasciale and Mayer.

On appeal from the Board of Review, Department of Labor, Docket No. 158,874.

Jeffrey Hersh, appellant pro se.

Gurbir S. Grewal, Attorney General, attorney for respondent Board of Review (Donna Arons, Assistant Attorney General, of counsel; Jana R. DiCosmo, on the brief). PER CURIAM

Jeffrey Hersh appeals from a February 8, 2019 final agency decision by

respondent Board of Review (Board), Department of Labor and Workforce

Development, upholding a decision by the Appeal Tribunal regarding

unemployment benefits. The Appeal Tribunal dismissed Hersh's appeal from a

denial of unemployment benefits because his appeal was untimely under

N.J.S.A. 43:21-6(b)(1) and Hersh failed to establish good cause for the late

appeal in accordance with N.J.A.C. 12:20-3.1(i). We affirm.

The facts are straightforward. On June 19, 2016, Hersch applied for

unemployment benefits. On May 14, 2018, a Deputy Director with the Division

of Unemployment and Disability Insurance (Deputy) mailed Hersh a request for

refund of benefits. The refund notice advised that Hersh was ineligible for

unemployment benefits because he reported earnings while he received those

benefits and demanded Hersh refund the sum of $2,356 in unemployment

benefits. The notice also advised that Hersh had ten calendar days to file an

appeal from that determination. Because the Deputy's determination was mailed

on May 14, 2018, the last day for Hersch to file an appeal was May 24, 2018.

Nearly two months later, on July 18, 2018, Hersch filed an appeal from

the Deputy's determination. In an August 17, 2018 decision, the Appeal

A-2958-18T2 2 Tribunal, at the Deputy's request, remanded the matter for "possible

redetermination." The matter was reopened on August 24, 2018, and a hearing

before the Appeal Tribunal was scheduled for October 9, 2018. However, due

to a "miscommunication during the registration process," Hersh was unable to

participate in that hearing. As a result, the Appeal Tribunal dismissed the appeal

without prejudice subject to reopening.

Hersh requested the hearing be reopened and the matter was rescheduled

for a hearing before the Appeal Tribunal on November 14, 2018. However,

Hersh was unable to participate in that rescheduled hearing as a result of "a

scheduling conflict due to a court hearing." The Appeal Tribunal dismissed the

appeal without prejudice, subject to being reopened upon Hersh's request.

The matter was reopened a third time, and a telephonic hearing before the

Appeal Tribunal was held on January 9, 2019. According to the Deputy's

testimony, a demand for refund notice was mailed to Hersh at his address of

record on May 14, 2018. Hersh conceded he received the refund demand notice

in May 2018. Despite notification of the ten-day-time period within which to

appeal, Hersh filed his appeal on July 18, 2018. When asked by the Appeal

Tribunal examiner why the appeal was filed two months late, Hersh offered no

explanation. Although Hersh testified that he moved to a new address in June

A-2958-18T2 3 2018, he was unable to explain why he failed to take action within ten days of

the May 14, 2018 refund demand.

In the Appeal Tribunal's January 9, 2019 decision, the examiner explained

"N.J.S.A. 43:21-6(b)(1) provides that an appeal must be filed within ten (10)

days of the mailing of the determination, or within seven (7) days of the receipt

of the determination." The Appeal Tribunal's examiner held a late appeal may

be considered on the merits "if it is determined that the appeal was delayed for

good cause." Pursuant to N.J.A.C. 12:20-3.1(i):

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.

Hersh had the burden of establishing good cause for failing to timely

appeal of the Deputy's refund determination. After hearing Hersh's testimony,

the examiner concluded Hersh "did not have an explanation as to why the appeal

was filed almost over two months after the demand for refund was received" and

therefore "it cannot be established that good cause exists for the late filing."

Thus, the examiner held "[t]he appeal filed on [July 18, 2018], is considered to

A-2958-18T2 4 have been filed late without good cause in accordance with N.J.S.A. 43:21-

6(b)(1)."

On February 8, 2019, the Board affirmed the Appeal Tribunal's dismissal

of Hersh's appeal as untimely.

On appeal before this court, Hersh argues he should not have been

disqualified from receipt of unemployment benefits. Hersh disagrees with the

Appeal Tribunal's decision but cites no law in support of his position.

Our review of an administrative agency's decision is limited. Brady v. Bd.

of Review, 152 N.J. 197, 210 (1997). Where the Board's findings are supported

"by sufficient credible evidence, courts are obliged to accept them." Ibid.

(quoting Self v. Bd of Review, 91 N.J. 453, 459 (1982)). We will not disturb

the Board's action unless it is "arbitrary, capricious, or unreasonable." Ibid.

As a claimant, Hersh bears the burden of proof to establish his right to

unemployment compensation. Id. at 218. If an individual receives

unemployment benefits but was not entitled to those benefits, the New Jersey

Unemployment Compensation Law requires repayment of the unemployment

benefits. N.J.S.A. 43:21-16(d); Bannan v. Bd. of Review, 299 N.J. Super. 671,

674 (App. Div. 1997). The time for filing an appeal from a demand for

repayment of benefits is governed by N.J.S.A. 43:21-6(b)(1). The statute

A-2958-18T2 5 provides that unless the claimant files an appeal, "within seven calendar days

after delivery of notification of an initial determination or within [ten] calenda r

days after such notification was mailed . . . such decision shall be final . . . ."

Our Supreme Court has recognized a "good cause" exception to the statutory

deadline under certain circumstances. See Rivera v. Bd. of Review, 127 N.J.

578, 586, 589 (1992). Consequently, the Department of Labor and Workforce

Development adopted a regulation implementing the "good cause" exception

articulated in Rivera. See N.J.A.C. 12:20-3.1(i).

Having reviewed the record, we are satisfied Hersh failed to demonstrate

good cause for failing to timely appeal the Deputy's refund demand letter. The

Deputy's letter was mailed on May 14, 2018, and the time for filing an appeal

was ten days later on May 24, 2018. Because Hersh was unable to explain why

his appeal was not filed until July 2018, he failed to satisfy the "good cause"

exception to the statutory appeal period.

Under the circumstances, the Board's decision was supported by

substantial credible evidence in the record and was not arbitrary, capricious, or

unreasonable.

Affirmed.

A-2958-18T2 6