William E. Newman, Jr. v. Board of Review

84 A.3d 1042, 434 N.J. Super. 483

• Court: New Jersey Superior Court Appellate Division
• Decided: February 19, 2014
• Docket: A-2253-09
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2253-09T3

WILLIAM E. NEWMAN, JR., APPROVED FOR PUBLICATION Appellant, February 19, 2014 v. APPELLATE DIVISION

BOARD OF REVIEW, DEPARTMENT OF LABOR, and LOWE'S HOME CENTERS, INC.,

Respondents.

________________________________________________________________

Submitted January 7, 2014 – Decided February 19, 2014

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Board of Review, Department of Labor, Docket No. 205,001.

William E. Newman, Jr., appellant pro se.

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

Respondent Lowe's Home Centers, Inc. has not filed a brief.

The opinion of the court was delivered by

KOBLITZ, J.A.D.

William E. Newman, Jr. appeals from the October 30, 2009

determination of the Department of Labor's Board of Review, that affirmed a decision by the Appeal Tribunal for the Department's

Division of Unemployment and Disability Insurance that, in turn,

reversed a determination of the Deputy Director of the Division

that Newman was entitled to benefits without disqualification.1

A portion of the appeal hearing was held when Newman was unable

to attend because he was serving in the United States Air Force,

violating his rights under the federal Servicemembers Civil

Relief Act, 50 U.S.C.A. app. §§ 501 to 597. Additionally, the

employer's appeal was improperly deemed timely based on the date

that the employer received the determination from its

representative, rather than when the representative received it.

We therefore reverse and remand for another hearing.

Newman was a sales specialist in the flooring department of

Lowe's Home Centers, Inc. in Brick from February 2006 until July

18, 2008. On July 18, 2008, Lowe's management met with Newman

regarding a dispute with a co-worker a few weeks earlier. The

incident involved a verbal disagreement on the sales floor

between Newman and the co-worker that escalated into a physical

altercation. Prior to the meeting, management conducted an

investigation and determined that Newman and the co-worker

should be discharged for misconduct. After the co-worker was

1 Only one week of benefits is actually in dispute: the week of August 17, 2008.

2 A-2253-09T3 terminated, a supervisor allowed Newman to resign instead of

being formally discharged. Newman was given this option because

his supervisor was aware that he was hoping to join the armed

forces and an involuntary termination might negatively impact

his opportunity to enlist.

Newman filed a claim for unemployment benefits on August

17, 2008. On October 2 a notice of eligibility was mailed by

the Division. Lowe's appealed this decision thirteen days later

on October 15. A telephonic hearing was held before an appeals

examiner on January 12, 2009. An individual from UC Express2

represented Lowe's at the hearing pursuant to Rule 1:21-

1(f)(11). The Appeals Examiner explained that UC Express "is a

company that represents employers in matters such as these

unemployment hearings and he is here today, this morning at the

discretion of Lowe's." At the conclusion of the telephonic

hearing, Newman stated that he was going into the Air Force

soon. The examiner reassured him that "[e]verybody is going to

get a decision shortly." No other hearing was scheduled.

Prior to a decision and after Newman entered the Air

Force, the examiner conducted another hearing in April 2009 to

determine only the timeliness of Lowe's initial appeal, which

2 The transcript refers to this entity variously as "UC Express," "UC EXPRESS" and "TALX UC EXPRESS." We use UC Express consistently throughout this opinion.

3 A-2253-09T3 the examiner had neglected to cover in the earlier hearing.

Newman was not present for this second telephonic hearing. Only

Maryellen Miraglia, Lowe's human resource manager, appeared.

She stated that, on October 13, 2008, she had received the

initial determination from UC Express via fax. She testified

that UC Express filed the appeal on Lowe's behalf on October 15.

No evidence was presented as to when UC Express received the

initial determination.

On April 14, 2009, the Appeal Tribunal rendered a decision

finding: (1) the appeal was timely filed in accordance with

N.J.S.A. 43:21-6(b)(1); (2) Newman was disqualified from

benefits under N.J.S.A. 43:21-5(b) from July 13, 20083 through

August 23, 2008, as "the discharge was for misconduct connected

with work;" (3) Newman's liability for a refund of benefits

received was remanded to the Director and; (4) Lowe's was not

liable for any charges to its rating account.

Newman appealed to the Board, and the case was remanded to

the Appeal Tribunal for a "decision on all issues," although the

remand directed additional testimony from Newman and the store

manager only "regarding whether [Newman] voluntarily left his

employment or was discharged."

3 It is unclear where the July 13 date comes from as the fight occurred earlier, Newman worked through July 18, 2008 and he was "removed from the [Lowe's] system" on July 20, 2008.

4 A-2253-09T3 On July 23, 2009, with Newman now present, the appeals

examiner took telephonic testimony only as to whether Newman was

"discharged for misconduct connected to the work." Lowe's was

again represented by UC Express. After the hearing, the Appeal

Tribunal issued a second opinion, again finding that the appeal

was timely filed and that Newman was disqualified from benefits

for six weeks pursuant to N.J.S.A. 43:21-5(b).4

The Board then issued an opinion agreeing with the Appeal

Tribunal, stating that because Newman resigned in lieu of a

discharge for misconduct, he was disqualified for benefits for

six weeks.

I

Our review in an appeal from a final decision of an

administrative agency is limited. Circus Liquors, Inc. v.

Middletown Twp., 199 N.J. 1, 9 (2009). The issues presented

here, however, are strictly legal in nature: the interpretation

of the federal and state Civil Relief Acts for members of the

military and the import of UC Express' representation when

considering whether the initial appeal by Lowe's was timely

filed. Such legal interpretations are primarily the function of

the judiciary and do not call for deference to the agency.

4 The statute has since been amended to an eight-week period of disqualification. L. 2010, c. 37, § 2.

5 A-2253-09T3 Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 237 (App. Div.

2010).

II

Newman argues that he was unlawfully deprived of the

opportunity to participate in the April 13, 2009 hearing

regarding the timeliness of Lowe's appeal. The Attorney General

does not address this issue, instead focusing on the argument

that Newman was properly disqualified from receiving

unemployment benefits for six weeks. Newman stated at the end

of the January 12, 2009 hearing, "I'm actually going into the

United States Air Force January 20th . . . [s]o I just need to

make sure this is handled and taken care of before I do actually

go away."

Rule 1:5-7 provides in pertinent part that "[a]n affidavit

of non-military service of each defendant, male or female, when

required by law, shall be filed before entry of judgment by

default against such defendant." We noted in PNC Bank, N.A. v.

Kemenash that this Rule is grounded in both federal and state

law. 335 N.J. Super. 124, 127 (App. Div. 2000). The New Jersey

Soldiers' and Sailors' Civil Relief Act provides that

In any civil action or proceeding commenced in any court, if there shall be a default of an appearance by the defendant, [] plaintiff, within 20 days before the entry of judgment or final order, shall file in the court an affidavit setting forth facts

6 A-2253-09T3 showing that the defendant is not in military service.

[N.J.S.A. 38:23C-4.]

The statute is to be liberally construed for the stated purpose

"to maintain, secure and protect the civil and property rights

of persons in the military." N.J.S.A. 38:23C-1. A judgment

entered in the absence of an appropriate affidavit "is not void

but voidable and then only by a person within the protection of

the statute and affidavit requirement." Kemenash, supra, 335

N.J. Super. at 129. New Jersey law defines "court" only as any

"State court of competent jurisdiction . . ." and does not

include state administrative agencies. N.J.S.A. 38:23C-2.

The federal statute, the Servicemembers Civil Relief Act,

50 U.S.C.A. app. §§ 501 to 597, similarly requires a plaintiff

to file an affidavit of nonmilitary status before a default

judgment is entered in a civil proceeding. 50 U.S.C.A. app. §

521(b)(1)(A). The federal law, which was amended in 2003, now

defines "court" as any court or "administrative agency of the

United States or of any State (including any political

subdivision of a state) . . . ." 50 U.S.C.A. app. § 511(5)

(emphasis added).

The federal Act further provides for a stay of proceedings:

(1) Authority for stay. At any stage before final judgment in a civil action or proceeding in which a servicemember . . . is

7 A-2253-09T3 a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.

(2) Conditions for stay. An application for a stay under paragraph (1) shall include the following:

(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.

[50 U.S.C.A. app. § 522(b)(1).]

The stated purpose of the federal Act is to "provide temporary

suspension of judicial and administrative proceedings and

transactions that may adversely affect the civil rights of

servicemembers during their military service." 50 U.S.C.A. app.

§ 502(2).

This federal Act applies to our state administrative

agencies by application of the Supremacy Clause of the United

States Constitution, U.S. Const. Art. VI, cl. 2. During World

War II, the United States Supreme Court stated that the Act,

then known as the Soldiers' and Sailors' Civil Relief Act, is

"always to be liberally construed to protect those who have been

obliged to drop their own affairs to take up the burdens of the

nation." Boone v. Lightner, 319 U.S. 561, 575, 63 S. Ct. 1223,

8 A-2253-09T3 1233, 87 L. Ed. 1587, 1596 (1943). We follow the Court's

mandate to liberally apply the Act, which is necessary now as it

was then.

It was a clear violation of the Act for a hearing to

proceed while Newman was known to be serving in the military and

did not expressly consent to the proceeding occurring in his

absence. We must therefore remand for another hearing as to the

timely filing of Lowe's appeal, giving Newman an opportunity to

participate. Newman may well have a legal defense regarding the

untimeliness of the employer's appeal, which he was not able to

present at the April 13 hearing due to his service in the Air

Force.

III

Newman argues that Lowe's initial appeal of the Deputy's

decision rendering him eligible for unemployment benefits was

untimely filed. The Attorney General maintains that since

Lowe's appealed within two days of receiving the initial

determination from UC Express, it filed the appeal timely.

N.J.S.A. 43:21-(6)(b)(1) sets forth the procedure for

appeals of an agency determination of unemployment benefits. It

states that

Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such

9 A-2253-09T3 notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith. . . .

[N.J.S.A. 43:21-(6)(b)(1) (emphasis added).]

Lowe's clearly did not file an appeal within "10 calendar days

after such notification was mailed." The issue is whether the

appeal was filed within seven calendar days of receipt of

notification of the initial determination.

New Jersey courts have consistently held that the

limitation period proscribed by this statute is of

jurisdictional import and "hence not generally subject to

equitable tolling or enlargement under the so-called discovery

rule." Hopkins v. Bd. of Review, 249 N.J. Super. 84, 88-89

(App. Div. 1991). See also, Lowden v. Bd. of Review, 78 N.J.

Super. 467, 470 (App. Div. 1963) (explaining that the

Unemployment Compensation Law is social legislation "which

should be construed by the courts to give effect to its

beneficent purposes[]" but does not authorize courts to extend

time limitations intended by the Legislature to be fixed as an

absolute deadline in the statute). In Rivera v. Bd. of Review,

the Court held that claimants in unemployment compensation cases

have a due process right to notice which must be considered when

applying statutory appeal requirements. 127 N.J. 578, 586

10 A-2253-09T3 (1992). As applied to a claimant, the statutory period may be

enlarged so that the individual has constitutionally-sufficient

notice of the loss of benefits. Id. at 586-87. Lowe's, the

employer, does not enjoy a similar due process right to enlarge

the rigid statutory period to appeal.

Both the Appeal Tribunal and the Board of Review determined

that Lowe's appealed within seven days of receipt of the

Deputy's initial determination. Lowe's human resources employer

stated at the April 13 hearing that she received the initial

determination from UC Express, the company's unemployment

compensation representative, on October 13. There is no

evidence in the record as to when UC Express received the

determination and thus no way to determine if Lowe's October 15

appeal was within seven days of delivery of the notification of

the initial determination to UC Express.

Rule 4:4-6 explains that an attorney acknowledgement of

service of process on behalf of a client "shall have the same

effect as if the defendant had been properly served." While UC

Express does not provide legal representation, UC Express is

Lowe's representative with specific authority to receive

determinations from an administrative body on behalf of Lowe's.

See Air-Way Branches, Inc. v. Bd. of Review, 10 N.J. 609, 613-15

(1952) (holding that a determination sent to a warehouse manager

11 A-2253-09T3 with no authority to accept or acknowledge service of legal

process is insufficient to begin the seven-day appeals timeline

for an employer to appeal employee eligibility of benefits).

Thus, the issue is whether Lowe's filed the appeal within seven

calendar days of UC Express' receipt of the initial

determination. Because the record does not reveal when UC

Express received the determination, a rehearing as to timeliness

of Lowe's appeal would be necessary even absent the clear

violation of federal law.

Reversed and remanded.

12 A-2253-09T3