Opinion
DOCKET NO. A-6130-11T1
09-12-2014
FRANKLYN D. VEGA-CRUZ, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and SUPREME CUTS, LLC, Respondents.
Franklyn D. Vega-Cruz, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief). Respondent Supreme Cuts, LLC, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Board of Review, Department of Labor, Docket No. 344,530. Franklyn D. Vega-Cruz, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief). Respondent Supreme Cuts, LLC, has not filed a brief. PER CURIAM
Appellant Franklyn Vega-Cruz appeals from the July 13, 2012 final decision of the Board of Review (Board), dismissing his appeal as untimely. After reviewing the record before us, and mindful of the prevailing legal standards, we reverse and remand to the Board for further proceedings.
Appellant worked as a packer for Supreme Cuts, LLC from October 22, 2009 until March 29, 2011. On that date, appellant asserted his supervisor told him, "you no longer have a job[,] go home." In contrast, his employer's representative claimed that appellant "abruptly" left work on March 29, 2011 "without notice" and never returned.
On April 18, 2011, appellant's application for unemployment compensation benefits was denied by a Deputy Claims Examiner, who found that appellant had left work voluntarily without good cause attributable to his work. On July 16, 2011, appellant filed an appeal to the Appeal Tribunal from this determination, but did not appear for the telephone hearing. Accordingly, the Appeal Tribunal dismissed the appeal on October 17, 2011. On October 22, 2011, appellant appealed the dismissal, explaining that he failed to appear because he did not realize he was responsible for calling in to the hearing. Appellant's explanation was accepted and the Appeal Tribunal reopened the matter.
On December 2, 2011, appellant and his former employer's representative appeared at the telephone hearing. On two occasions, the appeals examiner asked appellant why he failed to file his appeal within ten days of his receipt of the Deputy Claims Examiner's decision as required by N.J.S.A. 43:21-6(b)(1). Appellant twice told the examiner that he had not received the letter setting forth that decision. Nevertheless, in a December 5, 2011 decision, the Appeal Tribunal found that appellant "would not testify to whether he received the letter of determination o[r] not" and that he failed to "explain why the appeal was not filed on time." The Appeal Tribunal then dismissed the appeal as untimely under N.J.S.A. 43:21-6(b)(1).
On April 13, 2012, appellant filed an appeal to the Board. However, the Board dismissed the appeal pursuant to N.J.S.A. 43:21-6(c), because it was filed more than twenty days after the Appeal Tribunal's decision was mailed to appellant. 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 twenty-day limitation on filing appeals provided by N.J.S.A. 43:21-6(c) should be employed. Subsequently, the Board promulgated a regulation establishing the factors to be considered in determining good cause. See 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 offers several reasons for the late filing of his appeal that do not appear to have been considered by the Board. Indeed, nothing in the record suggests that appellant was offered an opportunity by the Board to demonstrate good cause for his late appeal. We therefore reverse and remand the matter to the Board for reconsideration of the issue of good cause, requiring that any supplementation by appellant of his statement of reasons be presented to the Board within twenty days of his receipt of this opinion.
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