On appeal from a Final Decision of the Board of Review, 02-B-06128-000-XO.
Before Judges Stern, A. A. Rodríguez and Payne.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this action seeking unemployment compensation benefits, petitioner Zaida Garzon appeals from a final administrative determination of the Board of Review dismissing her appeal from an adverse decision rendered by the Appeal Tribunal. The Board's determination was based on the ground that the appeal was not timely under N.J.S.A. 43:21-6(c), which provides that the Tribunal's decision shall be deemed to be the final decision of the Board of Review unless, within ten days after notification or mailing of the Tribunal's decision, a further appeal is initiated. We reverse and remand petitioner's appeal for a determination as to whether good cause for the late filing can be demonstrated. We do so because we find that a form letter, forwarded to Garzon when it was determined that her appeal was late, did not adequately advise her that the Board of Review would relax its time limitations if"good cause" for doing so were demonstrated, and the"Timeliness Certification" accompanying that letter did not pose questions clearly designed to elicit the facts necessary to establish good cause. If the need to obtain information sufficient to determine whether good cause has been demonstrated is to be met through the use of a certification, then that certification and the instructions accompanying it should be revised.
Petitioner Garzon, a former employee of Pomerantz Staffing Services, L.L.C., filed a claim for unemployment compensation benefits on April 21, 2002 alleging that she had been laid off on April 19, 2002. A deputy claims examiner determined that Garzon was entitled to benefits from April 21, and he notified Garzon and her employer of his decision on July 16, 2002. On July 26, Pomerantz filed an appeal from the determination with the Appeal Tribunal. A telephonic hearing was held before that Tribunal on September 3, 2002. However, Garzon did not participate. On September 24, a decision was issued by the Appeal Tribunal holding Garzon disqualified for benefits from April 14, 2002 because, it found, she left work voluntarily without good cause attributable to such work. N.J.S.A. 43:21-5(a). The matter of Garzon's potential liability for refund of benefits already received was remanded to the Director for"an initial determination in accordance with established procedures." We have not been informed whether a refund has been demanded.
Page three of the Tribunal's decision contained the following in both English and Spanish:*fn1
IMPORTANT: This decision will become final, unless, within ten (10) days of the date of mailing or notification, a written appeal is filed with the Board of Review, Department of Labor, Labor Building, PO Box 937, Trenton, New Jersey 08625-0937. If the last day allowed for the appeal occurs on a Saturday, Sunday or legal holiday, the appeal will be accepted if received or postmarked 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.... On Tuesday, October 8, 2002, Garzon filed an appeal from the decision of the Appeal Tribunal with the Board of Review, four days after the mandated filing date of Friday, October 4, 2002.
On December 6, 2002, the Board of Review sent Garzon a letter that stated:
According to our records, your appeal of the Appeal Tribunal decision was filed beyond the ten (10) day period allowed for a timely appeal to the Board of Review. If an appeal is not filed in a timely manner, the Board of Review does not have the jurisdiction to review the case on its merits.
Therefore, please complete the enclosed certification (#1 to #3) as to the date you received the Appeal Tribunal decision and when you filed your appeal. As soon as possible, return the form in the enclosed self-addressed envelope, which requires postage.
If we do not receive a response within seven (7) days from the date of this letter, we will review your case on the information available.