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Sandra H. Comarcho v. Board of Review


June 13, 2012


On appeal from the Board of Review, Department of Labor, Docket No. 284,085.

Per curiam.


Submitted May 16, 2012

Before Judges Lihotz and Waugh.

Petitioner Sandra H. Comarcho appeals from a final decision issued by the Board of Review, upholding the denial of her application for unemployment benefits. The Board found Comarcho's administrative appeal was untimely and that she failed to demonstrate good cause to excuse the delay. We affirm.

Comarcho worked as an advertising account executive for the Newark Morning Ledger Co. (NML), owner of the Star-Ledger and The Times of Trenton newspapers. Facing heavy financial losses, NML circulated "buyout offers" to its full-time non-represented employees. They provided for payment of "2 weeks[] pay for every year of completed service, capped at 26 weeks[] pay, along with medical coverage for the severance period." Comarcho did not participate in the first offer, but accepted a second buyout offer with similar terms in late November 2009.

Comarcho's last day of employment was December 4, 2009. Thereafter, she applied for unemployment benefits. Comarcho was awarded benefits for the period of November 21, 2009 to April 24, 2010, totaling $12,848. When Comarcho contacted the Department of Labor and Workforce Development, Division of Unemployment (Division) after a May 11, 2010 payment was not received, she learned an April 30, 2010 letter determining she was disqualified for benefits had been mailed to her. Comarcho had not received the letter, explaining:

The reason why I did not receive the letter is I always received --- take the mail out of my mailbox. I have a key and so forth and unbeknownst to me my son[, who] never picks up the mail had I guess the week prior to that, gone in and picked up the mail and when I questioned if there was any mail, he mentioned that there was a stack of mail that he put somewhere else in another location in the house[,] in his room[,] as a matter of fact[.]

Comarcho stated her son was also receiving unemployment benefits and he had "assumed it was a notice of automated deposit, which they both received weekly."

Comarcho located the letter, which was from a Deputy Director of the Division of Unemployment and Disability Insurance (Deputy), informing her that a review of the facts resulted in a determination that she was disqualified for unemployment benefits beginning November 8, 2009. The Deputy determined Comarcho was disqualified from receiving unemployment benefits because she "left work voluntarily on 11/13/09 . . . due to a buy out agreement[,]" which was considered "a mutual separation agreement[.]" Accordingly, her reason for leaving her employment did "not constitute good cause attributable to the work."

The notice expressly stated, "Any appeal from this determination must be submitted in writing within 7 days after delivery or within 10 days after the date of mailing. The tenth day after the date of mailing [wa]s: 5/10/10[.]" The Division issued a separate demand for her to refund any benefits previously paid.

On May 19, 2010, Comarcho filed an appeal of the denial of her application for benefits. She explained the delay resulted because she "was trying to find out information . . . [she] was trying to call in and couldn't get through." Then she went to her employer to "find out what was going on[,]" as she believed her former employer had challenged her request for benefits. She claimed she was told not by one but two individuals representing the NJ Dept. of Labor and Workforce Development in [two] different offices over the course of that week that this [delay in filing the appeal] should not be a problem but simply to get my appeal letter in as soon as possible after gathering my information.

Comarcho asserted she completed the paperwork for an "in-person hearing appeal" on May 14, 2010, while in the Division's office; orally gave notice of her intention to appeal the adverse determination during a May 18, 2010 telephone call to the Division; and hand-delivered her appeal in writing on May 19, 2010.

On July 6, 2010, an Appeal Tribunal held a hearing. Comarcho appeared and her employer did not.

In addition to addressing the delay in Comarcho's filing, the Appeals Examiner accepted testimony regarding the circumstances surrounding why Comarcho no longer worked for the newspaper, as follows:

[Examiner]: Why are you no longer [with your employer] as of December 4? [Comarcho]: Because of the downsizing of the company and job eliminations.

Q. Okay. Did they tell you [that] you were laid off from the job?

A. Well the layoffs were inevitable. It was imminent for a layoff and massive ---massive layoffs. That's been going on for a number of years. I would say two or three years prior to that. They had been cutting job positions.

Q. Did they tell you what date you would be laid off from the job?

A. Yes. December 4. I got the call --- my HR Director told me December 4.

Q. Now the determination said you voluntarily took a buy out agreement. Is that incorrect?

A. No. That's not incorrect. The fact of the matter is that this whole buy out thing has been an ongoing thing in the last like I said two years or with the company and I have documentation from other individuals that went through the same exact process that I'm going through now with the company --- co-workers of mine and you know and they were notified of the same exact notification that I received that they voluntarily left the job. I would never leave my job after 24 years. I have never been unemployed.

Q. Okay. So whether you signed the package or not, it didn't make a difference, you were still [going to] be laid off.

A. It didn't make a difference. Yes. It didn't make a difference[.]

Comarcho offered no documentation "saying that [she] would be laid off December 4 if [she] didn't take the [buyout] package." However, she maintains she was told to either take the buyout package or be laid off.

Without addressing the merits of Comarcho's claim, the Appeal Tribunal dismissed her appeal as untimely. The decision stated:

N.J.S.A. 43:21-6(b)(1) provides that an appeal must be filed within ten (10) days of mailing of the determination, or within seven (7) days of the receipt of the determination. The appeal was not filed within these limits and good cause has not been shown for the appeal being filed late.

The claimant knew she received the determinations late, but did not file her appeal as soon as possible. The Tribunal has no jurisdiction to rule on the merits of the appeal. The appeal is dismissed.

Comarcho appealed to the Board of Review. The Board stated:

IT APPEARING that the appeal was properly dismissed in accordance with the provisions of N.J.S.A. 43:21-6(b)(1), the Deputy's determination having become final, and good cause not having been shown for such late filing;

IT IS ORDERED that the decision of the Appeal Tribunal be, and hereby is, affirmed.

This appeal ensued. Comarcho argues the Board erred in dismissing her appeal as she demonstrated good cause for the delay in filing her challenge to the denial of benefits. She requests we "review the matter sua sponte as to not further delay her right to receive such benefits[,]" and alternatively, to remand the matter to the Board for review of her eligibility for benefits.

The scope of our review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); Futterman v. Bd. of Review, 421 N.J. Super. 281, 287 (App. Div. 2011). The administrative agency's determination carries a presumption of correctness and a claimant who challenges the agency's conclusion carries a substantial burden of persuasion. Gloucester Cnty. Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). Also, we accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

The question of whether an employee should be denied unemployment compensation benefits is based on the circumstances of each individual case. See Self v. Bd. of Review, 91 N.J. 453, 459-60. (1982). In our review, "[w]e are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations and citations omitted). We overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391; Campbell, supra, 39 N.J. at 562.

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (internal quotation marks omitted). "The basic policy of the [Act] is advanced . . . when benefits are denied in improper cases as when they are allowed in proper cases." Id. at 374.

While an agency's interpretation of "statutes and regulations within its implementing and enforcing responsibility" receive "some deference[,]" an appellate court is "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) (internal quotations and citations omitted).

Comarcho urges reversal of the Board's dismissal, arguing she relied upon oral representations of Division employees assuring "she was permitted to file her appeal after the deadline date." We are not persuaded.

The "right to unemployment compensation benefits is purely statutory[.]" Lowden v. Bd. of Review, 78 N.J. Super. 467, 469 (App. Div. 1963). N.J.S.A. 43:21-6(b)(1) provides:

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 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[.]

Regulations promulgated thereunder guide the calculation of the appeal period, stating "the day of the act or event" is not included, while the last day of the period is, "unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday." N.J.A.C. 12:20-3.1(c). The Board considers an appeal filed on the date of the postmark or "the date of receipt by an office or employee of the Department of Labor and Workforce Development authorized to accept appeals." N.J.A.C. 12:20-3.1(d).

Giving Comarcho the benefit of the mail confusion, she received the denial on May 11, 2010, requiring her written appeal to be postmarked or delivered by May 18, 2010. Under this extended time line, Comarcho's appeal was one day late.

The filing deadline is not jurisdictional. Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992). Consequently, as a matter of due process, an untimely appeal "shall be considered on its merits if it is determined that the appeal was delayed for good cause." N.J.A.C. 12:20-3.1(i). A good cause exception to the strict application of the appeal period, ensures "that those who have a right to appeal are afforded the time to exercise that right." Rivera, supra, 127 N.J. at 590. See also Garzon v. Bd. of Review, 370 N.J. Super. 1, 5 (App. Div. 2004). Good cause exists where: "1. [t]he delay in filing the appeal was due to circumstances beyond the control of the appellant[] or 2. [t]he appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-3.1(i).

As applied here, Comarcho was given the benefit of the regulation, and the May 10 deadline was extended as a result of her delayed receipt when her son misplaced the mail. Once she reviewed the notice on May 11, nothing prevented or precluded her ability to timely seek an appeal. The delay was within her control.

The Appeal Tribunal rejected Comarcho's claim of oral assurances from unidentified Division employees, who purportedly led her astray on May 18, suggesting she could file "as soon as possible." Also, Comarcho does not state why she did not or could not file that day; she only suggested she waited to file her appeal because she was "trying to find out information" from her employer stating she was told she could appeal "after gathering [her] information." Such a position is unsupportable in light of the notice itself, which expressly requires any appeal to be submitted in writing within seven days of receipt of the denial of benefits.

Unlike the claimants in Rivera and Garzon, Comarcho admits the notice was sent to her home and that she received and read it. Further, she understood there was a deadline imposed to take action. Finally, she relates no impediment to filing an appeal within the seven day deadline. The late filing did not result because of circumstances beyond her control.

Comarcho suggests that "considering the circumstances, one day late is de[]minimus" such that the failure to excuse the delay is "unreasonable and harsh," and "arbitrary and capricious." We disagree.

Simply because a limitations period is short does not make it unfair or otherwise excuse noncompliance. See Lowden, supra, 78 N.J. Super. at 470 ("It has already been held by our Supreme Court that this time limitation, though short, may be said to be fair."). Limitations on actions are necessary to derive certainty of result and to prevent a party from sitting on her rights.

Comarcho next argues, for the first time on appeal, that she timely filed a written request for an in-person hearing, therefore her appeal should be considered timely. Presumably, she relies on N.J.A.C. 12:20-3.1(a), which broadly treats "[a]ny written statement" as an appeal, "including a facsimile, electronic mail or other electronic transmission, filed within the time for appeals allowed by law, . . . set[ting] forth the fact that a party to a determination made by the [D]ivision is aggrieved thereby or dissatisfied therewith[.]"

The record contains no such documentation regarding a submission on May 14, 2010. The failure to raise this issue before the agency precludes our review in the first instance.

R. 2:6-2(a)(1). Moreover, Comarcho's Appeal Tribunal testimony demonstrates she appealed on May 19, 2010.

Finally, we reject Comarcho's attempt to contradict statements she made before the Appeal Tribunal. She now claims "she physically found the letter [stating she was ineligible for benefits] on May 12, 201[0]" so that "the filing on . . . May 19, 201[0] was timely." Her hearing testimony identifies May 11 as the date she called the Division, learned of the letter, and found it in her son's room. Accordingly, her newly advanced factual argument lacks merit. R. 2:11-3(e)(1)(E).

In light of our determination we decline Comarcho's request to assume original jurisdiction to "sua sponte" address her eligibility. The Board's determination denying claimant benefits is supported by substantial credible evidence in the record.



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