JEFF RANDALL VS. BOARD OF REVIEW (BOARD OF REVIEW, DEPARTMENT OF LABOR) ( 2018 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-5697-16T4
    JEFF RANDALL,
    Appellant,
    v.
    BOARD OF REVIEW and
    D&C TIRE PROS, INC.,
    Respondents.
    _________________________________
    Submitted July 24, 2018 – Decided           August 15, 2018
    Before Judges Ostrer and Vernoia.
    On appeal from the Board of Review, Department
    of Labor, Docket No. 113,578.
    Jeff Randall, appellant pro se.
    Gurbir S. Grewal, Attorney General, attorney
    for respondent Board of Review (Melissa Dutton
    Schaffer, Assistant Attorney General, of
    counsel; Jessica M. Saxon, Deputy Attorney
    General, on the brief).
    Respondent D&C Tire Pros, Inc. has not filed
    a brief.
    PER CURIAM
    Claimant Jeff Randall appeals from a July 28, 2017 Board of
    Review     final   decision     affirming    Appeal     Tribunal   (Tribunal)
    decisions    dismissing   his    appeal     from   a   disqualification   from
    unemployment compensation benefits and denying his request to
    vacate the dismissal.         We vacate the Board's final decision, and
    remand for a determination of whether claimant's appeal should be
    reinstated under N.J.A.C. 1:12-14.4(b).
    In    January   2017,     claimant     filed     an   application    for
    unemployment benefits.         The Deputy Director found claimant was
    disqualified from receiving benefits between January 22, 2017 and
    March 18, 2017, because he was discharged from employment with D&C
    Tire Pros, Inc. for simple misconduct connected with the work.1
    Following his appeal of the determination, claimant received
    a "Notice of Phone Hearing" scheduling a telephonic hearing before
    Appeal Tribunal Hearing Examiner William Scaglione at 9:00 a.m.
    on April 6, 2017.     The notice also stated that:
    Unlike    the    Unemployment     fact-finding
    interview, the Office of Benefit Appeals WILL
    NOT INITIATE A CALL TO YOU UNLESS YOU HAVE
    REGISTERED FOR THE HEARING AS INSTRUCTED
    ABOVE. So, please remember to REGISTER NO
    LATER THAN 3:00 P.M., EST, ON THE BUSINESS DAY
    PRIOR TO YOUR SCHEDULED HEARING BEFORE THE
    APPEAL TRIBUNAL.
    Your appeal may be dismissed or you may be
    denied participation in the hearing if you
    fail, without good cause, to follow the
    instructions contained in this notice.
    1
    D&C Tire Pros, Inc. did not participate in this appeal.
    2                               A-5697-16T4
    Claimant received the notice, and sent a letter to the Hearing
    Examiner addressing the merits of his unemployment compensation
    claim and stating he would "speak with [the Hearing Examiner] on
    April 6th."   Claimant did not, however, call and register for the
    hearing as the notice directed.
    As a result of claimant's failure to call and register, no
    hearing was conducted.   In a decision mailed on April 7, 2017, the
    Tribunal dismissed the appeal because claimant failed to register
    and appear for the hearing.   The Tribunal determined that "[t]he
    reason provided by . . . claimant" – that "he failed to thoroughly
    read the notice and note the established deadline for registration"
    – "does not constitute good cause for his failure to register for
    the hearing as instructed."
    On April 12, 2017, claimant submitted a written request for
    a new hearing.    He asserted that he sent a letter confirming he
    would speak to the Hearing Examiner at the hearing, made a mistake
    by failing to register, and was available and waiting for a phone
    call for the hearing at the scheduled time.    He stated that when
    he did not receive the phone call, he called but the appeal was
    dismissed.    He further argued he was disqualified for benefits
    based on his former employer's false allegation he was discharged
    for misconduct.     He requested that the Tribunal "reopen its
    3                         A-5697-16T4
    [d]ecision" and grant another hearing.
    The Tribunal issued an April 26, 2017 order denying claimant's
    request.     The Tribunal determined claimant failed to demonstrate
    good cause for his failure "to participate in the duly scheduled
    hearing on" April 6, 2017.      Claimant appealed to the Board.
    In its final decision, the Board determined claimant failed
    to participate in the scheduled Tribunal hearing, and did not
    demonstrate good cause for his failure to do so.             The Board also
    concluded the Tribunal did not abuse its discretion by denying
    claimant's    request   to   reopen   the   hearing,   and    affirmed   the
    Tribunal's decisions dismissing claimant's appeal and denying his
    request for another hearing.      This appeal followed.
    On appeal, claimant argues:
    [POINT I]
    [CLAIMANT] SHOULD NOT HAVE BEEN DENIED
    BENEFITS INITIALLY BECAUSE OF LIES TOLD BY
    [HIS] FORMER EMPLOYER . . . AND THEN SHOULD
    NOT HAVE BEEN DENIED . . . APPEAL BECAUSE OF
    ONE SIMPLE ERROR ON THE [CLAIMANT'S] PART
    HAVING NOT MADE THE CALL TO REGISTER . . . .
    ALL OTHER INSTRUCTIONS HAVE BEEN FOLLOWED AND
    THE [CLAIMANT] SHOULD RECEIVE THE UNEMPLOYMENT
    BENEFITS FOR THE SHORT TIME UNEMPLOYED
    . . . .
    In an appeal from an order of the Board denying unemployment
    compensation, our review "is limited to determining whether the
    agency acted arbitrarily, capriciously, or unreasonably."           Lourdes
    4                             A-5697-16T4
    Med. Ctr. of Burlington Cty. v. Bd. of Review, 
    197 N.J. 339
    , 360
    (2009); accord Brady v. Bd. of Review, 
    152 N.J. 197
    , 210 (1997).
    To determine whether an agency's decision is arbitrary, capricious
    or unreasonable, we consider the following "key determinations:"
    (1) whether the agency's action violates
    express or implied legislative policies, that
    is, did the agency follow the law; (2) whether
    the record contains substantial evidence to
    support the findings on which the agency based
    its action; and (3) whether in applying the
    legislative policies to the facts, the agency
    clearly erred in reaching a conclusion that
    could not reasonably have been made on a
    showing of the relevant factors.
    [Circus Liquors, Inc. v. Governing Body of
    Middletown Twp., 
    199 N.J. 1
    , 10 (2009)
    (quoting Mazza v. Bd. of Trs., 
    143 N.J. 22
    ,
    25 (1995)).]
    The Board first determined claimant's appeal was properly
    dismissed because he did not establish good cause for his failure
    to register for, and appear at, the Tribunal hearing.             Dismissal
    of   an   appeal   for   nonappearance   of   a   claimant   is   expressly
    authorized by N.J.A.C. 1:12-14.4(a), which provides that "[i]f the
    appellant fails to appear for a hearing before an appeal tribunal,
    the appeal tribunal may proceed to make its decision on the record
    or may dismiss the appeal on the ground of nonappearance unless
    5                               A-5697-16T4
    it appears that there is good cause2 for adjournment."3
    The record shows claimant received notice of the hearing, was
    advised of the registration requirements for his participation and
    failed to comply with those requirements. He presented no evidence
    there was good cause for his failures.    He claims only that he
    made a mistake, but offers no cause for it.   Based on that record,
    2
    The regulations do not expressly define what constitutes "good
    cause" under N.J.A.C. 1:12-14.4(a). In a related context, however,
    the regulations define "good cause" for permitting the filing of
    a late appeal from a denial of unemployment compensation benefits.
    N.J.A.C. 12:20-3.1(i) provides:
    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.
    Claimant makes no showing his failure to register for the
    hearing was due to circumstances beyond his control or "which
    could not have been reasonably foreseen or prevented." N.J.A.C.
    12:20-3.1(i)(2).
    3
    The plain language of N.J.A.C. 1:12-14.4(a) does not limit its
    application to a circumstance where a claimant requests an
    adjournment in advance of a hearing. The regulation also applies
    where, as here, a claimant "fails to appear for a hearing before
    an appeal tribunal," and the Board is required to determine if
    there is "good cause" excusing the nonappearance and precluding
    "dismiss[al of] the appeal on the ground of nonappearance."
    6                           A-5697-16T4
    there is no basis to conclude the Board's finding that claimant's
    apparent lack of diligence and attention does not establish good
    cause for an adjournment is arbitrary, capricious or unreasonable.
    Thus,   the     Board's   decision    was   supported      by   the   evidence,
    consistent with N.J.A.C. 1:12-14.4(a), and reasonably made based
    on the relevant factors.          See Circus Liquors, 
    Inc., 199 N.J. at 10
    .
    The   Board    erred   as   a   matter   of   law,    however,    in   its
    determination that claimant's failure to establish good cause for
    an adjournment under N.J.A.C. 1:12-14.4(a) required rejection of
    claimant's request for the reopening of the Tribunal hearing.
    Where an appeal is dismissed due to nonappearance pursuant to
    N.J.A.C. 1:12-14.4(a), a claimant is entitled to have the dismissal
    "set aside" if he or she satisfies the requirements of N.J.A.C.
    1:12-14.4(b).       The regulation, which is not cited by the Tribunal
    or the Board in their respective decisions, or by the Board in its
    brief on appeal, provides:
    (b) If an appeal tribunal issued an order of
    dismissal for nonappearance of the appellant,
    the chief appeals examiner shall, upon
    application made by such appellant, within six
    months after the making of such order of
    dismissal, and for good cause shown, set aside
    the order of dismissal and shall reschedule
    such appeal for hearing in the usual manner.
    An application to reopen an appeal made more
    than six months after the making of such order
    of dismissal may be granted at the discretion
    7                                A-5697-16T4
    of the chief appeals examiner.
    [N.J.A.C. 1:12-14.4(b).]
    The regulation provides relief for a claimant whose appeal
    is dismissed due to nonappearance and failure to demonstrate good
    cause for adjournment under N.J.A.C. 1:12-14.4(a).           Relief under
    the regulation is mandatory where a claimant makes the required
    showing of good cause.       See N.J.A.C. 1:12-14.4(b) (providing that
    the dismissal "shall . . . for good cause shown . . . be set aside
    . . . .").
    Whether good cause exists under N.J.A.C. 1:12-14.4(b) to set
    aside a dismissal for nonappearance entered pursuant to N.J.A.C.
    1:12-14.4(a) requires an assessment wholly different than that
    required for a determination of good cause for an adjournment
    under N.J.A.C. 1:12-14.4(a) in the first instance.           If the good
    cause standards were the same, a claimant against whom a dismissal
    was ordered pursuant to N.J.A.C. 1:12-14.4(a) could never have it
    set aside under N.J.A.C. 1:12-14.4(b) because the absence of good
    cause permitting dismissal of the appeal under N.J.A.C. 1:12-
    14.4(a) would necessarily preclude relief from a dismissal under
    N.J.A.C. 1:12-14.4(b).        "We interpret a regulation in the same
    manner that we would interpret a statute," U.S. Bank, N.A. v.
    Hough,   
    210 N.J. 187
    ,    199   (2012),   and   will   not   adopt    an
    interpretation "so as to produce an unreasonable or absurd result,"
    8                             A-5697-16T4
    In re Application of Boardwalk Regency Corp. for Casino License,
    
    180 N.J. Super. 324
    , 345 (App. Div. 1981).
    Although not characterized as such, claimant's request for a
    reopening of the hearing constituted a request to vacate the
    dismissal and grant a new hearing pursuant to N.J.A.C. 1:12-
    14.4(b).    In its denial of claimant's request, however, the
    Tribunal4 and Board rejected the request because claimant failed
    to demonstrate good cause for an adjournment under N.J.A.C. 1:12-
    14.4(a). Although we generally defer to an agency's interpretation
    of a regulation within its sphere of authority, we owe no deference
    where, as here, the Board relied on an interpretation of the good
    cause   standard   under   N.J.A.C.       1:12-14.4(b)   that   is   "plainly
    unreasonable."     
    Hough, 210 N.J. at 200
    (citation omitted).
    The appropriate inquiry for the Tribunal and Board in their
    consideration of claimant's request for a new hearing was whether
    there was good cause to vacate the dismissal under N.J.A.C. 1:12-
    14.4(b).   The regulation does not define good cause but, in an
    analogous context, we have observed that "'[g]ood cause' is an
    amorphous term, that is, it 'is difficult of precise delineation.
    4
    N.J.A.C. 1:12-14.4(b) requires that the chief appeals examiner
    decide whether to set aside a dismissal made pursuant to N.J.A.C.
    1:12-14-4(a). The record presented is unclear whether the chief
    appeals examiner considered and decided respondent's request. On
    remand, the chief appeals examiner shall consider and decide the
    request in the first instance.
    9                               A-5697-16T4
    Its application requires the exercise of sound discretion in light
    of the facts and circumstances of the particular case considered
    in the context of the purposes of the [rule] being applied.'"
    Ghandi v. Cespedes, 
    390 N.J. Super. 193
    , 196 (App. Div. 2007)
    (quoting Delaware Valley Wholesale Florist, Inc. v. Addalia, 
    349 N.J. Super. 228
    , 232 (App. Div. 2002)) (interpreting Rule 1:13-
    7(a), which permits reinstatement of a civil complaint dismissed
    for lack of prosecution upon a showing of "good cause").5
    5
    To determine whether there is good cause for reinstatement of
    a civil complaint under Rule 1:13-7(a), we consider the fault of
    the plaintiff, whether there was prejudice to the defendant, the
    length of the delay in moving for reinstatement and the policy
    underlying the reinstatement rule. See, e.g., Giannakopoulos v.
    Mid State Mall, 
    438 N.J. Super. 595
    , 608-09 (App. Div. 2014);
    Baskett v. Kwokleung Cheung, 
    422 N.J. Super. 377
    , 384-85 (App.
    Div. 2011); Weber v. Mayan Palace Hotel, 
    397 N.J. Super. 257
    , 264
    (App. Div. 2007); 
    Ghandi, 390 N.J. Super. at 197-98
    . We offer no
    opinion whether the same considerations should govern the Board's
    interpretation of N.J.A.C. 1:12-14.4(b)'s good cause standard, but
    observe that although the dismissal was claimant's fault, he
    forwarded materials in support of his claim in advance of the
    hearing, advised he would discuss the matter with the Hearing
    Examiner at the scheduled hearing and his failure to make the
    registration call was the result of a mistake. Moreover, claimant
    immediately filed his request to vacate the dismissal and the
    record is devoid of any evidence the Board or claimant's employer
    would have been prejudiced if the dismissal order was vacated.
    Last, N.J.A.C. 1:12-14.4(b) permits reinstatement of a claim
    dismissed due to nonappearance and, therefore, such dismissals are
    without prejudice.    N.J.A.C. 1:12-14.4(b)'s mandate that such
    dismissals shall be vacated where good cause is shown is consistent
    with the policy underlying New Jersey's Unemployment Compensation
    Law, N.J.S.A. 43:21-1 to -56 (the Act): to "provide some income
    for the worker earning nothing, because he is out of work through
    no fault or act of his own." 
    Brady, 152 N.J. at 212
    (quoting
    10                           A-5697-16T4
    In any event, the Appeal Tribunal and Board mistakenly applied
    N.J.A.C. 1:12-14.4(a)'s good cause standard in its determination
    of good cause under N.J.A.C. 1:12-14.4(b), and therefore did not
    consider or interpret the applicable good cause standard, or apply
    it to claimant's request to vacate the dismissal order.6   We defer
    to an agency's interpretation of its regulations "because 'a state
    agency brings experience and specialized knowledge to its task of
    administering and regulating a legislative enactment within its
    field of expertise.'"    
    Hough, 210 N.J. at 200
    (quoting In re
    Election Law Enf't Comm'n Advisory Op. No. 01-2008, 
    201 N.J. 254
    ,
    Yardville Supply Co. v. Bd. of Review, 
    114 N.J. 371
    , 375 (1989)).
    In determining the good cause standard under N.J.A.C. 1:12-
    14.4(b), the Board should consider that "to further [the Act's]
    remedial and beneficial purposes . . . the [Act] is to be construed
    liberally in favor of allowance of benefits." Lourdes Med. 
    Ctr., 197 N.J. at 364
    (second alteration in original) (quoting Utley v
    Bd. of Review, 
    194 N.J. 534
    , 543 (2008)).
    6
    N.J.A.C. 1:12-14.4 became effective on August 1, 1994, 26 N.J.R.
    3154-56 (Aug. 1, 1994), and was readopted effective on July 29,
    1999, 31 N.J.R. 2603(a) (Sept. 7, 1999). At the time of its next
    readoption in 2005, 37 N.J.R. 1015(b) (Apr. 4, 2005), the
    Department of Labor and Workplace Development responded to a
    comment suggesting the regulation should be amended "to limit the
    rescheduling or reopening of an appeal after a failure to appear
    to one time, given that a valid reason for the nonappearance is
    provided."    Noting "N.J.A.C. 1:12-14.4(b)[] provides that a
    hearing may be rescheduled after a failure to appear only for
    'good cause shown,'" the Department disagreed with the suggested
    amendment, stating that "limiting the number of times a matter may
    be rescheduled without regard to the surrounding circumstance[s]
    may be arbitrary." 
    Ibid. (emphasis added). The
    regulation was
    readopted in 2011, 43 N.J.R. 1861(a) (Aug. 1, 2011), and again in
    2018, 50 N.J.R. 1477(a) (July 2, 2018).
    11                           A-5697-16T4
    262 (2010)).     We are therefore convinced the appropriate remedy
    is to vacate the Board's final decision, and remand the matter for
    reconsideration of respondent's request to set aside the dismissal
    order under N.J.A.C. 1:12-14.4(b).7         On remand, claimant and the
    employer shall be permitted to offer argument concerning N.J.A.C.
    1:12-14.4(b)'s    good   cause   standard    and   evidence   relevant    to
    claimant's request to set aside the dismissal order.
    Vacated and remanded for further proceedings consistent with
    this opinion.    We do not retain jurisdiction.
    7
    N.J.A.C. 1:12-14.4(b) requires that the chief appeals examiner
    decide whether to set aside a dismissal made pursuant to N.J.A.C.
    1:12-14-4(a). The record presented is unclear whether the chief
    appeals examiner considered and decided respondent's request. On
    remand, the chief appeals examiner shall consider and decide the
    request in the first instance.
    12                              A-5697-16T4