VINCENT MARK RICCORDELLA VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-4701-15T3
VINCENT MARK RICCORDELLA,
Appellant,
v.
BOARD OF REVIEW,
and INTERNATIONAL FIDELITY
INSURANCE COMPANY,
Respondents.
Submitted July 5, 2017 – Decided July 21, 2017
Before Judges Simonelli and Carroll.
On appeal from the Board of Review, Department
of Labor and Workforce Development, Docket No.
047455.
Vincent Mark Riccordella, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent Board of Review
(Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Emily M. Bisnauth, Deputy
Attorney General, on the brief).
Sills Cummis & Gross P.C., attorneys for
respondent International Fidelity Insurance
Company (Galit Kierkut, of counsel and on the
brief; Grace A. Byrd, on the brief).
PER CURIAM
Appellant Vincent Riccordella appeals from a May 23, 2016
final decision of the Board of Review (Board), dismissing as
untimely his appeal of an Appeal Tribunal decision that he denies
receiving. We reverse and remand to the Board with direction to
decide the merits of appellant's claim.
Riccordella was employed by respondent International Fidelity
Insurance Company (IFIC) from January 2009 to March 2014, last
holding the title of Senior Vice President and Chief Financial
Officer. After IFIC terminated his employment, Riccordella filed
for unemployment benefits. On February 13, 2015, the Deputy
Director of the Division of Unemployment and Disability Insurance
found Riccordella was discharged by IFIC for committing theft by
deception and consequently he was disqualified for benefits due
to gross misconduct connected with the work.
Riccordella timely appealed to the Appeal Tribunal. A hearing
on the appeal was postponed for good cause twice by IFIC due to
the unavailability of its sole witness, and once because of
Riccordella's unavailability. A telephonic hearing was eventually
conducted on July 17, 2015, at which Riccordella appeared and IFIC
did not.1 In its July 20, 2015 decision, the Tribunal reversed
the Deputy's determination, and held that Riccordella was not
1
We note that the transcripts of the Appeal Tribunal hearings
have not been provided to us.
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liable to refund the $4452 in benefits he had received. The
Appeals Examiner concluded that:
[I]nsufficient evidence was presented at the
hearing to establish that [Riccordella] acted
in a manner which was either a crime or against
the interests of his employer. As
[Riccordella] gave no self-incriminating
testimony and indicated that all legal claims
made by [IFIC] based on his actions have been
dismissed, the Tribunal does not find there
to be sufficient proof to establish that
[Riccordella] committed any infractions which
would amount to misconduct connected with the
work. Therefore, no disqualification arises
under N.J.S.A. 43:21-5(b) as [Riccordella] was
not discharged for misconduct connected with
the work.
The Examiner also noted that IFIC "received, but failed to
follow, the instructions provided for participating in the hearing
and called the Tribunal both after the scheduled start of the
hearing and after the hearing had been closed because they had
forgotten about the time of the hearing." Consequently, the
Tribunal determined that IFIC did not establish good cause for
failing to participate in the hearing.
IFIC appealed the Tribunal's decision by letter dated August
5, 2015. IFIC explained that its witness was prepared to testify
to Riccordella's purported misconduct, but misunderstood the
instructions that required her to call in prior to the hearing.
IFIC further contended that the Tribunal failed to consider written
documentation it had previously submitted and about which its
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witness was ready to testify. On February 4, 2016, the Board
found good cause for IFIC's failure to participate in the July 17,
2015 hearing, and remanded the case to the same Appeals Examiner
for a new hearing at which IFIC and Riccordella would both
participate.
On March 1, 2016, the Appeal Tribunal adjourned the rehearing,
again because IFIC's witness was unavailable. On March 31, 2016,
the Tribunal conducted the rehearing telephonically, during which
Riccordella, IFIC, and IFIC's counsel participated. By decision
mailed on April 7, 2016, the Appeals Examiner found that
Riccordella was involved in multiple financial transfers of IFIC's
funds that lacked a legitimate purpose and constituted the criminal
offense of theft by deception. Accordingly, the Tribunal found
that Riccordella was disqualified for unemployment compensation
benefits for gross misconduct connected to the work, pursuant to
N.J.S.A. 43:21-5(b), and he was liable to repay benefits he had
already received. The Tribunal's decision included a notice
setting forth the procedure to appeal within twenty days.
In this appeal, Riccordella asserts that he did not receive
the Tribunal's April 7, 2016 decision. On May 8, 2016, after the
appeal period expired, he wrote to the Board requesting that his
benefits be restored. On May 11, the Board filed Riccordella's
letter as an appeal of the Tribunal's decision. In a May 23, 2016
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decision, from which this appeal is taken, the Board found that
no good cause was shown for the late filing, and dismissed the
appeal as untimely.
On appeal, Riccordella argues he was denied due process
because he did not receive notice of the Appeal Tribunal's adverse
decision. Consequently, he did not have the opportunity to be
heard as to the merits of his appeal, which, he contends, included
IFIC's failure to prove the allegations of misconduct both before
the Tribunal and in a related civil action between the parties.
He also argues that the Board's decision was arbitrary, capricious,
and unreasonable since it had previously found good cause to remand
the matter to the Appeal Tribunal when IFIC admittedly received
notice of the Tribunal hearing date but "simply forgot" to attend.
N.J.S.A. 43:21-6(c) directs that:
The parties shall be duly notified of [an
appeal] tribunal's decision, together with its
reasons therefor, which shall be deemed to be
the final decision of the board of review,
unless further appeal is initiated . . .
within [twenty] days after the date of
notification or mailing of such decision[.]
In Rivera v. Board of Review, 127 N.J. 578, 590 (1992), the
Supreme Court established that, in certain circumstances, a "good
cause" exception to the time limitation on filing unemployment
compensation appeals should be employed. Subsequently, the Board
promulgated a regulation establishing the factors to be considered
5 A-4701-15T3
in determining good cause. N.J.A.C. 12:20-4.1(h). That regulation
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.
In the present appeal, IFIC and the Board contend that
Riccordella's May 8, 2016 letter evidences knowledge of the April
7, 2016 Appeal Tribunal's decision and was thus intended as an
appeal of that decision. We agree that is one possible
interpretation. However, we are unable to discount the alternative
interpretation, urged by Riccordella, that in sending the letter
he demonstrated diligence in pursuing his rights and frustration
by the delay in receiving the Tribunal's determination as well as
the entire appeal process. Moreover, based upon the record before
us, both this matter and the related civil action between the
parties appear to have been hotly contested. Throughout this
proceeding, both Riccordella and IFIC evinced every intent to
challenge any adverse ruling, thus rendering it unlikely that
Riccordella would have failed to timely appeal the Tribunal's
6 A-4701-15T3
April 7, 2016 decision had he received it. Further, as Riccordella
points out, the Board found good cause to reopen the proceedings
and allow IFIC to be heard on the merits even though it admittedly
had notice of the prior hearing but failed to timely participate,
yet did not afford him a similar opportunity when his notice of
the Tribunal's decision was not so readily apparent.
We therefore reverse the determination of the Board and remand
for a decision on the merits of Riccordella's claim. On remand,
the Board shall grant Riccordella a reasonable opportunity to
present the merits of his claim, and allow IFIC a reasonable
opportunity to respond.
Reversed and remanded. We do not retain jurisdiction.
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