NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2253-09T3
WILLIAM E. NEWMAN, JR.,
APPROVED FOR PUBLICATION
Appellant,
February 19, 2014
v. APPELLATE DIVISION
BOARD OF REVIEW, DEPARTMENT
OF LABOR, and LOWE'S HOME
CENTERS, INC.,
Respondents.
________________________________________________________________
Submitted January 7, 2014 – Decided February 19, 2014
Before Judges Fisher, Espinosa and Koblitz.
On appeal from the Board of Review,
Department of Labor, Docket No. 205,001.
William E. Newman, Jr., appellant pro se.
John J. Hoffman, Acting Attorney General,
attorney for respondent Board of Review
(Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Alan C. Stephens,
Deputy Attorney General, on the brief).
Respondent Lowe's Home Centers, Inc. has not
filed a brief.
The opinion of the court was delivered by
KOBLITZ, J.A.D.
William E. Newman, Jr. appeals from the October 30, 2009
determination of the Department of Labor's Board of Review, that
affirmed a decision by the Appeal Tribunal for the Department's
Division of Unemployment and Disability Insurance that, in turn,
reversed a determination of the Deputy Director of the Division
that Newman was entitled to benefits without disqualification.1
A portion of the appeal hearing was held when Newman was unable
to attend because he was serving in the United States Air Force,
violating his rights under the federal Servicemembers Civil
Relief Act, 50 U.S.C.A. app. §§ 501 to 597. Additionally, the
employer's appeal was improperly deemed timely based on the date
that the employer received the determination from its
representative, rather than when the representative received it.
We therefore reverse and remand for another hearing.
Newman was a sales specialist in the flooring department of
Lowe's Home Centers, Inc. in Brick from February 2006 until July
18, 2008. On July 18, 2008, Lowe's management met with Newman
regarding a dispute with a co-worker a few weeks earlier. The
incident involved a verbal disagreement on the sales floor
between Newman and the co-worker that escalated into a physical
altercation. Prior to the meeting, management conducted an
investigation and determined that Newman and the co-worker
should be discharged for misconduct. After the co-worker was
1
Only one week of benefits is actually in dispute: the week of
August 17, 2008.
2 A-2253-09T3
terminated, a supervisor allowed Newman to resign instead of
being formally discharged. Newman was given this option because
his supervisor was aware that he was hoping to join the armed
forces and an involuntary termination might negatively impact
his opportunity to enlist.
Newman filed a claim for unemployment benefits on August
17, 2008. On October 2 a notice of eligibility was mailed by
the Division. Lowe's appealed this decision thirteen days later
on October 15. A telephonic hearing was held before an appeals
examiner on January 12, 2009. An individual from UC Express2
represented Lowe's at the hearing pursuant to Rule 1:21-
1(f)(11). The Appeals Examiner explained that UC Express "is a
company that represents employers in matters such as these
unemployment hearings and he is here today, this morning at the
discretion of Lowe's." At the conclusion of the telephonic
hearing, Newman stated that he was going into the Air Force
soon. The examiner reassured him that "[e]verybody is going to
get a decision shortly." No other hearing was scheduled.
Prior to a decision and after Newman entered the Air
Force, the examiner conducted another hearing in April 2009 to
determine only the timeliness of Lowe's initial appeal, which
2
The transcript refers to this entity variously as "UC Express,"
"UC EXPRESS" and "TALX UC EXPRESS." We use UC Express
consistently throughout this opinion.
3 A-2253-09T3
the examiner had neglected to cover in the earlier hearing.
Newman was not present for this second telephonic hearing. Only
Maryellen Miraglia, Lowe's human resource manager, appeared.
She stated that, on October 13, 2008, she had received the
initial determination from UC Express via fax. She testified
that UC Express filed the appeal on Lowe's behalf on October 15.
No evidence was presented as to when UC Express received the
initial determination.
On April 14, 2009, the Appeal Tribunal rendered a decision
finding: (1) the appeal was timely filed in accordance with
N.J.S.A. 43:21-6(b)(1); (2) Newman was disqualified from
benefits under N.J.S.A. 43:21-5(b) from July 13, 20083 through
August 23, 2008, as "the discharge was for misconduct connected
with work;" (3) Newman's liability for a refund of benefits
received was remanded to the Director and; (4) Lowe's was not
liable for any charges to its rating account.
Newman appealed to the Board, and the case was remanded to
the Appeal Tribunal for a "decision on all issues," although the
remand directed additional testimony from Newman and the store
manager only "regarding whether [Newman] voluntarily left his
employment or was discharged."
3
It is unclear where the July 13 date comes from as the fight
occurred earlier, Newman worked through July 18, 2008 and he was
"removed from the [Lowe's] system" on July 20, 2008.
4 A-2253-09T3
On July 23, 2009, with Newman now present, the appeals
examiner took telephonic testimony only as to whether Newman was
"discharged for misconduct connected to the work." Lowe's was
again represented by UC Express. After the hearing, the Appeal
Tribunal issued a second opinion, again finding that the appeal
was timely filed and that Newman was disqualified from benefits
for six weeks pursuant to N.J.S.A. 43:21-5(b).4
The Board then issued an opinion agreeing with the Appeal
Tribunal, stating that because Newman resigned in lieu of a
discharge for misconduct, he was disqualified for benefits for
six weeks.
I
Our review in an appeal from a final decision of an
administrative agency is limited. Circus Liquors, Inc. v.
Middletown Twp., 199 N.J. 1, 9 (2009). The issues presented
here, however, are strictly legal in nature: the interpretation
of the federal and state Civil Relief Acts for members of the
military and the import of UC Express' representation when
considering whether the initial appeal by Lowe's was timely
filed. Such legal interpretations are primarily the function of
the judiciary and do not call for deference to the agency.
4
The statute has since been amended to an eight-week period of
disqualification. L. 2010, c. 37, § 2.
5 A-2253-09T3
Krayniak v. Bd. of Trs., 412 N.J. Super. 232, 237 (App. Div.
2010).
II
Newman argues that he was unlawfully deprived of the
opportunity to participate in the April 13, 2009 hearing
regarding the timeliness of Lowe's appeal. The Attorney General
does not address this issue, instead focusing on the argument
that Newman was properly disqualified from receiving
unemployment benefits for six weeks. Newman stated at the end
of the January 12, 2009 hearing, "I'm actually going into the
United States Air Force January 20th . . . [s]o I just need to
make sure this is handled and taken care of before I do actually
go away."
Rule 1:5-7 provides in pertinent part that "[a]n affidavit
of non-military service of each defendant, male or female, when
required by law, shall be filed before entry of judgment by
default against such defendant." We noted in PNC Bank, N.A. v.
Kemenash that this Rule is grounded in both federal and state
law. 335 N.J. Super. 124, 127 (App. Div. 2000). The New Jersey
Soldiers' and Sailors' Civil Relief Act provides that
In any civil action or proceeding commenced
in any court, if there shall be a default of
an appearance by the defendant, []
plaintiff, within 20 days before the entry
of judgment or final order, shall file in
the court an affidavit setting forth facts
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showing that the defendant is not in
military service.
[N.J.S.A. 38:23C-4.]
The statute is to be liberally construed for the stated purpose
"to maintain, secure and protect the civil and property rights
of persons in the military." N.J.S.A. 38:23C-1. A judgment
entered in the absence of an appropriate affidavit "is not void
but voidable and then only by a person within the protection of
the statute and affidavit requirement." Kemenash, supra, 335
N.J. Super. at 129. New Jersey law defines "court" only as any
"State court of competent jurisdiction . . ." and does not
include state administrative agencies. N.J.S.A. 38:23C-2.
The federal statute, the Servicemembers Civil Relief Act,
50 U.S.C.A. app. §§ 501 to 597, similarly requires a plaintiff
to file an affidavit of nonmilitary status before a default
judgment is entered in a civil proceeding. 50 U.S.C.A. app. §
521(b)(1)(A). The federal law, which was amended in 2003, now
defines "court" as any court or "administrative agency of the
United States or of any State (including any political
subdivision of a state) . . . ." 50 U.S.C.A. app. § 511(5)
(emphasis added).
The federal Act further provides for a stay of proceedings:
(1) Authority for stay. At any stage before
final judgment in a civil action or
proceeding in which a servicemember . . . is
7 A-2253-09T3
a party, the court may on its own motion and
shall, upon application by the
servicemember, stay the action for a period
of not less than 90 days, if the conditions
in paragraph (2) are met.
(2) Conditions for stay. An application
for a stay under paragraph (1) shall include
the following:
(A) A letter or other communication setting
forth facts stating the manner in which
current military duty requirements
materially affect the servicemember's
ability to appear and stating a date when
the servicemember will be available to
appear.
[50 U.S.C.A. app. § 522(b)(1).]
The stated purpose of the federal Act is to "provide temporary
suspension of judicial and administrative proceedings and
transactions that may adversely affect the civil rights of
servicemembers during their military service." 50 U.S.C.A. app.
§ 502(2).
This federal Act applies to our state administrative
agencies by application of the Supremacy Clause of the United
States Constitution, U.S. Const. Art. VI, cl. 2. During World
War II, the United States Supreme Court stated that the Act,
then known as the Soldiers' and Sailors' Civil Relief Act, is
"always to be liberally construed to protect those who have been
obliged to drop their own affairs to take up the burdens of the
nation." Boone v. Lightner, 319 U.S. 561, 575, 63 S. Ct. 1223,
8 A-2253-09T3
1233, 87 L. Ed. 1587, 1596 (1943). We follow the Court's
mandate to liberally apply the Act, which is necessary now as it
was then.
It was a clear violation of the Act for a hearing to
proceed while Newman was known to be serving in the military and
did not expressly consent to the proceeding occurring in his
absence. We must therefore remand for another hearing as to the
timely filing of Lowe's appeal, giving Newman an opportunity to
participate. Newman may well have a legal defense regarding the
untimeliness of the employer's appeal, which he was not able to
present at the April 13 hearing due to his service in the Air
Force.
III
Newman argues that Lowe's initial appeal of the Deputy's
decision rendering him eligible for unemployment benefits was
untimely filed. The Attorney General maintains that since
Lowe's appealed within two days of receiving the initial
determination from UC Express, it filed the appeal timely.
N.J.S.A. 43:21-(6)(b)(1) sets forth the procedure for
appeals of an agency determination of unemployment benefits. It
states that
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
9 A-2253-09T3
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. . . .
[N.J.S.A. 43:21-(6)(b)(1) (emphasis added).]
Lowe's clearly did not file an appeal within "10 calendar days
after such notification was mailed." The issue is whether the
appeal was filed within seven calendar days of receipt of
notification of the initial determination.
New Jersey courts have consistently held that the
limitation period proscribed by this statute is of
jurisdictional import and "hence not generally subject to
equitable tolling or enlargement under the so-called discovery
rule." Hopkins v. Bd. of Review, 249 N.J. Super. 84, 88-89
(App. Div. 1991). See also, Lowden v. Bd. of Review, 78 N.J.
Super. 467, 470 (App. Div. 1963) (explaining that the
Unemployment Compensation Law is social legislation "which
should be construed by the courts to give effect to its
beneficent purposes[]" but does not authorize courts to extend
time limitations intended by the Legislature to be fixed as an
absolute deadline in the statute). In Rivera v. Bd. of Review,
the Court held that claimants in unemployment compensation cases
have a due process right to notice which must be considered when
applying statutory appeal requirements. 127 N.J. 578, 586
10 A-2253-09T3
(1992). As applied to a claimant, the statutory period may be
enlarged so that the individual has constitutionally-sufficient
notice of the loss of benefits. Id. at 586-87. Lowe's, the
employer, does not enjoy a similar due process right to enlarge
the rigid statutory period to appeal.
Both the Appeal Tribunal and the Board of Review determined
that Lowe's appealed within seven days of receipt of the
Deputy's initial determination. Lowe's human resources employer
stated at the April 13 hearing that she received the initial
determination from UC Express, the company's unemployment
compensation representative, on October 13. There is no
evidence in the record as to when UC Express received the
determination and thus no way to determine if Lowe's October 15
appeal was within seven days of delivery of the notification of
the initial determination to UC Express.
Rule 4:4-6 explains that an attorney acknowledgement of
service of process on behalf of a client "shall have the same
effect as if the defendant had been properly served." While UC
Express does not provide legal representation, UC Express is
Lowe's representative with specific authority to receive
determinations from an administrative body on behalf of Lowe's.
See Air-Way Branches, Inc. v. Bd. of Review, 10 N.J. 609, 613-15
(1952) (holding that a determination sent to a warehouse manager
11 A-2253-09T3
with no authority to accept or acknowledge service of legal
process is insufficient to begin the seven-day appeals timeline
for an employer to appeal employee eligibility of benefits).
Thus, the issue is whether Lowe's filed the appeal within seven
calendar days of UC Express' receipt of the initial
determination. Because the record does not reveal when UC
Express received the determination, a rehearing as to timeliness
of Lowe's appeal would be necessary even absent the clear
violation of federal law.
Reversed and remanded.
12 A-2253-09T3