SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 19 JEFFREY HEMINGWAY, Appellant,

v. BOARD OF REVIEW, DEPART MENT OF LABOR, and ONE POINT HRO LLC, Respondent s .

__________________________

Submitted March 17, 2021

– Decided May 5, 2021 Before Judges Vernoia and Enright. On appeal from the Board of Review, Department of Labor, Docket No s . 190 , 271 and 190,267. Jeffrey Hemingway, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Sean P. Havern , Deputy Attorney General, on the brief). Respondent One Point HRO L LC has not filed a brief.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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. 1:36

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PER CURIAM Jeffrey Hemingway appeals from the January 31, and March 5, 2020 final agency decision s issued by respondent Board of Review, affirming dismissals entered by the Appeal Tribunal

. 1 W e reverse the Board's final decis ions and remand for the Appeals Tribunal to reopen the administrative appeals and afford Hemingway a hearing on the merits of those appeals

. Hemingway applied for unemployment benefits in April 2019 . At the end of July, he found a new job. To ensure he did not apply for benefits to which he was not entitled, he reported he was not available for work the week ending July 27, 2019 , because his new job started on July 22.
T he Deputy Director of the Division of Unemployment and Disability
Insurance determined Hemingway was ineligible for benefits from July 21 to July 27, 2019, due to Hemingway 's employment

. Also, t o Hemingway's dismay,

1 Hemingway does not list the March 5, 2020 order in his notice of appeal but addresses this order in his brief. Ordinarily , we do not consider judgments or orders not identified in the notice of appeal. See Rule 2:5

- 1(e)(3)(i) (stating that a notice of appeal "shall designate the judgment, decision, action or rule, or part thereof appealed from"); see also Fusco v. Bd. of Educ. , 349 N.J. Super. 455, 461

- 62 (App. Div. 2002) (stating appellate review pertains only to judgments or orders specified in the n otice of appeal)

. The March 5 order implicates the same substantive issues leading to the entry of the January 31, 2020 order. Also, Hemingway's repeated efforts to obtain review of both his disqualification of benefits and the agency's demand for a refu nd of benefits already paid convinces us to address both issues here.3 A

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and for reasons still unclear , the Deputy Director requested a re fund of all benefits received totaling $10,440, concluding Hemingway "improperly receiv[ed] benefits

. . . through July 20, 2019. " Hemingway appealed from the Deputy Director's determination

. Nine days later, the Appeal Tribunal sent him a hearing notice , bearing d ocket n umber 190271 , scheduling a telephon ic hearing for September 17, 2019 at 11:30 a.m. The hearing notice instructed Hemingway to register for the hearing no later than 3:00 p.m. on the business d ay prior to the hearing. The notice also provided in bold print , " the Office of Benefit Appeals WILL NOT INITIATE A CALL
TO YOU UNLESS YOU HAVE REGISTERED FOR THE HEARING AS
INSTRUCTED ABOVE ." The next paragraph of this notice stated in regular print , " [ y] our 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. " Although Hemingway simultaneously appealed from the refund demand when he appealed from the denial of unemployment benefits, the Appeal Tribunal assigned his appeals different docket numbers . Also, it issued a se cond hearing notice , under docket number 190267 to address the refund appeal and4 A

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scheduled the hearing regarding the refund to occur a half hour before the hearing on the denial of benefits. Hemingway did not register for either hearing . Based on his correspondence to the Appeal Tribunal, as well as that of his attorney , it appea rs Hemingway believed he only needed to call the phone number referenced in the hearing notices to pursue his appeals. On the day of the scheduled hearings, Hemingway 's employer unexpectedly called him into a meeting to present a "project to management." The meeting lasted past 1:00 p.m. , and w hen it ended, Hemingway immediately called the Appeal Tribunal to explain why he failed to telephonically appear

. The person who answered his call informed him t hat because he failed to register , no hearing had been scheduled , but he cou ld request another hearing

. Additionally, the Appeal Tribunal dismissed both of Hemingway's appeal s, noting "the appellant failed to register as instructed for the telephone heari ng nor request an adjournment

. " The Appeal Tribunal relied on N.J.A.C. 1:12

- 14.4( a ) when it issued its decisions.
In separate letters dated September 2 2 and 24 , 2019, Hemingway requested additional hearing s under both d ocket n umbers

. H e apologized for not appearing for the "missed scheduled hearing , " explaining he was called into5 A

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a senior management meeting without warning , "which went into a lengthy discussion." He "promise[d] to be on the next call even if [ required to] take off
to mee t with the Appeal Tribunal."
In separate decision s (one for each d ocket ed appeal), the Appeal Tribunal denied Hemingway's request s to reschedule his hearings because "he did not provide an explanation for his failure " to register , citing N.J.A.C. 1:12

- 14.4 (b) , the regulation governing the rescheduling of a hearing following dismissal for

non - appearance . E ach letter was signed by the same a ppeals e x aminer

. O n October 28, 2019, Hemingway wrote a letter to the Board, referencing both docket numbers, and requested another hearing. Significantly, h e stated, "this letter is the follow

- up to both the Board of Review and the Appeal Tribunal regarding the two d ocket #s listed in the heading." Hemingway explai ned he initially did not realize he had to register for a hearing on September 17, 2019

. He also clarified the nature of his appeal, stating :

I wa s available and looking for work starting on April 7t h , 2019, through July 13th, 2019. I received a deposit in my checking account for every week I mentioned that I was looking for work for that week. When I was offered a position with the start date of the 22nd of July 20 1 9, I went online to the unemployment site on the 27t h of July and checked the box that I was not looking for work for the week of July 20th, 2019. There was no field to justify why I made that selection, so I assumed that since I was available and looking for work the6 A

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- 19 weeks prior it was understood that ['s] why I selected the opposite. I sele cted that option because I was about to start my new position on the 20t h of July, 2019. This is when the letters and stress started

. I received a letter with a mailing date of 8/15/19 and a statement sometime there [] after that I had a debt of [$]10,44 [0]

. I called into the unemployment office and was told to appeal that decision. I thought that once I appealed the allegation, I received a letter to meet [the appeals examiner]. I thought that letter was informing me of the logistics (who, wha t, when, and how). Not knowing that I had to register at a different location. I have been employed well over 40 years and have only collected unemployment twice in my career, so I am not familiar with how the process works. On 9/17/2019 [,] I was calle d into a meeting at my job to do a presentation on a project I was working on and it went way over the allotted time and I missed calling or receiving a call from [the a ppeals e xaminer] I thought so I placed a call to the number that was on the appeal and was told to re

- apply for another hearing date. I received so many letters between 9/17/2019 and the new date from my request, 10/1/19, for the second appeal that I became very confused and stressed.7 A

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In a decision disposing of both appeals, the Board affi rm ed , finding Hemingway failed to show good cause for his non

- participation in the hearings, in accord with N.J.A.C. 12:20

- 3.1(i). 2 Hemingway subsequently retained counsel in his quest to secure a hearing before the Appeal Tribunal. C ounsel sent a letter to the Appeal Tribunal , referencing docket number 190271, and advised that his client failed to register for the hearing because he

was under the impression that he did register for the hearing when he registered online for the appeal. Mr. H emingway misunderstood the instructions on his notice of phone hearing

. . . . It was an honest mistake as he thought he was already registered as a result of his online application to appeal.
T he Board denied counsel's request to schedule another he aring. Hemingway subsequently re - submitted his counsel's letter to the Appeal Tribunal in a renewed bid for a hearing , which the Board denied

. Hemingway filed a n otice of a ppeal and requested a stay to suspend the

re payment of his un employment benefits pending appeal, hoping he could halt the "confiscation" of such benefits through the "New Jersey Division of Revenue

2 N.J.A.C. 12:20

- 3.1(i) pertains to late

- filed appeals

. The Board does not contend Hemingway's appeal was untimely.8 A

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Set

- Off Program" and the subsequent interception of his income tax refund. W e denied his request for a stay

. On appeal, the Board insists Hemingway has appealed the wrong order

– the one denying him benefits for the one week he admits he was not entitled to benefits , and not the order demanding a refund. As we see it, Hemingway has been caught in a bureaucratic snafu approaching th e Kafkaesque, despite the fact he : (1) explained his confusion over the requirement to register for the hearing ; (2) immediately addressed the problem ; (3) and continuously sought a hearing
to clarify why he ceased being "available for work" in July 2019 a nd to determine why he was directed to refund benefits, under N.J.S.A. 43 :21

- 16(d) , for the period of time he was unemployed and allegedly available for work

. Moreover, while still pro se, Hemingway made clear in his October 28, 2019
letter to the Board that he wanted to be heard on both docketed matters , and the Board considered both matters when it affirmed the Appeal Tribunal's decision s on November 21, 2019

. Accordingly, we are satisfied it is appropriate to address Hemingway's requests for hearings under both docketed matters.
O ur scope of review is limited , and w e are bound to affirm the Board's determination if reasonably based on proofs. Brady v. Bd. of Review , 152 N .J. 197, 210 (1997)

. "[T]he test is not whether an appellate court would come to9 A

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the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs."
Ibid. (quoting Charatan v . Bd. of Review , 200 N.J. Super. 74, 79 (App. Div. 1985)). On the other hand, "[c]ourts are not to act simply as a rubber

- stamp of an agency's decision" that is not supported by substantial record evidence. Philadelphia Newspapers, Inc. v. Bd. of Review , 397 N.J. Super. 309, 318 (App. Div. 2007). While some deference is owed to the agency's interpretation of statutes and regulations it is responsible for implementing, we are "in no way bound by" the agency's interpretation of the law or legal conclusion s. Utley v. Bd. of Review , 194 N.J. 534, 551 ( 2008) (quoting Mayflower Sec. Co. v. Bureau of Sec. , 64 N.J. 85, 93 (1973))

. D ismissal of a case based on the nonappearance of a claimant is expressly authorized by N.J.A.C. 1:12

- 14.4(a ) , but w here 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" by the chief appeals examiner if he or she satisfies the requirements of N.J.A.C. 1:12

- 14.4(b). 3 Essentially, N.J.A.C . 1:12

- 14.4(b)

3 N.J.A.C. 1:12

- 14.4(b) provides:

If an appeal tribunal issued an order of dismissal for nonappearance of the appellant, the chief appeals10 A

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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 sh owing of good cause within six months of a dismissal ; notably, no such "good cause" requirement exists if an applicant seeks to reopen an appeal
after the six

- month period following a dismissal

. The Rule does not expressly define what constitutes "good c ause" to set aside the order of dismissal under N.J.A.C. 1:12

- 14.4(b). Still, in an analogous context, we have observed that "'[g]ood cause' is an amorphous term, that is, it 'is difficult of precise delineation. 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 Court Rule being applied.'" Ghandi v. Cespedes , 390 N.J. Super. 193, 196 (App. Div.

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 orde r 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 of the chief appeals examiner. (Empha sis added).11 A

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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"). Also, s etting aside a dismissal seems particularly appropriate where, as is the case here, respondent does not argue it w ould suffer prejudice if the action were reinstated. Rivera v. Atl. Coast Rehab. Center , 321 N.J. Super. 340, 346

- 47 (App. Div. 1999). Although not characterized as such, it is evident Hemingway 's multiple requests for a rescheduled hearing under both docket numbers constituted applications to set aside the orders of dismissal pursuant to N.J.A.C. 1:12

- 14.4(b). He was well within the six

- month timefr ame under the regulation to seek this relief, but an app eals examiner nonetheless denied his request , without identifying himself as the chief appeals examiner or confirming he was acting on behalf of the chief appeals examiner pursuant to a delegation of authority. As noted, the Board affirmed the denials on November 21, 2019 , referencing
both docket numbers

. "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," In re12 A

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Application of Boardwalk Regency Corp. for Casino License , 180 N.J. Super. 324, 345 (App. Div. 1981)

. Th e need for interpretation is no less i mportant here, where a claimant has been denied a hearing on the merits of his administrative appeal s . T he Unemployment Compensation Act (Act), N.J.S.A. 43:21

- 1 to

- 24.30 , is designed primarily to lessen the impact of unemployment that befalls workers thr ough no fault of their own

. Brady , 152 N.J. at 212. "The public policy behind the Act is to afford protection against the hazards of economic insecurity due to involuntary unemployment." Yardville Supply Co. v. Bd. of Review , 114 N.J. 371, 374 (1989). Unemployment compensation law is "remedial in nature . . . [and] must be liberally construed in light of [its] beneficent purposes." Teichler v. Curtiss

- Wright Corp. , 24 N.J. 585, 592 (1957); see also Meaney v. Bd. of Review , 151 N.J. Super. 295, 298 (App. Div. 1977). Additionally, under
N.J.S.A. 43:21

- 16 (d)(1) , when a person has received unemployment benefits, but is subsequently deemed disqualified from receiving such benefits and becomes liable to repay them, "[s]uch person shall be promptly notified of the determination and the reasons therefor." Here, the record is devoid of an explanation for why Hemingway was directed to refund $10,44 0 in13 A

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unemployment benefits for a period in which he claims he was unemployed and availa ble for work

. Mindful that Hemingway promptly and repeatedly requested a hearing to address his concerns, and that a "citizen facing a loss at the hands of the State must be given a real chance to present his or her side of the case before a government de cision becomes final , " Rivera v. Bd. of Review , 127 N.J. 578, 583 (1992) , we are satisfied principles of fairness demand further review of this matter. Therefore, we reverse the Board's January 31 and March 5, 2020 final decision s and remand the matter fo r the Appeals Tribunal to reopen Hemingway's appeals and reschedule his hearing. Reversed and remanded. We do not retain jurisdiction.