NOT FOR PUBLICATION WITHOUT THE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.,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT 

OF LABOR, and LOWE'S HOME

CENTERS, INC.,

Respondents.

________________________________________________________________

Submitted January 7, 2014 – Decided

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

February 19, 2014

APPROVED FOR PUBLICATION

February 19, 2014

APPELLATE DIVISION
2 A-2253-09T3

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. 
3 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. 
4 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.
5 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.
6 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 
7 A-2253-09T3

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 
8 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, 
9 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 
10 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 
11 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 
12 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.