SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3121- 21
ZOE HARRIS- HOHNE, Appellant,

v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT, and INSIGHT GLOBAL, LLC, Respondents.

_________________________

Submitted September 28, 2023

– Decided January 23, 2024 Before Judges Vernoia and Gummer. On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 253317. Zoe Harris-Hohne, appellant pro se. Matthew J. Platkin, Attorney General, attorney for respondent Board of Review (Donna Sue Arons, Assistant Attorney General, of counsel; Gina Marie Labrecque, Deputy Attorney General, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3121

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PER CURIAM Petitioner Zoe Harris-Hohne appeals from a May 5, 2 022 final decision of the Board of Review. In that decision, the Board a ffirmed the Appeal Tribunal 's dismissal of petitioner's appeal from a determinati on that she was not eligible for unemployment benefits and a request that she re fund benefits already paid to her. The Appeal Tribunal dismissed her appeal, finding petitioner had not timely filed it pursuant to N.J.S.A. 43:21-6(b)(1) and had not established good cause for its untimeliness pursuant to N.J.A.C. 12: 20-3.1(i). Having considered the evidence in the record, the parties' arguments, and the applicable legal principles, we affirm in part and remand in part fo r further proceedings consistent with this decision.
I. Petitioner was employed as a recruiter with Insigh t Global, LLC from July 13, 2019, through February 14, 2020. According to petitioner, she terminated her employment with Insight Global due to "[t]he pr essure and stress of being pushed to get [her] promoted to a position that [sh e] was not prepared for . . . for the sole purpose of [her] management team being awarded additional compensation for [her] promotion." On April 5, 202 0, petitioner submitted a claim for unemployment benefits, with a weekly bene fit rate of $521

. She3 A- 3121

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received a total of $9,899 in unemployment benefits for the weeks ending April 11, 2020, through August 15, 2020. In a notice mailed on December 23, 2020, a deputy o f the Director of the New Jersey Division of Unemployment Insurance advis ed petitioner she was not eligible for unemployment benefits as of February 1 6, 2020 , because she had "left work voluntarily without good cause attributable to [that] work." In a separate notice also mailed on December 23, 2020, t he Director of Unemployment Insurance request ed petitioner return the $9,899 in benefits she had received. The Director advised petitioner she was not eligible for those funds because she had "quit [her] job without good cause" and that "[a]ny money collected improperly must be returned regardless of the reason for the overpayment in accordance with N.J.S.A. 43:21-16(d) ." The Director informed petitioner that if she disagreed with the determina tion she had an obligation to refund and repay those benefits, she had to file a written appeal within seven calendar days after delivery of the notice or ten c alendar days after the mailing of the notice. The Director also informed petitioner about her rig ht pursuant to N.J.A.C. 12:17-14.2 to request a waiver of her obli gation to repay the benefits. Petitioner received both noti ces on December 26, 2020.4 A- 3121

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According to petitioner, she mail ed an appeal to the Appeal Tribunal on January 14, 2021. Th at appeal subsequently could not be located. In Ap ril of 2021, petitioner spoke with a Department representative who recommended she file an appeal by mail and on the appropriate websi te. On May 11, 2021, petitioner filed a second appeal online and by mail . In that appeal, petitioner disputed the finding she had quit her job without g ood cause , contend ing she had "resigned from that job because of specific rea sons, all of which created an untenable environment." Petitioner also requested the Appeal Tribunal "kind ly waive the requirement for [her] to reimburse benefi ts paid." An Appeal Tribunal appeals examiner conducted a te lephonic hearing on December 8, 2021, during which petitioner and her f ather testified. At the beginning of the hearing, the appeal examiner state d: "The issues involved in this case [are] timeliness of filing the appeal, . . . voluntarily leaving, Pandemic Unemployment Assistance, and non-fraud refund." Petit ioner answered, "Yes," when the examiner asked her if she "underst[oo]d th e issues that [would] be discussed." When asked why she had not filed the appeal timely, petitioner responded: Given the period . . . it was the holiday season we were

with family. I then mailed my first appeal on January 14 which [was] just a couple of weeks later after receiving [the notice]. So, we did do it really as soon5 A- 3121

- 21 as possible. It was extremely important specifical ly. So for me during the holiday time and . . . all the craziness going [on] that was as soon as I was able to . . . draft the appeal and get it sent . . . . Petitioner's father testified that from their persp ective they had done "everything [they] could to be timely and to contin ue following [up] with the State for a response to [the] appeal." Petitioner' s father gave no specific reason for the untimeliness of the appeal. At the end of the hearing, the appeals examiner asked petitioner if she would "like to giv e a closing remark before [she] close[d] out the hearing." Petitioner respon ded that she had nothing else to say and that everything she had wanted to cover during the hearing had been covered.
In its December 8, 2021 decision, the Appeal Tribunal acc epted petitioner's representations that she had received the notices on December 26,
2020 , and had filed an appeal on January 14, 2021, but found that appeal was

not timely under N.J.S.A. 43:21-6(b)(1). It also found petitioner had not demonstrated good cause for the untimeliness of the appeal because the delay "was not for a circumstance beyond the control of [ petitioner], nor for a circumstance which could [not] have been reasonably foreseen or prevented," citing N.J.A.C. 12:20-3.1(i). Concluding it had no jurisdiction to rule on the6 A- 3121

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me rits of the appeal given its untimeliness, the Appeal Tribunal dismissed the appeal. On December 15, 2021, petitioner appealed from the decision of the Appeal Tribunal. In that appeal, she asserted for the first time that her father had been "in a severe car accident on December 19, 2020 . . .

. and he [had been] badly injured." According to petitioner, she "bega n staying near [her] father and taking care of him " after the accident and when he collapsed on December 23, 2020, she brought h im t o a hospital "where he underwent several medical test s and procedures." Petitioner submitted with her app eal medical records that reflect petitioner's father received treatment in t he hospital emergency room on December 23, 2020, but do not reflect treatments on any other day. Petitioner represented that from December 19, 2020, and "throu gh most of the month of January , 2021, [her] focus was on taking care of [her] fathe r and supporting his recovery." Petitioner contended that based on thos e circumstances, she had demonstrated good cause for the delay in the filing of her appeal. Petitioner claimed she had not "anticipate[d] the A ppeal Tribunal would evaluate [her] appeal based on 'timeliness of appea l filing '" but "anticipated rather that the Appeal Tribunal would evaluate [her ] appeal based on the more substantive fact of, 'I did not voluntarily leave m y previous employment.'"7 A- 3121

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Consequently, she "did not feel that, during the te lephone hearing, there was any need for [her] to go deeper into [her] explanation as to why [her] appeal was not filed in a timely manner." On May 5, 2022, the Board affirmed the decision of the Appeal Tribunal dismissing petitioner's appeal. The Board found pe titioner had not established good cause under N.J.A.C. 12 :20 -3.1(i) for her delay in filing the appeal because "the delay was caused by the holiday season accordi ng to [her] testimony taken under oath." The Board held that because petitione r had not established good cause for the delay in filing her appeal, the Appea l Tribunal "properly dismissed" her appeal as untimely pursuant to N.J.S .A. 43:21-6(b)(1). Petitioner appeals from the Board's decision, argui ng it erred in finding she had not provided good cause for the late filing of her initial appeal and in not considering the substantive merits of that appe al.
II. "We review a decision made by an administrative age ncy entrusted to apply and enforce a statutory scheme under an enhan ced deferential standard." E. Bay Drywall, LLC v. Dep't of Lab. & Workforce De v., 251 N.J. 477, 493 (2022). Accordingly, "we will disturb an agency's adjudicatory decision only upon a finding that the decision is 'arbitrary, cap ricious or unreasonable,' or is8 A- 3121

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uns upported 'by substantial credible evidence in the r ecord as a whole.'" Sullivan v. Bd. of Rev., Dep't of Lab., 471 N.J. Su per. 147, 155-56 (App. Div. 2022) (quoting Henry v. Rahway State Prison, 81 N.J . 571, 5 79 -80 (1980)). In making that determination, we "must examine: '(1) whether the agency's decision conforms with relevant law; (2) whether th e decision is supported by substantial credible evidence in the record; and (3) whet her, in applying the law to the facts, the administrative agency clearly err ed in reaching its conclusion.'"
In re Y.L. , 437 N.J. Super 409, 412 (App. Div. 2014) (quoting T wp. Pharmacy v. Div. of Med. Assistance & Health Servs., 432 N.J . Super. 273, 283-84 (App. Div. 2013)). "The burden of proving that an agency action is arbitrary, capricious, or unreasonable is on the challenger." Parsells v. Bd. of Educ., 472 N.J. Super. 369, 376 (App. Div. 2022). Petitioner has not met that burden. The Board did not err in finding untimely petitione r's initial appeal. The version of N.J.S.A. 43:21-6(b)(1) in effect when pe titioner submitted her appeal provided that a decision "shall be final" unless th e claimant files an appeal "within seven calendar days after delivery of notif ication of an initial determination or within [ten] calendar days after s uch notification was mailed."9 A- 3121

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See N.J.S.A. 43:21-6(b)(1) (2017) (amended July 202 3). 1 The notices were mailed on December 23, 2020, and petitioner admitte dly received them on December 26, 2020. The Appeals Tribunal and the Bo ard accepted petitioner's representation that she had filed an appeal on Janu ary 14, 2021. But that purported submission was more than seven days after petitioner had received the notices and more than ten days after they were mailed. Thus, petitioner's appeal was untimely. Pursuant to N.J.A.C. 12:20-3.1(i), a late appeal ma y be considered on its merits if "the appeal was delayed for good cause," with good cause existing when "[t]he delay in filing the appeal was due to c ircumstances beyond the control of the appellant" or "[t]he appellant delay ed filing the appeal for circumstances which could not have been reasonably foreseen or prevented."

1 N.J.S.A. 43:21-6 and -16 were amended after the Boa rd issued its decision. See L. 2022, c. 120. Among other things, N.J.S.A. 43:21-6 was ame nded to increase the time for filing an appeal. However, n othing in the amendment indicates the Legislature intended retroactive appl ication of the amendment. See In re J.D- F. , 248 N.J. 11, 22 (2021) ("[C]ourts generally will enforce newly enacted substantive statutes prospectively, unless [the Legislature] clearly expresses a contrary intent." (quoting Maeker v. Ro ss, 219 N.J. 565, 578 (2014))). In fact, the Legislature expressly provi ded the act amending the statute would "take effect on the 270th day following enact ment, . . . [,]" which was July 31, 2023. See State v. Lane, 251 N.J. 84, 96 (2022) (re cogniz ing the Court has "repeatedly construed language stating that a p rovision is to be effective immediately, or effective immediately on a given da te, to signal prospective application").10 A- 3121

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We agree with the Appeal Tribunal and the Board tha t petition er 's testimony that the appeal was delayed because "it was the holiday season" does not demonstrate good cause under N.J.A.C. 12:20-3.1(i)

. In rel ying on petitioner's sworn testimony to determine the c ause of the delay and not her belated, unsworn submissions attr ibuting the delay to her father's accident, the Board did not act arbitrar il y, capriciously, or unreasonably. The Board's finding that the delay was caused by "t he holiday season" was supported by evidence in the record, specifically p etitioner's testimony. Petitioner's subsequent assertion that her failure to file the appeal timely was caused by her father's accident was not supported b y any affidavit or certification. Her contention that she believed she did not need t o testify about her father's accident during the telephonic hearing because she did not know the Appeal Tribunal would evaluate her appeal based on its timeliness is belied by the record. At the beginning of the hearing, the a ppeal examiner expressly stated the "issues involved in this case," including the " timeliness of filing the appeal." When asked if she understood the issues that would be discussed, petitioner answered, "Yes." When the examiner asked petitioner direc tly why she had not filed the appeal timely, petitioner testified about only the holiday period; she said nothing about her father's accident. When her father testified, he asserted11 A- 3121

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they had done "everything" they could to be timely; he said nothing about his accident. Because the Appellate Tribunal and the Board correc tly applied the law in place when they rendered their decisions and bec ause substantial credible evidence in the record supports their conclusion th at petitioner did not file the appeal timely and did not establish good cause for the delay in filing her appeal, we see no basis to disturb the Board's decision and , accordingly, affirm it. The Board in its decision, however, did not address petitioner's request for a waiver pursuant to N.J.A.C. 12:17-14.2 of the obl igation to repay the unemployment benefits she had received. Petitioner made the request for a waiver in her May 11, 2021 letter to the Appeal Tri bunal. Neither the Appeal Tribunal nor the Board addressed that request in th eir deci sions. The question of a refund waiver "should be decided in the first instance, by the Division, applying its expertise." Mullarney v. Bd. of Rev., 343 N.J. Super. 401, 410 (App. Div. 2001). We, therefore, remand this matte r to the Director of the Division for consideration of petitioner's waiver request, with an enhanced record, if necessary.12 A- 3121

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Affirmed in part and remanded in part to the Divisio n for consideration of petitioner's request that the demand for reimbursem ent of benefits be waived. We do not retain jurisdiction.