The opinion
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0285-24
DOMINICK RICCITELLI,
Appellant,
v.
BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and SRS DISTRIBUTION, LLC,
Respondents.
____________________________
Submitted November 13, 2025 – Decided December 11, 2025
Before Judges Berdote Byrne and Jablonski.
On appeal from the Board of Review, Department of
Labor, Docket No. 296375.
Dominick Riccitelli, self-represented appellant.
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant
Attorney General, of counsel; Ryne A. Spengler,
Deputy Attorney General, on the brief).
PER CURIAM
Claimant Dominick Riccitelli appeals the Board of Review's (the
Board's) decision dismissing his appeal for lack of jurisdiction due to its late
filing without a showing of good cause. We reverse the Board's decision and
remand for consideration of the substantive merits of his appeal.
I.
Claimant worked full time with SRS Distribution, LLC (SRS) from 2015
to 2020. For reasons that are unclear on the record before us, claimant filed
for unemployment benefits on April 5, 2020, and listed his last day of work as
April 9, 2020. He thereafter began to receive weekly benefits of $713. He
collected $1,497 between April 18, 2020, and May 16, 2020. He did not
certify his eligibility for any subsequent weeks in 2020.
On December 28, 2020, SRS dismissed claimant from his employment.
Rather than filing a new claim for unemployment benefits, he reopened his
previous claim from April 2020. Consequently, weekly payments resumed
where they left off in May 2020. This resulted in a potential overpayment of
benefits. Claimant ultimately resumed full-time employment with another
company in April 2021.
In a July 26, 2021 Notice of Determination (notice), the Department of
Labor and Workforce Development (the Department) notified claimant that it
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imposed a period of ineligibility for benefits from April 5, 2020 to December
26, 2020 because claimant was employed full time during this period. The
Department also ordered repayment of $10,053.
The notice included instructions as to how to appeal the Department's
determination:
This is a request for a refund and repayment of
unemployment benefits previously paid to you. If you
disagree with this decision, you must file a written
appeal within seven (7) calendar days after delivery or
within ten (10) calendar days after the mailing of this
notice. Your appeal must be received or postmarked
within one of the appeal periods. If the last day
allowed for the appeal occurs on a Saturday, Sunday
or legal holiday, the appeal will be accepted on the
next business day. The appeal period will be extended
if good cause for the late filing is shown. Good cause
exists in situations where it can be shown that the
delay was due to circumstances beyond the control of
the appellant which could not have been reasonably
foreseen or prevented. Mail your appeal to: New
Jersey Department of Labor and Workforce
Development. Appeal Tribunal. PO Box 907,
Trenton, NJ 08625-0907.
Despite the July notice date, claimant said he received the request for
repayment on September 1, 2021.
Rather than filing an appeal according to the instructions, claimant sent
"multiple emails" and made phone calls to the Department in an attempt to
correct his record. He also contacted his state senator for assistance.
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Claimant asserts the Department received his emails but did not respond.
Although the parties only provide portions of claimant's emails to the state
senator in the record, a review of them reveals that some outreach was made
on claimant's behalf by the senator to the Department.
Claimant ultimately filed an appeal on June 6, 2023, and a hearing took
place a month later before an appeals examiner. A review of the transcript of
that proceeding reveals much of the discussion concerned the filing of the
appeal, the timing of claimant's receipt of the notice, and subsequent action he
took.
At the conclusion of the hearing, claimant broached the issue of "dates."
In response, this exchange occurred:
Claimant: Okay. Now, the whole reason that I was
trying to get this resolved is because I noticed on
when I first filed my first unemployment claim, which
was on the 1/15/2021 I put – I just received my
unemployment check, but it was- the date was in error.
Examiner: Okay. So you did receive the benefits
then, correct? You did receive unemployment
benefits.
Claimant: Yes, I did receive some unemployment
benefits.
Examiner: Because previously you stated- previously
you did state you didn't receive anything.
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Claimant: No, not [] for April to August, I said I did
not, but for January.
Examiner: Yes. And then I rephrased my question,
just asking [] whether you or not you ever received
any benefits?
Claimant: Yeah. No, I received benefits from- that I
was. But during the time that I was let go from my
job, yes. Not when I was working, I didn't receive any
benefits.
Examiner: Anything else[]?
Claimant: No, just like I said, just like the dates
were wrong, and I emailed a few people from the state
representative that I- I called them as well, like the
Department of Labor, and they have [my] phone
numbers and I tried to reach out to them, but nobody
was in because I guess it was during the whole Covid
thing. And I was just trying to get the dates resolved
because I had a funny feeling this was going to come
back and bite me in the butt because like current date
was like, for instance, February of 2023 when I filed
for unemployment, but it says date of claim was
4/5/2020, which didn't make no sense. Because I even
have a confirmation of the certificate- certification
received. It says current date of February 23, 2021.
But it says date of claim is 4/5/2020, which made no
sense when I was filing for unemployment.
In a written decision, the appeals examiner concluded the appeal was not
filed within the statutory time period stemming from the original notice.
Therefore, the Appeals Tribunal (Tribunal) lacked jurisdiction to hear the
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matter. Consequently, the examiner dismissed the appeal without considering
its merits, writing:
Herein, the claimant did not recall whether or not he
received the Deputy's determination. The onus is on
the claimant to establish whether he filed a timely
appeal or a late appeal with good cause. As the
claimant was unable to recall whether or not he
received said determination, he was unable to
demonstrate he filed a timely appeal or a later appeal
with good cause. Furthermore, the claimant received
the Director's determination and filed a late appeal
because he first contacted a senator to request help
with his claim. As there is no evidence that his ability
to file a timely appeal was hindered, the claimant has
not shown good cause for filing a late appeal.
Claimant administratively appealed and the Board affirmed the
Tribunal's decision. To support its conclusion, the Board cited the pertinent
provision of the New Jersey Administrative Code that addresses late-filed
appeals:
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.
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[N.J.A.C. 12:20-3.1(i).]
Despite its decision to deny the application on procedural grounds, the
Board made substantive comments about claimant's claim:
We note that it appears that a decision on the merits
would not have been of benefit to the claimant. It is
clear to us that a claim was filed as of April 5, 2020
(the last day of work was listed as April 9, 2020) from
which benefits were paid, contemporaneously through
May 16, 2020. Then the claimant re-opened the claim
in late December 2020 when he was laid off but failed
to process it as an "additional claim" which would
have set the correct reopening date; this resulted in the
claimant certifying weeks attributed to an earlier
period when he was not unemployed. Although
apparently this was an unintentional error, the Appeal
Tribunal's jurisdiction covered only whether or not
benefits were paid as attributed to the periods listed on
the determinations being appealed, which the
claimant's testimony indicated they were, whether the
claimant was working full time during that period,
which his testimony indicated he was, and thus
whether the claimant is liable to refund such benefits.
The Appeal Tribunal and the Board of Review cannot
take jurisdiction over payment of benefit weeks which
fall outside of the dates covered by the agency
determinations under appeal, thus the claimants only
recourse with respect to identifying and potentially
getting any heretofore uncredited correct weeks
credited (thereby offsetting the refund debt) would
always have been via direct contact with the
[Department].
Claimant appealed.
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II.
Our review of an agency's decision is limited, and we generally defer to
its decisions. See E. Bay Drywall, L.L.C. v. Dep't. of Lab. & Workforce Dev.,
251 N.J. 477, 493 (2022). Accordingly, we will only "disturb an agency's
adjudicatory decision [] upon a finding that the decision is 'arbitrary,
capricious or unreasonable,' or is unsupported 'by substantial credible evidence
in the record as a whole.'" Sullivan v. Bd. of Rev., Dept. of Labor, 471 N.J.
Super. 147, 155-56 (App. Div. 2022) (quoting Henry v. Rahway State Prison,
81 N.J. 571, 580 (1980)). The burden of showing an agency's misapplication
of that discretion is "on the challenger." Parsells v. Bd. of Educ. of Borough
of Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022) (citing Bueno v. Bd.
of Trs., 422 N.J. Super. 227, 234 (App. Div. 2011)), aff'd as modified sub nom.
Parsells v. Bd. of Educ. of Borough of Somerville, Somerset Cnty., 254 N.J.
152 (2023).
A.
The first issue to be addressed is whether the appeal should have been
accepted by the Tribunal. We conclude that it should have done so.
Claimant acknowledged receipt of the notice on September 1, 2021.
Although it is undisputed he did not follow the instructions governing the
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filing of an appeal, the record shows that he promptly attempted to resolve the
issue directly upon recognizing what he believed was an administrative error
in his initial filing. He immediately emailed the Department to explain his
efforts to correct his submission. He reported challenges in contacting the
Department by telephone, attributing these to COVID-19 related issues. In
response to the notice, it appears that claimant followed the Department's
recommended "direct contact" procedures as indicated in the decision denying
his appeal. From the record, it also appears that the request for assistance he
made to his state senator may have prompted some action, as the senator
contacted the Department on claimant's behalf.
We conclude the Board's inadequate response to claimant's various
attempts to contact it combined with claimant's efforts to resolve the problem
directly, rather than immediately filing an appeal, contributed to his filing
delay. Claimant's appeal should have been considered on its merits because
the delay in filing was due to good cause; specifically, the late submission was
caused by circumstances outside the claimant's control. N.J.A.C. 12:20-3.1(i).
B.
A second issue presented concerns whether claimant's substantive due
process rights were infringed upon when he was ordered to return benefits to
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which he might have been entitled to due to an administrative error. Because
of the out-of-time filing, claimant's case was not considered by the appeals
examiner on its merits. Additionally, in affirming the Tribunal's procedural
disposition, the Board improperly reached substantive conclusions without the
benefit of any testimony from claimant as to the circumstances of the original
benefits filing. The Board's strict adherence to the procedural requirements
governing appeals impaired claimant's substantive due process rights. See In
re Kallen, 92 N.J. 14, 25 (1983) (citing Laba v. Bd. of Educ. of Newark, 23
N.J. 364, 382 (1957)). Claimant must "be given a real chance to present his []
side of the case before a government decision becomes final." Rivera v. Bd. of
Rev., 127 N.J. 578, 583 (1992).
Because there is a strong preference for resolving cases on their merits
rather than procedural grounds, claimant must be given a chance to explain the
circumstances of his initial benefits claim to the examiner. See Galik v. Clara
Maass Med. Ctr., 167 N.J. 341, 356 (2001). Therefore, we vacate the Board's
final agency decision and order. On remand, claimant should be permitted the
opportunity to explain the inaccurate information included in his original
unemployment application that he attributes to an administrative error that he
immediately attempted to rectify.
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We express no opinion as to the merits of claimant's substantive claim to
unemployment benefits nor to the repayment of them.
Vacated and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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