Opinion
DOCKET NO. A-0732-12T4
01-30-2017
WARREN M. JENTIS, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and JBI LIMOUSINE SERVICE, INC., Respondents.
Garces & Grabler, attorneys for appellant (Jared A. Geist, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Peter H. Jenkins, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes and Gooden Brown. On appeal from the Board of Review, Department of Labor, Docket No. 259,419. Garces & Grabler, attorneys for appellant (Jared A. Geist, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent Board of Review (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief). PER CURIAM
Appellant Warren M. Jentis appeals a July 31, 2012 decision of the Board of Review (Board) affirming a determination of the Appeal Tribunal (Tribunal) that he was ineligible for unemployment compensation benefits from November 2006 because he failed to file a claim in accordance with N.J.A.C. 12:17-4.2. The Board also found appellant's unemployment claim dated September 20, 2009 was invalid because he did not establish the requisite base year weeks and wages required under N.J.A.C. 12:17-5.1. Given the current procedural posture of the case, we dismiss the appeal without prejudice for failure to exhaust administrative remedies.
By way of background, appellant was employed as a limousine driver by JBI Limousine Service, Inc. (JBI) from September 2005 to October 2006 when he was laid off. On September 20, 2009, appellant filed a claim for unemployment compensation benefits, which was denied by the Division Director on November 4, 2009 because appellant had insufficient base weeks or earnings to establish a valid claim.
We issued an order dated October 24, 2014, that no brief on behalf of JBI would be accepted for filing for failure to file a timely answering brief.
Appellant appealed the Deputy's determination to the Tribunal and, following a telephonic hearing, the Tribunal affirmed the Deputy's determination that appellant's unemployment claim was invalid under N.J.S.A. 43:21-4(e). Appellant's claim was ruled invalid because he did not establish twenty base weeks or earn at least $7200 during the base year from April 1, 2008 through March 31, 2009, the first four of the last five completed calendar quarters before the claim was filed, as required under N.J.S.A. 43:21-4(e). Appellant admitted being self-employed from 2008 to 2009.
The Tribunal rejected appellant's testimony that he initially filed the claim telephonically in 2006, after he was laid off by JBI, but was informed by an unemployment claims agent that the claim was denied because he was an independent contractor and thereby ineligible to file an unemployment insurance claim. Despite appellant's contention that he simply sought to re-establish the claim that was denied in 2006, the Tribunal determined that appellant never filed a claim for benefits in 2006 because appellant never received documentation denying his purported claim.
A check of appellant's social security number did not reflect any wages paid by JBI and JBI made no deductions from appellant's wages for unemployment or disability insurance.
Appellant testified that, based upon the information provided by the claims agent, he believed he needed proof that he was an employee of JBI, rather than an independent contractor, in order to validate his unemployment insurance claim. Consequently, he spent the following years pursuing a workers' compensation claim for injuries suffered in a work related automobile accident in 2005, and submitted to the Tribunal a July 27, 2009 order entered by a workers' compensation judge determining that appellant was, in fact, an employee of JBI. However, the Tribunal concluded that the favorable workers' compensation decision was irrelevant to the September 20, 2009 claim under review.
Appellant appealed the Tribunal's decision to the Board, which affirmed the Tribunal in a November 27, 2010 decision. On December 6, 2010, appellant filed a notice of appeal. We granted the Board's motion for a remand and, on September 30, 2011, the Board set aside its prior decision and remanded the matter to the Tribunal for a new hearing. Following a March 6, 2012 administrative hearing, the Tribunal again affirmed the Deputy's decision.
Finding no Division records to support appellant's testimony that he filed a claim telephonically in 2006, the Tribunal determined that the purported 2006 unemployment claim was not filed in accordance with N.J.A.C. 12:17-4.2, and the 2009 claim was invalid as appellant did not establish the requisite base year weeks and wages in accordance with N.J.A.C. 12:17-5.1. The Tribunal also concluded that, although there were no payroll records or business checks produced during the hearing to ascertain appellant's total wages, appellant was not an independent contractor as defined in N.J.S.A. 43:21-19(i)(6).
N.J.A.C. 12:17-4.2(a) requires a claimant to "telephone a Reemployment Call Center or contact the Division via an Internet application to file an initial claim for benefits[.]"
As pertinent here, under N.J.A.C. 12:17-5.1(a), to be eligible for benefits, a claimant "during his or her base year period, consisting of the first four of the most recent five completed calendar quarters preceding the date of the claim" must establish twenty base weeks or earn at least $7200 during the base year.
Under N.J.S.A. 43:21-19(i)(6), an independent contractor is defined as an individual who "has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact;" and "[s]uch service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed;" and "[s]uch individual is customarily engaged in an independently established trade, occupation, profession or business."
On July 31, 2012, the Board affirmed the Tribunal's decision and, on September 14, 2012, appellant filed a second appeal with this court. On appeal, appellant argues that he is entitled to collect unemployment benefits predated to 2006 under Meaney v. Board of Review, 151 N.J. Super. 295 (App. Div. 1977) because the Tribunal acknowledged that he was given erroneous information by the unemployment agency staff. Further, appellant argues that the Tribunal erred in limiting and imposing time constraints on his cross-examination of witnesses and restricting his ability to subpoena witnesses and documents at the March 6, 2012 hearing.
On December 15, 2014, on the Board's motion, we remanded the matter to the Board for reconsideration. On March 18, 2015, the Board determined that appellant was "entitled to a claim dated October 29, 2006" and remanded the matter to the Deputy to determine "[t]he monetary calculation of the claim for benefits and whether the claimant was able, available, and actively seeking work."
The Board disagreed with the Tribunal that appellant was "ineligible for benefits as of November, 2006." Rather, the Board credited appellant's account that, "on or around November 2, 2006[,]" he was told by Division staff "that he was not in the 'system'" and would not qualify for benefits "unless he could prove he was an employee[.]" When appellant "inquired what he had to do to prove he was an employee, he was told he could obtain a letter from a judge indicating the employer broke the law and he was an employee[,]" and he complied. Relying on Meany, supra, the Board concluded that "because of erroneous instructions received from an employee of the Division[,]" appellant was entitled to file the predated October 29, 2006 claim and was "relieved of reporting requirements on the claim[.]"
On April 20, 2015, on the Board's cross motion, we dismissed the appeal without prejudice for renewal after completion of the Board's remand process. On November 4, 2015, while the remand process was still ongoing, we denied appellant's second motion for a monetary judgment and granted his motion to reopen the appeal.
We also denied appellant's motion for a monetary judgment and to bar the Board from conducting a new hearing. We later granted the Board an extension of time to complete the remand process. --------
An appellate court cannot review an agency decision until it has become final. N.J.S.A. 43:21-6(h). Thus, an appellant must exhaust administrative remedies prior to challenging a state agency's action or inaction by filing a direct appeal to the Appellate Division. Rule 2:2-3(a)(2). The doctrine of exhaustion of administrative remedies is predicated on the principle that "[t]he expertise of an administrative agency may not be exercised or known until it renders its final decision and usually due deference is accorded such expertise upon judicial review." Triano v. Div. of State Lottery, 306 N.J. Super. 114, 121 (App. Div. 1997) (citations omitted); see also Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-59 (1979) (holding that a claimant must exhaust relevant administrative remedies before "seeking judicial intervention.") (citations omitted). Furthermore,
the doctrine of exhaustion of administrative remedies serves three primary goals: (1) the rule ensures that claims will be heard, as a
preliminary matter, by a body possessing expertise in the area; (2) administrative exhaustion allows the parties to create a factual record necessary for meaningful appellate review; and (3) the agency decision may satisfy the parties and thus obviate resort to the courts.
[Atlantic City v. Laezza, 80 N.J. 255, 265 (1979).]
Following our remand to the Board for reconsideration, the Board determined that appellant was entitled to file a claim for benefits and remanded the matter to the Deputy to determine "[t]he monetary calculation of the claim for benefits and whether the claimant was able, available, and actively seeking work." At this juncture, appellant's claim is pending and no final determination by the Board has been rendered. Accordingly, we again dismiss the appeal without prejudice for failure to exhaust administrative remedies. After the Deputy determines appellant's eligibility for unemployment benefits and appellant exhausts his administrative remedies, appellant may move for reinstatement of the appeal, if necessary.
Appeal dismissed. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION