                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2103-16T2

RICHARD DELGADO,

        Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR, AND
SUBURBAN PROPANE, INC.,

     Respondents.
____________________________

              Argued May 10, 2018 – Decided June 20, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from the Board of Review, Department
              of Labor, Docket No. 051,656.

              Sarah Hymowitz argued the cause for appellant
              (Legal Services of New Jersey, attorneys;
              Sarah Hymowitz and Melville D. Miller, on the
              briefs).

              Rimma Razhba, Deputy Attorney General, argued
              the cause for respondent Board of Review
              (Gurbir S. Grewal, Attorney General, attorney;
              Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Rimma Razhba, on the
              brief).

PER CURIAM
     Richard Delgado appeals from a final agency decision of the

Board of Review (Board), which denied his request to "reopen" the

Board's earlier decision deeming him ineligible for unemployment

benefits.   The Board found that Delgado voluntarily left his job

for reasons not attributable to the work after a meeting at which

he received an unsatisfactory performance appraisal.              The Board

also directed that Delgado refund $13,416 in benefits that were

paid to him.    For the reasons that follow, we reverse the Board's

decision and remand the matter for consideration anew.

     The facts derived from the record are summarized as follows.

Delgado   was   employed    by   respondent,      Suburban   Propane,    Inc.

(Suburban), as a credit analyst from February 25, 2013 until

February 24, 2015.    His employment terminated when Delgado left a

meeting with his supervisor and the company's vice president to

discuss his job performance.

     After Delgado stopped working at Suburban, he applied for

unemployment    benefits.        In   response,    a   Deputy   Director    of

respondent, the Department of Labor and Workforce Development

(Department), issued a Notice of Determination, advising Delgado

he was disqualified from receiving benefits.              According to the

notice, Delgado quit his job without good cause attributable to

the work when he "left [his] job voluntarily because [he] felt



                                       2                             A-2103-16T2
[his] supervisor's criticism of [his] job performance was unduly

severe."

     Delgado       filed      an     appeal     from   the    Deputy     Director's

determination with the Appeal Tribunal in which he claimed he was

terminated by Suburban and had not quit his job.                   In response to

Delgado's    appeal,     the       Appeal   Tribunal   conducted    a    telephonic

hearing on April 30, 2015, during which Delgado and his supervisor

from Suburban testified.              The testimony adduced at the hearing

focused on each party's version of what occurred at the meeting,

Delgado's return to the office the following day, and whether he

was fired or quit on either day.                  On May 1, 2015, the Appeal

Tribunal issued a written decision reversing the Deputy Director's

determination, after it found Delgado had been discharged and was

not ineligible for benefits under N.J.S.A. 43:21-5(a) because the

evidence did not support a finding of misconduct under N.J.S.A.

43:21-5(b).

     Suburban appealed on May 21, 2015 and, on May 27, 2015, the

Board mailed a Notification of Appeal to Delgado.                        The notice

advised Delgado that the Board had received "correspondence" from

Suburban that was "under consideration by the Board," without

providing    a    copy   of    Suburban's       submission    to   Delgado.       The

submission       consisted     of     an    uncertified      statement     from    an

undisclosed author setting forth facts surrounding the meeting and

                                            3                               A-2103-16T2
subsequent     events    that    led       to    Delgado       leaving     Suburban's

employment.    It raised new points about Delgado's behavior during

his employment and the meeting, as well as additional behavior

that allegedly occurred as he left the office.                       For example, it

identified     various   company       policies        that     Delgado     allegedly

violated that were never discussed during the hearing before the

Appeal Tribunal.     It also stated Delgado "slap[ped] high five with

another co-worker on his way out" the door after the meeting.

     Despite not providing Delgado with a copy of Suburban's

submission, the notice stated that he had seven days to "submit

any written arguments you wish the Board to consider [.]"                       Delgado

responded in writing on June 1, 2015 and June 3, 2015, explaining

his version of the facts, and stating that he was shocked that

Suburban     could   appeal     as    he       had   been     told    by   an    agency

representative that the Appeal Tribunal's decision was final.

     After considering the parties' submissions, the Board issued

its written decision on December 22, 2015, rejecting the Appeal

Tribunal's decision.      The Board found that the Appeal Tribunal's

findings were inaccurate and that it "ignored" other facts.                          The

Board made different fact-findings and concluded that Delgado had

voluntarily left his job.            It relied upon evidence that Suburban

never told Delgado that he was discharged, that "he handed in his

keys and removed his personal effects," and "his departure was

                                           4                                    A-2103-16T2
punctuated by an obscenity."        According to the Board, Suburban's

"dissatisfaction with [Delgado's] work [did] not give the claimant

good cause to quit."        Two days later, the Department issued a

demand for a refund of benefits paid to Delgado in the amount of

$13,416.00.

     In January 2016, Delgado filed an appeal from the Board's

final   decision   with    our   court.   Shortly   thereafter,   Delgado

obtained counsel who immediately contacted the Board to request a

copy of Suburban's submission to the Board that the Board did not

include when it notified Delgado of the company's appeal.         Counsel

found the Board's omission to be unfair to Delgado and all similar

claimants because "[w]ithout seeing [Suburban's] letter of appeal,

any attempt at a response is nothing more than a shot in the dark.

A party simply cannot defend their claim without knowing what the

[employer] argued."

     Counsel's letter prompted an exchange of emails in which the

Board advised that "[w]e usually do send out a copy of the appeal

letter with the acknowledgment letter," and agreed to do so at

counsel's request.        When counsel asked for a copy, the Board's

representative stated Delgado could "ask the Board to reopen the

case." Despite her repeated requests for a copy of the submission,

the Board did not provide a copy until February 25, 2016.



                                      5                           A-2103-16T2
      On March 2, 2016, Delgado's counsel submitted a request with

the   Board   to   reopen   and   reconsider   Delgado's      claim.      In    a

supporting brief, counsel argued that the Board, in reaching its

final    decision,   should   not   have   considered   the    unsigned      and

anonymous statement submitted with Suburban's appeal.                  Counsel

also pointed out that Suburban's submission did not argue that the

Appeal Tribunal committed any errors in its fact-findings or

conclusions of law based on the evidence presented at the hearing.

      While Delgado's request to reopen the matter was pending, he

withdrew his appeal filed with our court.          In his letter to the

court, Delgado stated that the Board had "agreed to reopen [his]

case."

      By the middle of September 2016, the Board had not acted upon

Delgado's request.     As a result, counsel began to make inquiry and

was advised that the matter had been closed because Delgado filed

an appeal with our court and, contrary to counsel's claim, the

Board never agreed to reopen or reconsider his claim.                  However,

after counsel supplied copies of her earlier emails with the

Board's representative who stated that Delgado could ask to reopen

his claim, and her client's withdrawal of his appeal with our

court, the Board issued a letter to counsel on December 6, 2016,

advising that it denied Delgado's "request for a reopening of the

Order of Dismissal[.]"        Counsel requested clarification because

                                      6                                 A-2103-16T2
there was never an order of dismissal entered by the Board.        A few

days later, the Board issued a "corrected" letter stating it had

denied Delgado's request to reopen the Board's "decision."             This

appeal followed.

     On appeal, Delgado contends that the Board violated his due

process rights, its decision was not supported by the evidence,

and to the extent he "left work voluntarily," the Board should

have applied the "unemployment doctrine of leaving 'in a huff.'"

We find merit to these arguments.

     Our   review   of   decisions   by   administrative   agencies     is

limited,   with   petitioners   carrying    a   substantial   burden    of

persuasion.    In re Stallworth, 208 N.J. 182, 194 (2011); Brady v.

Bd. of Review, 152 N.J. 197, 218 (1997). An agency's determination

must be sustained "unless there is a clear showing that it is

arbitrary, capricious, or unreasonable, or that it lacks fair

support in the record."     Russo v. Bd. of Trs., Police & Firemen's

Ret. Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192

N.J. 19, 27-28 (2007)).     "[I]f substantial evidence supports the

agency's decision, 'a court may not substitute its own judgment

for the agency's even though the court might have reached a

different result[.]'"      In re Carter, 191 N.J. 474, 483 (2007)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500,

513 (1992)).      The burden of proof rests with the employee to

                                     7                           A-2103-16T2
establish a right to collect unemployment benefits.                    Brady, 152

N.J. at 218.

    Applying      our     deferential       standard     of      review,   we   are

constrained to vacate the Board's determination because it is

apparent that Delgado's due process rights were violated when the

Board considered new evidence improperly submitted as part of

Suburban's   appeal       without   giving     Delgado      an    opportunity     to

challenge the submission.

    At the outset, we acknowledge that the Board is authorized

to prescribe rules concerning "[t]he manner in which disputed

benefit   claims,   and     appeals   from    determinations        with   respect

to . . . claims     for    benefits . . . shall        be     presented . . . ."

N.J.S.A. 43:21-6(f).        N.J.A.C. 1:12-14.3 governs appeal hearings

before the Board.       It states:

           (a) All appeals to the Board of Review may
           be heard upon the evidence in the record made
           before the appeal tribunal, or the Board of
           Review may direct the taking of additional
           evidence before it.

           (b) In the hearing of an appeal on the record,
           the Board of Review may limit the parties to
           oral argument or the filing of written
           argument, or both. If, in the discretion of
           the Board of Review, additional evidence is
           necessary to enable it to determine the
           appeal, the parties shall be notified by the
           Board of Review of the time and place such
           evidence will be taken.     Any party to any
           proceeding in which testimony is taken may


                                        8                                  A-2103-16T2
              present such evidence as may be pertinent to
              the issue.

              (c) The Board of Review, in its discretion,
              may remand any claim or any issue involved in
              a claim to an appeal tribunal for the taking
              of such additional evidence as the Board of
              Review may deem necessary.     Such testimony
              shall be taken by the appeal tribunal in the
              manner prescribed for the conduct of hearings
              on appeals before appeal tribunals. Upon the
              completion of the taking of evidence by an
              appeal tribunal pursuant to the direction of
              the Board of Review, the claim or the issue
              involved in such claim shall be returned to
              the Board of Review for its decision upon the
              entire record, including the evidence before
              the appeal tribunal and such additional
              evidence and such oral argument as the Board
              of Review may permit before it.

              (d) The Board of Review, in its discretion,
              may remand any claim or any issue involved in
              a claim to an appeal tribunal for the taking
              of additional evidence and a decision or may
              remand for a new decision only.

              [Emphasis added.]

    The Board's authority is not without limits.                         Proceedings

before the Board must insure that litigants are afforded due

process.        "[S]tate    statutes      providing         for    the   payment      of

unemployment compensation benefits create in the claimants for

those    benefits    property   interests        protected        by   due   process."

Rivera   v.    Bd.   of   Review,   127       N.J.   578,   584    (1992)     (quoting

Wilkinson v. Abrams, 627 F.2d 650, 664 (3d Cir. 1980)).                         "[A]ny

proceeding which is to be accorded finality [requires] notice


                                          9                                    A-2103-16T2
reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them

an   opportunity   to   present    their   objections."    Id.   at   583

(alterations in original) (quoting Mullane v. Cent. Hanover Bank

& Trust Co., 339 U.S. 306, 314 (1950)).

      "[D]ue process requires that a party in a judicial hearing

receive 'notice defining the issues and an adequate opportunity

to prepare and respond.'"         H.E.S. v. J.C.S., 175 N.J. 309, 321

(2003).   "[T]here can be no adequate preparation where the notice

does not reasonably apprise the party of the charges, or where the

issues litigated at the hearing differ substantially from those

outlined in the notice."     H.E.S., 175 N.J. at 322 (alteration in

original) (quoting Nicoletta v. N. Jersey Dist. Water Supply

Comm'n, 77 N.J. 145, 162 (1978)).          In the context of a possible

denial of unemployment benefits, a claimant is entitled to adequate

notice and an opportunity to be heard.         Garzon v. Bd. of Review,

Dep't of Labor, 370 N.J. Super. 1, 5 (App. Div. 2004).            "[T]he

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 decision becomes final."        Rivera, 127 N.J. at 583.

      Here, the record reflects that Suburban submitted new facts

to the Board that they had not introduced before the Appeal

Tribunal without apprising Delgado of the submission's contents.

                                    10                           A-2103-16T2
Contrary to the      Board's contention on appeal,         the fact that

Delgado's attorney had an opportunity to address the submission

in her brief seeking to reopen the matter did not remedy the

problem because Delgado was not "afforded notice and opportunity

to be heard and to present evidence relating to such new matters."

Charles Headwear, Inc. v. Bd. of Review, 11 N.J. Super. 321, 329

(App. Div. 1951) (emphasis added).         The proper remedy would have

been for the Board to either reject Suburban's submission as not

having been requested by the Board, N.J.A.C. 1:12-14.3, or for the

Board   to   have   reopened   Delgado's   claim,   and   allowed   him    an

opportunity to be heard.       See Rivera, 127 N.J. at 584. Due process

requires nothing less.

     In its consideration of Delgado's claim anew, the Board should

consider all of the evidence properly presented to it or the Appeal

Tribunal, as well as both parties' legal arguments based on the

evidence, including whether the "leaving in a huff" doctrine

applies to this case.      See Savastano v. Bd. of Review, 99 N.J.

Super. 397, 400 (App. Div. 1968), ("Employees frequently leave

work temporarily for some fleeting physical or mental irritation,

or 'in a huff' occasioned by one or more of the frustrations

attending commercial life, without intending to quit.").

     Because our decision compels the reopening of Delgado's claim

for consideration anew, we need not address his remaining argument.

                                    11                              A-2103-16T2
Reversed and remanded.   We do not retain jurisdiction.




                          12                          A-2103-16T2
