                   NOT FOR PUBLICATION WITHOUT THE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.,
                                        APPROVED FOR PUBLICATION
     Appellant,
                                           February 19, 2014
v.                                         APPELLATE DIVISION

BOARD OF REVIEW, DEPARTMENT
OF LABOR, and LOWE'S HOME
CENTERS, INC.,

     Respondents.

________________________________________________________________

         Submitted January 7, 2014 – Decided      February 19, 2014

         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
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.



                                          2                                   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.



                                          3                                 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.



                                        4                               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.



                                               5                                    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



                                        6                                 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



                                          7                                   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,




                                      8                              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



                                             9                                     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




                                            10                                    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




                                            11                                     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.




                                         12                             A-2253-09T3
