                        NOT FOR PUBLICATION WITHOUT THE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-4701-15T3

VINCENT MARK RICCORDELLA,

              Appellant,

v.

BOARD OF REVIEW,
and INTERNATIONAL FIDELITY
INSURANCE COMPANY,

              Respondents.


              Submitted July 5, 2017 – Decided July 21, 2017

              Before Judges Simonelli and Carroll.

              On appeal from the Board of Review, Department
              of Labor and Workforce Development, Docket No.
              047455.

              Vincent Mark Riccordella, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent Board of Review
              (Melissa Dutton Schaffer, Assistant Attorney
              General, of counsel; Emily M. Bisnauth, Deputy
              Attorney General, on the brief).

              Sills Cummis & Gross P.C., attorneys for
              respondent International Fidelity   Insurance
              Company (Galit Kierkut, of counsel and on the
              brief; Grace A. Byrd, on the brief).

PER CURIAM
     Appellant Vincent Riccordella appeals from a May 23, 2016

final decision of the Board of Review (Board), dismissing as

untimely his appeal of an Appeal Tribunal decision that he denies

receiving.    We reverse and remand to the Board with direction to

decide the merits of appellant's claim.

     Riccordella was employed by respondent International Fidelity

Insurance Company (IFIC) from January 2009 to March 2014, last

holding the title of Senior Vice President and Chief Financial

Officer.    After IFIC terminated his employment, Riccordella filed

for unemployment benefits.      On February 13, 2015, the Deputy

Director of the Division of Unemployment and Disability Insurance

found Riccordella was discharged by IFIC for committing theft by

deception and consequently he was disqualified for benefits due

to gross misconduct connected with the work.

     Riccordella timely appealed to the Appeal Tribunal. A hearing

on the appeal was postponed for good cause twice by IFIC due to

the unavailability of its sole witness, and once because of

Riccordella's unavailability. A telephonic hearing was eventually

conducted on July 17, 2015, at which Riccordella appeared and IFIC

did not.1    In its July 20, 2015 decision, the Tribunal reversed

the Deputy's determination, and held that Riccordella was not


1
  We note that the transcripts of the Appeal Tribunal hearings
have not been provided to us.

                                  2                         A-4701-15T3
liable to refund the $4452 in benefits he had received.              The

Appeals Examiner concluded that:

           [I]nsufficient evidence was presented at the
           hearing to establish that [Riccordella] acted
           in a manner which was either a crime or against
           the   interests    of   his   employer.      As
           [Riccordella]   gave   no   self-incriminating
           testimony and indicated that all legal claims
           made by [IFIC] based on his actions have been
           dismissed, the Tribunal does not find there
           to be sufficient proof to establish that
           [Riccordella] committed any infractions which
           would amount to misconduct connected with the
           work. Therefore, no disqualification arises
           under N.J.S.A. 43:21-5(b) as [Riccordella] was
           not discharged for misconduct connected with
           the work.

      The Examiner also noted that IFIC "received, but failed to

follow, the instructions provided for participating in the hearing

and called the Tribunal both after the scheduled start of the

hearing and after the hearing had been closed because they had

forgotten about the time of the hearing."            Consequently, the

Tribunal determined that IFIC did not establish good cause for

failing to participate in the hearing.

      IFIC appealed the Tribunal's decision by letter dated August

5, 2015.   IFIC explained that its witness was prepared to testify

to   Riccordella's   purported   misconduct,   but   misunderstood   the

instructions that required her to call in prior to the hearing.

IFIC further contended that the Tribunal failed to consider written

documentation it had previously submitted and about which its

                                   3                            A-4701-15T3
witness was ready to testify.                 On February 4, 2016, the Board

found good cause for IFIC's failure to participate in the July 17,

2015 hearing, and remanded the case to the same Appeals Examiner

for   a   new   hearing   at    which    IFIC    and    Riccordella   would   both

participate.

      On March 1, 2016, the Appeal Tribunal adjourned the rehearing,

again because IFIC's witness was unavailable.                 On March 31, 2016,

the Tribunal conducted the rehearing telephonically, during which

Riccordella, IFIC, and IFIC's counsel participated.                   By decision

mailed    on    April   7,     2016,    the    Appeals    Examiner    found   that

Riccordella was involved in multiple financial transfers of IFIC's

funds that lacked a legitimate purpose and constituted the criminal

offense of theft by deception.                Accordingly, the Tribunal found

that Riccordella was disqualified for unemployment compensation

benefits for gross misconduct connected to the work, pursuant to

N.J.S.A. 43:21-5(b), and he was liable to repay benefits he had

already received.         The Tribunal's decision included a notice

setting forth the procedure to appeal within twenty days.

      In this appeal, Riccordella asserts that he did not receive

the Tribunal's April 7, 2016 decision.                 On May 8, 2016, after the

appeal period expired, he wrote to the Board requesting that his

benefits be restored.          On May 11, the Board filed Riccordella's

letter as an appeal of the Tribunal's decision.                In a May 23, 2016

                                          4                               A-4701-15T3
decision, from which this appeal is taken, the Board found that

no good cause was shown for the late filing, and dismissed the

appeal as untimely.

     On appeal, Riccordella argues he was denied due process

because he did not receive notice of the Appeal Tribunal's adverse

decision.    Consequently, he did not have the opportunity to be

heard as to the merits of his appeal, which, he contends, included

IFIC's failure to prove the allegations of misconduct both before

the Tribunal and in a related civil action between the parties.

He also argues that the Board's decision was arbitrary, capricious,

and unreasonable since it had previously found good cause to remand

the matter to the Appeal Tribunal when IFIC admittedly received

notice of the Tribunal hearing date but "simply forgot" to attend.

     N.J.S.A. 43:21-6(c) directs that:

            The parties shall be duly notified of [an
            appeal] tribunal's decision, together with its
            reasons therefor, which shall be deemed to be
            the final decision of the board of review,
            unless further appeal is initiated . . .
            within [twenty] days after the date of
            notification or mailing of such decision[.]

     In Rivera v. Board of Review, 127 N.J. 578, 590 (1992), the

Supreme Court established that, in certain circumstances, a "good

cause" exception to the time limitation on filing unemployment

compensation appeals should be employed.    Subsequently, the Board

promulgated a regulation establishing the factors to be considered

                                  5                          A-4701-15T3
in determining good cause. N.J.A.C. 12:20-4.1(h). That regulation

provides:

                 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.

     In the present appeal, IFIC and the Board contend that

Riccordella's May 8, 2016 letter evidences knowledge of the April

7, 2016 Appeal Tribunal's decision and was thus intended as an

appeal   of   that   decision.      We   agree   that   is   one   possible

interpretation. However, we are unable to discount the alternative

interpretation, urged by Riccordella, that in sending the letter

he demonstrated diligence in pursuing his rights and frustration

by the delay in receiving the Tribunal's determination as well as

the entire appeal process.       Moreover, based upon the record before

us, both this matter and the related civil action between the

parties appear to have been hotly contested.             Throughout this

proceeding, both Riccordella and IFIC evinced every intent to

challenge any adverse ruling, thus rendering it unlikely that

Riccordella would have failed to timely appeal the Tribunal's


                                     6                              A-4701-15T3
April 7, 2016 decision had he received it. Further, as Riccordella

points out, the Board found good cause to reopen the proceedings

and allow IFIC to be heard on the merits even though it admittedly

had notice of the prior hearing but failed to timely participate,

yet did not afford him a similar opportunity when his notice of

the Tribunal's decision was not so readily apparent.

     We therefore reverse the determination of the Board and remand

for a decision on the merits of Riccordella's claim.    On remand,

the Board shall grant Riccordella a reasonable opportunity to

present the merits of his claim, and allow IFIC a reasonable

opportunity to respond.

     Reversed and remanded.   We do not retain jurisdiction.




                                7                           A-4701-15T3
