Heard in the Court of Appeals 18 November 2014.
Hopler & Wilms, LLP, by Adam J. Hopler, for petitioner-appellant.
N.C. Department of Commerce, Division of Employment Security, by Chief Counsel Thomas H. Hodges and Sharon A. Johnston, for respondent-appellee.
McCULLOUGH, Judge. Judges CALABRIA and STROUD concur.
Appeal by petitioner from order entered 28 April 2014 by Judge A. Robinson Hassell in Guilford County Superior Court,
No. 14 CVS 2901.
Erin Isenberg (" petitioner" ) appeals from an order dismissing her petition for judicial review of a decision of the North Carolina Department of Commerce, Division of Employment Security (" respondent" or " Division" ). Upon review, we affirm.
On 21 January 2014, petitioner filed a petition for judicial review (the " petition" ) in Guilford County Superior Court seeking review of a 2 January 2014 decision by respondent that petitioner was disqualified from receiving unemployment insurance benefits. Respondent responded to the petition on 12 February 2014 by filing a motion to dismiss on the ground that petitioner failed to serve the petition upon all parties of record in the Division proceedings as required by N.C. Gen. Stat. § 96-15(h). Attached to respondent's motion was an affidavit of the Director of Business and Finance of petitioner's former employer, Growing Years Burlington, indicating that petitioner's former employer had not been served with a copy of the
petition as of the date of the affidavit, 11 February 2014.
On 10 March 2014, petitioner filed an affidavit of service dated 5 March 2014. The affidavit of service, along with the attachments, show that petitioner mailed a copy of the petition to the former employer via certified mail on 31 January 2014. The U.S. Postal Service attempted delivery on 3 February 2014 and left notice because there was no authorized recipient available. Thereafter, the mailing was available for pickup from 12 February 2014 to 20 February 2014. The mailing was returned to petitioner unclaimed on 27 February 2014. During the time the mail was held by the U.S. Postal Service, petitioner communicated with respondent by email. In their communications, respondent indicated that it had been in contact with petitioner's former employer about the mailing but petitioner's former employer never received it.
In addition to the affidavit of service, petitioner submitted a brief in which he opposed respondent's motion to dismiss the petition.
Respondent's motion to dismiss came on for hearing in Guilford County Superior Court on 9 April 2014 before the Honorable A. Robinson Hassell. By order filed 28 April 2014, the superior court granted respondent's motion and dismissed the petition. In doing so, the superior court concluded it did not obtain jurisdiction to review the petition because petitioner failed to comply with the statutory requirements of N.C. Gen. Stat. § 96-15(h) in that ...