Opinion
DOCKET NO. A-3879-10T3
05-10-2012
JOSEPH A. MANZI, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ASBURY PARK HOUSING AUTHORITY, Respondents.
Tina Velantzas-Austin argued the cause for appellant. Ellen A. Reichart, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Reichart, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
On appeal from the Board of Review, Department of Labor, Docket No. 291,028.
Tina Velantzas-Austin argued the cause for appellant.
Ellen A. Reichart, Deputy Attorney General, argued the cause for respondent Board of Review, Department of Labor (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Reichart, on the brief).
Hill Wallack LLP, attorneys for Asbury Park Housing Authority, join in the brief of respondent Board of Review. PER CURIAM
Claimant Joseph Manzi appeals from the March 3, 2011 order of the Board of Review (the Board) dismissing his appeal from a determination that he is not qualified to receive unemployment compensation. The Board found that claimant's appeal from the deputy's determination to the Appeal Tribunal was filed beyond the ten day period permitted by N.J.S.A. 43:21-6(b)(1). We affirm.
Claimant filed a claim for unemployment compensation benefits on May 2, 2010. On June 3, 2010, claimant received the determination of the deputy examiner informing him that he was disqualified for benefits because he left his job voluntarily without good cause attributable to the work. Claimant filed an appeal of the deputy's determination with the Appeal Tribunal by letter postmarked July 15, 2010. Pursuant to N.J.S.A. 43:21-6(b)(1), the appeal should have been filed within seven calendar days of delivery or ten calendar days from mailing. In this case, the appeal should have been filed on or before June 11, 2010.
The Notice of Determination instructed claimant of his appeal rights. It informed claimant that the appeal period will be extended "if good cause for late filing is shown." The notice explained "good cause" as follows: "[g]ood cause exists in situations where it can be shown that the delay was due to circumstances beyond the control of the appellant which could not have been reasonably foreseen or prevented."
The Appeal Tribunal found that claimant had not read the entire contents of the disqualification determination, and it held claimant had not demonstrated good cause to extend the filing deadline. The Board found that the findings of fact of the Appeal Tribunal were "substantially correct" and adopted those findings. The Board also found that claimant was upset by the determination of the deputy but did not read the entire determination, thereby missing the appeal rights notice. In addition, the Board found that claimant "would have filed his appeal within the statutory time limit" if he had read the entire document at or soon after receipt of the determination. Finding that claimant's failure to read the entire determination on receipt was the "sole reason" that claimant filed his appeal late, the Board held that claimant did not demonstrate good cause.
N.J.S.A. 43:21-6(b)(1) requires that a claimant file his appeal to the Appeal Tribunal within ten days of mailing of the Notice of Determination, or within seven days of receipt. Late filing can be excused only upon a showing of good cause, which is defined as circumstances that are either beyond the control of the claimant or that could not have been reasonably foreseen or prevented. N.J.A.C. 12:20-4.1(h).
In a letter dated July 11, 2010, claimant explained the reason for the delayed filing. He wrote that "[t]he reason for the delay is due to my having to explore my legal options as they pertain to wrongful termination and I thought I had to settle that matter before engaging with the unemployment benefits." He also stated that he "ha[d] been extremely depressed and ha[d] suffered periods of stress due to this termination."
During the hearing before the Appeal Tribunal, claimant testified that he "went immediately" to the language informing him of the disposition of his claim for benefits when he received the Notice of Determination. He was so shocked and dismayed by the determination that he read nothing else in the notice and failed to notice that he had a right to appeal. He further explained that he had been depressed since his termination due to concern about his ability to support his family.
The Appeal Tribunal issued its determination on August 10, 2010. Claimant filed a timely appeal to the Board and submitted a letter from his pastor and counselor dated September 14, 2010. Claimant's pastor wrote:
I am aware of Joseph's situation regarding employment. On more than one occasion, I have had the opportunity to address his depression as a result of the loss ofThe pastor provided claimant with the name of an attorney. Claimant testified during the Appeal Tribunal hearing that he contacted the attorney suggested by his pastor at the end of June. In a November 15, 2010 affidavit submitted by claimant to the Board, he related that he was "[d]evastated" when he read that his claim for benefits had been rejected. He also averred that he "felt more depressed after losing [his] benefits[.]" Claimant also stated that he promptly called the attorney mentioned by his pastor, the attorney returned his call on June 18 and referred him to another attorney. When he contacted the second attorney, he learned that the attorney was on vacation until after July 4, and he scheduled a meeting for July 8. At that meeting he learned of his appeal rights for the first time.
employment. At one of our sessions -- on June 15, 2010, to be specific -- [claimant] informed me that he was denied his unemployment benefits. I suggested to him at that time that he bring this to the attention of an attorney.
The "good cause" exception to time limitations to pursue appellate remedies in unemployment benefit actions codified at N.J.A.C. 12:20-4.1(h) arises from the ruling in Rivera v. Board of Review, 127 N.J. 578 (1992). In Rivera, a migrant worker did not receive notice of disqualification for unemployment benefits until after the ten day period for filing an appeal had expired. Id. at 579-80. The Court reversed dismissal of the migrant worker's administrative appeal on procedural due process grounds and directed the agency to promulgate regulations to assure that migrant workers are provided with adequate notice of agency determinations. Id. at 590-91. Later, this court ordered that the notice of determination of disqualification for benefits must include a notice explaining the good cause exception to the ten day filing requirement. Garzon v. Bd. of Review, 370 N.J. Super. 1, 7 (App. Div. 2004). The Notice of Determination sent to claimant informed him of the ten day filing requirement and the good cause exception to that requirement.
To satisfy the good cause exception to the timely filing requirement, claimant had to demonstrate circumstances beyond his control or circumstances he could not have reasonably foreseen or prevented. N.J.A.C. 12:20-4.1(h). Measured by this standard, the record does not support a good cause exception to timely filing of an administrative appeal.
In his testimony before the Appeal Tribunal, claimant admitted he did not read the document in its entirety. If he had read the document in its entirety, he would have learned of his ability to appeal and the time limitations for any appeal. Moreover, in his November 2010 certification submitted to the Board, he admits he did not read the notice in its entirety until he met with an attorney on July 8. He filed his appeal one week later.
In his Appeal Tribunal testimony, claimant explained that the loss of his job had caused extreme emotional distress, which was exacerbated when he received the June notice informing him that his claim for benefits had been denied. We do not dispute that he was upset, but there is nothing in the record to support that his emotional state was a circumstance beyond his control. Moreover, his pastor's letter mentions his depression and the fact of counseling sessions. It does not, however, describe the extent of his emotional state, nor does it suggest that his emotional state prevented him from reading the notice in its entirety and comprehending the information provided to him about his right to appeal and the time limitations associated with any appeal.
We, therefore, affirm the March 3, 2011 final decision of the Board.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION