Wease v. Bd. of Review

Full title: RICHARD W. WEASE, Plaintiff-Appellant, v. BOARD OF REVIEW…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Sep 16, 2011

DOCKET NO. A-1430-10T3 (App. Div. Sep. 16, 2011)

Opinion

DOCKET NO. A-1430-10T3

09-16-2011

RICHARD W. WEASE, Plaintiff-Appellant, v. BOARD OF REVIEW, Defendant-Respondent.

Richard W. Wease, appellant pro se. Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Alvarez and Nugent.

On appeal from the Board of Review, Department of Labor, Docket No. 273, 890.

Richard W. Wease, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief). PER CURIAM

Appellant, Richard W. Wease, appeals from the October 8, 2010 final decision of respondent, Board of Review (the Board), affirming the Appeal Tribunal's dismissal of his claim for unemployment benefits. The Appeal Tribunal dismissed his claim because he did not timely file an appeal from the initial decision of the deputy to the Director, Division of Unemployment Insurance, who disqualified him for benefits because he left his employment voluntarily without good cause attributable to his work. See N.J.S.A. 43:21-5(a). We affirm.

Appellant filed a claim for unemployment compensation benefits on January 17, 2010. The deputy's decision denying his claim (the initial determination) was mailed on February 9, 2010. Appellant received it on February 13, 2010. Twenty-three days later, on March 8, 2010, appellant filed an appeal from the initial determination to the Appeal Tribunal.

During the Appeal Tribunal telephonic hearing on April 6, 2010, appellant testified that he voluntarily left his job because he planned to relocate his family. His plans were delayed when the people who agreed to buy his house could not close on the sale. When asked why he waited until March 8, 2010 to file the appeal from the initial determination, he said he "didn't think [he] had the chance for anything [be]cause [he] was voluntarily relocating[,] . . . but [his] wife said try to file the appeal." The Appeal Tribunal dismissed the appeal for the following reasons:

N.J.S.A. 43:21-6(b)(1) provides that an appeal must be filed within ten (10) days of the mailing of the determination, or within seven (7) days of receipt of the determination. The claimant received the determination on 02-13-10. He first filed an appeal on 03-08-10. The claimant chose to delay the appeal and it was not
establish[ed] that he had . . . good cause for delaying the appeal. The appeal was not filed within the above limits and good cause has not been shown for the appeal being filed late. The Tribunal has no jurisdiction to rule on the merits of the appeal. The appeal is dismissed.
Further, while academic, it did not appear that the Deputy's determination was incorrect.

Appellant timely appealed to the Board, which affirmed the decision of the Appeal Tribunal.

Our scope of review of administrative agency decisions is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). We also accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) or (citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). In challenging the agency's conclusion, an appellant carries a substantial burden of persuasion, and the determination by the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983).

The New Jersey Unemployment Compensation Law requires that an administrative appeal be filed within ten days of the mailing of the initial determination, or within seven days of the receipt of the initial determination. N.J.S.A. 43:21-6(b)(1). The appeal period can be extended for good cause. Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992). Good cause exists when "[t]he delay in filing the appeal [is] due to circumstances beyond the control of the appellant" or when "[t]he appellant delay[s] filing the appeal for circumstances which could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-3.1(i).

Here, it is undisputed that appellant did not timely appeal from the initial determination. Appellant admitted he did not timely file the appeal because he did not believe he was entitled to benefits, having voluntarily decided to leave his job and relocate. He did not appeal the deputy's decision until his wife suggested that he try to file an appeal. Those reasons do not establish good cause for extending the appeal period.

The Board's decision affirming the Appeal Tribunal's decision was not arbitrary, capricious, or unreasonable.

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

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CLERK OF THE APPELLATE DIVISION