Opinion
DOCKET NO. A-0333-12T1
07-10-2014
ROBERT J. WOLF, Appellant, v. BOARD OF REVIEW and FREEHOLD MACY'S EAST, Respondents.
Robert J. Wolf, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Kelly Lichtenstein, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Board of Review, Department of Labor, Docket No. 374,623.
Robert J. Wolf, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Kelly Lichtenstein, Deputy Attorney General, on the brief).
Freehold Macy's East has not filed a brief. PER CURIAM
Appellant Robert J. Wolf appeals from a final determination of the Board of Review (Board) dismissing his administrative appeal for late filing pursuant to N.J.S.A. 43:21-6(c). We affirm.
Appellant filed a claim for unemployment compensation benefits on July 12, 2009. On January 18, 2012, the deputy claims examiner found appellant ineligible for additional benefits because he had exhausted all his benefit entitlement. Appellant timely filed an appeal of the deputy's decision with the Appeal Tribunal, who also found appellant ineligible for any additional extensions as he had received his maximum entitlement under N.J.S.A. 43:21-24.13.
This decision was mailed to appellant on July 2, 2012. Included in the Appeal Tribunal's decision was a notice setting forth the procedure for a further appeal and specifically informing appellant that the decision would become final unless an appeal was filed with the Board within twenty days of the date of mailing of the Appeal Tribunal decision:
IMPORTANT: This decision will become final, unless, within twenty (20) days of the date of mailing or notification, a written appeal is filed with the Board of Review . . . . The appeal period will be extended if good cause for late filing is shown. Good 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.
Appellant filed an administrative appeal with the Board by letter of August 23, 2012. To justify the late filing, appellant explained that he was mistakenly directed to mail the appeal to the Appeal Tribunal rather than the Board, which he did on July 30, 2012, as evidenced by the date of his letter directed to the Appeal Tribunal and the postmark on that letter. Out of leniency, the Board considered his appeal filed as of July 30, 2012, rather than the August 23, 2012 date on which it actually received appellant's appeal. However, even accepting the July 30 date, the appeal was nonetheless late as it had to be postmarked or received on or before July 23, 2012, in order to be considered timely. N.J.S.A. 43:21-6(c); N.J.A.C. 12:20-4.1(c). Consequently, the Board dismissed the appeal for late filing pursuant to N.J.S.A. 43:21-6(c).
July 22, 2012, fell on a Sunday. When computing the time for an appeal, if the final day of the period is a Saturday, Sunday or legal holiday, the time to file is extended to the next business day. N.J.A.C. 12:20-4.1(b).
This appeal followed.
Our scope of review of an agency's decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's determination, the appellant carries a substantial burden of persuasion, and the conclusion by the administrative agency carries a strong presumption of reasonableness. Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also "accord substantial deference to the [interpretation] given to a statute by the agency charged with enforcing that statute." Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996). We will reverse the agency's decision only if we find that "it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978).
The administrative appeal deadlines mandated by the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.4, are binding so long as they comport with due process by allowing those who have a right to appeal the time to exercise that right. Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992). A rigid approach to absolute appeal periods, to satisfy due process concerns, must be tempered by the allowance for good cause exception. Id. at 586, 590. To this end, the Board has promulgated a regulation establishing factors that constitute good cause for a late appeal. N.J.A.C. 12:20-4.1(h) states:
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.
Here, we are satisfied that appellant received the process due in that he was adequately apprised of the appeal deadline and requirements, yet failed to file a timely appeal. In fact, his erroneous filing with the Appeal Tribunal instead of the Board was itself untimely, as it was postmarked seven days beyond the twenty-day statutorily imposed deadline. Appellant has offered no excuse for this delay and has failed to show that circumstances beyond his control, which could not be reasonably foreseen or prevented, caused him to file late. Consequently, absent any showing of good cause, appellant's failure to file within the statutorily imposed deadline warrants dismissal of his administrative appeal to 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