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Maguire v. Board of Review

May 29, 2007

KEVIN MAGUIRE, PETITIONER-APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, RESPONDENT-RESPONDENT, AND EXTENSIS, INC. T/A RUGS & RIFFY, RESPONDENT.



On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development Docket No. BR-65103.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2007

Before Judges Weissbard and Payne.

Petitioner, Kevin Maguire, appeals from a final decision of the Board of Review dismissing his appeal from a demand for repayment of benefits on account of fraud as untimely. On appeal, petitioner claims that he was not afforded a sufficient opportunity to prove good cause for missing the deadline on his appeal, that good cause existed, that the deadline should be waived, and that if a substantive hearing were held, he would prevail. Additionally, he challenges the penalty imposed on him.

The record discloses that, effective April 12, 2003, petitioner received unemployment benefits at a weekly rate of $482. Following an investigation, by notice mailed on November 10, 2004, the Director of the Division of Unemployment Insurance notified petitioner that, pursuant to N.J.S.A. 43:21-5 and 43:21-16(d), as the result of petitioner's fraudulent misrepresentation, he was disqualified from receipt of benefits for a period of one year; the benefits fraudulently received in the period from April 12, 2003 to January 3, 2004 must be refunded; and a fine of $4,570 had been imposed. The total debt was stated to be $22,850. Petitioner was further advised that if he disagreed with the Director's determinations, he was required to file a written appeal and mail it to a specified address within seven days after delivery of the Director's notice or within ten days of the mailing of that notice.

Petitioner did not comply with the time period for appeal set forth in the notice, but instead submitted his appeal on February 3, 2005. In it, he stated:

When I applied for U.P. I reported my part time job. I was told that I was still able to collect full benefits. I reported what my pay check was every pay period.

A hearing was held by telephone on April 6, 2005, at which time petitioner testified both as to the reason for the late filing of his appeal and as to the merits. In a decision of the Appeal Tribunal, issued on April 6, 2005, the Tribunal found as fact that:

The Director mailed a determination to the appellant's address of record on 11/10/04.

The claimant received the determination and more than seven (7) days after his receipt of the determination, he filed his appeal on 02/03/05. The appeal was not filed earlier because he was waiting to speak to his accountant regarding the refund, he just started a new job and was busy with personal matters and prior to the determination being issued he received numerous correspondence from the unemployment office to which he always responded.

After considering this evidence, the Tribunal concluded that petitioner had not met the time limitations for filing an appeal established by N.J.S.A. 43:21-6(b)(1),*fn1 and that he had failed to show good cause for his late filing. The appeal was thus dismissed. The Tribunal further found that, having dismissed the appeal, it lacked jurisdiction to rule on the merits of petitioner's substantive arguments. The Appeal Tribunal's determination was affirmed in a final decision of the Board of Review dated May 10, 2005.

Our review of the record satisfies us that petitioner was given a sufficient opportunity to demonstrate good cause for his delay in appealing, and that the Board's final decision that good cause had not been established was fully supported by the evidence presented. Zielenski v. Bd. of Review, 85 N.J. Super. 46, 54 (App. Div. 1964).

At the hearing, petitioner admitted to receipt of the Director's Determination and Demand for Refund, and although he did not remember when receipt occurred, he agreed that he had received the Determination in November 2004.*fn2 Petitioner did nothing until February 2005, when advised to appeal by his tax accountant. His only excuses for the delay were that he commenced a new position in sales at CMS Communications on November 30, 2004,*fn3 the holidays then occurred, and "[i]t was just very hectic." After acknowledging receipt ...


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