January 15, 2008
ALBERT R. CAVILEER, APPELLANT,
BOARD OF REVIEW, RESPONDENT.
On appeal from the Board of Review, Department of Labor, Docket No. 102,680.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Collester and Miniman.
Claimant Albert R. Cavileer appeals from final agency action by the Board of Review dismissing his untimely appeal from a re-determination of his unemployment benefits.
In 2004 claimant held two part-time jobs, one as a custodian for Hiasun, Inc. and the other as a technician with Macquarie Aviation. During that year he was laid off by Hiasun but continued to work for Macquarie part-time until 2005 when he became a full-time employee.
When an individual has two jobs and becomes unemployed from one, the unemployment benefit is calculated on the basis of the job lost with no regard to wages from the job retained. See N.J.S.A. 43:21-3. However, in this instance, the Division of Unemployment erroneously calculated claimant's weekly benefit based on his annual income from both employers, which resulted in a maximum benefit of $12,610 at a weekly benefit rate of $485. Claimant received benefits in this amount from October 9, 2004 through April 16, 2005 while continuing his part-time work with Macquarie until April 2005, when he began working there full-time.
On January 31, 2006 the Division recognized its error after Macquarie protested because the claimant was working part-time when he filed his claim for unemployment benefits. The Division then recalculated the benefits by removing the base wages from Macquarie, which reduced the weekly benefit to $347 and a maximum benefit to $9,022. As a result, the Division determined that claimant was overpaid benefits in the amount of $4,648. Claimant disagreed with the re-determination and filed an appeal. Following a hearing on March 8, 2006, the Appeal Tribunal upheld the Division's re-determination of benefits. Attached to the decision was a printed form stating:
Important. This decision will become final unless, within ten (10) 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.
Please specify the reason for your appeal, and if possible, attach a copy of this decision.
On March 27, 2006, nineteen days after the Appeal Tribunal decision was mailed, a letter was sent to the Division by Macquarie on behalf of claimant requesting "full recovery of the overpayment of $4,648 for our employee Albert Cavileer." The letter was treated as an appeal from the Appeal Tribunal decision to the Board of Review. On May 8, 2006, the Board dismissed claimant's appeal on grounds the notice of appeal in the form of Macquarie's letter was submitted nineteen days after the Appeal Tribunal's decision and thereby failed to meet the ten day limitation for appeal to the Board as mandated by N.J.S.A. 43:21-6(c). Claimant now appeals to this court.
In Rivera v. Board of Review, 127 N.J. 578, 586 (1992), the Supreme Court held that the statutory appeal period was not jurisdictional and that in certain circumstances good cause may exist to extend the time period in order to "assure that those who have a right of appeal are afforded the time to exercise that right." Rivera, supra, 127 N.J. at 590. The good cause exception was codified in N.J.A.C. 12:20-3.1, which specified that a good cause may be found under the following circumstances:
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. [N.J.A.C. 12:20-3.1(h).]
Since the employer's letter of March 27, 2006 was nine days beyond the expiration of the statutory ten-day period, it was necessary for the claimant to make a showing of good cause as defined by N.J.A.C. 12:20-3.1(h). However, there was no such showing. Therefore, the Board of Review's dismissal of claimant's untimely appeal was not arbitrary, capricious, or contrary to law.*fn1