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Smith-Pagan v. Board of Review


June 16, 2008


On appeal from the Board of Review, Department of Labor, Docket No. 135,582.

Per curiam.


Submitted May 14, 2008

Before Judges Lisa and Sapp-Peterson.

Appellant was denied unemployment benefits because she failed to earn six times her previous weekly benefit in four weeks of employment since her previous unemployment benefit claim was filed. See N.J.S.A. 43:21-4(e)(6). Notice of denial was mailed to her on November 16, 2006. The notice informed appellant of her right to appeal and that her appeal must be postmarked or received within seven days after delivery of the notice or within ten days of the date of mailing of the notice. Appellant filed an appeal on December 18, 2006.

On February 1, 2007, the Appeal Tribunal conducted a hearing. Appellant gave as her reason for the late filing that she did not remember when she received the notice of denial of benefits and she was generally unfamiliar with the applicable rules, regulations and procedures to be followed in such cases.

On February 20, 2007, the Appeal Tribunal dismissed the appeal as untimely. See N.J.S.A. 43:21-6(b)(1). The Appeal Tribunal found that appellant failed to show good cause for the late filing. The notice of decision issued by the Appeal Tribunal informed appellant of the right to appeal to the Board of Review (Board) within ten days of the mailing date. The notice stated that absent a filing within the ten days or a showing of good cause for extension of the filing date, the decision would become final.

Appellant filed an appeal with the Board, which was dated and mailed on March 7, 2007, five days late. Appellant submitted an additional letter to the Board on March 15, 2007. She stated she was not represented by counsel, did not have a full understanding of the required procedures, and was busy seeking employment and attending to family matters.

The Board issued its final decision on April 3, 2007, dismissing the appeal as untimely. The Board also found that appellant failed to establish good cause for the late filing. This appeal followed.

Our review is of the final decision of the administrative agency, namely the Board. R. 2:2-3(a)(2). Although appellant has filed with us significant documentation tending to support her underlying substantive claim, the only issue before us is whether the Board acted arbitrarily, capriciously or unreasonably in dismissing her appeal as untimely.

An administrative appeal to the Board must be filed within ten days of notice or mailing of the Appeal Tribunal decision, in default of which the decision becomes final. N.J.S.A. 43:21-6(c). An exception exists if a claimant demonstrates good cause for the late filing. Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992). Good cause requires a showing that the filing delay was due to circumstances beyond the appellant's control or which could not have been reasonably foreseen or prevented by the appellant. N.J.A.C. 12:20-4.1(h).

We will not upset the determination of an agency unless it is shown that it was arbitrary, capricious or unreasonable, or that the findings on which the decision was based were not supported by substantial credible evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). It is undisputed that appellant's administrative appeal to the Board was filed beyond the ten-day statutory filing deadline. We are satisfied from our review of the record that the Board's finding that appellant failed to establish good cause for the late filing is amply supported by substantial credible evidence in the record. Dismissal of the appeal as untimely, therefore, was not arbitrary, capricious, or unreasonable.

We also note that after the date on which the appeal to this court was submitted for disposition, appellant filed a motion for leave to file a reply brief as if within time. We granted the motion, and we have received and considered the reply brief. As with appellant's earlier submissions in the administrative proceedings and before us, appellant has included significant documentation pertaining to her underlying substantive claim. However, she sheds no new light on the reason for her late filing of the administrative appeal to the Board. On this subject, appellant stated in her reply brief: "The Board incorrectly dismissed Yvette S. Smith-Pagan's appeal filed within the time frame due to appellant is preparing paperwork Pro Se the appellate court should reverse there decision due to hardships'. Lack of knowledge and amount of time the may have lapse from the appellant time-frame to receive mail from appellant P.O. Box, Philadelphia PA."

The Board's decision was in accordance with the governing law, was supported by the record and was reasonable. We therefore have no occasion to interfere.



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