July 14, 2008
WALTER CONDOR, APPELLANT,
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND MARINA DISTRICT DEVELOPMENT CO. BORGATA HOTEL, CASINO & SPA, RESPONDENTS.
On appeal from the Board of Review, Department of Labor, Docket No. 150,969.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: July 1, 2008
Before Judges Cuff and Fuentes.
In this appeal, we review a final decision of the Board of Review holding claimant Walter Condor's appeal of the denial of his claim for unemployment benefits was untimely. We affirm.
Claimant was last employed as a casino dealer by respondent, Borgata Hotel Casino & Spa. When Condor was terminated on April 1, 2007, he filed a claim for unemployment benefits effective April 8, 2007. A determination by the Deputy Director (Deputy) of the Division of Unemployment Insurance, mailed on April 27, 2007, held Condor disqualified for benefits pursuant to N.J.S.A. 43:21-5(b) because he was discharged for gross misconduct connected with the work. Under N.J.S.A. 43:21-6(b)(1), the Deputy's determination becomes final unless the claimant files an appeal within seven calendar days after delivery of notification of the determination or within ten calendar days after notification was mailed to his last known address. The determination was mailed to Condor on April 27, 2007. Any appeal was due no later than May 7, 2007. Condor did not file his appeal with the Appeal Tribunal until May 17, 2007, which was ten days out of time. Thereafter, a hearing was held by the Appeal Tribunal on June 19, 2007.
April 27, 2007 was a Friday. Condor testified that he did not recall the exact date he received the determination, but it was between Monday and Tuesday of the following week, or not later than May 1, 2007. Condor was not aware of the ten-day deadline because he did not read that section of the determination which explained his rights to appeal. Condor stated that he was more interested in reading the results of the determination in which he was disqualified for unemployment benefits.
The Appeal Tribunal dismissed Condor's appeal as untimely pursuant to N.J.S.A. 43:21-6(b)(1), concluding that he had not shown good cause for the late filing. In reaching its decision, the Tribunal found that Condor received the determination on May 1, 2007, at the latest, but he "did not fully read the determination and was unaware of his appeal rights." Condor appealed the Tribunal's decision to the Board of Review and the Board affirmed.
The New Jersey Unemployment Compensation Law provides that:
Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final . . . .
An appeal is considered timely if it is postmarked or received by the due date. N.J.A.C. 12:20-3.1(d). The Deputy's determination was mailed to Condor on April 27, 2007. Thus, any appeal must have been filed, either postmarked or received, by May 7, 2007. N.J.S.A. 43:21-6(b)(1); N.J.A.C. 12:20-3.1(h); N.J.A.C. 12:20-3.1(d).*fn1 However, Condor did not appeal until May 17, 2007, which was ten days late. Consequently, the Board was correct in dismissing the appeal as untimely.
In Rivera v. Board of Review, 127 N.J. 578, 586 (1992), the Supreme Court held that the appeal period set forth in the statute for appeals from demands by the Department of Labor for repayment of benefits is not jurisdictional. Although the Court addressed the appeal period set forth in N.J.S.A. 43:21-16(d), its reasoning applies as well to those sections of the law in which other appeal periods are set forth, including N.J.S.A. 43:21-6(b)(1), upon which the Board based its decision in this case. In Rivera, the Court held that where statutory appeal periods do not ensure adequate notice, the due process rights of claimants must be considered and that, in certain circumstances, a "good cause" exception to the statutory appeal period may exist. Id. at 590.
Since the Supreme Court's decision in Rivera, the Division has adopted a regulation defining "good cause" for the filing of late appeals. N.J.A.C. 12:20-3.1(i). "Good cause" may be found and an appeal may thus be considered on its merits in a case where it is shown that the delay in filing of the appeal was due to circumstances beyond the control of the appellant, or in circumstances which could not have been reasonably foreseen or prevented. N.J.A.C. 12:20-3.1(i)1-2.
When the reasoning in Rivera, supra, is applied to the facts of this case, it is clear that Condor's due process rights were not violated and that he is not entitled to a "good cause" exception to the statutory appeal period. 127 N.J. 589-90. The determination was mailed to Condor on April 27, 2007, and he received it no later than May 1, 2007, which was sufficient time for him to meet the deadline. Condor did not file a timely appeal because he neglected to read the entire determination. Moreover, Condor did not claim below, nor has he claimed on appeal, that he did not have ample time in which to meet the statutory filing deadline. Thus, the "good cause" exception to the statutory appeal period is not implicated here. The Appeal Tribunal and the Board correctly determined that Condor did not demonstrate good cause for his late appeal. N.J.A.C. 12:20-3.1(i)1-2.