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McMahon v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 12, 2009

PATRICK I. MCMAHON, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, AND TRUGREEN, LP, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 168,529.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2009

Before Judges Wefing and LeWinn.

Petitioner appeals from a Final Decision of the Board of Review affirming an Appeal Tribunal decision dismissing his appeal as untimely. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Petitioner worked for a lawn care company for a period of several years. During the winter months, when he was not working, he applied for and received unemployment compensation. Eventually, there was a determination that he had received benefits on the basis of misrepresentations. Two notifications were sent to him, one for a claim dated January 23, 2005, and one for a claim dated October 22, 2006. Both notices were dated September 18, 2007, and informed him that he was disqualified for benefits for a period of one year. They also informed him that he was required to refund the benefits he had received and pay a fine totaling $1096. The notice informed him that if he intended to appeal this determination, he had to do so within ten days after the mailing, or by September 28, 2007.

Petitioner did not file his appeal by September 28, 2007. He filed it on November 6, 2007, more than one month past the deadline.

The Appeal Tribunal conducted a hearing on December 27, 2007. During the course of that hearing, the examiner asked petitioner when he received these determinations and he responded, "Maybe a week and a half after that."

The Appeal Tribunal issued its decision the following day, December 28, 2007. The decision dismissed petitioner's appeal as untimely, noting that no explanation had been provided for delay of nearly one month in filing an appeal. Petitioner then appealed to the Board of Review, which affirmed the Appeal Tribunal.

Petitioner contends in his brief, as he did at oral argument, that the reason he did not file a timely appeal is that he did not receive the September 18, 2007, notifications. This, however, is at clear odds with his sworn testimony before the Appeal Tribunal. Petitioner asserted at oral argument that he had been mistaken in his testimony because he did not understand which notices the examiner was referring to. He said the hearing took place over the telephone, although he was right outside, and that the examiner would not let him come in to testify in person.

This assertion is not supported by the transcript of the hearing, however. There is no indication that he ever requested to enter and appear in person.

Further, there is no indication in the record before us that petitioner asserted to the Board of Review that he had misunderstood the examiner's question and thus had given an inaccurate answer. Nor is there any indication in the record that petitioner sought reconsideration from the Board of Review on that basis.

A final decision of an administrative body such as the Board of Review should not be disturbed on appeal unless it is arbitrary, capricious or unreasonable. Karins v. City of Atlantic City, 152 N.J. 532, 540 (1998). An appellate court should undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). The agency's findings should be affirmed if they "'could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole' . . . with due regard also to the agency's expertise . . . ." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We are in no position to make new findings or to permit petitioner to make arguments he did not make below. We must accept the record as it is presented to us. In that posture, we are constrained to affirm.

Affirmed.

20090312

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