On appeal from the Board of Review, Department of Labor, Docket No. 212,463.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Sapp-Peterson and Espinosa.
Appellant Jared Levy appeals from a final decision of the Board of Review of the Department of Labor (the Board) that dismissed his appeal as untimely. We affirm.
Appellant filed a claim for unemployment benefits on October 5, 2008. On October 8, 2008, the Department of Labor Unemployment Insurance Office mailed a Notice of Benefit Determination to him, which stated that the claim for benefits was valid, with a weekly benefit rate of $560 and a maximum benefit amount of $3,920. The Notice contained a provision titled "Right of Appeal" which stated:
If you disagree with this determination you may file an appeal with the local claims office listed at the top of this form. Your appeal must be received or postmarked within seven days after delivery or ten days after the date of this notice as shown in Item 7. The appeal period will only be extended if good cause for late filing is shown. [(Emphasis added).]
"Item 7" identified the date of mailing as October 8, 2008. Therefore, the Notice specifically advised appellant that an appeal had to be filed within seven days of his receipt or no later than October 18, 2008 (ten days after the mailing date).
The testimony presented at the subsequent hearing before the Appeal Tribunal can be summarized as follows.
Appellant testified that he received the Benefit Determination "about three or four days after" it was mailed to him. He further testified
I remember vividly, after I received it, I called in and they gave me an address to send the appeal and I sent it out on October 23rd. The first request for an appeal. [(Emphasis added).]
He called the Department of Labor on November 13, 2008 to inquire as to the status of his appeal and was told that there was no record of his appeal. He was told that he could fax his appeal and did so. He called again on December 2, 2008 and was again told that there was no record of an appeal. He faxed his appeal a second time.
In its decision, the Appeal Tribunal found that appellant filed an appeal on October 23, 2008 and that he was credited with an appeal on December 18, 2008. Although the Appeal Tribunal dismissed the appeal as untimely, it nonetheless expressed the opinion that the Benefit Determination was in accord with N.J.S.A. 43:21-19(c). The Board affirmed the Appeal Tribunal's dismissal of the appeal as untimely and also noted that "if we had ...