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Levy v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2010

JARED C. LEVY, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND SPHERION ATLANTIC ENTERPRISES, LLC, RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 212,463.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 jurisdiction to decide this matter on the merits, we would affirm the deputy's determination of monetary entitlement."

Appellant argues the following point on appeal:

POINT I.

THE BOARD OF REVIEWS'S [SIC] DECISION THAT THE CLAIMANT'S SUBMISSION OF HIS CLAIM IS ERRONEOUS BECAUSE (1) ANY LACK OF PUNCTUALITY IN THIS MATTER WAS ENTIRELY BEYOND CLAIMANT'S CONTROL, AND (2) CLAIMANT MADE DUE DILIGENCE TO PROCESS HIS APPEAL, (3) CLAIMANT REASONABL[Y] RELIED, TO HIS DETRIMENT, ON THE ADVICE [OF] REPRESENTA[T]IVES [OF] THE APPEAL TRIBUNAL, AND (4) CLAIMANT WAS NOT GIVEN REASONABLE NOTICE OF RELEVANT AND AVAILABLE OPTIONS THAT WOULD HAVE IMPROVED HIS SITUATION IF ONLY HE WERE GIVEN SUCH NOTICE.

Our review of a final decision of an administrative agency is limited. In the absence of "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[,]" the decision will be sustained. In re Herrmann, 192 N.J. 19, 27-28 (2007); see also Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

According to his testimony at the hearing, appellant took no action to appeal until he placed the call to the Department of Labor on October 23, 2008 and sent the appeal out that day.*fn1

Because an appeal is deemed filed on the day that it is mailed, N.J.A.C. 12:20-3.1(d), we deem his appeal filed on October 23, 2008 even though he was not "credited with" an appeal until December 18, 2008.

N.J.S.A. 43:21-6(b)(1) provides that an initial determination of benefits shall be final unless the claimant files an appeal within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to [him.]

[(Emphasis added).]

Since appellant testified that he received the initial determination "about three or four days after" it was mailed on October 8, it is reasonable to conclude that he received it by October 12, 2008. Therefore, N.J.S.A. 43:21-6(b)(1) required him to file his appeal no later than October 19, 2008. Because appellant did not file his appeal until October 23, 2008, the initial determination of benefits became final.

Although appellant has expressed understandable frustration with the failure to credit his appeal earlier, he has presented no good cause to excuse his own tardiness in filing the appeal no earlier than October 23, 2008. Accordingly, the Board properly dismissed his appeal as untimely.

Affirmed.


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