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Castillo v. Board of Review

August 10, 2010

MARIA CASTILLO, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND CONTINENTAL AUTO PARTS, L.L.C., RESPONDENTS.



On appeal from the Board of Review, Department of Labor, Docket No. 227,133.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 25, 2010

Before Judges Wefing and LeWinn.

On March 1, 2009, appellant filed a claim for unemployment benefits upon leaving her employment with Continental Auto Parts, L.L.C. (Continental). On April 1, 2009, the Deputy Director of the Division of Unemployment Insurance mailed a Notice of Determination to appellant advising that she had been found disqualified for benefits because she "left [her] job voluntarily to move out of the area." This notice advised appellant of her right to appeal, as follows:

ANY APPEAL FROM THIS DETERMINATION MUST BE SUBMITTED IN WRITING WITHIN 7 DAYS AFTER DELIVERY OR WITHIN 10 DAYS AFTER THE DATE OF MAILING. THE TENTH DAY AFTER THE DAY OF MAILING IS:

4/13/09

Appellant mailed her appeal to the Appeal Tribunal on April 14, 2009, one day beyond the deadline stated in the Notice of Determination.

A hearing was held before the Appeal Tribunal on May 11, 2009. Appellant testified that she was employed by Continental from June 20, 2007 to February 25, 2009. Her job was delivering auto parts to customers, using a company van. In August 2008, while still employed with Continental, appellant moved to Pennsylvania and her employer gave her a Pennsylvania route.

In January 2009, appellant's employer advised her that the Pennsylvania route would be eliminated. She was given the position of a "back-up driver," working out of the company's Elizabeth, New Jersey office. Her salary and the commissions she earned were reduced as a result.

Appellant acknowledged that she voluntarily left because of the reduction in pay and the commute. She further acknowledged that if her rate of pay "had been cut but [she] remained with the same old route and the same full time hours," she would not have left employment at Continental.

Appellant testified that she could not recall the exact date on which she received the Notice of Determination declaring her ineligible for unemployment benefits; however, she stated that the "latest" she would have received that notice would have been April 4, 2009. She explained that when she received the notice she "wrote the letter" but did not have a "computer or printer at home." She needed to go to the public library to type her letter on a computer; the library was about forty minutes away, and she was still familiarizing herself with the area, notwithstanding that she had moved there the previous August.

On May 14, 2009, the Appeal Tribunal issued a decision dismissing her appeal for failing to file within the required time period. The decision included the following findings of fact:

The Deputy mailed a determination to the appellant's address of record on 04/01/2009. The [appellant] received the determination on 04/04/2009. The [appellant] filed an appeal on 04/14/2009. The appeal was not ...


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