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Jose A. Oliveras, Sr v. Board of Review and Mercury Lighting Products Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 24, 2011

JOSE A. OLIVERAS, SR., APPELLANT,
v.
BOARD OF REVIEW AND MERCURY LIGHTING PRODUCTS CO., INC., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 231,356.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2011 - Decided Before Judges Parrillo and Skillman.

Claimant Jose Oliveras appeals from a final decision of the Board of Review (Board) affirming the Appeal Tribunal's dismissal of his appeal because it was filed untimely with no good cause having been shown, N.J.S.A. 43:21-6(b)(1). We affirm.

Oliveras filed a claim for unemployment benefits, which was denied on February 13, 2009 by a deputy to the Director, Division of Unemployment Insurance, who determined that Oliveras was disqualified because he left work voluntarily without good cause attributable to the work. Almost three months later, in a mailing post-marked May 12, 2009, Oliveras filed a late appeal of this determination.

A telephone hearing was conducted on August 11, 2009, at which time Oliveras testified that the only reason that he did not file the appeal earlier was because he was trying to secure a resolution between himself and his former employer, respondent, Mercury Lighting Products Co., Inc., through his union. Pursuant to N.J.S.A. 43:21-6(b)(1), the Appeal Tribunal dismissed Oliveras' appeal because it was filed untimely with no good cause having been shown.

Oliveras then filed an administrative appeal of the Appeal Tribunal decision. The Board of Review held that the appeal was properly dismissed in accordance with N.J.S.A. 43:21-6(b)(1) because no good cause was shown for the late filing. This appeal follows.

The New Jersey Unemployment Compensation Law provides that an administrative appeal must be filed within ten days of the mailing of the initial determination, or within seven days of the receipt of the initial determination. N.J.S.A. 43:21-6(b)(1). N.J.A.C. 12:20-4.1(c) further provides that "[t]he date on which an appeal is filed is the date of the postmark, or in the event that the postmark is missing, the date of receipt by an office or employee of the Department of Labor and Workforce Development authorized to accept appeals."

There is a "good cause" exception to the statutory appeal period, Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992), affording the Board limited discretion to extend the appeal period in certain circumstances. Thus, N.J.A.C. 12:20-3.1(i) provides:

Good cause exists in circumstances where it is shown that:

1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or

Here, the only excuse for the late filing proffered is that Oliveras was awaiting resolution of his employment status through union negotiations with respondent. However, the resultant delay was neither beyond claimant's control nor due to unforeseeable circumstances. Having failed to demonstrate justification for the delay in filing, Oliveras' administrative appeal was properly dismissed by the Appeal Tribunal and, ultimately, the Board. We discern no basis to disturb the Board's determination.

2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

Affirmed.

20110224

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