On appeal from the Board of Review, Department of Labor, Docket No. 229,359.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Maven and Carchman.
Appellant Alfredo Ray Carratala appeals from a final agency decision of the Board of Review (Board), Department of Labor, dismissing his claim for unemployment compensation benefits. In its decision, the Board rejected appellant's administrative appeal of the adverse ruling by the Appeal Tribunal because he failed to file that appeal within the strict time frame prescribed by N.J.S.A. 43:21-6(c) and N.J.A.C. 12:20-4.1(a). We affirm.
On April 13, 2009, the Department of Labor mailed the determination of the deputy claims examiner to appellant notifying him that, pursuant to N.J.S.A. 43:21-5(b), he was disqualified for unemployment benefits he claimed for the period of February 22, 2009 through April 4, 2009, on the ground that he was discharged for misconduct connected with the workplace.
Appellant filed an appeal of the deputy's determination on May 1, 2009. The Appeal Tribunal conducted a telephone hearing on June 22, 2009, during which time appellant explained that he had not filed earlier because he was looking for work. In a written decision, the Appeal Tribunal denied his appeal. The decision stated, "The appeal is dismissed as it was not filed within the period allowed under N.J.S.A. 43:21-6(b)(1), and good cause has not been shown for filing late." Attached to the decision was a notice stating in part that, "IMPORTANT: This decision will become final, unless, within ten (10) days of the date of mailing or notification, a written appeal is filed with the Board of Review, Department of Labor . . . ." The date the Appeal Tribunal's decision was mailed to appellant, July 1, 2009, was clearly indicated on the front page.
By letter postmarked May 12, 2010, appellant filed an appeal of the decision of the Appeal Tribunal with the Board. He indicated that he had received the decision of the Appeal Tribunal, but, due to unsuccessful employment searches and financial challenges, he chose to further his education. His statement gave no reason for filing his appeal beyond the tenday time period indicated in the notice. The Board issued a written decision on October 2, 2010, dismissing appellant's appeal as untimely filed. This appeal followed.
N.J.S.A. 43:21-6 sets forth the procedure for applying for unemployment benefits and appealing an adverse decision. In relevant part, subsection (c)*fn1 of that statute provides:
The parties shall be duly notified of [the Appeal] tribunal's decision, together with its reasons therefor, which shall be deemed to be the final decision of the board of review, unless within 10 days after the date of notification or mailing of such decision, further appeal is initiated [to the Board of Review].
The ten-day deadline for filing an appeal is mandatory. Lowden v. Bd. of Review, 78 N.J. Super. 467 (App. Div. 1963); see also Von Ouhl v. Bd. of Review, 254 N.J. Super. 147, 151 (App. Div.), certif. denied, 130 N.J. 10 (1992) (decision of Appeal Tribunal is final if appeal is not initiated within ten days). However, in Rivera v. Bd. of Review, 127 N.J. 578, 586 (1992), the Supreme Court held that exceptions to the deadline must be permitted to protect an appellant's right to due process. After Rivera, the Department of Labor promulgated a regulation allowing a good cause exception for late appeals. N.J.A.C. 12:20-3.1(i) provides:
A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. 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
2. The appellant delayed filing the appeal for circumstances which could not have been ...