Opinion
DOCKET NO. A-5616-13T4
05-04-2016
ELVIN E. PETERS, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and NEW JERSEY TRANSIT BUS OPERATIONS, Respondents.
The Abraham Law Firm, LLC, attorneys for appellant (Markis M. Abraham, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent New Jersey Transit Bus Operations has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Haas. On appeal from the Board of Review, Department of Labor, Docket No. 443,281. The Abraham Law Firm, LLC, attorneys for appellant (Markis M. Abraham, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent Board of Review (Melissa H. Raksa, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent New Jersey Transit Bus Operations has not filed a brief. PER CURIAM
Appellant Elvin Peters appeals from a final determination of the Board of Review, affirming the Appeal Tribunal's dismissal of his administrative appeal from an initial denial of his unemployment benefits claim as untimely pursuant to N.J.S.A. 43:21-6(b)(1). We affirm.
Appellant worked for approximately two years as a bus driver for New Jersey Transit (NJT). Following his involvement in eight accidents during that two-year period, NJT terminated appellant from employment in March 2013. He filed a claim for unemployment compensation benefits on August 4, 2013. In a decision mailed to appellant on September 6, 2013, a Deputy Director of the Division of Unemployment Insurance found appellant disqualified for benefits under N.J.S.A. 43:21-5(b) on the ground that he had been discharged for severe misconduct connected with the work.
In pertinent part, N.J.S.A. 43:21-6(b)(1) states:
Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within [ten] calendar days after such notification was mailed to his or their last-known address and addresses, files an appeal from such decision, such decision shall be final . . . .As noted, the Deputy mailed the determination to appellant on September 6, 2013. However, he did not file an appeal to the Appeal Tribunal until October 22, 2013.
The Appeal Tribunal conducted an administrative hearing on December 20, 2013. Appellant testified that he received the Deputy's determination no later than September 13, 2013. Pursuant to N.J.S.A. 43:21-6(b)(1), appellant had seven days to file his appeal from that date and it was therefore due on September 20, 2013. Thus, his October 22, 2013 appeal was thirty-two days late. Appellant attempted to explain his late appeal by asserting that an unnamed union representative and someone from the unemployment office told him that he needed "witnesses" if he wanted to appeal. Appellant claimed that one of his "witnesses" was in Canada and was not available to provide him with a written statement supporting his appeal until well after the statutory deadline had passed.
In a decision mailed to appellant on December 23, 2013, the Appeal Tribunal found that appellant's appeal was untimely under N.J.S.A. 43:21-6(b)(1), and that appellant did not demonstrate good cause to excuse the delay. Appellant filed an appeal of this determination to the Board of Review. On June 6, 2014, the Board affirmed the Appeal Tribunal's decision. This appeal followed.
On appeal, appellant argues that "[t]he decision to dismiss [his] appeal should be reversed because [he] demonstrated good cause for filing his appeal late." We disagree.
The scope of our review of an appeal from a final determination of the Board of Review is strictly limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). The Board's decision may not be disturbed unless it is shown to be "arbitrary, capricious, or unreasonable[.]" Ibid. We can only intervene "in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
The administrative deadlines mandated by the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-1 to -71, are binding so long as they comport with due process by allowing those who have a right to appeal the time to exercise that right. See Rivera v. Bd. of Review, 127 N.J. 578, 590 (1992). In Rivera, the Supreme Court established that, in certain circumstances, a "good cause" exception to the time limitation on filing unemployment compensation appeals should be employed. Ibid. Subsequently, the Board promulgated a regulation establishing the factors to be considered in determining good cause. N.J.A.C. 12:20-4.1(h). That regulation states:
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 reasonably foreseen or prevented.
Here, we are satisfied that appellant received the process due in that he was adequately apprised of the appeal deadline and requirements, yet failed to file a timely appeal. Appellant's claim that he was waiting to obtain a statement from a witness before filing his appeal was unsupportable in light of the notice itself, which required any appeal to be submitted within seven days of receipt of the denial of benefits. Thus, appellant has failed to show that circumstances beyond his control, which could not be reasonably be foreseen or prevented, caused him to file his appeal late. Consequently, absent any showing of good cause, appellant's failure to file within the statutorily-imposed deadline warranted the dismissal of his administrative appeal by the Appeal Tribunal, and the Board's subsequent affirmance of that decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION