JO-LEO W. CARNEY-WATERTON v. BOARD OF REVIEW, DEPARTMENT OF LABOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2953-04T32953-04T3

JO-LEO W. CARNEY-WATERTON,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and THE NEWARK

BOARD OF EDUCATION,

Respondents-Respondents.

 

Submitted October 18, 2005 - Decided

Before Judges Kestin and Hoens.

On appeal from the Board of Review, Department of Labor, Docket No. 42,062.

Jo-Leo W. Carney-Waterton, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Jennifer B. Pitre, Deputy Attorney General, on the brief).

Respondent Newark Board of Education did not file a brief.

PER CURIAM

Jo-Leo W. Carney-Waterton appeals from the Board of Review's affirmance of the denial of his claim for unemployment compensation benefits. We remand.

Carney-Waterton worked for the Newark Board of Education as a substitute teacher beginning in October 2003. When the school year ended on June 29, 2004, Carney-Waterton was told that he would be included on the roster of substitute teachers for the following academic year. Nevertheless, on June 27, 2004, he filed a claim for unemployment benefits, contending that there was no guarantee that he would be employed during the next year.

Prior to the end of the academic year, however, Carney-Waterton had decided to pursue a law degree and had applied for admission to an undisclosed number of law schools. On July 5, 2004, Carney-Waterton learned that he had been accepted as a student by a law school located in Louisiana and he decided to attend that program.

Carney-Waterton's unemployment compensation claim was denied in a decision dated July 26, 2004. The notice of that determination was mailed to Carney-Waterton at a Newark street address, where he had resided while working for the Newark Board of Education and which he had used when filing his claim. On July 30, 2004, Carney-Waterton timely filed his appeal to the Appeal Tribunal, using the same street address in Newark. On August 26, 2004, he participated in a hearing in connection with that appeal by telephone. By decision dated September 3, 2004, the Appeal Tribunal affirmed the initial determination that Carney-Waterton was ineligible for benefits. That decision was also mailed to Carney-Waterton at the same Newark address as had been used previously.

On October 29, 2004, Carney-Waterton filed his appeal to the Board of Review. The notice that he used for that appeal utilized two mailing addresses, each of which was different from the Newark street address that he had used in filing his original claim and appeal and to which the previous decisions had been sent. In particular, he stated that he had moved to Baton Rouge, Louisiana in August 2004 and he also gave an address in Blackwood, New Jersey that he was using as a mailing address.

The Board of Review noted that the Appeal Tribunal's decision had been mailed on September 3, 2004, and that the appeal was required to be filed within ten days thereof. See N.J.S.A. 43:21-6(c). Because the appeal was not filed until October 29, 2004, the Board of Review dismissed it, concluding that it had not been timely filed and that Carney-Waterton had failed to demonstrate good cause for the late filing.

Although Carney-Waterton raises a number of substantive arguments as a part of this appeal, we are limited to an analysis of whether the Board of Review's dismissal of the appeal based on timeliness was arbitrary or capricious. See Brady v. Board of Review, 152 N.J. 197, 210-11 (1997); Von Ouhl v. Board of Review, 254 N.J. Super. 147, 151 (App. Div. 1992). As to the timeliness issue, if the Appeal Tribunal sent its decision to the last known address it had for Carney-Waterton, any delay that resulted from his having moved would not excuse his untimely appeal. See Rivera v. Board of Review, 127 N.J. 578, 589 (1992). Carney-Waterton, however, asserts that he advised the appeals examiner for the Appeal Tribunal during the telephone hearing on August 26, 2004, that his address had changed and that he provided her with his Baton Rouge address at that time. He contends that the failure of the Appeal Tribunal to use that address when its decision was mailed was the sole cause of the untimely filing of his further appeal to the Board of Review. He argues that the Board of Review therefore erred in concluding that he had failed to demonstrate good cause for the late filing of the appeal.

Because the Board of Review dismissed the appeal as untimely, no transcript of the telephone hearing during which Carney-Waterton asserts that he advised the appeals examiner of his change of address has been prepared or included as a part of the record. We are therefore unable to determine whether the information about the change in address was given to the appeals examiner and, as a result, whether the Board of Review erred in its conclusion that Carney-Waterton failed to demonstrate good cause for the delay in the filing of his appeal.

In light of the absence of a sufficient record, we are constrained to remand this matter to the Board of Review for its further consideration, which shall include an opportunity for Carney-Waterton to develop an appropriate factual record in support of his assertion that he timely advised the Appeal Tribunal of his changed address. We express no view on the merits of that assertion or on the merits of any of the other arguments that have been included in the briefs on appeal.

 
Remanded for further proceedings. We do not retain jurisdiction.

The record on appeal does not include a copy of his claim and we derive our understanding of the specifics of his initial claim from the briefs filed by the parties to the appeal.

The reasons for that decision are not germane to the issues we address on appeal, as a result of which we need not set them forth.

(continued)

(continued)

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A-2953-04T3

December 12, 2005