FRANK E. CARUSO v. BOARD OF REVIEW DEPARTMENT OF LABOR, and UNITED STATES POSTAL SERVICE

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5669-08T2

FRANK E. CARUSO,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR, and UNITED STATES

POSTAL SERVICE,

Respondents.

September 30, 2010

S ubmitted September 22, 2010 - Decided

 

Before Judges Axelrad and J. N. Harris.

 

On appeal from the Board of Review, Department of Labor, Docket No. 209,622.

 

Frank E. Caruso, appellant pro se.

 

Paula T. Dow, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

 

Respondent United States Postal Service has

not filed a brief.

 

PER CURIAM

Appellant Frank E. Caruso seeks review of the Board of Review's (Board) dismissal of his appeal from the denial of his claim for unemployment benefits as untimely. We affirm.

Appellant was employed as a clerk by the United States Postal Service (USPS) from 1987 through September 20, 2008, when he was discharged,1 allegedly for poor attendance and unauthorized absences. A claim for unemployment benefits was filed one week later on September 28, 2008. A determination by the Deputy Director (Deputy) of the Division of Unemployment Insurance held appellant eligible for benefits, without disqualification.

The USPS filed a timely appeal to the Appeal Tribunal, and after a telephonic hearing on March 13, 2009, the Appeal Tribunal reversed the determination of the Deputy. Finding the appellant had failed to properly comply with his employer's procedures regarding absences, notwithstanding personal problems, the Appeal Tribunal held appellant disqualified for benefits pursuant to N.J.S.A. 43:21-5(b) because he was discharged for misconduct within the meaning of the Unemployment Compensation Act. See also N.J.A.C. 12:17-10.3.

The written decision of the Appeal Tribunal was mailed to appellant on March 18, 2009. Attached to the decision was a printed form stating:

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 . . . . If the last day allowed for the appeal occurs on a Saturday, Sunday or legal holiday, the appeal will be accepted if received or postmarked on the next business day. The appeal period will be extended if good cause for late filing is shown. Good cause exists in situations where it can be shown that the delay was due to circumstances beyond the control of the appellant, which could not have been reasonably foreseen or prevented. Please specify the reason for your appeal, and if possible, attach a copy of this decision.

On March 31, 2009, appellant filed an appeal with the Board, by electronic facsimile. On May 20, 2009, the Board dismissed the appeal as untimely pursuant to N.J.S.A. 43:21-6(c). This appeal followed.

Pursuant to N.J.S.A. 43:21-6(c), the Appeal Tribunal's determination "shall be deemed to be the final decision of the [B]oard of [R]eview, unless within [ten] days after the date of notification or mailing of such decision, further appeal is initiated pursuant to [N.J.S.A. 43:21-6(e)]." As noted, the Appeal Tribunal's determination was mailed to appellant on Wednesday, March 18, 2009. Any appeal was due no later than Monday, March 30, 2009.2 However, appellant did not file his appeal dated March 25, 2009 with the Board until March 31, 2009, which was one day out of time.3

The Board dismissed the appeal as untimely pursuant to N.J.S.A. 43:21-6(c), concluding that appellant had not shown good cause for the late filing. Indeed, appellant did not submit any explanation for the late filing to the Board, and in his pro se submission to this court, he again is silent on the reason for his tardiness. Consequently, the Board was correct in dismissing the appeal as untimely.

In Rivera v. Board of Review, 127 N.J. 578, 586 (1992), the Supreme Court held that the appeal period set forth in the statute for appeals from demands for repayment of benefits by the Department of Labor is not jurisdictional. Although the Court addressed the appeal period set forth in N.J.S.A. 43:21-16(d), its reasoning applies as well to those sections of the law in which other appeal periods are set forth, including N.J.S.A. 43:21-6(c), upon which the Board based its decision in this case. In Rivera, the Court held that where statutory appeal periods do not ensure adequate notice, the due process rights of claimants must be considered and that in certain circumstances, a "good cause" exception to the statutory appeal period may exist. Id. at 590. Since Rivera, "good cause" for the filing of late appeals may be found where it is shown that "the delay in filing the appeal was due to circumstances beyond the control of the appellant," or "in circumstances that could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-4.1(h)(1), -4.1(h)(2).

When the reasoning in Rivera is applied to the facts of this case, it is clear that appellant's due process rights were not violated and that he is not entitled to a "good cause" exception to the statutory appeal period. See Rivera, supra, 127 N.J. at 589-90. The determination was mailed on March 18, 2009, and he apparently received it no later than March 25, 2009, which was sufficient time for him to meet the deadline. Appellant did not claim to the Board, nor has he claimed on appeal, that he did not have ample time in which to meet the statutory filing deadline. Thus, the "good cause" exception to the statutory appeal period is not implicated. The Board correctly determined that appellant did not demonstrate good cause for his late appeal. N.J.A.C. 12:20-4.1(h)(1),

-4.1(h)(2).

Affirmed.

 

1 Subsequently, through a grievance process, appellant was reinstated to his job, and as appellant's pro se brief reports, "he has since been back to work with no further incidents."

2 Appellant was excused from filing on the tenth day (a Saturday) and the eleventh day (a Sunday) by N.J.A.C. 12:20-4.1(b) ("In computing any period of time the day of the act or event after which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a legal holiday.").

3 The Board's records reflect that the appeal was not actually filed until April 2, 2009, but appellant was treated as having completed the filing as of the date and time imprinted on his electronic facsimile transmission, which reads "MAR-31-2009 08:58 AM."