MARIA CASTILLO v. BOARD OF REVIEW DEPARTMENT OF LABOR and CONTINENTAL AUTO PARTS, L.L.C

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6248-08T36248-08T3

MARIA CASTILLO,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and CONTINENTAL AUTO

PARTS, L.L.C.,

Respondents.

________________________

 

Submitted May 25, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Board of Review, Department of Labor, Docket No. 227,133.

Maria Castillo, appellant pro se.

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

Respondent, Continental Auto Parts, L.L.C., has not filed a brief.

PER CURIAM

On March 1, 2009, appellant filed a claim for unemployment benefits upon leaving her employment with Continental Auto Parts, L.L.C. (Continental). On April 1, 2009, the Deputy Director of the Division of Unemployment Insurance mailed a Notice of Determination to appellant advising that she had been found disqualified for benefits because she "left [her] job voluntarily to move out of the area." This notice advised appellant of her right to appeal, as follows:

ANY APPEAL FROM THIS DETERMINATION MUST BE SUBMITTED IN WRITING WITHIN 7 DAYS AFTER DELIVERY OR WITHIN 10 DAYS AFTER THE DATE OF MAILING. THE TENTH DAY AFTER THE DAY OF MAILING IS:

4/13/09

Appellant mailed her appeal to the Appeal Tribunal on April 14, 2009, one day beyond the deadline stated in the Notice of Determination.

A hearing was held before the Appeal Tribunal on May 11, 2009. Appellant testified that she was employed by Continental from June 20, 2007 to February 25, 2009. Her job was delivering auto parts to customers, using a company van. In August 2008, while still employed with Continental, appellant moved to Pennsylvania and her employer gave her a Pennsylvania route.

In January 2009, appellant's employer advised her that the Pennsylvania route would be eliminated. She was given the position of a "back-up driver," working out of the company's Elizabeth, New Jersey office. Her salary and the commissions she earned were reduced as a result.

Appellant acknowledged that she voluntarily left because of the reduction in pay and the commute. She further acknowledged that if her rate of pay "had been cut but [she] remained with the same old route and the same full time hours," she would not have left employment at Continental.

Appellant testified that she could not recall the exact date on which she received the Notice of Determination declaring her ineligible for unemployment benefits; however, she stated that the "latest" she would have received that notice would have been April 4, 2009. She explained that when she received the notice she "wrote the letter" but did not have a "computer or printer at home." She needed to go to the public library to type her letter on a computer; the library was about forty minutes away, and she was still familiarizing herself with the area, notwithstanding that she had moved there the previous August.

On May 14, 2009, the Appeal Tribunal issued a decision dismissing her appeal for failing to file within the required time period. The decision included the following findings of fact:

The Deputy mailed a determination to the appellant's address of record on 04/01/2009. The [appellant] received the determination on 04/04/2009. The [appellant] filed an appeal on 04/14/2009. The appeal was not filed earlier because she did not have access to a computer.

The [appellant] delayed typing the appeal letter because she did not know where her local library was located as she had only been living in the area for eight months.

The decision concluded: "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."

The Board of Review issued its decision on July 17, 2009, affirming the Appeal Tribunal, finding that "the appeal was properly dismissed" as untimely and that "good cause [was] not . . . shown for such late filing . . . ."

On appeal, appellant contends that her "[l]ate filing was due to lack of geographical awareness and technological disadvantage." She contends that she has "liv[ed] in a rural area for a short period, [and] . . . had to learn of all [her] surroundings." Once she "locat[ed] the public library [she] was informed that there [was] a short waiting period to obtain a library card in order to have access to their computer." Therefore, she "had to go into New Jersey . . . where [she] had access t[o] a computer and printer." She "did not know until the [Appeal Tribunal] interviewer explained to [her] that [i]t could have been handwritten."

N.J.S.A. 43:21-6(b)(1) provides:

Unless the claimant or any interested party, within seven calendar days after delivery of notification of an initial determination or within 10 calendar days after such notification was mailed to his or their last-known address . . ., files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith . . . .

It is undisputed that appellant's appeal was not filed within the time prescribed by the statute. The question then becomes whether she demonstrated good cause for the delay.

N.J.A.C. 12:20-4.1(h) 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.

Appellant's reasons for delay do not establish good cause. She proffered (1) unfamiliarity with an area in which she had been living since August 2008; (2) lack of awareness of the location of her local library and failure to have obtained a library card; and (3) being unaware that she could have filed a handwritten appeal. These "circumstances" failed to satisfy either prong of the good cause standard in the regulation. Considering the narrow scope of our review in appeals from final decisions of administrative agencies, Brady v. Bd. of Review, 152 N.J. 197, 210 (1997), we "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid. (internal quotation marks omitted). Applying these well established principles of appellate review here, we are satisfied that the Board's final decision must be sustained.

 
Affirmed.

(continued)

(continued)

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A-6248-08T3

August 10, 2010