LARS V. PALMBLAD 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NOT FOR PUBLICATION WITHOUT THE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-1511-04T21511-04T2

LARS V. PALMBLAD,

Claimant-Appellant,

vs.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and ACM ENVIRONMENTAL

SERVICES, INC.,

Respondents-Respondents.

__________________________________

 

Submitted: December 19, 2005 - Decided January 18, 2006

Before Judges Cuff and Parrillo.

On appeal from the Board of Review, Department of Labor.

Lars V. Palmblad, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent Board of Review, Department of Labor (Patrick DeAlmeida, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

PER CURIAM

In this appeal from a final decision of the Board of Review, claimant Lars V. Palmblad contends that he was terminated from his employment or in the alternative that he left his employment for good cause attributable to the work. We dismiss the appeal as untimely.

On May 4, 2003, claimant filed a claim for unemployment benefits. A deputy denied the claim because he voluntarily left his job on May 6, 2003, without good cause attributable to the work. Claimant appealed the deputy's determination to an Appeal Tribunal on May 28, 2003. On July 16, 2003, the Appeal Tribunal held a hearing at which Palmblad and a representative of his former employer, ACM Environmental Services, Inc. (ACM), appeared. In a decision mailed on August 11, 2003, the Appeal Tribunal affirmed the deputy's determination.

On August 18, 2003, Palmblad appealed the Appeal Tribunal's decision to the Board of Review (Board). The Board remanded the matter to the Appeal Tribunal on September 9, 2003, "for additional testimony" from Palmblad and the "employer's firsthand witness." The Appeal Tribunal then held a hearing on September 29, 2003, at which Palmblad, ACM's owner, and the claimant's supervisor appeared. On November 17, 2003, the Appeal Tribunal again affirmed the deputy's determination.

The Appeal Tribunal found that Palmblad worked as a laborer for ACM from January 2002 until May 6, 2003, when he quit "because he was dissatisfied with his supervisor." The Appeal Tribunal found further that claimant worked for ACM "on two different occasions prior to" January 2002. He "left [the] employment but returned each time." Claimant worked for the same supervisor during all of his periods of employment with ACM. In addition, the Appeal Tribunal rejected claimant's testimony as "not credible."

Based on the evidence presented, the Appeal Tribunal concluded that claimant left his job "because of personal dissatisfaction with his working conditions" that were not "so severe, that he was left no alternative but to leave the job, and join the ranks of the unemployed." Thus, "he left work voluntarily without good cause attributable to such work" and was disqualified for benefits.

On or about December 1, 2003, claimant appealed the November 17, 2003, Appeal Tribunal's decision directly to the Appellate Division. On December 5, 2003, the clerk notified Palmblad that his Notice of Appeal would not be filed because he had not "exhausted all appealable avenues with the Department of Labor." On December 19, 2003, Palmblad appealed the Appeal Tribunal's decision to the Board. The Board accepted the appeal as timely and, on January 27, 2004, it affirmed the decision.

Instead of filing a Notice of Appeal with this court, on May 9, 2004, claimant reasserted his claim for unemployment benefits. On May 13, 2004, a deputy notified claimant that his reasserted claim was invalid because he failed to satisfy certain work and earnings requirements during his new base year of January 1 through December 31, 2003. On June 23, 2004, Palmblad appealed the deputy's determination to an Appeal Tribunal. His appeal was dismissed on August 11, 2004, because he failed to appear at a scheduled hearing. On or about August 25, 2004, he requested that another hearing be scheduled. His request was granted and a hearing was scheduled for September 20, 2004. That hearing was cancelled, however, because the Appeal Tribunal offices were closed "due to severe flooding in the area." Palmblad's appeal was then dismissed without prejudice.

On or about September 27, 2004, Palmblad requested that yet another hearing be scheduled. His request was granted and the matter was reopened on September 28, 2004. On October 12, 2004, the Appeal Tribunal affirmed the deputy's determination. It found that another Appeal Tribunal determined on November 17, 2003, that Palmblad "was disqualified for benefits due to his separation" from ACM. Since Palmblad "has not worked or earned any wages since 5/6/03," he was ineligible for benefits pursuant to N.J.S.A. 43:21-4(e)(6). Claimant did not appeal the October 12, 2004 Appeal Tribunal decision to the Board.

On November 10, 2004, Palmblad filed a Notice of Appeal with the Appellate Division by which he sought to appeal the Board's January 27, 2004 decision affirming his disqualification for benefits. With his Notice of Appeal, he filed a motion asking the court to allow him to file his appeal nunc pro tunc. His motion was denied on January 18, 2005, at which time this court advised him that it was prepared to dismiss the appeal administratively on February 4, 2005, unless he moved for reconsideration before then and explained "why there is cause and a legal basis not to dismiss the appeal for failure to file it within the maximum time limit permitted by law."

On or about January 28, 2005, Palmblad moved for reconsideration. The court granted his motion on March 3, 2005, "[b]ased on the representation that the decision of the Board of Review was not received until August 26, 2004." It directed the parties to address in their briefs "whether the appeal should be deemed timely filed."

Pursuant to Rule 2:4-1(b), claimant's Notice of Appeal from the January 27, 2004 decision of the Board should have been filed no later than March 15, 2004. This was not done. Nor was his Notice of Appeal filed within the time allowed by Rule 2:4-4(a). In addition, claimant failed to explain why he did not file his appeal on a timely basis or why it should be considered timely as required in our February 28, 2005 order. We note that even if claimant received the January 27, 2004 Board decision in August 2004 as previously represented by claimant, the November 10, 2004 Notice of Appeal is beyond the aggregate seventy-five days allowed by Rules 2:4-1(b) and 2:4-4(a). Therefore, the appeal is dismissed.

 
Appeal dismissed.

Even if the appeal was timely, we would affirm the disposition of the Board. Its determination that claimant quit his employment without good cause attributable to the work is supported by substantial credible evidence in the record. Brady v. Bd. of Review, 152 N.J. 197 (1997); Domenico v. Bd. of Review, 192 N.J. Super. 284 (App. Div. 1983); Morgan v. Bd. of Review, 77 N.J. Super. 209 (App. Div. 1962).

(continued)

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6

A-1511-04T2

January 18, 2006