JORGE E. ALVAREZ v. BOARD OF REVIEW and ADVANCED AUTOMOTIVE, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2761-10T4

JORGE E. ALVAREZ,

Appellant,

v.

BOARD OF REVIEW,

and ADVANCED

AUTOMOTIVE, INC.,

Respondents.

________________________________________________________________

November 29, 2011

Submitted October 12, 2011 - Decided

Before Judges Messano and Espinosa.

On appeal from the Board of Review, Department of Labor, Docket No. 281,600.

Jorge E. Alvarez, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa N. Lackay, Deputy Attorney General, on the brief).

Respondent Advanced Automotive, Inc., has not filed a brief.

PER CURIAM

Jorge E. Alvarez appeals from the dismissal of his appeal from a determination that he was ineligible to receive unemployment insurance benefits on the ground that it was untimely. We affirm.

A deputy claims examiner of the Division of Unemployment Insurance determined that Alvarez was ineligible to receive benefits because he was not available for work. The notice of determination explained:

You are not working all available hours as agreed at the time of hire. Benefits are paid to persons that are able and available to work. Failing to work all available hours makes you unavailable to work and ineligible for benefits.

The notice of determination advised Alvarez that any appeal from the determination had to be submitted in writing within ten days after the date of mailing. The notice identified the date of mailing as April 19, 2010. Alvarez filed a notice of appeal on May 4, 2010.

The Appeal Tribunal conducted a telephone hearing in which Alvarez had an interpreter. Alvarez admitted that he received the notice of determination two or three days after its mailing. He stated that he did not file his appeal within time because he had to find someone to write a letter in English for him. The Appeal Tribunal concluded that Alvarez had failed to show good cause for the late appeal and that, pursuant to N.J.S.A. 43:21-6(b)(1), it lacked jurisdiction to rule on the merits of the appeal.

The decision of the Appeal Tribunal contained notice, in English and Spanish, that the "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[.]" The mailing date was identified as June 8, 2010. Once again, Alvarez's notice of appeal was filed late, on July 21, 2010. The Board of Review dismissed the appeal, noting that the appeal was filed late and that no good cause had been shown for the late filing.

In his appeal from the final decision of the Board of Review, Alvarez does not argue that he presented good cause for his late filing to either the Appeal Tribunal or the Board of Review. His argument is solely addressed to the substantive merits of the adverse determination.

N.J.S.A. 43:21-6(c) states in pertinent part:1

The parties shall be duly notified of [the Appeal Tribunal's] decision, together with its reasons therefor, which shall be deemed to be the final decision of the board of review, unless within 10 days after the date of notification or mailing of such decision, further appeal is initiated . . . .

As a preliminary matter, we note that Alvarez has never contended that he received inadequate or untimely notice of the determination or his right to appeal and does not now argue that the application of the ten-day period for appeal constitutes a denial of his right to procedural due process. See Rivera v. Bd. of Review, 127 N.J. 578 (1992). In the absence of such a challenge, we review the Board's interpretation of Title 43 with the deference properly accorded to its expertise. See Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Good cause for an untimely filing of an appeal is defined in N.J.A.C. 12:20-3.1(i) as a showing 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." As previously noted, Alvarez does not argue that either of those grounds existed here to excuse his late filing. Accordingly, his appeal was properly dismissed.

Affirmed.

1 The statute was amended to provide that further appeal must be initiated "within 10 days after the date of notification or mailing of the decision for any decision made on or before December 1, 2010, or within 20 days after the date of notification or mailing of such decision for any decision made after December 1, 2010." Because the Appeal Tribunal issued its decision in June 2010, this amendment does not apply.