EMILY AROWOSAYE v. BOARD OF REVIEW DEPARTMENT OF LABOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EMILY AROWOSAYE,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR and BOARD OF REVIEW

CENTRAL INVESTIGATION OFFICE,

Respondents.

__________________________________

April 7, 2014

Submitted February 24, 2014 Decided

Before Judges Kennedy and Guadagno.

On appeal from the Board of Review, Department of Labor, Docket No. 340,664.

Emily Arowosaye, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Brady Montalbano Connaughton, Deputy Attorney General, on the brief).

PER CURIAM

Emily Arowosaye appeals from final agency action of the Board of Review on August 31, 2012, affirming a decision of the Appeal Tribunal dismissing her appeal of an April 4, 2011 "Request for Refund of Unemployment Benefits, Notice of Unemployment Benefits and Imposition of Penalty and Disqualification Because of Willful Misrepresentation" issued by the Director of the Division of Unemployment Insurance. The appeal was dismissed on the ground that it was untimely. Appellant argues that she "did not collect employment benefits while employed" and that she submitted "necessary documents and information in a timely manner." We affirm.

As we have noted, the director mailed the notice to appellant on April 4, 2011. The notice explicitly stated that if appellant disagreed with the determination, she must file a written appeal within seven calendar days of delivery of the notice or within ten days after the date the notice was mailed. The notice further stated that the appeal period will be extended if "good cause" is shown, and defined good cause as "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."

Appellant's handwritten notice of appeal was undated, but was contained in an envelope with a postmark dated May 11, 2011. The Appeal Tribunal determined that appellant provided no evidence that the notice was received by her after April 30, 2011, and "was unable to explain why she had not filed [her appeal] until the middle of the following month [.]" On August 31, 2012, the Board affirmed and found the "appeal was properly dismissed in accordance with the provisions of N.J.S.A. 43:21-6(b)(1). This appeal followed.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). We can only intervene "'in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).

Furthermore, "'[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (alteration in original)).

The time for filing an appeal from the determination of the director is prescribed by N.J.S.A. 43:21-6(b)(1), which states in pertinent part:

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 and addresses, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith . . . .

In Lowden v. Bd. of Review, 78 N.J. Super. 467 (App. Div. 1963), we held that the right to obtain unemployment compensation benefits is "purely statutory" and the "procedural aspects of the enforcement of such right are governed entirely and exclusively by the statute." Id. at 469. We will not review the merits of a decision unless there has been a timely appeal, and the agency itself is without jurisdiction to address untimely appeals. Id. at 468-71. Furthermore, in Rivera v. Bd. of Review, 127 N.J. 578 (1992), the Court held that claimants in unemployment compensation matters have a due process right to notice, which must be considered when applying the statutory appeal requirements. Id. at 586. The Court held that, in certain circumstances, a claimant's failure to file a timely appeal may be excused for good cause. Id. at 590.

Following the Rivera decision, the Board adopted a regulation, which established the factors that constitute good cause for failing to file an appeal within the statutorily-prescribed time. N.J.A.C. 12:20-4.1(h) states that:

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 appellant; or

2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

Here, the record shows that the director mailed his decision to appellant on April 4, 2011. Appellant waited over thirty-six days to file her appeal. In her letter of appeal, appellant did not provide good cause for the late filing. She now alleges she first received the notice on May 12, 2011. This, however, is contradicted by her undated notice of appeal contained in an envelope with a postmark of May 11, 2011.

We are therefore satisfied that the record supports the Board's finding that the appeal was not filed within the time prescribed by N.J.S.A. 43:21-6(b)(1), and that appellant failed to establish good cause for her failure to file a timely appeal.