GEORGE SPADEA, SR v. BOARD OF REVIEW DEPARTMENT OF LABOR and LOWE'S HOME CENTERS, LLC

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0576-19

GEORGE SPADEA, SR.,

          Appellant,

v.

BOARD OF REVIEW,
DEPARTMENT OF LABOR,
and LOWE'S HOME
CENTERS, LLC.,

     Respondents.
_________________________

                   Submitted January 5, 2021 – Decided April 14, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Board of Review, Department of
                   Labor, Docket No. 183,929.

                   George Spadea, Sr., appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sookie Bae, Assistant Attorney General, of
                   counsel; Jana R. DiCosmo, Deputy Attorney General,
                   on the brief).

PER CURIAM
      In a final agency decision, the Board of Review upheld the Appeal

Tribunal's decision dismissing George Spadea, Sr.'s appeal from a Deputy's

determination disqualifying him from benefits because he "left work voluntarily

without good cause attributable to [that] work." He appeals from the Board's

decision and the Director's request for a refund of $2,282 Spadea received as

benefits during three separate periods.

      The appeal was dismissed because it was not timely filed pursuant to

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

            Unless the claimant or any interested party, within
            seven calendar days after delivery of notification of an
            initial determination or within [ten] 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[.]

The Tribunal concluded it was without jurisdiction to rule on the merits of

Spadea's appeal because he failed to establish an appeal was filed within ten

days after the Director's Notice of Determination and Request for Refund of

Unemployment Benefits (the notice) was mailed on May 17, 2019, or within

seven days of its delivery; it was filed May 30, 2019. 1


1
   As the Board acknowledges in its merits brief, May 27, 2019—the tenth
calendar day after the mailing date—was Memorial Day, and the deadline was
accordingly extended to May 28, 2019.
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      Spadea contends "there is no proof on what date [he] received" the notice;

and "[n]o due dates were given within the document nor [was a] signature

required for receipt of the . . . documents." As such, "there is no verifiable way

the Board . . . can unequivocally state the appeal was received 'two days' late'

and deny all appeals based on a date arbitrarily assigned by the Board"; and "[a]

fair and impartial review of the Request for Repayment of Unemployment

Benefits was unattainable by the Board . . . with no circumstances or statements

of fact able to circumvent the 'late by two days so everything is dismissed'

ruling."2

      Under our limited standard of review, the Board's decision must be

affirmed.

      We owe considerable deference to the Board in administering our state's

unemployment compensation laws, Brady v. Bd. of Rev.,  152 N.J. 197, 210

(1997), and will reverse an agency's determination only if it is "arbitrary,

capricious, . . . unreasonable," or unsupported "by substantial credible

evidence," Bailey v. Bd. of Rev.,  339 N.J. Super. 29, 33 (App. Div. 2001). "[I]n

reviewing the factual findings made in an unemployment compensation


2
   Spadea also included arguments regarding the merits of his unemployment
claim. We need not consider them because the Board's procedural ruling
regarding the Tribunal's jurisdiction was correct.
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                                        3
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." Charatan v. Bd. of

Rev.,  200 N.J. Super. 74, 79 (App. Div. 1985); see also Brady,  152 N.J. at 210.

      "We [also] defer to an agency's interpretation of its own regulations unless

[that interpretation is] 'plainly unreasonable.'" Frazier v. Bd. of Rev., Dep't of

Lab.,  439 N.J. Super. 130, 134 (App. Div. 2015) (quoting In re Election L. Enf't

Comm'n Advisory Op. No. 01-2008,  201 N.J. 254, 262 (2010)). We need not

defer and will reverse in the interests of justice "[w]hen [the] agency's decision

is plainly mistaken." Ibid. (second alteration in original) (quoting W.T. v. Div.

of Med. Assistance & Health Servs.,  391 N.J. Super. 25, 36 (App. Div. 2007)).

      "The burden of demonstrating that the agency's action was arbitrary,

capricious or unreasonable rests upon the person challenging the administrative

action." In re Arenas,  385 N.J. Super. 440, 443-44 (App. Div. 2006); see also

Brady,  152 N.J. at 218 ("Claimants bear the burden of proof to establish their

right to unemployment benefits.").

      We first note that the notice set forth explicit appeal-procedure

instructions, including the time constraints of  N.J.S.A. 43:21-6(b)(1), the "good




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                                        4
cause" extension provisions of N.J.A.C. 12:20-3.1(i) and the address to which

the appeal could be mailed.

        It is undisputed that Spadea's appeal was filed beyond the ten-day window

after the notice was mailed.      And, as the Tribunal observed based on his

testimony before the appeals examiner, because Spadea "was unable to recall

the exact date [on] which the [notice] was received or exactly how long he was

in receipt of [the notice] before filing the initial appeal," he did not meet his

burden to establish that the appeal was filed within seven days after he received

the notice.

        Thus, Spadea was required to establish good cause for the late filing.

N.J.A.C. 12:20-3.1(i). "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."

Ibid.

        Spadea explained to the appeals examiner that before he filed the appeal,

he wanted to obtain paystubs which "took a few days to get," and that he then

"went through them all and . . . put them together" which "took some time to

do[.]" When asked for any other reason the appeal was tardy, Spadea told the


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appeal examiner he "work[ed] pretty long hours" at his primary job and it was

"hard" for him, because he was seventy-five years old and not "like [thirty]

anymore."3

      Deferring to the Board's interpretation of N.J.A.C. 12:20-3.1(i), we cannot

conclude its determination that Spadea's explanation did not establish good

cause was plainly unreasonable. See Frazier,  439 N.J. Super. at 134. His stated

reasons did not establish that the late filing was due to circumstances beyond his

control or circumstances that could not have been reasonably foreseen or

prevented. See N.J.A.C. 12:20-3.1(i). As the appeal examiner pointed out,

Spadea could have filed the appeal without the pay stubs, and his work schedule

and age did not establish "good cause" for the late filing.

      We recognize the Unemployment Compensation Law,  N.J.S.A. 43:21-1 to

-71, is social legislation which should be construed by the courts to give effect

to its beneficent purposes. Utley v. Bd. of Rev., Dep't of Lab.,  194 N.J. 534,

543 (2008). That "does not mean that where the Legislature has fixed an

absolute deadline in the statute for the performance of an act the court is



3
   Spadea testified he had worked full-time as a driver for Quality Business
Solutions, also known as Great American Trolley, and part-time for Lowe's
Home Centers, LLC but had to resign from employment at Lowe's because
"[t]wo jobs [were] too much for [him] to work."
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                                        6
privileged to extend such time limitation." Lowden v. Bd of Rev.,  78 N.J. Super.
 467, 469-70 (App. Div. 1963) ("Since the right to unemployment compensation

benefits is purely statutory ([ N.J.S.A. 43:21-1 to -71]), the procedural aspects of

the enforcement of such right are governed entirely and exclusively by the

statute."). The time periods set forth in  N.J.S.A. 43:21-6 have been recognized

as short but fair. Id. at 470; see also Air-Way Branches, Inc. v. Bd. of Rev.,  10 N.J. 609, 615 (1952).

      New Jersey courts have consistently held that the statutory filing deadlines

for unemployment appeals to be of jurisdictional import. Hopkins v. Bd. of

Rev.,  249 N.J. Super. 84, 88-89 (App. Div. 1991). Absent good cause, the

Appeal Tribunal was without authority to hear Spadea's late appeal. We thus

affirm its dismissal.

      Affirmed.




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