DIANNE ROCCO,
Claimant-Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR
and CEDAR GLEN WEST CORP.,
Respondents-Respondents.

_______________________________________

Submitted April 24, 2006 - Decided May 15, 2006

Before Judges Yannotti and Miniman.

On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 65,606.

Dianne Rocco, appellant pro se.

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Allan J. Nodes, Deputy Attorney General, on the brief).

Respondent Cedar Glen West Corp., did not file a brief.

PER CURIAM

Dianne Rocco (Rocco) appeals from a final determination of the Board of Review (Board), which upheld the Appeal Tribunal's decision dismissing Rocco's appeal from the denial of her claim for unemployment benefits. We affirm.

Rocco filed a claim for unemployment benefits on January 2, 2005 and on February 3, 2005, a deputy in the Division of Unemployment Insurance (Division) mailed Rocco his decision denying her claim because Rocco left work voluntarily without good cause attributable to the work. Rocco filed an appeal to the Appeals Tribunal on February 15, 2005.

A hearing on Rocco's appeal was held on March 14, 2005. The appeals examiner questioned Rocco concerning the filing of the appeal. Rocco said that she received the deputy's decision on or about January 6, 2005. The appeals examiner noted that the form states that the claimant has a right to appeal an unfavorable decision. He asked Rocco whether she read this part of the form. She replied, "Yeah, I read it but I didn't read the right corner, [where is says that] you have the right of appeal." The employer's representative asked Rocco why she waited to file her appeal until February 15 when the deputy's determination letter "clearly stated" that she had to appeal by February 14. Rocco replied, "I didn't see it."

The appeals examiner issued his decision on March 16, 2005. The examiner found that the deputy mailed his determination to Rocco on February 3, 2005 and Rocco received the decision on February 6, 2005. Rocco's appeal was filed February 15, 2005. The examiner found, "The appeal was not filed earlier because [Rocco] did not completely read the determination of the Deputy." The examiner found that the appeal had not been filed within the time prescribed by N.J.S.A. 43:21-6(b)(1).

On March 21, 2005, Rocco appealed the determination of the Appeals Tribunal to the Board. Rocco asserted in her appeal that she had come to the Division's office on February 11 but the office was closed. Rocco also stated that "Monday was a blizzard" and she did not have ride but if she did, she would have come in earlier to file her appeal.

The Board issued its final determination on April 19, 2005, in which it found that the appeal had been properly dismissed in accordance with N.J.S.A. 43:21-6(b)(1) and consequently the deputy's determination became final. The Board found that Rocco had not shown good cause for consideration of her untimely challenge to the deputy's decision. This appeal followed.

The scope of our review in appeals from final decisions of administrative agencies is narrow. Brady v. Board of Review, 152 N.J. 197, 210 (1997)(citing Public Serv. Elec v. N.J. Dep't of Envtl. Protec., 101 N.J. 95, 103 (1985)). The agency's determination may not be set aside unless it is shown to be arbitrary, capricious or unreasonable. Ibid. (citing In re Warren, 117 N.J. 295, 296 (1989)). 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. (quoting George Harms Constr. v. Turnpike Auth., 137 N.J. 8, 27 (1994)). Applying these well established principles of appellate review, we are satisfied that the Board's final decision must be affirmed.

The New Jersey Unemployment Compensation Law requires individuals seeking unemployment benefits to file their claims with the Division. N.J.S.A. 43:21-6(a). A deputy in the Division must promptly examine the claim, notify the employer of the same and require the submission of such information "as may be necessary to determine the claimant's eligibility and [the claimant's] benefit rights with respect to the employer in question." N.J.S.A. 43:21-6(b)(1). The deputy thereafter must "promptly make an initial determination" respecting the claim "based upon the available information." Ibid. The statute further 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 and addresses, files an appeal from such decision, such decision

shall be final and benefits shall be paid or denied in accordance therewith....

[Ibid.]

In Rivera v. Board of Review, 127 N.J. 578, 586 (1992), the Court held that the provisions of the unemployment compensation law which prescribe the time for filing appeals are not jurisdictional. The Court further held that "good cause" may require that a statutory appeal deadline be extended in certain circumstances in order to accommodate the claimant's right to due process. Id. at 584-586. Following Rivera, the Department of Labor promulgated a regulation which provides as follows:

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.

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

The record establishes that Rocco's appeal was not filed within the time prescribed by N.J.S.A. 43:21-6(b)(1). The deputy's decision was mailed on February 3, 2005. Pursuant to N.J.S.A. 43:71-6(b)(1), Rocco's appeal from that decision had to be filed within 10 days. Since February 13, 2005 was a Sunday, the appeal was due no later than February 14, 2005. It is undisputed that Rocco filed her appeal on February 15, 2005.

The Board correctly found that Rocco had not established "good cause" for the consideration of her untimely appeal pursuant to N.J.A.C. 12:20-3.1(i). Rocco conceded that she did not file her appeal from the deputy's determination before the statutory deadline because she did not fully read the deputy's letter, which informed her of the time within which the appeal had to be filed. Clearly, Rocco's delay in filing her appeal was not "due to circumstances beyond [her] control," N.J.A.C. 12:20-3.1(i)(1), nor was the untimely filing "for circumstances which could not have been reasonably foreseen or prevented." N.J.A.C. 12:20-3.1(i)(2).

In her appeal to the Board, Rocco asserted that she failed to file her appeal before February 15 because of a snow storm and because the Division's offices were closed when she went to submit her appeal. However, she did not make these arguments when she was questioned at the hearing by the appeals examiner. The record therefore contains no evidence to support Rocco's assertions.

Affirmed.