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02/10/89 Richard Neilly, v. the Department of

February 10, 1989

RICHARD NEILLY, PLAINTIFF-APPELLANT

v.

THE DEPARTMENT OF EMPLOYMENT SECURITY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

535 N.E.2d 11, 180 Ill. App. 3d 138, 128 Ill. Dec. 797 1989.IL.171

Appeal from the Circuit Court of Cook County; the Hon. Marilyn Komosa, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. PINCHAM and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiff was denied unemployment benefits and the Board of Review dismissed his appeal for lack of jurisdiction. Plaintiff sought administrative review in the circuit court, which affirmed the dismissal, and then plaintiff appealed to this court. We address the issue of whether section 801 of the Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 471) requires that an appeal to the Board of Review must be filed within 30 days of the mailing of the referee's decision. For the following reasons, we affirm.

Plaintiff filed a claim for unemployment benefits under the Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 300 et seq.), and initially, a claims adjudicator found he was eligible to receive benefits. Plaintiff's former employer sought reconsideration of the decision from a referee who conducted a telephone hearing with the parties. The referee found plaintiff was not eligible to receive benefits because he voluntarily left his employment without good cause. (See Ill. Rev. Stat. 1985, ch. 48, par. 431.) The referee's decision denying benefits was mailed to plaintiff on May 2, 1986. Included with the decision was a document entitled "Right of Further Appeal," which stated, "This decision will become final, unless WRITTEN NOTICE of appeal from the decision is filed within thirty (30) days from the date of mailing as shown on the decision."

Plaintiff prepared a written notice of appeal to the Board of Review which was dated June 2, 1986. The Board of Review received the notice on June 6; however, it considered the notice filed on June 5, the date it was postmarked. Subsequently, the Board of Review issued its decision finding that the last day for filing the appeal was June 2 and that plaintiff did not file his appeal until June 5, more than 30 days after the referee's decision was mailed. As a result, the referee's decision became final and was no longer subject to appeal. (See Ill. Rev. Stat. 1985, ch. 48, par. 471.) The Board dismissed plaintiff's appeal for lack of jurisdiction.

Plaintiff filed a complaint in circuit court seeking administrative review of the Board of Review's decision. The circuit court affirmed, and plaintiff filed a timely notice of appeal to this court.

Opinion

At issue is whether section 801 of the Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 471) requires a party to file a notice of appeal with the Board of Review within 30 days of the referee's decision. The issue is one of statutory construction, which is a question of law. (Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 510 N.E.2d 422.) We must exercise independent review of the agency's Conclusion of law, and if the agency's decision is based on the erroneous construction of a statute, the decision will not stand. Flex v. Department of Labor (1984), 125 Ill. App. 3d 1021, 466 N.E.2d 1050.

Section 801 states in relevant part:

"The decision of the Referee shall be final, unless, within 30 calendar days after the date of mailing of such decision, further appeal to the Board of Review is initiated pursuant to Section 803." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 471.)

In the present case, the referee's decision was mailed on May 2, 1986, and because the 30th day was a Sunday, plaintiff had ...


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