This is an appeal by Lester Sweet, claimant for unemployment compensation benefits, from a decision of the Eleventh Judicial District Court sustaining a plea of peremption filed by the administrator of the Division of Employment Security.
The claimant, Lester Sweet, was discharged by his employer, Many Lumber Co., Inc., for being absent from work due to his incarceration in jail on a charge which had no connection with his work. On being discharged by his employer, Sweet filed a claim for unemployment compensation benefits with the office of the Division of Employment Security in Natchitoches, Louisiana. The local office in Natchitoches determined that claimant's failure to report for work constituted misconduct connected with his employment and, therefore, disqualified him from the receipt of benefits.
Notice of this determination was mailed to claimant on October 1, 1959, and there is no contention that plaintiff did not receive this notice. Under the provisions of LSA-R.S. 23:1629, the claimant has a right, on receipt of such notice of determination, to file an appeal with an appeal tribunal (in this case an appeal referee) within seven (7) days after the date notification was given or was mailed to claimant's last known address. Pursuant to this statutory provision, the notice of claim determination advised claimant of his appeal rights in the following language, which appears on the face of the notice:
The record in this case contains a letter dated October 6, 1959, at Many, Louisiana, bearing the salutation, "Dear Company", and signed by Lester Sweet, asking for security benefits. This letter is stamped as having been received on October 9, 1959, by the Louisiana Division of Employment Security. Through administrative handling this letter reached the local office in Natchitoches on October 13, 1959, following which plaintiff appeared at said local office on October 14, 1959, and signed a formal application for appeal. The interviewer, who filled out the application for appeal, dated it "10-14-59 eff. 10-6-59", and called attention to the letter written by the claimant on October 6, 1959, and sent to the administrator's office.
Both the Appeals Referee and the Louisiana Board of Review considered the claimant's appeal on the merits and affirmed the local office determination that claimant should be disqualified. Claimant then prosecuted a further appeal to the Eleventh Judicial District Court, where his petition was met with an exception of peremption filed by the administrator of the Division of Employment Security. The exception was aimed at claimant's failure to take a timely appeal from the initial determination of the local office of the Division of Employment Security. After considering the matter on briefs, the District Court sustained the plea of peremption and dismissed claimant's suit. It is from this ruling that claimant has appealed to this court.
Claimant's first argument is that the proof in the record is insufficient that the original notice of agency determination was mailed to Lester Sweet on October 1, 1959. Claimant argues that this date should be established by postmarks or registered receipts instead of by the notation made on the notice by office personnel as to the date of mailing. This argument
Claimant's next argument is that the interviewer in the local office who prepared the formal application for appeal on October 14, 1959, indicated that it was to be effective October 6, 1959 (the date of Lester Sweet's letter addressed "Dear Company") and that this act by an agent of the administrator defeats the plea of peremption. This precise issue was before the court in Delta Air Lines, Inc., v. Brown, La.App.Orleans, 1959, 115 So.2d 903, 905, in which the Board of Review did not notice that claimant had failed to appeal to it within ten (10) days as required by LSA-R.S. 23:1630 and went ahead and considered claimant's case on the merits and found her qualified for benefits. The employer then filed suit for judicial review by the District Court which sustained the Board of Review. The employer then appealed to the Orleans Court of Appeal, where for the first time the administrator filed a plea of peremption. The Court of Appeal, held, as follows:
In the instant case the notice of claim determination was mailed on October 1, 1959. Under the provisions of LSA-R.S. 23:1629, the seven (7) days' delay within which claimant had a right to file an appeal ended on Thursday, October 8, 1959. Even if we consider Lester Sweet's letter of October 6, 1959, which was mailed to the wrong office, it was not received by anyone connected with the Division of Employment Security until Friday, October 9, 1959.
For the reasons hereinabove set forth, it is our opinion that the Judge of the lower court properly sustained the plea of peremption and his judgment is, therefore, affirmed. All costs of this appeal are assessed against the plaintiff.