IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
C. A. No.: 09A-06-005 (CHT)
OPINION and ORDER
Upon Appeal From a Decision of the
Unemployment Insurance Appeals Board
Submitted: December 22, 2009
Decided: February 9, 2010
Phillip G. Johnson, Department of Justice, Wilmington,
Delaware; Attorney for the Appellee.
Alex Cooper, pro se.
Before the Court is an appeal by Alex Cooper from the
decision of the Unemployment Insurance Appeals Board
The Board affirmed the determination by the
Appeals Referee (“Referee”) that Mr. Cooper failed to
file a timely appeal, pursuant to 19 Del. C. § 3318(b).
The Board rendered their decision on May 13, 2009.1
which follows is the Court’s resolution of the issues so
DECISION OF THE BOARD
According to the findings of the Board,
the determination of the Claims Deputy was mailed by
first-class mail to the last address on record of Mr.
That letter was not returned to the Department
The Board’s decision was mailed on May 21, 2009, which gave
the Appellant, Mr. Cooper, until May 30, 2009 to file an appeal or
risk the Board’s decision becoming final on May 31, 2009.
of Labor as undeliverable and the final day to appeal the
February 13, 2009.
Subsequently, a hearing was held
before the Appeals Referee solely on the issue of the
affirmed the determination of the Claims Deputy.
The Board agreed with and affirmed those decisions
and held that Mr. Cooper’s failure to file a timely
proceedings pursuant to 19 Del. C. § 3318(b).
Appellant filed the instant appeal with this Court on
September 30, 2009.
Standard of Review
This Court’s review of a decision of the Unemployment
Insurance Appeals Board is limited to a determination of
whether there is sufficient substantial evidence in the
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record to support the Board’s findings, and that such
findings are free from legal error.2 Substantial evidence
is relevant evidence that a reasonable mind might accept
findings are conclusive and will be affirmed if supported
by “competent evidence having probative value.”4
appellate court does not weigh the evidence, determine
The Board’s decision to accept an untimely appeal sua
limited in its scope of review to whether the Board
Employment Ins. Appeals Bd. of the Dep't of Labor v. Duncan,
337 A.2d 308, 309 (Del. 1975).
Oceanport Indus. v. Wilmington Stevedores, 636 A.2d 892, 899
Geegan v. Unemployment Comp. Comm'n, 76 A.2d 116, 117 (Del.
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225
(Del. 1991). In Funk, the Court noted that the Board may accept an
untimely appeal in a case where there has been some administrative
error on the part of the Department of Labor which deprived the
claimant of the opportunity to file a timely appeal.
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abused its discretion.7 A procedural decision such as the
Board’s decision to deny an untimely appeal is not an
circumstances and ignored the recognized rules of law or
practice so as to produce injustice.”8
Absent an abuse of
discretion, the Court must affirm the Board’s decision.9
Title 19, Section 3318(b), of the Delaware Code
provides that unless a claimant files an appeal within
ten calendar days after the decision of the Claims Deputy
being mailed to his or her last known address on record,
the decision shall be final.
The ten day appeal period set forth in § 3318(b) is
jurisdictional and neither the Referee nor the Board has
Russell v. Unemployment Ins. Appeal Bd., 2000 WL 1211216,
at *2 (Del. Super. May 31, 2000) (quoting K-Mart, Inc. v. Bowles,
1995 WL 269872, at *2 (Del. Super. March 23, 1995)).
Funk, 591 A.2d at 225.
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the power to accept an appeal filed by a claimant beyond
the appeal period.10
“Where the lateness of the appeal is
actions, and not due to an administrative error, the
Claims Deputy’s determination will become final and §
3318(b) will jurisdictionally bar the claim from further
In this instant action, the Board concluded that Mr.
untimely because he filed his appeal beyond the ten day
appeal period set forth in 19 Del. C. § 3318(b). The
record shows that Mr. Cooper did not file his appeal
until February 13, 2009, which was almost five months
after the expiration of the appeal period.
the record also reflects that the Department of Labor
Crawford v. Unemployment Ins. Appeal Bd., 1999 WL 458725,
at *2 (Del. Super. June 18, 1999) (citing Rosembert v. Perdue Inc.,
1996 WL 662988, at *3 (Del. Super. Sept. 12, 1996)).
Hartman v. Unemployment Ins. Appeal Bd., 2004 WL 772067, at
*2 (Del. Super. April 5, 2004).
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Consequently, there is substantial evidence on the record
to support the Board’s conclusion, and the Court finds
that it is free from legal error.
Notwithstanding that conclusion, pursuant to 19 Del.
C. § 3320, the Board has the power to hear a late appeal
administrative error which deprived the claimant of the
opportunity to file a timely appeal.
That authority also
includes situations when the interests of justice would
not be served by inaction.12
However, as the Delaware
Supreme Court has noted those such situations “have been
few and far between.”13
It is readily apparent that the instant action does
evidence of any administrative error on the part of the
Department of Labor in sending the notification to Mr.
Cooper’s last known address.
Nor does the Court find
that these circumstances otherwise rise to a level where
See Sheppard v. GPM Investments, LLC, 2008 WL 193317, at
*2 (Del. Super. Jan. 23, 2008).
See Funk, 591 A.2d 222 (Del. 1991).
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the Board should have acted in the interests of justice.
For the foregoing reasons, the appeal filed by Mr.
Cooper is denied, and the decision of the Unemployment
Insurance Appeals Board is affirmed.
IT IS SO ORDERED.
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