IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
Fasanmi Isijola,
Appellant,
v.
Emily P. Bissell
Hospital and
Unemployment Insurance
Appeals Board,
Appellees.
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C. A. No.: 09A-02-014 (CHT)
OPINION and ORDER
Upon Appeal From a Decision of the
Unemployment Insurance Appeals Board
Submitted: November 2, 2009
Decided: February 15, 2010
Erika Y. Tross, Department of Justice, Wilmington,
Delaware; Attorney for the Employer/Appellee.
Fasanmi Isijola, pro se.
TOLIVER, JUDGE
Before the Court is an appeal by Fasanmi Isijola from
a decision of the Unemployment Insurance Appeals Board.
The
Board
affirmed
the
determination
by
the
Appeals
Referee that Mr. Isijola failed to file a timely appeal,
pursuant to 19 Del. C. § 3318(b).
That which follows is
the Court’s resolution of the issues so presented.
STATEMENT OF FACTS AND
NATURE OF THE PROCEEDINGS
On August 1, 2005, Mr. Isijola began his employment
as a certified nursing assistant with Emily P. Bissell
Hospital (“EPBH”).
was
sent
to
Mr.
On or about August 26, 2008 a letter
Isijola
by
Vincent
P.
Meconi,
the
Secretary of the Delaware Department of Health and Social
Services.
The
letter
stated
that
Mr.
Isijola
was
terminated as an employee of EPBH effective as of the
date of the letter based upon the interaction between Mr.
Isijola and a patient at EPBH on July 5, 2008 which was
alleged
to
have
included
the
Page 2 of 7
use
of
inappropriate
language and other behavior.1
The incident was reported
to have been recorded by a surveillance camera.
At some point in time following his dismissal, Mr.
Isijola filed a claim for unemployment benefits.
His
claim was denied by a Claims Deputy on September 30,
2008.
That decision was mailed to his address of record
with the UIAB.2
He filed an appeal on November 5, 2008.
A hearing was held before the Board solely on the
issue of the timeliness of Mr. Isijola’s appeal.
The
Board affirmed the determination by the Claims Deputy
that Mr. Isijola’s failure to file a timely appeal barred
further proceedings pursuant to 19 Del. C. § 3318(b).
Mr. Isijola appealed that decision to this Court on
February 27, 2009.
1
As a result of that conduct, Mr. Isijola was deemed to have
violated the Patient’s Rights Doctrine, specifically 16 Del. C. §
1121(1).
2
That address was listed as P.O. Box 251, Bear, Delaware
19701.
Page 3 of
7
DISCUSSION
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
record to support the Board’s findings, and that such
findings are free from legal error.3 Substantial evidence
is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.4
does not
weigh the
evidence,
An appellate court
determine
questions
of
credibility, or make its own factual findings.5
Untimely Appeal
The Delaware Code, specifically, 19 Del. C § 3318(b),
provides that unless a claimant files an appeal within
ten calendar days after the decision of the Claims Deputy
3
Employment Ins. Appeals Bd. of the Dep't of Labor v. Duncan,
337 A.2d 308, 309 (Del. 1975).
4
Oceanport Indus. v. Wilm. Stevedores, 636 A.2d 892, 899
(Del. 1994).
5
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
Page 4 of
7
being mailed to his or her last known address on record,
the decision shall be final.
Neither the Board nor the
Appeals Referee has the power to accept an appeal filed
by
a
claimant
beyond
the
exceptional circumstances.6
ten
In
day
period
addition,
the
absent
Board,
pursuant to 19 Del. C. § 3320, has the authority to hear
an appeal sua sponte beyond the ten day period in cases
where there has been some 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 the Board’s
failure to act.7
However, as the Delaware Supreme Court
has noted those such situations are extremely rare.8
For
example, when an appeal is belatedly filed due to the
claimant’s unintentional error or accidental action, and
6
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)).
7
See Sheppard v. GPM Investments, LLC, 2008 WL 193317, at
*2 (Del. Super. Jan. 23, 2008).
8
See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222 (Del.
1991).
Page 5 of
7
not
due
to
an administrative
error,
§
3318(b)
will
jurisdictionally bar the claim from further appellate
consideration.9
In the instant situation, the Board rendered its
decision that Mr. Isijola’s appeal was untimely because
he filed his appeal beyond the ten day appeal period
allotted by 19 Del. C. § 3318(b).
Indeed, Mr. Isijola
did not file his appeal until November 5, 2008, almost
one month beyond the time so allowed.
There was no
dispute that the address to which the decision was sent
was in fact Mr. Isijola’s correct address.
Nor is there
any other evidence of administrative error or that the
interests of justice would otherwise require the Board to
hear his appeal.
The decision of the Board must be
deemed to be supported by substantial competent evidence
in the record and free from legal error.
9
Hartman v. Unemployment Ins. Appeal Bd., 2004 WL 772067, at
*2 (Del. Super. April 5, 2004).
Page 6 of
7
CONCLUSION
For the foregoing reasons, the Court concludes that
the decision of the Unemployment Insurance Appeals Board
must be, and hereby is, affirmed.
IT IS SO ORDERED.
________________________
TOLIVER, JUDGE
Page 7 of
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