Church v. Ferguson.
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May 29, 2003 Jonathan Church 168 R amu nno C ircle Hockessin, DE 19707 Stephanie Ferguson 401 Brewster Drive Newark, DE 19711 RE: Jonathan Church v. Stephanie Ferguson and Unemp loyment Insurance A ppeal Board Civil Action No. 02A-10-010 WCC Submitted: February 4, 2003 Decided: May 29, 2003 On Claimant s Motion to Dismiss. Denied. Dear Mr. Church and Ms. Ferguson: Ms. Ferguson s ( Claimant ) initial claim for unemployment benefits was presented to an A ppea ls Referee who found that she had voluntarily quit her employment for personal reasons and was disqualified from receiving benefits. She appealed that decision to the Unemployment Insurance App eal Board. In spite of being notified of the Board s hearing, the employer, Jonathan C hurch ( Em ployer ), failed to appear for the hearing, and in a decision rendered on August 21, 2002, the Board reversed the Appeals Referee and awarded bene fits to the Claim ant. Th e dec ision of the Board was mailed on August 26, 200 2, an d wo uld h ave b ecom e fina l on S epte mbe r 6, 20 02. On August 29, 2002, the Employer faxed a letter to the Board requesting the matter be reope ned b ecau se he w as un able to participate on the scheduled hearing date because of related business commitments. The Board denied this motion for rehearing as he was properly noticed and chose not to attend for personal reasons connected to his business. The Board s denial of the Employer s request for a rehearing was mailed on September 30, 2002 and as such, the Board s decision would have become final on October 10, 2002. Sub sequ ently the E mpl oye r filed an ap peal to this Cou rt on O ctob er 24 , 200 2. On January 7, 2003, the Court received a letter from the Claimant arguing that the Employer s appeal should be dismissed as it was filed untimely from the Board s decision. The Court interpreted this request as a Motion to Dismiss for failing to file within the 10 day limitation set forth in 19 Del. C. Section 3323" and requested the Employer file a written response on this issue. This is the Court s decision on that motion based upon the submissions made by the parties. Title 10, section 3322 of the Delaware Code provides that a decision of the Board becomes final 10 days after the date of notification or mailing of the decision. If a motion for rehearing is made before the Board s decision becomes final, the running of the appeal period is tolled.1 The August 26, 2002 decision of the Bo ard became final on September 6, 200 2 an d rath er tha n ap peal that d ecisio n dire ctly to the C ourt, the Em ploye r soug ht a rehearing of the issue before the Board on August 29, 2002. Since this request was filed within the 10 day limitation, it tolled the period for an appeal to this Court and w as pro perly doc kete d an d co nside red b y the Boa rd. The Board s denial of the Employer s motion for rehearing was made on September 30, 2002 and would have become final on October 10, 2002. Under title 19, section 3323(a) [w]ithin 10 days after the decision of the Unemp loyment Insurance A ppeal Board has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in the Superior Court. . . . Once the matter is filed in Superior Cou rt, the civ il rules of this Court become applicable. Rule 6(a) controls the computation of time and indicates [w]hen the period of time prescribed or allowed is less than 11 days, interm ediate Saturdays, Sundays, and other legal holidays shall be excluded in the computation 2 and the initial day on which the Bo ard s order beca me fin al wo uld also not be includ ed in the computation.3 By the application of this rule, the deadline for filing the appeal would be October 24, 2002. Since the Employer s appeal was filed on that day, the appeal is considered timely.4 1 Henry v. Department of Labor, 293A.2d 578, 581 (Del. Super. Ct. 1972). 2 SUPER. CT . CIV . R. 6(a) (2003). 3 Id. 4 The Court would note that for the parties future reference, the date of filing is the day the item is actually received by the Court s Prothonotary s Office and not the date of mailing. The Employer appears to have been simply fortunate in having his mailed appeal received on the deadline. The Court also does not accept fax responses and all pleadings should be personally As a resu lt, for the reasons stated above, Claimant s Motion to Dismiss is DENIED, and the Claimant should file her answering brief to the Employer s appeal by June 30, 2003. The Employer s reply brief shall be due July 30, 2003. Sincerely yours, Judge W illiam C. Carpenter, Jr. WCCjr:twp cc: Lori Poe - Prothonotary s Office delivered to the Prothonotary s Office.
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