Opinion
C.A. No. K10A-08-006 WLW.
Submitted: August 4, 2011.
Decided: August 11, 2011.
Upon an Appeal of a Decision of the Unemployment Insurance Appeal Board.
Affirmed.
Carol Brudon, pro se.
David H. Williams, Esquire and James H. McMackin, III, Esquire of Morris James LLP, Wilmington, Delaware; attorneys for Dolgencorp, LLC.
ORDER
Upon consideration of the briefs before this Court and the record below, it appears that the decision of the Unemployment Insurance Appeal Board ("UIAB" or "Board") dismissing an appeal of a claim for benefits must be affirmed for the reasons set forth below.
FACTS
1. Pro-se claimant, Carol Brudon, ("Brudon" or "Appellant") appeals a decision of the UIAB reviewed on August 11, 2010 where the Board determined not to accept the appeal as timely. Brudon filed her appeal from the referee's decision several months after the appeal deadline of March 12, 2010.
2. Brudon was employed by Dollar General from November 10, 2007 through November 13, 2009 as a store manager. She was terminated for manipulating time-card records and refusing to cooperate in an investigation into this matter.
PROCEDURAL HISTORY
3. Her appeal from the Claims Deputy determining that she was discharged from work for good cause was dated and mailed on December 4, 2009. She appealed to the Appeals Referee which affirmed the Claims Deputy's decision. This decision must have been appealed to the Board by March 12, 2010.
4. The Appeals Referee's decision was mailed on March 2, 2010 to Appellant's last address of record and was not returned by the U.S. Postal Service as undeliverable. Brudon did not appeal to the Board until June 2, 2010, months after the due date for an appeal.
5. The Board, on August 11, 2010, considered the appeal finding that the deadline was prominently displayed with instructions as to how to appeal by the final date.
6. In its August 27, 2010 decision, the Board declined to assume jurisdiction of the case pursuant to 19 Del. C. § 3318(c).
Standard of Review
7. The Court has jurisdiction pursuant to Title 19, Section 3323 of the Delaware Code. In the absence of fraud, the Court defers to the Board's finding of facts. On appeal from a decision of the UIAB, the scope of the Court's review is limited to a determination of whether the Board's decision is supported by substantial evidence, and whether that decision is free from legal error. The Court possesses limited review power of the factual findings of an administrative agency. Specifically, "the findings of the UIAB as to the facts, if supported by the evidence and in absence of fraud, shall be confined to the question of law. The Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. Rather the Court is restricted to a consideration of the record.
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960); N.A. v. Capella, 2003 WL 1880127 (Del. Super.).
Unemployment Appeal Board v. Duncan, 337 A.2d 308 (Del. 1975); Ridings v. Unemployment Ins. Appeal Board, 407 A.2d 238, 239 (Del. Super. 1979).
Malatesta v. Thilhol Corp., 1994 WL 146026 (Del. Super. 1994) (quoting Delaware Code Ann. tit. 19 § 3323 (a)).
Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).; Hubbard v. Unemployment Ins. Appeal Board, 352 A.2d 761 (Del. Super. 1976).
DISCUSSION
8. Appellant's opening brief on appeal does not address the issue of whether the Board properly dismissed her case on jurisdictional grounds or committed legal error in not exercising its limited discretion to allow the appeal to proceed despite being late.9. Brudon first discusses her failure to comply with appeal deadlines in her reply brief. She contends that she thought the dates were not "set in stone" and her circumstances would, as inferred by the Court, excuse the untimely appeal to the board. She apparently took on additional employment in the interim between being discharged and the Board appeal and this delayed her filing the appeal.
10. Under the facts as presented, Brudon does not complain that she did not get notice of the time to file the appeal, nor is there a mistake by the Department of Labor in mailing or processing the paperwork for the appeal.
11. The Court will not consider issues on appeal that were not raised on the record below. Here the only issue is whether the Board was justified in affirming the denial of benefits. There was no compliance with the statutory deadlines and the Board committed no error of law by not exercising its limited discretion to accept Brudon's late appeal. The explanation as stated in Brudon's reply brief does not justify why she delayed filing her appeal.
CONCLUSION
For the foregoing reasons, the decision of the Board is affirmed.IT IS SO ORDERED.