Opinion
Civil Action No. 10A-03-017-JOH.
Submitted: September 27, 2010.
Decided: December 29, 2010.
Upon Appeal From the Unemployment Insurance Appeal Board — AFFIRMED.
Vincent M. Cassello, Jr., Bear, Delaware, Appellant.
Jennifer C. Jauffret, Esquire, and Lori A. Brewington, Esquire, of Richards, Layton, Finger, Attorneys for News Journal Company, Appellee.
Phillip G. Johnson, Esquire, Department of Justice, Wilmington, Delaware, attorney for Unemployment Insurance Appeal Board, Appellee.
This case comes to the Superior Court as an appeal from the Unemployment Insurance Appeal Board ("Board"). Vincent Cassello ("Cassello") filed a petition for unemployment benefits. On November 2, 2009 the Claims Deputy made a determination that Cassello was discharged from his employment for just cause and he was thus denied benefits. Cassello timely appealed the Claims Deputy's determination, and a hearing before an Appeals Referee took place on December 10, 2009. The Referee affirmed the denial of benefits. That decision was dated and mailed December 10, 2009. Although the last day to appeal the decision was December 20, 2009, Cassello did not appeal to the Board until January 25, 2010.
The Board declined to accept Cassello's untimely appeal, notwithstanding his allegation that he never received notice of the Referee's decision. This Court finds that the opinion of the Board is based on sufficient evidence, its conclusions are free from legal error, and there was no abuse of discretion. The ruling below is AFFIRMED.
Factual Background
Cassello was employed as a paper handler by the News Journal from October 16, 1985 until October 6, 2009 when he was discharged from his employment. On September 23, 2009, he was working a 4 p.m. to 12 a.m. shift. On that date, Cassello testified before the Appeals Referee that around 7:30 p.m. he received an emergency phone call which allegedly required him to leave work and go home immediately. Cassello has since made vague statements about police activity at his house that night. Cassello said he looked for a manager or supervisor to notify, but not seeing any, he left work without the authorization from management to do so. After leaving, he did not call anyone to report his early departure. The next day, September 23, 2009, Cassello met with the pressroom manager and informed him that he had an emergency and had to go home early. He was sent home that day, and was later was terminated.
Cassello filed a timely application for unemployment benefits. The Claims Deputy denied his claim. Cassello timely appealed that decision to an Appeals Referee. He and News-Journal representatives appeared at the Appeals Referee hearing on December 10, 2009. Testimony was taken, and at the conclusion, the Appeals Referee indicated a decision would be rendered within 30 days. The Appeals Referee informed both sides that the party which disagreed with his decision had a right to appeal his to the Unemployment Insurance Appeal Board.
Board Transcript p. 44.
Id. at p. 43.
The Appeals Referee's decision was rendered the same day as the hearing, December 10th. The Appeals Referee determined Cassello had been terminated for just cause and was disqualified from benefits. The decision noted it was mailed on December 10th and that the deadline to file an appeal was December 20, 2009.
On January 25, 2010, Cassello appeared at the Board's offices inquiring about his December 10th appeal hearing. Told a decision had been rendered, he submitted a notice of appeal that day indicating he had not received the Appeals Referee decision. The Board met on February 3, 2010, and declined to allow the untimely appeal saying:
Id. at p. 45.
The Claimant's appeal to the Board is not timely. 19 Del.C. § 3318(c) provides that a referee's decision "shall be deemed to be final unless within 10 days after the date of notification or mailing of such decision further appeal [to the Board] is initiated pursuant to § 3320 of this Title." This time limit is jurisdictional, although the Board may, in cases of severe circumstances, exercise its discretion under § 3320 to accept the appeal sua sponte. Funk v. UAIB, 591 A.2d 222, 225 (Del. 1991). The Claimant filed his appeal by personal delivery. In such cases, the Department deems the date of the receipt for personal delivery signed by the Agency Representative be date of the appeal. The Claimant's appeal was filed January 25, 2010, more than one month late.
OPINION AND DECISION:
The Board declines to accept the late appeal. Delaware law presumes that a mailing properly addressed has been received by the addressee. Lively v. Dove Wipes Co., 2003 WL 21213415 (Del. Super.). Mere denial of receipt, without supporting evidence, is not sufficient to rebut that presumption. Martin v. Unemployment Insurance Appeal Board, 2004 WL 772073 *3 (Del. Super.). The appellate jurisdiction of the Board, like that of any court, rests on perfecting the appeal within the period of limitations fixed by law; if not filed on a timely basis, the reviewing body must dismiss for lack of jurisdiction. Wilson v. Masten Lumber, 1993 WL 590326 (Del. Super.). The Referee's Decision was sent to Claimant's address of record with DOL; the Claimant has alleged that he failed to receive notice of the decision. However, the Claimant has offered no corroborating evidence. The face of the Referee's Decision displayed a notice of the Claimant's right of appeal and instruction about how to appeal. It also displayed the following notice: "Last Day to File Appeal: 12/20/10." The Board finds that the Claimant has been given notice and opportunity to be heard sufficient to satisfy the requirements of due process.
Id. at pp. 46-47.
Cassello timely filed a notice of appeal to this Court of that decision of the Board.
Parties' Contentions
Cassello's only contention is that he never received any written notification that a decision by the Appeals Referee had been reached. It was not until he contacted the unemployment office to see if a decision had been reached, did he become aware that a decision had in fact been reached the day of the hearing. In response the News Journal contends that Cassello's appeal of the Appeal Referee's decision was not filed in a timely manner and therefore is time-barred. That Cassello has provided no evidence to suggest he did not receive the notice of the decision from the Appeals Referee and that mere denial of receipt, without supporting evidence, is not sufficient to rebut the presumption that a properly addressed mailing has been received by the addressee.
Cassello argues on appeal that he contacted the unemployment office in the beginning of January to inquire as to the status of his case but that the person he spoke to never looked up his case number and informed him that it could take up to 30 business days for a decision to be reached. It was not until January 22, when he again contacted unemployment that he became aware that a decision had been reached the same day of the hearing.
Standard of Review
In reviewing a decision on appeal from the Board, this Court must determine if the decision is supported by substantial evidence and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The standard of review "requires the reviewing court to search the entire record to determine whether, on the basis of all of the testimony and exhibits before the agency, it could fairly and reasonably reach the conclusion that it did." Since the Board's decision before the Court is the rejection of Cassello's appeal as untimely, this Court looks to see if the Board abused its discretion in doing so.
Unemployment Ins. Appeal Board v. Duncan, 337 A.2d 308 (Del. 1975).
Oceanport Ind. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994).
National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del. Super. 1980).
Funk v. Unemployment Ins. App. Bd., 591 A.2d 222, 225 (Del. 1991).
Discussion
On review from a Board's decision, a Court's decision is bound to the record that was presented before the Board. Therefore, the Court will not consider the letter from the postal service attached to Cassello's opening brief which was not part of the record presented before the Board. In addition, it is dated seven months after he filed his notice of appeal for a Board hearing. The issue, on appeal, is whether the Board's decision in declining to accept Cassello's untimely appeal, supported by substantial evidence in the record and is free from legal error or is an abuse of discretion.The Board declined to accept Cassello's untimely appeal in its March 24th decision. Noting that it could, in severe circumstances, exercise its discretion under Title 19 § 3320 and accept the appeal sua sponte, the Board declined to do so in this case. The Board is "extremely cautious" in assuming jurisdiction and does so "only in those cases 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, or in those cases where the interests of justice would not be served by inaction."
Title 19 of the Delaware Code § 3318(c) provides that a referee's decision "shall be deemed to be final unless within 10 days after the date of notification or mailing of such decision further appeal [to the Board] is initiated pursuant to § 3320 of this Title."
Funk v. Unemployment Ins. Appeal Board, 591 A.2d 222, 225 (Del. 991).
Delaware law presumes that a mailing properly addressed has been received by the intended claimant, and that mere assertion that one did not receive the decision is not sufficient for the Board to assert jurisdiction of an untimely appeal. Mere denial of receipt without supporting evidence is not sufficient to rebut this presumption.
Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super.).
Funk, 591 A.2d at 225.
Martin v. Unemployment Ins. Appeal Bd., 2004 WL 772073, at *3 (Del. Super.).
In Funk v. Unemployment Ins. Appeal Board, the Delaware Supreme Court affirmed the Board's refusal to consider the substance of the appeal because it had been untimely filed. In that case the decision affirming the denial of benefits, was misdelivered to the home of Funk's parents who lived on the same street. The decision was mailed to Funk on April 10th but he did not receive it until April 24th. Although Funk filed an appeal the following day, it was filed five days late and thus time-barred. The Supreme Court further noted that it was reasonable to expect a claimant awaiting an important decision to regularly check the locations where he receives his mail, as Funk himself admitted that his mail had in the past been misdelivered to his parents' address. The Board refused to consider the substance of Funk's appeal and the Supreme Court found no abuse of discretion.
Funk, 591 A.2d at 224.
Id. at 226.
Id. at 225-26.
The Supreme Court said in Funk the Board had wide discretion in the processing of appeals. The decision of the Board not to hear on appeal is discretionary and would only be reversed if there were an abuse of discretion. The Supreme Court also held the Board has the authority on its own motion to consider an untimely appeal. The Board in this case recognized that and still decided not to hear Cassello's appeal. Nothing in his belated appeal provided a basis for the Board, sua sponte, to even consider it. Now, many months later, in his appeal here, he presents a generalized email from the United States Postal Service about claimed difficulties in getting his mail. As noted, the Court cannot accept that addition to the record.
Funk, 591 A.2d at 225.
Id.
Id.
Hubbard v. Unemployment Ins. Appeal Board, 352 A.2d 761, 763 (Del. 1976).
This Court finds the Board did not abuse its discretion in declining to consider Cassello's untimely appeal.
Conclusion
For the reasons stated herein, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.