Opinion
C.A. No. 06A-05-008.
Submitted: June 22, 2007.
Decided: August 24, 2007.
On Appeal from a Decision of the Unemployment Insurance Appeal Board.
Gary Cohen, Smyrna, Delaware, pro se.
Allied Barton Security Services, King of Prussia, Pennsylvania, pro se.
Mary Page Bailey, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Unemployment Insurance Appeal Board.
ORDER
This 24th day of August 2007, upon consideration of Appellant's appeal from an April 5, 2006 decision of the Unemployment Insurance Appeal Board (the "Board"), it appears to the Court that:
1. Gary Cohen ("Appellant") filed an appeal in this Court on May 17, 2006 from an April 5, 2006 decision of the Board. According to the briefing schedule set by the Court, Allied Barton Security Services ("Appellee") had until August 10, 2006 to file its answering brief. On October 13, 2006, the Court sent Appellee a "Final Delinquent Brief Notice," indicating that "the Court will decide the issue on papers which have been filed if no further action of record is taken within ten (10) days from the date of this notice." The Court again wrote to Appellee, at both addresses of record, on December 1, 2006 stating that failure to file an answering brief by December 29, 2006 "may result in the Court deeming the appeal as unopposed." The Court sent Appellee a third letter on June 11, 2007 notifying Appellee that the Court still had not received an answer to the appeal. To date, Appellee has not filed anything in this appeal on its behalf.
Briefing schedule, D.I. 7.
October 13, 2006 letter, D.I. 12.
December 1, 2006 letter, D.I. 13.
June 11, 2007 letter, D.I. 14.
2. Superior Court Civil Rule 107(e) states:
If any brief, memorandum, deposition, affidavit, or any other paper which is or should be part of a case pending in this Court, is not served and filed within the time and in the manner required by these Rules or in accordance with any order of the Court or stipulation of counsel, the Court may in its discretion, dismiss the proceeding if the plaintiff is in default, consider the motion as abandoned, or summarily deny or grant the motion, such as the situation may present itself, or take such other action as it deems necessary to expedite the disposition of the case.
This Court has held that "Rule 107(e) inextricably vests in the Court the power to reverse the Board's decision for failure of the Appellee to file its answering brief." Despite adequate notice, Appellee has not filed an answering brief, nor has it provided any explanation for its inaction. Therefore, due to "Appellee's failure to diligently prosecute and file its brief pursuant to Rule 107(e)" the April 5, 2006 decision of the Board is REVERSED. The case is REMANDED to the Board for further proceedings not inconsistent with this order.
Hunter v. First USA/Bank One, 2004 WL 838715, at *4 (Del.Super.) (reversing an Unemployment Insurance Appeal Board decision where the appellee had failed to file an answering brief).
Id. at * 5.
IT IS SO ORDERED.