Summary
holding that a claimant's failure to check the location where he regularly receives mail does not merit a waiver of the timeliness requirements.
Summary of this case from Mcleod v. Unempl. Ins. Appeals Bd.Opinion
C.A. No. 07A-05-014 SCD.
Submitted: March 3, 2008.
Decided: March 24, 2008.
Decision upon Appellant's Appeal from a Decision of the Unemployment Insurance Appeal Board.
OPINION
The matter before this Court is an appeal by Richard E. Cooke, Jr. ("Appellant") from the February 20, 2007 decision of the Unemployment Insurance Appeal Board ("UIAB" or "Board") in which the UIAB denied his claim for unemployment compensation benefits.
Procedural History and Decision of the UIAB
On January 28, 2007, Appellant sought payment of unemployment benefits from the UIAB after his employment was terminated by his employer, Boscov's Department Store, LLC ("Employer"). The Employer claimed that the Appellant was terminated for poor attendance. On February 20, 2007, the Claims Deputy of the Delaware Department of Labor determined that the Appellant was terminated with just cause and was therefore disqualified from receiving unemployment compensation benefits. Specifically, the Claims Deputy cited three warning notices given to the Appellant before he was terminated. The third warning, signed by Appellant, stated that if he made one more "call out," he would no longer be employed. The Deputy's Notice of Determination stated that "[t]his determination becomes final on 03/02/2007 unless a written appeal is filed."
R. at 13.
Id.
On March 27, 2007, twenty-five days after the filing deadline, Appellant appealed the decision of the Claims Deputy to the Appeals Referee. A hearing to determine the timeliness of the appeal was scheduled for April 18, 2007. After the hearing, the Appeals Referee issued a decision finding "no evidence of any administrative error by the Department of Labor" which would have led to the untimely filing. It further found that the Appellant's excuse for not filing in time was not a mitigating circumstance "to allow any waiver of the timeliness requirements which are jurisdictional in nature." Accordingly, the Appeals Referee affirmed the Deputy's decision citing an absence of "jurisdiction to entertain the merits of the claimant's appeal regarding his separation issue." The decision of the Appeals Referee was mailed to the Appellant on April 24, 2007, which included notice that the final day to appeal the Referee's decision was May 4, 2007.
Id. at 15, 18.
Id. at 21.
Id.
Id. at 19.
On May 7, 2007, the Appellant filed an appeal of the Appeal Referee's decision. The Appeal Board reviewed the appeal on May 16, 2007. Pursuant to 19 Del. C. § 3318(c), the Board determined that it was without jurisdiction to hear the Appellant's appeal. In its decision, the Board found that the appeal was not timely and the Appellant did not offer a sufficient reason for filing late. The Board declined to accept the appeal and entered the decision of the Appeals Referee as "final and binding."
Id. at 41.
Title 19, Section 3318(c) of the Delaware Code 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."
R. at 42.
Id.
On May 30, 2007, Appellant timely filed a pro se appeal. In response to a Final Delinquent Brief Notice, Appellant submitted a hand-written, single-page "Opening Brief" which does not meet the form required by Superior Court Civil Rule 107(e), was not properly served, and does not address the issue of his untimely appeal to the Board. Counsel for both the Employer and the Board timely filed their Answering Briefs. A Final Delinquent Brief Notice was mailed to Appellant on January 25, 2008 giving him 10 days to file a Reply Brief. No Reply Brief has been filed.
Id. at 45.
Standard of Review
The scope of review for an appeal of this nature is whether the Board abused its discretion. Absent abuse of discretion we must uphold a decision of an administrative tribunal.
Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991).
Id.
Discussion
This Court's review is limited to examining the underlying record to determine whether the Board abused its discretion in refusing to hear the Appellant's untimely appeal. Title 19, section 3318(c) of the Delaware Code 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." The Board has discretion to hear an untimely appeal sua sponte pursuant to 19 Del. C. § 3320. The UIAB's discretion to assume jurisdiction over an untimely appeal is warranted if the lateness of the filing was traced back to an error of the UIAB, or if the appellant proffers an excuse which could warrant the Board's sua sponte exercise of jurisdiction.Here, the Board found that the Department did not contribute to the lateness of the Appellant's appeal. The Board explained that although the Appellant did not receive his mail until after March 2, 2007 because he was staying at his girlfriend's house and not at his father's residence where he receives mail, such an excuse "is not considered a mitigating circumstance in order to allow any waiver of the timeliness requirements which are jurisdictional in nature." It is reasonable to expect that a claimant awaiting an important decision from an appeal tribunal would regularly check the location at which he receives mail. No other circumstance existed to justify the Board's acceptance of the appeal sua sponte.
The Referee's decision was sent to the Appellant's address of record on April 24, 2007 containing the specific instruction that the last day to file an appeal was May 4, 2007. The Appellant failed to file his appeal before that deadline.
In light of the substantial evidence in support of the UIAB's decision, as well as the absence of any error of law or abuse of discretion, the decision of the UIAB is hereby AFFIRMED.
IT IS SO ORDERED.