Opinion
C.A. No. 06A-02-004-JOH.
October 20, 2006.
Upon Appeal from the Unemployment Insurance Appeals Board — AFFIRMED.
Frank Finocchiaro, Claymont, Delaware.
Panco Management LLC of New Jersey, Attention: Rita Glass, HR, Saddle Brook, New Jersey.
Mary P. Bailey, Esquire, Deputy Attorney General, Wilmington, Delaware.
Dear Mr. Finocchiaro, Ms. Bailey, and Ms. Glass:
Francis Finocchiaro appeals the decision of the Unemployment Insurance Appeal Board denying his motion to re-open his appeal before that Board. He had appealed an unfavorable decision of an Appeals Referee, but failed to appear at the hearing before the Board on his appeal. After requesting that the Board reconsider or re-open the matter, it declined to do so . The Court finds the Board did not abuse its discretion in that denial.
Facts
On June 20, 2005, Finocchiaro was hired by Panco Management of New Jersey, LLC to do maintenance turnover at the Top of the Hill Brandywine Apartments. At the time he was hired, Finocchiaro was asked if he had any limitations on lifting, ladders, etc. He responded in the negative. On June 23, after refusing to move a refrigerator stating he was not allowed to lift more than 25 pounds, Finocchiaro's employment was terminated as such work is regularly required of a person in Finocchiaro's position.
Procedural History
Finocchiaro filed for benefits effective May 1, 2005. He then filed for additional benefits effective June 26, 2005. In a July 19, 2005 Notice of Determination, the Claims Deputy stated:
The employer states that the claimant was terminated. No further information or documentation was provided. . . . The employer has provided no evidence of misconduct. They have not met the burden of proof.
Notice of Determination dated July 19, 2005.
The Deputy then held Finocchiaro was discharged without just cause and that he was eligible to receive benefits for each week of unemployment insurance benefits claimed for which the division determines he met the eligibility requirements of 19 Del.C. § 3315.
On July 29, Panco faxed to the Division of Unemployment a notice of appeal of the Claims' Deputy July 19, 2005 decision. After an August 31, 2005 hearing, before an Appeals Referee, the deputy's decision was reversed, and the referee found Finocchiaro was "disqualified from the receipt of unemployment benefits. . . ."
Referee's Decision dated September 6, 2005, at page 2.
Finocchiaro timely appealed this decision on September 12, 2005, stating:
I appeal the decision of the Referee because:
Because I feel it was not necessary to tell my restrictions and was able to do the work that I applied for, for 3 days, after which I was inform of the heavy lifting.
Appeal Request Notification dated September 12, 2005.
The Unemployment Insurance Appeal Board set a hearing on January 4, 2006. The Notice stated "Failure to appear for your hearing in a timely manner can result in your appeal being dismissed." When Finocchiaro failed to appear for the scheduled hearing, his appeal was dismissed. Along with the Notice of Dismissal, Notice of Right of Appeal was sent to Finocchiaro.
Decision of the Appeal Board on Appeal, dated January 5, 2006.
Finocchiaro filed an appeal on January 12, 2006 asserting he thought the date of the hearing was January 6, not January 4, and asked the Board for another chance. The Board considered this to be a request for a rehearing on the matter. Declining to re-open the matter, the Board voted to deny the application for reconsideration because:
Finocchiaro letter dated January 11, 2006.
A review of the file shows that the Claimant was sent proper notice to the address of record. There was no Department error which could have caused the notice to be received untimely. Therefore, the Board does not find that there is a basis upon which to exercise its discretion and permit further hearing in this matter.
Parties' Claims
Finocchiaro timely filed the appeal now before this Court, under 19 Del.C. § 3323, arguing:
I was not represented at the meeting, because I wrote down the wrong . . . (sic) In the first hearing, the disability act of 1972 wasn't held up. because it was to be voluntary. And I did ask for assistance and was denied.
In his Opening Brief, Finocchiaro attempts to present the issue to have been treated by the Board at the January 4, 2006 hearing. He states he was terminated for not being able to give 100%, the reason he was terminated from his previous position. He maintains at no time did his employer ask about his back or inform him he would be doing heavy lifting. He asserts he was able to do what was requested of him for the first three days. When he was told to move stoves, dishwashers and refrigerators, he asked to use a dolly and told a coworker of his back problems. He was told he could not use a dolly as it would take too much time. He argues, "[a]ccording to the ADA of 1990 the employer is to accommodate or make modifications to the work place to enable the individual to perform the essential function with in reason." When asked about the incident, Finocchiaro informed George Thomas, his supervisor, about his disability and restriction. Thomas told Finocchiaro to finish the day but that he would be let go. Therefore, Finocchiaro claims there was employment for him to do. He contends Panco also violated the Veterans Readjustment Act of 1974. He asserts, when he applied for the job, he was informed the work would be hanging doors, doorknobs, door latches and bath tiles, work he could do. Because he believed he could to the mentioned work, he did not inform Panco of his inability to do heavy lifting. Finocchiaro conclude she was let go without just cause as he could do light carpentry work and other assigned work, but not the heavy lifting work.
Finocchiaro Opening Brief.
The Board argues that Finocchiaro in his appeal to this Court does not address his failure to appear before the Board or its denial of his request for a rehearing. Instead, it notes he only addresses the merits of his termination. The Board avers it does not take a position on the underlying merits of Finocchiaro's termination, but is briefing only the issues raised by his non-appearance at the Board hearing and its denial of his request for a re-hearing.
The Board's answering brief did have attached, as the rules of this Court require, copies of the unreported cases it cites. Superior Court Civil Rule 107(f).
The Rules and Regulations of the Unemployment Insurance appeal Board, effective January 11, 2003 pertaining to rehearings are:
7.0 Rehearing. At any time subsequent to a Board decision but prior to the Board's decision becoming final, any party to the appeal may request by motion, with notice to all parties, a rehearing before to Board. The motion shall set forth briefly and distinctly the grounds for the motion. The Board shall promptly consider the motion for reconsideration. A copy of the Board's decision on the motion for rehearing shall be mailed to all parties or their counsel if represented by an attorney.
7.1 The grant or denial of a motion for rehearing is solely within the discretion of the Board.
7.2 The Board shall not consider any motion for rehearing filed after the Board's decision has become final.
7.3 The Board shall not consider any motion for rehearing of the Board's denial of a proper motion for rehearing.
The Board maintains Finocchiaro is not entitled to judicial review of the merits of his case because he failed to avail himself of the administrative hearing before the Board despite being granted a hearing and being properly notified of the hearing date and time by not appearing at the designated time and place. This failure resulted in its dismissal of Finocchiaro's appeal.
The Board claims since Finocchiaro did not appeal its dismissal or present any argument concerning its action in his brief, that there is a waiver of a claim of error on appeal. In addition, the Board contends there was no error when it dismissed Finocchiaro's appeal for failure to prosecute when he did not appear at the scheduled 19 Del.C. § 3320 hearing.
The Board argues it did not abuse its discretion when it denied Finocchiaro's request for a rehearing. It asserts its decision to deny Finocchiaro a rehearing was a discretionary act and this Court's review is limited. It contends when Finocchiaro requested a rehearing, he offered no reason why this request should be granted other than he wrote the incorrect date in his calendar. The Board contends this reason was insufficient to re-open the matter. Finocchiaro offered an excuse by simple neglect on his part but he did not offer any error on the part of the Department of Labor explaining his absence. The Board asserts Finocchiaro's excuse is mere negligence for his failure to appear but that it does not rise to the level of excusable neglect nor offer an extraordinary circumstance compelling the Board to reopen the hearing.
Standard of Review
On an appeal from the Board, this Court's role is to determine whether the Board's conclusions are supported by substantial evidence and are free from legal error. This Court is does not weigh the evidence, determine questions of witness credibility or make its own factual findings and conclusions. The Court relies on the Board's determination for the findings of fact after additional evidence has been taken.
General Motors v. Jarrell, 493 A.2d 978, 980 (Del.Super. 1985).
Delaware Alcohol Beverage Control Commission v. Newsome, 690 A.2d 9006, 910 (Del. 1996).
Air Mod Corp. v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Discussion
Before even considering the merits of this appeal, this Court must first determine whether it has jurisdiction to consider the merits of Finocchiaro's claim. His argument to this Court relates only to the issues involving his termination. But he failed to attend the appeal hearing scheduled for January 4, 2006, where those issues would have been considered. Because of his failure to appear, Finocchiaro did not exhaust all available administrative remedies. Thus, this Court does not have jurisdiction to hear the merits of the case. This Court does have jurisdiction, however, to determine whether the Board abused its discretion in its denial of Finocchiaro's request for a rehearing in light of his claim he recorded the incorrect date in his calendar.By analogy, in reviewing the Board's exercise of discretion, the Court looks to the standards set forth in Superior Court Civil Rule 60(b) as there is not a Board regulation or rule defining excusable neglect. Rule 60 (b) provides relief from a final judgment, order or proceeding if there is, among other reasons, excusable neglect. Excusable neglect is more than a showing of negligence or carelessness without a valid reason, but neglect which may have been the act of a reasonably prudent person under the circumstances. Here, Finocchiaro offers no justification for his failure to appear other than he entered the hearing under the wrong date in his calendar. This is not more than a showing of me re carelessness or neglect. The Court finds the Board's denial of Finocchiaro's request for a rehearing was not an abuse of discretion. The neglect was only by Finocchiaro. There was no error by an employee of the Department of Labor so notice of the hearing was not received by Finocchiaro in time for him to appear at the hearing .
Mullins v. Dover Downs, Inc., 1998 WL 278402 (Del.Super.), at *2.
Cohen v. Brandywine Raceway Assoc., 238 A.2d 320, 325 (Del.Super. 1968).
Conclusion
Upon consideration of the pleadings before this Court and the record below, the Board's ruling is AFFIRMED.