Opinion
C.A. No. 02A-03-007 SCD
Submitted August 6, 2002
Decided September 16, 2002
ORDER
This 16th day of September 2002, upon consideration of Petitioners opening brief, Respondents' answering brief, and the record in this case, it appears that: (1) Petitioner Carl Fuller ("Fuller") has filed an appeal from the decision of the Unemployment Insurance Appeal Board ("UIAB") denying a further hearing from an Appeals Referee decision on December 27, 2001, for Petitioners failure to timely appeal. (2) Fuller was employed by Tropical Labor and Nursing ("Tropical") a temporary placement firm, where he was placed at various nursing homes as a Certified Nursing Assistant ("CNA"). Fuller last worked for Tropical on Sunday, September 30, 2001, when he opted to work a shift originally scheduled for his wife. The following morning, Fuller arrived at Tropical to collect his paycheck where he refused afternoon placement stating that he would no longer work for under $15.00 per hour. Such a wage was not economically feasible for Tropical given current contracts. Tuesday, October 2, 2001, Fuller again refused placement for under $15.00 per hour and he has not been placed by Tropical since. (3) Fuller filed for unemployment benefits on October 7, 2001. A Claims Deputy found Fuller entitled to such benefits. Tropical appealed the decision and the matter was heard before an Appeals Referee on December 27, 2001. Fuller failed to appear. On December 28, 2001, the Appeals Referee issued a decision reversing the Claims Deputy's finding and denying Fuller unemployment benefits. Fuller had until January 7, 2002 to appeal the Appeals Referee's decision to the UIAB. Petitioner did not file his appeal to the UIAB until February 20, 2002. (4) As a matter of statutory jurisdiction, the UIAB is precluded from accepting a late appeal. Further, the function of this Court on review of an UIAB decision is to determine whether the decision is supported by substantial evidence and is free from legal error. Substantial evidence is that which is relevant to a reasonable person, or that which adequately supports a reasonable conclusion. This Court does not weigh the evidence, determine questions of credibility, or make factual findings.
Testimony in the record demonstrates that due to a large shortage of CNA's it was proper for Petitioner and his wife to exchange shifts.
The record reflects Petitioners customary remuneration as between $11.00 and $13.00. The record reflects this as reasonable given Petitioners qualifications.
DEL. CODE. ANN. tit. 19 Del. C. § 3318(c) provides in part:
The parties shall be duly notified of the. . . [Appeals Referee's] decision together with its reason therefore, which shall be deemed to be final unless within 10 days after the date of notification or mailing of such decision further appeal is initiated [to the UIAB] pursuant to § 3320 of this title.
Petitioner calls attention to two separate documents as evidence of timely filing. This Court will not review evidence that was not presented to the UIAB during Fuller's appeal from the Appeals Referee as it is not evidence of record. Nonetheless, this Court is not persuaded as both documents are dated beyond the January 7th appeal deadline and add nothing to Petitioners prayer.
See Funk v. UIAB, 591 A.2d 222, 225-227 (Del. 1991); see Chrysler Corp. v. Dillon, 327 A.2d 605, 605 (Del.Super. 1974); see also supra note 3.
General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960).
Boughton v. Div. of Unemployment Ins., 300 A.2d 2, 26-27 (Del.Super. 1972); see also Ridings v. Unemployment Ins. Appeal Bd., 407 A.2d 238, 239 (Del.Super. 1979).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994).
Johnson v. Chrysler Corp., 231 A.2d 64, 66-67 (Del.Super. 1985).
(5) The record is clear. Fuller was last employed on September 30, 2001. Thereafter, on October 7, 2001, Fuller applied for and received unemployment benefits. Tropical appealed the decision on December 27, 2001, and won. Petitioner had until January 7, 2002 to appeal. The record shows that Fuller appealed to the UIAB on February 20, 2002, a full forty-four (44) days after the expiration of the statutory appeal period. (6) Therefore, the only issue before this court is whether the UIAB properly determined that Petitioner failed to appeal the Appeals Referee decision on or before January 7, 2002. The record clearly demonstrates Fuller's failure to appeal timely.
THEREFORE, the decision below is AFFIRMED. IT IS SO ORDERED