Opinion
C.A. No. 09A-07-006 RRC.
Submitted: February 17, 2010.
Decided: April 27, 2010.
On Appeal from a Decision of the Unemployment Insurance Appeal Board.
AFFIRMED.
Gwendolyn B. Gordon-McLeod, Wilmington, Delaware, Pro Se.
Philip G. Johnson, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the Unemployment Insurance Appeal Board.
ORDER
This 27th day of April, 2010, upon consideration of Appellant's appeal from a decision on the Unemployment Insurance Appeal Board ("the Board"), it appears to the Court that:
1. Appellant, Gwendolyn B. Gordon-McLeod, was granted unemployment benefits effective January 25, 2009, but was not granted benefits for the week ending March 7, 2009. Appellant appealed this decision of the claims deputy to a referee, and a hearing was held on April 27, 2009. After this hearing, the referee affirmed the decision of the claims deputy and stated that Appellant had failed to demonstrate that she was entitled to benefits for the week ending March 7, 2009. The referee's decision was sent to Appellant by first class mail and was not returned at any time as "undeliverable." Included in the referee's decision was a date by which Appellant could appeal to the Unemployment Insurance Appeal Board (the "Board"). This date was May 8, 2009.
Record at 12.
Id. at 17.
Id. at 12-13.
2. On May 15, 2009, Appellant filed an appeal with the Board, which was denied as untimely. The Board held that pursuant to 19 Del. C. § 3318(c) a referee's decision "shall be deemed 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 denied Appellant's appeal noting that the appeal was filed seven days after the deadline.
Id. at 39.
Id. at 40.
3. Appellant has now appealed to this Court alleging a litany of grounds as to why she should be entitled to review. Appellant states that she "filed [an] appeal dated May 2, 2009 and mailed it on May 3, 2009[,]"talked with various representatives regarding her claim, and alleges that the Board was "misinformed" about her various appearances at the unemployment offices. Thus, Appellant appears to request that this Court grant her unemployment benefits for the week ending March 7, 2009 and/or remand this case to the Board for further review.
Id. at 32.
4. While the Superior Court is empowered to review findings of the Unemployment Insurance Appeal Board, the scope of review is "limited to a determination of whether the Board's decision is supported by substantial evidence and free from legal error." "Absent any legal error, the standard of review is abuse of discretion."
Under the statutory provisions governing unemployment insurance appeals, a claimant must file his appeal within 10 calendar days after the [Referee's] determination was mailed to his last-known address or the [Referee's] determination will be deemed to be final. While the Board has discretion to grant further review of untimely appeals, such discretion is exercised rarely and primarily in cases of administrative error that has the effect of depriving a claimant the opportunity to file a timely appeal.
Starkey v. Unemployment Ins. Appeal Bd., 340 A.2d 165, 166 (Del. Super. 1975).
Prentice v. Albright Son, 2009 WL 960764 (Del. Super.).
Hefley v. Unemployment Ins. Appeal Bd., 2010 WL 376898 (Del. Supr.) (citations omitted).
5. Here, Appellant has failed to produce any evidence that the Board "abused its discretion" in denying Appellant's appeal. The Board found that Appellant's appeal was untimely, and Appellant has failed to adequately address any reason why she filed an untimely appeal. Although Appellant argues that she filed an appeal on May 2, 2009, this statement is not supported by the record, and the Board specifically noted in its decision that "[t]he Claimant did not appeal to the Board until May 15, 2009, as determined by the date of the receipt signed by the Agency representative for the personal delivery of the appeal." Appellant did not produce any record or other evidence in the proceedings below to support her assertions that she filed a timely appeal. Thus, Appellant has failed to identify any "administrative error that has the effect of depriving [Appellant] the opportunity to file a timely appeal."
See id; see also Cooke v. Boscovs, 2008 WL 1726053 (Del. Super.) (holding that a claimant's failure to check the location where he regularly receives mail does not merit a waiver of the timeliness requirements.).
This Court is sympathetic to Appellant's claim that she filed a timely appeal, but Appellant has not produced evidence to support this claim. Based on the existing record, there is simply no way to determine whether Appellant properly filed an appeal on May 2, 2009, as she claims. The Board reviewed the record and determined that an appeal was filed on May 15, 2009.
6. Thus, for all the reasons discussed above, this Court does not find that this is one of the "rare" cases where the Board should have accepted review of an untimely appeal sua sponte. The decision of the Board is AFFIRMED.
But see Green v. Blevins, 2000 WL 303325 (Del. Super.) (holding that the Board abused its discretion in failing to grant a hearing to determine whether appellant filed a timely notice of appeal).
IT IS SO ORDERED.