Miller v. U.I.A.B. Wal-Mart DC

Full title: EDWARD MILLER, Plaintiff, v. U.I.A.B. WAL-MART DC 7034, Defendant

Court: Superior Court of Delaware, Kent County

Date published: Jun 14, 2011

C.A. No. K11A-02-003 WLW (Del. Super. Ct. Jun. 14, 2011)

Opinion

C.A. No. K11A-02-003 WLW.

June 14, 2011.

ORDER

Honorable WILLIAM L. WITHAM, Jr.

Edward Miller ("Appellant") was employed by Wal-Mart ("Appellee") from June of 2010 until July 12, 2010 when he left work on family and medical leave. Appellant took medical leave at that time because he was suffering from "vertigo." Appellant obtained a doctor's note explaining that he was unable to work due to his vertigo. Appellant made an unemployment claim. The claim was denied by the referee on August 8, 2010 because Appellant's condition renders Appellant unable to work. Appellant appealed to the UIAB, but his appeal was dismissed for failure to prosecute when he failed to show up for a hearing. The Board's decision became final on November 22, 2010.

PROCEDURAL HISTORY

Appellant filed a notice of appeal with Superior Court on May 13, 2011. Appellee has filed a motion to dismiss for lack of subject matter jurisdiction. The motion is before the Court.

Standard of Review

The Court may dismiss an action pursuant to Superior Court Civil Rule 12(b)(1) whenever it appears by suggestion of the parties or otherwise that the Court lacks subject matter jurisdiction.¹

1 Aizupitis v. Atkins, 2010 WL 318264 (Del. Ch. Jan. 27, 2010).

DISCUSSION

Superior Court exercises limited appellate jurisdiction over administrative actions.² Appellate jurisdiction exists only to the extent that it has been specifically granted by statute.³ Failure to file an appeal within the time provided for by statute divests the Court of jurisdiction in the absence of exceptional circumstances that are attributable to court personnel.⁴

Appellant is seeking to appeal a decision of the Board. 19 Del. C. § 3323(a) provides that an aggrieved party may filed an appeal of the Board's decision with Superior Court within ten days of when the decision becomes final. In this case, the Board's became final on November 22, 2010. Thus, Appellant was required to file his notice of appeal by December 2, 2010. However, Appellant waited to file his appeal until May 13, 2011 — long after the expiration of the ten day period for filing an appeal. Therefore, the appeal is untimely, and this Court lacks jurisdiction hear it.

CONCLUSION

For the foregoing reasons, the Court finds that it does not have jurisdiction to hear this late-filed appeal. Defendant's motion to dismiss is GRANTED.

IT IS SO ORDERED.