Superior Court of Delaware, In And For New Castle CountyMar 31, 2000
No. 99A-07-010 WCC (Del. Super. Ct. Mar. 31, 2000)

No. 99A-07-010 WCC.

Submitted: November 22, 1999.

Decided: March 31, 2000.

Appeal from Decision of Unemployment Insurance Appeal Board AFFIRMED.

Elizabeth Sibdhannie, 107 Germantown Court, Newark, DE. 19702. Pro se Appellant.

Omar Y. McNeill, Esquire, MBNA America Bank, N.A., 1100 N. King Street, Wilmington, DE. 19884. Attorney for Appellee MBNA America Bank, N.A.

James J. Hanley, Esquire, Carvel State Office Building, 820 N. French Street, 6th Floor, Wilmington, DE. 19801. Attorney for Appellee Unemployment Insurance Appeal Board.


This 30th day of March, 2000, after considering Elizabeth Sibdhannie's ("Appellant") pro se appeal from a decision by the Unemployment Insurance Appeal Board ("Board") dismissing her case, it appears that:

1. On March 4, 1999, when given the choice of resigning or being terminated, Appellant resigned from MBNA America Bank, N.A. ("MBNA") where she worked as a secretary. When Appellant applied for unemployment benefits, a Claims Deputy from the Department of Labor determined that she was discharged from her work for just cause. As such, Appellant was disqualified from receipt of benefits.

Just cause was found based on Appellant leaving the job site without permission and taking her personnel file.

2. Appellant appealed the Deputy's determination and a hearing was held on April 27, 1999 in the presence of an Appeals Referee from the Division of Unemployment Insurance Appeals. The Referee found that Appellant's departure from her job site without authorization represented just cause for discharge under 19 Del. C. § 3315 (2) and affirmed the Claims Deputy's decision. The cover page of the decision indicated that it was mailed on April 29, 1999 and that the last day to file an appeal was May 9, 1999. In a letter dated and faxed to the Board on May 11, 1999, Appellant stated:

I realized last night that the last day to appeal was 5/10/99. I thought I had more time due to the fact that I received the Referee's decision on May 3, 1999, so I thought I had until May 13, 1999. I decided to call your office today to make sure. I am asking could I please have the opportunity to appeal.

(Bd. R.)

Appellant also faxed a copy of the envelope, which had contained the Referee's decision, with the stamped date of mailing from the Board.

The date of mailing on the envelope was undecipherable.

3. Consequently, the Board held a hearing on June 16, 1999 to determine whether the appeal was timely. Appellant testified that the Referee's decision was mailed on April 30, 1999, not April 29, 1999, and so she thought that she had three extra days to file the appeal. But, the Board found that the Referee's decision was mailed to Appellant on April 29, 1999 and became final on May 9, 1999. Because the appeal was not filed until May 11, 1999, it found that the appeal was untimely and that it lacked jurisdiction. While the Board acknowledged its authority to accept an appeal "if the interests of justice would not be served by inaction," it found that the facts in the case did not involve circumstances so severe as to require that it assume jurisdiction. As such, the Board dismissed the late appeal. Appellant subsequently appealed the Board's decision to this Court.

The appeal was to be filed by May 9, 1999, which Appellant claimed was a "holiday." As such, she thought she had extra time. The Court notes that Sunday, May 9, 1999 was Mother's Day.

4. The scope of review for reviewing a Board decision is whether the Board abused its discretion. An abuse of discretion occurs where the Board exceeds "the bounds of reason in view of the circumstances and has ignored recognized rules of law or practice so as to produce injustice." Absent an abuse of discretion, an administrative tribunal decision must be upheld.

Funk v. Unemployment Insurance Appeal Bd., Del. Supr., 591 A.2d 222, 225 (1991).

K-Mart, Inc. v. Bowles, Del. Super., C.A. No. 94A-10-007, Cooch, J. (March 23, 1995) (ORDER).

Funk. 591. A.2d at 225.

5. Delaware Code, Title 19, Chapter 33, governs the time a party can appeal from the referee's decision:

The parties shall be duly notified of the tribunal's decision, together with its reason therefor, 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 pursuant to § 3320 of this title.

The cover page of the Referee's decision specified the parties' appeal rights and provided the date of mailing, April 29, 1999, and the last day to file an appeal, May 9, 1999. While there appears to be some dispute about the actual date of mailing to Appellant, the Court finds that whether it was April 29, 1999 or April 30, 1999, the last day to file the appeal would have been Monday, May 10, 1999. Because the appeal was not filed until May 11, 1999, the appeal was untimely according to 19 Del. C. § 3318 (c).

If the mailing date was April 29, 1999, the tenth day fell on Sunday, May 9th. As such. the last day to file the appeal would have been May 10, 1999 because the tenth day fell on a Sunday. See 19 Del. C. § 3304. If the mailing date was April 30, 1999, the tenth day would also have been May 10, 1999.

But that does not end the discussion. In Funk v. Unemployment Insurance Appeal Board, the Supreme Court recognized the Board's wide discretion over the unemployment insurance benefits appeal process in 19 Del. C. § 3320 and held that the Board has authority to act sua sponte beyond the ten day appeal period. But, the Court in Funk also recognized the extreme caution exercised by the Board in taking such action and that generally it has only occurred where there is some administrative error on the Department's part, which deprived the claimant of an opportunity to file timely, or where the interests of justice would not be served by inaction.

Sec supra note 5.

Here, the Board specifically addressed this issue in its decision and found that the facts of the case did not justify jurisdiction. The Court finds that despite Appellant's assertions that she was depressed from her circumstances and her mother-in-law's sudden death, the Board's refusal to assume jurisdiction was not an abuse of discretion. In addition, the Department made no error that deprived Appellant of timely filing. Instead, despite the incorporation of the last date for filing on the cover page of the decision, Appellant's untimely filing was due to her own miscalculation of the time.

In addition to the statements made by Appellant during the Board hearing regarding her untimely appeal, she also made the following statement in her reply brief:

I was under severe depression preceding the sudden death of my mother-in-law on April 11, 1999. Before, during and, after that time I was taking medication for my condition. And after receiving the Referee's decision on May 3, 1999. I believed that 10 days after May 3rd would have been May 13th which was okay to appeal at that time. I faxed the appeal to the Board on May 11th not knowing May 10th was the cut off day and that May 11th made it one day too late to appeal.

See supra note 12.

6. While the Court sympathizes with Appellant's situation, the Court finds no abuse of discretion. As such, the Board's decision is AFFIRMED.

IT IS SO ORDERED. __________________________ Judge William Carpenter,