IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BRITTANY BUTLER, )

)

Appellant, )

)

)

v. ) C.A. No. N23A-06-009 JRJ

)

STATE OF DELAWARE )

UNEMPLOYMENT INSURANCE )

APPEAL BOARD, )

)

Appellee. )

Date Submitted: September 13, 2023

Date Decided: October 4, 2023

ORDER

This 4th day of October, upon appeal from the Unemployment Insurance 

Appeal Board (“Board”), the parties’ briefs, and the record below, IT APPEARS

THAT:

(1) Appellant Brittany Butler (“Butler”) appeals a decision of the Board.

1

On February 5, 2023, Butler filed a claim for unemployment insurance benefits with 

the Department of Labor (“DOL”).2 The Claims Deputy found Butler ineligible for 

benefits because she was discharged for “just cause”3as defined under 19 Del. C. § 

1 Butler Notice of Appeal, R4.; see also Notice of Appeal, Trans. ID 70229001 (June 21, 2023).

2 Notice of Determination, R17. Trans. ID 70419579 (July 18, 2023).

3

Id.; See Bouyer-Bello v. Unemployment Ins. Appeal Bd., 191 A.3d 1111 (Del. 2018) (holding 

“just cause” is when an employee commits a “willful or wanton act or pattern of conduct in 

violation of the employer’s interest, the employee’s duties, or the employee’s standard of 

conduct.”) (internal citation omitted).
2

3314(2).4 The Claims Deputy mailed the Notice of Determination (“NOD”) to 

Butler on February 23, 2023.

5

 The NOD advised Butler that under 19 Del. C. § 

3318(b), she could appeal the decision within ten days but no later than March 6, 

2023.

6 Butler filed an appeal on March 7, 2023.7

(2) On March 7, 2023, the Senior Claims Deputy issued a Notice of Late 

Determination, advising Butler that her appeal was untimely under 19 Del. C. § 

3318(b).8 The Notice of Late Determination stated that the Claims Deputy’s 

February 23, 2023 decision was final, but a hearing would be scheduled on “the issue 

of timeliness of the appeal.”9

(3) On March 28, 2023, Butler appeared before the Appeals Referee

(“Referee”).

10

 The Referee affirmed the decision of the Claims Deputy and found 

“Claimant’s request for an appeal was NOT TIMELY pursuant to the jurisdictional 

4 Under 19 Del. C. § 3314(2), an individual is disqualified for benefits:

For the week in which he was discharged from his work, for just 

cause in connection with his work, and for each week thereafter until 

he has been employed in each of 4 subsequent weeks (whether or 

not consecutive) and has earned wages in covered employment 

equal to not less than 4 times the weekly benefit amount.

5 Notice of Determination, R17.

6 On the last page of the Claims Deputy’s Notice of Determination, there is a section entitled 

“Claimant and Employer Appeal Rights.” In that section, it states in bold, “[t]his determination 

becomes final on 3/5/2023 unless a written appeal is filed.” Id. However, pursuant to 19 Del. C.

§ 3318(b), because March 5, 2023, fell on a Sunday, Butler had until March 6, 2023, to file her 

appeal. 19 Del. C. § 3318(b).

7 Butler Appeal Request Notification, R20 (emphasis in documentation).

8 Notice of Late Determination, R21.

9

Id.

10 Referee’s Decision, R13.
3

requirements of 19 Del. C. § 3318(b).”

11

 Butler appealed the Referee’s decision to 

the Board.

12

(4) On May 24, 2023, the Board held a Review Hearing and affirmed the

Referee’s decision, subsequently denying Butler’s application for further review.

13

The Board held that the Referee properly affirmed the Claims Deputy’s decision 

because Butler failed “to provide any evidence of severe circumstances preventing 

[Butler] from filing her request to appeal the Claims Deputy Determination before 

the statutory deadline.” The Board further held, “[t]here was no evidence presented 

to indicate that any administrative errors or mistakes by the Department caused

Claimant to receive the Claims Deputy Determination late.”14 Finding no error in 

the Referee’s decision or a failure of due process, the Board declined to exercise its 

discretion to accept Butler’s appeal for further review.15 Butler then appealed to the 

Superior Court.16

(5) When reviewing a decision on appeal from the Board, the Superior 

Court plays a limited role. The Court’s role on appeal is to determine whether the 

Board had substantial evidence to support its findings.17 Conclusions of law are 

11 Id. 

12 Butler Appeal Request Notification to Board, R11.

13 Id.

14 Id. at 7.

15 Id.

16 Butler Notice of Appeal to Superior Ct., R4-5.

17 Gen. Motors Corp. v. Freeman, 164 A.2d 686, 689 (Del. 1960).
4

reviewed de novo.

18

 The Court will review the Board’s discretionary rulings on an

abuse of discretion standard,

19 only disturbing its decisions where the Board “acts 

arbitrarily or capriciously, or exceeds the bounds of reason in view of the 

circumstances and has ignored recognized rules of law or practice so as to produce 

injustice.”20 

(6) Pursuant to 19 Del. C. § 3318(b), a claimant has ten days from the date 

of mailing to appeal a decision of a Claims Deputy. “The time for filing an appeal 

is an express statutory condition of jurisdiction that is both mandatory and 

dispositive.”21 Where the delay is not caused by an administrative error on the part 

of the Department, the decision of the Claims Deputy becomes final, and 19 Del. C.

§ 3318(b) creates a jurisdictional bar to further appellate review.22

(7) Butler concedes her appeal was filed late.

23 She argues her father “has 

the key for the mailbox. So [she] she did not receive [her] mail until Tuesday the 

7

th,” thus receiving the NOD late.24

 Under Delaware law, notice that is “correctly 

addressed, stamped and mailed is presumed to have been received by the party to 

whom it was addressed.”25 The NOD was mailed to Butler at her address of record 

18 LeVan v. Indep. Mall, Inc., 940 A.2d 929, 932 (Del. 2007).

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

20 Hartman v. Unemployment Ins. Appeal Bd., 2004 WL 772067, at *2 (Del. Super. Apr. 5, 2004).

21 Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super. May 16, 2003)

22 Hartman, 2004 WL 772067, at *2.

23 Butler’s Reply Br., Trans. ID 70830646 (Sept. 11, 2023).

24 Transcript of Referee’s Hearing, R34-35.

25 PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. June 18, 2008).
5

with the DOL.

26

 Butler has not provided any evidence to suggest an error or 

wrongdoing on the part of the DOL. 

(8) Under 19 Del. C. § 3320(a), the Board has broad discretion to consider 

an appeal and may, “on its own motion, affirm, modify, or reverse any decision of 

an appeal tribunal.”

27 However, in the context 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.”28 

(9) Here, the Board declined to exercise its discretion to hear Butler’s 

appeal on the merits because Butler failed to provide “any evidence of severe 

circumstances which would call for tolling the 10-day appeal timeline.”

29

(10) The Court finds that the Board’s decision to affirm the Referee’s 

decision is supported by substantial evidence and free from legal error. Further, the 

Board did not abuse its discretion when it declined to accept the appeal for review.

THEREFORE, IT IS HEREBY ORDERED that the decision of the 

Unemployment Insurance Appeal Board is AFFIRMED.

26 Mailing Address Cert., R18.

27 19 Del. C. § 3320(a).

28 Hefley v. Unemployment Ins. Appeal Bd., 988 A.2d 937 (Del. Jan. 26, 2010) (TABLE) (citing 

Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del. 1991)) (emphasis added). 

29 Board Decision, R6-8.
6

IT IS SO ORDERED.

/s/ Jan R. Jurden

Jan R. Jurden, President Judge

cc: Prothonotary