IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR K

ENT COUNTY
JOHN CHEEKS, : : C.A. No: K14A-07-002 RBY Appellant, : : v. : : THE UNEMPLOYMENT INSURANCE : APPEAL BOARD, : : Appellee. :

Submitted: January 7, 2015 Decided : January 30

, 2015
Upon Con sideration of Appellan t’s Appeal from the Une mployment Insurance A

ppeal Board AFFIRMED ORDER

John Chee ks, Pro se

. Paige J. Schmittinger, Esquire, D eputy Attorney G eneral, Departm ent of Justice, Wilmington, Delaware for The Unemployment Insur ance Appeals Board.

Young, J.Cheeks v. UIAB

C.A. No.: K14A-07-002 RBY January 30, 2015

1 The decision of the Appeals Referee state s that the appeal was filed on April 2, 2014, while the decision of the Board states it was filed on Marc h 20, 2014. 2 SUMMARY This is an appeal from a decision of the Unem ployment Insurance A

ppeal Boa rd ( “the Boa rd” ) ho ld in g t hat Jo hn Che ek’ s (“A pp ell ant ”) a pp eal fro m a determination by the De

partment of Labor (“

Department”) w as untimely. Given the indisputa

ble facts set forth in the rec ord, this C ourt finds t hat the dec ision of the Board was proper. Appe llant’s appeal w as filed a t least six months past the deadline se t out by t

he Depar tment , and he ha s not provide d a suffic ient justific ation for t

he delay . Moreover, the B oard’s decision is founded both i n the appropria te statute governing timely

appeals a nd the substa

ntial evidence in the record. There i s further

no evidence

of an abuse

of discre tion on the pa

rt of the Board. T hus, the de cision of th e Board is AFFIRMED

.

FACTS AND PROCEDURAL POSTURE On August 7, 2013, the D epartment issued a decision f

indi ng th at Appell ant hadwrongful ly ac cepted U nempl oym entInsuranc e benefit s, during the t ime period of March 19, 2011 to April 9, 2011. Pur suant to 19 Del. C. § 3325, the D epartment held that Appe llant was to repay the amounts rece ived. Appellant w as given unti l A ugust17, 20 13, to appe al the determina tion; other

wise, pu rsuant to 19 Del. C. § 3318, the de cision woul d becom e final. Although there is s ome c onfusion abou t the prec ise date, A

ppellant did

not file
an appeal of the De

partm ent’s r

uling until at

least Mar

ch or perh aps April of

2014. 1 Acc ording to App ell ant , at th e ti me th e de ter min ati on was sen t to hi m, he wa sCheeks v. UIAB

C.A. No.: K14A-07-002 RBY January 30, 2015

2 29 Del. C . §10142( d); Avon Prods. v. Lamparski , 203 A.2d 559, 560 (Del. 1972).

3 Olney v. Cooch , 425 A .2d 61 0, 614 (Del. Super . Ct. 1981) (citi ng Consolo v. Fed. Mar

. Comm’n , 383 U.S. 607, 620 (1966)).

4 Id. (quot ing Cross v. Calfano , 475 F.Supp. 896, 898 (M.D. Fla. 1979)). 3 homel ess and no longer at the address to which the Departm ent’s de cision wa s sent. Appellant was mailed a further determinat ion on April 9, 2014, indic ating that t he appe al was untime ly. O n April 28, 2014, a he aring wa s held befo re an App eals Referee on the untim

eliness iss ue. The

Appeals R eferee

held that A

ppellant ha d, pursuant to 19 Del. C. § 3318, fai l ed to file an appeal within 10 da ys. A s such, the determination of the Depart ment was final. Appellant timely a ppealedthe ruling o f

the Appeals Referee on May 14, 2014. The Board re mande d the case for a fur ther evidentiary

hearing. The Appe als Referee, again, determ

ined that A

ppellant’ s filing wa s unti mely. On appeal, the Board affirmed the Appeals Referee. STANDARD OF REVIEW For administrative

board appe als, this C ourt is lim ited to rev i ewing w hether the Board ’s decision is supported by substantial

evidence and free

from legal er rors. 2 Substantial evidence is t hat which “a reasonable

mind m ight acce pt as adequa

te to support a conclusi on.” 3 It is “more than a scintilla, but less than preponderance of the evidence.” 4 An abuse o f discret ion will be

found if the board “ acts arbi trarily or capacious ly.. .excee ds the bounds o f re ason in view of the circumstances and hasCheeks v. UIAB

C.A. No.: K14A-07-002 RBY January 30, 2015

5 Delaware Transit Corp. v. Roane , 2011 WL 3793450, at *5 (Del. Super. Ct. Aug. 24, 2011) (quot ing Straley v. Advanced Staffing, Inc., 2009 WL 1228572, at *2 (Del. Super. Ct. Apr. 30, 2009)).

6 Lehman Br

others Ban k v. State

Bank Comm issioner, 937 A.2d 95, 102 (Del. 2007).

7 Anchor M

otor Freig

ht v. Ciaba ttoni, 716 A.2d 154, 156 (Del. 1998).

4 igno red recognized rules of law o r practice so as to prod uce injust ice.” 5 Where a n ag ency has interp reted and

applied a s tatute, t

he court’ s review

is de novo

. 6 I n th e absence of an err

or of law , lack of

substantial

evidence or abuse of

discretio n, the Court wil l not disturb the decisi on of the boa rd. 7 DISCUSSION The Board affirmed

the decisi on of the Appeals R eferee , finding t

hat no err or hadbeen com

mitte d in form

ing the determ ination. T

he Appeal s Referee’s de cision was base d upon 19 Del. C. § 3318(b) w hich state s in releva

nt part: Unless claim ant or

a last em ployer who has subm

itted a tim ely a ndcompleted separati on notice in accordance with § 3317 of this title file an appeal within 10 calendar days after

such Claim s Deputy ’s dete rmina tion was m

ailed to the last known address of

the cla iman t an d t he l ast empl oye r, t he C lai ms Deput y’s determ

ination shal l be final and benefits shall be p aid or deniedin accorda nce therewith. From the record, the Appeals Referee determ ined that Appellant filedhis appeal fr om the Departm

ent’s de cision on A

pril 2, 201 4, nearly seven months after it

was due. As per the statute, Appellant’s failure to file his appeal tim ely res ulted in t he Depart ment’s decision be comin g final. The Appe als Referee did no t consider Appellant ’s argu

ment t hat he was homeless to be persuasive, as the statute requires only tha t the notice

of deter minat ion be sent t o the last known address.Cheeks v. UIAB

C.A. No.: K14A-07-002 RBY January 30, 2015

8 Avon Prod

s. , 203 A.2d T 560 (court is limited to reviewing whether the Boa rd’s decision is supported by substantial evidenc e and free from lega l errors).

9 Althoug h there i s some disc

repanc y r egard ing the e xact date of the ap peal, if it was in March or April of 2014, either way this was well over the 10 day period called for by

the statute.

10 See e.g., McGonigle v. George H. Burns, Inc

. , 2001 WL 1079036 a

t *3 (Del. Super. Ct. Sept. 4, 2001) (appeal was not untimely where belated filing resulted from a dministrative error).

11 Delaware Transit Corp. , 2011 WL 3793450 at *5.

12 Id. 5 Appel lant ’s opening brie f speaks to the un derly in g case : the D epart ment’s decision requiring Appellan t to repay the wrong fully accepte d benefits . That i s not, though, the issue pr

esently before t he Court. Appellan

t make s no argum ent

regardin g the timing of h is appeal. The Court find s that the Board acted properly in dismissing Appellant’ s appeal
as unt imely. This deci sion was w ithin the co nstraints o f the stat ute control ling tim ely fi ling, an d was further based on substantial evidence. 8 19 Del. C. § 3318 plainly states that a dec ision will b e final, absent an a ppeal wit hin 10 days

. The Dep artment ’s determ ination expressly sta ted Appell ant had un til Augus t 17, 2013 , to file his appeal. Appellant did not do so until at least March 20, 2014 – well past the stated deadline. 9 Appellant has further not provided sufficient justification for the delay, and the record does not show the

Departm ent was at f ault. 10 The Board’s decision was based sole ly
on the sufficient evidence before i t, and wa s according to the contro lling statut e. The Court sees no i ndi cati on t hat thi s de cis ion was b ase d in cap rice or wa s arb itr ary. 11 Thus, ne ither did th e Board a buse its disc retion. 12Cheeks v. UIAB

C.A. No.: K14A-07-002 RBY January 30, 2015

6 CONCLUSION The record is clear that Appellant plainly m issed the deadline to file his appeal from the Depa rtment’s dec ision. As such, this decision is f i nal and not appealable. The deci sion of the B oard is AFFIRMED

. IT IS SO ORDERED

. /s/ Rober t B. Youn g J.
RBY /l mc oc: Prothonotary cc: Counsel John Chee ks, Pro se Opinion Di stribution File