IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

IN AND FOR NEW CASTLE COUNTY

DEBORAH JACKSON,

 

Appellant,

 v.

KINDERCARE and 

UNEMPLOYMENT

INSURANCE APPEALS BOARD,

 

Appellees.

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) C.A. No.: N14A-07-002 CLS

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Date Submitted: April 6, 2015

Date Decided: June 16, 2015

On Unemployment Insurance Appeal Board’s Motion to Alter or Amend the Judgment. 

DENIED.

ORDER

Deborah Jackson, pro se Appellant. 

KindCare, 2018 Naamans Road, Wilmington, Delaware, 19810. Appellee.

Paige J. Schmittinger, Esq. and Lisa M. Morris, Esq., Delaware Department of Justice, 

820 North French Street, Wilmington, Delaware 19801. Attorneys for Appellee, 

Division of Unemployment Insurance.

Scott, J.
2

The Appellee Unemployment Insurance Appeals Board (“Board”) has filed a 

motion pursuant to Super. Ct. Civ. R. 59(d) to alter or amend the Order dated 

March 12, 2015, which reversed the decision of the Board denying Deborah 

Jackson (“Ms. Jackson”) unemployment benefits. For the following reasons, the 

Board’s Motion to Alter or Amend the Judgment is DENIED.

1. In the March 12, 2015 Order, this Court reversed the decision of the Board 

denying Ms. Jackson’s claim for unemployment benefits. The Court found 

that the Board’s decision denying Ms. Jackson’s claim for unemployment 

benefits could no longer stand because Employer-below, KinderCare, 

expressly withdrew any opposition to Ms. Jackson’s claim. Therefore, the 

Court found that there was no controversy to be decided. Accordingly, the 

Court reversed the Board’s decision and remanding the matter to the Board 

for judgment in according with the Order. 

2. On March 18, 2015, the Board filed this Motion to Alter or Amend the 

Judgment reversing and remanding the Board’s decision below, on the basis 

that amendment of this Court’s decision is necessary to prevent manifest 

injustice.

1

 

 1 Board’s Opening Br. at 3-4 (citing Lafferty-Eaton v. T.D. Bank NA, 2014 WL 824294 (Del. 

Super. Feb. 20, 2014) as the basis for its argument). 
3

3. Delaware law places a heavy burden on a moving party seeking relief under 

Rule 59.2

 The Delaware test to succeed on a Motion to Alter or Amend 

Judgment requires the moving party to establish one of the following: “(1) 

an intervening change in controlling law; (2) the availability of new 

evidence not previously available; or (3) the need to correct a clear error of 

law or to prevent manifest injustice.”3

4. The Board cites Lafferty-Eaton v. T.D. Bank NA as the basis for its argument

that its motion should be granted under a theory of manifest injustice. 

However, the Board’s application of Lafferty-Eaton here is misplaced, and it 

has failed to satisfy the burden under the theory of manifest injustice. 

5. The court’s decision in Lafferty-Eaton is not applicable here because the 

policy considerations addressed in Lafferty-Eaton are not, as the Board 

suggests, nearly identical to the present case. In Lafferty-Eaton, the Board’s 

original decision was reversed by the court without reaching the merits due 

to the employer’s failure to participate in the appellate process. In response, 

the Board filed a motion to alter or amend the judgment, on the basis that 

amendment of the court’s original judgment was necessary to prevent 

manifest injustice. The court granted the Board’s motion, finding that the 

policy considerations raised by the Board made correction of its previous 

 2 See Del. Super. Ct. R. 59. 

3 Kotyshyn v. Commissioners of the Town of Bellefonte, 2007 WL 1241875, *1 (Del. Super. Apr. 

27, 2007).
4

decision necessary to prevent manifest injustice to the employers of 

Delaware that pay into the Unemployment Compensation Fund. 

6. The Board’s manifest injustice argument fails because the present case is 

distinguishable from Lafferty-Eaton. Default under Rule 107 for failure to 

file an answering brief is a procedural rule; there is still a controversy, but 

the appellee is procedurally barred.4 However, an appellee’s express 

concession raises a case and controversy issue, in that there is no longer a 

disputed claim. Unlike a situation in which an employer merely fails to 

participate on an appeal, in this case, KinderCare expressly stated that it no 

longer contests Ms. Jackson’s claim for unemployment benefits.

Accordingly, the policy concerns at issue in Lafferty-Eaton – refusing to 

punish Delaware employers, collectively, for one employer's negligence –

are inapplicable.

7. For the foregoing reasons, the Board’s Motion to Alter or Amend the 

Judgment is DENIED.

IT IS SO ORDERED.

/S/Calvin L. Scott 

Judge Calvin L. Scott, Jr.

 4 See Super. Ct. Civ. R. 107(f).