IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TAMMY R. WILLIAMS, :

: C.A. No. K15A-08-002 WLW

Appellant, : Kent County

v. :

:

BRANDYWINE COUNSELING and :

UNEMPLOYMENT INSURANCE :

APPEALS BOARD, :

:

Appellee. :

Submitted: January 11, 2016

Decided: March 29, 2016

Re-issued: April 27, 2016*

ORDER

Upon an Appeal from the Decision of

the Unemployment Insurance Appeals Board.

Reversed.

Tammy R. Williams, pro se

Paige J. Schmittinger, Esquire of the Department of Justice, Wilmington, Delaware;

attorney for the Unemployment Insurance Appeals Board.

WITHAM, R.J.

*This Order is being re-issued due to an error in footnote numbering.
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

1

 R-38.

2

 R-2.

2

Before the Court is Appellant/Claimant Tammy Williams’ (“Williams”) appeal

from a decision of the Unemployment Insurance Appeals Board (“UIAB” or “Board”)

which denied Williams’ appeal of a Referee’s decision as untimely. Upon

consideration of the pleadings before this Court and the record below, the UIAB

ruling is REVERSED. 

FACTS AND PROCEDURAL BACKGROUND

Williams was employed by Brandywine Counseling (“Brandywine”) as a

counselor from May 13, 2013 through April 27, 2015.1 Her last day of work was

December 22, 2014. On that date, Williams informed Brandywine that she required

leave under the Family Medical Leave Act (“FMLA”) to care for her seventy-nineyear-old mother. Her mother lived alone in New York and had experienced a health

crisis which required hospitalization. Williams contacted Brandywine every three

weeks to update her status during her absence. In April, Brandywine contacted

Williams to inquire into her availability to return to work because her leave under the

FMLA had expired. Williams advised Brandywine that her mother was still ill and

that she would not be able to return to work at that time. Brandywine determined that

it was necessary to fill the position and terminated Williams’ employment.

In April 2015, Williams filed a claim for unemployment insurance benefits.2

The Claims Deputy found that the employer had not shown willful or wonton

misconduct by Williams and determined that Williams was not disqualified from
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

3

 R-19. 

4

 19 Del. C. § 3314(2) applies when an employee has been discharged and states in pertinent

part:

For the week in which the individual was discharged from the individual’s work for

just cause in connection with the individual’s work and for each week thereafter until

the individual 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

 19 Del. C. § 3314(1) applies when an employee has left work voluntarily and states in

pertinent part:

For the week in which the individual left work voluntarily without good cause

attributable to such work and for each week thereafter until the individual 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. 

6

 R-38-39.

3

receiving unemployment insurance benefits pursuant to 19 Del. C. § 3314(2).3,4

Brandywine timely appealed the decision of the Claims Deputy. After a hearing on

the appeal, a Referee determined that this was a voluntary quit case and should thus

be determined under 19 Del. C. § 3314(1).5 The Referee reasoned that Williams was

offered the opportunity to return to work after her FMLA leave had expired, and that

her decision not to return to work amounted to a voluntary relinquishment of her

position.6 Because Williams had left her position for reasons not connected with her

employment, and had not exhausted all reasonable alternatives prior to resigning her

position, the Referee determined that Williams was disqualified from receiving

unemployment insurance benefits. Based on this determination, the Referee reversed

the decision of the Claims Deputy. The Referee’s decision was mailed to Williams

on June 17, 2015.
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

7

 R-43.

8

 19 Del. C. § 3318(c) requires that an appeal to the Board be filed within ten days.

9

 R-44.

10 Mathis v. Del. River and Bay Auth., 2012 WL 5288757, at *2 (Del. Super. Aug. 22, 2012).

11 Bradfield v. Unemployment Ins. Appeal Bd., 2012 WL 5462844, at *1 (Del. Super. Mar.

13, 2012) (quoting Gorrell v. Div. of Vocational Rehab., 1996 WL 453356, at *2 (Del. Super. July

31, 1996)).

4

On July 2, 2015, Williams filed an appeal of the Referee’s decision with the

Board.7 The Board determined that the last day to appeal the Referee’s decision was

July 27, 2015, and the appeal was therefore not timely.8 The Board noted that “this

time limit is jurisdictional, although the Board may, in cases of severe circumstances,

exercise its discretion under § 3320 to accept the appeal sua sponte.”9 The Board

found no evidence of Department error that would have prevented Williams from

filing a timely appeal. Based on this finding, the Board denied Williams’ application

for further review. The Board’s decision was mailed to Williams on August 13, 2015.

On August 20, 2015, Williams filed a timely appeal of the Board’s decision

with the Superior Court. Her opening brief reiterated her argument relating to her

entitlement to unemployment insurance benefits, but failed to address the issue of

timeliness. 

STANDARD OF REVIEW

This Court reviews decisions by the Board to determine whether they are

supported by substantial evidence and free from legal error.10 “Substantial evidence

is ‘such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.’”11 The Court possesses limited review power of the factual findings
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

12 19 Del. C. § 3323(a).

13 Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).

14 Hubbard v. Unemployment Ins. Appeal Bd., 352 A.2d 761 (Del. Super. 1976).

15 29 Del. C. § 10142(d) states:

The Court, when factual determinations are at issue, shall take due account of the

experience and specialized competence of the agency and of the purposes of the

basic law under which the agency has acted. The Court’s review, in the absence

of actual fraud, shall be limited to a determination of whether the agency’s

decision was supported by substantial evidence on the record before the agency.”

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

17 19 Del. C. § 3301.

5

of an administrative agency. Specifically, “the findings of the Unemployment

Insurance Appeal Board as to facts, if supported by the evidence and in absence of

fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to the

questions of law.12 The Court does not weigh the evidence, determine questions of

credibility, or make its own factual findings.13 Rather, the Court is restricted to a

consideration of the record.14 It merely determines if the evidence is legally adequate

to support the agency’s factual findings.15 In considering an action of the Board, this

Court’s scope of review is limited to whether the board abused its discretion.16 If the

record below contains substantial evidence in support of the Board’s findings, then

that decision will not be disturbed.

DISCUSSION

The General Assembly has determined that the public good requires “the

compulsory setting aside of an unemployment reserve to be used for the benefit of

persons unemployed through no fault of their own.”17 “[T]he Unemployment
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

18 Delaware Auth. For Reg’l Transit (Dart) v. Buehlman, 409 A.2d 1045, 1046 (Del. 1979).

6

Compensation Act is usually given a liberal construction favoring a claimant, at least

when its basic policy is in issue.”18 Thus, the Court employs a liberal construction

in favor of the claimant when determining the meaning of a statute. In the case sub

judice, there are three issues. The first issue concerns the merits of the underlying

case. The second issue concerns time computation when determining the date by

which a claimant must file an appeal from a Referee’s decision with the Board. The

third issue concerns the discretion given the Board to hear a case on the merits under

19 Del. C. § 3320. 

Turning to the merits of the underlying case, the Referee’s decision

disqualifying Williams from the receipt of unemployment insurance benefits was in

error. The Referee determined that this was not a discharge case under section

3314(2), but rather a voluntary quit case under 3314(1). However, whether Williams

voluntarily left her employment or was discharged is of no moment. Sections 3314(1)

and 3314(2) contain similar language allowing for the receipt of unemployment

insurance benefits when the claimant has left employment, whether voluntarily or by

discharge, to care for a spouse, child under the age of 18, or parent with a verified

illness or disability. Section 3314(1), which pertains to an individual who has

voluntarily left employment, states in pertinent part that “[a]n individual, who quits

work to care for that individual’s spouse, child under the age of 18, or parent with a

verified illness or disability, will not be considered to have left work voluntarily
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

19 19 Del. C. § 3314(1).

20 19 Del. C. § 3314(2).

21 Martin v. Unemployment Ins. Appeal Bd., 2004 WL 772073, at *3 (Del. Super. Feb. 25,

2004). 

22 Finley v. United States, 490 U.S. 545, 556 (1989).

7

without good cause attributable to such work.”19 Section 3314(2) states in pertinent

part that “[a]n individual, who is discharged from work because the individual is

providing care for that individual’s spouse, child under the age of 18, or parent with

a verified illness or disability, will not be considered to have been discharged from

work for good cause attributable to such work.”20 Thus, as long as Williams is caring

for her mother, and her mother has a verified illness or disability, she is entitled to

unemployment insurance benefits. 

Regarding the second issue of time computation, the Board has interpreted the

ten day time limit in which a claimant must file an appeal with the Board to be ten

calendar days. Although not a matter of first impression, the ten-day time limit has

not been subjected to a statutory interpretation process. With no need to indulge in

an in-depth analysis, most courts have accepted the Board’s interpretation. However,

in Martin v. Unemployment Insurance Appeal Board, the court determined it would

be logical to presume the time limit in 3318(c) was ten calendar days because the term

“calendar days” was used in the preceding section.21 I respectfully disagree. As

Justice Antonin Scalia said in Finley v. United States, “[w]hat is of paramount

importance is that Congress be able to legislate against a background of clear

interpretive rules, so that it may know the effect of the language it adopts.”22 This
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

23 Super. Ct. Civ. R. 6(a) states in pertinent part “[w]hen the period of time prescribed or

allowed is less than 11 days, intermediate Saturdays, Sundays, and other legal holidays shall be

excluded in the computation.”

24 19 Del. C. § 3318(b) states in pertinent part (emphasis added):

Unless a claimant or a last employer who has submitted a timely and completed

separation notice in accordance with § 3317 of this title files an appeal within 10

calendar days after such Claims Deputy’s determination was mailed to the last

known addresses of the claimant and the last employer, the Claims Deputy’s

determination shall be final and benefits shall be paid or denied in accordance

therewith. 

25 19 Del. C. § 3318(c) states in pertinent part (emphasis added):

The parties shall be duly notified of the tribunal's decision, together with its

reason therefor [sic], 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.

8

statement is equally relevant at the state level. 

As a preliminary matter, the Court notes that this is not an attempt to substitute

Superior Court Civil Rule 6(a) in place of the statutory time limit.23 This is strictly

a matter of statutory construction. A close reading of 19 Del. C. § 3318 reveals that

the time limits within which appeals must be filed are phrased differently in

subsections (b) and (c). When a party wishes to appeal the determination of a Claims

Deputy, section 3318(b) states that the appeal must be filed within ten calendar days

after the Claims Deputy has mailed the determination.24 When a party pursues further

appeals, section 3318(c) states that the appeal must be initiated pursuant to section

3320 within ten days of notification or of the mailing of the tribunal’s decision.25 The

word “calendar” is conspicuously absent from the time limitation in 3318(c).

Because the term “calendar” was used in the previous subsection, it must be assumed
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

26 “[W]ords in a statute should not be construed as surplusage if there is a reasonable

construction which will give them meaning, and courts must ascribe a purpose to the use of statutory

language, if reasonably possible.” Chase Alexa, LLC v. Kent Cnty. Levy Ct., 991 A.2d 1148, 1152

(Del. 2010) (quoting Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del.

1994)).

27 Funk, 591 A.2d at 225. 

9

that excepting the word “calendar” in this subsection was intentional. If the

legislature had intended the limitation to be ten calendar days, the language used in

section 3318(b) would have been duplicated in section 3318(c). To interpret “10

days” in section 3318(c) to mean ten calendar days would render the term “calendar”

in section 3318(b) mere surplusage.26 A liberal interpretation of the ten day time limit

would exclude weekends and holidays. Thus, the ten day time limitation contained

in section 3318(c) must be read to exclude weekends and holidays. Under this

interpretation, Williams was required to file her appeal with the Board by July 1,

2015. Unfortunately, Williams did not file her appeal until July 2, 2015. However,

this defect does not prevent the Board from exercising the discretion granted them in

section 3320. 

Section 3320 grants the Board wide discretion over the appeals process.

27

However, the Board uses this power judiciously. In an opinion letter issued on June

27, 1989, the Board stated:

[I]n a situation where a party has filed a late appeal from an

administrative decision, the Board is extremely cautious in assuming

jurisdiction over the matter. It does so only in those cases where there

has been some administrative error on the part of the Department of

Labor which deprived the claimant of the opportunity to file a timely
Tammy R. Williams v. UIAB

C.A. No. K15A-08-002 WLW

Decided: March 29, 2016

28 Id.

10

appeal, or in those cases where the interests of justice would not be

served by inaction.28

Although there was no administrative error on the part of the Department of Labor,

the interests of justice compel the Board to exercise its discretion in this case. The

Claims Deputy reached the right conclusion but failed to state the correct reasoning

for the decision. The Referee’s decision was contrary to law and would have been

overturned if the Board had exercised its discretion to hear the untimely appeal.

Based on the facts of this case, the Board’s failure to accept the appeal was an abuse

of discretion. This would be the case whether the appeal was one day late or five

days late. 

CONCLUSION

Forthe foregoingreasons, the decision of the Unemployment Insurance Appeal

Board is REVERSED and the case is remanded to the Board for further proceedings

on William’s claim for unemployment benefits consistent with this decision. 

IT IS SO ORDERED.

 /s/ William L. Witham, Jr.

Resident Judge

WLW/dmh