      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SHERYL JOHNSON,                        )
                                       )
      Appellant,                       )
                                       )
      v.                               )     C.A. No. N19A-08-004 ALR
                                       )
FIRST STATE STAFFING                   )
SOLUTIONS and                          )
UNEMPLOYMENT INSURANCE                 )
APPEAL BOARD,                          )
                                       )
      Appellees.                       )

                             Submitted: January 10, 2020
                              Decided: February 6, 2020

           On Appeal from the Unemployment Insurance Appeal Board
                        REVERSED and REMANDED

                         MEMORANDUM OPINION




Sheryl Johnson, Appellant.

Monica Townsend, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for Appellee Unemployment Insurance Appeal
Board.


Rocanelli, J.
      This is an appeal by Sheryl Johnson (“Appellant”) from a decision (“2019

Decision”) of the Unemployment Insurance Appeal Board (“Board”) issued on

remand from the Superior Court.

               FACTUAL AND PROCEDURAL BACKGROUND

      Appellant began working for First State Staffing Solutions (“Employer”) as a

substitute paraprofessional in August 2017. Employer is a temporary staffing

agency. Appellant was hired as a temporary employee working on an “as needed”

basis. There is a dispute as to whether Appellant voluntarily quit her job.

      Appellant filed a claim for unemployment insurance benefits sometime after

Employer stopped sending Appellant work assignments. A Claims Deputy and an

Appeals Referee issued separate decisions finding Appellant to be disqualified from

receiving benefits, and Appellant appealed the Appeals Referee’s decision to the

Board. Following a hearing at which the parties presented evidence, the Board

issued a decision affirming the decision of the Appeals Referee (“Disqualification

Decision”). The Board found Appellant to be disqualified from receiving benefits

because, according to the Board, Appellant had voluntarily quit her job.1 Appellant

then filed her first appeal to this Court.


1
  The Board based its decision, in part, on the decision of the Appeals Referee who
found that Appellant had failed to show that Appellant had good cause to quit. See
R. at 154 (“The Board finds no error in the Referee’s Decision and adopts it as its
own. The Board agrees with the Referee’s conclusion that [Appellant] failed to meet
her burden under Delaware law to show that there was good cause to quit.”).
                                          1
      By opinion dated July 16, 2019, this Court reversed the Board’s

Disqualification Decision and remanded the case to the Board for further

proceedings.2 This Court found that the Board did not apply the appropriate statute

and that, under the correct statute, the Board’s Disqualification Decision was not

supported by substantial evidence.3

      On July 26, 2019, the Board mailed a notice to Appellant which stated that

the Board would hear Appellant’s case on August 14, 2019, at 9:20 AM.4 The notice

directed Appellant to arrive at least 15 minutes before the scheduled start time and

advised Appellant that failure to arrive on time could result in a dismissal.5

      On August 14, 2019, the Board issued its 2019 Decision which states, in its

entirety, that “[t]he case was dismissed because [Appellant] or the employer failed

to appear.”6 Appellant claims that she arrived to the hearing between 13 and 15

minutes late because she was traveling from New Castle, Delaware; there was low

visibility on the roads due to heavy rain and fog; and “trucks were driving very

slow.”7 Appellant claims that when she arrived at the hearing, an officer of the Board




2
  See id. at 169–89.
3
  See id. at 181–89.
4
  See id. at 190.
5
  See id.
6
  Id. at 192.
7
  See id. at 195–96.
                                          2
told Appellant that the Board had dismissed her case and that Employer had failed

to appear.8

      The Board did not attach to the 2019 Decision a notice of Appellant’s rights

to appeal the decision to this Court or to request a rehearing before the Board.9

Nevertheless, Appellant timely appealed the 2019 Decision to this Court on August

21, 2019, arguing that the Board (1) improperly found Appellant to be disqualified

from receiving benefits and (2) improperly dismissed Appellant’s case when she

arrived late to the August 14, 2019 hearing.10 In response, the Board argues that this

Court lacks jurisdiction to hear the appeal on its merits because Appellant failed to

exhaust her administrative remedies and that the Board did not abuse its discretion

when it dismissed Appellant’s case.11

                               LEGAL STANDARD

      On appeal from a Board decision, the Court’s review is limited to determining

whether the Board’s factual findings are supported by substantial evidence in the

record and whether the decision is free from legal error.12 Substantial evidence is


8
  Id. at 196.
9
  See id. at 192.
10
   See id. at 195–96; Johnson Letter 1–2, Dec. 17, 2019.
11
   Del. Unemployment Ins. Appeal Bd. Letter 2–3, Dec. 18, 2019.
12
   19 Del. C. § 3323(a) (“In any judicial proceeding under [§ 3323], the findings of
the [Board] as to the facts, if supported by evidence and in the absence of fraud, shall
be conclusive, and the jurisdiction of the Court shall be confined to questions of
law.”); see also Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 309–10
(Del. 1975).
                                            3
“relevant evidence that a reasonable mind might accept as adequate to support a

conclusion.”13   The Court does not weigh evidence, determine questions of

credibility, or make findings of fact.14 Questions of law are reviewed de novo.15

Absent an abuse of discretion, a Board decision that is without legal error and

supported by substantial evidence will be affirmed.16 The Court “will not intrude on

[the Board’s] role as trier of fact by disturbing the [Board’s] credibility

determinations or factual findings.”17 The Court, however, may find an abuse of

discretion when the Board’s decision “exceeds the bounds of reason given the

circumstances, or where rules of law or practice have been ignored so as to produce

injustice.”18




13
   Murphy & Landon, P.A. v. Pernic, 121 A.3d 1215, 1221 (Del. 2015).
14
   See Anchor Motor Freight, Inc. v. Unemployment Ins. Appeal Bd., 325 A.2d 374,
375 (Del. Super. 1974).
15
   Potter v. Del. Dep’t of Corr., 2013 WL 6035723, at *2 (Del. Nov. 13, 2013).
16
   Filanowski v. Port Contractors, Inc., 2007 WL 2229019, at *1 (Del. Aug. 2, 2007)
(“The findings of the [Board] as to the facts, if supported by evidence and in the
absence of fraud, shall be conclusive, and the jurisdiction of the Court shall be
confined to questions of law.”).
17
   Toribio v. Peninsula United Methodist Homes, Inc., 2009 WL 153871, at *2 (Del.
Super. Jan. 23, 2009).
18
   Peregoy v. Del. Hospice, 2011 WL 3812246, at *1 (Del. Super. Aug. 12, 2011)
(quoting Bolden v. Kraft Foods, 2005 WL 3526324, at *2 (Del. Super. Dec. 21,
2005)); see also Slater v. J.C. Penny Inc., 2012 WL 2905303, at *3 (Del. Super. July
17, 2012) (“The Board abuses its discretion when its decision is clearly based on
unreasonable grounds or produces injustice that defies sanctioned rules of law or
practice.”); Hefley v. Unemployment Ins. Appeals Bd., 2009 WL 5177136, *1 (Del.
Super. July 17, 2009).
                                           4
                                  DISCUSSION

      This Court’s authority to review the Board’s findings is limited to cases where

an appellant has exhausted all administrative remedies.19 An appellant has not

exhausted all administrative remedies when the Board has dismissed the case based

on a party’s failure to appear at a Board hearing.20 It is undisputed that the Board

dismissed Appellant’s case based on a failure to appear at the August 14, 2019

hearing. Accordingly, this Court’s review is limited to the issue of whether the

dismissal constituted an abuse of the Board’s discretion.21

      The Board has broad powers to review an Appeals Referee’s decision,22 and

its review powers are expanded by 19 Del. C. § 3321(a), which permits the Board to

prescribe regulations “for determining the rights of the parties” who come before

it.23 Pursuant to its Section 3321(a) authority, the Board promulgated Regulation


19
   See Cornell v. Candle Light Bridal, 2015 WL 2395841, at *3 (Del. Super. Apr.
17, 2015).
20
   See Matthews v. Don-Lee Margin Corp., 2015 WL 4719837, at *2 (Del. Super.
Aug. 5, 2015) (“Where an appellant fails to appear before the [Board], that appellant
has failed to exhaust all administrative remedies.”).
21
   See Archambault v. McDonald’s Rest., 1999 WL 1611337, at *1–2 (Del. Super.
Mar. 22, 1999) (reviewing the Board’s decision to dismiss a claimant’s case for
failure to appear under an abuse of discretion standard).
22
   See Cornell, 2015 WL 2395841, at *3 (citing Tesla Indus., Inc. v. Bhatt, 2007 WL
2028460, at *2 (Del. Super. June 28, 2007)); see also 19 Del. C. § 3320(a).
23
   19 Del. C. § 3321(a) (“The manner in which disputed claims shall be presented
and the conduct of hearings and appeals shall be in accordance with regulations
prescribed by the [Board] for determining the rights of the parties, whether or not
such regulations conform to common-law or statutory rules of evidence and other
technical rules of procedure.”); accord Cornell, 2015 WL 2395841, at *3 (“[The
                                           5
4.2, which gives the Board discretion to dismiss a case when the party appealing to

the Board “fail[s] to appear within 10 minutes of the time indicated on the Notice

[of Hearing].”24

      This Court has repeatedly affirmed decisions of the Board to dismiss appeals

of an Appeals Referee’s decision based on the appellant’s failure to timely appear

without a valid excuse.25 In doing so, this Court has emphasized “the importance of

allowing administrative boards to enforce their rules . . . in order that they may

efficiently manage and dispose of cases before them.”26 However, the important

goal of timely and efficient dispositions must be balanced against Delaware’s strong

public policy in favor of decisions on the merits.27 Moreover, administrative

proceedings must satisfy due process by adhering to “rudimentary requirements of




Board’s] review powers are further increased by 19 Del. C. § 3321 (a), which allows
the [Board] to enact regulations governing its hearing procedures.”).
24
   19 Del. Admin. C. § 1201-4.2 (“Failure to appear within 10 minutes of the time
indicated on the Notice may result in the Board hearing the appeal in absence of the
delinquent party or, if the delinquent party is the appellant, dismissal of the appeal.”).
25
   See, e.g., Matthews, 2015 WL 4719837, at *2–3; Cornell, 2015 WL 2395841, at
*3–4; Peregoy, 2011 WL 3812246, at *2; Tesla, 2007 WL 2028460, at *2–4.
26
   Peregoy, 2011 WL 3812246, at *2; see also Tesla, 2007 WL 2028460, at *4
(“[T]he Court must uphold the Board’s discretionary decision to efficiently
administer its caseload by dismissing [the appellant’s] appeal and denying [the
appellant’s] request for a rehearing.”).
27
   See Draper v. Med. Ctr. of Del., 767 A.2d 796, 798 (Del. 2001) (“[T]he important
goal of timely adjudications must be balanced against the strong policy in favor of
decisions on the merits.”).
                                            6
fair play.”28 Due process “is not a technical notion with a fixed content unrelated to

time, place, and circumstances; rather it is a flexible concept which calls for such

procedural protections as the situation demands.”29 Accordingly, the Board abuses

its discretion when its decision “exceeds the bounds of reason given the

circumstances, or where rules of law or practice have been ignored so as to produce

injustice.”30

       The circumstances surrounding the 2019 Decision are especially important in

this case. First, the Board issued the 2019 Decision on remand from a decision of

this Court which found the Board’s Disqualification Decision to be based on

improper conclusions of law and factual findings that were not supported by

sufficient evidence.31 By dismissing Appellant’s case solely on technical grounds,

the Board permitted the erroneous decision of the Appeals Referee, on which the

Board based its Disqualification Decision,32 to stand despite clear instructions from

this Court to the contrary.




28
   Bethel v. Bd. of Educ. of the Capital Sch. Dist., 2009 WL 4545208, *4 (Del. Dec.
4, 2009) (quoting XComp, Inc. v. Ropp, 2002 WL 1753168, at *2 (Del. Ch. July 19,
2002)).
29
   Vincent v. E. Shore Mkts., 970 A.2d 160, 164 (Del. 2009).
30
   Peregoy, 2011 WL 3812246, at *2.
31
   See R. at 181–89.
32
   See R. at 154 (“The Board finds no error in the Referee’s Decision and adopts it
as its own.”).
                                           7
      Second, while the Board now claims that it properly dismissed Appellant’s

case pursuant to Regulation 4.2, the Board provides no record of the proceeding at

which Appellant allegedly failed to appear. In the cases where this Court has

deferred to the Board’s authority to dismiss claims pursuant to Regulation 4.2, the

Court has examined the record from the proceeding below to determine whether the

Board complied with its own regulation. Specifically, this Court has reviewed the

record from the Board’s hearing to confirm that the Board actually provided the

claimant with the 10-minute grace period prescribed by the Board’s regulation.33 In

the absence of such a record, the Court cannot determine whether the Board’s

dismissal was appropriate.34 “It is the [] Board’s responsibility to provide a record

that is adequate for the purpose of judicial review.”35


33
   See Matthews, 2015 WL 4719837, at *2 (noting that the Board “waited until 1:32
PM before entertaining a motion to dismiss the appeal”); Cornell, 2015 WL
2395841, at *2 (noting that the Board did not dismiss a claimant’s case until “10:54
AM, after waiting for [the claimant] to arrive for approximately 14 minutes”); Tesla,
2007 WL 2028460, at *2 (“[T]he record reflects that [the appellant’s] appeal hearing
was scheduled to begin at 9:20 a.m. but by 9:36 a.m. [the appellant] was still not
present.”).
34
   See Rose v. Tri State D.C.P., 1987 WL 14886, at *2 (Del. Super. June 23, 1987)
(remanding to the Board because the Board provided an inadequate record for
review).
35
   Id. at *1; see also 19 Del. C. § 3323(a) (“With its answer the [Board] shall certify
and file with the Court all documents and papers and a transcript of all testimony
taken in the matter together with the [Board’s] findings of fact and decision therein.”
(emphasis added)); 19 Del. C. § 3321(b) (“A full and complete record shall be kept
of all proceedings in connection with a disputed claim. All testimony at any hearing
upon a disputed claim shall be recorded but need not be transcribed unless the
disputed claim is further appealed.”).
                                            8
      Finally, when the Board issued the 2019 Decision, it failed to notify Appellant

of both her right to appeal to this Court, as is required by the Board’s own

regulations,36 and her right to request a rehearing before the Board. While the

Board’s decision on a motion for rehearing is discretionary, a claimant nevertheless

has the right to file a request which may include an explanation for why the claimant

failed to timely appear.37

      In reviewing the Board’s 2019 Decision, the Court considers the record as a

whole and in light of the leniency that Delaware courts may give to self-represented

parties.38 Appellant has navigated this case without the assistance of counsel. By


36
   See 19 Del. Admin. C. § 1201-6.4 (“Final decisions shall be accompanied by a
notice of the right to appeal the Board’s decision to Superior Court pursuant to 19
Del. C. § 3323.”).
37
   See 19 Del. Admin. C. § 1201-7.0 (“At any time subsequent to a Board decision
but prior to the Board’s decision becoming final, any party to the appeal may request
by motion, with notice to all parties, a rehearing before to Board. The motion shall
set forth briefly and distinctly the grounds for the motion.”); 19 Del. C. § 3321(a)
(“The manner in which disputed claims shall be presented and the conduct of
hearings and appeals shall be in accordance with regulations prescribed by the
[Board] for determining the rights of the parties . . . .” (emphasis added)). If the
Board denies the claimant’s request, this Court retains jurisdiction of the appeal to
determine whether the Board’s denial amounted to an abuse of discretion by
applying an “excusable neglect” standard. See Tesla, 2007 WL 2028460, at *2
(explaining that the party appealing the Board’s denial of a request for rehearing
“must show that it acted with excusable neglect when it failed to appear before the
Board”). On the other hand, where, as here, a claimant does not request a rehearing,
this Court’s review is limited to whether the Board’s dismissal alone constituted an
abuse of discretion. See Archambault, 1999 WL 1611337, at *1–2.
38
   See Forst v. Wooters, 1993 WL 370865, at *1 (Del. Sept. 9, 1993) (“While we
recognize that some degree of leniency should be granted for pro se appeals, at a
minimum, briefs must be adequate so that this Court may conduct a meaningful
                                           9
dismissing Appellant’s case based on a technical default, the Board effectively

permitted the Appeals Referee’s decision to govern Appellant’s benefits claim

despite this Court’s finding that the decision was based on inapplicable law and

insufficient facts. Moreover, while the Board claims that it had authority to dismiss

the case pursuant to a duly promulgated regulation, the Board has provided no record

showing that the requirements for dismissal had been met. Finally, the Board failed

to apprise Appellant of her right to appeal the 2019 Decision to this Court, in

violation of the Board’s own regulations, and her right to explain her absence

through a request for rehearing.     Under these circumstances, and in light of

Delaware’s strong policy favoring decisions on the merits, the Court finds that the

Board abused its discretion by summarily dismissing Appellant’s case. Accordingly,

justice requires remand to the Board for consideration of the merits of Appellant’s

case.

                                 CONCLUSION

        Under the particular facts and circumstances of this case, dismissal of

Appellant’s case for failure to appear at a hearing before the Board constituted an




review of the merits of appellants’ claim.”); Alston v. State, 2002 WL 184247, at *1
(Del. Super. Jan. 28, 2002) (“[T]he Court may grant pro se litigants some
accommodations that do not affect the substantive rights of those parties involved in
the case at bar.”).
                                         10
abuse of discretion. Accordingly, the Board’s 2019 Decision is hereby REVERSED

and the matter is REMANDED with the following instructions:

     1.    The Board shall conduct a hearing on Appellant’s claim to consider

           evidence relevant to Appellant’s qualification for unemployment

           insurance benefits, consistent with this Court’s July 16, 2019 opinion;

           and

     2.    The Board shall issue a decision as to Appellant’s qualification for

           unemployment benefits, applying the appropriate statutory provisions,

           consistent with this Court’s July 16, 2019 opinion.

     IT IS SO ORDERED.



                                                                                                                              Andrea L. Rocanelli
                                           ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                           The Honorable Andrea L. Rocanelli




                                      11
