IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SI-IERELL SMOTHERS, )
)

Appellant, )

)

v. ) C.A. Nl6A-08-004 AML

)

DELAWARE TRANSIT )
CORPORATION and )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, )
)

Appellees. )

Submitted: February 14, 2017
Decided: May l, 2017

ORDER
On appeal from the Unemployment Insurance Appeal Board: AFFIRMED

l. This is an appeal from a denial by the Unemployment Insurance
Appeal Board (the “Board”) of an untimely appeal. The Board’s decision
effectively ended further review of the claimant’s eligibility for unemployment
benefits. The claimant argues, as she did to the Board, that she did not timely
receive the notice denying her unemployment benefits due to some difficulties she
had experienced receiving her mail since moving to a new home. The question is
Whether the Board abused its discretion in denying the appeal as untimely. For the

reasons that folloW, I conclude it did not.

2. On April 29, 2016, Sherell Smothers Was discharged from her
employment With Delavvare Transit Corporation (“DART”). She filed for
unemployment benefits on May 15, 2016. On June 14, 2016, a claims deputy
issued a determination, finding DART discharged Smothers for just cause and
therefore she Was disqualified from receiving unemployment benefits.l That
determination became final and no longer Was appealable on June 24, 2016.2
Smothers appealed the claims deputy’s decision on June 30, 2016.3

3. On July 19, 2016, an appeals referee held a hearing to address only
the issue of timeliness.4 Tiffany Dzwonkowski represented the Department of
Labor (the “Department”) at the hearing.5 Ms. DzWonkoWski testified that the
June 14, 2016 determination Was mailed to Smothers’ last address of record: 1009
Sandberg Place, NeWark, Delaware, 19702.6 She further testified that Smothers
filed an appeal on June 30, 2016, at Which time she also filed her change of address
With the Department7 Smothers testified that she moved on May 20, 2016.8 She

testified she continued to use her old address because it Was the “one on [her] ID”

 

1R. at 35-36.
2 Id. at 35.

3 ld. at 40.

4 1d.at13,21.
5 ld. at 23.

6 Id. at 25.

7 1d.atz6.

8 Id. at 28.

and she assumed she had to use it.9 Smothers also testified she forwarded her mail
to her new address but did not inform the Department of her address change
because she was not aware that certain agency mail would not be forwarded.10
4. On July 19, 2016, the appeals referee issued a decision, concluding
Smothers appealed the determination after it had become final and binding.ll The
appeals referee found: (1) there was no evidence that the post office returned the
claims deputy’s determination as undeliverable; and (2) Smothers’ failure to file a
timely appeal was not due to Departmental error, but rather Was attributable to
Smothers’ failure to inform the Department of her new address.12 The appeals
referee affirmed the claims deputy’s determination that Smothers’ appeal was
untimely.13
5. On July 22, 2016, Smothers appealed the referee’s decision to the
Board, arguing:
I Sherell Smothers do not agree with the decision of the
referee handling my unemployment late appeal case. I
would like another fair hearing considering the fact that I
was not aware [that] government documents cannot be

forwarded. However I did file an appeal as soon as I was
made aware of the decision. Also at the time of filing l

 

9 1d.at29.

1° Id.

11 Id. at 33.

12 Id.

13 Id. The appeal referee’s decision states: “There was no evidence that the appeal was returned
as undeliverable.” The reference to “appeal” is a typo, which should instead say

“determination.”

was Staying in a hotel and still using my recent address. I
would p1ov1de proof of that in upcoming hearing4

6. On August 2, 2016 upon review of the record, the Board found no
error in the appeals referee’s determination, adopted the appeals referee’s decision
as its own, and denied Smothers’ application for further review.15 Smothers timely
appealed the Board’s decision to this Court.

7. Smothers appeals the Board’s decision on the following grounds:
when she moved after applying for unemployment benefits, she continued to use
her old address based on the assumption that “when [she] put [her] mail on hold[,
she would] receive it and or [] it would be forwarded;” she did not have
transportation to the Department to put in a change of address sooner; and part of
the reason she did not receive her forwarded mail is because a neighbor was
blocking her mailbox.16 Smothers further argues that she was not prepared at the
hearing before the appeals referee to explain the timeliness of her appeal because
she believed the hearing would address the merits of her unemployment benefits
claim.17 Smothers maintains that “DART lied in this matter and [she] deserve[s]

the right to a fair hearing in [her] defense.”18

 

14 ld. at 44.
15 Id. 3147.
16 161 at 53.
11 Id.
18 Id.

8. In response, the Board argues: “[T]here is substantial evidence in the
record sufficient to support its findings, and such findings are free from legal error.
The Board did not abuse its discretion, nor did it act in an arbitrary or capricious
manner in affirming the Appeals Referee’s decision and denying further appeal.”19
DART joined the Board’s submission and requests that this Court affirm the
Board’s decision.20

9. This Court’s review of the Board’s decision is limited to whether the
Board’s findings were supported by substantial evidence and whether the decision
is free from legal error.21 The Court will not weigh evidence, determine questions
of credibility, or make its own factual findings and conclusions.22 As to
discretionary matters, the Board’s decision must be affirmed absent an abuse of
discretion.23 The Board abuses its discretion when it “acts arbitrarily or

capriciously” or “exceeds the bounds of reason in view of the circumstances and

. . . . . . 24
has ignored recognized rules of law or practice so as to produce injustice.”

 

19 Board’s Resp. Br. 2.

20 D.i. ii.

21 See Thompson v. Christiana Care Health Sys., 25 A.3d 778, 781-82 (Del. 2011); Deysher v.
Unemployment Ins. Appeal Bd., 2011 WL 7063475, at *1 (Del. Super. Sept. 28, 2011) (citing
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)) (defining substantial evidence as “evidence
from which the Board could fairly and reasonably reach its conclusion”).

22 Thompson, 25 A.3d at 782.

22 Funk v. Unemployment lns. Appeal Bd., 591 A.2d 222, 225 (Dei. 1991).

24 PAL of Wilm. v. Gmham, 2008 WL 2582986, at *4 (Dei. super. June 28, 2000) (intemai
citations omitted).

10. This appeal is limited to the timeliness issue. Smothers’ substantive
claims - for example, Whether DART lied about why she was terminated - are not
in the record and cannot be addressed.25 The Court, therefore, only is considering
whether the Board abused its discretion by refusing to hear Smothers’ untimely
appeal.

11. The law is well-settled regarding the time period to appeal a claim of
this nature. A claims deputy’s decision is final ten calendar days after it is
mailed,26 “unless the mailing fails to reach a party because of some mistake made

”27 Delaware law assumes that mail correctly

by [Department] employees.
addressed with proper postage was delivered and received.28 This Court repeatedly
has affirmed the Board’s denial of untimely appeals where the claimant failed to
update her address, even where the mailing was returned to the Department.29

12. Smothers does not dispute that she received the claims deputy’s

determination The determination, Which was dated and mailed June 14, 2016,

 

25 See Cassidy v. Lz`berty Stajj'ing, 2011 WL 7452778, at *1 (Del. Super. Oct. 25, 2011).

26 19 Del. C. § 3318(¢).

21 Funk, 591 A.2d at 224.

28 Crawfora' v. Park Plaza Condo. Assoc., 1994 WL 380305 (Del. Super. 1994); Grz`jj‘in v.
Daimler Chrysler, 2000 WL 33309877, at *1 (Del. Super. Apr. 27, 2001).

29 Fennel v. Unemployment lns. Appeal Bd., 2014 WL 4417574, at *2 (Del. super. Aug. 27,
2014); see also Venturini v. Unemployment Ins. Appeal Bd., 2011 WL 3585606 (Del. Super.
Aug. 15, 2011) (affirming the Board’s decision denying the claimant’s appeal as untimely even
though the returned mailing included the claimant’s new address and the Department did not re-
mail the decision because (1) the claimant only forwarded her mail to her new address, she did
not change her address with the Department, and (2) the Department may not change a
claimant’s address without the claimant’s authorization).

6

became final on June 24, 2016.30 Smothers filed her appeal on June 30, 2016, six
days late.

13. Smothers argues, however, that her appeal was late because she was
not aware that the determination would not be forwarded to her new address, and,
even if it was, other extenuating circumstances prevented her from receiving it in a
timely manner and therefore the Board should have accepted her appeal. Whether
Smothers’ circumstances excuse her delay in filing the appeal turns on the facts
determined by the appeals referee and the Board.31 In addition, while the Board
may hear an untimely appeal sua sponte, it has broad discretion in choosing
whether to do so.32 Based on the record before it, the Board did not find that
Smothers’ circumstances excused her filing a timely appeal.?’3

14. The record here provides substantial evidence supporting the Board’s
findings that Smothers’ failure to file her appeal timely was not attributable to the

Department. Furthermore, I cannot say the Board abused its discretion by refusing

to consider Smothers’ untimely appeal.

 

20 R. 3128, 31, 32, 35-37.

31 See Friedman v. Unemployment Ins. Appeal Ba'., 1996 WL 453357 (Del. Super. July 31,
1996); Jones v. Unemployment Ins. Appeal Bd., 2014 WL 8059634 (Del. Super. Sept. 12, 2014).
22 19 Del. C. § 3320; Funk, 591 A.2d a1225.

33 See Funk, 591 A.2d at 224 (citing the Board’s explanation regarding the caution it takes when
exercising its sua sponte power: “[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.
lt 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 appeal, or in
those cases where the interests of justice would not be served by inaction. Such cases have been
few and far between and involved circumstances much more severe than those in this case.”).

7

For the foregoing reasons, the Unemployment Insurance Appeal Board’s

August 2, 2016 decision is AFFIRMED.

IT IS SO ORDERED. g M-‘

big `i\'/l.\l:‘e@i:ow, Jidlée

Original to Prothonotary

cc: Paige J. Schmittinger, Deputy Attorney General
Victoria W. Counihan, Deputy Attorney General
Carla A.K. Jarosz, Deputy Attorney General
Aleine M. Porterfield, Deputy Attorney General
Ms. Sherell Smothers, pro se (via First Class Mail)

