             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                           IN AND FOR NEW CASTLE COUNTY



JARRATT ROBERTS,                           )
                                           )
              Appellant,                   )
       v.                                  )      C.A. No.: N13A-10-001 FWW
                                           )
                                           )
UNEMPLOYMENT INSURANCE                     )
APPEAL BOARD,                              )
                                           )
              Appellee.                    )



                 On Appeal from the Unemployment Insurance Appeal Board:
                                      AFFIRMED


                                  OPINION AND ORDER

                                 Submitted: April 24, 2014
                                 Decided: August 6, 2014




Jarratt Roberts, pro se, 111 Warwick Drive, Wilmington, Delaware, Appellant.

James T. Wakley, Esquire, Deputy Attorney General, Department of Justice, 820 North French
Street, 6th Floor, Wilmington, Delaware, Attorney for the Unemployment Insurance Appeal
Board, Appellee.


WHARTON, J.
                                              I. INTRODUCTION

         Jarratt Roberts, pro se, filed this appeal from a decision of the Unemployment Insurance

Appeal Board on October 3, 2013. The appeal was originally assigned to a judge of this Court on

April 24, 2014. Subsequently that judge retired on May 2, 2014. It has been under consideration

by this judge since June 6, 2014.

         On appeal, the Court must determine whether the Board’s decision to adopt the ruling of

the Appeals Referee, dismissing Appellant’s claim as untimely, is supported by substantial

evidence and free from legal error. The Court finds that the Board’s ruling is supported by

substantial evidence and free from legal error. Accordingly, the Board’s decision is

AFFIRMED.

                           II. FACTUAL AND PROCEDURAL CONTEXT

         Three Notices of Determination were sent to Appellant’s address of record in 2012

informing him of overpayment: Case Number 50858606 dated August 22, 2012, Case Number

60858606 dated October 3, 2012, and Case Number 60867854 dated October 3, 2012. 1 Each

Notice of Determination explicitly states that the determination becomes final unless a written

appeal is filed within ten days. 2 Appellant’s appeal of these claims was filed on July 10, 2013. 3

         Appellant maintains that he contacted the Division of Unemployment Insurance (the

“Division”) several times before July 10, 2013. 4 He asserts he first contacted the Division in

August of 2012 by phone after he received a letter describing overpayment, but claims he never

1
  Division of Unemployment Notice of Determination (Aug. 22, 2012), claim 50858606; Division of Unemployment
Notices of Determination (Oct. 3, 2012), claims 60858606 and 60867854.
2
  Each of the October Notices read as follows: “This determination becomes final on 10/13/12 unless a written
appeal is filed. Your appeal must be received or postmarked on or before the date indicated. If the last date to file an
appeal falls on a Saturday, Sunday or Legal Holiday, the appeal will be acceptable the next business day.” Division
of Unemployment Notices of Determination (Oct. 3, 2012), claims 60858606 and 60867854. Notice of
Determination 50858606 provided identical language but listed a deadline of “09/01/12.” Division of
Unemployment Notice of Determination (Aug. 22, 2012), claim 50858606
3
  Division of Unemployment Appeal Request Notifications (July 10, 2013).
4
  Appellant’s Opening Br. at 1.

                                                           2
received the Notices of Determination described above. 5 Appellant lives with his mother, also

named J.S. Roberts, and testified it could be possible that she opened the letters without

informing him. 6 Appellant maintains he was told that the information he provided during the

phone call would be submitted for a hearing and that he should wait until “October or November

2012” for a mailing. 7 Appellant claims when nothing arrived, he made follow up “phone calls at

the end of November,” and wrote his first letter on December 7, 2012. 8 Appellant goes on to

describe a series of phone calls, office visits and letters he sent to the Division over the next

several months and various conversations he allegedly had with different employees of the

Division. 9 At one point, Appellant claims he was informed that his file was lost. 10 Appellant also

claims he was told over the course of this correspondence that, due to lack of payments and

interest, the amount due “ballooned” from $1,250.00 to $4,000.00. 11

        On August 5, 2013, a claims deputy denied all three of Appellant’s claims as untimely. 12

Noting there was nothing in the file to indicate that the notices were not delivered, the claims

deputy determined that the prior determinations sent on October 13, 2012 were “final and

binding due to the claimant’s failure to file a timely appeal.” 13 A hearing was ordered solely to

address the issue of timeliness. 14




5
  Division of Unemployment Appeals Referee’s Decision (Aug. 27, 2013) at 2.
6
  Id.
7
  Appellant’s Opening Br. at 1.
8
  Id.
9
  Id. at 1-3. Appellant also provided copies of the letters he claims were sent to the Divison.
10
   Id at 3.
11
   Id. at 1.
12
   Claims deputy’s decisions (starting on page 17 of record) Division of Unemployment Claims Deputy’s Decisions
(Aug. 5, 2013), case numbers 50913727, 50913729, and 50913731 at 1. At this point in the proceedings the claims
deputy addressed each determination in a separate, identical decision. For the purposes of this opinion they will be
discussed collectively.
13
   Id.
14
   Id.

                                                         3
        On August 22, 2013 that hearing was held before an Appeals Referee. 15 On August 27,

2013, the Referee issued a decision for each claim. 16               The Referee affirmed the decision,

holding:

        The claimant filed his appeal a number of months after the date on which the
        October 3, 2012 decision became final. The evidence presented shows that the
        decision was properly mailed to the claimant at his correct address. There is no
        evidence of any administrative error by the Department. The claimant’s own
        testimony as well as the various appeal letters shows that he did not submit a
        written appeal until he sent in a letter dated December 7, 2012. This is well after
        the date on which the October 3, 2012 decision became final. Given the evidence
        presented, this tribunal concludes that the claimant did not file a timely appeal. 17

        Appellant timely appealed this decision to the Board. 18 On September 18, 2013, the

Board affirmed the Referee’s decision on all three claims. 19 The Board noted that although “the

decisions explicitly stated that the decisions would become final in late-2012 if appeals were not

filed on or before the dates indicated,” Appellant filed his appeal on July 10, 2013. 20 Finding no

error in the Appeals Referee’s decision, the Board adopted that decision as its own. 21 On October

10, 2013, Appellant appealed to this Court.

        Appellant asserts he has been “misinformed, ignored, and finally told that the documents

[he] sent in were misplaced.” 22 He requests “that the information that has been presented be

reviewed, and that [he be] awarded the right to prove what [his] overpayment amount was, and




15
   Division of Unemployment Notice of Hearings (Aug. 7, 2013). As above, three notices were sent to Appellant all
listing the same date and time.
16
   Division of Unemployment Appeals Referee’s Decisions (Aug. 27, 2013) case numbers 50913727, 50913729, and
50913731 at 1. At this point in the proceedings the Appeals Referee addressed each determination in a separate,
identical decision. For the purposes of this opinion they will be discussed collectively.
17
   Division of Unemployment Appeals Referee’s Decisions (Aug. 27, 2013) case numbers 50913727, 50913729, and
50913731at 3.
18
   Division of Unemployment Appeal Request Notifications (September 6, 2013).
19
    Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Stephanie K. Parker,
Appeal Docket Nos. 50913727, 50913729, 50913731(Sep. 18, 2013) at 1.
20
   Id. at 2.
21
   Id.
22
   Appellant’s Opening Br. at 4.

                                                       4
be on a payment plan for the actual overpayment.” 23 The Board maintains their decision was

supported by substantial evidence and is free from legal error. The Board also asserts that it did

not abuse its discretion or act in an arbitrary or capricious manner and their decision should be

affirmed. 24

                                      III. STANDARD OF REVIEW

        This Court’s review of an Unemployment Insurance Appeal Board decision is defined by

statute. Pursuant to 19 Del. C. § 3323(a), “the findings of the Unemployment Insurance Appeal

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.” Superior Court review,

“is limited to a determination of whether there was substantial evidence sufficient to support the

[Board’s] findings.” 25 Substantial evidence requires “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” 26 This Court does not weigh evidence

or make determinations based on credibility or facts. 27 An abuse of discretion will be found only

if “the Board ‘acts arbitrarily or capriciously’ or ‘exceeds the bounds of reason in view of the

circumstances and has ignored recognized rules of law or practice so as to produce injustice.’” 28

                                              IV. DISCUSSION

        This Court finds no legal error and therefore upholds the Board’s decision because

substantial evidence exists to support the conclusion that Appellant’s appeal was untimely.

Appellant filed his claim several months after the date to appeal expired. Each determination

was successfully delivered to Appellant’s address of record. The language on the overpayment


23
   Id.
24
   Board’s Ans. Br. at 2.
25
   Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 309 (Del. 1975).
26
   Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994) (citing Olney v. Cooch,
425 A.2d 610, 614 (Del. 1981).
27
    Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
28
   Straley v. Advanced Staffing, Inc., 2009 WL 1228572, at * 2 (Del. Super. Apr. 30, 2009) (citations omitted).

                                                        5
determinations clearly stated that they would become final after September 1, 2012 and October

13, 2012. Even if the Board had recognized Appellant’s earliest letter dated December 7, 2012 as

evidence of a written appeal, that letter was still almost two months past the deadline. This

Court is not unsympathetic to Appellant’s situation; however, it cannot overturn the Board’s

decision in this case, where the decision is legally sound and otherwise supported by substantial

evidence.

                                      V. CONCLUSION

       Appellant’s appeal was rightfully denied as untimely. The decision of the Board is

otherwise supported by substantial evidence and free from legal error. Therefore, the Board’s

decision is AFFIRMED.

IT IS SO ORDERED.




                                            _________________
                                             /s/ Ferris W. Wharton, Judge




                                               6
