            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY


      DEBORAH JACKSON,                         )
                                               )
                  Appellant,                   )
                                               )
                   v.                          ) C.A. No.: N14A-07-002 CLS
                                               )
      KINDERCARE and                           )
      UNEMPLOYMENT                             )
      INSURANCE APPEALS BOARD,                 )
                                               )
                  Appellees.


                               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.
       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).
                                             2
    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).
                                             3
          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).
                                             4
