           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR SUSSEX COUNTY


Gina R. Rishel,                      :
            Appellant,               :     C.A. No: S15A-03-001 (RFS)
                                     :
      v.                             :
                                     :
Milford Hospitality,                 :
           Appellee,                 :
                                     :
      and                            :
                                     :
Unemployment Insurance Appeal        :
Board,                               :
         Appellee.                   :


                         MEMORANDUM OPINION

Upon Appellants Appeal from Unemployment Insurance Appeal Board. Affirmed.

                          Date Submitted: July 7, 2015

                         Date Decided: August 5, 2015


      Gina R. Rishel, P.O. Box 234 Newcomb, MD 21683, Appellant


     Paige J. Schmittinger, Esq., Department of Justice, 820 North French Street,
Wilmington, DE 19801, Attorney for Appellee


     Victoria W. Counihan, Esq., Department of Justice, 820 North French Street,
Wilmington, DE 19801, Attorney for Appellee


STOKES, J.
      Appellant Gina R. Rishel (“Appellant”) appeals the decision of the

Unemployment Insurance Appeal Board (the “Board”) which dismissed

Appellant’s appeal of the Benefit Payment Control Unit’s decision as untimely

filed. For the reasons explained below, the decision of the Board is AFFIRMED.


                       Factual and Procedural History

      The record reflects Appellant worked as the director of sales for Milford

Hospitality, LLC (“Employer”) for two and a half years. On August 20, 2014,

Appellant was handed a letter of termination by her immediate supervisor.

According to the letter, Appellant did not show up to work on August 23, August

24, or August 25 as Employer’s new management expected her to. Appellant was

then discharged by Employer’s new management for failure to report to work.


      On August 24, 2014, Appellant filed a claim for unemployment benefits. A

Claims Deputy determined that Appellant was discharged by Employer without

just cause under 19 Del. C. §3314(2) and was entitled to the receipt of

unemployment benefits.     A Notice of Monetary Determination was sent to

Appellant to inform her of her benefits rights and responsibility to repay any

overpayment that might be made to her.      Employer filed a timely appeal on

September 16, 2014, and a hearing was held on October 6, 2014. The Appeals

                                       1
Referee (the “Referee”) heard the testimony of Dave Douglas, acting as

Employer’s representative, Hank Hancher, Employer’s witness, and Appellant. In

a decision mailed on October 13, 2014, the Referee affirmed the decision of the

Claims Deputy.


       On November 20, 2014, a hearing was held by a Referee to determine

whether services performed by Appellant as a real estate agent performed for

remuneration solely by way of commissions constituted covered employment

under 19 Del. C. §3302(11)(H)1 and thus disqualified her for benefits. In an initial

decision mailed November 24, 2014, the Referee found that services performed as

an estate agent by Appellant were not considered to be employment as defined

under the section.


       This determination was appealed on November 25, 2014 and a hearing was

held by Referee on December 18, 2014 in order to determine whether Appellant

was an unemployed individual and eligible for benefits under 19 Del. C.

§3302(17). 2     The Referee found that Appellant holds a real estate license in


1
  Under 19 Del. C. §3302(11)(H):
       Employment does not include…Service performed by an individual for an employer as
       an insurance agent or real estate agent, or as an insurance solicitor or real estate solicitor,
       if all such service performed by such individual for such employer is performed for
       remuneration solely by way of commissions.
2
  Under 19 Del. C. §3302(17):
       “Unemployment” exists and an individual is “unemployed” in any week during which the
       individual performs no services and with respect to which no wages are payable to the
       individual, or in any week of less than full-time work if the wages are payable to the
                                                  2
Maryland and was affiliated with Exit Latham Realty. In an initial decision mailed

December 18, 2014, the Referee found that Appellant did not meet the statutory

definition of an unemployed individual and was thus ineligible for the receipt of

unemployment benefits.


       Thereafter, the Department of Labor mailed a Notice of Determination on

January 13, 2015 to Appellant’s address of record at the time, informing Appellant

that an overpayment of benefits in the amount of $1,813.00 for 7 weeks had been

established. The Claims Deputy instructed Appellant that the determination would

become final on January 23, 2015 absent an appeal by Appellant. Appellant filed

an appeal on January 28, 2015. On January 29, 2015, the Benefit Payment Control

Unit found that the decision of the Claims Deputy was final and binding due to

Appellant’s failure to timely appeal, but that an appeal may be filed solely to

consider the issue of timeliness.


       A hearing by Referee on the issue of timeliness was held on February 16,

2015. The only testimony considered was on the issue of Appellant’s timeliness of

appeal under 19 Del. C. § 3318(b).3 Appellant argued that she did not receive the


       individual with respect to such week are less than the individual’s weekly benefit amount
       plus whichever is the greater of $10 or 50% of the individual’s weekly benefit amount.
       The Department shall prescribe regulations applicable to unemployed individuals making
       such distinctions in the procedure as to total unemployment, part-total unemployment,
       partial unemployment of individuals attached to their regular jobs and other forms of
       short-term work as the Department deems necessary.
3
  Under 19 Del. C. §3318(b):
                                               3
decision in the mail until January 27, 2015 as her post office is a small one person

office that does not always place mail in P.O. boxes when it should. She further

argued that appealing by January 23 was thus impossible. In a decision mailed

February 16, 2015, the Referee found there was no evidence to indicate the

determination was returned as undeliverable and no substantiating documentation

was presented to indicate there had been a delay in the mailing of the decision.

Accordingly, the Referee found Appellant’s appeal not timely and affirmed the

decision of the Benefit Payment Control Unit. The Referee said that as such, the

determination of the Claims Deputy was considered final and binding.


      Appellant timely appealed the Referee’s decision to the Board and a review

hearing was held on March 4, 2015. The Board found no error in the Referee’s

decision. As such, the Board denied the Appellant’s application for further review

and affirmed the decision below and determined that Appellant’s appeal was

untimely filed through no fault of Department of Labor personnel and was thus not

reviewable. The Board’s decision was mailed to Appellant accompanied by a

notice of the right to appeal to this Court pursuant to 19 Del. C. § 3323. This

decision became final on March 23, 2015.

      Unless a claimant or a last employer who has submitted 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.


                                              4
       On March 20, 2015, this Court received a letter from Appellant stating that

she was appealing the decision of the Board. In her letter, Appellant argued that

she was still unemployed and that, while she has had a Maryland real estate license

for over 25 years, she has no employer. On March 25, 2015 Appellant untimely

filed paperwork relating to the appeal.           Appellant stated there should be no

overpayment and she should be eligible for benefits as her real estate work for

commission did not fall under the definition of “employment” as set forth by 19

Del. C. §3302(11)(H).


                                   Standard of Review

       When this Court reviews a procedural decision of the Board, the Court must

consider whether the Board abused its discretion in rendering its decision. 4 A

procedural decision by an administrative agency is not an abuse of discretion

“unless it is based on clearly unreasonable or capricious grounds” or the Board

decision exceeds the bounds of reason in view of the circumstances and ignored

recognized rules of law or practice so as to produce injustice.” 5 Absent an abuse of

discretion, the Court must affirm the Board’s judgment if it did not otherwise

commit an error of law. 6



4
  Wilson v. Franciscan Care Center, 2006 WL 1134779, at *1 (Del. Super. Feb. 15, 2006) (citing
Funk v. UIAB, 591 A.2d 222, 225 (Del. 1991)).
5
  K-Mart, Inc. v. Bowles, 1995 WL 269872, at *2 (Del. Super. Jan. 26, 1995).
6
  Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225 (Del.1991).
                                              5
                                         Discussion

       The Board did not err in dismissing Appellant’s appeal as untimely.

Pursuant to 19 Del. C. §3318(b), an appeal must be submitted within 10 calendar

days after a Claims Deputy’s determination after such Claims Deputy’s

determination was mailed to the last known address of the claimant and the last

employer. 7 Failing in this, the Deputy’s decision shall become final and benefits

shall be paid or denied in accordance therewith. 8 The time for filing an appeal is

an express statutory condition of jurisdiction that is both mandatory and

dispositive.9 The 10 day period in which to file an appeal begins to run on the date

of mailing unless the mailing fails to reach the recipient due to a mistake made by

the Claims Deputy. 10 Under Delaware law, it is presumed that a mailing with the

proper address and postage has been received by the intended claimant.11


       The Board is generally unable to accept jurisdiction over appeals that are not

timely filed.12 Pursuant to 19 Del. C. § 3320(a), the Board may on its own motion

“affirm, modify, or reverse any decision of an appeal tribunal on the basis of the


7
  19 Del. C. § 3318(b) provides: “[u]nless a claimant…files an appeal within 10 calendar days
after such Claims Deputy’s determination was mailed to the last known address of the claimant
and the last employer, the Claim’s Deputy’s determination shall be final…”
8
  Id.
9
  Duncan v. Delaware Dep’t of Labor, 2002 WL 32260324, at *1 (Del. Super. September 10,
2002).
10
   Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super. May 16, 2013).
11
   Id.
12
   Id.
                                               6
evidence previously submitted to the appeal tribunal.” In Funk v. UIAB, the

Supreme Court held that the UIAB did not abuse its discretion in refusing to

exercise its ability to consider an untimely appeal sua sponte.13 It is the position of

both the UIAB and this Court that without an error by the UIAB, the assertion that

a claimant did not receive the decision in time to file an appeal is not a sufficient

reason for the UIAB to assert jurisdiction over an untimely appeal. 14

       In this case, the Appeal’s Referee held a hearing on the issue of Appellant’s

timeliness of appeal. In the hearing it was determined that notice of determination

was rendered and mailed to Appellant’s address of record and there was no

evidence that the determination was returned as undeliverable by the US Postal

Service. Appellant did not allege administrative error on the part of Department of

Labor and instead argued that the fault lay with her post office. Appellant asserted

no further reason the UIAB should assert jurisdiction over her claim despite her

untimely filing. The UIAB upheld the decision of the Department that the appeal

was untimely filed and thus not reviewable.              As no error was committed by




13
   592 A.2d 222 (Del.1991).
14
   Id at 225 (allowing for a departure from the 10 day rule for circumstances more severe than a
failure to receive the decision); see also, Bowers v. UIAB, 1998 WL 283401 (Del. Super. Jan. 12,
1998); Lively, 2003 WL 21213415.
                                               7
Department of Labor personnel in mailing the decision, the Board committed no

error in denying the application for further review. 15


                                        Conclusion

           This Court finds that the Board did not abuse its discretion when it affirmed

the determination of the Department as Appellant’s appeal was not timely filed

pursuant to 19 Del. C. § 3318(b). This Court also finds that the Board did not

abuse its discretion in declining to act sua sponte pursuant to 19 Del. C. § 3320 to

consider the substance of the appeal as no showing of severe circumstances was

made. Accordingly, the decision of the Board dismissing Appellant’s case is

AFFIRMED.


IT IS SO ORDERED.




                                                              Very truly yours,

                                                             /s/ Richard F. Stokes
                                                          _________________________

                                                               Richard F. Stokes, Judge

cc: Prothonotary




15
     Id.
                                             8
