                                SUPERIOR COURT
                                    OF THE
                               STATE OF DELAWARE

JOHN A. PARKINS, JR.                                   NEW CASTLE COUNTY COURTHOUSE
      JUDGE                                        500 NORTH KING STREET, SUITE 10400
                                                   WILMINGTON, DELAWARE 19801-3733
                                                          TELEPHONE: (302) 255-2584




                               April 11, 2017


Patricia Boon                        Margaret M. DiBianca, Esquire
207 Oak Drive                        Lauren E. M. Russell, Esquire
Middletown, Delaware 19709           Young Conaway Stargatt & Taylor, LLP
                                     1000 North King Street
Paige J. Schmittinger, DAG           Wilmington, Delaware 19801
Department of Justice
Carvel State Office Building
820 North French Street
Wilmington, Delaware 19801


              Re: Patricia L. Boon
                  v. Jolly Smiles, P.A., and
                  Unemployment Insurance Appeals Board
                  C.A. No. N16A-06-002 JAP


Dear Ms. Boon and Counsel:

      This is an appeal from a split decision of the Unemployment Insurance

Appeals Board in which the majority of the Board held that Ms. Boon was

not eligible for benefits because she voluntarily left her employment without

good cause. In her appeal Ms. Boon makes the factual argument that the

majority of the UIAB was wrong when it found that she voluntarily left her

employment without good cause.
        It is settled law that the scope of this court’s review of UIAB decisions

is a narrow one. Section 3323 of title 19 of the Delaware Code provides that

in appeals from the UIAB to this court “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.”1 This court owes considerable deference to

the factual findings of the UIAB and may not disturb them if they are

supported by substantial evidence.2 The term “substantial evidence” means

“such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.”3 In determining whether there is substantial evidence

to support the UIAB’s finding “[t]he appellate court does not weigh the

evidence, determine questions of credibility, or make its own factual

findings. It is within the exclusive purview of the [UIAB] to judge witness

credibility and resolve conflicts in testimony.”4 The court realizes that the

Board was divided 3 to 2. But section 3323 draws no distinction between a

unanimous board and one which is divided.                 Therefore the decision of a

divided board is entitled to the same deference as is that of one which was

unanimous.

        The factual issue presented in Ms. Boon’s case is whether there was

substantial evidence to support the Board’s finding that she quit her job

without good cause. Delaware law provides that an employee is not eligible

1   19 Del. C. § 3323(a).
2   Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 308 (Del. 1975).
3   Butler v. Safe Check East, Inc, 2011 WL 2739504 (Del. July 14, 2011).
4   Thompson v. Christiana Care Health System, 25 A.3d 778, 781 (Del. 2011).


                                             2
for unemployment benefits if the employee “left work voluntarily without

good cause attributable to such work.”5 “Good cause” in this context is

“established where: (i) an employee voluntarily leaves employment for

reasons attributable to issues within the employer's control and under

circumstances in which no reasonably prudent employee would have

remained employed; and (ii) the employee first exhausts all reasonable

alternatives to resolve the issues before voluntarily terminating his or her

employment.”6

        The court has reviewed the evidence presented to the UIAB and finds

that there is substantial evidence in the record to support its finding. The

main bone of contention here seems to be whether Ms. Boon voluntarily quit

or whether she was terminated. The UIAB after reviewing the “credibility of

the witnesses, the weight to be given to their testimony and the inferences to

be drawn therefrom” concluded that Ms. Boon voluntarily quit. This

conclusion was drawn primarily from the testimony of Joe Jolly, the

employer’s representative at the hearings and an eyewitness to the critical

events in this matter. Notwithstanding Ms. Boon’s urgings to the contrary,

this court is not free to substitute its assessment of Mr. Jolly’s testimony for

that of the Board. Accordingly, there is substantial evidence in the record to

support the Board’s finding.

        Section 3323 permits this court to disregard the Board’s factual

findings if the appellant can show fraud. In her submittal to this court Ms.

5   19 Del. C. § 3314(1).
6   Thompson, 25 A.3d at 783.


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Boon contends that the employer defrauded patients or third-party payers by

billing for work which was never done.      This is not the sort of fraud

envisioned in section 3323. That section contemplates situations in which

the administrative decision was procured by fraud.   No such allegation is

made here.

      The judgment of the UIAB is AFFIRMED.



                                         Very truly yours,


                                         John A. Parkins, Jr.




oc:   Prothonotary




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