           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KARLA SPANGLER,                        :
                                       :     C.A. No. K15A-10-002 WLW
                  Appellant,           :     Kent County
                                       :
      v.                               :
                                       :
UNEMPLOYMENT INSURANCE                 :
APPEAL BOARD,                          :
                                       :
                  Appellee.            :


                             Submitted: January 4, 2016
                              Decided: March 23, 2016

                                     ORDER

                         Upon Appellee’s Motion to Dismiss.
                                     Granted.


Karla Spangler, pro se

Paige J. Schmittinger, Esquire of Department of Justice, Wilmington, Delaware;
attorney for Unemployment Insurance Appeal Board.




WITHAM, R.J.
Karla Spangler v. UIAB
C.A. No. K15A-10-002 WLW
March 23, 2016


      Before the Court is Appellee the Unemployment Insurance Appeals Board’s
(“UIAB” or “Board”) motion to dismiss the appeal of Appellant/Claimant Karla
Spangler (“Spangler”).         The Board claims the appeal is untimely and seeks
dismissal pursuant to Superior Court Civil Rule 72(i).1 Spangler has appealed a
decision of the UIAB which affirmed a denial of benefits based on a determination
that she was fired for good cause. The Court has reviewed the record in this matter
and the parties’ submissions. For the following reasons, the Board’s motion to
dismiss is GRANTED.
                   FACTS AND PROCEDURAL BACKGROUND
      Spangler was employed by ABM janitorial services until April 16, 2015,
when she was discharged for allegedly sleeping on the job. Spangler filed a claim
for unemployment insurance benefits. The Claims Deputy determined that ABM
Janitorial had met their burden of showing there was willful or wonton misconduct
on the part of Spangler and denied benefits. Spangler filed a timely appeal of the
decision and a hearing was held before an Appeals Referee. The Referee also
determined that Spangler had been discharged with just cause and was therefore
disqualified from the receipt of benefits. Spangler next filed a timely appeal of the


      1
          Super. Ct. Civ. R. 72(i) states in pertinent part :
           The Court may order an appeal dismissed, sua sponte, or upon a motion to
           dismiss by any party. Dismissal may be ordered for untimely filing of an
           appeal, for appealing an unappealable interlocutory order, for failure of a party
           diligently to prosecute the appeal, for failure to comply with any rule, statute,
           or order of the Court or for any other reason deemed by the Court to be
           appropriate. . . .

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Karla Spangler v. UIAB
C.A. No. K15A-10-002 WLW
March 23, 2016


Referee’s decision.
       On August 12, 2015, a hearing was held before the Board, and the Board
affirmed the Referee’s determination the Spangler was terminated for just cause.
The Board’s decision was mailed to Spangler on September 15, 2015, and became
final on September 25, 2015. The statutory deadline for filing an appeal of the
UIAB decision was Friday, October 9, 2015.2 Spangler’s appeal was filed with
this Court on Monday, October 12, 2015. On January 4, 2016, the Board filed this
motion to dismiss the appeal as untimely. On January 15, 2016, Spangler filed a
response to this motion claiming that she was “told to watch and wait for the mail,”
and that when she didn’t receive anything, she went to the Superior Court where
she was told she “could file but that it was past the due date to file.”
                              STANDARD OF REVIEW




       2
        19 Del. C. § 3323(a) states:
          Within 10 days after the decision of the Unemployment Insurance Appeal
          Board has become final, any party aggrieved thereby may secure judicial
          review thereof by commencing an action in the Superior Court in the county in
          which the claimant resides or the employer’s place of business is located
          against the Unemployment Insurance Appeal Board for the review of such
          decision, in which action any other party to the proceeding before the
          Unemployment Insurance Appeal Board shall be made a defendant.
“When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays,
Sundays, and other legal holidays shall be excluded in the computation.” Super. Ct. Civ. R.
6(a).

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Karla Spangler v. UIAB
C.A. No. K15A-10-002 WLW
March 23, 2016


         This Court reviews decisions by the Board to determine whether they are
supported by substantial evidence and free from legal error.3 “Substantial evidence
is ‘such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’”4 This Court “does not weigh the evidence, determine questions of
credibility or make its own factual findings.”5 It merely decides “if the evidence is
legally adequate to support the agency’s factual findings.”6 Absent an error of law,
the Board’s decision will not be disturbed where there is substantial evidence to
support its conclusions.7
                                        DISCUSSION
         An aggrieved party may secure judicial review of a decision of the UIAB by
commencing an action in the Superior Court within ten days of the Board’s decision
becoming final. 8         “Failing to file an appeal within those ten days creates a
jurisdictional defect that can only be excused by unusual circumstances attributable
to court personnel, not the appellant.”9 Because the time for filing an appeal is an

         3
             Mathis v. Del. River and Bay Auth., 2012 WL 5288757, at *2 (Del. Super. Aug. 22,
2012).
         4
          Bradfield v. Unemployment Ins. Appeal Bd., 2012 WL 5462844, at *1 (Del. Super. Mar.
13, 2012) (quoting Gorrell v. Div. of Vocational Rehab., 1996 WL 453356, at *2 (Del. Super.
July 31, 1996)).
       5
          Annand v. Div. of Unemployment Ins. Appeal Bd., 2011 WL 2698620, at *1 (Del.
Super. July 1, 2011) (quoting Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)).
       6
          Bradfield, 2012 WL 5462844, at *1 (quoting McManus v. Christiana Serv. Co., 1997
WL 127953, at *1 (Del. Super. Jan. 31, 1997)).
       7
          Annand, 2011 WL 2698620, at *1.
       8
          19 Del. C. § 3323(a).
       9
          Ortiz v. Adecco USA, Inc., 2015 WL 5120986, at *1 (Del. Super. Aug. 11, 2015) (citing

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Karla Spangler v. UIAB
C.A. No. K15A-10-002 WLW
March 23, 2016


express statutory condition of jurisdiction, it is both mandatory and dispositive.10
      In addressing the Board’s motion to dismiss, the only issues before the Court
are those dealing with the timeliness of the appeal. Unless the Court finds that the
appeal was filed in a timely manner, or that the untimely filing was due to court
error, it lacks jurisdiction to consider the merits of the appeal.
      Spangler states she was told to “watch and wait for the mail.” The Court
interprets this to mean that she was told to wait for the decision of the Board to be
delivered via mail. The deadline for filing an appeal of the Board’s decision was
on Friday, October 9, 2015. On Monday, October 12, 2015, Spangler contacted
the Superior Court to determine the status of her case. Unfortunately, giving grace
for the interceding weekend, this inquiry was one day late. Although Spangler
claims she was told by court personnel that she could still file even though the filing
would be late, there is no allegation or showing that court personnel were in any
way responsible for the late filing. Thus, there is no showing of court error.
Without some assertion of court error, accompanied by substantive evidence
supporting that assertion, the Court must find that the appeal was untimely. It
simply is not within the Court’s power to grant an extension.
                                    CONCLUSION
      Based on the foregoing, the UIAB’s motion to dismiss is GRANTED. IT
IS SO ORDERED.

Draper King Cole v. Malave, 743 A.2d 672, 673 (Del. 1999)).
        10
           Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super. May 16, 2003)
(citing Duncan v. Delaware Dep’t of Labor, 2002 WL 31160324, at *1 (Del. Super. 2002)).

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Karla Spangler v. UIAB
C.A. No. K15A-10-002 WLW
March 23, 2016



                           /s/ William L. Witham, Jr.
                           Resident Judge

WLW/dmh




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