IN THE SUPERIOR C()URT OF THE STATE OF DELAWARE

JEFFREY CABRERA, )
)

Appellant, )

)

v. ) C.A. No. N18A-04-0()6 VLM

)

DELAWARE RUG COMPANY )
and )
THE UNEMPLOYMENT )
INSURANCE APPEAL BOARD )
)

Appellees. )

MB.

Date Submitted: September 4, 2017
Date Decided: November 15, 2018

Upon Consideration of Appellant ’s Appeal Ofthe Decz`sion of the Unemployment
Insurance Appeal Board, AFFIRMED.

Jeffrey Cabrera, Bear, DE. Pro Se Appellant.

Daniel C. Mulvaney, Esquire, Wilmington, DE. Attorney for Appellee
Unemployment Insurance Appeal Board.

MEDINILLA, J.

INTRODUCTION

This is an appeal from the Unemployment Insurance Appeal Board (“Board”).
Appellant Jeffrey Cabrera (“Employee”) untimely appeals from the Board’s
February 20, 2018 decision that denied to further review the application because it
was not timely filed, and therefore affirmed the Appeals Referee’s decision.l Upon
consideration of the facts, arguments and evidence set by the parties; statutory and
decisional law; and the entire record in this case, 2 the Court hereby finds as follows:

1. Employee was employed at Delaware Rug Company (“Employer”)
from July 30, 2017 until November 8, 3017.3 Employee was terminated from his
employment for reasons including tardiness, insubordination towards his boss, and

smoking in company trucks in violation of Employer’s policy.4

 

l Decision of the Unemployment Insurance Appeal Board on Appeal from the Decision of Appeals
Referee, J'effrey Cabrera, Appeal Docket No. 21077526 (Feb. 20, 2018) (hereinafter “Board
Decision”). The Board’s decision was mailed on February 20, 2018 and became final on March
2, 2018. Mr. Cabrera filed this appeal on April 10, 2018.

2 Appellant Jeffrey Cabrera filed an opening brief on June 25, 2018. On June 29, 2018, the
Unemployment Insurance Appeal Board filed a letter with this Court stating that it would not be
filing an answering brief because the Appellant only challenges the Board’s Decision on the merits.
Appellee Delaware Rug Company did not file an answering brief. On August 30, 2018, this Court
ordered it would make a determination of the issue based on the pleadings filed pursuant to Rule

107(r).

3R. at 5.

4Id.

2. Employee filed a claim for unemployment benefits with the Division of
Unemployment Insurance on November 5, 2017.5 On November 21, 2017, a Claims
Deputy found that Employee was discharged from his employment without just
cause in connection with his work, and was not disqualified from the receipt of
unemployment insurance benefits under 19 Del. C. § 33 114(2).6

3. On November 30, 2017, Employer timely filed an appeal of the Claims
Deputy’s Decision to an Appeals Referee.7 A hearing de novo was held on
December 27, 2017, where the Appeals Referee heard testimony from Employee,
Employer’s Representative Shailah Alvaraz, and Employer’s witness Nicholas
Michael.8 At the hearing, Employer submitted into evidence eleven documents titled
“Employee Grievance Reports,” which were signed by Mr. Michael.9 The Appeals
Referee reversed the Claims Deputy’s decision, and held that Employee was

discharged for just cause and was disqualified from receiving benefits pursuant to

 

5 R. at l.

6 Icl'. at 42.
7 Id. at 45.
8 ld. at 56.

9 R. at 126-36.

19 Del. C. § 3314(2).10 The Appeals Referee’s decision was mailed on December
29, 2017 and the last day to file an appeal was January 8, 2018.1l
4. On January 23, 2018, Employee untimely filed an appeal to the Board.12
Employee noted that he “was late to make the appeal on the referee’s decision
because on October 22ncl [his] personal [sic] owned vehicle was vandalized with a
totel [sic] of 6 gun shots which made it very difficult for [him] to have transportation
to come in to appeal.”13
l 5. On February 20, 2018, the Board denied Employee’s application to
further review the matter, and affirmed the Appeals Referee’s decision.14 The Board
held that the Appeals Referee’s decision was final and binding.15 ln its decision, the
Board details that Employee’s appeal was untimely under 19 Del. C. § 3318(0)

which states that a referee’s decision is final within 10 days unless an appeal to the

Board is filed under 19 Del. C. § 3320.16 The Board explained that it may accept an

 

10 R. at 49-51.

11 Id. at 49.

12 Id. at 137.

13 ld. at 137.

14 See Board Decision at 1-2.
15 See id. at 2.

16 See id.

appeal sua sponte in cases of severe circumstances.17 The Board declined to exercise
its discretion to hear Employee’s appeal, finding there was “no evidence of
Departmental error that prevented the Claimant from filing a timely appeal of the
Referee’s Decision, nor is there evidence of severe circumstances to justify the
exercise.”18 The Board did not accept Employee’s transportation issues as a
sufficient reason to justify further review.19 The Board also found that Employee
was given notice and opportunity to be heard which Satisfied the due process
requirements20

6. The Board’s decision was mailed on February 20, 2018 and it became
final on March 2, 2018.21 Employee filed this appeal on April 10, 2018.22 Having
considered all submissions, the matter is now ripe for review.

STANDARD OF REVIEW
7. On appeal from the Board, the court will uphold the Board’s

determination absent an abuse of discretion.23 The “court must determine whether

 

17 See Board Decision at 2.
18 Id_

19 See id.

20 See ia’.

21 See id.

22 R. at 152.

23 See Funk v. Unemployment Ins. Appeal Ba'., 591 A.2d 222. 225 (Del. 1991).
5

the findings and conclusions of the Board are free from legal error” and whether they

are “supported by substantial evidence in the record.”24 Substantial evidence is

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

conclusion.”25
Discussion

8. An aggrieved party has 10 days after the Board’s decision has become

final to file an appeal to this Court.26 The failure of a party to file an appeal within

the prescribed 10-day period “creates a jurisdictional defect that can only be excused

by unusual circumstances attributable to court personnel, not the appellant.”27 The

 

24 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366, at *2 (Del. Super. July 7, 2011)
(citing Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1266 (Del. 1981); Pochvatilla v.
United States Postal Serv., 1997 WL 524062, at *2 (Del. Super. June 9, 1997); 19 Del. C. §
3323(a)).

25 Byrd v. Westajjf USA, Inc., 2011 WL 3275156, at *1 (Del. Super. July 29, 2011) (quoting
Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)).

26 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 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 nay other
party to the proceeding before the Unemployment Insurance Appeal Board shall be
made a defendant

27 Spangler v. Unemployment Ins. Appeal Ba'., 2016 WL 1613232, at *2 (Del. Super. Mar. 23,
2016) (quoting Ortiz v. Aa’ecco USA, Inc., 2015 WL 5120986, at *1 (Del. Super. Aug. 11, 2015)).

“time for filing an appeal is an express statutory condition of jurisdiction;” therefore
it is mandatory and dispositive.28

9. Employee’s appeal is untimely. The Board’s decision became final on
March 2, 201829 and he filed this appeal on April 10, 2018.30 Thus, not only did
Employee file an untimely request for the Board’s consideration, he also filed this
appeal outside of the 10-day statutory period. Employee has not asserted any court
error to explain its untimely appeal to this Court.31 Employee’s arguments on appeal
may touch upon some of the merits of his claims, but he fails to explain why his
appeal was not filed within the statutory period.32 Even if this appeal had been
timely filed, the Court determines that the substantive and procedural findings and
conclusions of the Board were free from legal error and supported by substantial
evidence in the record.

NOW, WHEREFORE, this 15th day of November, 2018, the February 20,
2018 decision of the Unemployment Insurance Appeal Board is hereby

AFFIRMED.

 

28 See id. (citing Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super. May 16, 2003)).
29 See Board’s Decision at 2.

30 R. at 152.

31 Id_

32 R. at 152. See Appellant’s Opening Br. at l.

OCI
CCZ

IT IS SO ORDERED.

 

J".vivian L'. M@dinilté
Judge

Prothonotary
Jeff`rey Cabrera
All Counsel of Record (Via File&Serve)

