SUPERIOR COURT

OF THE
STATE OF DELAWARE
CRAIG A. KARSNITZ SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DELAWARE 19947
TELEPHONE (302) 856-5264
l\/Ir. Alfred Cannon Daniel C. Mulveny, Esquire
425 North Street Department of Justice
Seaford, Delaware 19973 Carvel State Building

820 N. French Street
Wilmington, Delaware 19801

RE: Cannon v. BesTemps,
C.A. No. SlSA-08-005

On Appeal from the Unemployment Insurance Appeals Board: AFFIRMED
Date Submitted: December 17, 2018
Date Decided: January 7, 2019
Dear Mr. Cannon and Counsel:

Alfred Cannon appeals the decision of the Unemployment Insurance Appeals Board (“the
Board”) to dismiss his appeal from an Appeals Referee’s determination that Mr. Cannon is not
entitled to unemployment insurance benefits The Board’s decision is affirmed for the reasons
stated below.

I. Factual and Procedural Background

Mr. Cannon Was employed by BesTemps (“Employer”) until December 5, 2017. Mr.
Cannon filed for unemployment insurance benefits effective February 4, 2018. A Claims Deputy
concluded Mr. Cannon had voluntarily left his employment because he failed to maintain contact
With Employer as required by the terms of his employment. The Claims Deputy’s decision Was

mailed March 12, 2018. Mr. Cannon appealed this decision and a hearing Was held before an

Appeals Referee on April 12, 2018. The Appeals Referee affirmed the Claims Deputy’s denial of
benefits, finding Mr. Cannon had voluntarily terminated his relationship with Employer. The
Appeals Referee’s decision was mailed April 20, 2018. Mr. Cannon appealed to the Board. A
hearing, originally scheduled for June 27, 2018, was rescheduled at Employer’s request. Mr.
Cannon failed to appear at the rescheduled hearing on August 8, 2018. Accordingly, the Board
dismissed his appeal.

Mr. Cannon now appeals the Board’s dismissal to this Court. Briefing is complete and the
matter is ripe for decision.

II. Standard of Review

When reviewing a decision of the Board, this Court must determine whether the Board’s
findings and conclusions of law are free from legal error and are supported by substantial
evidence in the record.l “Substantial evidence” is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”2 The Court’s review is limited: “It is not the
appellate court’s role to weigh the evidence, determine credibility questions or make its own
factual findings, but merely to decide if the evidence is legally adequate to support the agency’s

factual findings.”3

 

' Unemployment lns. Appeal Bd. v. Martl`n, 431 A.2d 1265 (Del. 1981); Pochvatilla v.
U.S. Postal Serv., 1997 WL 524062 (Del. Super. Ct. June 9, 1997); 19 Del. C. § 3323(a) (“In any
judicial proceeding under this section, the findings of the [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.”).

2 Gorrell v. Dl`vl`sz`on of Vocational Rehab., 1996 WL 453356, at *2 (Del. Super. Ct. July
31, 1996).

3 McManus v. Christiana Serv. Co., 1997 WL 127953, at *1 (Del. Super. Ct. Jan. 31,
1997).

III. Discussion

Employer is a “temporary help firm” as defined by Delaware law. Title 19 of the

Delaware Code provides:

(a) F or the purposes of this section, “temporary help firm” means a firm that hires
its own employees and assigns them to clients to support or supplement the
client's work force in work situations such as employee absences, temporary skill
shortages, seasonal workloads and special assignments and projects. “Temporary
employee” means an employee assigned to work for the clients of a temporary

help firm.

(b) A temporary employee of a temporary help firm will be deemed to have
voluntarily quit employment if the employee does not contact the temporary help
firm for reassignment upon completion of an assignment Failure to contact the
temporary help firm will not be deemed a voluntary quit unless the claimant has
been advised of the obligation to contact the firm upon completion of assignments
and that unemployment benefits may be denied for failure to do so.4

On September 14, 2017, Mr. Cannon signed an agreement with Employer (“the Policy”)
that provided, in pertinent part:

I understand that if l am sent on an assignment, I am expected to report to work
every day that 1 am scheduled and on time. You have the right to refuse any job.
However... lf you accept a position we offer you and then do not report to work,
or do not seek work My after w assignment, it will be reported to the
unemployment office, which could result in a denial of unemployment benefits. If
you do not want a particular assignment, please do not accept it, and wait for
another assignment5

On November 13, 2017, a treating physician placed Mr. Cannon on medical restrictions
that limited his ability to bend, stand, walk, stoop, squat, push, climb, or reach overhead for
prolonged periods of time. Mr. Cannon’s last assignment with Employer was taking leaves at a

mobile home park in Seaford, Delaware. When offered this assignment on December 4, 2017,

 

419 Del. C. § 3327.
5 Record of the Proceedings Below, at p. 72 (hereinafter, “Record, at p. _”).

3

Mr. Cannon expressed reservations about his ability to perform the work required but accepted
the placement, nevertheless

On December 5, 2017, Mr. Cannon reported late to the mobile home park. He then
requested leave to attend his aunt’s funeral. A representative for Employer granted him
permission to leave and instructed him not to return to the job. Mr. Cannon alleges the
representative told him Employer did not currently have any jobs that would comply with his
work restrictions and that she would try to find a better fit for him. Mr. Cannon acknowledges he
did not call in to Employer after December 5, because he was under the impression Employer
would reach out to him if work meeting his restrictions materialized.

l\/Ir. Cannon argues on appeal that he did not appear at the Board hearing because he did
not receive written notice of the hearing due to “post office operations” until August 10, 2018.
Mr. Cannon also contends the Appeals Referee incorrectly found he violated the Policy when, in
fact, he had been told not to call in as required by the Policy.

A. Notice

When Mr. Cannon initiated his claim for unemployment insurance benefits, he resided at
711 Woolford Street, Seaford, Delaware (“the Woolford Address”). The Claims Deputy’s
decision was mailed to the Woolford Address. Mr. Cannon sought review of the determination
and notice of the hearing before the Appeals Referee was likewise sent to this address. At the
hearing before the Appeals Referee, Mr. Cannon confirmed his current address was the Woolford
Address. The Appeals Referee mailed her decision affirming the Claims Deputy’s decision to
Mr. Cannon at the Woolford Address. Mr. Cannon filed and appeal and requested a hearing

before the Board. On June 13, 2018, notice of the Board hearing was sent to Mr. Cannon at the

Woolford Address. Employer sought a continuance of this hearing. The Board granted
Employer’s request and sent a notice of postponement to Mr. Cannon at the Woolford Address
on June 26, 2018. Thereafter, a notice containing the new hearing date (“the Notice”) was sent to
Mr. Cannon at 425 North Street, Seaford, Delaware (“the North Address”). Mr. Cannon alleges
he did not inform the Board of any change of address. He represents to the Court that an
employee of the Department of Labor (“the Department”) informed him that the Department had
made the address change in response to communication it received from the United States Postal
Service. l\/Ir. Cannon’s filings with this Court indicate he now resides at the North Address.

Mr. Cannon’s complaint that he did not receive the Notice is, in essence, an argument that
he did not receive due process. Due process requires that a party “have a full and fair opportunity
to be heard in its own defense.”6 In the context of a hearing before the Board, a claimant has the
right to notice and a hearing7 The notice must “inform the party of the time, place, and date of
the hearing and the subject matter of the proceeding.”8 The Department is entitled to a rebuttable
presumption “that mail has been received by the party to whom it was addressed if is correctly
addressed, stamped, and mailed.”9 Even if the party did not receive the notice, “[o]nly where

there is evidence that the Board was at fault for a misdelivery will a party’s right to due process

 

6 Straley v. Advancea' Stajjl`ng, Inc., 2009 WL 1228572, at *2 (Del. Super. Ct. Apr. 30,
2009),¢1!§”’01’, 2009 WL 3451913 (Del. Oct. 27, 2009).

7 Id.

8 Phl`llips v. Delhaize America, Inc., 2007 WL 2122139, at *2 (Del. Super. Ct. July 20,
2007) (citation omitted).

9 Straley, 2009 WL 1228572, at *3.

There is no evidence that the Board erred in sending the Notice to the North Address. The
prior mailing informing Mr. Cannon of a postponement of the Board hearing had, apparently,
been returned as undeliverable to the Woolford Address and the post office supplied the
Department with Mr. Cannon’s forwarding address; that is, the North Address. As evidenced by
his representations to this Court, Mr. Cannon does, in fact, now reside at the North Address. If
Mr. Cannon contends that, because he had not filed a change of address with the Department, the
Board should have continued to send mail to an address to which it knew mail was undeliverable,
this argument does not hold water. Mr. Cannon asserts, without supporting evidence, that the
postal service holds mail for two weeks before delivering the same after a receiving a change of
address request. Assuming this allegation to be true, the Notice, mailed June 28, 2018, still
would have been delivered by mid-July, well in advance of the Board hearing held on August 8,
2018.

In addition, by Mr. Cannon’s own admission, he received actual notice of the Board
hearing on August 7, the day prior to the hearing, when he spoke to someone at the Department
ln both of his pleadings with this Court, Mr. Cannon acknowledges receiving oral notice of the
date and time of the Board hearing in the afternoon of August 7.

In this case, Mr. Cannon had actual notice of the hearing and failed to appear. There is no
evidence of error on the part of the Department in the mailing of the Notice. In light of those

facts, the Board acted reasonably and within the confines of Delaware law in dismissing Mr.

Cannon’s appeal.

 

’0 Id.

B. Merits of Underlying Decision

On appeal, Mr. Cannon also attempts to reargue the facts of the case. Unfortunately, the
only matter properly before the Court is whether the Board properly dismissed his appeal due to
his failure to appear at the August 8 hearing.

As stated supra, this Court must review the case on the record and may not make factual
findings l\/[oreover, this Court may not weigh questions of witness credibility.ll In this case, the
Appeals Referee’s findings of fact and conclusions of law were supported by substantial
evidence and free from legal error.

IV. Conclusion

F or the reasons stated herein, the Board’s decision to dismiss Mr. Cannon’s appeal from
the Appeals Referee’s determination that he was disqualified from receiving unemployment
insurance benefits is AFFIRMED.

IT IS SO ORDERED.

Very truly yours,
Craig . ars%

oc: l’:'othom)lary

cc: BesTemps

 

ll McCoy v. Occidental Chem. Corp., 1996 WL 111126, at *3 (Del. Super. Ct. Feb. 7,
1996) (“lt is within the discretion of the [tribunal] not the [reviewing] court[,] to weigh the
credibility of witnesses and to resolve conflicting testimony.”).

7

