IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIMOTHY D. PUMPHREY,

Appellant,

V. : C.A. No. $18A-12-001 RFS

ALLEN HARIM FOODS and
UNEMPLOYMENT INSURANCE
APPEAL BOARD,

Appellee.

MEMORANDUM OPINION

On Appeal from a Decision of the Unemployment Insurance Appeal Board.
Affirmed.

Submitted: 7/3/19
Decided: 8/26/19

Timothy D. Pumphrey, 19156 Bunting Ave, Lincoln, Delaware 19960, Pro Se Appellant.
Daniel C. Mulveny, Esq., and Victoria W. Counihan, Esq., Department of Justice, Carvel

State Building, 820 North French Street, Wilmington, Delaware 19801, Attorneys for Appellee,
Unemployment Insurance Appeal Board.

Allen Harim, 18752 Harbeson Rd., P.O. Box 277, Harbeson, Delaware 19951.

STOKES, R.J.
I, Introduction

Timothy Pumphrey (“Appellant”) has appealed the decision of the Unemployment Insurance
Appeals Board (“UIAB” or “Board”) to deny Appellant’s untimely appeal of the decision of the
Appeals Referee. Neither the Board nor the employer has participated in this appeal. For the

reasons stated herein, the decision is AFFIRMED.

I. Factual and Procedural History

Appellant was terminated from his employment with Allen Harim Foods (“Employer”).
Employer terminated Appellant for alleged poor performance of responsibilities such as failure to
respond to emails, complaints, and lack of proficiency in Kronos.! Employer terminated Appellant
on June 22, 2018, while Appellant was on medical leave.

On July 22, 2018, Appellant applied for unemployment compensation benefits. A Claims
Deputy determined that Appellant was discharged from his employment, without just cause, and
was entitled to recovery of unemployment compensation benefits. On September 5, 2018, an
Appeals Referee affirmed the decision of the Claims Deputy.

However, a second hearing was held on the matter of overpayment of unemployment
compensation benefits to Appellant. The Claims Deputy at this hearing determined that Appellant
received benefits, to which he was not entitled, and that there was an overpayment as determined
by the Department of Labor. Appellant appealed the decision of the Claims Deputy and had a
hearing in front of an Appeals Referee on October 18, 2018. The Appeals Referee affirmed the
decision of the Claims Deputy. In the Appeals Referee’s written decision she reasoned that

Appellant was not eligible to receive unemployment compensation benefits for the dates of June

 

' Kronos is a time management system used for processing payroll. Knowledge of the Kronos system was an
essential requirement for Appellant’s job.
23, 2018, June 30, 2018, July 7, 2018, and July 14, 2018. The Appeals Referee reasoned that
Appellant was not eligible for these payments because he did not file his claim until July 22, 2018
and that 19 Del. C. § 3315 holds that an individual cannot be found eligible to receive benefits for
weeks prior to the time the individual opens a claim for unemployment benefits.”

The decision of the Appeals Referee was mailed to Appellant on October 24, 2018. The
decision stated that the last day to file an appeal with the Board before it became final and binding
was November 3, 2018. On November 8, 2018, Appellant filed an appeal of the Appeal Referee’s
decision with the UIAB. On November 13, 2018, Appellant had a hearing before the UIAB and
on November 28, 2018, the UIAB mailed Appellant its written decision affirming the
determination of the Appeals Referee. The UIAB determined that Appellant’s appeal was
untimely under 19 Del. C. § 3318(c)’ and declined to exercise its discretion under 19 Del C. §
33204 to accept the appeal sua sponte.

The UIAB held that pursuant to 19 Del C. § 3318(c), the Referee’s Decision “shall be deemed

final unless within 10 days after the date of notification or mailing of such decision further appeal

 

2 19 Del. C. § 3315 states in relevant part:
An unemployed individual shall be eligible to receive benefits with respect to any week only if the Department finds
that the individual:
(2) Has made a claim for benefits with respect to such week in accordance with such regulations as the
department prescribes

19 Del. Admin. Code 1202-6.0 states in relevant part:
Claims and Registrations
6.1 Except as otherwise provided in this regulation, any individual claiming benefits shall:
6.1.1 File a claim for benefits, either in-person at a Delaware Division of Unemployment
Insurance Local Office or via the Internet (such claim shall be effective as of the Sunday
immediately preceding the date of filing) and
6.1.2 Register for work with the Delaware Division of Employment & Training.
319 Del. C. § 3318(c) states in relevant part:
“The parties shall be duly notified of the tribunal’s decision, together with its reason therefor, which shall
be deemed to be final unless within 10 days after the date of notification or mailing of such decision further
appeal is initiated pursuant to § 32320 of this title.”
“19 Del. C. § 3320 states in relevant part:
“The Unemployment Insurance Appeal Board [UIAB] may on its own motion affirm, modify, or reverse
any decision of an appeal tribunal on the basis of the evidence previously submitted to the appeal tribunal
or it may permit any of the parties to such decision to initiate further appeal before it.”

2
[the Board] is initiated pursuant to § 3220 of this title.” Further, the UIAB reasoned that the
statutory time limit is jurisdictional and noted that it may, in cases of severe circumstances,
exercise its discretion under § 3220 to accept an appeal sua sponte. However, the UIAB declined
to exercise its discretion under § 3220 because the UIAB found no evidence of Departmental error
that prevented Appellant from filing a timely appeal of the Referee’s Decision. Nor has Appellant
provided any evidence of any severe circumstances sufficient to justify the exercise of the UIAB’s
discretion. Accordingly, the UJAB found that Appellant had been given notice and opportunity to

be heard sufficient to satisfy the requirements of due process.

iI. Standard of Review

When reviewing the decisions 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.> Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support aconclusion.° The Court’s review is limited: “[i]t is not the appellate court’s
role to weigh 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.”

In reviewing the Board’s decision, in this situation, the Court’s analysis is twofold.’ First, it
is necessary to determine whether or not the finding that the appeal was untimely is supported by
the facts in the record.? Second, “the Court must determine whether the Board abused its discretion

by not exercising, sua sponte, its power to review the record for an injustice despite the untimely

 

> Unemployment Ins. Appeal Ba. v. Martin, 431 A. 2d 1265 (Del. 1981).

® Gorrell v. Division of Vocational Rehab., 1996 WL 453356 at *2 (Del. Super. Ct. 1996).
7 McManus y. Christiana Serv. Co., 1997 WL 127953, at *1 (Del Super. Ct. 1997).

8 Anderson v. Comfort Suites, 2004 WL 304359, at *2 (Del. Super. Ct. 2004).

” I.
appeal.”!° This Court will not disturb a discretionary ruling of an administrative agency unless it
is “based on clearly unreasonable or capricious grounds.””!! Furthermore, “an abuse of discretion
occurs where the Board exceeds the bounds of reason in view of the circumstances and has ignored

recognized rules of law or practice so as to produce injustice.” !?

IV. Discussion

A. The Facts Support the UIAB’s Finding that Appellant’s Appeal Was Untimely.

Upon a careful review of the record, the Board’s decision to deny Appellant’s late appeal is
supported by substantial evidence. Delaware law clearly provides that a claimant has ten days
after an adverse decision from an Appeals Referee is mailed to appeal that decision to the UIAB.!?
If a claimant fails to file an appeal within this statutory time period, the Appeals Referee’s
determination shall be deemed final.'4

The record shows that the Appeals Referee’s decision was dated and mailed to Appellant on
October 24, 2018. In an Affidavit, the Appeals Referee certified that a true and correct copy of
her decision was mailed to Appellant via first class mail on October 24, 2018. The decision stated
that the last day to file an appeal was on November 3, 2018. However, November 3, 2018, was a
Saturday and Appellant actually had until the next business day, Monday, November 5, 2018, to
file a timely appeal.

Appellant filed his appeal of the Appeals Referee’s decision with the UIAB on November 8,

2018, three days after the deadline for timely filing. Furthermore, in his opening brief, Appellant

did not attempt to explain why his appeal to the UIAB was filed untimely. Rather, Appellant

 

10 Td. citing Robledo v. Stratus, 2001 WL 428684, at *1 (Del. Super Ct. 2001).
| K-Mart, Inc. v. Bowles, 1995 WL 269872, at *2 (Del. Super. Ct. 1995).

12 Id.

3.19 Del. C. § 3318(c).

14 la.
discussed the merits of his appeal to the UIAB, which are not relevant to this appeal. There is no
evidence to suggest that Appellant filed his appeal prior to the November 5, 2018 deadline. Also,
Appellant does not argue that he did not receive his mail in a timely matter. The only evidence
before the UIAB was that Appellant filed his appeal on November 8, 2018, which was after the
deadline to file a timely appeal. Based on the evidence presented in the record, the UJAB’s
decision that Appellant’s appeal was not timely filed is supported by substantial evidence and free

from legal error.

B. The Board Did Not Abuse Its Discretion in Denying Appellant’s Untimely Appeal.

19 Del. C. § 3320 grants the Board authority to “act sua sponte beyond the ten day appeal
period to consider a case where no valid appeal has been filed by the parties.”!> However, the
Board exercises this authority only “where there has been some administrative error on the part of
the Department of Labor which deprived the claimant of the opportunity to file a timely appeal, or
in those cases where the interest of justice would not be served by inaction.”!® It is well established
that absent an abuse of discretion by the Board, “the Court must uphold a decision of an
administrative tribunal.’””!”

The UJAB found that there was no departmental error or other grounds that would require it to
assume jurisdiction of the case sua sponte. The record clearly shows that the Appeals Referee’s
decision was properly mailed to Appellant’s address on October 24, 2018 and that no appeal was
received until November 8, 2018. In fact, Appellant has failed to show any evidence of error on

the part of the Department of Labor that might have caused his appeal to be filed untimely.

Appellant also failed to present any evidence of “severe circumstances” to the Board. The only

 

5 Funk y. UIAB, 591 A. 2d 222, 225 (Del. 1991)(en banc).
‘6 Anderson, 2004 WL at *3(quoting Funk, 591 A. 2d at 225).
17 Id.
claim that Appellant makes is that an employee at the unemployment office did not allow
Appellant to file his original unemployment compensation claim on his first attempt to file a claim
on June 24, 2018. The employee allegedly told Appellant that he was not allowed to file his
original unemployment claim on June 24, 2018 because he was on medical leave at that time and
did not have a medical release to come back to work yet. He argues that the employee at the
unemployment office was wrong and should have let him file his claim on June 24, 2018.
Furthermore, Appellant argues that the determination of the Claims Deputy in his first hearing
should stand, and that he should not have to pay back the overpayment of unemployment
compensation benefits from the dates of June 23, 2018, June 30, 2018, July 7, 2018, and July 14,
2018.

However, Appellant’s argument fails to show an error on the part of the Department of Labor
that would have caused his current appeal to the UIAB to be filed untimely. Also, this Court has
found that the loss of benefits alone is insufficient to demonstrate a severe circumstance.!® In
Lacsamana y. Dept. of Labor, the appellant was charged with fraudulently obtaining
unemployment benefits.!? The Lacsamana Court held that even though the appellant was subject
to the consequences of fraud and the lost ability to apply for unemployment benefits for one year,
the circumstances were not severe enough for the UIAB to be required to take the case sua sponte.”°
Furthermore, this Court has held that where the circumstances are less severe than in Lacsamana,

that the UIAB did not abuse its discretion by applying the time limitation of 19 Del. C. § 3318(c)

by refusing to consider an appeal sua sponte.”!

 

'8 Lacsamana v. Dept. of Labor, 1998 WL 109883 at *3(Del. Super. Ct. 1998), aff’d, 713 A. 2d 932 (Del.
1998)(Table).

19 Td.

20 Id.

2'Morra v. Unemployment Ins. Appeal Bd., 2004 WL 1965825 at *3(Del. Super. Ct. 2004)(holding that a claimant
who was overpaid unemployment compensation benefits for non-fraudulent reasons was not entitled to a UJAB
hearing sua sponte after an untimely appeal of an Appeals Referee’s decision).

6
Presently, Appellant has not presented the Court with any arguments that indicate “severe
circumstances” sufficient to justify the exercise of the Board’s discretion. Appellant’s only
argument concerns the overpayment of unemployment compensation benefits and his
responsibility to pay that overpayment back. Furthermore, Appellant makes no argument that the
Department of Labor has caused his current appeal to be filed untimely. The UIAB’s decision is

based on settled Delaware law.

V. Conclusion

The Court’s determination that Appellant’s appeal was filed untimely is supported by
substantial evidence and the Court did not abuse its discretion by applying the time limitation of
19 Del. C. § 3318(c) and refusing to consider the late appeal sua sponte. Considering the
foregoing, the Board’s decision is AFFIRMED.

IT IS SO ORDERED.
