       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHAI DARIEN,                                   :
                                               :
                      Appellant,               :           K16A-12-001 JJC
                                               :           In and For Kent County
                             v.                :
                                               :
UNEMPLOYMENT INSURANCE                         :
APPEALS BOARD & BARCLAY                        :
BANK DELAWARE,                                 :
                                               :
                      Appellees.               :
                                               :

                                          ORDER

                                   Submitted: May 4, 2017
                                   Decided: June 22, 2017

       On this 22nd day of June 2017, having considered the briefing and arguments
of the parties, it appears that:
       1.     Appellant/Claimant Chai Darien (hereinafter “Ms. Darien”) has
appealed a decision of the Unemployment Insurance Appeals Board (hereinafter
the “Board”), which denied Ms. Darien’s application for review.
       2.     This matter was initiated on September 16, 2016, when a Claims
Deputy disqualified Ms. Darien from receiving unemployment benefits. The
Claims Deputy found that Ms. Darien voluntarily quit her job without good cause
and was therefore disqualified from unemployment. 1 Ms. Darien then appealed to
an Appeals Referee, who, after a hearing, also determined Ms. Darien was


1
 19 Del. C. § 3314(1) (“An individual shall be disqualified for benefits . . . [f]or the week in
which the individual left work voluntarily without good cause attributable to such work and for
each week thereafter until the individual has been employed in each of 4 subsequent weeks.”).
disqualified from receiving unemployment. Notice of the decision was mailed to
Ms. Darien on October 12, 2016. Referee decisions are considered final unless
appealed within ten days. 2 Ms. Darien subsequently filed her appeal to the Board
seven days after the expiration of the appeal deadline, explaining that she had not
received the Referee’s decision letter in the mail.
          3.     The Board conducted a review hearing to determine if they would
hear Ms. Darien’s appeal. Although the time for appeal had passed, the Board has
discretion, sua sponte, to accept untimely appeals in certain extraordinary
circumstances. 3 The Board first determined that the appeal was untimely and,
second, declined to exercise its discretion to consider the appeal sua sponte. The
Board found there to be no explanation for Ms. Darien’s untimely appeal or
justification for why the Board should exercise its discretion to hear the appeal.
Consequently, the Board denied Ms. Darien’s application for further review and
affirmed the decision of the Referee as final and binding. This decision in turn
became final on December 23, 2016. Ms. Darien then filed a timely appeal to this
Court, arguing that the decision to disqualify her from unemployment was wrong
because the evidence indicates that she did not voluntarily quit.
          4.     In reviewing an appeal from an administrative board’s final order, this
Court is confined to a “determination of whether the Board’s decision is free from
legal error and supported by substantial evidence.” 4 If the Board’s decision is free
from legal error and supported by substantial evidence, its “decision will be
affirmed, unless the Board committed an abuse of discretion.” 5 “An abuse of

2
    19 Del. C. § 3318(c).
3
    Id. § 3320; Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 226 (Del. 1991).
4
 Hockensmith v. Unemployment Ins. Appeal Bd., 2016 WL 2620642, at *2 (Del. Super. Ct. Mar.
11, 2016).
5
    Id.

                                                2
discretion occurs when the Board ‘acts arbitrarily or capriciously, or exceeds the
bounds of reason in view of the circumstances and has ignored recognized rules of
law or practice so as to produce injustice.’”6
         5.      While the Court is sympathetic to Ms. Darien’s difficulties, it is clear
from her argument that she incorrectly seeks to have this Court review the
Referee’s decision to disqualify her from unemployment benefits rather than
review the Board’s decision not to consider her appeal. The appeal to this Court is
limited to review of the Board’s consideration of Ms. Darien’s untimely appeal,
and additionally the Board’s exercise of discretion in declining to hear Ms.
Darien’s appeal.7
         6.      It is clear that the Board declined to consider Ms. Darien’s appeal
because it was untimely. This determination was correct.8 Ms. Darien does not
contest the timeliness of the appeal. In fact, she herself informed this Court that
she “was unable to file a timely appeal” and explained that this was “due to [her]
not receiving [her] mail in time.” If accepted as true, a claimant’s failure to receive
the Referee’s decision will not excuse a claimant’s late appeal “unless the mailing
fails to reach a party because of some mistake made by employees of the
Department of Labor.”9 Ms. Darien makes no showing of a mistake on the part of
the Department of Labor. Indeed, the mailing appears to have been properly sent
and the Board noted in its decision that “the Referee’s Decision was mailed to the
Claimant’s address of record and was not returned as undeliverable by the US

6
    Id. (citing PAL of Wilm. v. Graham, 2008 WL 2582986, at *1 (Del. Super. Ct. June 18, 2008)).
7
 Funk, 591 A.2d at 225 (recognizing that “[t]he scope of review for any court considering an
action of the Board is whether the Board abused its discretion.”).
8
    19 Del. C. § 3318(c).
9
 Funk, 591 A.2d at 224; Rodney Sq. Bldg. Restorations, Inc. v. Noel, 2008 WL 2943376, at *4
(Del. Super. Ct. July 22, 2008).


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Postal Service.” This Court must presume that, in the absence of evidence to the
contrary, Ms. Darien received properly addressed mail despite her claims to the
contrary. 10 More importantly, it was not an abuse of the Board’s discretion to so
find.
        7.    Finally, the Court must review whether the Board abused its
discretion in failing to sua sponte hear the appeal despite its untimeliness. The
Board’s sua sponte discretion to hear an untimely appeal is “exercised rarely and
only in cases where there has been administrative error by the Department of Labor
that has deprived the claimant of the ability to file a timely appeal or where the
interests of justice would be served.”11 It is well recognized that when the Board
refuses to exercise its discretion to consider an untimely appeal sua sponte, and the
claimant has presented no extraordinary circumstances or error on the part of the
Department of Labor, the Board does not abuse its discretion in declining to hear
such an appeal.12 The Court finds that Ms. Darien has not shown any extraordinary
circumstances or error on the part of the Department of Labor and therefore
concludes that the Board did not abuse its discretion.

     IT IS SO ORDERED.
                                                         /s/Jeffrey J Clark
                                                               Judge

10
  Cassello v. News Journal Co., 2010 WL 5825342, at *3 (Del. Super. Ct. Dec. 29, 2010) (citing
Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super. Ct. May 16, 2016)).
11
  Han v. Unemployment Ins. Appeal Bd., 93 A.3d 653, 2014 WL 2650234 at *2 (Del. Jun. 11,
2014) (Table).
12
  Id.; Funk, 591 A.2d at 225; Pacheco v. Unemployment Ins. Appeal Bd., 2013 WL 6039424, at
*2 (Del. Super. Ct. Oct. 21, 2013); Cassello, 2010 WL 5825342, at *4.




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