          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


TAMMY R. WILLIAMS,        :
                          :                         C.A. No. K15A-08-002 WLW
         Appellant,       :                         Kent County
    v.                    :
                          :
BRANDYWINE COUNSELING and :
UNEMPLOYMENT INSURANCE :
APPEALS BOARD,            :
                          :
         Appellee.        :


                               Submitted: January 11, 2016
                                Decided: March 29, 2016
                                Re-issued: April 27, 2016*

                                           ORDER

                         Upon an Appeal from the Decision of
                     the Unemployment Insurance Appeals Board.
                                    Reversed.


Tammy R. Williams, pro se

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




WITHAM, R.J.

*This Order is being re-issued due to an error in footnote numbering.
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


      Before the Court is Appellant/Claimant Tammy Williams’ (“Williams”) appeal
from a decision of the Unemployment Insurance Appeals Board (“UIAB” or “Board”)
which denied Williams’ appeal of a Referee’s decision as untimely.               Upon
consideration of the pleadings before this Court and the record below, the UIAB
ruling is REVERSED.
                  FACTS AND PROCEDURAL BACKGROUND
      Williams was employed by Brandywine Counseling (“Brandywine”) as a
counselor from May 13, 2013 through April 27, 2015.1 Her last day of work was
December 22, 2014. On that date, Williams informed Brandywine that she required
leave under the Family Medical Leave Act (“FMLA”) to care for her seventy-nine-
year-old mother. Her mother lived alone in New York and had experienced a health
crisis which required hospitalization. Williams contacted Brandywine every three
weeks to update her status during her absence. In April, Brandywine contacted
Williams to inquire into her availability to return to work because her leave under the
FMLA had expired. Williams advised Brandywine that her mother was still ill and
that she would not be able to return to work at that time. Brandywine determined that
it was necessary to fill the position and terminated Williams’ employment.
      In April 2015, Williams filed a claim for unemployment insurance benefits.2
The Claims Deputy found that the employer had not shown willful or wonton
misconduct by Williams and determined that Williams was not disqualified from

      1
          R-38.
      2
          R-2.

                                          2
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


receiving unemployment insurance benefits pursuant to 19 Del. C. § 3314(2).3,4
Brandywine timely appealed the decision of the Claims Deputy. After a hearing on
the appeal, a Referee determined that this was a voluntary quit case and should thus
be determined under 19 Del. C. § 3314(1).5 The Referee reasoned that Williams was
offered the opportunity to return to work after her FMLA leave had expired, and that
her decision not to return to work amounted to a voluntary relinquishment of her
position.6 Because Williams had left her position for reasons not connected with her
employment, and had not exhausted all reasonable alternatives prior to resigning her
position, the Referee determined that Williams was disqualified from receiving
unemployment insurance benefits. Based on this determination, the Referee reversed
the decision of the Claims Deputy. The Referee’s decision was mailed to Williams
on June 17, 2015.

        3
            R-19.
        4
            19 Del. C. § 3314(2) applies when an employee has been discharged and states in pertinent
part:
       For the week in which the individual was discharged from the individual’s work for
       just cause in connection with the individual’s work and for each week thereafter until
       the individual has been employed in each of 4 subsequent weeks (whether or not
       consecutive) and has earned wages in covered employment equal to not less than 4
       times the weekly benefit amount.
       5
         19 Del. C. § 3314(1) applies when an employee has left work voluntarily and states in
pertinent part:
       For 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 (whether or not consecutive) and has earned
       wages in covered employment equal to not less than 4 times the weekly benefit
       amount.
       6
         R-38-39.

                                                   3
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


       On July 2, 2015, Williams filed an appeal of the Referee’s decision with the
Board.7 The Board determined that the last day to appeal the Referee’s decision was
July 27, 2015, and the appeal was therefore not timely.8 The Board noted that “this
time limit is jurisdictional, although the Board may, in cases of severe circumstances,
exercise its discretion under § 3320 to accept the appeal sua sponte.”9 The Board
found no evidence of Department error that would have prevented Williams from
filing a timely appeal. Based on this finding, the Board denied Williams’ application
for further review. The Board’s decision was mailed to Williams on August 13, 2015.
       On August 20, 2015, Williams filed a timely appeal of the Board’s decision
with the Superior Court. Her opening brief reiterated her argument relating to her
entitlement to unemployment insurance benefits, but failed to address the issue of
timeliness.
                               STANDARD OF REVIEW
       This Court reviews decisions by the Board to determine whether they are
supported by substantial evidence and free from legal error.10 “Substantial evidence
is ‘such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’”11 The Court possesses limited review power of the factual findings

       7
         R-43.
       8
         19 Del. C. § 3318(c) requires that an appeal to the Board be filed within ten days.
       9
         R-44.
       10
          Mathis v. Del. River and Bay Auth., 2012 WL 5288757, at *2 (Del. Super. Aug. 22, 2012).
       11
          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)).

                                               4
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


of an administrative agency. Specifically, “the findings of the Unemployment
Insurance Appeal Board as to facts, if supported by the evidence and in absence of
fraud, shall be conclusive, and the jurisdiction of the Court shall be confined to the
questions of law.12 The Court does not weigh the evidence, determine questions of
credibility, or make its own factual findings.13 Rather, the Court is restricted to a
consideration of the record.14 It merely determines if the evidence is legally adequate
to support the agency’s factual findings.15 In considering an action of the Board, this
Court’s scope of review is limited to whether the board abused its discretion.16 If the
record below contains substantial evidence in support of the Board’s findings, then
that decision will not be disturbed.
                                       DISCUSSION
      The General Assembly has determined that the public good requires “the
compulsory setting aside of an unemployment reserve to be used for the benefit of
persons unemployed through no fault of their own.”17 “[T]he Unemployment


      12
         19 Del. C. § 3323(a).
      13
         Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965).
      14
         Hubbard v. Unemployment Ins. Appeal Bd., 352 A.2d 761 (Del. Super. 1976).
      15
         29 Del. C. § 10142(d) states:
          The Court, when factual determinations are at issue, shall take due account of the
          experience and specialized competence of the agency and of the purposes of the
          basic law under which the agency has acted. The Court’s review, in the absence
          of actual fraud, shall be limited to a determination of whether the agency’s
          decision was supported by substantial evidence on the record before the agency.”
      16
         Funk v. Unemployment Ins. Appeal Board, 591 A.2d 222, 225 (Del. 1991).
      17
         19 Del. C. § 3301.

                                                5
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


Compensation Act is usually given a liberal construction favoring a claimant, at least
when its basic policy is in issue.”18 Thus, the Court employs a liberal construction
in favor of the claimant when determining the meaning of a statute. In the case sub
judice, there are three issues. The first issue concerns the merits of the underlying
case. The second issue concerns time computation when determining the date by
which a claimant must file an appeal from a Referee’s decision with the Board. The
third issue concerns the discretion given the Board to hear a case on the merits under
19 Del. C. § 3320.
      Turning to the merits of the underlying case, the Referee’s decision
disqualifying Williams from the receipt of unemployment insurance benefits was in
error. The Referee determined that this was not a discharge case under section
3314(2), but rather a voluntary quit case under 3314(1). However, whether Williams
voluntarily left her employment or was discharged is of no moment. Sections 3314(1)
and 3314(2) contain similar language allowing for the receipt of unemployment
insurance benefits when the claimant has left employment, whether voluntarily or by
discharge, to care for a spouse, child under the age of 18, or parent with a verified
illness or disability. Section 3314(1), which pertains to an individual who has
voluntarily left employment, states in pertinent part that “[a]n individual, who quits
work to care for that individual’s spouse, child under the age of 18, or parent with a
verified illness or disability, will not be considered to have left work voluntarily



      18
           Delaware Auth. For Reg’l Transit (Dart) v. Buehlman, 409 A.2d 1045, 1046 (Del. 1979).

                                                6
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


without good cause attributable to such work.”19 Section 3314(2) states in pertinent
part that “[a]n individual, who is discharged from work because the individual is
providing care for that individual’s spouse, child under the age of 18, or parent with
a verified illness or disability, will not be considered to have been discharged from
work for good cause attributable to such work.” 20 Thus, as long as Williams is caring
for her mother, and her mother has a verified illness or disability, she is entitled to
unemployment insurance benefits.
         Regarding the second issue of time computation, the Board has interpreted the
ten day time limit in which a claimant must file an appeal with the Board to be ten
calendar days. Although not a matter of first impression, the ten-day time limit has
not been subjected to a statutory interpretation process. With no need to indulge in
an in-depth analysis, most courts have accepted the Board’s interpretation. However,
in Martin v. Unemployment Insurance Appeal Board, the court determined it would
be logical to presume the time limit in 3318(c) was ten calendar days because the term
“calendar days” was used in the preceding section.21 I respectfully disagree. As
Justice Antonin Scalia said in Finley v. United States, “[w]hat is of paramount
importance is that Congress be able to legislate against a background of clear
interpretive rules, so that it may know the effect of the language it adopts.”22 This

         19
            19 Del. C. § 3314(1).
         20
            19 Del. C. § 3314(2).
         21
            Martin v. Unemployment Ins. Appeal Bd., 2004 WL 772073, at *3 (Del. Super. Feb. 25,
2004).
         22
              Finley v. United States, 490 U.S. 545, 556 (1989).

                                                    7
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


statement is equally relevant at the state level.
       As a preliminary matter, the Court notes that this is not an attempt to substitute
Superior Court Civil Rule 6(a) in place of the statutory time limit.23 This is strictly
a matter of statutory construction. A close reading of 19 Del. C. § 3318 reveals that
the time limits within which appeals must be filed are phrased differently in
subsections (b) and (c). When a party wishes to appeal the determination of a Claims
Deputy, section 3318(b) states that the appeal must be filed within ten calendar days
after the Claims Deputy has mailed the determination.24 When a party pursues further
appeals, section 3318(c) states that the appeal must be initiated pursuant to section
3320 within ten days of notification or of the mailing of the tribunal’s decision.25 The
word “calendar” is conspicuously absent from the time limitation in 3318(c).
Because the term “calendar” was used in the previous subsection, it must be assumed


       23
          Super. Ct. Civ. R. 6(a) states in pertinent part “[w]hen 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.”
       24
          19 Del. C. § 3318(b) states in pertinent part (emphasis added):
           Unless a claimant or a last employer who has submitted a timely and completed
           separation notice in accordance with § 3317 of this title files an appeal within 10
           calendar days after such Claims Deputy’s determination was mailed to the last
           known addresses of the claimant and the last employer, the Claims Deputy’s
           determination shall be final and benefits shall be paid or denied in accordance
           therewith.
       25
          19 Del. C. § 3318(c) states in pertinent part (emphasis added):
           The parties shall be duly notified of the tribunal's decision, together with its
           reason therefor [sic], 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 § 3320 of this title.

                                                8
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


that excepting the word “calendar” in this subsection was intentional. If the
legislature had intended the limitation to be ten calendar days, the language used in
section 3318(b) would have been duplicated in section 3318(c). To interpret “10
days” in section 3318(c) to mean ten calendar days would render the term “calendar”
in section 3318(b) mere surplusage.26 A liberal interpretation of the ten day time limit
would exclude weekends and holidays. Thus, the ten day time limitation contained
in section 3318(c) must be read to exclude weekends and holidays. Under this
interpretation, Williams was required to file her appeal with the Board by July 1,
2015. Unfortunately, Williams did not file her appeal until July 2, 2015. However,
this defect does not prevent the Board from exercising the discretion granted them in
section 3320.
       Section 3320 grants the Board wide discretion over the appeals process.27
However, the Board uses this power judiciously. In an opinion letter issued on June
27, 1989, the Board stated:
       [I]n a situation where a party has filed a late appeal from an
       administrative decision, the Board is extremely cautious in assuming
       jurisdiction over the matter. It does so only in those cases 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


       26
            “[W]ords in a statute should not be construed as surplusage if there is a reasonable
construction which will give them meaning, and courts must ascribe a purpose to the use of statutory
language, if reasonably possible.” Chase Alexa, LLC v. Kent Cnty. Levy Ct., 991 A.2d 1148, 1152
(Del. 2010) (quoting Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del.
1994)).
        27
           Funk, 591 A.2d at 225.

                                                 9
Tammy R. Williams v. UIAB
C.A. No. K15A-08-002 WLW
Decided: March 29, 2016


      appeal, or in those cases where the interests of justice would not be
      served by inaction.28

Although there was no administrative error on the part of the Department of Labor,
the interests of justice compel the Board to exercise its discretion in this case. The
Claims Deputy reached the right conclusion but failed to state the correct reasoning
for the decision. The Referee’s decision was contrary to law and would have been
overturned if the Board had exercised its discretion to hear the untimely appeal.
Based on the facts of this case, the Board’s failure to accept the appeal was an abuse
of discretion. This would be the case whether the appeal was one day late or five
days late.
                                  CONCLUSION
      For the foregoing reasons, the decision of the Unemployment Insurance Appeal
Board is REVERSED and the case is remanded to the Board for further proceedings
on William’s claim for unemployment benefits consistent with this decision.
      IT IS SO ORDERED.



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

WLW/dmh




      28
           Id.

                                         10
