              IN THE SUPREME COURT OF THE STATE OF DELAWARE

KANESHIA JOHNSON,                            §
                                             §
         Appellant Below,                    §   No. 632, 2015
         Appellant,                          §
                                             §   Court Below: Superior Court
         v.                                  §   of the State of Delaware
                                             §
DELHAIZE AMERICA, LLC and                    §   C.A. No. N15A-11-001
INDUSTRIAL ACCIDENT                          §
BOARD,                                       §
                                             §
         Appellees Below,                    §
         Appellees.                          §

                              Submitted: March 4, 2016
                              Decided:   May 5, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                         ORDER

         This 5th day of May 2016, upon consideration of the briefs of the parties and

the record in this case, it appears to the Court that:

         (1)    The appellant, Kaneshia Johnson, filed this appeal from a November

18, 2015 Superior Court order dismissing her appeal of a November 13, 2014

decision of the Industrial Accident Board (“IAB”) as untimely.1 We find no merit

to Johnson’s appeal. Accordingly, we affirm the Superior Court’s judgment.

         (2)    This case arises from injuries Johnson suffered while she was

employed by Food Lion, which is owned by the appellee, Delhaize America, LLC

1
    Johnson v. Delhaize America, LLC, 2015 WL 776473 (Del. Nov. 18, 2015).
(“Employer”). In an order dated April 14, 2014, the Superior Court affirmed an

August 9, 2013 decision of the IAB enforcing a settlement and commutation

agreement (“Agreement”) between Johnson and her former Employer. Johnson

did not appeal the Superior Court’s judgment.

         (3)    Despite the Superior Court’s April 14, 2014 order, Johnson still

refused to sign the commutation documents. The Employer filed another motion to

enforce the Agreement. After a hearing on November 13, 2014, the UIAB granted

the motion and executed an order approving the Agreement. On November 17,

2015, Johnson filed a notice of appeal from the IAB’s November 13, 2014 order in

the Superior Court. In the notice of appeal, Johnson stated that the time to appeal

had passed because an audio transcript was sent to New York.

         (4)    On November 18, 2015, the Superior Court dismissed Johnson’s

appeal as untimely under Superior Court Civil Rule 72(i) and 19 Del. C. § 2349.2

The Superior Court found that the sending of the audio transcript to New York was

not a valid reason for Johnson’s untimely appeal because the thirty-day time period

to appeal ran from the mailing of the November 13, 2014 order.3 This appeal

followed. On appeal, Johnson mostly makes arguments unrelated to the untimely

filing of her appeal, but appears to argue that her untimely appeal should be



2
    Johnson, 2015 WL 776473, at *2.
3
    Id.
                                         2
excused because different case numbers appear on the IAB documents and

transcripts of the IAB hearings were sent to New York.

       (5)    We review the Superior Court’s legal determination de novo.4 As the

Superior Court recognized, Rule 72 and Section 2349 govern the filing of an

appeal from a decision of the IAB. Under Rule 72, a party may appeal a board

decision by filing a notice of appeal with the Prothonotary within the time

prescribed by statute.5 Section 2349 provides that in the absence of fraud an IAB

award is final unless a party files a notice of appeal to the Superior Court within

thirty days of the day the notice of award was mailed to the parties.6           “The timely

filing of an appeal is mandatory and jurisdictional.”7

       (6)    Johnson filed her notice of appeal almost one year after the IAB’s

November 13, 2014 order. Johnson does not contend that the November 13, 2014

order was not mailed to the parties or that she filed her appeal within thirty days of

the mailing of the November 13, 2014 order. As to Johnson’s explanations for her

untimely appeal, the Superior Court correctly found that the sending of a transcript

to New York did not excuse Johnson’s delay because the time to appeal ran from

the mailing of the IAB’s November 13, 2014 order, not the transcript of the


4
  CCS Investors, LLC v. Brown, 977 A.2d 301, 319-20 (Del. 2009).
5
  Super. Ct. Civ. 72(b).
6
  19 Del. C. § 2349.
7
  Draper King Cole v. Malave, 743 A.2d 672, 673 (Del. 1999) (dismissing appeal of IAB
decision for lack of jurisdiction where appeal was filed more than thirty days after mailing of
IAB decision).
                                              3
November 13, 2014 IAB hearing.8 Johnson also fails to explain how different file

numbers on IAB documents had any effect on her ability to file a timely notice of

appeal from the November 13, 2014 order. Although the Superior Court did not

follow all of the procedures set forth in Rule 72 when it dismissed Johnson’s

appeal,9 none of the reasons Johnson gave in her notice of appeal or the briefs in

this Court for her untimely appeal excuse her failure to file a timely appeal of the

IAB’s November 13, 2014 order. Having carefully reviewed the positions of the

parties and the record on appeal, we conclude that the Superior Court did not err in

dismissing Johnson’s notice of appeal as untimely.

       NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                             BY THE COURT:

                                             /s/ Karen L. Valihura
                                             Justice




8
  Id.
9
  Rule 72(i) provides that if the Superior Court determines sua sponte that an appeal should be
dismissed, then the Prothonotary shall send a notice directing the appellant to show cause why
the appeal should not be dismissed for the reasons stated in the notice. After review of the
response, the Superior Court may enter an order dismissing the appeal or maintaining
jurisdiction. Super. Ct. Civ. 72(i). In this case, the Superior Court dismissed Johnson’s notice of
appeal, which did include an explanation for the lateness of the appeal, without the Prothonotary
issuing a notice to show cause.
                                                4
