SUPERIOR COURT

oFTHE
STATE OF DELAWARE
E. SCOTT BRADLEY l The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
TELEPHONE (302) 856-5256
May l, 2019
Tasha M. Stevens, Esquire Elizabeth A. Imbragulio
Fuqua, Willard, Stevens & Schab, P.A. 35 Crossgate Drive
26 The Circle Seaford, DE 19973

P.O. BoX 250
Georgetown, DE 19947

Re: Civic Health Servz`ces, LLC v. Ell`zabeth A. lmbragulio and
Unemployment Insurance Appeal Board
Civil Action No. SlC)A-O!-OOI ESB
Dear Ms. Imbragulio and Counsel:

This is my decision on the appeal by Civic Health Services, LLC (“CHS”) of
the Unemployment Insurance Appeal Board’s (the “UIAB” or the “Board”) decision
that CHS did not have just cause to terminate Elizabeth A. Imbragulio Without notice
even though she Was soliciting CHS’s customers for another pharmacy Where her son
Worked. CHS operates the Seaford Pharmacy in Seaford, Delaware. lmbragulio
delivered drugs for CHS to its customers. CHS terminated Imbragulio because she
Was encouraging CHS’s customers to use a pharmacy Where her son Worked. The

Board found that CHS had no policy prohibiting such conduct and that it terminated

Imbragulio Without first Warning her against such conduct. Given this, the Board

concluded that Imbragulio Was terminated Without just cause, reasoning that
Imbragulio’s conduct Was not sufficiently serious to justify her termination. After
review of the Board’s decision, l have concluded that the Board erred as a matter of
law.
STANDARD OF REVIEW

The Supreme Court and this Court repeatedly have emphasized the limited
appellate review of the factual findings of an administrative agency. On appeal from
a decision of the UIAB, this Court is limited to a determination of Whether there is
substantial evidence on the record sufficient to support the Board’ s findings, and that

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such findings are free from legal error. Substantial evidence means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.2

The Board’s findings are conclusive and Will be affirmed if supported by “competent

393

evidence having probative value. The appellate court does not Weigh the evidence,

 

‘ Unemployment lns. Appeal Ba’. v. Duncan, 337 A.2d 308, 309 (Del. 1975);
Longobardi v. Unemployment Ins. Appeal Board, 287 A.2d 690, 692 (Del. Super.
1971), aff’d. 293 A.2d 295 (Del. 1972).

2 Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994);
Battl`sta v. Chrjysler Corp., 5l7 A.2d 295, 297 (Del. Super. 1986), app. dism., 515
A.2d 397 (Del. 1986).

3 Geegan v. Unempl0yment Compensation C0mmissi0n, 76 A.2d ll6, ll7
(Del. 195()).

determine questions of credibility, or make its own factual findings.4 lt merely
determines if the evidence is legally adequate to support the agency’s factual
findings5 Absent an error of law, the Board’s decision will not be disturbed where
there is substantial evidence to support its conclusions6
DISCUSSION

19 Del. C. §3314 provides, in pertinent part, that “[a]n individual shall be
disqualified for benefits ...” who is discharged for “just cause.” “Just cause” is
defined as a “wilful or wanton act” in violation of either the employer’s interests, the
employee’s duties or the expected standard of conduct.7 “Wanton” conduct is that
which is heedless, malicious, reckless, but not done with actual intent to cause harm.
“Wilful” conduct, on the other hand implies actual, specific, or evil intent.8 Wilful

or wanton conduct constitutes grounds for immediate dismissal without notice if it

 

4 Volk v. Unemployment Ins. Appeal Board, 2016 WL 241379, at *1 (Del.
Super. Jan. 13, 2016).

5 29 Del. C. §10142(d).
6 Dellachiesa v. General Motors Corp., 140 A.2d 137 (Del. Super. 1958).

7 Avon Proa’ucts, Inc. v. Wilson, 513 A.2d 1315, 1317 (Del. 1986);
Boughton v. Dep ’t. of Labor, 300 A.2d 25, 26 (Del. Super. 1972) (quoting
Abex Corp. v. Toa’a', 235 A.2d 271 (Del. Super. 1967).

8 Farmer v. E.I. Du Pont De Nemours & Company, WL 711138, at *3 (Del.
Super. Nov. 9, 1994) (citing Boughton, 300 A.2d 25, 27 (Del. Super. 1972).

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is sufficiently serious.9

In the current matter, the Board found that Imbragulio’s solicitation and
encouragement of CHS’s customers to switch to another pharmacy where her son
worked was not a sufficiently serious infraction so as to justify her termination
without prior warning In reaching this decision, the Board distinguished the facts
before it from those present in Krieg v. Unemployment Ins. Appeal Bcz'.10 In Krz`eg, an
electrician was fired without prior warning after his employer learned that he was
soliciting customers through an ad placed in the yellow pages for his personal
electrical contracting business. In affirming the Board’s finding that the termination
was made for just cause, the Krieg court held that an employee’s “solicitation of the
business of his employer can be viewed as nothing less than a willful act and
violation of the employer’s interest and expected standard of conduct.”]l

Here, the Board found that lmbragulio’s solicitation was not equivalent to the

“hostile and directly-competitive acts” present in Krz`eg because there was evidence

 

9 See Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265, 1267 (Del.
1981) (reversing a Superior Court ruling and finding that a claimant’s single act of
leaving work early without permission was wilful because it was done voluntarily,
deliberately, and intentionally); Shaw v. Happy Harry lnc., 1993 WL 489499, at
*2 (Del. Super. Oct. 27, 1993).

10 1984 LEXIS 670 (Del. Super. Feb. 8, 1984).

" Id. at *2.

that CHS tolerated “0ther employees working for other phannacies.” 1 take issue with
the idea that CHS allowing employees to work at a competing pharmacy somehow
automatically implies that it is acceptable to directly solicit for the competing
pharmacy to CHS’s customers.

1 conclude that the Board misapplied the applicable law in reaching its
decision. Imbragulio’s conduct was certainly against CHS’s interests. Customers are
the lifeblood of a business. A business cannot exist without them. Imbragulio’s
solicitation of CHS’s customers for a pharmacy where her son worked was both an
act of disloyalty and threatening to the very existence of CHS’s business. As such,
it was certainly serious. Indeed, Imbragulio’s actions were clearly more directly
hostile to her employer than those of the electrician in Krieg. The electrician engaged
in general solicitation of his employer’s potential clientele while lmbragulio
effectively attempted to steal away CHS’s current customers. A business has every
right to expect that its employees will not sabotage its interests. Therefore, I conclude
that, as a matter of law, Imbragulio’s conduct justified her immediate termination

without notice.

CONCLUSION

The Unemployment Insurance Appeal Board’s Decision is reversed.

Very truly yours,
///A),/

E. Scott Bradley
ESB:jwc

cc: Prothonotary’s Office
Delaware Unemployment
Insurance Appeal Board
Daniel C. Mulveny, Esquire

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