Barry v. Brandywine at Seaside Pointe ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SANDRA BARRY, )
)
Appellant, )
)
v. )
)
BRANDYWINE AT SEASIDE POINTE )
) C.A. No. S23A-06-004 MHC
)
)
AND )
)
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, )
)
Appellees. )
ORDER
Submitted: September 12, 2023
Decided: October 11, 2023
On the Decision of the Unemployment Insurance Appeals Board, AFFIRMED.
Sandra Berry, Pro Se Appellant.
Matthew B. Frawley, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French St., 6th Floor, Wilmington, Delaware, 19801, Attorney for
Appellee Unemployment Insurance Appeal Board.
Conner, J.
This 11th day of October 2023, upon consideration of the appeal of Sandra
Barry (“Barry”) from the June 2nd, 2023, decision of the Unemployment Insurance
Appeal Board (the “Board”), it appears to the Court that:
Factual and Procedural History
1) From April 13th, 2022, until December 13th, 2022, Brandywine at
Seaside Pointe employed Sandra Barry as an Escapades Producer.
2) On January 1st, 2023, Barry filed a claim for Unemployment Insurance.
3) On January 17th, 2023, the Department of Labor (“Department”)
notified Barry that a Claims Deputy had determined she was ineligible for benefits
for failing to provide requested information. This notice informed Barry she had
until January 27th to file a written appeal of the decision.
4) On February 16th, 2023, Barry emailed the Department appealing the
January 17th decision by the Claims Deputy. In that email, Barry notified the
Department that she would be “out of the country from February 21 st to February
27th.”
5) On February 17th, 2023, a Claims Deputy denied Barry’s February 16th
appeal for being untimely pursuant to 19 Del. C. § 3318(b). That same day a certified
copy of the Claims Deputy’s decision denying the appeal was mailed First Class to
Barry.
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6) On February 21st, 2023, the Department received an appeal from Barry
of the Claims Deputy’s February 17th decision.
7) On February 23rd, 2023, the Department notified Barry, via mail, that
on March 8th a telephonic referee hearing would be held and would require her to
call to participate. Barry was out of the country until February 27th and had her mail
on hold.
8) On March 8th, 2023, the Department held the scheduled telephonic
referee hearings. Barry failed to call into the hearing and the Referee dismissed her
appeal. Barry called the Department a few hours after the time scheduled for her
hearing. She was told she would need to appeal again. That same day the
Department mailed Barry a copy of the Referee’s decision to dismiss for her failure
to appear. That mailing was sent first class and was certified. Importantly, it stated
that the last day Barry could appeal the Referee’s decision was March 18th, 2023.
Appellant does not contest that she received this notice.
9) On March 28th, 2023, Appellant appealed the Referee’s March 8th
decision.
10) On June 2nd, 2023, the Board denied Appellants March 28th appeal for
being untimely pursuant to 19 Del. C. § 3318(c). That same day the Board mailed
first class a certified copy of its June 2nd Decision to appellant. That mailing included
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the Decision and language stating it would become final unless an appeal was filed
before June 12th, 2023.
11) On June 22nd, 2023, Barry filed an appeal to this Court of the Board’s
June 2nd decision denying her March 28th appeal for being untimely.1
Standard of Review
12) The Court’s appellate review is limited to determining whether the
Board’s findings and conclusions are supported by substantial evidence and free
from legal error.2 Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”3 Discretionary decisions
of the Board will be upheld unless 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.”4 The Court may not weigh evidence, decide questions of
credibility or engage in fact-finding upon review of the Board’s decision.5
1
In Appellant’s June 22nd appeal to Superior Court, she incorrectly dates the Board’s June 2nd
decision as June 12th. Pursuant to 19 Del.C.3323(a) Barry has 10 days from the date the Board’s
decision becomes final to appeal it to Superior Court. The Board’s decision was rendered and
mailed on June 2nd, became final on June 12th, and Appellant’s appeal was filed on June 22nd.
2
Toribio v. Peninsula United Methodist Homes, Inc., 2009 WL 153871, at *2 (Del. Super.).
3
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
4
Nardi v. Lewis, 2000 WL 303147, at *2 (Del. Super.).
5
Toribio, 2009 WL 153871, at *2.
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Analysis
13) Pursuant to 19 Del. C. § 3318(b), if an appeal of a Claims Deputy’s
decision is not filed within 10 days from the date it is mailed the decision becomes
binding. The Department mailed Barry the Claims Deputy’s decision on January
17th, meaning she had until January 27th to file a timely appeal. Barry emailed the
Department her appeal of the Claims Deputy’s decision on February 16th, therefore
that appeal was untimely.
14) Barry’s February 21st appeal of the Claims Deputy’s February 16th
decision was filed within 10 days and is therefore timely.
15) Pursuant to 19 Del. C. § 3318(c), if an appeal of a Referee’s decision is
not filed within 10 days from the date it is mailed the decision becomes binding. On
March 8th, the Department, via certified first-class mail, mailed Barry informing her
that her appeal was dismissed and that she had until March 18th to file a timely appeal
to the Board. Barry did not appeal until March 28th; therefore, that appeal was
untimely.
16) After reviewing all of the available evidence and the record below, the
Board exercised its discretion, pursuant to 19 Del. C. § 3320(a), to not hear Barry’s
appeal.6 By her own admission Barry was aware on March 8th that she had missed
6
19 Del. C. § 3320(a) gives the Board the discretion to “affirm, modify, or reverse any decision
of an appeal tribunal on the basis of the evidence previously submitted to the appeal tribunal. .
..”.
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the Referee Hearing and needed to appeal again. Additionally, the certified first-
class mail sent to Berry on March 8th informed her that she had until March 18th to
file an appeal, despite this she waited until March 28th to file the appeal.
17) The Board’s discretionary decision to decline further review of the
appeal did not exceed the bounds of reason or produce an injustice. The Board has
previously explained why it avoids exercising power over late appeals stating:
in 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 appeal, or in those cases where the
interests of justice would not be served by inaction. Such cases
have been few and far between . . .”7
The Board did not deny Barry’s current appeal because she was out of the country
or because she missed her March 8th telephonic hearing. Rather, they denied it
because after missing her March 8th hearing she failed to file a timely appeal as
required by 19 Del. C. § 3318(c). No facts have been presented that would suggest
an administrative error by the Department caused her March 28 th appeal to be 10
days late. Likewise, no facts have been presented that would suggest that the
7
Funk v. Unemployment Insurance Appeal Board, 591 A.2d 222, 225 (Del. 1991).
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interests of justice would not be served absent the Board’s allowing an untimely
appeal to be filed pursuant to 19 Del. C. § 3320.
Conclusion
The Court finds that the Board did not abuse its discretion when it affirmed
the Referee’s March 8th decision and denied further review of the appeal. There was
no evidence in the record that Appellant lacked notice of the Referee’s decision
including the appropriate timeframe to appeal. The Court also concludes that the
Board’s discretionary decision to deny further review was supported by substantial
evidence and free from legal error. Accordingly, the Board’s decision is
AFFIRMED.
IT IS SO ORDERED.
/s/ Mark H. Conner
Mark H. Conner, Judge
cc: Prothonotary
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