Lopez v. Unemployment Insurance Appeal Board ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LENETTE LOPEZ, )
)
Appellant, )
)
v. ) C.A. No. N23A-03-005 FWW
)
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, )
)
Appellee. )
Submitted: October 17, 2023
Decided: December 20, 2023
Upon Appeal from the Unemployment Insurance Appeal Board,
AFFIRMED.
ORDER
Lenette Lopez, Bear, Delaware, pro se, Appellant.
Victoria W. Counihan, Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, 820 North French Street, Wilmington, Delaware 19801, Attorney for
Appellee Delaware Division of Unemployment Insurance.
Matthew B. Frawley, Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, 820 North French Street, Wilmington, Delaware 19801, Attorney for
Appellee Delaware Unemployment Insurance Appeal Board.
WHARTON, J.
This 20th day of December 2023, upon consideration of Appellant Lenette
Lopez’s (“Lopez”) Opening Brief,1 Appellee Division of Unemployment
Insurance’s Answering Brief (“Division”),2 and the record,3 it appears to the Court
that:
1. Lopez appeals a decision of the Unemployment Insurance Appeal
Board (“Board”) dated February 28, 2023.4 The Board affirmed a decision of an
Appeals Referee (“Referee”) finding that Lopez was overpaid unemployment
benefits.5 The Referee found that Lopez previously was found disqualified from
receiving unemployment benefits, resulting in an overpayment to her in the amount
of $931.00 for weeks ending March 21 to May 2, 2020.6 After, it reviewed the
record, the Board found no error in the Referee’s decision. 7 Applying this Court’s
decision in Starcks v. Unemployment Insurance Appeal Board,8 the Board found
1
Appellant’s Op. Br., D.I. 10.
2
Division’s Ans. Br., D.I. 13. (Pursuant to 19 Del. C. § 3322(b), the Division is a
statutory party in interest.)
3
Lopez did not file a Reply Brief. The Unemployment Insurance Appeal Board
advised the Court that, as the tribunal below, it does not have an interest in seeking
to have its decision upheld on appeal. See, letter dated July 18, 2023 from Deputy
Attorney General Matthew B. Frawley, Esquire, attorney for the Unemployment
Insurance Appeal Board, D.I. 12.
4
D.I. 1.
5
Board’s Decision, Appeal Docket No. 61243742 (UIAB Feb. 28, 2023), R. at 5.
6
Id. at 4.
7
Id. at 5.
8
2013 WL 4848101, at *4 (Del. Super. Ct. July 30, 2013).
2
the record showed that Lopez was sent an overpayment notice, the amount
calculated was accurate, and that the notice was sent to Lopez properly.9
2. In her appeal, Lopez argues that: (1) she was eligible to receive all of
the benefits she received due to COVID-19; (2) she was not employed during the
weeks she received the benefits; (3) she received benefits only during the COVID-
19 shutdown; (4) she did not receive the notice of overpayment dated September
30, 2021 as claimed by the Division; (5) she responded to the Division’s notice
dated August 8, 2022; and (6) she delivered a copy of her Bank of America
employment offer letter showing a start date of May 4, 2020 to the appeals
officer.10 As Lopez phrases the issue “The entire subject matter in controversy is
whether Appellant was eligible to receive unemployment compensation
benefits.”11
3. In response, the Division offers a counter-statement of facts.12
According to the Division, Lopez filed a claim for pandemic unemployment
assistance on May 3, 2020.13 She was awarded and collected weekly benefits of
$133.00 for that claim.14 On September 30, 2021, a Division Claims Deputy
issued a determination that Lopez was ineligible for benefits effective the week
9
Board’s Decision, R. at 2.
10
Appellant’s Op. Br. at 2, D.I. 10.
11
Id. at 3.
12
Division’s Ans. Br. at 3, D.I. 13.
13
Id. at 3-4.
14
Id. at 3.
3
ending March 21, 2020 because “employer-reported wages to the Division
indicated [Lopez] was employed at Bank of America while she was collecting
unemployment benefits.”15 That determination became final on October 10, 2021
because Lopez did not appeal the ineligibility determination.16 After the
disqualification determination became final, the Division began a separate
administrative proceeding to establish the amount of overpayment and to require
that such overpayment be recouped.17 On August 8, 2021, a Claims Deputy
determined that Lopez received $931.00 in unemployment benefit overpayments.18
Lopez then appealed the overpayment determination.19 After a hearing on
November 3, 2022, an Appeals Referee issued a decision upholding the Claims
Deputy’s overpayment determination.20 In turn, that decision was affirmed by the
Board in the decision Lopez now appeals.21
5. The Division offers two arguments in support of the Board’s decision.
First, it argues that the Board’s decision is supported by substantial evidence and it
did not abuse its discretion in affirming the overpayment determination.22 Second,
15
Id.
16
Id.
17
Id. at 4.
18
Id.
19
Id. at 10-14.
20
Id.
21
Id.
22
Division’s Ans. Br. at 8-13, D.I. 13.
4
it contends that the underlying ineligibility determination is final and no longer
appealable making Lopez’s eligibility arguments irrelevant.23
6. The Board’s decision must be affirmed so long as it is supported by
substantial evidence and is free from legal error.24 Substantial evidence is
evidence that a reasonable mind might accept as adequate to support a
conclusion.25 While a preponderance of evidence is not necessary, substantial
evidence means “more than a mere scintilla.”26 Moreover, because the Court does
not weigh evidence, determine questions of credibility, or make its own factual
findings, it must uphold the decision of the Board unless the Court finds that the
Board “act[ed] arbitrarily or capriciously” or its decision “exceed[ed] the bounds
of reason.”27 Questions of law are reviewed de novo.28
7. The Court turns first to the issue of the finality of the ineligibility
determination, because, as Lopez admits, her eligibility for unemployment
insurance benefits is “the entire subject matter in controversy.”29 If the
determination that Lopez was ineligible for benefits became final on October 10,
23
Id. at 13-15.
24
Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 309 (Del. 1975).
25
Oceanport Indus. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. Super.
1994) (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)).
26
Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
27
PAL of Wilmington v. Graham, 2008 WL 2582986, at *4 (Del. Super. June 18,
2008).
28
Ward v. Dep’t of Elections, 2009 WL 2244413, at *1 (Del. Super. July 27,
2009).
29
Appellant’s Op. Br. at 3, D.I. 10.
5
2021 and was not appealed, as the Division contends, Lopez is left without an
appealable issue and the Board’s decision must be affirmed.
8. In her request for relief in her Opening Brief, Lopez states that she did
not receive the ineligibility determination notification dated September 30, 2021.30
He brief contains no argument on that point, however.
9. At the hearing before the Referee, Lopez confirmed her mailing
address.31 On behalf of the Division, Thomas Justice testified that an ineligibility
determination for receipt of benefits effective the week of ending March 21, 2020
was issued on September 30, 2021 and became final on October 10, 2021 after
Lopez did not appeal.32 The ineligibility determination and an affidavit of mailing
stating that the determination of ineligibility was mailed to the address Lopez
confirmed were admitted into evidence without objection.33 In her testimony,
Lopez maintained that she, in fact, was eligible to receive unemployment insurance
benefits, but never claimed that she did not receive the ineligibility
determination.34
10. The Court finds that Lopez’s belated attempt on appeal to claim that
she did not receive notice of the ineligibility determination is unavailing.
30
Appellant’s Op. Br. at 2, D.I. 10.
31
R. at 16.
32
Id. at 17.
33
Id. at 8, 86-87.
34
Id, at 26-29.
6
Delaware law provides that if mail is correctly addressed, stamped, and mailed, it
is presumed to have been received by the party to whom it was addressed. 35 Lopez
has presented no evidence suggesting any error by the Division in mailing or
addressing the ineligibility determination to overcome the presumption of
mailing.36 The “[m]ere denial of receipt is insufficient to rebut the presumption.”37
Accordingly, the ineligibility determination is presumed to have been received, and
because Lopez did not appeal that determination, it became final and not subject to
appeal here. Additionally, Lopez waived any ability to assert error by the Division
in mailing the determination to her when she failed to raise the issue before the
Referee.
11. Because Lopez may not raise the issue she asserts constitutes the
“entire subject matter in controversy” on appeal, the Court must affirm the Board if
it finds its decision was supported by substantial evidence and free from legal
error. After carefully reviewing the record, the Court finds that the Board’s
decision upholding the Referee’s decision meets that standard.
35
See, PAL of Wilmington 2008 WL 2582986, at *4.
36
Id.37
See, Straley v. Advance Staffing, Inc., 2009 WL 3451913, at *3 (Del. 2009).
7
THEREFORE, the decision of the Unemployment Insurance Appeal Board
is AFFIRMED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
8