IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
LISA MARCOZZI, )
)
)
)
Appellant,
)
v. ) C.A. No. N13A-11-004 CLS
)
COSTCO WHOLESALE CORP. )
)
and )
)
UNEMPLOYMENT INSURANCE )
APPEALS BOARD, )
)
Appellees.
)
Date Submitted: May 19, 2014
Date Decided: August 20, 2014
On Appeal from the Decision of the Unemployment Insurance Appeal Board.
AFFIRMED.
ORDER
Lisa Marcozzi. Middletown, Delaware. Pro Se Appellant.
John M. Seaman, Equire. Abrams & Bayliss LLP, 20 Montchanin Road, Suite 200,
Wilmington, Delaware 19807. Eric J. Janson, Esquire. Seyfarth Shaw LLP, 975 F
Street, NW, Washington, D.C. 20004. Attorneys for Appellee Costco Wholesale
Corp.
Catherine Damavandi, Esquire. Delaware Department of Justice, 820 North
French Street, Wilmington, Delaware, 19801. Attorney for Unemployment
Insurance Appeal Board.
Scott, J.
Introduction
Before the Court is Appellant Lisa Marcozzi’s (“Appellant”) appeal of the
decision of the Unemployment Insurance Appeals Board (“the Board”). The Court
has reviewed the parties’ submissions. For the following reasons, the decision of
the Board is AFFIRMED.
Background
Appellant was employed by Costco Wholesale, Inc. (“Employer”) from
April 21, 2012 through August 30, 2013. 1 After she was discharged, Appellant
sought unemployment benefits. On September 13, 2013, a Claims Deputy
determined that she was ineligible for benefits because she was discharged for just
cause. 2 The Claims Deputy’s decision contained a notice which stated that, unless
an appeal was filed, the decision would become final on September 23, 2013.3 The
Claims Deputy certified that the decision was mailed on September 13, 2013 via
first class mail. 4 On September 24, 2013, one day after the September 23, 2014
deadline, Appellant filed an appeal. 5 On October 10, 2013, the Department of
Labor (the “Department”) determined that the September 13, 2013 decision was
1
Record at 2.
2
Id.
3
Id.
4
Id. at 3.
5
Id. at 4.
2
final and binding due to Appellant’s failure to file a timely appeal. 6 However, a
hearing was scheduled before an Appeals Referee for the timeliness issue. 7
At the hearing, Appellant confirmed that her address was the same address
that was used by the Claims Deputy. 8 Appellant explained that she had just
recently changed her address and was having trouble with her mail. 9 She stated
that she did not receive the decision until September 24, 2013 when she went to the
Department to check on the status of her claim. 10 When she learned that she was
one day late, she immediately filed her appeal.11 An agency representative
testified that the Claims Deputy’s decision was mailed on September 13, 2013 and
that it was not returned after it was sent.12
On October 18, 2013, the Referee affirmed the decision of the Claims
Deputy after finding that the decision was properly mailed to Appellant at her
correct address and that there was no evidence of administrative error by the
Department. 13 The Referee was not persuaded by Appellant’s mere assertion that
she had not received the decision based on the presumption that mail properly sent
6
Id. at 5.
7
Id. at 5-6.
8
Id. at 10.
9
Id. at 13.
10
Id.
11
Id.
12
Id. at 11.
13
Id. at 20.
3
is presumed to have been received. 14 The Referee certified that the Referee’s
decision was mailed on October 18, 2013 via first class mail. 15
On October 28, 2013, Appellant timely appealed the Referee’s decision to
the Board.16 On October 30, 2013, the Board refused to exercise its discretion
under 19 Del. C. §3320(a) to review an untimely filed appeal and affirmed the
Referee’s decision after finding that the late filing was not the result of a
departmental error.17 Appellant timely appealed the Board’s decision to the
Superior Court.18
On February 28, 2014, the Court sent a letter to the parties containing the
briefing schedule for the appeal. 19 The Opening Brief was due on March 20,
2014. 20 The letter stated that, under Delaware Superior Court Rule 107(b),
"extensions of time for filing briefs will not be authorized, whether or not consent
of other parties is obtained, unless the court enters an order upon a showing of
good cause for such enlargement." 21 Appellant did not file her Opening Brief until
March 31, 2014. On April 3, 2013, counsel for the Employer filed a letter
14
Id. at 20.
15
Id. at 21.
16
Id.at 23.
17
Id. at 25.
18
Id.at 32.
19
Trans. ID. 55071509.
20
Id. (quoting Del. Super. Ct. Civ. R. 107(c)). The text quoted in the letter was from the previous
version of Del. Super. Ct. Civ. R. 107(b). That text is now found in Del. Super. Ct. Civ. R.
107(c).
21
Id.
4
requesting that the Court dismiss the appeal based on the untimely filing of the
Opening Brief or allow the employer an extension to file the Answering Brief. 22
Nevertheless, the Employer timely filed its answering brief on April 9, 2014.
Appellant timely filed her Reply Brief.
Standard of Review
This Court’s review of a Board decision is limited to whether the Board’s
findings were supported by substantial evidence and whether the decision is free
from legal error.23 The Court will not weigh evidence, determine questions of
credibility, or make its own factual findings and conclusions. 24 If there is
substantial supporting evidence and no legal error, the Board’s decision will be
affirmed. 25 A discretionary decision by the Board will not be set aside unless it is
found to be an abuse of discretion. 26 “An abuse of discretion occurs when 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.’” 27
22
Trans. ID. 55245519.
23
Thompson v. Christina Care Health Sys., 25 A.3d 778, 781-82 (Del. 2011).
24
Id. at 782.
25
Longobardi v. UIAB, 287 A.2d 690, 692 (Del. Super. Ct. 1972) aff’d. 293 A.2d 295 (Del.
1972).
26
Hefley v. Unemployment Ins. Appeal Bd., 2010 WL 376898, at *1, 988 A.2d 937 (Del. 2010)
(TABLE).
27
McIntyre v. Unemployment Ins. Appeal Bd., 2008 WL 1886342, at *1 (Del. Super. Apr. 29,
2008) aff'd, 962 A.2d 917 (Del. 2008)(quoting Nardi v. Lewis, 2000 WL 303147, at *2
(Del.Super.Ct. Jan. 26, 2000)).
5
Discussion
In her Opening Brief, Appellant explains that her appeal was untimely
because, “[d]uring the determination process, [she] moved [her] residence and was
experiencing trouble with the Middletown Post Office with [her] address
change.” 28 As a result, Appellant “did not receive the unemployment denial via
U.S. Mail.”29 She asserts that, when she visited the Department on September 24,
2013, an employee informed her that she could file a late appeal. 30 Employer
argues that the Court should not consider Appellant’s Opening Brief because it was
filed eleven days after the deadline set forth in the Court’s briefing schedule.
Employer also argues that the Board’s finding that Appellant’s appeal was
untimely was supported by substantial evidence. Employer contends that, if
Appellant was aware that she was experiencing trouble with her mail, she was
required to notify the Department of Labor.31
The Court agrees with Employer’s argument that Appellant’s Opening Brief
was untimely and that Appellant, even as a pro se litigant, was bound by Del.
Super. Ct. 107(c), which precludes parties from extending the deadlines for briefs
28
Opening Br. at 2.
29
Id.
30
Id.
31
Answering Br. at 6 (citing Straley v. Advanced Staffing Inc., 2009 WL 1228572, at *3 (Del.
Super. Apr. 30,2009)).
6
without a court order.32 Appellant asserts that her brief was not filed because she
was unable to reach case manager via telephone in order to request a continuance
prior to the deadline. The Court notes that Rule 107(f) provides that, “[u]pon the
showing of good cause in writing, the Court may permit late filing of any of the
aforesaid papers and pursuant to a written rule or order.”33 Appellant has not
claimed that she submitted any writing requesting a time extension. Therefore, the
Court has discretion to refuse to consider Appellant’s Opening Brief.34
Nevertheless, the Court will consider the Opening Brief in this appeal because
Appellant has asserted the same grounds for her untimely filing in her Opening
Brief as she asserted before the Referee. Consequently, the Court finds that the
outcome will be the same with or without the Court’s consideration of the brief.
Based on the Court’s review of the record, Appellant’s appeal must fail
because the Board’s decision was supported by substantial evidence, free from
legal error, and was not the result of an abuse of discretion. 19 Del. C. § 3318(b)
states:
32
Del. Super. Civ. Ct. R. 107(c); Gregory v. Dover Police Dep't, 2012 WL 6915204, at *2 (Del.
Super. Dec. 31, 2012)(“pro se litigants are required to make a good faith effort to comply with
the rules of procedure in this Court”).
33
Del. Super. Ct. Civ. Rule 107(f).
34
Del. Super. Ct. Civ. R. 107(f) also states that “the Court may, in its discretion, dismiss the
proceeding if the plaintiff is in default, consider the motion as abandoned, or summarily deny or
grant the motion, such as the situation may present itself, or take such other action as it deems
necessary to expedite the disposition of the case.” See Buck v. Cassidy Painting, Inc., 2011 WL
1226403 (Del. Super. Mar. 28, 2011)(applying Del. Super. Ct. Civ. Rules 107 and 72(i) to
dismiss an appeal for failure to diligently prosecute an appeal where an appellant failed to file an
opening brief).
7
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…
The above ten-day window to file an appeal of a Claims Deputy’s decision
is “is an express statutory condition of jurisdiction that is both mandatory and
dispositive.”35 If the failure to file an appeal was not due to an administrative error
by the Department of Labor, “the Claims Deputy's determination will become final
and § 3318(b) will jurisdictionally bar the claim from further appeal. 36 Although
the Board does have discretion under 19 Del. C. § 3320 to review an untimely
appeal, the Board typically exercises that discretion using much “caution” and only
under “severe” circumstances.37
Substantial evidence in the record exists to support the Board’s finding that
Appellant’s appeal of the Claims Deputy’s decision was untimely. Appellant does
not dispute that she filed her appeal one day too late. Instead, Appellant asserts
that she did not timely file her appeal because she did not receive the decision until
she obtained a copy in person on September 24, 2013. Appellant contends that she
did not receive the decision because she had just recently changed her address
during the time of the determination and was having trouble with her mail.
35
Hartman v. Unemployment Ins. Appeal Bd., 2004 WL 772067, at *2 (Del. Super. Apr. 5,
2004)(quoting Lively v. Dover Wipes Co., 2003 WL 21213415, at* (Del. Super. May 16, 2003)).
36
Id.
37
See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222, 225-26 (Del. 1991).
8
Unfortunately, the record is void of any evidence substantiating Appellant’s mere
assertion that she did not receive the mail. A mere denial of receipt is insufficient
to defeat the presumption in Delaware that “mailed matter, correctly addressed,
stamped and mailed, was received by the party to whom it was addressed.” 38 The
Claims Deputy certified that the determination was sent first class mail to
Appellant’s address. Appellant did not submit any evidence to show that she had
recently changed her address or that she made any attempts to inform the
Department of Labor of the possibility that she may have trouble receiving mail.
Appellant has not claimed that an administrative error by the Department caused
her appeal to be untimely. Moreover, there are no unique circumstances in this
case to suggest that the Board should have exercised its discretion to review the
untimely appeal. Therefore, the Court finds that the Board did not commit an abuse
of discretion.
Conclusion
For the foregoing reasons, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.
/s/Calvin L.Scott
Judge Calvin L. Scott, Jr.
38
Windom v. William C. Ungerer, W.C., 903 A.2d 276, 282 (Del. 2006).
9