IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
QUIXOTE DORMAN, )
)
) C.A. No. K17A-02-004 NEP
Appellant, ) In and For Kent County
)
v. )
)
UNEMPLOYMENT INSURANCE )
APPEAL BOARD and )
PENINSULA ROOFING )
COMPANY )
)
)
Appellee. )
ORDER
Submitted: July 6, 2017
Decided: September 29, 2017
Appellant/Claimant Quixote Dorman (hereinafter “Mr. Dorman) has
appealed a decision of the Unemployment Insurance Appeals Board (hereinafter
the “UIAB” or the “Board”), which denied Mr. Dorman’s application for review.
The Court’s review is confined to the facts contained in the record, and it is those
facts that are referenced herein.
This matter was initiated on August 17, 2016, when a Department of Labor
claims deputy determined that Mr. Dorman was entitled to receive unemployment
insurance benefits. Mr. Dorman’s employer appealed this determination, and a
hearing was scheduled before an appeals referee. Mr. Dorman failed to appear at
the hearing.
1
Dorman v. Unemployment Insurance Appeal Board, Et al
K17A-02-004
September 29, 2017
After the hearing, the referee reversed the claims deputy’s determination and
found that Mr. Dorman was disqualified from receiving unemployment benefits.
Mr. Dorman appealed this decision to the UIAB.
The UIAB remanded the matter for an additional referee hearing to create a
full record for the UIAB appeal. The Referee again reversed the Claims Deputy’s
decision. Mr. Dorman appealed, and a hearing was scheduled before the UIAB for
December 28, 2016. Notice of the hearing was sent to Mr. Dorman’s residence.
The day before the hearing, December 27, Mr. Dorman sent a fax to the
UIAB’s secretary, requesting postponement because he purportedly had received
notice too late and did not have time to conduct proper discovery or subpoena
witnesses.1 The request was denied. Mr. Dorman did not appear at the December
28 hearing, and his appeal was dismissed. Mr. Dorman filed a motion for
rehearing, arguing that he could not find the location where the hearing was held
and that the hearing should have been postponed. The UIAB denied the motion for
rehearing on January 11, 2017. Mr. Dorman now appeals this denial.
An appeal from an administrative board’s final order to this Court is
confined to a determination of whether the UIAB’s decision is supported by
substantial evidence and is free from legal error.2 The party that attacks the Board’s
decision as unreasonable and capricious bears the burden of proof.3 “The grant or
1
Mr. Dorman’s submission to the Board requesting postponement indicated that he had received
notice on December 19, nine days prior to the hearing date, December 28. While the Court is
aware that certain days between were holidays, Mr. Dorman had a full business week, Monday,
December 19, through Friday, December 23, during which he could have notified the Board of
his intention to seek postponement.
2
E.g., Unemployment Ins. Appeal Bd. Dept. of Labor v. Duncan, 337 A.2d 308, 308 (Del. 1975);
Thompson v. Christiana Care Health System, 25 A.3d 778, 781—72 (Del. 2011).
3
Dep't of Justice v. Unemployment Ins. Appeal Bd., 2016 WL 3742158, at *4 (Del. Super. Ct.
July 6, 2016) (citations omitted).
2
Dorman v. Unemployment Insurance Appeal Board, Et al
K17A-02-004
September 29, 2017
denial of a motion for rehearing is solely within the discretion of the [UIAB.]” 4
However, the Board may abuse its discretion in denying rehearing when an
appellant acted with excusable neglect.5 A finding of excusable neglect requires
more than mere negligence or carelessness: the Court must find either that a person
had a valid reason for his action or inaction or that a reasonably prudent person
might have acted similarly under the circumstances.6
Here, the Court finds that the UIAB did not abuse its discretion, as Mr.
Dorman did not act with excusable neglect. Mr. Dorman had full notice of the time
and location of the hearing. The only circumstances he alleges that contributed to
his failure to attend are (1) his failure to note the location of the hearing, although
clearly indicated on the face of the hearing notice, and (2) the placement of the
hearing office in the rear of the building. In addition, the notice instructed Mr.
Dorman to arrive fifteen minutes in advance of the scheduled time. This Court has
previously held that the Board did not abuse its discretion by denying a rehearing
to appellants who failed to appear on time to their scheduled hearing because they
had lost their way.7
The Court also finds that the UIAB did not err in denying Mr. Dorman’s
request for postponement. Mr. Dorman’s request was sent the day before the
hearing. However, applications for postponements must be made “no later than six
4
19 Del. Admin. §1201(7.1).
5
Tesla Industries, Inc. v. Bhatt, 2007 WL 2028460, at *2 (Del. Super. Ct. June 28, 2007).
6
Id.
7
Petrilli v. Discover Bank, 2012 WL 1415705 at *2 (Del. Super. Mar. 2, 2012) (finding no abuse
of discretion when Board denied rehearing to appellant who claimed she was late to the hearing
because “she got lost on her way and . . . her directions were incorrect”).
3
Dorman v. Unemployment Insurance Appeal Board, Et al
K17A-02-004
September 29, 2017
days prior to the hearing,” unless there is an unanticipated emergency.8 Mr.
Dorman did not allege an emergency, and the record shows that he had timely
received notice of the hearing and had opportunity to request postponement in a
timely fashion. Mr. Dorman failed to carry his burden of proof in establishing that
the decision was unreasonable or capricious.
WHEREFORE, for the reasons cited herein, Mr. Dorman’s appeal is
DENIED. The decision of the Unemployment Insurance Appeals Board is
accordingly affirmed.
IT IS SO ORDERED.
___/s/ Noel Eason Primos_________
JUDGE
NEP/wjs
Via. File&ServeXpress & U.S. Mail
oc. Prothonotary
xc. Quixote Dorman, pro se
Carla A.K. Jarosz, Esquire
8
19 Del. Admin. C. § 1201-4.4.1; Tesla Industries, Inc., 2007 WL 2028460, at *2. As indicated
previously, Mr. Dorman had adequate notice to make a timely request, having received notice
nine days before the hearing.
4