SUPERIOR COURT
OF THE
STATE OF DELAWARE
JOHN A. PARKINS, JR. NEW CASTLE COUNTY COURTHOUSE
JUDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801-3733
TELEPHONE: (302) 255-2584
April 11, 2017
Patricia Boon Margaret M. DiBianca, Esquire
207 Oak Drive Lauren E. M. Russell, Esquire
Middletown, Delaware 19709 Young Conaway Stargatt & Taylor, LLP
1000 North King Street
Paige J. Schmittinger, DAG Wilmington, Delaware 19801
Department of Justice
Carvel State Office Building
820 North French Street
Wilmington, Delaware 19801
Re: Patricia L. Boon
v. Jolly Smiles, P.A., and
Unemployment Insurance Appeals Board
C.A. No. N16A-06-002 JAP
Dear Ms. Boon and Counsel:
This is an appeal from a split decision of the Unemployment Insurance
Appeals Board in which the majority of the Board held that Ms. Boon was
not eligible for benefits because she voluntarily left her employment without
good cause. In her appeal Ms. Boon makes the factual argument that the
majority of the UIAB was wrong when it found that she voluntarily left her
employment without good cause.
It is settled law that the scope of this court’s review of UIAB decisions
is a narrow one. Section 3323 of title 19 of the Delaware Code provides that
in appeals from the UIAB to this court “the findings of the Unemployment
Insurance Appeal Board as to the facts, if supported by evidence and in the
absence of fraud, shall be conclusive, and the jurisdiction of the Court shall
be confined to questions of law.”1 This court owes considerable deference to
the factual findings of the UIAB and may not disturb them if they are
supported by substantial evidence.2 The term “substantial evidence” means
“such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”3 In determining whether there is substantial evidence
to support the UIAB’s finding “[t]he appellate court does not weigh the
evidence, determine questions of credibility, or make its own factual
findings. It is within the exclusive purview of the [UIAB] to judge witness
credibility and resolve conflicts in testimony.”4 The court realizes that the
Board was divided 3 to 2. But section 3323 draws no distinction between a
unanimous board and one which is divided. Therefore the decision of a
divided board is entitled to the same deference as is that of one which was
unanimous.
The factual issue presented in Ms. Boon’s case is whether there was
substantial evidence to support the Board’s finding that she quit her job
without good cause. Delaware law provides that an employee is not eligible
1 19 Del. C. § 3323(a).
2 Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 308 (Del. 1975).
3 Butler v. Safe Check East, Inc, 2011 WL 2739504 (Del. July 14, 2011).
4 Thompson v. Christiana Care Health System, 25 A.3d 778, 781 (Del. 2011).
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for unemployment benefits if the employee “left work voluntarily without
good cause attributable to such work.”5 “Good cause” in this context is
“established where: (i) an employee voluntarily leaves employment for
reasons attributable to issues within the employer's control and under
circumstances in which no reasonably prudent employee would have
remained employed; and (ii) the employee first exhausts all reasonable
alternatives to resolve the issues before voluntarily terminating his or her
employment.”6
The court has reviewed the evidence presented to the UIAB and finds
that there is substantial evidence in the record to support its finding. The
main bone of contention here seems to be whether Ms. Boon voluntarily quit
or whether she was terminated. The UIAB after reviewing the “credibility of
the witnesses, the weight to be given to their testimony and the inferences to
be drawn therefrom” concluded that Ms. Boon voluntarily quit. This
conclusion was drawn primarily from the testimony of Joe Jolly, the
employer’s representative at the hearings and an eyewitness to the critical
events in this matter. Notwithstanding Ms. Boon’s urgings to the contrary,
this court is not free to substitute its assessment of Mr. Jolly’s testimony for
that of the Board. Accordingly, there is substantial evidence in the record to
support the Board’s finding.
Section 3323 permits this court to disregard the Board’s factual
findings if the appellant can show fraud. In her submittal to this court Ms.
5 19 Del. C. § 3314(1).
6 Thompson, 25 A.3d at 783.
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Boon contends that the employer defrauded patients or third-party payers by
billing for work which was never done. This is not the sort of fraud
envisioned in section 3323. That section contemplates situations in which
the administrative decision was procured by fraud. No such allegation is
made here.
The judgment of the UIAB is AFFIRMED.
Very truly yours,
John A. Parkins, Jr.
oc: Prothonotary
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