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National Vulcanized Fibre Co. v. Unemployment Compensation Commission of Delaware

Superior Court of Delaware, New Castle County

July 2, 1951


Grace D. Plummer filed an application for unemployment compensation. The Unemployment Compensation Commission of the State of Delaware entered a decision in favor of the claimant, and the National Vulcanizing Fibre Company, a corporation of the State of Delaware, appealed. The Superior Court, Terry, J., held that notice of appeal to Claims Referee by claimant was not filed within seven days prescribed by statute, though the notice of appeal was mailed within seven days.

Decision of the Commission reversed, and decision of Claims Deputy reinstated.

Page 726

[46 Del. 230] James R. Morford and Morton E. Evans, of the firm of Morford, Bennethum, Marvel & Cooch, of Wilmington, for the appellant.

William E. Taylor, Jr., of Wilmington, for the appellee.

TERRY, Judge.

This case concerns an appeal by National Vulcanized Fibre Co., a corporation of the State of Delaware, from a decision of the Unemployment Compensation Commission of the State of Delaware and Grace D. Plummer on the application of Grace D. Plummer for unemployment compensation, being Appeal Docket No. 2771-A.

The co-appellee, Grace D. Plummer, had been employed by the appellant at its Yorklyn plant for approximately four years prior to January, 1949. She had been working in the No. 2 Mill of the appellant where work had become slack, and, in order to avoid discharging any of the employees, arrangements were made with the consent of the Union and with due regard to seniority to transfer certain of the employees, of which she was one, to the No. 1 Mill, located directly across the road from the No. 2 Mill. There was no difference in the rate of pay or the conditions of work as to Mills No. 1 and 2, except employees [46 Del. 231] working in Mill No. 1 worked on a shift basis; that is, in alternate weeks the employees worked from 8 a. m. until 4 p. m. and from 4 p. m. until 12 o'clock midnight. The appellant and the Union agreed that in case any employee thus transferred was unable to arrange to work in the alternating shifts he or she would be discharged. Mrs. Plummer's husband was also employed by the appellant in the capacity of a foreman, and, as such, it was impossible for him to change his time of work to coincide with her new assignment. It became necessary, therefore, for Mrs. Plummer to make arrangements with someone other than her husband to ride from her home near Cochranville, Pennsylvania to the Yorklyn plant, a distance of some seventeen miles each way. Arrangements for her transportation were made by her with Garney Dollinger. On January 23rd, immediately prior to the transfer of Mrs. Plummer from Mill No. 2 to Mill No. 1, Mr. Dollinger called her and stated that he would be unable to provide her with transportation. On January 24th, Mrs. Plummer notified her foreman at the appellant's plant that she would be unable to come to work inasmuch as there was no means of transportation available to her. On January 25th Mrs. Plummer was discharged

Page 727

by the appellant in accordance with its agreement with the Union.

Mrs. Plummer filed an application with the Unemployment Compensation Commission, the co-appellee, for compensation. A hearing was had by the Claims Deputy, who on March 3, 1949 determined that she was not entitled to compensation, and on that date addressed and signed a letter to Mrs. Plummer containing the following: ‘ You are hereby notified of your right to appeal from this decision. Such appeal may be made to the local employment office named above within five days from the delivery or seven days after the mailing of this notification.’

Personal delivery of the foregoing notice was not made. The same was mailed to Mrs. Plummer to her home address. She says she received the notice on March 7th, and, in accordance therewith, gave notice of appeal to the Claims Referee by letter dated [46 Del. 232] and mailed on March 10th, which letter was not received by the Commission until March 11th. The appellant contended before the Appeals Referee that if the notice of decision of the Claims Deputy was mailed on the 3rd day of March as indicated by the Commission then the letter of Mrs. Plummer dated March 10th, which it is agreed was not received by the Commission until March 11th, was not filed within the time specified and required under the Act. Sec. 6(b), Chapter 258, Vol. 41 Laws of Delaware. Mrs. Plummer contended that the evidence supporting the mailing of the notice was not sufficient to establish a definite mailing of the same on March 3rd, but, if such be construed to establish the mailing of the notice on that date, then her appeal posted on the 10th of March was taken in season for the reason that it was posted within the seven day period as required by the statute.

The Appeals Referee concluded that Mrs. Plummer had filed her appeal within the seven day period required by the statute, heard the issues involved, and on May 5th denied Mrs. Plummer any benefits in the way of compensation for the duration of her period of unemployment immediately following her severance of employment with the appellant. The Referee merely modified the decision of the Claims Deputy in holding that Mrs. Plummer had not been discharged by the appellant, but, rather, had quit her job with the appellant voluntarily without good cause attributable to her employment. The notice of this decision was mailed to Mrs. Plummer on May 5th. Subsequent thereto Mrs. Plummer mailed two letters to the Commission. The first bears the date of May 10th, the second June 6th. It is conceded that these letters were intended as appeals by Mrs. Plummer to the Commission from the Referee's decision. On the bottom of the letter of June 6th appears the following notation, without explanation: ‘ Original appeal mislaid-Reg. Letter Rec'd. in this in this office-riled 11-49.’

The appellant moved to dismiss Mrs. Plummer's appeal from the Referee to the Commission upon the ground of the [46 Del. 233] lack of jurisdiction in the Commission to entertain the same. The Commission denied the appellant's motion. Subsequently, a hearing was held by the Commission on the merits. The Commission reversed the decision of the Appeals Referee, holding that Mrs. Plummer was entitled to receive unemployment compensation benefits during the period ...

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