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McCleaf v. Unemployment Insurance Appeal Board

Superior Court of Delaware, Kent

December 12, 2012


Mr. Anthony McCleaf, pro se


William L. Witham, Jr. Resident Judge

This is a pro se appeal by Claimant Anthony C. McCleaf ("McCleaf" or "Appellant") from the February 12, 2012 decision of the Unemployment Insurance Appeal Board ("the Board" or "UIAB") that denied McCleaf's appeal from a decision of the Appeals Referee as untimely. For the foregoing reasons, the decision of the UIAB is hereby AFFIRMED.

Factual and Procedural Background

McCleaf was employed by KNS09, Inc. ("KNS09"), a Maaco Collision Repair and Auto Painting franchise in Dover, Delaware, from August 2010 until September 16, 2011.[1] McCleaf filed a claim for unemployment benefits on or about September 23, 2011, in which he claimed that he was laid off due to lack of work. McCleaf maintains that he had called out of work on September 14 and 15 with complaints of a urological problem, which was diagnosed as kidney stones.[2] McCleaf maintains that he traveled to Pennsylvania on September 15 to seek medical treatment with the assistance of his sister, but was denied help because he was not a resident of the Commonwealth.[3] McCleaf claims that he called his supervisor, Nick Luppino ("Luppino") on September 16, who told him that they were not busy and that he would call McCleaf when business picked up again. McCleaf returned to work on September 19, but his supervisor once again told him that he was not needed.[4]According to McCleaf, it was only then that he filed for unemployment insurance benefits.[5]

KNS09 maintains that McCleaf was discharged on or about September 16 when he told Luppino that he was moving to Pennsylvania to seek medical treatment.[6]Luppino, appearing as a witness on KNS09's behalf at the hearing before the Appeals Referee, stressed that McCleaf, as a detailer, played a critical role in his assembly line and that McCleaf's absence threatened to disrupt operations.[7] Thus, Luppino maintained that it was necessary to hire McCleaf's replacement immediately.[8]

On October 20, 2011, a Claims Deputy from the Delaware Department of Labor Division of Unemployment Insurance ruled that KNS09 discharged McCleaf without just cause, and therefore, McCleaf was entitled to unemployment insurance benefits.[9] Relying on 19 Del. C. § 3315(2) ("Section 3315(2)"), the Claims Deputy found that KNS09 failed to prove that any misconduct on the part of McCleaf rose to the level of willfulness or wantonness required to support just cause for his dismissal within the meaning of Section 3315(2).[10]

KNS09 filed a timely appeal and a hearing was held before the Appeals Referee on November 22, 2011.[11] The record indicates that, although he was given adequate notice of the hearing date and time, McCleaf did not appear by either telephone or in person.[12] McCleaf explains his absence by contending that, on the very day that he was due to appear at this hearing, he was arrested and sentenced to 60 days in jail for violating his probation.[13]

The Appeals Referee reversed the determination made by the Claims Deputy and ruled that McCleaf was discharged from his employment with KNS09 with just cause.[14] Relying on Luppino's testimony, the Appeals Referee found that KNS09 presented sufficient evidence to establish that McCleaf had abandoned his job.[15]Accordingly, the Appeals Referee ruled that McCleaf was disqualified from receiving unemployment insurance benefits pursuant to 19 Del. C. 3314(2).[16] The decision of the Appeals Referee was mailed on November 28, 2011.[17] The Referee noted that the last day to file an appeal of his decision with the UIAB was December 8, 2011.[18]

Nonetheless, having no knowledge of the aforementioned ruling, McCleaf filed an appeal of the Appeals Referee's ruling on January 17, 2012, the day he was released from jail.[19] In its February 12, 2012 decision, the UIAB declined to assume jurisdiction of the case because McCleaf had filed his appeal late pursuant to 19 Del. C. § 3318(c).[20] McCleaf's incarceration, the UIAB noted, did not excuse him from timely appealing the Referee's decision to the Board.[21] This appeal followed.


When this Court reviews a procedural decision of the UIAB, the Court must consider whether the UIAB abused its discretion in rendering its decision.[22] A procedural decision is not considered an abuse of discretion "unless it is based on clearly unreasonable or capricious grounds" or "the Board exceeds the bounds of reason in view of the circumstances and had ignored recognized rules of law or practices so as to produce injustice."[23] Absent an abuse of discretion, the Court must affirm the judgment of the UIAB.[24]

This Court affirms the UIAB's decision not to assume jurisdiction of his appeal from the Appeals Referee pursuant to 19 Del. C. § 3318(c) because the appeal was untimely. Section 3318(c) states, in pertinent part:

[A]n appeals tribunal, after affording the parties reasonable opportunity for a fair hearing, shall affirm, modify, or reverse the decision of the deputy. The parties shall be duly notified of the tribunal's decision, together with its reason thereof, which shall be deemed to be final unless within 10 days after the date of notification or mailing of such decision further appeal is initiated pursuant to § 3320 of this title.

The UIAB lacks the power to accept a late appeal from a party because the UIAB is a "creature of statute" and the parties are subject to a statutory ten-day limitation period.[25]

In Funk v. UIAB, the Supreme Court did recognize that the Board has the discretion under 19 Del. C. § 3320 to consider a late appeal sua sponte if the situation involved circumstances "severe enough" to require the UIAB to exercise its discretion.[26] The UIAB may choose to assume jurisdiction over an untimely appeal if the lateness of the filing can be traced back to an error of the UIAB, or "in those cases where the interests of justice would not be served by inaction."[27] The court noted that the cases that fall within the latter category "are few and far between."[28]

The UIAB did not abuse its discretion when it declined to accept McCleaf's appeal because, under the strictures of 19 Del. C. § 3318(c), it was filed late. The Appeal Referee's decision was dated and mailed November 28, 2011. Section 3318(c) requires the filing of an appeal within ten days after the date of the mailing of the Referee's decision. Therefore, McCleaf had until December 8, 2011, to appeal the decision of the Appeal Referee. His failure to do so renders his appeal untimely.

Nor did the UIAB abuse its discretion in declining to hear McCleaf's appeal sua sponte pursuant to 19 Del. C. § 3320. There was no administrative error on the part of the Department of Labor, nor do the circumstances surrounding McCleaf's appeal warrant the exercise of the Board's discretionary power. Appellant argues that he did not receive notice of the hearing before the Appeals Referee because he was incarcerated. However, the record shows that notice of the hearing as well as the decision of the Appeals Referee were mailed to Appellant's address of record with the Department of Labor. Delaware case law has established the legal principle that properly addressed mail is presumed to be received by the addressee and mere denial of receipt of the notice is insufficient to rebut this presumption.[29] The Court is thus satisfied that Appellant was adequately notified of both the hearing before the Appeals Referee and the Referee's decision. Thus, Appellant may not attribute the lateness of his appeal to an error on the part of the Department of Labor.

Moreover, Appellant's incarceration does not qualify as an extraordinary circumstance that requires the UIAB to exercise its power under 19 Del. C. § 3320. This Court has repeatedly held that an appellant's incarcerated status does not excuse a failure to comply with jurisdictional requirements such as time.[30] Therefore, Appellant's explanation is insufficient to excuse the untimely filing of his notice of appeal. The Court finds that the UIAB did not abuse its discretion in declining to assume jurisdiction over Appellant's appeal. Accordingly, the decision of the UIAB is hereby AFFIRMED.


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