January 27, 2014
STEVE HAN, Appellant,
APPLE AMERICAN GROUP and UNEMLOYMENT INSURANCE APPEAL BOARD Appellees.
Submitted: October 22, 2013
On Appeal from the Decision of the Unemployment Insurance Appeal Board.
Steve Han Pro Se Appellant.
James T. Wakley, Esquire, Delaware Department of Justice, Attorney for Unemployment Insurance Appeal Board.
Calvin L. Scott, Jr. Judge
Before the Court is Appellant Steve Han's ("Appellant") appeal from the decision of the Unemployment Insurance Appeal Board (the "Board"). The Court has reviewed the record below and submissions by Appellant and the Board. For the following reasons, the decision of the Board is AFFIRMED.
On March 8, 2013, a Claims Deputy determined that Appellant was disqualified from receiving unemployment benefits because he was terminated for just cause. The determination provided: "This determination becomes final on 3/18/2013 unless a written appeal is filed. Your appeal must be received or postmarked on or before the date indicated..." On March 20, 2013, twelve days after the date of the decision, Appellant filed an appeal.
On March 25, 2013, the Appeals Referee determined that, according to §3318(b), the Claims Deputy's decision became final and binding on March 18, 2013, ten calendar days after the date of the decision, due to Appellant's failure to timely appeal. Nevertheless, the Appeals Referee scheduled a hearing to address the timeliness of the appeal.
The hearing was held on April 12, 2013 and was attended via telephone by Appellant and Marge Perry ("Ms. Perry"), a representative of the Department of Labor ("the Department"). Appellant verified his address when prompted by the hearing officer. Thereafter, Ms. Perry testified that the March 8th determination was mailed to the address verified by Appellant and that she was not aware of any return by the postal service showing that the mail was undeliverable. Appellant testified that he spoke to an employee at the Department on February 25th who informed him that he would not receive notice for two or three weeks. Appellant stated that he went to the office on March 20th after three weeks passed and he had not received any notice. That day, Appellant filed his appeal after he was informed that the letter had been mailed and that he missed the deadline.
The Appeals Referee issued a decision affirming the decision of the Claims Deputy. The Appeals Referee quoted § 3318(b) and explained that the ten-day filing period began to run on the date of mailing unless a mistake by employees of the Department of Labor is shown. The Appeals Referee found that the determination was mailed on March 8, 2013 to Appellant's address of record and that "[t]here was no evidence to suggest that [Appellant's] late filing of his appeal was the result of any mistakes or errors made by the Department of Labor in the mailing of the determination." Consequently, the Appeals Referee determined that it lacked jurisdiction to determine the merits of the appeal.
On April 18, 2013, Appellant timely appealed the decision of the Appeals Referee to the Board. Appellant explained that he was never informed about the time period and that he did not receive the determination in time to appeal. Applying § 3318(b), the Board found that the determination was mailed to Appellant's address of record and that there was no evidence of departmental error which prevented Appellant from timely appealing the determination. Therefore, the Board affirmed the Appeals Referee's decision and denied further review.
Issues on Appeal
Appellant filed a Notice of Appeal in this Court claiming the following as grounds for his appeal: he never received the determination; he was informed that he had to wait three weeks for the decision; and he was not told until after three weeks passed and he appeared in person that he missed the deadline. In a one-page letter submitted to this Court, Appellant explained the circumstances surrounding his termination and attached examples of praises that he received during his employment. In response, the Board declined to address Appellant's substantive arguments, but asserted that the Board's decision was supported by substantial evidence and free from legal error or abuse of decision. Appellant did not file a 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. The Court will not weigh evidence, determine questions of credibility, or make its own factual findings and conclusions. If there is substantial supporting evidence and no legal error, the Board's decision will be affirmed. A discretionary decision by the Board will not be set aside unless it is found to be an abuse of discretion.
The relevant portion of § 3318(b) states:
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 and benefits shall be paid or denied in accordance therewith.
The ten-day period begins on the date the notice is mailed to a claimant's last known address "unless the mailing fails to reach a party because of some mistake made by employees of the Department of Labor." Delaware courts presume that a mailing has been received by a claimant when it has been properly addressed. This presumption may be rebutted, but not by a mere assertion that it was not received unaccompanied by "supporting evidence."
The Board's decision was supported by substantial evidence and free from legal error. The March 8th determination expressly provided that the last day to appeal the Claims Deputy's decision was March 18, 2013. Ms. Perry testified that the determination was mailed on March 8th and that she had no knowledge of any return of the mail by the postal service. Furthermore, the determination was addressed to the same address that Appellant verified under oath. Appellant's mere assertion that he did not receive notice is insufficient to rebut the presumption discussed above. Aside from Appellant's mere assertion, no other evidence exists in the record to show that the determination was improperly addressed or that any error by Department of Labor employees caused him to untimely file his appeal. The Court also finds that, absent evidence of administrative error, the Board did not abuse its discretion by refusing to review the untimely appeal.
For the foregoing reasons, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.