Submitted: May 19, 2014
On Appeal from the Decision of the Unemployment Insurance Appeal Board.
Lisa Marcozzi. Middletown, Delaware. Pro Se Appellant.
John M. Seaman, Equire. Abrams & Bayliss LLP, Eric J. Janson, Esquire, Seyfarth Shaw LLP, Attorneys for Appellee Costco Wholesale Corp.
Catherine Damavandi, Esquire, Delaware Department of Justice, Attorney for Unemployment Insurance Appeal Board.
Calvin L. Scott, Jr. Judge.
Before the Court is Appellant Lisa Marcozzi's ("Appellant") appeal of the decision of the Unemployment Insurance Appeals Board ("the Board"). The Court has reviewed the parties' submissions. For the following reasons, the decision of the Board is AFFIRMED.
Appellant was employed by Costco Wholesale, Inc. ("Employer") from April 21, 2012 through August 30, 2013. After she was discharged, Appellant sought unemployment benefits. On September 13, 2013, a Claims Deputy determined that she was ineligible for benefits because she was discharged for just cause. The Claims Deputy's decision contained a notice which stated that, unless an appeal was filed, the decision would become final on September 23, 2013. The Claims Deputy certified that the decision was mailed on September 13, 2013 via first class mail. On September 24, 2013, one day after the September 23, 2014 deadline, Appellant filed an appeal. On October 10, 2013, the Department of Labor (the "Department") determined that the September 13, 2013 decision was final and binding due to Appellant's failure to file a timely appeal. However, a hearing was scheduled before an Appeals Referee for the timeliness issue.
At the hearing, Appellant confirmed that her address was the same address that was used by the Claims Deputy. Appellant explained that she had just recently changed her address and was having trouble with her mail. She stated that she did not receive the decision until September 24, 2013 when she went to the Department to check on the status of her claim. When she learned that she was one day late, she immediately filed her appeal. An agency representative testified that the Claims Deputy's decision was mailed on September 13, 2013 and that it was not returned after it was sent.
On October 18, 2013, the Referee affirmed the decision of the Claims Deputy after finding that the decision was properly mailed to Appellant at her correct address and that there was no evidence of administrative error by the Department. The Referee was not persuaded by Appellant's mere assertion that she had not received the decision based on the presumption that mail properly sent is presumed to have been received. The Referee certified that the Referee's decision was mailed on October 18, 2013 via first class mail.
On October 28, 2013, Appellant timely appealed the Referee's decision to the Board. On October 30, 2013, the Board refused to exercise its discretion under 19 Del. C. §3320(a) to review an untimely filed appeal and affirmed the Referee's decision after finding that the late filing was not the result of a departmental error. Appellant timely appealed the Board's decision to the Superior Court.
On February 28, 2014, the Court sent a letter to the parties containing the briefing schedule for the appeal. The Opening Brief was due on March 20, 2014. The letter stated that, under Delaware Superior Court Rule 107(b), "extensions of time for filing briefs will not be authorized, whether or not consent of other parties is obtained, unless the court enters an order upon a showing of good cause for such enlargement." Appellant did not file her Opening Brief until March 31, 2014. On April 3, 2013, counsel for the Employer filed a letter requesting that the Court dismiss the appeal based on the untimely filing of the Opening Brief or allow the employer ...