Submitted: July 2, 2019
for Kent County
Consideration of Appellant's Appeal from the Decision of
the Unemployment Insurance Appeal Board - REVERSED and
JEFFREY J CLARK, JUDGE
9th day of September, 2019, having considered the briefs and
the record in this case, it appears that:
Appellant Danielle Norwood appeals an adverse decision of the
Delaware Unemployment Insurance Appeal Board (hereinafter the
"UIAB" or the "Board"). The Board
dismissed her appeal after neither her nor her counsel
appeared in person at the hearing to request a continuance.
Norwood worked for the Roxana Volunteer Fire Company
(hereinafter "Roxana") from approximately November
2, 2016, until her termination on September 25, 2017.
Thereafter, she filed a claim for unemployment benefits on
September 30, 2018. After a hearing, a Claims Deputy found in
her favor and awarded her benefits.
Roxana then appealed the Claims Deputy's decision and an
Appeals Referee reversed the decision on January 31, 2019.
Ms. Norwood timely appealed the Referee's decision to the
UIAB and a hearing was scheduled for February 27, 2019. Six
days before that hearing, Ms. Norwood requested a continuance
to hire counsel. The UIAB granted the continuance and
rescheduled the hearing for March 13, 2019.
After Ms. Norwood hired counsel, her attorney entered his
appearance and sent a written continuance request by
facsimile on March 6, 2019. The UIAB received it seven days
before the hearing. In it, her attorney informed the Board
that he could not appear at the hearing on March 13th because
he had a prior scheduled court conflict. The UIAB never
replied to the request in writing. What follows is
counsel's representations regarding what happened.
Namely, counsel for Ms. Norwood represents that the day prior
to the hearing, on March 12th, a UIAB employee called him and
left a message requesting a return call. A paralegal at his
firm returned that call the same day, and no one answered.
She then left a message requesting a return call. After
receiving no response, the paralegal called the Board again
the next morning. At that point, UIAB personnel told her that
the Board had dismissed the case because Ms. Norwood failed
to appear in person at the hearing to request the
record is silent regarding these continuance related
exchanges except for (1) the written continuance request by
Ms. Norwood's attorney, and (2) a handwritten note on the
request, as it appears in the Board's certified record.
The note confirms Ms. Norwood's position regarding the
disposition of the request. Namely, it reads that it was
"denied. must. cont. in person."
Thereafter, Ms. Norwood filed a motion for rehearing on March
29, 2019, eleven days after the UIAB mailed its decision. The
UIAB denied the motion for rehearing as untimely. Ms. Norwood
then filed a timely appeal in this Court.
Court's appellate review of the UIAB's factual
findings is limited to determining whether the Board's
decision was supported by substantial evidence and whether it
committed an error of law. Substantial evidence means "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." On appeal, the
Court views the facts in the light most favorable to the
prevailing party below. Moreover, the Court does not weigh the
evidence, determine questions of credibility, or make its own
factual findings. Absent errors of law, which are reviewed
de novo, a decision of the UIAB supported by
substantial evidence will be upheld unless the Board abused
its discretion. The Board abuses its discretion when its
decision exceeds the bounds of reason in view of the
circumstances. As with other fact finding bodies,
requests for a continuance are left to the discretion of the
Board. Accordingly, "a discretionary ruling
by . . . [an] administrative body on a motion for a
continuance will not be set aside, unless that decision is
unreasonable and capricious."
Trial judges have wide discretion when deciding requests for
a continuance. Appellate courts are reluctant to
reverse such decisions. In this administrative context, the
Board has the same level of discretion as if it were a trial
court. Such discretion, however, is not without limits.
Courts and administrative agencies must remain mindful that
"a rigid insistence by the court [or agency] upon
expedition of trial [or a hearing] in the face of a
justifiable request for delay can render the right to defend
an empty formality." In certain cases, a denial of
a continuance may be unreasonable to the degree that it is
arbitrary and capricious.
Here, Ms. Norwood (through her attorney) requested a
continuance in writing greater than six days before the
hearing. By doing so, it met the requirements in the
UIAB's regulations. After Ms. Norwood's counsel sent
the request, the record demonstrates no positive or negative
response from the Board. While the Court understands the
Board's need to expedite hearings and its broad