Submitted: September 6, 2019
Below-Superior Court of the State of Delaware C. A. No.
appeal from the Superior Court. REMANDED.
Elizabeth Imbragulio, pro se, Seaford, Delaware.
Marie Stevens, Esquire, Fuqua, Willard, Stevens & Schab,
P.A., Georgetown, Delaware, Counsel for
C. Mulveny, Esquire, Department of Justice, Wilmington,
Delaware, Counsel for Cross-Appellant.
SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
Imbragulio appeals the Superior Court's May 1, 2019
decision that reversed the decision of the Unemployment
Insurance Appeals Board ("the Board") and concluded
that she had been terminated for just cause by her employer,
Civic Health Services, LLC ("Civic Health"). The
Board cross-appeals, arguing that the Superior Court lacked
jurisdiction to consider Civic Health's appeal in the
first instance because it was not filed in a timely manner.
In brief, the issue raised by the cross-appeal is whether
Superior Court Civil Rule 6(a)'s method for computing
time applies to the requirement in 19 Del. C. §
3323(a) that a party seeking judicial review of a decision by
the Board must do so within ten days after the decision
becomes final. After careful consideration, we agree with the
Board that it does not and therefore conclude that the
Superior Court did not have jurisdiction over Civic
Health's appeal. Accordingly, we direct the Superior
Court to vacate its judgment.
2018, Imbragulio was employed by Civic Health as a part-time
delivery driver and cleaner. On July 23, 2018, Civic Health
accused Imbragulio of soliciting customers as well as working
for a competing pharmacy and warned her that doing so was in
violation of company policy. Civic Health fired Imbragulio
for violating this policy the following day, on July 24,
September 4, 2018, a claims deputy concluded that Imbragulio
was not entitled to unemployment benefits because Civic
Health had discharged her with just cause. Imbragulio
appealed the claims deputy's decision, and an appeals
referee held a hearing on the matter on September 24, 2018.
written decision mailed September 25, 2018, the appeals
referee overturned the claims deputy's decision. The
appeals referee found that the evidence did not support a
finding of willful or wanton misconduct on Imbragulio's
part in light of (i) the contested facts concerning the
nature and extent of Civic Health's warning and (ii)
Civic Health's failure to present evidence of a company
policy. After a hearing, the Board affirmed the appeals
referee's decision in a written decision mailed on
December 12, 2018. The decision noted that it would become
final on December 22, 2018.
January 7, 2019, sixteen calendar days after the Board's
decision became final, Civic Health appealed the Board's
decision to the Superior Court. The Superior Court found, as
a matter of law, that Imbragulio's conduct justified her
immediate termination without notice. Imbragulio's appeal to
this Court and the Board's cross-appeal followed.
opening brief on appeal, Imbragulio claims that the evidence
presented below was insufficient to support a finding that
she solicited for another pharmacy or profited from any
customer's move to another pharmacy. Civic Health argues
that the Superior Court's judgment should be affirmed.
The Board takes no position on the merits of the Superior
cross-appeal, the Board argues that Civic Health's appeal
was untimely because Civic Health was required to file its
appeal within ten days, as provided by 19 Del. C.
§ 3323(a). The Department of Labor, when computing
time under Title 19, chapter 33, uses calendar days,
unless the last day of the time frame is a Saturday, Sunday,
or a holiday, in which case the next business day is
considered the deadline. Following the Board's logic, a
timely appeal of the Board's decision had to be filed on
or before January 2, 2019. Imbragulio joins in the Board's
response, Civic Health contends that Superior Court Civil
Rule 6(a)'s method for computing time applies. Rule 6(a)
provides, in relevant part, that "[i]n computing any
period of time prescribed or allowed by these Rules, by order
of court, or by statute, the day of the act, event or default
after which the designated period of time begins to run shall
not be included…. When the period of time prescribed
or allowed is less than 11 days, intermediate Saturdays,
Sundays, and other legal holidays shall be excluded in the
computation." Excluding intermediate Saturdays, Sundays,
and legal holidays, a timely appeal-if Rule 6(a)
applies-needed to be perfected on or before January 8, 2019.