IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 

RICHARD E. COOKE, JR. : 
 Appellant, : 
v
BOSCOVS and UNEMPLOYMENT : 
INSURANCE APPEAL BOARD, : 
 Appellee. : 


Submitted: March 3, 2008 
Decided: March 24, 2008 


Decision upon Appellant’s Appeal from a Decision of the 
Unemployment Insurance Appeal Board 

 

OPINION 

The matter before this Court is an appeal by Richard E. Cooke, Jr. ("Appellant") from the 
February 20, 2007 decision of the Unemployment Insurance Appeal Board ("UIAB" or "Board") 
in which the UIAB denied his claim for unemployment compensation benefits. 

Procedural History and Decision of the UIAB 

On January 28, 2007, Appellant sought payment of unemployment benefits from the 
UIAB after his employment was terminated by his employer, Boscov’s Department Store, LLC 
("Employer"). The Employer claimed that the Appellant was terminated for poor attendance. 
On February 20, 2007, the Claims Deputy of the Delaware Department of Labor determined that 
the Appellant was terminated with just cause and was therefore disqualified from receiving 
unemployment compensation benefits.1 Specifically, the Claims Deputy cited three warning 
notices given to the Appellant before he was terminated. The third warning, signed by 
Appellant, stated that if he made one more "call out," he would no longer be employed. The 
Deputy’s Notice of Determination stated that "[t]his determination becomes final on 03/02/2007 
unless a written appeal is filed."2 

 On March 27, 2007, twenty-five days after the filing deadline, Appellant appealed the 
decision of the Claims Deputy to the Appeals Referee. A hearing to determine the timeliness of 
the appeal was scheduled for April 18, 2007.3 After the hearing, the Appeals Referee issued a 
decision finding "no evidence of any administrative error by the Department of Labor" which 
would have led to the untimely filing. It further found that the Appellant’s excuse for not filing 
in time was not a mitigating circumstance "to allow any waiver of the timeliness requirements 
which are jurisdictional in nature."4 Accordingly, the Appeals Referee affirmed the Deputy’s 
decision citing an absence of "jurisdiction to entertain the merits of the claimant’s appeal 
regarding his separation issue."5 The decision of the Appeals Referee was mailed to the 
Appellant on April 24, 2007, which included notice that the final day to appeal the Referee’s 
decision was May 4, 2007.6 

 On May 7, 2007, the Appellant filed an appeal of the Appeal Referee’s decision.7 The 
Appeal Board reviewed the appeal on May 16, 2007. Pursuant to 19 Del. C. § 3318(c),8 the 
Board determined that it was without jurisdiction to hear the Appellant’s appeal. In its decision, 
the Board found that the appeal was not timely and the Appellant did not offer a sufficient reason 
for filing late.9 The Board declined to accept the appeal and entered the decision of the Appeals 
Referee as "final and binding."10 

 On May 30, 2007, Appellant timely filed a pro se appeal.11 In response to a Final 
Delinquent Brief Notice, Appellant submitted a hand-written, single-page "Opening Brief" 
which does not meet the form required by Superior Court Civil Rule 107(e), was not properly 
served, and does not address the issue of his untimely appeal to the Board. Counsel for both the 
Employer and the Board timely filed their Answering Briefs. A Final Delinquent Brief Notice 
was mailed to Appellant on January 25, 2008 giving him 10 days to file a Reply Brief. No Reply 
Brief has been filed. 

Standard of Review 

 The scope of review for an appeal of this nature is whether the Board abused its 
discretion.12 Absent abuse of discretion we must uphold a decision of an administrative 
tribunal.13 

Discussion 

This Court’s review is limited to examining the underlying record to determine whether 
the Board abused its discretion in refusing to hear the Appellant’s untimely appeal. Title 19, 
section 3318(c) of the Delaware Code provides that a referee’s decision "shall be deemed to be 
final unless within 10 days after the date of notification or mailing of such decision further 
appeal [to the Board] is initiated pursuant to § 3320 of this Title." The Board has discretion to 
hear an untimely appeal sua sponte pursuant to 19 Del. C. § 3320. The UIAB’s discretion to 
assume jurisdiction over an untimely appeal is warranted if the lateness of the filing was traced 
back to an error of the UIAB, or if the appellant proffers an excuse which could warrant the 
Board’s sua sponte exercise of jurisdiction.14 

Here, the Board found that the Department did not contribute to the lateness of the 
Appellant’s appeal. The Board explained that although the Appellant did not receive his mail 
until after March 2, 2007 because he was staying at his girlfriend’s house and not at his father’s 
residence where he receives mail, such an excuse "is not considered a mitigating circumstance in 
order to allow any waiver of the timeliness requirements which are jurisdictional in nature." It is 
reasonable to expect that a claimant awaiting an important decision from an appeal tribunal 
would regularly check the location at which he receives mail. No other circumstance existed to 
justify the Board’s acceptance of the appeal sua sponte. 

The Referee’s decision was sent to the Appellant’s address of record on April 24, 2007 
containing the specific instruction that the last day to file an appeal was May 4, 2007. The 
Appellant failed to file his appeal before that deadline. 

 In light of the substantial evidence in support of the UIAB’s decision, as well as the 
absence of any error of law or abuse of discretion, the decision of the UIAB is hereby 
AFFIRMED. 

 IT IS SO ORDERED. 

 

 

 ____________________________ 

 Judge Susan C. Del Pesco