IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
JAMES H. DUNCAN : 
: 
Petitioner : 
: C.A. No. 02A-02-005 SCD 
v. : 
: 
DELAWARE DEPARTMENT OF LABOR,: 
DIVISION OF UNEMPLOYMENT : 
INSURANCE : 
: 
Respondent : 
Submitted: June 2, 2002 
Decided: September 10, 2002 

O R D E R 

This 10th day of September 2002, upon consideration of Petitioner’s opening brief, 
Respondent’s answering brief, and the record in this case, it appears that: 

(1) Petitioner, James H. Duncan ("Duncan"), has filed an appeal from the decision of the 
Unemployment Insurance Appeal Board ("UIAB") affirming an Appeals Referee’s decision on 
November 27, 2001, ordering repayment of unemployment funds wrongfully, although non-
fraudulent, received by Duncan for the weeks August 25, 2001, through September 15, 2001. 

(2) Duncan had for a period of years prior to November 1998, secured employment through 
the Wilmington Senior Center. At some point during his tenure with the Senior Center, Duncan 
was directed to Randstad, a local temporary agency specialized in providing employers with 
short term or job specific temporary employees. Randstad placed Duncan with the Wilmington 
office of Chase Manhattan Bank, where his performance and dedication remains unquestioned. 

The record is clear that beginning November of 1998, through the end of his employment on 
August 17, 2001, Duncan was an exemplary temporary employee and served both Randstad and 
Chase Manhattan Bank admirably. 

(3) On August 19, 2001, two days after Duncan’s job at Chase Manhattan Bank expired, he 
filed a claim for unemployment compensation benefits. The claim became effective on August 
20, 2001, after Duncan signed the required form UC-410, acknowledging his responsibility to 
repay all disbursed unemployment benefits in the event of disqualification. 

(4) Pursuant to this claim, it was preliminarily determined that Duncan was entitled to 
$153.00 per week, less the Federal taxes of $15.00 that he elected to have withheld. Thereafter, 
for the first three weeks on August 25, September 1, and September 8, 2001, Duncan received 
three net unemployment disbursements of $138.00 each. See A-10. Though the record is not 
precisely clear as to when, at some point, it was determined that Duncan was in fact entitled to 
$165.00 per week. The fourth check was then issued in the correct amount for the week of 
September 15, 2001, for $165.00 less $17.00 in Federal Tax. See A-10. Thereafter, an 
additional three checks were issued on September 27, 2001, for $12.00 each less the $1.00 
Federal tax withholding making up for the deficiency in disbursement pursuant to the original 
assessment of $153.00. It is undisputed that Duncan received a total of seven separate 
disbursements totaling $660.00. 

(5) After the aforementioned disbursements to Duncan, a Claims Deputy contacted Randstad 
during a routine audit and learned that Duncan’s assignment with Chase Manhattan had ended, 
and Duncan had requested four weeks of leave for rest and medical purposes before beginning 
his next assignment. On October 9, 2001, the Claims Deputy determined that Duncan was not 
eligible to receive unemployment benefits, having voluntarily left employment.1 Duncan 
thereafter had ten days to appeal2 before the determination became final on October 19, 2001. 
Duncan failed to appeal. 

(6) On October 22, 2001, Duncan was notified by mail, that "due to non-fraudulent actions, 
an overpayment of benefits has been issued in the amount of $660.00, for 4 week(s) beginning 
08/25/2001 to 09/15/2001." Recoupment, as agreed to by Duncan in his signed form 
UC-410, was ordered. Duncan timely appealed pro se the recoupment order. A hearing was 
held on November 27, 2001, before an Appeals Referee. Duncan’s appeal was denied and he 
was again ordered to satisfy the overpayment of $660.00. See A18-20. 
(7) On December 27, 2001, Duncan appealed the Appeals Referee’s decision to the UIAB. 
The UIAB affirmed the Appeals Referee’s decision citing "there is no evidence of error on the 
part of the Department..." See A-29. Duncan then appealed to this Court for review of the 
UIAB’s decision. 

(8) The function of this Court on review of an UIAB decision is to determine whether the 
decision is supported by substantial evidence4 and is free from legal error. Substantial evidence 
is that which is relevant to a reasonable person, or that which adequately supports a reasonable 
conclusion. This Court does not weigh the evidence, determine questions of credibility, or 
make factual findings. 

(9) The time for filing an appeal is an express statutory condition of jurisdiction that is both 
mandatory and dispositive. "The appellate jurisdiction of a court cannot be invoked or properly 
exercised unless an appeal is perfected within the time period fixed by law."9 Therefore, 
Petitioners failure to timely appeal the Claims Deputy decision regarding eligibility for 
unemployment insurance necessarily precludes review of the underlying merits of that decision. 
As a matter of law, the Referee properly excluded such evidence, as did the UIAB, and such 
evidence has no relevance to this Courts review. Petitioners Opening Brief continues to forward 
arguments with respect to the merits of the Claims Deputy’s decision regarding denial of the 
unemployment claim, and they will not be entertained here. 

(10) There was sufficient evidence presented below to support the UIAB’s conclusions. 
Duncan was in fact afforded unemployment compensation. Duncan both accepted and received 
the unemployment compensation. A Claims Deputy thereafter determined that Duncan was not 
eligible for such benefits. The record demonstrates that Duncan failed to timely appeal the 
Claims Deputy’s determination. The record further shows that the Department of Labor 
representative satisfactorily proved that seven checks totaling $660.00 were in fact issued to, and 
received by Duncan. Petitioner does not challenge the accuracy of the $660.00 deficiency. 

(11) Therefore, the only issues for this Court upon review of the UIAB decision below are 
whether the record supports the UIAB’s finding that (i) the overpayment was directed to the 
correct individual, and (ii) the amount of the overpayment assessed is accurate. The record is 
clear and well documented and both of the above questions are easily answered in the 
affirmative. 

The record supports the decision of the Unemployment Insurance Appeal Board. 
THEREFORE, IT IS ORDERED that the decision below is AFFIRMED. 

IT IS SO ORDERED. 
______________________________ 
Judge Susan C. Del Pesco 
Original to Prothonotary 
xc: Kester I.H. Crosse, Esquire 
Thomas H. Ellis, Deputy Attorney General 
Delaware Department of Labor, Division of Unemployment Insurance