IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 
TARA HARTMAN, ) 
) 
Claimant-Below, Appellant ) 
) 
v. ) 
) 
UNEMPLOYMENT INSURANCE ) 
APPEAL BOARD, ) C.A. No. 03A-09-003 RRC 
) 
Appellee ) 
) 
& ) 
) 
WIRELESS CASTLE, INC. ) 
) 
Employer-Below, Appellee ) 
) 
Submitted: February 25, 2004 
Decided: April 5, 2004 
UPON APPEAL FROM A DECISION OF THE UNEMPLOYMENT 
INSURANCE APPEALS BOARD. 
AFFIRMED. 

ORDER 

Upon this 5th day of April, 2004 it appears to the Court that: 

1. Claimant Tara Hartman ("Hartman") has filed a pro se appeal 
to this Court from a decision of the Unemployment Insurance Appeals Board 
(the "UIAB") that had affirmed the Appeal Referee’s decision that 
Hartman’s appeal from a decision of the Division of Unemployment 
Insurance’s Claims Deputy ("Claims Deputy") was untimely. The Claims 
Deputy had determined that Hartman was not eligible for unemployment 
benefits. 

2. Hartman was employed by Wireless Castle, Inc. ("Wireless") 
from May 19, 2002 to May 31, 2003. Hartman filed for unemployment 
benefits June 6, 20031 claiming that she had been fired and "told not to come 
back." Wireless claims that Hartman voluntarily quit because her request 
for vacation was not approved. It is uncontested that the dispute between 
Hartman and Wireless occurred over her desire to take two weeks vacation. 

Hartman claims that in May 2003 her family "surprised" her with a 
vacation but when she requested the time off, Nodien Evans-Smith ("Evans-
Smith"), president of Wireless, denied her request and "wanted her to 
resign." Hartman claims that she told Evans-Smith that she "wanted to 
keep her job" and that she "never voluntarily left her job." When she 
refused to resign, Hartman claims that Evans-Smith became "very angry 
with [Hartman] and told her [her] that [she] couldn’t work there anymore." 
Evans-Smith testified that she denied the request in part because 
Hartman had taken a "surprise" vacation in April. Evans-Smith further 
testified that after denying Hartman’s request for vacation time, Hartman 
told her that "she would be going [on vacation] anyway no matter what and 
‘Should she leave now’." Evans-Smith said that she took Hartman’s words 
as an intention to resign and after discussing the terms of her resignation 
with her she expected a letter of resignation from Hartman on June 2, 2003. 
On June 2, Evans-Smith claims, Hartman told her that Wireless "were the 
ones who wanted her to resign so [they] should fire her." 

3. The Claims Deputy reviewed the facts of this case and issued a 
notice of determination on June 7, 2003. The question before the Claims 
Deputy was whether Hartman voluntarily resigned because her request for 
vacation was denied, or whether Wireless tried to force her to resign over 
her request for vacation time and then terminated her when she refused to 
resign. The Claims Deputy determined that Hartman had caused her own 
termination by insisting on taking an unapproved vacation. The 
determination was designated, by statute, to become final on June 27, 2003 
unless a written appeal was filed on or before that date.
 
Hartman filed her appeal with the Appeals Referee on July 7, 2003, 
ten days after the appeal deadline. Hartman asserts that she filed her appeal 
late because she "was on a family vacation for two weeks, and by the time 
[she] got back and went through the mail it was already too late to file the 
appeal." Hartman states that she had her mail held at the Post Office while 
she was on vacation and she did not pick up her mail until July 5. 
The Appeal Referee determined that the decision of the Claims 
Deputy, "based on the merits of the case, is final and binding due to 
claimant’s failure to file a timely appeal."15 The Appeal Referee also 
determined that an appeal could be taken solely to consider the issue of 
timeliness. 

The Appeals Referee held a hearing on the issue of the claimant’s 
timeliness of appeal on July 29, 2003. The Appeal Referee determined that 
under 19 Del. C. § 3318(b) Hartman had to file her appeal within the 
statutorily defined time, which is within 10 calendar days after the 
determination was mailed, or the decision of the Claims Deputy would 
become final. The Appeal Referee determined that there was no 
administrative error on the part of the Department of Labor to excuse the 
untimeliness of Hartman’s appeal.16 The Referee also determined that 
Hartman’s reason for not getting the decision until July 5, her family 
vacation, did not "excuse the filing of a late appeal."17 Because the appeal 
was filed after the statutorily defined deadline and Hartman’s reason for not 
filing on time did not constitute good cause, the decision of the Claims 
Deputy was affirmed. 

A review of the Appeal Referee’s decision was taken to the Division 
of Unemployment Insurance’s Appeal Board ("UIAB"). On August 13, 
2003, the UIAB affirmed the Appeal Referee’s decision and denied 
Hartman’s request for a further hearing. The UIAB found that ‘there was 
no error on the part of the Department [of Labor] which might have delayed 
[Hartman’s] response." The UIAB held that the Department had "properly 
fulfilled its responsibility by mailing the determination to [Hartman’s] 
address of record." The UIAB further held that Hartman’s admitted reason 
for filing the appeal late, her vacation, was personal choice and it agreed 
with the Appeal Referee that the reason did not constitute good cause for 
waiving the timeliness requirement. The UIAB concluded that the Appeal 
Referee had correctly held that Hartman’s late appeal of the Claims 
Deputy’s determination constitutes a "jurisdictional bar to further 
proceeding" pursuant to 19 De. C. § 3318(b). 

4. When this Court reviews a procedural decision of the UIAB, 
which in this case is a discretionary decision (as opposed to a factual 
decision of the UIAB that would require a substantial evidence review), the 
Court must consider whether the UIAB abused its discretion in rendering its 
decision.23 A procedural decision by an administrative agency is not an 
abuse of discretion "unless it is based on clearly unreasonable or capricious 
grounds" or "the Board exceeds the bounds of reason in view of the 
circumstances and had ignored recognized rules of law or practice so as to 
produce injustice." Absent an abuse of discretion, the Court must affirm 
the judgment of the UIAB.

5. In Lively v. Dover Wipes Co. this Court held that under 19 Del. 
C. §3318(b) if an employee fails to file an appeal of a disqualification 
determination within 10 days, then that determination becomes final.26 The 
Lively court also held that "[t]he time for filing an appeal is an express 
statutory condition of jurisdiction that is both mandatory and dispositive." 
Where the lateness of the appeal is due to the claimant’s unintentional or 
accidental actions, and not due to an administrative error, the Claims 
Deputy’s determination will become final and §3318(b) will jurisdictionally 
bar the claim from further appeal. 

In Funk v. UIAB, the Supreme Court held that the UIAB did not abuse 
its discretion in refusing to consider the substance of an untimely appeal sua 
sponte, which the UIAB may do pursuant to 19 Del C. § 3320.29 The UIAB 
had explained in its letter opinion denying benefits to the claimant in Funk 
that it was "extremely cautious in assuming jurisdiction [sua sponte when an 
appeal is filed late] and it does so only in those cases where there has been 
some administrative error on the part of the Department of Labor . . . or in 
those cases where the interests of justice would not be served by inaction" 
and that "such cases are far and few between." 

6. This Court affirms the UIAB’s decision affirming the Appeal 
Referee’s decision that Hartman’s appeal of the Claims Deputy’s 
determination was jurisdictionally barred because it was filed late to the 
UIAB pursuant to 19 Del. C. § 3318(b). Hartman in her appeal to the UIAB 
conceded that her appeal of the Claims Deputy’s determination was filed late 
because she was away on vacation and that her mail was held at the post 
office. Hartman, as the claimant, chose the timing of filing the claim and 
she therefore had control over the timing of when an appeal would be due. 
Hartman chose to file her claim before she left for vacation and thereby 
assumed the risk that an adverse decision could be entered against her. 
There is no evidence, nor has Hartman asserted, that there was any 
administrative error on the part of the Department of Labor in mailing the 
Claims Deputy’s determination to her and there were no circumstances that 
would require the UIAB to act in "interests of justice." 

7. The Court finds that the Unemployment Insurance Appeal Board 
did not abuse its discretion when it affirmed the determination of the Claims 
Deputy because Hartman’s appeal was filed late pursuant to 19 Del. C. § 
3318(b). The Court also finds that the UIAB did not abuse its discretion 
when it declined to act sua sponte pursuant to 19 Del. C. §3320 to consider 
the substance of the appeal because there were no circumstances that would 
require the UIAB to act in "interests of justice." The decision of the UIAB 
is AFFIRMED. 

IT IS SO ORDERED. 
________________________ 
Richard R. Cooch 
oc: Prothonotary 
cc: Tara Hartman, pro se 
Mary Page Bailey, Esquire, Deputy Attorney General, 
Attorney for the Unemployment Insurance Appeals Board 
Jeffrey K. Martin, Esquire, and Timothy A. Dillon, Esquire 
Attorneys for Wireless Castle, Inc.