IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
ROSE HUNTER,
Appellant
v.
FIRST USA/BANK ONE,
and
UNEMPLOYMENT INSURANCE
APPEAL BOARD,
Appellees.
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) C.A. No.: 03A-05-005 PLA
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UPON APPELANT’S APPEAL FROM A DECISION OF
THE UNEMPLOYMENT INSURANCE APPEAL BOARD
REVERSED.
ORDER
Rose Hunter, Wilmington, Delaware, Pro Se, Appellant.
Employers Unity, Inc., Arvada, Colorado, Representative for First USA/Bank One,
Appellee.
Mary Page Bailey, Esquire, Attorney for Unemployment Insurance Appeal Board,
Appellee.
ABLEMAN, JUDGE
This Order, issued this 15th day of April, 2004, is in consideration of
Appellant’s pending appeal from the Unemployment Insurance Appeal Board’s
decision denying her benefits, and in further consideration of the Court’s January
9, 2004 Order instructing the New Castle County Office of the Prothonotary to
send an amended notice of appeal to the Appellee due to Appellee’s failure to
respond to the original mailed notice of appeal. Reference is made to that Order1
for a complete account of the chronological events, factual circumstances and
administrative agency proceedings leading up to the instant appeal.
Upon consideration of the Appellant’s petition pursuant to Title 19, Section
3323(a) of the Delaware Code, concerning an aggrieved party’s request for judicial
review by this Court of a final decision issued by the Unemployment Insurance
Appeal Board, and in consideration of Appellee’s failure to respond in furtherance
of the Court’s January 9, 2004 Order, it appears to this Court that:
1.) Rose Hunter ("Appellant") was employed as an imager clerk with
First USA/Bank One ("Appellee" or "Bank One") from November 2002 until
January 8, 2003. The Appellant was terminated for falsifying her September 11,
2002 job application. Appellant’s discharge stemmed from her answering "no" to
the question of whether she had ever been convicted of, or plead guilty to, an
offense other than a minor traffic violation. As part of its federally mandated
hiring procedures, Appellee performed a background check on Appellant. The
F.B.I. background investigation revealed that Appellant had been convicted of
issuing a bad check on February 5, 1986. Appellant contended that she was
unaware of the 1986 criminal charge.
2.) After her termination from Bank One, Appellant immediately filed for
unemployment compensation benefits. On February 6, 2003, the Claims Deputy of
the Delaware Department of Labor, Division of Unemployment Insurance, made
the determination that Appellant was disqualified from receipt of benefits. After
examining all the facts surrounding Appellant’s discharge, the Claims Deputy
concluded that Appellant had been discharged for just cause because Appellant’s
actions rose to a level of wanton or wilful misconduct.
3.) On February 21, 2003, Appellant timely filed an appeal from the
Claims Deputy’s decision. A hearing before an Appeals Referee of the Delaware
Department of Labor, Division of Unemployment Insurance, was conducted on
March 12, 2003. The Appellant testified before the Appeals Referee. Stu Tomkins,
the employer representative from Employers Unity, Inc., testified on behalf of
Appellee. On March 18, 2003, the Appeals Referee issued his decision, affirming
the decision of the Claims Deputy that Appellant was discharged for just cause and
was disqualified from receipt of unemployment benefits.
4.) On March 26, 2003, pursuant to 19 Del. C. § 3318, Appellant filed a
timely appeal from the Appeals Referee’s decision to the Unemployment Insurance
Appeal Board ("Board"). In lieu of a formal hearing, the Board conducted a
review of the evidence presented to the Appeals Referee, the Referee’s decision,
and the Appellant’s Notice of Appeal. The Board issued its decision on April 16,
2003, affirming the decision of the Appeals Referee. The Board’s decision became
final on May 5, 2003. On May 7, 2003, Appellant filed a timely notice of appeal
from the Board’s decision to this Court.
5.) By letter, dated May 29, 2003, the Board notified Appellee that the
Appellant had appealed from the Board’s decision and enclosed a copy of the
appeal with the notice. By letter, dated June 30, 2003, the Prothonotary’s Office
notified Appellee that the appeal was ready for briefing and that Appellee must be
represented by local counsel in this Court in order to respond to Appellant’s
opening brief. The letter instructed Appellee to have its attorney file an entry of
appearance with the Court. By letter, dated June 30, 2003, the Prothonotary’s
Office also notified Appellee that its answering brief was due by August 11, 2003.
All letters were addressed to Appellee, c/o its representative, Employers Unity,
Inc., P. O. Box 749000, Arvada, Colorado 80006. Appellee failed to respond to
any of the letters and/or notices.
6.) Appellant timely filed her opening brief on July 21, 2003.
Subsequently, the Prothonotary’s Office mailed a Final Delinquent Brief Notice to
Appellee at the same address above, notifying Appellee that it must have its
attorney file an entry of appearance with the Court and that its answering brief was
overdue. Pursuant to Rule 107(e), the Court issued its Order, dated September 15,
2003, stating that, since no further action of record had been taken and no further
information had been provided, the Court would make its determination of the
issue on the papers that had been filed.
7.) In its January 9, 2004 Order, the Court denoted that a significant
clerical error may have been made in the mailing process, potentially resulting in
Appellee never receiving any type of notification of the appeal. The record
indicates that, from the time that the Appellant appealed the Claims Deputy’s
decision, Employers Unity, Inc. has represented the Appellee. All correspondence,
notices and transmittals sent to Appellee during the entire pre-appeal and post-
appeal proceedings have been sent to Appellee, c/o its representative, Employers
Unity, Inc., P. O. Box 749000, Arvada, Colorado 80006.
Specifically, the record reflects that, Stu Tomkins, the hearing representative
from Employers Unity, Inc., was the duly authorized representative for Bank One.
The record also designates that Stu Tomkins maintains a contact address of:
Employers Unity, Inc., Lower Level Suite 10, 115 W. State Street, Media,
Pennsylvania 19063. A review of the transcript of the hearing indicates that Stu
Tomkins was present at the hearing at all times and actively represented the
interests of Appellee. Also, the initial appearance in the record of the "Arvada,
Colorado" address for Appellee is found in the May 29, 2003 letter from the Board
to Appellee informing Appellee of the appeal. All future correspondence to
Appellee utilized this address. In its January 9, 2004 Order, the Court opined that,
based on Stu Tomkins’ involvement on behalf of Appellee during the appeals
process, all notices and correspondence should have been more properly sent to
Mr. Tomkins at the local Employers Unity, Inc.’s office located in Media,
Pennsylvania. The Court believed that there existed some potential confusion and
miscommunication surrounding Appellee’s lack of response to the appeal process
because the Prothonotary’s Office may have been sending all letters and notices to
the Appellee at an incorrect address.
8.) Pursuant to the Court’s January 9, 2004 Order, the Prothonotary’s
Office sent an amended notice of appeal, via certified mail return receipt requested,
to Appellee, c/o Mr. Stu Tomkins, Employers Unity, Inc., Lower Level Suite 10,
115 W. State Street, Media, PA 19063.2 The returned certified mail receipt green
card indicates that Employer’s Unity, Inc. received the amended notice of appeal
on January 20, 2004. It was signed by Sally Baraka, on behalf of Employer’s
Unity, Inc. As of the date of this Order, neither Employer’s Unity, Inc., nor Bank
One, has responded to the amended notice of appeal. No entry of appearance has
been entered on behalf of Appellee, or on behalf of Appellee’s representative, nor
has either filed an answering brief with the Court.
9.) In its January 9, 2004 Order, the Court made note that "it is the
Court’s opinion that the entry of a default judgment against Appellee would not be
appropriate. The instant case is distinguishable from those cases in which an
employer has failed to appear at a Board hearing and the Board dismisses the case
for failure to diligently prosecute."3 Likewise, as the Court contended, "[i]n
Gorrell v. Division of Vocational Rehabilitation, this Court held that an entry of
default judgment by the Court is not appropriate on an appeal from an
administrative agency."
With these legal precepts in mind, the Court seeks guidance in this matter
within the legal parameters established by our own Superior Court Civil Rules.
Rather than enter an order of default judgment, Superior Court Civil Rule 72(i)
provides that the Court may, "sua sponte, or upon a motion to dismiss by any
party," order an appeal to be dismissed. The grounds for ordering a dismissal
include untimely filing of an appeal, appealing an unappealable interlocutory
order, failing to diligently prosecute the appeal by a party, failing to comply with
any rule, statute or order of the Court, or for any other reason deemed by the Court
to be appropriate. In light of the circumstances that have unfolded before the
Court, it has become evident to the Court that, for whatever unidentified reason,
Bank One has failed to diligently prosecute the appeal in this case. Even after the
Court afforded the Appellee an additional opportunity to respond by requesting
that Appellee’s representative be served with an amended notice of appeal, almost
three months have elapsed, and Appellee still has not responded to Appellant’s
notice of appeal from the Board’s decision.
At the time the Court penned its January 9, 2004 opinion, it believed that to
dismiss the appeal, predicated on Appellee’s failure to diligently prosecute the
appeal, would not be an equitable resolution. Citing to Gorrell, this Court
previously noted that "[t]o issue an order of dismissal would ‘preclude Claimant
from obtaining a review of this matter.’"6 This Court further advocated that,
"[b]ased on the principles underlying the objectives of equitable justice and finality
of judgment, to dismiss the appeal without attempting to notify the Appellee of the
existence of the appeal at an alternative address, would be inequitable." In
consideration of Appellee’s inexplicable failure to actively pursue a response to
Appellant’s appeal, and in recognition of the Court’s attempts to serve the
principles of equity and equality under the law, the Court still finds that a dismissal
of Appellant’s appeal would be an unsatisfactory panacea to the dilemma presently
before the Court.
The nature and scope of Super Court Civil Rule 72(i) is structured to apply
to appeals before this Court, initiated by an aggrieved party, from a decision of an
administrative board, commission, court, etc. Rule 72(i) addresses the causality
and remedial aspects of an ultimate dismissal in terms of its impact on an
appellant, or moving party, who is directly affected by having the appeal
dismissed, but does not fully address those instances when the adverse, or
accountable party, is an appellee. Rule 72(i) provides for an appellant who may
request a voluntary dismissal, a stipulated voluntary dismissal with court approval,
or a court ordered dismissal, in this case, to the detriment of the Appellant.
In other words, to dismiss Appellant’s action, not because of any related
culpability on her part, but because Appellee failed to pursue a conscientious
prosecution of the appeal, would be counterintuitive and provide an inequitable
outcome for the Appellant. Denial of a dismissal was appropriate, for example, in
Church v. Ferguson, when the Court denied the employee’s request to dismiss the
employer’s appeal for allegedly being untimely filed. The Court found that,
pursuant to 19 Del. C. § 3323(a), the employer had timely filed a notice of appeal
from the Board’s decision to award benefits to the appellant, as a result of the
employer having failed to appear at the Board hearing.
In view of Rule 72(i)’s limited applicability, Superior Court Civil Rule 107,
when considered in tandem with Rule 72, provides the Court with the most
appropriate remedy to address a non-responsive appellee. In essence, Rule 107(e)
provides that "if any brief, . . . or any other paper which is or should be a part of a
case pending in this Court, is not served and filed . . . in accordance with any order
of the Court . . . , the Court may, in its discretion, dismiss the proceeding if the
plaintiff is in default, . . . , or take such other action as it deems necessary to
expedite the disposition of the case." Thus, it is evident to the Court that Rule
107(e) inextricably vests in the Court the power to reverse the Board’s decision for
failure of the Appellee to file its answering brief. With this in mind, it would
prove meaningful in the instant case for the Court to first substantiate its requisite
jurisdictional control to consider Appellant’s appeal and the ensuing
circumstances, in order to find in favor of a reversal of the Board’s decision.
Judicial review of a Board finding "shall be permitted only after any party
claiming to be aggrieved thereby has exhausted all administrative remedies." A
hearing before the Board is the final administrative remedy. In light of the fact
that the Board’s decision became final on May 5, 2003, the appeal has progressed
beyond the jurisdiction of the Board. With regard to the Court’s permitted
standard of review, the Delaware Supreme Court, and this Court, repeatedly have
emphasized the limited appellate review of factual findings of an administrative
agency. The function of the reviewing Court is limited to determining whether
substantial evidence supports the Board’s decision regarding findings of fact and
conclusions of law and is free from legal error. Substantial evidence is that
evidence from which an agency fairly and reasonably could reach the conclusion it
did. It is more than a scintilla but less than a preponderance.18 When reviewing a
decision on appeal from an agency, the Superior Court does not weigh the
evidence, determine questions of credibility, or make its own factual findings.19
The Court’s responsibility is merely to determine if the evidence is legally
adequate to support the agency’s factual findings.20 If the agency or Board’s
decision is supported by substantial evidence, the Court must sustain the decision
of the Board, even though it would have decided otherwise had it come before it in
the first instance.
It is not within the prerogative of this Court to disturb lower court verdicts
where there is competent evidence upon which their findings could reasonably be
predicated.22 Similarly, where some evidence supports an administrative finding,
the Superior Court will not substitute its judgment in the matter for that rendered
by the administrative body.23 Concomitantly, in the absence of some constitutional
or statutory violation, the Superior Court will reverse an administrative decision
only when it is shown that the administrative body from which the appeal was
taken abused its discretion.24
In Appellant’s case, there is no evidence that the Board abused its discretion.
The Claims Deputy, Appeals Referee, and the Board, all concluded that Appellant
had been discharged for just cause because Appellant’s purported act of
intentionally falsifying her employment application rose to a level of wanton or
willful misconduct. This Court has consistently held that, where an employee
intentionally (versus inadvertently) and falsely states she has never been convicted
of a crime on an employment application, the false statement constitutes just cause
for termination.25 Hence, it appears that the Board found that there existed
substantial evidence to formulate its decision that the Appellant acted willfully,
and with a wanton disregard. Normally, this Court’s duty ends here, and need not
go any further upon a finding of substantial evidence to substantiate the Board’s
decision. But, in this case, the Court finds that there exists a significant violation
of a statutory precept, in this instance, its own Civil Rule 107(e). Therefore,
despite the formidable "substantial evidence" found to exist by the Board, the
Court has no other alternative but to reverse the Board’s decision due to Appellee’s
failure to diligently prosecute and file its brief pursuant to Rule 107(e).
Notwithstanding these findings, the Court is not unsympathetic or callous in
adjudging the Appellee, as the Court finds that it has fulfilled Appellee’s
expectations of due process rights. Due process requirements mandate that in any
appeal from an administrative agency, the Court must make certain that the agency
action satisfies the constitutional requirements of due process, i.e., procedural due
process of law. Procedural due process requires that "[p]arties whose rights are to
be affected[,] are entitled to be heard; and in order that they may enjoy that right[,]
they must first be notified."26 Parties must be adequately, properly, and lawfully
notified of agency actions that affect, or will affect, their rights, privileges, and
immunities.27 It is also essential that the right to "notice" must be granted at a
meaningful time and in a meaningful manner.28 The Court, and the Prothonotary’s
Office, have made considerable efforts to provide notice to the Appellee.
Additionally, it is an undeniable fact that Appellee’s representative did receive
amended notice of the appeal. Thus, procedural due process has been aptly served.
Unfortunately, this is one of those rare instances when a party’s unexplained
inaction proves both disadvantageous to its cause, and results in a windfall for its
adversary.
For the foregoing reasons, the May 5, 2003 decision of the Unemployment
Insurance Appeal Board denying unemployment benefits to the Appellant is
hereby REVERSED.
IT IS SO ORDERED.
Peggy L. Ableman, Judge
cc: Rose Hunter
Stu Tomkins, Employers Unity, Inc.
First USA/Bank One
Mary Page Bailey, Esquire
Prothonotary