IN THE SUPERIOR COURT OF TH E STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

SHARI JOHNSON, )

) Appellant, )

) v. ) C. A. No. 04A-01-002-JEB

) PERFORMANC E STAFFING , and ) UNEMPLOYMENT INSUR ANCE ) APPEAL BOARD, )

) Appellee. )

Submitted: June 3 , 2004

Decided: July 29 , 2004

Motion to Dismiss an Appeal from a Decision of the Unemployment Insurance

Appeal Board. Granted

OPINIO N Appearances : Shari Johnson, Pro Se , 145 Honeywel l Drive, Cla ymont, Dela ware, 19703. Sean A. Dolan, Esquire, Wilmington , Delaware. Attorney for Pe rformance St affing.

Mary Page Bailey, Esquire, Wilmington, Delaware. Attorney for Une mployment Insurance Appe al Board.

JOHN E. BABIARZ, JR. , JUDGE

The Delaware Unemployment Insurance Appeal Board ("Board") has moved to dismiss Claimant Shari Johnson's appeal from the Board's dec ision den ying her petition for unemploy ment benefits. The Board contends that th is Co urt has no jurisdiction over the mat ter bec ause Claimant 's appeal was not timely fil ed. The Court agrees and co ncludes that the appe al must be dism issed.

On November 12, 2003, the Board held a hearing to determ ine whethe r Claimant was entitled to une m ployment benefits following termination of her employm ent with Performance Staffing. The Board concluded that Claimant left her job voluntarily and w as therefore not e ntitled to benefits. The decision was s ent to

Cl aima nt by first class m ail on November 21, 2003, at the addr ess provided by Claimant. The decision also stated that it became final on December 1, 2003, and that an appeal had to be filed within 10 days of the final date. T hus, Claimant had until December 15, 2003, to file a t im ely noti ce of appeal. Cla imant filed her notice on January 5, 2004.

Pursuant to D EL . C ODE A NN . tit. 19, $ 3323(a) , "[w ]ithin ten days after the decision of the Unemployment Insurance Appeal Board has become final, any party aggrieved thereby ma y secure judic ial review there of by comm encing an action in the Superior Court in the county in which the claimant resides." Claimant failed to m eet

this statutory requir ement.

Claimant contends that she never receive d a copy of the Bo ard's decision. 1

Hopkins v. Unemployment Ins. Appeal Bd. , 1994 WL 680076 (Del. Super.).

2

Klossowski v. Letica Corp., 1994 WL 710943 (Del. Super.).

However, the decision was m ailed to Claimant's address of record , the same add ress Claimant provided on all of her paperwork. The decision was no t returned by the U.S. Post Office to the Delaware Department of Labor. There is a legal p resumption

that properly a ddressed mail i s received by th e addressee, and the addressee's mere denial of receipt of the do cument is insuff icient to rebut the pr esumption.

1

The filing

of a timely notice of appeal is a jurisdictional matter, and this Court has previous ly held that it cannot make exceptions even for pro se litigants on this issue.

2

For the above stated reasons, the Boar d's motion to dis miss is Granted . It Is So ORDERED.



Judge John E. Babiarz, Jr.

JEB,jr./ram/bjw Original to Prothonotary