McKinley

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MICHAEL DENNIS MCKINLEY, ))
Appellant, ))
v. ) C. A. No. 04A-04-009-JEB
)
FIRST IMPRESSIONS, INC., and )
UNEMPLOYMENT INSURANCE )
APPEAL BOARD, ))
Appellee. )
Submitted: June 7, 2005
Decided: June 20, 2005
Appeal from a Decision of the Unemployment Insurance Appeal Board.
Affirmed.
OPINION
Appearances:
Michael Dennis McKinley, Pro Se, 15 Kent Drive, Hockessin, Delaware 19707.
First Impressions Inc., Unrepresented, P.O. Box 461, Hockessin, Delaware, 19707.
Mary Page Bailey, Esquire, Wilmington, Delaware.
Attorney for the Unemployment Insurance Appeal Board.
JOHN E. BABIARZ, JR., JUDGE

This is the Court’s opinion on an appeal of a decision of the Unemployment Insurance Appeal Board (“Board”) denying unemployment benefits to Claimant Michael D. M cKinley. For the reasons explained below, the Board’s decision is affirmed.

The only issue before the Court is the timeliness of Claimant’s appeal of a determination made by claim s deputy who determined that Claim ant was required to reimburse the Department of Labo r for an overpayment.1 The determination w as mailed to Claimant at his address of record and was not returned to the Department by the U.S. Post Office. According to statute,2 the last day to file an appeal of this decision was August 18, 2003, b ut Claim ant did n ot so file until November 4, 2003. An appeals referee held a hearing on the issue of timeliness of March 16, 2004. Claimant testified that he had been out of town when the initial determination was received and that he did not respond until he had received a second notice. The referee found this reason did not constitute good cause for waiving the time requirement and held that the claims deputy’s decision was final and binding. On appeal from that decision, the Board affirmed the referee’s decision and denied Claimant’s req uest for another hearing.

On appeal to this Court, Claimant argues that he was not terminated for just cause and that the amou nt of the ov erpayment is incorrect. These factual questions were not part of the proceedings leading to this appeal and a re not prope rly before the C ourt.3 The basis for the prior decisions was the lateness of Claimant’s appeal from the claims deputy’s determination, and this is the only question which the Court may consider on appeal. According to statute, the factual findings of the Board shall be conclusive if they are supported by substantial evidence, and the jurisdiction of this Cou rt is confined to questions of law.4 The Court finds that there is substantial evidence to support the Board’s conclusions that the Department appropriate ly mailed the determination to the Claimant’s address of record and that there was no evidence of error on the part of the Department which could have delayed Claimant’s response.5 The Court finds no and also that the Board correctly stated that mail properly addressed and not returned is presumed to have been received.6

For these reasons, the decision o f the Unemployment Insurance Appeal Board is affirmed.

It Is So ORDERED.

Judge John E. Babiarz, Jr.
JEB,Jr./rm/bjw