SUPERIOR COURT 
OF THE 
STATE OF DELAWARE 

Re: Sheppard v. GPM Investments, LLC 

Dear Ms. Sheppard: 

You have appealed a decision of the Unemployment Insurance Appeal Board 
("Board") to this Court. You were required to file an opening brief on October 23, 2007 
and have failed to do so. You were advised that the appeal could be dismissed because of 
this failure under Superior Court Civil Rule 107(e). 

After review, your appeal is dismissed because you did not follow through with an 
opening brief. Further, even on the merits, the Court would still dismiss the appeal for 
the following reasons: 

You were employed as a cashier by GPM Investments, LLC ("Employer"). On 
March 2, 2007, your employer fired you for violation of company policies. Thereafter, 
you filed a claim for unemployment compensation. In the administrative proceedings 
before the Claims Deputy, the Employer was found to have just cause to terminate you. 
This was based on information that you violated the Employer’s policies by being rude to 
customers. The Deputy found that you were previously warned about this situation. 
Therefore, the Deputy ruled that you were not entitled to an award and mailed the 
decision on March 26, 2007. 

Under the law, you were required to file an appeal on or before Thursday, April 5, 
2007. However, you brought a letter to the agency on Monday, April 9, 2007, which was 
several days late. The Claim Deputy’s decision then became a final order that the 
Employer had just cause to terminate you. You appealed the decision to the Appeals 
Referee, and the issue then focused on your failure to file a timely appeal. The Referee 
determined that the Deputy’s decision was mailed to the correct address, 142-A Norwood 
Street, Rehoboth, DE 19971 (which is the address of record in the case). You claimed 
that you did not receive the mail from the mailbox until Saturday, April 7, 2007. You 
advised that there were past delays in the mail, and people sometimes would park in front 
of the mailbox. The Referee ruled that as you knew about these problems, it was your 
responsibility to pay closer attention to receive the mail. Further, as there was no error by 
the agency, that is, the mail was sent to your right address, the failure to file an appeal 
within the ten day period was fatal to your claim. 

The decision was appealed to the Board. You testified that 142-A Norwood Street, 
Rehoboth, was the correct address. Nothing in the transcript shows any error by the 
Department of Labor that prejudiced your right to appeal. The Board found that mail 
properly addressed and not returned as undeliverable is presumed to be received. Your 
late appeal of the Claim Deputy’s decision, therefore, was a jurisdictional bar to further 
proceedings. 19 Del.C. § 3318. 

DISCUSSION 

A procedural question is presented about the Board’s determination that the Claim 
Deputy’s decision was final and that the Referee was correct in refusing to accept your 
reasons as good cause to excuse the late filing. A discretionary ruling of the nature will 
be affirmed if the Board did not abuse its discretion. Hartman v. Unemployment 
Insurance Appeal Board, 2004 WL 772067, at *2 (Del. Super. Ct. Apr. 5, 2004). A 
procedural decision 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." Id. Absent abuse of discretion, the Board’s judgment must be affirmed. Funk 

v. UIAB, 591 A.2d 222, 225 (Del. 1991). 
The Superior Court has ruled that if an employee fails to file an appeal of a 
disqualification within 10 days, then the decision becomes final. Lively v. Dover Wiper 
Co., 2003 WL 21213415, at *1 (Del. Super. Ct. Mar. 16, 2003). 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." Id. Where the lateness of an appeal is due to the 
claimant’s inadvertent, unintentional or accidental actions and not due to an 
administrative error, the Claim Deputy’s determination will become final and § 3318(b) 
will jurisdictionally bar the claim from further appeal. Meacham v. UIAB, 2002 WL 
442168 (Del. Super. Ct. Mar. 21, 2002). 

Here, the Deputy mailed the decision to your correct address. "When notification . 
. . is made through the mail, the ten day period begins to run on the date of mailing unless 
the mailing fails to reach a party because of some mistake made by employees of the 
Department of Labor" (emphasis added). Funk, 591A.2d at 224. A properly addressed, 
posted, and mailed notice is presumed to be received by claimant, and mere denial of 
receipt of notice is insufficient to rebut this presumption. Robledo v. Stratus v. 
Unemployment Insurance Appeal Board, 2001 WL 428684, at *2 (Del. Super. Ct. Mar. 
27, 2001). 

In the proceedings below, you did not claim any error by the Claims Deputy. 
Rather, you said you received the mail on a Saturday and attempted to file an appeal on 
Monday which was too late. Yet, as the Supreme Court observed in Funk, "[i]t is 
reasonable to expect that a claimant awaiting an important decision from an appeal 
tribunal would regularly check the locations at which he receives his mail." Funk, 591 
A.2d at 226. The record does not show that you checked the mailbox every day or spoke 
to the postmaster about the importance of receiving the Deputy’s decision. You could 
have called the Deputy’s office about the claim. You claimed problems with mail 
deliveries which pre-existed this claim. Yet, beyond a conversation with the postmaster, 
you did not take other action like obtaining a mail box at the post office if the 
circumstances were a continuing problem as you claim. It also appears that you have 
received notice of your appeal rights from the Referee to the Board, from the Board to 
this Court and from this Court to you at the same address. 

Nonetheless, the Board could, by itself, have exercised discretion to hear your late 
appeal for good cause under 19 Del.C. § 3320. However, this discretion is cautiously 
exercised and is limited to ". . . only in those cases where there has been some 
administrative error on the part of the Department of Labor which deprived the claimant 
of the opportunity to file a timely appeal, or in those cases where the interests of justice 
would not be served by inaction. Such cases have been few and far between . . ." Funk, 
591 A.2d at 225. The Board did not abuse its discretion given your longstanding 
experience with problems in getting the mail for which the Department of Labor had no 
responsibility. 

In conclusion, there is a need for certainty and finality in litigation, and appeal 
deadlines serve an important function in our legal system. Holbrook v. Dep’t. of Labor, 
1995 WL 411389 (Del. Super. Ct. June 9, 1995) (ORDER). Admittedly, the deadline was 
not followed. Given the absence of severe circumstances to persuade the Board to excuse 
the tardiness, your appeal to the Court must be dismissed. 

IT IS SO ORDERED. 

Very truly yours, 

Richard F. Stokes