IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 
IN AND FOR NEW CASTLE COUNTY 

KENNETH R. SILVA, ) 
 Employee-Appellant, ) 
v.
CASSIDY PAINTING INC., ) 
 Employer-Appellee ) 

Date Submitted: January 29, 2008 
 Date Decided: May 22, 2008 

O R D E R 

Upon Appeal of the Decision of the Unemployment Insurance Appeal 
Board. REVERSED and REMANDED. 

JURDEN, J 

I. INTRODUCTION 

Employee appeals the decision of the Unemployment Insurance 
Appeal Board that he is ineligible for unemployment benefits. He disputes 
the Board’s finding that he voluntarily quit his job and claims that he was 
terminated without cause. For the reasons set forth below, the decision of 
the Board is reversed and remanded for further consideration. 

II. BACKGROUND 

Kenneth R. Silva ("Silva") worked as a mechanic for Appellee 
Cassidy Painting Inc. ("Cassidy Painting") from April 5, 2005 to April 12, 
2007. He was a full time employee and earned $20 an hour. On April 12, 
2007, he was involved in a verbal altercation with his supervisor, John 
Desmond ("Desmond") after Desmond told him to drive downstate to 
complete a service job. Silva was upset because it was the end of the day 
and he had plans to take his daughter to her baseball game. Silva became 
disgusted and ripped his jumper wires out of the unit that he was working 
on. In the process, his tools dropped to the ground. Desmond asked Silva 
why he was upset and a verbal argument ensued. While holding a 
screwdriver, Silva told Desmond that he was messing with the wrong 
"mother f*er." Desmond told Silva to call his wife to pick him up because 
he was not permitted to drive the company truck home. Silva contacted his 
son who gave him a ride home. Silva claims that he was under the 
impression that he was either suspended or terminated from his job. 

After Silva did not return to work the following day, Desmond called 
and told him to pick up his tools. Silva then called Desmond’s supervisor, 
David Deal ("Deal"). Deal told Silva that he thought he had walked off the 
job. The next day, Silva called the owner of Cassidy Painting, Michael 
Cassidy ("Cassidy"), and left him a message explaining that he did not quit 
and that he wanted to talk to him about the incident. Cassidy did not return 
Silva’s phone call. 

On Monday, April 16, 2007, Silva picked up his tools from Cassidy 
Painting. The next day he filed a claim for unemployment benefits with the 
Delaware Department of Labor.1 On May 5, 2007, a Claims Deputy 
determined that Silva was entitled to unemployment benefits because he was 
terminated without just cause.2 Cassidy Painting immediately filed an 
appeal and a hearing was held before an Appeals Referee. On June 12, 
2007, the Appeals Referee reversed the decision of the Claims Deputy and 
held the Silva was terminated for just cause and therefore was not entitled to 
unemployment benefits.3 Silva appealed the Referee’s decision to the 
Unemployment Insurance Appeal Board ("Board"). On July 18, 2007, after 
a hearing, the Board upheld the Referee’s decision to deny benefits but on 
different grounds. The Board held that Silva voluntarily quit his job without 
good cause and therefore was not entitled to unemployment benefits. Silva 
appealed the Board’s decision on August 7, 2007. 

III. STANDARD OF REVIEW 

In reviewing a decision on appeal from the Board, this Court must 
determine if the decision is supported by substantial evidence and is free 
from legal error.4 Substantial evidence means such relevant evidence as a 
reasonable mind might accept as adequate to support a conclusion.5 On 
appeal, the Court does not "weigh the evidence, determine questions of 
credibility, or make its own factual findings."6 The Court will only reverse 
a decision of the Board if its findings are not supported by substantial 
evidence, or where the Board has made a legal mistake.7 

IV. ISSUE 

The issue on appeal is whether the Board's holding that Silva 
voluntarily quit his job is supported by substantial evidence and free from 
legal error. 

V. DISCUSSION 

The Board’s findings of fact are supported by substantial evidence. 
There is substantial evidence in the record to support the Board’s findings 
that Desmond told Silva to call his wife for a ride home, that Silva assumed 
that he was either suspended or fired and that Silva did not return to work 
the following day. The Board found that even though Silva was under the 
impression that he was suspended or fired, he had a duty to return to work 
and confirm the status of his employment. Because he failed to do so, the 
Board found that Silva voluntarily quit his job. The Court takes no issue 
with the Board’s finding of facts, but rather with its legal conclusion. 

Whether a factual situation amounts to a voluntary termination of 
one’s job is a question of law subject to review by the Court.8 "The phrase 
‘voluntary quitting’ means leaving on one’s own motion, as opposed to 
being discharged."9 Furthermore, the employee must have had a conscious 
intention to leave or terminate the employment.10 

In this case, the evidence presented does not establish a conscious 
intention by Silva to leave or terminate employment. The Board found as a 
fact that Silva was under the impression that he was suspended or fired. 
That finding negates the element of conscious intent to quit. 

Consequently, the Court finds that the Board erred as a matter of law 
in holding that Silva voluntarily quit his job. This reversal has the effect of a 
finding that Silva was discharged and therefore is presumptively entitled to 
benefits. The Court remands this matter so that the Board can determine 
whether Silva was terminated for just cause. 

NOW, THEREFORE, IT IS ORDERED that the decision of the 
Unemployment Insurance Appeal Board is REVERSED and this matter is 
REMANDED for further proceedings consistent with this order. 

 ____________________ 

 Jan R. Jurden, Judge