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

MARLENE ZICARELLI, ) 
 Appellant, ) 
v. ) 
BOSCOV’S DEPARTMENT ) 
STORE, LLC., ) 
 and ) 
UNEMPLOYMENT INSURANCE ) 
APPEAL BOARD, ) 
 Appellees. ) 

Submitted: March 17, 2008 
Decided: June 5, 2008 

Upon Appeal from a Decision of 
the Unemployment Insurance Appeals Board 

AFFIRMED. 

ORDER 

COOCH, J. 

This 5th day of June, 2008, upon consideration of Appellant’s Appeal 
from a decision of the Unemployment Insurance Appeals Board, it appears 
to the Court that: 

1. This is an appeal from a decision of the Unemployment Insurance 
Appeal Board ("the UAIB"). The issues are 1) whether the record confirms 
the finding that Appellant’s underlying appeal from a Claims Deputy 
decision was untimely filed; and 2) if so, whether the UAIB abused its 
discretion in declining to assume jurisdiction over the appeal, given the 
appeal’s untimeliness. Because the Court finds that the record confirms that 
Appellant’s appeal was untimely, and because the Court holds that the UAIB 
did not abuse its discretion in declining to assume jurisdiction, the Court 
affirms the decision of the UAIB. 

2. On March 21, 2007, a Claims Deputy denied Appellant 
unemployment benefits after finding that Appellant had voluntarily 
terminated her employment with her employer, Boscov’s Department Store, 
LLC., for personal reasons. The Claims Deputy sent a Notice of 
Determination to Appellant, dated March 21, 2007, which notice stated that 
the decision would become final after 10 days from the mailing of the 
notice, pursuant to 19 Del. C. § 3318(b). Appellant filed her appeal on April 
5, 2007. A Claims Deputy issued a decision on April 10, 2007, confirming 
that the March 21, 2007 decision was final and binding since Appellant had 
failed to timely file an appeal. 

Appellant then appealed from that decision, and on May 1, 2007, the 
parties presented their arguments on the issue of timeliness at a hearing 
before an Appeals Referee. At that hearing, Appellant testified that she had 
received the Notice of Determination on either March 25 or 26, 2007,1 and 
that she had intended to file an appeal by April 2, 2007, but that she could 
not because she was "sick with the flu" that day, and continued to be ill until 
April 5, 2007.2 Appellant further testified that she filed her appeal on April 
5, 2007.3 In a decision dated May 2, 2007, the Appeals Referee found that 
Appellant was late in filing her appeal, and affirmed the decision of the 
Claims Deputy.4 

 Appellant then appealed to the UAIB, claiming that "[e]ven with [her] 
illness [she] came within 10 days of mailing. The appeal date was on 
[Saturday, March 31, 2007]."5 On May 24, 2007, the UAIB affirmed the 
Appeals Referee’s decision, and held that the appeal of the Claims Deputy’s 
decision was jurisdictionally barred as untimely.6 Appellant now appeals 
from that UAIB decision. 

3. Appellant contends that she received the Notice of Determination 
letter on March 26, 2007, and that this was the applicable starting date for 
the 10 day period within which she had to file her appeal. Appellant argues 
that her appeal, filed on April 5, 2007, was therefore timely. 

 Appellees contend that, pursuant to 10 Del. C. § 3318(b), the 
applicable starting date for the 10 day period was the date the Claims Deputy 
mailed the Notice of Determination, March 21, 2007, and that the decision 
of the UAIB should be affirmed since Appellant’s appeal was untimely. 

4. The review of the UAIB’s factual finding is limited to determining 
whether there is substantial evidence on the record to support the UIAB’s 
finding and whether the finding is free from legal error.7 The standard of 
review for an administrative discretionary ruling is "abuse of discretion."8 

5. There was substantial evidence on the record to support the UAIB’s 
finding that Appellant’s appeal of the decision of the Claims Deputy was 
untimely. 10 Del. C. § 3318(b) provides, in pertinent part, that "[u]nless a 
claimant ... files an appeal within 10 calendar days after such Claims 
Deputy’s determination was mailed to the last known address of the claimant 
and the last employer, the Claims Deputy’s determination shall be final..." 
The language of the statute is unambiguous: the 10 day period begins at the 
time the Claims Deputy mails the Notice of Determination.9 The starting 
date for the 10-day period was March 21, 2007, the date of the Notice of 
Determination,10 and because the final day of the 10-day period fell on a 
Saturday, the ending date was Monday, April 2, 2007. Since Appellant did 
not, by her own admission, file her appeal until April 5, 2007, her appeal 
was untimely. Appellant’s argument as to the starting date is simply legally 
incorrect. 

 The UAIB did not abuse its discretion in declining to assume 
jurisdiction over the appeal. The UIAB has the authority to consider a late 
appeal, but this discretion should only be exercised "where there has been 
some administrative error on the part of the Department of Labor ... [or] 
where the interests of justice would not be served by inaction."11 Here, the 
UAIB found no such administrative error (nor does Appellant allege that 
there was any such error), and affirmed the Appeals Referee’s determination 
that Appellant’s alleged illness did not constitute "good cause for waiving 
the timeliness requirement."12 In fact, Appellant seems to have abandoned 
that argument, having failed to state anything about her alleged illness in 
both her opening brief and her reply brief. Thus, there is nothing to support 
an argument that there was an abuse of discretion in the UAIB’s decision. 

5. For the foregoing reasons, the decision of the Unemployment 
Insurance Appeals Board is AFFIRMED. 

 

IT IS SO ORDERED. 

 

 ________________________ 

 Richard R. Cooch