Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:04-cv-01524-GMS

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Exhibit B

Case 1:04-cv-01524-GMS

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Not Reported in F.Supp.2d 200 2 W L 15 868 91 (D.D el.) (Cite as: 2002 W L 158 6891 (D .Del.))

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Only the Westlaw citation is currently available.

United States District Court, D. Delaware. In Re: BCI P ANC AKE HO USE et al., Debtor. BC I PA NC AK E H OU SE et al., Appellant, v. MOR RIS, JAM ES, HIT CH INS & W ILLIAM S, et al., Appellee. No. 95-2 05 (JK F), 95-206 (JKF ), 95-207(JK F), 95-208(JKF), 02-97-GM S, 96-198. June 18, 2002. MEMORANDUM AND ORDER SLEET, District J. I. INTRODUCTION *1 On November 7, 1996, the appellants, BCI Pancake House, Inc., Blue Coat Inn, Inc., Patriot Enterprises LLC, and Hosp itality Organizational Managem ent Enterprises, Inc. (co llectively, "BCI"), filed the above-captioned adversary proceeding alleging legal malpractice. In an order entered on November 27, 2001, Judge Fitzgerald concluded that: (1) the law firm defenda nts, Mo rris, James, H itchens and W illiams, did not commit malpractice, and (2) the alleged conduct of the defendants was not the proximate cause of any harm to the plaintiffs. The Clerk of the District Court docketed BCI's appeal on February 6, 2002. On June 3, 2002, the court dismisse d the appe al for failure to prosecute. Presently before the court is BCI's motion for reconsideration of the court's June 3, 2002 order. For the following reasons, the court will deny this motion. II. STANDARD OF REVIEW As a general rule, motions for reconsid eration shou ld

be granted only "sparingly." See Karr v. Castle, 768 F.Supp. 1087, 1090 (D.Del.1991). In this district, these types of mo tions are only granted if it appears that the court has patently misunderstood a party, has a made a decision outside the adversarial issues presented by the parties, or has made an error not of reasoning, but of app rehension. See, e.g., Shering Corp. v. Am gen , Inc., 25 F.Supp.2d 293, 295 (D.Del.1998); Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D.Del.1990) (citing Above the Belt, Inc. v. Mel Bonhannan Roofing, Inc., 99 F.R.D. 101 (E.D.Va.1983)); see also Karr, 768 F.Supp. at 1090 (citing same). Moreove r, even if the court has co mmitted one of these errors, there is no need to grant a motion for reconsideration if it wo uld not alter the court's initial decision. See Pirelli Cable Corp. v. Ciena Corp ., 988 F.Supp. 424, 455 (D.Del.1998). III. DISCUSSION On June 3, 2002, the court entered an order dismissing the present action for failure to prosecute. In support of that order, the court noted that BCI had failed to file its opening brief within fifteen days of the date the appeal was docketed. Nor had BCI sought an extension of time in which to file its brief. Moreover, although BCI's brief in opp osition to the motion to dism iss for failure to prosecute was due on M ay 24, 200 2, it failed to timely file that brief as well. Finally, the court found that dismissal was warranted because BCI had a history of indifference to its obligation to the court and the Bankrup tcy Co urt. BCI now requests that the court reconsider its order for two reasons. First, BCI ma intains that it addressed the motion to dismiss for failure to p rosec ute by way of a declaration in opposition which was docketed on June 1, 2002. Second, BCI argues that the attorney of record, Henry A. Heiman, (" Heiman" ), has been ill and unable to assist the lead counsel, Gregory A. Sioris ("Sioris"), in the prosecution of this appeal. Based on these facts, BCI now requests that the court reopen the appeal. It further requests that the court place the appeal on an indefinite stay until such time as H eiman is able to

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proceed with the ap peal. [FN1] The c ourt will address each of these contentions in turn. FN1. Sioris and H eiman estimate that they will be prep ared to file BCI's brief in thirty to sixty days. They further suggest that they will inform the cou rt when they can actually proceed. *2 The court does not dispute that BCI filed an untimely opp osition to the motion to d ismiss for failure to prosecute. Nor does the co urt dispute that it was unaware that BCI planned to file this opposition at the time it began the process of granting the m otion to dismiss. Nevertheless, even had the court become aware of the declaration in time to halt its decision-making process, the court's initial decisio n wou ld rem ain unchanged. Specifically, the declaration fails to adeq uately address BCI's procedural defaults in this case. Indeed, the declaration merely states that, because Heiman has become "indisposed" due to a medical condition, he was unable to assist Sioris in the tim ely prosecution of the appeal. It further states that, had the court issued a scheduling order, Sioris would have contacted the court regarding Heiman's condition. The court concludes that neither of these arguments explain Heiman's and Sioris' absolute failure to contac t the court for ap proximately four months. Of particular concern to the court in this regard is Sioris' attempt to place the onus on the court to contact the parties. Bankrup tcy Rule 8009 is clear on the time limitations for filing opening briefs on appeal. Nowhere in that unambiguous language does it allow for the parties to unilaterally de cide to ignore its mandates. See In re Stephenson, 1996 U .S. Dist. LEX IS 1774, *4 (S.D.N.Y. Feb. 20, 1996 ) (rejecting the argument that waiting for a scheduling order mitigated failing to adhere to Rule 8009's filing requirements). Thus, the uncontested fact remains that BCI has failed to file its opening brief, in a timely fashion or otherwise. It further failed to timely file its brief in opposition to the motion to dismiss. The court will not now sanction BCI's utter disregard for the court's time and docket management concern by perm itting it to continue to execute untimely filings at its convenience.

Accordingly, beca use co nsideration o f BC I's untimely declaration would not have changed the court's ruling, the court declines to vacate its June 3, 2002 order on this ground. See Pirelli, 988 F.Supp. at 445. BCI next urges the court to reconsider its ruling solely because Heima n has been ill and thus unable to assist the lead counsel in preparing the case. However, as discussed above, Heiman and Sioris had an affirmative duty to inform the court of these circumstances and to request an extension of time in which to file BCI's opening brief. Instead, Heiman and Sioris o pted to wait for approximately four months before contacting the court. [FN2] Regardless of Heiman's ill health, the court will not put its imprimatur on such behavior. FN2. Furthermore, in his May 28, 2002 and June 14, 2002 declarations, Sioris fails to address why he, as lead counsel in this case, was unable to fulfill his obligation as an attorney without Heiman's aid. IV. CONCLUSION For these reasons, IT IS HER EB Y O RD ER ED that: 1. BCI's motion for reconsideration (D.I.1 5) is DENIED. 200 2 W L 15 868 91 (D.D el.) END OF DOCUMENT

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Case 1:04-cv-01524-GMS

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Not Reported in A.2d 200 4 W L 83 871 5 (D el.Sup er.) (Cite as: 2004 W L 838 715 (D el.Super.))

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proceed ings lead ing up to the instant app eal. Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. FN1. Hunter v. First USA/Bank One, 2004 W L 24 957 8 (D el.Sup er.Ct.). Upo n consid eration of the A pp ellant's petition pursuant to Title 1 9, Section 3 323 (a) of the Delaware Code, concerning an aggrieved party's request for judicial review by this Court of a final decision issued by the Unemp loyment Insurance A ppe al Board, and in consideration of Ap pe llee's failure to re spond in furtherance of the Court's January 9, 20 04 O rder, it app ears to this Court that: 1.) Rose Hunter ("Appellant") was employed as an imager clerk with First USA/Bank One ("Appellee" or "Bank One") from November 2002 until January 8, 2003. The Appellant was terminated for falsifying her September 11 , 200 2 job application. Ap pe llant's discharge stemmed from her answering "no" to the question of whether she had ever been convicted of, or plead guilty to, an offense other than a minor traffic violation. As part of its federally mandated hiring procedures, Appellee performed a background check on Appellant. The F.B.I. background investigation revealed that Ap pellant had been convicted of issuing a bad check on February 5, 1986. Appellant contended that she was unaware of the 1986 criminal charge. 2.) After her termination from B ank One, App ellant imme diately filed for unemploym ent compensation benefits. On Fe bruary 6, 20 03, the Claim s Deputy of the Delaware Department of Labor, Division of Unemp loyment Insurance, made the determination that Appellant was disqualified from receipt of benefits. After examining all the facts surrounding Appellant's discharge, the Claims Deputy concluded that Appellant had been discharged for just cause because A pp ellant's actions rose to a level of wanton or wilful misconduct. 3.) On February 21, 2003, Appellant timely filed an appeal from the Claims Deputy's decision. A hearing before an Appeals Referee of the Delaware Department of Labor, Division of Unemployment Insurance, was

Superior Court of Delaware. Rose HUNTER , Appellant v. FIRST USA/BAN K O NE, and U nemployment Insurance A ppeal Board , Appe llees. No. 03A-050005PLA. April 15, 2004. Upon Appelant's Appeal from a Decision of the Unemployment Insurance Appeal Board. Reversed. Rose Hunter, Wilmington, Delaware, Appellant, pro se. Employers U nity, Inc., Arvada, Co lorado, for First USA/Bank One, Appellee. Mary Page Bailey, for Unemployment Insurance Appeal Board, Appellee. ORDER ABLEM AN, J. *1 This Order, issued this 15th day of April, 2004, is in consideration of Appellant's pending appeal from the Unemp loyment Insurance Appeal Board's decision denying her benefits, and in further consideration of the Cou rt's January 9, 2004 Order instructing the New Castle County Office of the P rotho notary to send an amended notice of appeal to the Appe llee due to App ellee's failure to respond to the original mailed notice of appeal. Reference is made to that Order [FN1] for a complete account of the chronological events, factual circumstances and administrative agency

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conducted on March 12, 2003. The Appellant testified before the App eals Referee. Stu Tom kins, the employer representative from Employers Unity, Inc., testified on behalf of Appellee. On M arch 1 8, 20 03, the App eals Referee issued his decision, affirming the decision of the Claims Deputy that Appellant was discharged for just cause and was disqualified from receipt of unemp loyment ben efits. 4.) On March 26, 2003, pursuant to 19 Del. C. § 3318, Appellant filed a timely ap peal from the App eals Referee's decision to the Unemployment Insurance Appeal Board ("B oard"). In lieu of a formal hearing, the Board conducted a review of the evidence presented to the A pp eals R eferee, the R eferee's decision, and the App ellant's Notice of Appeal. The B oard issued its dec ision on April 16, 2003, affirming the decision of the Appeals Referee. The Board's decision became final on May 5, 2003. On May 7, 2003, Appellant filed a timely notice of appeal from the Board 's decision to this Court. *2 5.) By letter, dated May 29, 2003, the Board notified Appellee that the Appellant had appealed from the Board's decision and enclosed a copy of the appeal with the notice. By letter, dated June 30, 200 3, the Prothon otary's Office notified Appellee that the appeal was ready for briefing and that Appellee must be represented by local counsel in this Court in ord er to respond to Appellant's opening brief. The letter instructed Appellee to have its attorney file an entry of appearance with the Court. By letter, dated June 30, 200 3, the Prothonotary's Office also notified Appellee that its answering brief was due by August 11, 2003. All letters were addressed to App ellee, c/o its representative, Employers Unity, Inc., P.O. Box 749000, Arvada, Colorado 80006. Appellee failed to respond to any of the letters and/or no tices. 6.) Appellant timely filed her opening brief on July 21, 2003. Subsequently, the Prothonotary's Office mailed a Final Delinquent Brief No tice to Appellee at the same address above, notifying Appellee that it must have its attorney file an entry o f appearan ce with the Court and that its answering brief was overdue. Pursuan t to Rule 107(e), the Court issued its Order, dated September 15, 2003, stating that, since no further action of record had

been taken and no further information had been provided, the Co urt would make its determination of the issue on the papers that had been filed. 7.) In its January 9, 2004 Order, the Court denoted that a significant clerical error may have been made in the mailing process, potentially resulting in Appellee never receiving any type of notification of the appeal. The record indicates that, from the time that the Appellant appealed the Claims Deputy's decision, Employers Unity, Inc. has represented the A ppe llee. All correspondence, notices and transmittals sent to Appellee during the entire pre-appeal and post-appeal proceedings have been sent to A ppe llee, c/o its representative, Employers Unity, Inc., P.O. Box 749000, Arvada, Colorado 80006. Specifically, the record reflects that, Stu To mkins, the hearing repre sentative from E mplo yers U nity, Inc., was the duly authorized representative for Bank One. The record also designates that Stu To mkins maintains a contact address of: Employers Unity, Inc., Lower Level Suite 10, 115 W. State Street, Media, P ennsylvania 19063. A review of the transcript of the hearing indicates that Stu Tom kins was present at the hearing at all times and actively represented the interests of Appellee. Also, the initial appearance in the record of the "Arvada, Colorado" add ress for Appellee is found in the May 29, 2003 letter from the Board to Appellee informing App ellee of the appeal. All future correspondence to Ap pellee utilized this a ddress. In its January 9, 2004 O rder, the Court opined that, based on Stu Tomkins' involvement on behalf of Appellee during the appeals process, all notices and correspondence should have been more pro perly sent to Mr. Tomkins at the local Employers Unity, Inc.'s office loc ated in M edia, Pennsylvania. Th e Co urt believed that there e x i s te d s o m e p o t e n t i a l c o n f u s i o n a n d miscommunication surrounding Appellee's lack of response to the appeal process because the Prothonotary's Office may have been sending all letters and notices to the App ellee at an incorrect ad dress. *3 8.) Pursuant to the Court's January 9, 2004 Ord er, the Pro thono tary's Office sent an amended notice of app eal, via certified mail return receip t reque sted, to Appellee, c/o M r. Stu To mkins, E mplo yers U nity, Inc.,

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Case 1:04-cv-01524-GMS

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Lower Level Suite 10, 115 W. State Street, Media, PA 19063. [FN2] The returned ce rtified ma il receipt green card indicates that Employer's Unity, Inc. received the amended notice of appeal on January 20, 2004. It was signed by Sally B araka , on behalf of Emp loyer's Unity, Inc. As of the date of this Order, neither Emp loyer's Unity, Inc., nor Bank One, has responded to the amended notice of appeal. No entry of appearance has been entered on behalf of Appellee, or on behalf of Appellee's representative, nor has either filed an answe ring brief with the C ourt. FN2. The amend ed notice contained: 1) a copy of the original Notice of Appeal filed by Appe llant on May 7, 2003; 2) a request that Appellee have its local counsel file an entry of appearance with the Court; 3) a copy of Appe llant's opening brief; and, 4) a copy of each of the two letters sent by the Prothon otary's Office on June 30, 2003 to the Appellee. 9.) In its January 9 , 200 4 O rder, the Court made no te that "it is the Court's op inion that the entry o f a defau lt judgment against Appellee would not be appropriate. The instant case is distinguishable from those cases in which an employer has failed to appear at a Board hearing and the Board dismisses the case for failure to diligently prosecute." [FN3] Likewise, as the Court contended, "[i]n Gorrell v. Division of Vocational Rehabilitation, this Court held that an en try of default judgment by the Court is not appropriate on an appeal from an administrative agency." [FN4] FN3. Hunter, 2004 WL 249578, at *4 (citing Love v. MBNA America, 2001 WL 1 12101 (De l.Super.Ct.)). FN4. Id. at *4 (citing Gorrell v. Div. of Vocational Rehab., 199 6 W L 45 335 6, at *2 (De l.Super.Ct.)). With these legal precepts in mind, the Court seeks guidance in this matter within the legal parameters established by our own Superior Court Civil Rules. Rather than enter an order of default judgm ent, Superior Court Civil Rule 7 2(i) provides that the Court

may, "sua sponte, or upon a motion to dismiss by any party," order an appeal to be dismissed. The grounds for ordering a dismissal include untimely filing of an app eal, appealing an unappealable interlocutory order, failing to diligently prosecute the appeal by a pa rty, failing to comply with any rule, statute or order of the Court, or for any other reason d eemed by the Co urt to be appropriate . [FN5] In light of the circumstances that have unfolded before the Co urt, it has become evident to the Co urt that, for whatever unidentified reason, Bank O ne has failed to diligently prosecute the appeal in this case. Even after the Court afforded the Appellee an additional oppo rtunity to respond by requesting that App ellee's representative be served with an amended notice of appeal, almost three months have elapsed, and Appellee still has not responded to Appellant's notice of appeal from the Board's decision. FN5. Super. Ct. C iv. R. 72 (i). At the time the Court penned its January 9, 2004 opinion, it believed that to dismiss the appeal, predicated on Ap pe llee's failure to d iligently pro secute the appeal, would not be an equitable resolution. Citing to Gorrell, this Court previously noted that "[t]o issue an order of dismissal would 'preclude Claimant from obtaining a review of this m atter." ' [FN6] This Court further advocated that, "[b]ased on the principles underlying the objectives of equitable justice and finality of judgment, to dismiss the appeal without attempting to notify the Appellee of the existence of the appeal at an alternative address, would be inequitab le." [FN7] In consideration of Appellee's inexplicable failure to actively pursue a response to A pp ellant's app eal, and in recognition o f the Co urt's attempts to serve the principles of equity and equality under the law, the Court still finds that a dismissal of Ap pe llant's appeal would be an unsatisfactory panacea to the dilemma p resently before the C ourt. FN6. Hunter, 2004 W L 249578, at *4 (quoting Go rrell, 1996 W L 4533 56, at *2). FN7. Id. *4 The nature and scope of Super Court Civil Rule 72(i) is structured to apply to appeals be fore this C ourt,

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initiated by an aggrieved party, from a decision of an administrative board, commission , court, etc. Rule 72(i) addresses the causality and remedial aspects of an ultimate dismissal in terms of its impact on an appellant, or moving party, who is directly affected by having the appeal dismissed, but does not fully address those instances when the adverse, or acco untable party, is an appellee. Rule 72(i) provides for an appellant who may request a voluntary dismissal, a stipulated voluntary dismissal with court approval, or a court ordered dismissal, in this case, to the detriment of the Appellant. In other word s, to dism iss Appellant's action, not because of any related culpability on her part, but because Appellee failed to pursue a conscientious prosecution of the appeal, would be counterintuitive and provide an inequitable outco me for the Appe llant. Denial of a dismissal was appropriate, for example, in Church v. Ferguson, when the Court denied the em ployee's request to dismiss the emp loyer's appeal for alleged ly being untimely filed. [FN8] The Co urt found that, pursuant to 19 Del. C. § 3323(a), the employer had timely filed a notice of appeal from the Board's decision to award bene fits to the appellant, as a result of the employer having failed to appear at the Board hearing. [FN9] Similarly, in Harris v. Mountaire Farms of Delaware, it was proper for the Court to affirm the Boa rd's decision dismissing the claimant's appeal for failure to prosecute because the "claimant did not attend the Board hearing and exhaust her administrative remedies prior to approaching this Court." [FN10] Unlike the cases referenced above, it appears that the case at bar falls into the exceptional category of an appeal to this Court, where the statutory failure to prosecute befalls the Appellee. FN8. Church v. Ferguson, 215 379 95 (Del.Super.Ct.). FN9. Id. at *1. FN10. Harris v. Mountaire Farms of Delaware, 200 3 W L 22 853 425 , at *2 (De l.Super.Ct.). In view of Rule 72(i)'s limited applicab ility, Superior 20 03 WL

Court Civil Rule 107, when considered in tande m with Rule 72, provides the Court with the most appropriate remedy to address a non-responsive appellee. In essence, Rule 107(e) provides that "if any brief, ... or any other paper which is or sho uld be a pa rt of a case pending in this Court, is not served and filed ... in accordance with any order of the Court ..., the Court may, in its discretion, dism iss the proceeding if the plaintiff is in defau lt, ..., or take suc h other action as it deems necessary to expedite the disposition of the case ." [FN11] Thus, it is evident to the Court that Rule 107(e) inextricably vests in the Co urt the power to reverse the Board's decision for failure of the Appellee to file its answering brief. With this in mind , it would prove meaningful in the instant case for the Court to first substantiate its req uisite jurisd ictional contro l to consider App ellant's app eal and the ensu ing circumstances, in order to find in favor of a reversal of the Board's decision. FN11. Super. Ct. Civ. R. 107(e). *5 Judicial review of a Board finding "shall be permitted only after any party claiming to be aggrieved thereby has exhausted all ad ministrative remedies." [FN12] A hearing before the Board is the final administrative remedy. [FN13] In light of the fact that the Board's decision became final on May 5, 2003 , the appeal has progressed beyond the jurisdiction of the Board. [FN14] With regard to the Court's permitted standard of review, the Delaware Supreme Co urt, and this Court, repeatedly have emphasized the limited app ellate review of factual findings of an administrative agency. [FN15] The function of the re viewing Court is limited to determining whether substantial evidence supp orts the Board's decision regarding findings of fact and conclusions of law and is free from legal error. [FN16] Substantial evidence is that evidence from which an agency fairly and reasonably could reach the conclusion it did. [FN17] It is more than a scintilla but less than a preponderance. [FN18] W hen reviewing a decision on appeal from an agency, the Superior Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. [FN19] The Court's respo nsibility is merely to determine if the evidence is legally adeq uate to supp ort the agency's factual findings. [FN20] If the agency or Board's

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decision is supp orted by substantial evidence, the Court must sustain the decisio n of the B oard , even though it would have dec ided otherw ise had it come before it in the first instance. [FN21] FN12. Del.Code Ann. tit. 19, § 3322(a) (1995 & Supp.2002). FN13. Del.Code Ann. tit. 19, § 3320 (1995 & Supp.2002). FN14. Henry v. Dep't of Labor, 293 A.2d 578 (Del.Super.Ct.1972) (holding that th e Unemp loyment Insurance Appeal B oard retains jurisdiction of a matter until the Board 's decision becomes final). FN15. Industrial R entals, Inc. v. N ew C astle County Bd. of Adjustment, 20 00 W L 710087 (De l.Super.Ct.), rev'd on other gro unds, 776 A.2d 528 (Del.2001); Public Water Sup ply Co. v. DiPasquale, 735 A.2d 378, 382 (Del.1999). FN16. Del.Code Ann. tit. 29, § 10142(d) (1997 & Supp.2002); See also Soltz Management Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del.1992); Mellow v. Bd. of Adjustment of New Castle County, 565 A.2d 947, 954 (Del.Super.Ct.1988), aff'd, 567 A .2d 422 (Del.1989); Jan am an v. New Castle County Bd. of Ad justment, 364 A.2d 1241 (Del.Super.Ct.1976), aff'd, 379 A .2d 1118 (Del.1977); M .A. Harnett, Inc. v. Coleman, 226 A.2d 910 (Del.1967); Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del.1965); General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del.1960). FN17. Me llow v. B d. of Adjustment of New Castle County, 565 A.2d at 954 (citing National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del.Super.Ct.1980)). FN18. Id. at 954 (citing Olney v. Cooch, 425 A.2d 610, 614 (Del.1981)); Downes v. State, 1993 W L 10 254 7, at *2 (Del.) (quoting

Breeding v. Contrac tors-O ne-Inc., 549 A.2d 1102, 1104 (Del.1988)). FN19. Johnson, 213 A.2d at 66. FN20. Del.Code A nn. tit. 29, § 10142(d) (1997 & Supp.2002). FN21. Mellow, 565 A.2d at 954 (citing Kreshtool v. Delmarva P ower & Light Co ., 310 A.2d 649, 653 (Del.Super.Ct.1973)); Searles v. Darling, 83 A.2d 96, 99 (Del.1951) (emphasis added to original). It is not within the prero gative o f this Cou rt to disturb lower court verdicts where there is competent evidence upon which their findings could reasonab ly be predicated. [FN22] Similarly, where some evidence supp orts an administrative finding, the Superior Court will not substitute its judgment in the matter for that rendered by the administrative bo dy. [FN23] Concomitantly, in the absence of some constitutional or statutory violation, the Superior Court will reverse an administrative decision only when it is shown that the administrative body from which the appeal was taken abused its discretion. [FN24] FN22. Young v. Sarou kos, 189 A.2d 437, 439 (Del.1963). FN23. In re Artesian Water Co., 189 A.2d 435, 437 (Del.Super.Ct.1963). FN24. Id. (emphasis added). In Appellant's case, there is no evidence that the Board abused its discretion. The Claims Deputy, Appeals Referee, and the Board, all concluded that Appellant had been discharged for just cause because A pp ellant's purported act of intentionally falsifying her employment application rose to a level of wanton or willful misco nduc t. This Court has consistently held that, where an em ployee intentionally (versus inad vertently) and falsely states she has never been convicted of a crime on an emp loyment app lication, the false statement constitutes just cause for termination. [FN25] Hence, it appears that the Board found that there

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existed substantial evidence to form ulate its decision that the Appellant acted willfully, and with a wanton disregard. Normally, this Court's duty ends here, and need not go any further upon a finding of substantial evidence to substantiate the Bo ard's de cision. B ut, in this case, the Court finds tha t there exists a significant violation of a statutory precept, in this instance, its own Civil Rule 107(e). Therefore, despite the formid able "substantial evidence" found to exist by the Board, the Court has no other alternative but to reverse the Boa rd's decision due to Appellee's failure to dilige ntly prosecute and file its brief pursuant to Rule 107(e). FN25. Wilmington Sav. Fund Soc'y v. Thompson, 20 00 W L 305453, at * 3 (Del.Super.Ct.); Bressi v. Eckerds Corp., 1994 W L 55547 1, at *2 (Del.Super.Ct.); Kowalski v. Unemployment Ins. A ppe al Bd ., 19 90 W L 285 97, at *11 (D el.Sup er.Ct.). *6 No twithstand ing these findings, the Court is not unsympathe tic or callous in adjudging the Appellee, as the Court finds that it has fulfilled Appellee's expectations of due pro cess rights. Due process requirements mand ate that in any appeal from an administrative agenc y, the Co urt must make certain that the agency action sa tisfies the constitutional requirements of due process, i.e., procedural due process of law. Procedural due process requires that "[p]arties whose rights are to be affected[,] are entitled to be heard; and in order that they may enjoy that right[,] they must first be notified ." [FN26] Parties must be adequately, properly, and lawfully notified of agency actions that affect, or will affect, their rights, privileges, and imm unities. [FN27] It is also essential that the right to "notice" must be granted at a meaningful time and in a meaningful manner. [FN28] The Court, and the Prothonotary's Office, have made considerable efforts to p rovid e notice to the Appellee. Additiona lly, it is an und eniable fact that Ap pe llee's representative did receive amended notice of the app eal. Thus, pro cedural due process has been aptly served. Unfo rtunately, this is one of those rare instances when a party's unexplained inaction proves both disadvantageous to its cause, and results in a windfall for its adversary.

FN26. Tsipou ras v. Tsipou ras, 677 A.2d 493, 496 (Del.1996) (quoting Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citations omitted) (emp hasis added); McGo nigle v. Burn s, 2001 W L 10 790 36, at *1 (D el.Sup er.Ct.). FN27. Fuentes, 407 U.S. at 80 (relying on Baldwin v. Hale, 68 U.S. 223 (1863)). FN28. Fuentes, 407 U.S. at 80 (citing Arm strong v. Manzo, 380 U.S. 545, 552 (1965)); Formosa Plastics Corp. v. Wilson, 504 A.2d 1083, 1089 (Del.1986). For the foregoing reasons, the May 5, 2003 decision of the Unemp loyment Insurance Appeal Board d enying unemployment benefits to the Appellant is hereby REVERSED. IT IS SO ORDERED. END OF DOCUMENT

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Only the Westlaw citation is currently available. UNPU BLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Superior Court of Delaware. MICH AE L A. S INC LAIR, IN C., Ap pellant, v. David E. RILEY, Appellee, No. Civ.A. 03A-09-007JRJ. Submitted April 1, 2004. Decided July 30, 2004. On Appeal from the Decision of the Unemployment Insurance Appeal Board. Decision Reversed. Michael R. Ipp oliti, Wilmington, D E, for Appellant Michael A. Sinclair, Inc. David E. Riley, Wilmington, DE, Appellee, pro se. ORDER JURDEN, J. *1 Upon consideration of the briefs submitted and the record in this case, it appears to the C ourt that: Factual and Procedural Background 1. Appellant Michael A. Sinclair, Inc. ("Sinclair" or "Emp loyer") appeals from a decision of the Unemp loyment Insurance Appeal Board ("UIAB" or "Board") which granted unemp loyment ben efits to David E . Riley ("Riley" or "C laimant"). 2. Sinclair initially employed Riley as a commercial truck driver in November of 2001. [FN1] Individ uals who drive vehicles with a gross weight over 10 ,000 pounds are required to have a Medical Examiner's Certificate ("ME C" or "C ertificate"). [FN2] On A pril 9, 2002, Riley underw ent a medical examination for his MEC. [FN3] As a result of this examination,

Riley was given a three-month temporary certification, rather than the standard two-year certification, and w as advised to see a physician to determine whether he suffered from diabetes. [FN4] Riley was sub sequently diag nosed with d iabetes in May of 2002, [FN5] and his certification expired on July 9, 2002. Riley applied for a new Certificate, but was denied. On or about July 30, 2002, Riley "parked the truck" and his employment with Sinclair ended. [FN6] After briefly working elsewhere, Riley filed a claim for unemployment benefits with the Department of Labor on August 18, 2002. [FN7] On August 30, 2 002 , Sinclair tried to rehire Riley for the same truck driver position, but Riley refused, allegedly because he could not obtain his MEC and would be unable to perform the same truck-driving duties. [FN8] FN1. See UIAB Record (Docket No 5) at 21. FN2. Id. at 12. FN3. Id. FN4. Id. FN5. Id. at 30. FN6. Id. at 22-23. FN7. Id. at 4. FN8. Id. at 23. 3. In a February 4, 2003 d ecision, the Claims D eputy determined that the Claimant was disqualified from receiving benefits under 19 Del. C. § 3315(3) [FN9] because the medical documentation provided by the Claimant "showed no medical restriction that would affect the Claimant's job." [FN10] FN9. 19 Del. C. § 3315(3) provides in pertine nt part: An individual shall be disqualified for

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benefits: (3) If the individual has refused to accept an offer of work for which the individual is reaso nably fitted ... and the disqualification shall begin with the week in which the refusal occurred and shall continue for each week thereafter until the individual has been employed in each of 4 subsequent weeks (whether or not consecutive) and has earned wages in covered employment equal to not less than 4 times the weekly benefit amount.... FN10. See Notice of Determination, UIAB Record at 7-8. 4. Riley appealed and an Appeals Referee affirmed. The Referee's decision states, in pertinent part: The issue in this case is whether the claimant refused a suitable offer of work. Clearly, there was an offer of work. Th is work was identical to what the claimant had previously done for Sinc lair. It is also clear that the claimant refused this job. T he question then is whether the work was suitable for the claimant. Although the claim ant testified that he is unable to obtain new certification due to his diabetes, he provided no medical documentation of this allegation. In the ab sence of such evidence, this tribunal cannot find that the offer of work was one for which the claimant was not reasonably fitted. Having refused the po sition, it must be con clude d that he is disqualified from benefits by operation of the above-cited statute [19 Del. C. 331 5(3) ]. [FN11] FN11. See Referee's Decision, UIAB Record at 13. 5. On J une 25, 20 03, the UIAB held a hearing after the Claimant appe aled. S inclair did not attend this hearing. [FN12] The Boa rd reversed the R eferee's d e c is i o n b e c a u se t he C l a im a n t p r o v id e d documentation that he was diagnosed with diabetes. The Board found that the offer of another driving position was no t a suitable offer of work because Riley's diabetes restricted his ability to obtain the necessary certification that would perm it him to drive. [FN13] The Board decision became final on September 7, 2003 . [FN14]

FN12. Sinclair filed a motion for a rehearing, claiming that it never received notice of the first hearing. In an August 13, 2003 decision, the Boa rd denied the E mp loyer's motion for a new hearing bec ause it determined that notice of the first hearing was properly mailed to the Emp loyer's address of record and was not returned. See Board's August 13, 2003 Decision, UIAB Record at 67-68. FN13. See Board's Decision, UIAB Record at 41-42. FN14. See Board's Refusal of Rehearing (Do cket N o 1) at Exhibit A. *2 6. On September 17, 200 3 the E mplo yer timely filed an initial appeal of the Board decision to this Court. [FN15] On January 27, 2004 the Employer filed the Ap pellant's Op ening B rief. [FN16] On February 27, 2004 a Delinquent Brief Notice was sent to the Claimant, warning that an answering brief needed to be filed or "the Court will decide the issue on the papers which have been filed if no further action of record is taken within ten (10) days from the receipt of this notice." [FN17] Having received no response from the Claimant, on March 25, 2004, the Court ordered a determination of the issue on the papers that were filed to that date. [FN18] FN15. See Notice of Appeal (Docket No 1) at 3. FN16. See Appellan t's Opening Brief ("Employer's Op. Brief") (Docket No 8) at 1. FN17. See Final Delinquent Brief Notice (Docket No 10) at 1. FN18. Id. Standard of Review 7. In reviewing a decision on appeal from the Unemp loyment Insurance Appeal Board, this Court must determine if the decisio n is supported by substantial evidence and is free from legal error.

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[FN19] " 'Substantial evidence' means such relevant evidence as a reasonable mind might accept to support a conclusion." [FN20] Ab sent an abuse of discretion, this Court must uph old the Boa rd's decision. [FN21] "Qu estions of credibility are exclusively within the province of the Board which heard the evidence. As an appellate court, it [is] not within the province of the Superior Court to weigh the evidence, determine questions of credibility or make its own fac tual finding s." [FN22] The Co urt 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. [FN23] FN19. K-Ma rt v. Bowles, C.A. No. 94A-10-007, 1995 D el.Super. LEXIS 175 (Mar. 23, 1995 ) (citing 29 Del. C § 10142(d); Johnson v. Chrysler C orp., 213 A..2d 64 (Del.1965)). FN20. Ocean port Ind. v. Wilmington S ervices, 636 A.2d 892, 899 (Del.Super.Ct.1972). FN21. Id. FN22. Unemployment Ins. Appeal Bd. v. Div. Of Unemployment Ins., 803 A.2d 931, 937 (Del.2002). FN23. Delgado v. Unemployment Ins. Appeal. Bd., 295 A.2d 585 (Del.Super.1972). Discussion 8. Under 19 Del. C. § 3315(8), claimants are disqualified from unemployment benefits "[i]f it shall be determined by the Department that total or partial unemployment is due to the individual's inability to work. Such disqualification [is] to terminate when the individual becomes able to work and available for work as determined by a doctor's Certificate and meets all other requirements under this title." [FN24] "[W ]hile the unemplo yment insurance fund is an emergency fund provided for those individuals who have become unem ployed through no fault of their own, the fund was designed to assist individuals who are unemployed primarily due to eco nom ic conditions. The fund and the unem ploym ent

insurance system were not intended to be a disab ility or illness insurers." [FN25] FN24. 19 Del. C. § 3315(8). FN25. O'N eill v. Airborne Ex press, UIAB Hearing No. 13552 3 at 3 (August, 21 2000). See Employer's Op. B rief at Tab 29. 9. Here, the Board found that because the Claimant was med ically unable to ob tain a ME C, the Claimant was no longer able to work as a licensed truck driver. [FN26] However, the Board erred in concluding that the only effect of this was to prevent the subsequent job offer from being a suitable offer for work. The Board should have also conc luded that this disability left the Claimant unable and unava ilable to work pursuant to 19 Del. C. § 3315(8). Consequently, it was an error o f law for the Board to hold that the Claimant was qualified to receive unemployment benefits under the facts in the record. FN26. See UIAB R ecord at 42 ("The C laimant has demonstrated that he has Type II Diabetes which restricted his ability to obtain proper certificatio n to pe rmit him to drive."). 10. As an alternative grounds for reversal, Delaware Superior C ourt R ule 10 7(e) states: *3 If any brief, memo randum, depo sition, affidavit, or any other paper which is or should be part of a case pending in this Court, is not served and filed within the time and in the ma nner required by these Rules or in accordance with any order of the Court or stipulation of counsel, the Court may in its discretion, dismiss the proceeding if the plaintiff is in default, consider the motion as abandoned, or summ arily deny or grant the mo tion, such as the situation may present itself, or take such other action as it deems necessary to expedite the disposition of the case. [FN27] FN27. Del.Super. Ct. C iv. R. 10 7(e). In Hunter v. First USA/Bank ONE, this Court found that "Rule 107(e) inextricably vests in the Court the power to reverse the B oard's decision for failure of

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the Appellee to file its answering brief." [FN28] Here, the Court is confronted with a factually similar case. As in Hunter, the Appellee was duly notified [FN29] and failed to explain his inaction. Accordingly, "the Court has no other alternative but to reverse the B oard 's decision due to the Ap pe llee's failure to diligently prosecute and file its brief pursuant to Rule 107(e)." [FN30] FN28. Hunter v. First USA/BANK ONE, C.A. No. 03A-05-005 PLA, 200 4 Del.Super. LEX IS 123 at *13 (April 15, 2004 ). FN29. Although, in the Hunter case, there was a subsequent notification b y certified mail, this fails to distinguish these cases because that additional notification was p rompted by a concern of a "significant clerical error [that] may have been made in the mailing process, potentially resulting in A ppe llee never receiving any type of notification of appe al." Id at *5. FN30. Id at *18. 11. For the reasons stated above, the decision of the Board that the C laimant is entitled to benefits is not free from legal error and is the refore REVE RSED . IT IS SO ORDERED. 200 4 W L 17 311 40 (Del.Super.) END OF DOCUMENT

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