Opinion
No. 209, 1999.
August 25, 1999.
Appeal from the Superior Court, New Castle County, CA 98A-09-001.
AFFIRMED.
Unpublished Opinion is below.
AIR PRODUCTS CHEMICALS, INC., Employer/Appellant Below, Appellant v. WILLIAM McDOUGALL, SR., Claimant/Appellee Below, Appellee. No. 209, 1999. Supreme Court of Delaware. Submitted: July 12, 1999. Decided: August 25, 1999.
Court Below: Superior Court of the State of Delaware, in and for New Castle County, in C.A. No. 98A-09-001.
Before VEASEY, Chief Justice, WALSH, and BERGER, Justices.
ORDER
This 25th day of August 1999, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) This appeal is from a Superior Court decision dismissing an appeal from a decision of the Industrial Accident Board ("the Board"). We agree that the appeal was properly dismissed and affirm.
(2) The Board's decision on the merits was mailed to the parties on September 22, 1995. The appellant-employer, Air Products and Chemical, Inc. ("Air Products"), did not file an appeal in the Superior Court. Instead, Air Products filed a motion for reargument with the Board. By order dated March 21, 1996, the Board found that the motion for reargument was untimely filed.
(3) Air Products did not file an appeal in the Superior Court from the Board's March 21, 1996 order, as it had a right to do. Instead, Air Products wrote a letter to the Board, challenging the Board's ruling that Air Products' motion for reargument was untimely filed. By letter to the parties dated July 10, 1996, the Board reiterated that the motion was untimely filed.
(4) By letter to the Board dated July 23, 1996, Air Products requested a hearing on the timeliness of the reargument motion On August 15, 1996, the Board held a hearing on the issue. More than twenty-two months later, on June 19, 1998, the Board issued an order stating that it would hold yet another hearing for the purpose of hearing evidence on the timeliness issue. At that, the appellee-claimant, William McDougall ("McDougall"), filed a motion for reargument. McDougall contended that the Board was without further jurisdiction to consider the timeliness of Air Products' motion for reargument.
(5) By order dated August 6, 1998, the Board granted McDougall's motion for reargument. Air Products filed an appeal in the Superior Court. By order dated April 15, 1999, the Superior Court dismissed Air Products' appeal. This appeal followed.
(6) The Superior Court's dismissal of Air Products' appeal was clearly correct. By order dated March 21, 1996, the Board ruled that Air Products' motion for reargument was untimely filed. Air Products had 30 days to file an appeal to the Superior Court from that order. Air Products failed to do so. Consequently, the Board's decision on the timeliness of Air Products' motion for reargument became final, and the Board lost continuing jurisdiction to revisit the issue. Any further action by the Board was a nullity. Thus, the Superior Court was correct to dismiss Air Products' appeal.
See Taylor v. Hatzel Buehler, Del. Supr., 258 A.2d 905 (1969) (holding that where Board erroneously determined a compensation award, and the insurer did not appeal, the award became final and conclusive.)
Preform v. Building Components, Inc., Del. Supr., 280 A.2d 697 (1971).
NOW, THEREFORE, IT IS HEREBY ORDERED that the appellee's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Carolyn Berger, Justice