Samuel M. Short v. Marion Johnson

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY SAMUEL M. SHORT, Plaintiff-Below/ Appellant, CA. No. CPU4-14—002963 V. MARION JOHNSON, Defendant-Below/Appellee. Submitted: February 25, 2015 Decided: March 30, 2015 Leo John Ramunno, Esquire Kenneth L. Wan, Esquire Woodmill Corporate Center Law Office of A. Dale Bowers, 11, RA. 5149 W. Woodmili Drive, Suite 20 PO. Box 6047 Wilmington, DE 19808 Wilmington, DE 19804—0647 Attorney flor Appellant Altomeyfor Appellee ORDER ON APPELLEE’S MOTION TO DISMISS The instant matter is an appeal de novo brought pursuant to 10 Del C. § 9570 et seq. from the Justice of the Peace Court. Defendant—Below/Appellee Marion Johnson (“Appellee”) brings this Motion to Dismiss, arguing that Plaintiff—Below/Appellant Samuel M. Short (“Appellant”) untimely filed the appeal. The COurt held a hearing on the Motion on December 12, 2014, and ordered the parties to submit written argument on whether the matter should be dismissed. This is the Court’s decision, following a review of the parties’ written submissions, on Appellee’s Motion to Dismiss. On June 23, 2014, Appellant filed a debt action against Appellee in the Justice of the Peace Court. At trial, on September 8, 2014, both parties appeared pro 36. On September 9, 2014, the Justice of the Peace Court entered judgment against Appellant, and the Clerk of the court docketed the court’s order, and sent a copy of the order to both parties. The Justice of the Peace Court Docket reflects that on October 8, 20M, Appellant requested and obtained a copy of the court’s order. On October 21, 2014, Appellant filed a notice of appeal in this Court. This Court’s jurisdiction over appeals from the Justice of the Peace is strictly governed by statute, specifically 10 Del. C. § 9571. An appeal brought pursuant to § 9571 “shall be taken within fifteen days of the final judgment.”1 When a party fails to perfect an appeal within the proscribed time period under § 9571, “a jurisdictional defect is created which may not be excused in the absence of unusual circumstances [that] are not attributable to the appellant or the appellant's attorney.”2 Under this caveat, the Court may exercise jurisdiction over an untimely appeal where the untimeliness is attributable to court personnel.3 In support of such a claim, an appellant must present credible evidence attributing the delay to court personnel.4 In this matter, Appellant claims that the untimely filing of his appeal is due to the fact that he never received a copy of the Justice of the Peace Court’s decision in the mail. T he Justice of the Peace Court Docket reflects that the Clerk of the court docketed the court’s order, and sent a copy of the order to both parties. Although the Docket does not reveal if or when Appellant received the order, Appellant has not proffered any evidence that attributes any fault to that of the Justice of the Peace Court personnel. Contrary to Appellant’s argument, “an appellant’s pro se status does not excuse a failure to comply strictly with [this] jurisdictional requirement” and ’ 10 Del. C. §9571(b). zRgngMgsB9A2dmllflHDddQflflfimmbu6mm¢m2A2d%L3&MDdd9WD (emphasis added). 3 Palmer v. DCSE, 32 A.3d 939 at *1 (TABLE) (Del. 201 l)(eiting Bey v. State, 402 A.2d 362, 363 (Del. 1979)). 4 Robert REED v. CLARK'S Swimming Pools, lite, l997 WL 1737122, at *3 (Del. Com. Pl. Sept. l9, 1997) does not excuse him from submitting an untimer appeal.5 Moreover, Appellant was present for trial in the Justice of the Peace Court, already knew of the court’s decision, and had “a continuing duty of inquiry to ascertain” if the court docketed its final judgment.6 CONCLUSION For the foregoing reasons, Appellee’s Motion to Dismiss is GRANTED. Appellant’s appeal was untimely filed, and as a result, this Court lacks jurisdiction under 10 Del. C. § 9571. IT IS so ORDERED this 30th day of March, 2015. cc: Tamu White, Judicial Case Management Supervisor 5 Smith v. State, 8 l2 A.2d 224 (Del. 2002) (citing Carr v. State, 554 A.2d 778 (Del. 1 989)). 6 F oley v. Washington Grp. Int'l, Inc, 984 A.2d 123 (Del. 2009) (citing Giordano v. Marta, 723 A.2d 833 , 837—38 (Del. 1998)).