    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


JOHN E. MILLER,                              )
                                             )
                      Appellant,             )      C.A. No. N14A-10-010 RRC
       v.                                    )
                                             )
NEW CASTLE COUNTY and                        )
DEPARTMENT OF LAND USE,                      )
             Appellee.                       )

                            Submitted: October 26, 2015
                             Decided: January 12, 2016

                On Appellant’s Petition for a Writ of Certiorari.
                                DISMISSED.

                                       ORDER

John E. Miller, pro se, James T. Vaughn Correctional Center, Smyrna,
Delaware.

Darryl A. Parson, Esquire, County Solicitor and Brionna Denby, Esquire,
New Castle County Office of Law, New Castle, Delaware, Attorneys for
New Castle County and Department of Land Use.

COOCH, R.J.

      This 12th day of January, 2016, on Appellant’s Petition for a Writ of
Certiorari following a decision in a Rule to Show Cause hearing before the
New Castle County Department of Land Use, it appears to the Court that:

       1.      On June 4, 2014, the New Castle County Department of Land
               Use (“the County”) held a Rule to Show Cause (“RTSC”)
               hearing, regarding an alleged May 19, 2014, violation of the
               New Castle County Standards for Property Maintenance. 1

1
  R. at 3-5. See also The County’s Answering Br. at n. 1 (Specifically, the [p]roperty had
aluminum siding panels missing and exposed wood surfaces on the right, rear of the
               Appellant John E. Miller is an absentee owner of 10 Catherine
               Street, New Castle, Delaware, the property in question. 2 Mr.
               Miller did not appear for the hearing, nor did counsel or anyone
               else appear on his behalf. 3 Following the RTSC hearing, Mr.
               Miller filed a Petition for a Writ of Certiorari with this Court
               on November 4, 2014. In his Petition, Mr. Miller contends that
               several violations spanning from May 9, 2009, through April 1,
               2013, should be set aside, because he was not properly served
               notice of the violations.

       2.      In his Opening Brief, Mr. Millers asserts three grounds for
               relief. First, Mr. Miller argues that “[t]he New Castle County
               [a]ssessments dated 5/11/09 through 4/8/13 should be set
               aside[,] because there’s no evidence in the record [] Appellant
               ever received real notice of them.” 4 Similarly, Mr. Miller’s
               second assertion is that the assessments from “5/11/09 through
               4/8/13 should be set aside[,] because there’s no evidence in the
               record of the June 4, 2014[,] [RTSC] [h]earing that [] Appellant
               received real notice of the 5/11/09 through 4/8/13
               assessments.”5

       3.      Mr. Miller’s final argument, which he labels “[a] [p]reemptive
               [a]rgument,” asserts that “[t]he New Castle County Department
               of Land Use should not be arguing [that] Appellant received
               notice of the May 2014 assessment[][,] because they are not the
               ones [] Appellant is attempting to rebut notice of.” 6 Apparently
               to eliminate any possible ambiguity, Mr. Miller further stated,
               “to clarify, the Appellant is attempting to rebut only the 5/11/09
               through 4/8/13 assessments.”7



dwelling. Also, the garage displayed exposed rotting wood, it was missing siding and
had a hole at the top of its exterior wall.”).
2
  The County’s Answering Br. at 1.
3
  R. at 4. It appears that at the time of the RTSC hearing Mr. Miller was incarcerated at
the James T. Vaughn Correctional Center. He is still an inmate there. The County’s
Answering Br. at 2.
4
  Appellant’s Opening Br. at 6.
5
  Id. at 7.
6
  Id. at 8.
7
  Id.


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       4.     The County responded in its Answering Brief that Mr. Miller is
              unable to dispute the 5/11/09 through 4/8/12 assessments on a
              writ of certiorari. The writ is improper, argues the County,
              because Mr. Miller did not exhaust his administrative remedies,
              and because Mr. Miller received actual notice of the May 19,
              2014 violation, “because it was mailed to the Smyrna prison
              where he was and is incarcerated.” 8 The County further stated,
              “[It] has spent hundreds of employee hours sending notices,
              inspecting, ticketing, re-inspecting, re-ticketing and, finally,
              abating the persistent and recurring property maintenance issues
              on the [p]roperty.” 9

       5.     On January 9, 2015, the County filed the record and transcript
              of the RTSC hearing that took place on June 4, 2014, with the
              Prothonotary. On March 26, 2015, Mr. Miller filed a “Petition
              for Expansion of the Record.” In his “Petition,” Mr. Miller
              moved this Court to include “the violation notices [] Appellant
              is actually contesting”; meaning the violations from 5/11/09-
              4/8/12. The County filed a Motion in Opposition to Expansion
              of the Record, arguing that the writ was premature because Mr.
              Miller had not exhausted his administrative remedies. Also, the
              County asserted that ‘“the Superior Court cannot look behind
              the face of the record.”’ 10 Mr. Miller’s “Petition” was denied in
              an Order signed by the Court on May 14, 2015.

       6.      “Any person aggrieved by any administrative enforcement
              action under [the County Code] …shall have the right to appeal
              to the Board of License, Inspection and Review.”11 “An
              aggrieved party may appeal the decision of the Board of
              License, Inspection and Review by filing a petition for a writ of
              certiorari in the Delaware Superior Court.12 A writ of
              certiorari ‘“is simply a form that calls up, for review, the record



8
  The County’s Answering Br. at 2.
9
 . Id. at 1.
10
   The County’s Mot. in Opp’n to Expansion of the R. at 3 (quoting Maddrey v. Justice of
the Peace Court 13, 956 A.2d 1204, 1215 (Del. 2008).
11
   New Castle County Property Maintenance Code Ch. 7, § 106.3.1.6.1.
12
   Id. at § 106.3.1.6.8.


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                from the lower court or tribunal.”’13 “The Court may order an
                appeal dismissed sua sponte . . . for failure to comply with any
                rule, statute, or order of the Court or for any other reason
                deemed by the Court to be appropriate.” 14

       7.       Mr. Miller’s Petition for Writ of Certiorari must be dismissed.
                He did not exhaust all of his administrative remedies. Only
                after taking an appeal to the Board of License, Inspection and
                Review is it proper to petition this Court for a writ of
                certiorari.15 Mr. Miller did not contest any of the 2009-2013
                violations to the Board of License, Inspection and Review, and
                is now time barred from raising any such challenge. 16 Since,
                Mr. Miller’s writ is improperly before this Court and this Court
                lacks jurisdiction to hear the matter under the doctrine of
                exhaustion of administrative remedies, dismissal is
                appropriate. 17




13
   Maddrey v. Justice of the Peace 13, 956 A.2d 1204, 1213 (Del. 2008) (quoting Reise v.
Bd. of Bldg. App. of Newark, Del., 746 A.2d 271, 273 (Del. 2000).
14
    Super. Ct. Civ. R. 72(i).
15
   Id. at § 106.3.1.6.8 (“An aggrieved party may appeal the decision of the Board of
License, Inspection and Review by filing a petition for a writ of certiorari in the Delaware
Superior Court.”). See also Levinson v. Delaware Compensation Rating Bureau, Inc.,
616 A.2d 1182, 1187 (Del. 1992) (“[W]here a remedy before an administrative agency is
provided, relief must be sought by exhausting this remedy before the courts will either
review any action by the agency or provide an independent remedy.”).
16
    The County’s Answering Br. at 3 (“Although Appellant’s first and second arguments
are without merit, the Court should be aware that Mr. Miller did not contest any of the
2009-2013 Property Maintenance Code violation notices and is time barred from now
raising objections.”).
17
    On October 26, 2015, this Court received a letter from Mr. Miller, in which he asked if
    this Court would
       please tell [him] what case(s) it is [this Court] thinks [he] asked the Court to review. . . .
       [he] want[s] case[] ‘A’ reviewed and the Court and the Dept. of Land Use keep[s]
       pushing case ‘B.’ The confusion comes from [when he] attached a Rule to Show Cause
       Hearing Decision to [his] petition as an example of the right way to do notice.

There is no need for the Court to reach the issue of notice.


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Therefore, Appellant’s Petition for Writ of Certiorari is DISMISSED.

IT IS SO ORDERED.
                                               ______________________
                                                 Richard R. Cooch, R.J.

oc:   Prothonotary




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