IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CONSTANCE GARY,
Plaintiff-Below/Appellant,

C.A. No. CPU4-19-000365
(JP13-18-012947)

Vv.

SOPHIA’S PLACE WEST and
GALMAN GROUP,

Defendants-Below/Appellees.

AGNES WILLIAMS and
CONSTANCE GARY

Defendants-Below/Appellants,

C.A. No. CPU4-19-000365
(JP13-18-013350)

V.

GALMAN SCOTCH HILLS 2015, LP,

a 4 a ae a ee a Le Lae

Plaintiff-Below/Appellee.

Submitted: May 13, 2019
Decided: June 28, 2019

Constance Gary and Agnes Williams David C. Zerbato, Esquire

98 Freedom Trail Morton, Valihura & Zerbato, LLC
New Castle, DE 19720 3704 Kennett Pike, Suite 200
Appellants, Pro Se Greenville, DE 19807

Attorney for Galman Scotch Hills
2015 LP and Sophia’s Place West

MEMORANDUM AND DECISION
ON APPELLEE’S MOTION TO DISMISS

SMALLS, C.J.
FACTS AND PROCEDURAL HISTORY

This is an appeal from the Justice of the Peace Court (hereinafter “JP Court’)
Judgment Order, issued on January 10, 2019, finding in favor of Defendant-
below/Appellee, Galman Scotch Hills 2015 LP (hereinafter “Galman”). On November 7,
2018, Plaintiff-below/Appellant, Constance Gary (hereinafter “Gary’’), filed a summary
possession action in the JP Court seeking damages for retaliation and rent abatement (JP 13-
18-012947). On November 16, 2018, Galman, allegedly unaware of Appellants filing,
filed its own summary possession action against Gary and Agnes Williams (hereinafter
Williams’) for possession and back rent. Both cases were consolidated and a hearing was
scheduled for January 10, 2019 (JP13-18-013350).

On January 10, 2019, Williams did not appear; thus, the JP Court entered default
Judgement against her. Gary appeared at the hearing and made a verbal motion to dismiss
the action for failure to perfect service. However, the lower court denied Gary’s motion
on the basis that she subjected herself to personal jurisdiction by appearing for the hearing,
and in addition, notice had not been returned to the court. After denying Gary’s motion to
dismiss, the JP Court offered Gary the opportunity to request a continuance; however, Gary
elected to proceed to trial. It was noted during the proceeding that Gary and Williams
surrendered possession on November 30, 2018. Thus, while the case was initiated as a
summary possession action, it ultimately proceeded to trial that day as a debt action. The
JP court found in favor of Galman.

Thereafter, On January 15, 2019, Gary filed a motion to vacate the judgement
arguing she was never served a complaint or summons to appear to the hearing on January

2
10,2019. Further, Gary claimed Galman fraudulently misrepresented that service had been
perfected at the leased property she had vacated. Nonetheless, the JP Court issued an order
on January 17, 2019 denying Gary’s motion to vacate on the basis that it had already ruled
on the matter and Gary failed to list a valid basis for the JP Court to vacate the judgment.
In addition, Williams also filed a motion to vacate the default judgement on January
15,2019. Williams asserted she never resided at the leased property and was simply a co-
signer for her daughter Gary. Furthermore, Williams claimed she supplied her address on
the paperwork she filled out when she co-signed for the leased property. Thus, Williams
argued Galman knew her correct address and acted fraudulently in obtaining default
judgment against her. On July 16, 2019, the JP Court recorded an entry on the docket
stating that a motion hearing with trial was to follow as to Williams. On January 17, 2019,
a clerk for the JP Court updated Williams address in the system, and on January 24, 2019,
the JP Court sent notice of the motion hearing, scheduled to be heard on February 19, 2019,
as to Williams motion to vacate. However, on January 31, 2019, notice of the order on
request for motion hearing sent to Williams was returned by the post office as the address

99

was “not deliverable.” On February 28, 2019, the JP Court issued a decision denying
Williams motion to vacate. The JP Court stated that a hearing was held on February 19,
2019, regarding Williams motion to vacate default judgement. The court asserted there
was no separate address listed for Williams and that Williams was listed as a tenant on the
lease document. Further, the JP Court found proper service was mailed to the address
indicated on the lease and posted on the door of the unit. Additionally, the court noted that

Gary, her daughter, did not provide Williams with the notices sent to the property. Thus,

3
the court found Williams motion failed to meet the burden of proof regarding the issue of
service, as well as show how the outcome would have been different.

On January 29, 2019, Gary appealed the JP Court decision to this Court naming
Sophia’s Place West and Galman Group as Appellees and asserted this Court has
jurisdiction over the appeal.'! Williams also filed an appeal to this Court on January 29,
2019 naming Gary as her co-Appellant and Galman as Appellee, but asserted no
arguments.” On January 29, 2019, Gary and Williams (hereinafter “Appellants”) filed a
stay of execution until JP Court rendered an opinion. This Court granted the stay of
execution until the completion of proceedings in the JP Court. On February 13, 2019,
Appellees filed response to Gary’s appeal from JP Court.* Appellees argue Gary failed to
identify any new evidence or other basis to support a finding that the judgment should be
vacated.

On April 10, 2019, Appellees filed a Motion to Dismiss Gary’s appeal alleging lack
of subject matter jurisdiction.4 In its Motion, Appellees aver the case began as a summary
possession action and must go to a three-judge panel in the Justice of the Peace Court.°
Further, Appellees argue that the process and procedures followed throughout the case
below was “employed with summary possession actions.”® Moreover, Appellees contend

the JP Court based its order and motion to vacate on the summary possession statutes.’

 

' CPU4-19-000366

> CPU4-19-000365

* Appellees response was only filed in the case ending in 366, which addresses Appellant Gary only.
* Appellees mot. was only filed in the case ending in 366, which address Appellant Gary only.

> Appellees’ Br.

° Td.

‘Id.
Therefore, Appellees argue this Court lacks jurisdiction to hear the matter under 25 Del. C.

§ 5717.8 On May 10, 2019, Gary filed Response to Appellees Motion maintaining that this

Court has jurisdiction over the debt, because the statute does not apply once the issue of

summary possession is no longer at issue.? The Court heard the Motion on May 13, 2019

and reserved decision. This is the Court’s opinion on Appellees Motion to Dismiss.
LEGAL STANDARD

In considering motions to dismiss filed pursuant to Court of Common Pleas Civil
Rule 12(b)(6), the Court must assume that all well-pled facts in the complaint are true.!°
The complaint should not be dismissed unless “the plaintiff would not be entitled to recover
under any reasonably conceivable set of circumstances susceptible to proof.”!! The Court
is required to accept only those “reasonable inferences that logically flow from the face of
the complaint, [it] is not required to accept every strained interpretation of the allegations
proposed by the plaintiff.””!?

An appeal under the summary possession section of the Residential Landlord-
Tenant Code is governed under 25 Del. C. § 5717, which provides that ‘“‘a party to a
summary judgment possession action must appeal within five days of the decision by
requesting a trial de novo to be heard by a three-judge panel.”!? After receiving the request

to appeal, the panel renders a “final judgment, by majority vote, on the original

 

8 Id.

” Appellant’s Resp.

'® Battista v. Chrysler Corp., 454 A.2d 286, 287 (Del. Super. 1982).

'' Id. (citations omitted).

"2 Abdul-Ahad v. Nationwide Mut. Fire. Ins. Co., 2016 WL 4269512, at *2 (Del. Com. PI. Aug. 10, 2016)
(internal citations omitted).

'3 25 Del. C. § 5717(a) (emphasis added).
complaint.”'* Once the panel renders a decision, “... any review is pursuant to a common
law writ of certiorari to the Superior Court to correct errors on the face of the record.””!>
However, debt and other matters ancillary to summary possession are subject to appeal to
the Court of Common Pleas pursuant to 10 De/. C. § 9571, which provides for a trial de
novo.'®
DISCUSSION

The JP Court has exclusive jurisdiction over summary possession actions pursuant
to 25 Del. C. § 5701. Ifa party wishes to appeal a JP Court decision, it must appeal to a
special court comprised of three justices of the peace in accordance with 25 Del. C. § 5717.
Further, the decision of the special court is “final and no further appellate jurisdiction on

the merits exists.’”!”

Appellees argue the case cannot be appealed to the Court of Common
Pleas and thus, must be dismissed for lack of subject matter jurisdiction. In support of its
argument, Appellees cite to a number of cases wherein the court did not permit the severing
of summary possession and debt claims. !®

In the case of Neitze/t, a landlord filed suit against a tenant in the JP Court for

summary possession and debt.!? The JP Court dismissed the case and the landlord appealed

to this Court.2? However, the Neitze/t Court found “if a party brings a summary possession

 

'4 Tq.

'S Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1207 (Del. 2008).

'© See Wise v. G-Town Partners, LP, 2015 WL 246415, at *1 n.3 (Del. Com. PI. Jan. 21, 2015).

'? Bomba’s Rest. & Cocktail Lounge, Inc. v. Lord De La Warr Hotel, Inc., 389 A.2d 766 (Del. 1978).
'* Neitzelt v. Meera Management, LLC, 2006 WL 1719976 (Del. Super. May 1, 2006); Manufactured
Homes Communities, Inc. v. Elmer Brown, 1999 WL 1847440 (Del. Com. Jan. 22, 1999); Dorsey v.
Cochran, 2011 WL 809854 (Del. Com. Jan. 31, 2011).

'° Neitzelt, 2006 WL 1719976, at *1.

20 Td.
and debt claim before the Justice of the Peace Court, the only option for appeal is to the
three-judge panel pursuant to Section 5717. Neither party can elect to sever the summary
possession claim from the debt claim, which were filed jointly before the Justice of the
Peace Court, and appeal the debt claim to the Court of Common Pleas.””?!

In Manufactured Home Communities, the JP Court found in favor of a landlord and
awarded possession together with back rent.” The tenant appealed the decision to this
Court to sever the issue of possession and litigate the merits regarding his status as a tenant
in an attempt to excuse liability; however, this Court found “[w]hen a combined action for
possession and rent is filed, this claim must be asserted under the Landlord/Tenant Code
in one suit. A “judgment” in a summary possession determines the rights of the parties.
As claims for rent are includable with possession actions, the appeal is necessarily covered
by the summary possession section, not the general appeals statue.”?°

Similarly, in Dorsey, a landlord filed suit in the JP Court for summary possession
and unpaid rent.*4 The lower court found in favor of the landlord and the tenant appealed
to this Court.?° Nonetheless, this Court found that the matter below was indeed a summary

possession proceeding and thus, the debt was not a separate action that this Court could

exercise subject matter jurisdiction over.”°

 

2! Td. at *3.

°? Manufactured Home Communities, 1999 WL 1719976, at *1.
"3 Id. at *2.

4 Dorsey, 2011 WL 809854, at *1.

25 Id.

2S fd. at *3.
However, these cases cited by Appellees are factually distinguishable from the case
at hand in where summary possession was not an issue at the time of trial. While both
parties originally filed for summary possession, the matter went forward as a debt
proceeding. This court finds the case of Wise to be factually synonymous to this case. In
Wise, a landlord brought suit against a tenant for summary possession; however, the
proceeding went to trial as a debt action.2’ The JP Court stated in its decision that “the
tenant vacated; possession is no longer at issue.””® This Court found the tenants appeal of
the action to this Court was properly filed because in cases when “...possession is no longer
at issue at the time of trial, and the action proceeds as a debt action, appeals should be made
to the Court of Common Pleas. This longstanding practice is consistent with established
Delaware precedent which states that appeals from Justice of the Peace Courts of matters
ancillary to summary possession are within the jurisdiction of the Court of Common
Pleas.””??

Further, in the case of Justice v. Emory Hill Real Estate Services, Inc., this Court
stated “although a summary possession claim could be severed from a rent claim, to do so
the appellant must state such in the appeal.’°° Moreover, the Superior Court stated “should

only a rent claim be presented, then it could be appealed in the usual fashion.”?!

 

°? Wise, 2015 WL 246415, at *1.

28 Id.

29 Id.

*° Speedy Key Lock & Two Service, LLC v. Moyer Park, LLC, 2018 WL 4922895, at *2 (Del. Com. PI.
October 8, 2018) citing to Justice v. Emory Hill Real Estate Services, Inc., 2011 WL 13175122, at *2
(Del. Com. June 22, 2011).

*! Manufactured Home Communities, 1999 WL 1719976, at *2 citing to Bomba’s, 389 A.2d at 770.

8
In the case here, the JP Court stated “possession is no longer an issue as both parties
agree possession was surrendered to the Landlord...’*? Thus, the proceeding in the JP
Court went forward as a debt action. Furthermore, Gary specifically asserts in her appeal
that this Court “has jurisdiction over this appeal as it is a debt action and summary
possession is not an issue.”*? Thus, this Court finds Wise to be the controlling case with
respect to the severance of a summary possession and debt case.

CONCLUSION

Accordingly, Appellees Motion to Dismiss is DENIED and the appeal will be heard

pursuant to 10 Del. C. § 9571.

IT ISSO ORDERED.

tay 0 Al

He Airfalls,
ie Ge

 

*2 See JP Ct. Notice of J. Order
33 Appellant’s Compl.
