IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

SPEEDY KEY LOCK & TOW
SERVICE, LLC,
Case No. CPU4-l7-001124

Defendant-Below, Appellant,

V.

MOYER PARK, LLC,

Plaintiff-Below, Appellee.

Submitted: July 13, 2018
Decided: October 8, 2018

Albert M. Greto, Esquire Josiah R. Wolcott, Esquire
Greto Law Connolly Gallagher LLP
715 North Tatnall Street 267 East Main Street
Wilmington, DE 19801 Newark, Delaware 19711
Attorneyfor Appellant Attorneyfor Appellee

MEMORANDUM OPINION AND ORDER
()N PLAINTIFF-BELOW/APPELLEE’S MOTION TO DISMISS
Defendant-BeloW/Appellant, Speedy Key Lock & ToW Service, LLC (hereinafter “Speedy
Key”), appeals a Justice of the Peace Court 13 (“JP Court”) Order dated February 23, 2017. In the
court beloW, Plaintiff-Below/Appellee, Moyer Park, LLC (hereinafter “Moyer Park”), brought a
summary possession action against Speedy Key based on breaches of a commercial real estate
lease. Moyer Park prevailed and obtained a Writ of possession and Speedy Key moved to vacate
the Writ of possession Which Was denied. In the order denying Speedy Key’s motion, the court
below granted Speedy Key permission to retrieve certain vehicles from the premises. Thereafter,

Speedy Key filed a motion for rule to show cause, alleging difficulty in obtaining the vehicles from

Moyer Park and requesting relief. The JP Court Order dated February 23, 2017, the order being
appealed, granted Speedy Key relief by allowing them twelve additional calendar days to retrieve
their vehicles. Now Moyer Park brings this Motion to Dismiss alleging the Court of Common
Pleas does not have subject matter jurisdiction over a matter concerning summary possession and
that the appeal was not timely filed.

On July 13, 2018, a motion hearing was held and the issues regarding jurisdiction and
timeliness were presented to the Court. At the conclusion of the hearing, the Court took the matter
under advisement. This is the Final Decision and Order of the Court on Moyer Park’s Motion to
Dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Moyer Park entered into a commercial lease with Speedy Key for the lease of gated acreage
on which Speedy Key would store repossessed vehicles. Upon breaches of the lease agreement,
Moyer Park sought summary possession in JP Court on July 1, 2016. On September 28, 2018, the
parties entered into a stipulated agreement which stated that Speedy Key would vacate the premises
and return possession to Moyer Park by October 10, 2016 and failure to do so would result in an
immediate writ of possession of the premises.

Upon Speedy Key’s failure to timely vacate the premises in accordance with the
stipulation, Moyer Park filed a notice of default and obtained immediate possession. On October
31, 2016, a writ of possession was issued pursuant to Moyer Park’s request and the constable later
delivered possession of the premises to Moyer Park on November 3, 2016. On November 15,
2016, Speedy Key moved to vacate the writ of possession without disputing Moyer Park’s right to
possession of the premises. Instead, Speedy Key raised issues with service of the notice of eviction

and requested additional time to remove vehicles from the property. In an order dated December

21, 2016, JP Court denied Speedy Key’s motion to vacate, but ordered Speedy Key to provide
Moyer Park’s attorney with a list of vehicles owned by family members to be retrieved by January
6, 2017. Such list, containing 27 vehicles, was furnished by Speedy Key to Moyer Park. On
February 2, 2017, Speedy Key filed a motion for rule to show cause alleging difficulties in
obtaining the vehicles from Moyer Park. In an Order dated February 23, 2017, JP Court granted
Speedy Key an additional 12 calendar days (7 business days) to remove the 27 listed vehicles,
making the new deadline March 1, 2017. A delay in the entry of the February Order prevented
Speedy Key from providing proof of the order to a third party holder of the vehicles, thus resulting
in Speedy Key’s inability to comply with the deadline. As a result, JP Court issued a modified
order on March 2, 2017, extending Speedy Key’s time for removing the vehicles to March 15,

2017. This appeal of the February Order followed on March 13, 2017.

PARTIES’ CONTENTIONS
Moyer Park argues that the Court of Common Pleas does not have subject matter
jurisdiction over summary possession matters because summary possession is within the exclusive
jurisdiction of the Justice of the Peace Court pursuant to 25 Del. C. § 5701. Moyer Park argues
that an appeal of a summary possession action must go before a three-judge panel in JP Court
pursuant to 25 Del. C. § 5717(a). Moyer Park relies on three casesl in making their argument.
Alternatively, Moyer Park argues that the appeal should be dismissed as untimely under 10 Del.

C. § 95 71 even if the Court finds jurisdiction to exist.2

 

l Bomba's Resl. & Cocktail Lounge, lnc. v. Lora' De La Warr Hotel, [nc., 389 A.2d 766 (Del. 1978) (finding
summary possession actions cannot be appealed to higher courts); Alexander v. Harvey, 2016 WL 6301230 (Del.
Super. 2016) (finding lhal summary possession cannot be severed even if summary possession becomes moot before
tria|); Mam.j,fi:cmred Hr)me (.`rmmmnf!fe.s’. ]nc. v. l;`!mer Brrmm, 1999 WL 1847440 [Del. Com. Jan. 22, 1999)
(finding that severance of summary possession actions is not permitted by law).

2 See Appellee’s Mot. to Dismiss at 3-4 (arguing that March 10, 2017 should have been the 15 day cut off for filing
the appeal).

In opposing the Motion to Dismiss, Speedy Key argues that jurisdiction is proper because
contract law should be applied rather than the Residential Landlord-Tenant Code as 25 Del. C. §
5101(b)3 excludes commercial leases. As to the timeliness of the appeal’s filing, Speedy Key
argues that the appeal was originally filed by prior counsel, who is no longer with the firm, on
February 28, 2017, five days after the final judgment order on February 23, 2017. Speedy Key
provided a record of the filings showing that a rejection notice from the File & Serve system was
received on March 6, 2017, while counsel was out of the office. Upon discovery of the rejection,

Speedy Kay asserts prior counsel successfully refiled the appeal on March 13, 2017.

DISCUSSION

I. Jurisdiction

The issue here poses a unique question. Does the Court of Common Pleas have subject
matter jurisdiction over a tenant’s retrieval of property as a result of a summary possession action?
The answer is no. Delaware courts have wrestled with the idea of severing ancillary issues from
summary possession matters and authority disallows such severance. Most often, the courts have
come to this conclusion after contemplating severance of a summary possession action from its
associated debt action. This case is unique in that Speedy Key does not wish to sever a debt action
from the summary possession action. Rather, Speedy Key wishes to sever an issue related to their
retrieval of property as a result of a summary possession action. Severance of this nature finds no

support in Delaware law.

 

3 “Any rental agreement for a commercial rental unit is excluded fi‘om this Code. All legal rights, remedies and
obligations under any agreement for the rental of any commercial rental unit shall be governed by general contract
principles; and only Chapter 57 of Title 25 and Part IV of` Title 25 shall have any application to commercial rental
agreements.”

There are a couple cases from this Court that discuss scenarios where severance would be
deemed proper, but these scenarios are distinguishable from the present matter. The first case is
Justice v. Emory Hl`ll Real Estate Services, lnc.,4 in which the Court of Common Pleas stated that
although a summary possession claim could be severed from a rent claim, to do so the appellant
must state such in the appeal. The Court found that since the appellant had merely stated in her
appeal filing that she was appealing a decision from JP Court dated January 31, 2011, severance
was not permitted.5 Like the facts in Justice, Speedy Key only states in their appeal filing that
they are appealing a JP Court decision dated February 23, 2017. The second case, also in the Court
of Common Pleas, Wz'se v. G-Town Partners, LP,6 found that an order that explicitly states
“possession is no longer at issue” and “[t]he matter went forward as a debt action” will sever the
ancillary issue, deeming jurisdiction proper in the Court of Common Pleas.7 In contrast, there is
no such language in the February 23, 2017 Order from which Speedy Key appeals. In fact, the
February Order directly addresses the summary possession matter and the timing for Speedy Key’ s
retrieval of property on the premises in question. One could argue that the issue of possession of
the leased premises had become moot prior to the issuance of the February Order due to Speedy
Key’s failure to contest the possession of the premises and the resulting possession obtained by
Moyer Park. Although such argument would undoubtedly fail, as retrieval of property by the
tenant is a direct consequence of a summary possession action which is addressed by the summary

possession section of the Residential Landlord-Tenant Code.8

 

4 Justice v. Emory Hill Real Esta[e Servs., [nc., 2011 WL 13175122, at *2 (Del. Com. June 22, 201 1).

5 [a'.

6 Wise v. G-Town Partners, LP, 2015 WL 246415, at *1 (Del. Com. Jan. 20, 2015), as revised (Jan. 21, 2015).
7 Id.

8 25 Del. C. § 5715(e).

The third case in this Court, Manufactured Home Communities, Inc. v. Elmer Brown,9

t10 finding that rent claims, which are covered by the summary

followed Superior Court preceden
possession section of the Residential Landlord-Tenant Code, are not governed by the general
appeals statute. ll This Court, in effect, said that because of the inclusion of the rent claim in the
summary possession section of the Residential Landlord-Tenant Code, the two could not be
separated regardless of the tenant’s wish to concede the possession portion of the proceedings The
Court said “subject matter jurisdiction is conferred by the law, not a party.”12 Similarly here, the
issue of a tenant retrieving property from the premises as a result of a summary possession action
is governed by the summary possession section of the Residential Landlord-Tenant Code.13
Further, a tenant’s retrieval property is so intertwined with the summary possession claim that
there is no other claim required to arrive at this consequence This is unlike an action for rent
associated with a summary possession claim which requires that “debt” be checked off as if it were
a separate action on the JP Court complaint form.

Due to the Court’s inability to find that the facts of this case meet the loopholes set forth
in Justice, Wise, or Brown, Speedy Key’s appeal is not properly brought in the Court of Common

Pleas. Precedent, in conjunction with the aforementioned cases, supports this decision. The

Delaware Supreme Court in Bomba’S Restaurcmt & Cocktal`l Lounge, Inc. v. Lord De La Warr

 

9 Manufactured Home Communities, [nc., 1999 WL 1847440, at *2.

'° “lt has long been the law in Delaware, notwithstanding the appeal statute for debt, that appeals to the Superior
Court do not lie in suits for possession and rent in ‘Hold Over Tenant’ cases. David v. Frantz, 7 Boyce 293, 105 A.
837 (Super.Ct.19l9). Nothing in the new statute, 58 Del. Laws Ch. 472, suggests the legislature desired to change
the law. Indeed, the extraordinary provision for an appeal to a threejustice court within the Justice of the Peace
system evidences an express legislative intent to keep such matters out of the Superior Court. If this construction of
Delaware statutes was questionable when adopted over fifty years ago, in light of continued legislative acceptance of
the construction, it is now too well established to be altered by Court decision.” Wooa'lawn Truslees, lnc. v. Bl'l]ips,
5415 C.A. 1972 (1972).

" Manufaclured Home Communities, [nc., 1999 WL 1847440, at *2.

12 [a’.

13 25 Del. C. § 5715(e).

Hotel, Inc.,14 held that an appeal from a summary possession proceeding is not proper before this
Court. The Superior Court in Nel`tzelt v. Meera Management, LLC,15 also reiterated this ruling that
there shall be no severance of a summary possession action and an associated debt action. Most
recently, in Alexander v. Harvey,16 the Superior Court affirmed the Court of Common Pleas’
dismissal of an appeal of a summary possession action from JP Court. The Superior Court
reasoned that summary possession and debt actions cannot be severed even if summary possession
becomes moot before trial. lt is for the foregoing reasons that the Court finds it lacks jurisdiction

to hear Speedy Key’s appeal.

II. Timeliness of Appeal

As to the timeliness of the appeal’s filing, the use of File & Serve creates new dilemmas
for the courts to decide. In the instant matter, Speedy Key timely filed the initial appeal via File &
Serve on February 28, 2017, five days after the February 23, 2017 Order, but it was rejected for
submitting the summons as an attachment. File & Serve did not send a notice of rejection to
counsel until March 6, 2017, at which time counsel was out of the office. U pon reasonable
discovery of the rejection, counsel for Speedy Key successfully refiled the appeal on March 13,
2017.

This Court in New Castle Auto Auction & Consignments, Inc. v. Riley,17 found that a case
shall not be dismissed for untimeliness if the filing delay was caused by the File & Serve system

in providing counsel with notice of rejection and counsel remedied the issue within a reasonable

 

14 389 A.2d 766 (Del. 1978) (stating that a tenant retains the “right to litigate all controversies, over the lease, other
that [the] right to possession, in a court of competent jurisdiction.”).

15 2006 WL 1719976, at *2 (Del. Super. l\/lay l, 2006).

16 2016 WL 6301230, at *4 (Del. Super. Oct. 25, 2016).

17 2014 WL 12684816, at *1_3 (Del. Com. Dec. 1, 2014).

7

time. Like the instant matter, the Court in Riley said, “[i]n reviewing the record, the Court finds
that the rejection notice from the Court’s electronic filing system has played a significant role in
deciding the issue before the Court.”18 In the present matter, counsel for Speedy Key submitted
the initial filing of the appeal on February 28, 2017 and the File & Serve system did not send
counsel notice of rejection until six days later on March 6, 2017. As counsel was out of the office
at that time, it appears reasonable that counsel successfully refiled within a week’s time on March
13, 2017.

Since 25 Del. C. § 5717(a) requires that appeals to a three-judge panel from summary
possession proceedings to occur within 5 days of the final judgment and 10 Del. C. § 9571 requires
appeals from Justice of the Peace Courts to be taken within 15 days of the final judgment, Speedy
Key’s appeal is timely as the initial filing was within 5 days of the February 23, 2017 judgment

and the delay is forgivable for the reasons previously stated.

III. Residential Landlord-Tenant Code and Commercial Leases
Speedy Key’s contention that the Residential Landlord-Tenant Code shall not control
commercial leases does not apply here. Speedy Key only partially cites to 25 Del. C. § 5101(b)
which provides that a rental agreement is excluded from the Code, but omits the pertinent clause
which states that Chapter 57 (Surnmary Possession) of Title 25 shall apply to commercial
agreements. Further evidence is the applicability of Title 25 to the commercial lease dispute in

Bomba ’s Reslaurant involving summary possession.

 

18 ]d

CONCLUSION
F or the foregoing reasons, IT IS HEREBY ORDERED this 8th day of October, 2018, that
Appellee’s Motion to Dismiss be DENIED and the case be transferred to the Justice of the Peace

pursuant to 10 Del. C. § 1902 for decision by a three-judge panel.

 

cc: Tamu White, Judicial Case Management Supervisor

