IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Janice Allmaras,

Joseph J. Rolla,
Robert Viscount, :C.A. No. SI9A-06-001 CAK

Petitioners,
V.
THE BOARD OF ADJUSTMENT

OF SUSSEX COUNTY, DELAWARE,

Respondent.

Submitted: October 23, 2019
Decided: November 12, 2019

Upon Motion to Dismiss
GRANTED

Upon Motion to Amend
DENIED AS MOOT

MEMORANDUM OPINION AND ORDER

Joseph J. Rolla, self represented, 16863 N. Hunters Run, Lewes, DE 19958,
Janice Allmaras, self represented, 33665 E. Hunters Run, Lewes, DE 19958,
Robert Viscount, self represented, 33697 E. Hunters Run, Lewes, DE 19958,
Petitioners.

James P. Sharp, Esquire, Moore & Rutt, P.A., 122 W. Market Street, P.O. Box
554, Georgetown, DE 19947, Attorney for Respondent.

KARSNITZ, J.
Respondent’s Motion to Dismiss and Petitioners’ Motion to Amend which
are before me illustrate the tension between deciding cases on the merits, on the
one hand, and strict adherence to what appear to be inviolable rules governing
timing of appeals on the other hand. Self-represented Petitioners seek review of a
decision of Respondent granting a Special Use Exception for a neighboring
landowner (“Landowner”), allowing Landowner to Operate a convalescent home.

After a few false starts,’ Appellants filed a petition for Writ of Certiorari
naming only the Sussex County Board of Adjustment (the “Board’’) as Respondent.
The failure to name Landowner as an additional Respondent flies in the face of
longstanding precedent requiring the landowner to be a party to the appeal.?, My
view of Delaware black letter law as it has existed for years would require

dismissal of an appeal if Landowner is not named as a party within thirty (30) days

 

'On March 8, 2019, Petitioners filed a Petition for Writ of Certiorari, which was granted by this
Court, but upon motion by Respondent, the appeal was denied without prejudice on May 17, 2019 as
premature, since Petitioners had not exhausted their administrative remedies before the Board. On
April 26, 2019, Petitioners filed a second Petition for Writ of Certiorari, which was granted by this
Court, but the parties stipulated to a dismissal without prejudice on May 20, 2019, and this Court so
ordered on May 21, 2019.

* Hackett v. Board of Adjustment of the City of Rehoboth Beach, 794 A.2d 596 (Del. 2002); Covey v.
Board of Adjustment of Sussex County, 2002 WL 970469 (Del. Super. May 7, 2002) (“It is well settled
that all parties to an appeal who would be directly affected by an appellate ruling should be made
parties to the review proceeding... The rule is ‘a fundamental question of jurisdiction, which cannot
be waived by the parties or disregarded by the appellate court, and the latter has no power to hear and
determine a case unless all the parties directly affected by the judgment ... are brought before it.” ”);
CCS Investors, LLC v. Brown, 997 A.2d 301 (Del. 2009): Schlosser & Dennis, LLC vy, City of Newark
Board of Adjustment. 2016 WL 2766119 (Del. Super. May 9, 2016); see also Sussex Medical
Investors, L.P. vy. Delaware Health Res. Ba., 19997 WL 524065 (Del. Super. April 8. 1997),

l
of the Board's decision.’ But, as one Delaware Court has recently said, "not so
fast"4

Resourceful parties caught in this procedural pinch have resorted to Superior

Court Civil Rule 15(c) to resuscitate an otherwise lifeless case. Anyone with a
passing familiarity with Rule 15 knows that under appropriate circumstances it
may be used to amend a pleading and have it "relate back" to the original filing
date. The Rule has often been invoked to save claims from the fate of dismissal for
failing to meet a statute of limitations time requirement.

In DiFebo v. Board of Adjustment of New Castle County, our Supreme
Court invited an examination of Rule 15's savings provisions in the very context
at issue here.” To me, Rule 15 was designed with the typical civil lawsuit
pleadings in mind. Nevertheless, on its face Rule 15 applies to all civil
proceedings, including this appeal. Rule 15 has a number of requirements which
I address in this opinion. To see if Rule 15 allows for the amendment to
Petitioners’ petition, and if that amendment relates back to the initial filing which
was within the statutorily mandated thirty days, read on.

The facts pertinent to these motions are undisputed. Respondent granted

 

3 Jd: see 9 Del. C. $691 8(a).
* With thanks to Vice Chancellor Slights in PPL Corporation v. Riverstone Holdings, LLC, 2019
WL 5423306, at *1 (Del. Ch. Oct. 23, 2019), and with apologies to Coach Lee Corso.

5132 A. 3d 1154 (Del. 2016).
2
the application for a special exception to allow operation of a convalescent
home, nursing home, and/or home for the aged by decision dated February 5,
2019. On February 11, 2019, Petitioners filed a request for re-hearing before
the Board. On June 4, 2019, Respondent issued its Findin gs of Fact in support
of its denial of Petitioners’ request for re-hearing. At that point, all proceedings
before the Board had ended. On June 24, 2019, Petitioners filed the pending
Petition for Writ of Certiorari (the “Petition”) naming only the Board as a party
Respondent. The Board responded by moving to dismiss that Petition.

Petitioners initially argued they did not need to name Landowner as a party
respondent because their complaints were with the Board's decision. They have
now abandoned that position, and agree Landowner must be a party respondent.
Observing Landowner’s due process rights requires its participation.

Thus the sole issue is: can Petitioners now amend their Petition to add
Landowner as a party, and have that amendment relate back to the time of their
initial filing so as not to run afoul of the thirty-day period to file their appeal?

9 Del. C. §6918(a) governs the filing of appeals from the Board, and
reads in full:

“Any persons jointly or severally aggrieved by
a decision of the Board of Adjustment or any

taxpayer or any officer, department, board or
bureau of the County may present to the

3
Superior Court in and for Sussex County, a
petition duly verified, setting forth that such
decision is illegal in whole or in part,
specifying the grounds of the illegality. The
petition shall be presented to the Court within
30 days after the filing of the decision in the
office of the Board."

Simply put, a person aggrieved by a decision of the Board has thirty days to
perfect an appeal. All parties affected by the Board's ruling, including the
landowner, must be a party to the appeal.° Delaware courts routinely held that
the failure to timely join the landowner is a fatal jurisdiction defect.’

Superior Court Civil Rule 15(c)(3) reads:

"The amendment changes the party or
the naming of the party against whom a
claim is asserted if the foregoing
provision (2) is satisfied and, within the
period provided by statute or these Rules
for service of the summons and
complaint, the party to be brought in by
amendment (A) has received such notice
of the institution of the action that the
party will not be prejudiced in
maintaining a defense on the merits, and
(B) knew or should have known that, but
for a mistake concerning the identity of
the proper party, the action would
have been brought against the party.”
{Emphasis supplied. ]

 

°CCS Investors, LLC v. Brown, 977 A.2d 30) (Del. 2009).
’ Schlosser and Dennis, LLC y. Citv of Newark, 2016 WL 2766119, at *4 (Del. Super. May 9,
2016).
The three requirements of the Rule can be summarized as follows:
(1} Theclaim asserted must arise from the same
transaction; and,
(2) Within in the period provided by statute or

these Rules for service of the summons and
complaint; and,

4

(3) The party sought to be brought in

(A) has received notice of the action and
will not be prejudiced in maintaining
a defense on the merits, and

(B) knows or should know that, but for a
mistake concerning the identity of
the proper party, the action would

have been brought against the party.

The first requirement is obviously met. In my opinion, the second
requirement has also been met. On this issue, Respondent argues that the Rule
requires the unnamed party to be made a party within the thirty-day appeal period.
However, the Rule has a conjunctive "or", and therefore includes either the
statutory period (thirty days), or the period set forth in the Superior Court Civil

Rules for service of the summons and complaint.§ Superior Court Civil Rule 4(j)

 

8 See Generally Superior Court Civil Rule 4, and specifically Superior Court Civil Rule 4(j).
5
requires a complaint to be served within 120 days of filing. Here, Petitioners filed
their Motion to Amend and gave Landowner actual notice within the 1 20-day
period.

With respect to the third requirement, Landowner received notice of the
action, and apparently” Landowner will not be prejudiced in maintaining a defense
to the claim. However, I am left with the question of whether Landowner “knew
or should have known” that it would have been named as a party. This first part of
the third requirement is a virtual tautology -- Landowner actually knew of the
appeal, and therefore must have known that it was a proper party to the appeal.

Our Rule, however, requires more: that the unnamed party knew or should
have known, but for a mistake concerning the identity of the proper party, it would
have been named. If one looks at the issue of whether the unnamed party knew of
the mistake from an objective viewpoint, it is also a tautology. Since Landowner
actually knew of the appeal, Landowner should have known Petitioners made a
mistake.

But the Rule does not countenance just any mistake, but only a mistake

concerning the identity of the proper party. This distinction lies at the heart of

 

’ I describe the prejudice point in this way because I do not have Landowner before me to
assert its position,
6
DiFebo;"° i.e., it is the type of mistake that governs whether Rule 15 affords relief.
In DiFebo our Supreme Court acknowledged the longstanding Delaware precedent

that in order to qualify for Rule 15(c) treatment:

[Delaware] courts generally decline to find a mistake
when the plaintiff cannot demonstrate an intent to
include the unnamed party before the limitations period
expired but will find a mistake if the plaintiff intended to
sue certain parties but was misled as to the identity of
those parties. [Emphasis supplied.]"!

Had the Court in DiFebo ended there, the decision here would be controlled
by settled law. But in DiFebo the Court continued on to discuss Krupski v. Costa
Crociere S.P.A.,|* in which the United States Supreme Court reviewed Federal Rule
of Civil Procedure 15(c), which is identical to our Rule. DiFebo quoted the
following language found in Krupski:

"The reasonableness of the mistake is not
itself at issue....[A] plaintiff might know
that the prospective defendant exits but
nonetheless harbor a misunderstanding
about his status or role in the events
giving rise to the claim at issue, and she
may mistakenly choose to sue a different
defendant based on that misimpression.
That kind of deliberate but mistaken
choice does not foreclose a finding that
[Federal] Rule 15(c)(1)(C)(ii) has been

 

10132 A.3d 1154 (Del. 2016).

"132 A.3d 1154, at 1158 (Del. 2016).
'2 560 U.S, 538 (2010).
satisfied."!*

The Delaware Supreme Court in DiFebo ultimately determined that the
"mistake" issue had not been raised at the Superior Court level, nor was it
properly briefed in the Supreme Court, and thus "should not be decided in a case
without fair presentation to the trial court.”'? The issue has been fairly presented
to me.

The answer lies as it always does within the express language of the Rule. It
is not avy mistake which warrants Rule 15(c) relief, but only a mistake concerning
the identity of the proper party. | agree with and defer to the United States Supreme
Court that the reasonableness of the mistake is not the issue. However, for me, and
giving the language of the Rule a fair reading, a party seeking Rule 15(c) relief
must still show a mistake as to the identity of the unnamed party. Here, there was
not a mistake as to the identity of Landowner. Rather, Petitioners made a mistake
as to whether or not the clearly identified Landowner had to be named as a party
in the first instance. The issue was addressed in Vondrasek v. Board of Adjustment
of the City of Wilmington.'? Ultimately, the Court in Vondrasek determined that

Difebo did not change Delaware law, and dismissed an appeal for failure to name

 

'3 560 U.S. 538. at 549 (2010).

\4 DiFebo, at 1159.

'S 2017 WL 1735402 (Del. Supet., May 1. 2017).
8
the landowner as a party.

In my opinion, Petitioners claims are not enough under Rule 15. I believe
my decision squares with well-settled Delaware law, and is consistent with the
Krupski view. I am also concerned that a contrary position would do violence to

the legislative dictates of 9 De/. C. §6318.

I am granting Respondent’s Motion to Dismiss and therefore denying

Petitioners’ Motion to Amend as moot.

IT IS SO ORDERED.

i

. cA. K
raig A. K arsnitz. ~~)
—

ri
Cex Ex Glee: aa
Cc

cc: Prothonotary’s Office
Self Represented Litigants
James P. Sharp, Esquire
