       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


CFT AMBULANCE SERVICE ,             :
A DELAWARE CORPORATION,             :
                                    :
            Appellant,              :   C.A. No. K16A-02-005 JJC
                                    :
               v.                   :
                                    :
STATE FIRE PREVENTION               :
COMMISSION,                         :
                                    :
            Appellee.               :

                          OPINION and ORDER

                          Submitted: July 28, 2016
                         Decided: October 24, 2016


Kester I.H. Crosse, Esquire, WILLIAMS & CROSSE, Wilmington, Delaware,
Attorney for Appellant.

Olivia Patricia Davis, Esquire, DEPARTMENT OF JUSTICE, Wilmington,
Delaware, Attorney for the Appellee.




Clark, J.
                                    I. Introduction
      This appeal arises from the State Fire Prevention Commission’s (hereinafter
“Commission’s”) decision to decertify Appellant CFT Ambulance Service
(hereinafter “CFT”). After a hearing where CFT failed to appear, the Commission
found that CFT had numerous and ongoing violations of the Commission’s
regulations. As a result of these serious violations, the Commission decertified
CFT as a licensed non-emergency ambulance provider in the State of Delaware.
CFT appeals the Commission’s decision to decertify the company. After a review
of the record and the parties’ submissions, the Court AFFIRMS the decision of the
Commission.


                     II. Procedural and Factual Background
      Since this matter involves an appeal of an administrative agency’s decision,
the Court is confined to a review of the facts contained in the record, and it is those
facts that are referenced herein. CFT has been a Delaware licensed non-emergency
ambulance service provider since 2009. This status requires the company to
comply with the Commission’s regulations regarding ambulance maintenance and
equipment requirements.
      Beginning in 2009, CFT failed to comply with those requirements. In
December 2009, the Commission cited CFT twice for its ambulances having
equipment that was not in reasonable and working condition. The violations
continued as the Commission again cited CFT in March 2010 after inspecting five
of the company’s ambulances. The Commission found these units’ equipment to be
deficient and to be missing several critical items. In October 2010, the Commission
conducted another inspection of CFT’s ambulances and found leaking smoke from
an exhaust pipe affecting the interior of one of its units.


                                           2
      The violations continued into 2011 and 2012. In April 2011, the
Commission conducted an inspection and found one ambulance missing a side
mirror on the driver’s side door and lacking oxygen in the main oxygen tank. In
May 2011, another CFT unit had to be placed out-of-service for missing equipment
and other safety violations. When the Commission next inspected CFT in August
2012, it placed two of the company’s ambulances out of service for a
malfunctioning air conditioning in one and an overheating engine in the other.
      In June 2013, the Commission placed two more units out-of-service, and in
January 2014, another ambulance was placed out-of-service when the Commission
determined equipment was malfunctioning and missing. In August 2014, another
ambulance had to be taken out-of-service due to issues with the vehicle’s brakes
and other deficiencies. Over the course of 2014, the Commission removed a total
of three units from service.
      In addition to these inspections, the Commission received correspondence
from an employee of CFT complaining of deficiencies and hazards found in its
ambulances. The employee testified at the hearing regarding the company’s
management practices. He testified that management exchanged a license plate
from a certified unit for a non-certified unit, enabling a non-certified ambulance to
appear to be a unit that had passed inspection. The employee also testified that
management replaced a broken axle on one ambulance with an axle from a van and
put a tire on, inside out, making tire pressure testing impossible.
      CFT’s deficiencies next resulted in a customer filing a complaint with the
Commission in August 2015. The complaint alleged that an ambulance had no
functioning air conditioning while transporting a patient. Due to this lack of air
conditioning, the patient’s body temperature became dangerously high,
necessitating an emergency ambulance. Following this complaint, the Commission


                                           3
conducted another inspection of CFT’s ambulances and found several additional
safety hazards as well as a lack of required equipment.
         Based on documentation of the Commission’s inspection results and the
testimony at the hearing, the Commission decertified CFT as a licensed non-
emergency ambulance provider. CFT failed to appear at the hearing due to an error
on the company’s part and petitioned the Commission for a rehearing. Namely,
though CFT acknowledges proper service of a hearing notice, it alleges that the
employee receiving the notice neglected to forward it up the chain of command.
Accordingly, the hearing proceeded without a representative of CFT. Thereafter,
upon learning of the Commission’s adverse decision, CFT petitioned for a
rehearing. The Commission denied the rehearing and issued a final order to
decertify the company. CFT then appealed the Commission’s decision to this
Court.


                                 III. Standard of Review
         The Commission is not one of the agencies itemized in Section 10161(a) of
Delaware’s Administrative Procedure Act (“APA”).1 Therefore, Subchapter III,
Case Decisions, of the APA does not apply to the Commission. 2 Instead, a party
suffering an adverse ruling by the Commission has a right to appeal to the Superior
Court pursuant to Section 6611(a) of Title 16 of the Delaware Code. However,
Section 6611(a) of Title 16 does not articulate the appropriate standard of review
for such an appeal. Nevertheless, even though the statute is not clear regarding the
standard of review, both parties agree that a substantial evidence and error of law


1
    29 Del. C. § 10161(a).
2
  The inapplicability of the APA in this case includes the standard of review, notice, and other
case decision related provisions outlined in the APA. 29 Del. C. §§ 10161(a), (b).

                                               4
review is appropriate. In the absence of statutory direction, the Court will therefore
determine whether the agency’s decision was supported by substantial evidence
and is free from legal error.3
          Substantial evidence equates to “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” 4 Substantial evidence is
“more than a scintilla but less than a preponderance.” 5 On review, “the court is not
authorized to make its own factual findings, assess credibility of witnesses or
weigh the evidence.”6 Absent an error of law, the standard of review for a Board’s
decision is for abuse of discretion. 7 The Commission has abused its discretion only
when it “acts arbitrarily or capriciously” 8 or when its decision has “exceeded the
bounds of reason in view of the circumstances.”9




3
  E.g., Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205 (Del. 1992); Maurer v. Council
on Police Training, 2007 WL 625903, at *3 (Del. Super. 2007); see also Bon Ayre Land LLC v.
Bon Ayre Comty. Ass’n, 133 A.3d 559, at *2 n.11 (Del. 2016) (Table) (explaining that even
though the statute’s language is unclear regarding the standard of review, the substantial
evidence standard is appropriately applied).
4
 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)).
5
    Id. (quoting Cross v. Califano, 475 F.Supp. 896, 898 (D. Fla. 1979)).
6
    Sokoloff v. Bd. of Med. Practice, 2010 WL 5550692, at *5 (Del. Super. 2010).
7
    Digiacomo v. Bd. Of Pub. Educ., 507 A.2d 542, 546 (Del. 1986).
8
    PAL of Wilm. v. Grahm, 2008 WL 2582986, at *4 (Del. Super. 2008).
9
    Floundiotis v. State, 726 A.2d 1196, 1202 (Del. 1999).

                                                  5
                                    IV. Discussion
A. CFT was afforded constitutional due process protections.
           CFT argues that it was not provided due process protections by the
Commission. While it received notice of the hearing, CFT argues that because the
company did not appear at the hearing, it did not have an adequate opportunity to
be heard. Both parties agree that CFT’s professional license is property protected
under the Due Process Clause, thereby triggering notice and hearing protections.
However, the parties disagree regarding whether the Commission satisfied the
hearing requirement. CFT argues that it did not waive its right to a hearing by
failing to appear, and because it did not appear, the hearing requirement was not
satisfied. In contrast, the Commission argues that CFT received proper notice of
the hearing, and because the Commission held a hearing where CFT was entitled to
present evidence and argue material facts, it was provided with an opportunity to
be heard.
           An administrative agency hearing is required to provide due process
protections to its litigants.10 Due process requires “providing the parties with the
opportunity to be heard, by presenting testimony or otherwise.” 11 It also “requires
that the notice inform the party of the time, place, and date of the hearing and the
subject matter of the proceedings.” 12 CFT did not challenge the sufficiency of the
notice before the Commission when it requested a rehearing or when it filed its
Opening Brief on appeal. The Court’s review is limited to the arguments properly
raised below. Furthermore, for the reasons set forth herein, the Commission

10
  See Vincent v. E. Shore Mkts., 970 A.2d 160, 164 (Del. 2009) (noting that the Industrial
Accident Board is governed by due process requirements).
11
     Id.
12
     Id.

                                            6
satisfied the requirements of the Due Process Clause of the Fourteenth
Amendment.
           In Straley v. Advance Staffing Inc., in an unemployment matter, the
Delaware Supreme Court was confronted with a similar issue.13 There, a Claims
Deputy denied Straley unemployment benefits. 14 Straley then appealed to an
Appeals Referee where the Claims Deputy’s decision was overturned. 15 When the
employer appealed to the Unemployment Insurance Appeals Board (hereinafter the
“Board”), Straley failed to appear for the hearing. 16 Despite her absence, the Board
continued with the hearing and reversed the Appeals Referee’s decision. 17 Straley
appealed to the Superior Court claiming the Board violated her due process rights
but the Superior Court upheld the Board’s decision. 18 On appeal, the Delaware
Supreme Court recognized that “Due Process is satisfied when notice is sent by a
method reasonably calculated to afford the party an opportunity to be heard.”19
Because the Board provided Straley with notice of the hearing and the Board held
a hearing to determine the appropriateness of an award of unemployment benefits,
the Board satisfied due process requirements despite Straley’s failure to appear at
the hearing. 20


13
     984 A.2d 124 (Del. 2009) (Table).
14
     Id. at *1.
15
     Id.
16
     Id.
17
     Id.
18
     Id. at 2.
19
     Id.
20
     Id.

                                         7
      Similarly, the Commission satisfied due process requirements. Namely, it
provided CFT with notice of the hearing, which the company admits was delivered
to its business. Additionally, the Commission provided the company with the
opportunity to be heard. It held a hearing to address the alleged violations. During
this hearing, the Commission was willing to hear testimony from both parties
regarding CFT’s failure to comply with the Commission’s regulations. Had CFT
appeared at the hearing, it could have introduced evidence in its defense. CFT
failed to take advantage of its opportunity to be heard through no fault of the
Commission. Accordingly, the Court does not find that CFT’s failure to appear at
its hearing deprived CFT of due process.


B. CFT waived its argument regarding sufficiency of the notice; independent
of this waiver, the APA notice provisions relied upon by CFT are inapplicable.
      In its Reply Brief, CFT, for the first time, raises an argument that the form of
the notice below violated its due process rights. Specifically, CFT argues that
because the Commission failed to provide it with notice in accordance with the
APA’s standards, it is due a new hearing with the opportunity to present evidence.
      CFT correctly recognizes that the APA’s notice requirements require more
detail than otherwise required by the Due Process Clause. CFT points to two
provisions in the APA that it alleges the Commission’s notice violated. First, CFT
looks to Section 10122 of the APA as it includes the basic requirements regarding
the date, time, and place of the hearing and the right to counsel and subpoena
witnesses. Section 10122 also includes notice requirements including the subject
matter of the proceedings. CFT argues that the notice at issue contained no
information regarding whether or not a choice of informal fact finding was
permitted, nor did it include a sufficient description of the subject matter of the


                                           8
proceedings, which violates this section’s requirements.21 CFT further relies upon
Section 10131 of Title 29 in arguing that the Commission violated the APA by not
providing notice that it was seeking a revocation of CFT’s license.22 CFT claims
that the Commission’s failure to adhere to the APA’s specific statutory notice
requirements invalidates the results of the hearing.
           CFT’s argument must be rejected for two reasons. Even if the Commission
was required to adhere to the notice requirements identified by CFT, the issue was
not properly raised. Due process rights regarding insufficient notice are subject to
waiver when not properly raised. 23 CFT raised the lack of sufficient notice for the
first time in its Reply Brief. Furthermore, CFT fails to point to a part of the record
establishing that this issue was raised before the Commission and therefore waives
this argument. Delaware courts consistently hold that when a party fails to raise an
argument in its opening brief, that failure generally constitutes waiver of that
claim. 24 Consequently, CFT waived its insufficient notice argument.
           Independently, the text of the APA does not support CFT’s reliance on its
relevant provisions. Section 10161(a) of the APA enumerates the agencies that are
bound by the provisions of the chapter.25 The Delaware State Fire Prevention
Commission is not an itemized agency in Section 10161(a).26 As a result, the

21
     29 Del. C. § 10122.
22
     29 Del. C. § 10131.
23
   See Christiana Town Ctr., LLC v. New Castle Cnty., 865 A.2d 521, at *3 (Del. 2004) (Table)
(stating that notice and hearing due process rights are subject to waiver).
24
   See, e.g., Camtech School of Nursing and Technological Sciences v. Del. Bd. of Nursing, 2014
WL 604980, at *2 n.29 (citing Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993)) (noting that
claims raised for the first time in Appellant’s Reply Brief will not be considered).
25
     29 Del. C. § 10161(a).
26
     Id.

                                              9
Commission is not bound by the entirety of the APA’s provisions. Instead,
according to Section 10161(b), the agencies not listed in subsection (a) are only
“subject to Subchapters I and II . . . and Sections 10141, 10144, and 10145. . .” of
the APA.27 The procedural violations alleged by CFT reference requirements found
in Subchapters III and IV. Accordingly, the Court must reject CFT’s argument that
the APA notice violations resulted in a statutory or Due Process Clause violation.


C. The Commission did not abuse its discretion.
          CFT argues that the Commission’s denial of a rehearing was an abuse of
discretion and therefore should be reversed with a remand for a new hearing. In
order to overturn the Commission’s decision, CFT must show that the Commission
abused its discretion by showing that it “act[ed] arbitrarily or capriciously” 28 or it
“exceeded the bounds of reason in view of the circumstances.” 29
          Delaware courts have addressed an agency’s denial of a rehearing on several
occasions. Consistently, Delaware courts refuse to find a denial of a rehearing to be
an abuse of discretion. 30 Where an agency “followed its regulations, provided due
notice to all parties involved,” provided an opportunity to be heard, and then
subsequently denied a rehearing, such a decision is not an abuse of discretion. 31

27
     29 Del. C. § 10161(b).
28
     PAL of Wilm. v. Grahm, 2008 WL 2582986, at *4 (Del. Super. 2008).
29
     Floundiotis v. State, 726 A.2d 1196, 1202 (Del. 1999).
30
  E.g., Petrilli v. Discover Bank, 2012 WL 1415705, at *5 (Del. Super. 2012); Kreider v. JC
Penny Custom Decorating, 2010 WL 2562210, at *2 (Del. Super. 2010); Connors v. Mountaire
Farms of Delmarva, 1996 WL 453327, at *3 (Del. Super. 1996).
31
   E.g., Petrilli v. Discover Bank, 2012 WL 1415705, at *5 (Del. Super. 2012); see also Kreider
v. JC Penny Custom Decorating, 2010 WL 2562210, at *2 (Del. Super. 2010) (finding that the
Unemployment Insurance Appeal Board did not abuse its discretion in denying a rehearing after
the Board followed its regulations and provided notice and an opportunity to be heard); Connors
                                                 10
Here, as noted above, the Commission provided CFT with adequate notice of the
hearing and an opportunity to be heard. Additionally, the Commission followed its
regulations when decertifying the company. As such, it cannot be said that the
decision to deny the rehearing was arbitrary or capricious. Likewise, its decision
did not exceed the bounds of reason.
         CFT also argues the Commission abused its discretion with regard to the
severity of the sanction, while citing no comparatives for purposes of
proportionality review. It merely argues that the decertification decision was
disproportionate to the violations and therefore was an abuse of the Commission’s
discretion. According to CFT’s argument, because the sanction is disproportionate,
this Court has the authority to modify the Commissioner’s order.
         In support of this argument, CFT cites two Delaware Supreme Court cases
that are inapplicable to the case at hand. In the cases cited by CFT, the Delaware
Supreme Court was reviewing the Court of Chancery’s decisions regarding
whether to modify an order by Delaware’s Securities Commissioner.32 In both
cases, the Delaware Supreme Court recognized the Court of Chancery’s statutory
power to modify a Commissioner’s order on the basis that it was
disproportionate.33 When the Court of Chancery is undertaking a review pursuant
to the Delaware Securities Act, it is statutorily permitted to review de novo the
remedy ordered by the Commissioner. 34 In this case, there is no statutory authority

v. Mountaire Farms of Delmarva, 1996 WL 453327, at *3 (Del. Super. 1996) (finding that the
Unemployment Insurance Appeal Board did not abuse its discretion in denying a rehearing
where the Board followed its regulations and claimant failed to appear).
32
  Hubbard v. Hibbard Brown & Co., 633 A.2d 345 (Del. 1993); Blinder, Robinson & Co. v.
Bruton, 552 A.2d 466 (Del. 1989).
33
     Hubbard, 633 A.2d at 353; Blinder, Robinson & Co., 552 A.2d at 475.
34
  Hubbard, 633 A.2d at 353; see also 6 Del. C. § 73-502(b) (granting the Court of Chancery the
exclusive jurisdiction to modify an order of the Director under the Delaware Securities Act).
                                               11
cited by CFT that permits the Superior Court to substitute its independent
judgment regarding the appropriate sanction for the violation. As there is no
similar statutory authority for the Superior Court to modify the State Fire
Prevention Commission’s orders, CFT’s argument regarding disproportionality of
the sanction has no merit.


D. CFT’s failure to appear was not excusable neglect.
       CFT next argues that the Superior Court should grant it relief from the
Commission’s final order pursuant to Superior Court Civil Rule 60 because its
failure to appear was excusable neglect or mistake. 35 It claims that due to excusable
neglect, CFT’s senior management did not have knowledge of the hearing.
Accordingly, CFT argues that the company’s failure to appear was a mistake, and
therefore, the Superior Court should grant it relief from the Commission’s final
order which in effect closed the company. CFT further contends that the State’s
policy of hearing cases on the merits rather than by default further supports its
argument for relief under Rule 60.
       Foremost, the Court notes that Superior Court Civil Rule 60 does not apply
to a final order issued by an administrative agency. Superior Court Civil Rule 60
provides relief only from a Superior Court final judgment or order. Nevertheless,
in applying that standard to the agency’s decision, as urged by CFT, the Court does
not find excusable neglect.
       Relief from judgment under Rule 60 requires the moving party to show
“valid reasons for the neglect—reasons showing that the neglect may have been


35
   The rule provides the Superior Court with the authority to relieve a party from a final
judgment, order, or proceeding for the following reasons: “[m]istake, inadvertence, surprise, or
excusable neglect.” Del. Super. Ct. Civ. R. 60(b)(1).

                                               12
the act of a reasonably prudent person under the circumstances.” 36 Furthermore, “a
mere showing of negligence or carelessness without a valid reason may be deemed
insufficient.”37
           Here, CFT contends its negligence was the result of a part-time employee
and the stress of the holiday season. Even if the Court were to review the issue at
hand, de novo, as CFT seems to urge, this does not constitute excusable neglect.
From the licensee’s perspective, it exhibited mere carelessness without a valid
reason.
           In Apartment Communities Corp. v. Martinelli, the Delaware Supreme Court
addressed the issue of excusable neglect by looking to federal precedent due to the
similarities between the Superior Court Civil Rules and the Federal Rules of Civil
Procedure.38 There, the Delaware Supreme Court reviewed federal case law in
determining whether an employee failing to inform the company that it was served
with a compliant constituted excusable neglect. 39 The Supreme Court held it was
not excusable neglect after relying on a case from the United States Court of
Appeals for the Fifth Circuit where a company failed to respond to a complaint
because of a mistake by a commercial carrier in his attempt to deliver the
document from an employee to the company’s claims office. 40 The Delaware
Supreme Court found persuasive the reasoning that “the corporation should have
implemented at least minimum internal procedural safeguards to avoid such


36
     Dishmon v. Fucci, 32 A.3d 338, 346 (Del. 2011).
37
     Id.
38
     859 A.2d 67, 70—71 (Del. 2004).
39
     Id. at 70.
40
     Id. at 71 (citing Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933 (5th Cir. 1999)).

                                                  13
mishaps.”41 Similarly, in Martinelli, the Court relied upon the United States Court
of Appeals for the Eleventh Circuit holding in a case where a mail clerk misplaced
a complaint, which also did not constitute excusable neglect. 42
           In Martinelli, the Delaware Supreme Court refused to find excusable neglect
stating that “it was the responsibility of the defendant . . . to ensure that all
employees who are capable of accepting service of process know when and to
whom the complaint should be forwarded.”43 The Court went on to state that
“when service of a complaint is complete and legal, it is immaterial that the agent
does not communicate the fact of service to the principal.” 44 Due to the company’s
failure to implement safeguards to avoid such a situation, the Delaware Supreme
Court refused to find excusable neglect. 45 For purposes of this analysis, service of a
civil complaint does not meaningfully differ from a notice of an administrative
hearing. This Court cannot find CFT’s failure to appear at the hearing to be
excusable neglect on the basis of the part time employee’s failure to forward the
notice to senior management.
           Furthermore, the fact that the company was busy due to the holiday season is
not grounds for finding excusable neglect. In Cohen v. Brandywine Raceway
Ass’n, the Superior Court was faced with an excusable neglect argument based on
a similar claim.46 In that case, the office manager received the amended complaint
but failed to ensure that appropriate personnel in the company were aware of it
41
     Id. (quoting Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933 (5th Cir. 1999)).
42
     Id. (citing Gibbs v. Air Can., 810 F.2d 1529, 1537 (11th Cir. 1987)).
43
     Id.
44
     Id. 71—72.
45
     Id.
46
     238 A.2d 320, 325 (Del. Super. 1968).

                                                  14
because that employee was exceptionally busy because of the Christmas season. 47
Likewise, the Commission’s denial of a rehearing cannot be said to have been an
abuse of discretion when evaluated pursuant to the standards of Superior Court
Civil Rule 60(b)(1).


E. The Commission’s decision to decertify CFT is supported by substantial
evidence and is free from legal error.
           Section 6604 of Title 16 of the Delaware Code provides the Commission
with the authority to formulate rules and regulations. Pursuant to this authority, the
Commission enacted Regulation 7.10 (12.1) which provides the Commission with
the authority to revoke an ambulance service provider’s license. 48 Regulation 710
(12.3) further delineates when the Commission may revoke a license. 49 The
Commission identifies two such provisions that justified it in revoking CFT’s
license: (1) violation of any provision of the regulations, and (2) demonstration of
the licensee’s gross negligence, incompetence, or misconduct. 50
           At the hearing, the State, on behalf of the Commission, submitted evidence
of several inspections where the Commission found violations of the regulations.
Generally speaking, the various inspections found deficient equipment and safety
hazards. The results of these inspections frequently required the Commission to
place CFT’s ambulances out-of-service.
           Additionally, at the hearing there was testimony from a former employee of
CFT. He testified that management took a license plate from a certified unit and

47
     Id.
48
     17 DE Reg. 982 (04/01/14).
49
     Id.
50
     Id.

                                           15
placed it on a non-certified unit, enabling the non-certified ambulance to appear to
be a unit that had passed inspection. The employee also testified that management
replaced a broken axle in an ambulance with an axle from a van and put a tire on
inside out, rendering the tire unable to be pressure tested.       Such action by
management certainly constitutes misconduct.
      The Commission’s order outlined the specific facts found and the evidence
submitted which formed the bases for its conclusions. In light of the evidence of
non-compliance throughout the six year span in which CFT was licensed, there
was substantial evidence to support the Commission’s decision. Furthermore, the
Commission’s decision was free from legal error.


                                  V. Conclusion
      For the aforementioned reasons, the Commission’s decision to decertify
CFT is supported by substantial evidence and is free from legal error.          The
Commission’s refusal to grant a rehearing was not an abuse of discretion.
Accordingly, its decision to decertify CFT is AFFIRMED.
      IT IS SO ORDERED




                                                   /s/Jeffrey J Clark
                                                        Judge




                                        16
