    IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

                                     )
KATHLEEN MORGAN and                  )
TURKEYS, INC.,                       )
                                     )
  Plaintiffs/Petitioners/Appellants, )
                                     )
           v.                        )    C.A. No. 14A-11-005 JAP
                                     )
LIMESTONE VALLEY                     )
ENTERPRISES, LLC,                    )
                                     )
  Defendant/Respondent/Appellee. )
                                     )

                              ORDER


     1.   Petitioners ask this court to issue a writ of certiorari

reviewing an adverse holding of a three judge panel of the Justice of

the Peace Court. Petitioner Morgan’s check for the payment of filing

fees in this court was returned for lack of sufficient funds.

Consequently, petitioners have added a request for leave to proceed

in forma pauperis.    This court previously struck the petition of

Turkeys Inc. because it was not signed by a member of this court.

At the same time it ordered petitioner Morgan to show cause why

her claim should not be dismissed for lack of standing. Petitioners
have responded to that order, and this is the court’s final judgment

in this matter. It has not previously acted on the request to proceed

in forma pauperis because that application was only recently filed.


                      Facts and Procedural History


     2.      Turkeys Inc. was at one time a franchisee of Capriotti’s,

Inc. and operated a sandwich shop using the Capriotti’s name in

the Lantana Square Shopping Center. Petitioner Morgan was the

sole stockholder and officer of Turkeys.        It appears that Morgan

personally     guaranteed   at   least   some   of   Turkeys’   financial

obligations.


     3.      For reasons which are not clear, Turkeys apparently fell

into financial trouble. One creditor, Geoffrey Scott, brought suit in

this court against Turkeys and Morgan, who was the guarantor of

Turkeys’ debt to Scott. He ultimately obtained a judgment against

both for $298,000 and in 2013 he began to levy on the goods and

chattels at the sandwich shop.


     4.      Limestone Valley Enterprises, LLC owned the premises

which Turkeys used as the sandwich shop. Limestone and Turkeys


                                    2
entered into the lease in 2008 and Turkeys began operation soon

thereafter.   A few weeks after he obtained his judgment, Scott

served a writ of attachment on Limestone seeking to attach Turkeys’

interest in the Limestone-Turkeys lease. The issuance of the writ of

attachment constituted an event of default by Turkeys under the

lease. In May 2014 Limestone notified Turkeys of the default and,

without waiving its rights, allowed Turkeys time to cure the default

by having the attachment vacated.


     5.       Turkeys did not cure the default, so in August 2014

Limestone filed an action against Turkeys for a writ of possession in

the Justice of the Peace Court. Limestone sought no monetary relief

against Turkeys and, accordingly, Morgan was not named as a

defendant.     Turkeys demanded a jury trial, which Limestone

opposed on the basis that Turkeys waived any right to a jury trial in

its lease with Limestone.     The matter was tried before a single

Justice of the Peace, who found in favor of Limestone.        Turkeys

appealed to a three judge panel of that court.


     6. On October 20, 2014, the three judge panel found in favor

of Limestone. In doing so it rejected Turkeys’ request for a jury trial


                                   3
because of the waiver in the lease. The court found that Turkeys

was in violation of its lease.


     7.    On November 17, 2014, Morgan and Turkeys filed a

petition for a writ of certiorari in this court. No attorney entered an

appearance on behalf of Turkeys.


     8.    Shortly thereafter this court entered an order which in

pertinent part:


           (a) struck Turkeys’ petition because it was not signed by
           a member of the Bar of the Supreme Court of Delaware,
           and
           (b) directed Morgan to explain why her petition should
           not be dismissed because she lacked standing since she
           was not entitled under the lease to possession of the
           premises.
Morgan timely responded to this court’s order.


     9.   In response to this court’s decision to strike Turkeys’

petition because it was not signed by an attorney, Morgan asks this

court to appoint an attorney to represent it. There is no basis for

the court to appoint an attorney here.      Consequently, it will not

vacate its decision striking Turkey’s petition.




                                   4
              The request for leave to proceed in forma pauperis.


10. Plaintiffs in a civil matter are required by law to pay a filing fee

when instituting a civil matter in this court. 1                     The court is

authorized to conditionally waive or reduce that fee when an

individual is unable to pre-pay that fee. In order to obtain such a

waiver, the plaintiff must:

                [S]ubmit a sworn affidavit sufficient to allow the court
                to determine the ability of the affiant to pay all or any
                portion of the court costs and fees associated with the
                filing of an action in that court. Such affidavit shall
                contain a statement that the affiant is unable to pay
                the costs and fees, and shall provide complete
                information as to the affiant's identity, the nature,
                source and amount of all of the affiant's income, the
                affiant's spouse's income, all real and personal
                property owned either individually or jointly, all cash or
                bank accounts held either individually or jointly, any
                dependents of the affiant and all debts and monthly
                expenses. The affiant shall further swear or affirm that
                the information in the affidavit is true and correct and
                made under penalty of perjury. 2



In her request for leave to proceed in forma pauperis Morgan failed

to provide any information concerning the personal property,

including bank accounts, which she owns. This omission is not a

mere technicality. A profit and loss statement Morgan submitted in


1   Superior Court Civil Rule 3(e).
2   10 Del. C. § 8803(b).

                                            5
connection with her petition for a writ of certiorari shows a net

profit for Turkey of $285,000 in 2013. Accordingly, the court finds

that it is not a foregone conclusion that Morgan owned no personal

property and therefore her omission of that information (even

though called for by the form she completed) is material.


      11.   Ordinarily in instances in which a pro se plaintiff has

omitted information in an in forma pauperis request the court would

grant the plaintiff an opportunity to remediate such a deficiency.

Here the court will not do so because the underlying petition for a

writ of certiorari is frivolous and would therefore be subject to

immediate dismissal even if Morgan had submitted an adequate

affidavit in support of her motion to proceed in forma pauperis.

Thus, any supplement or amendment to her affidavit would be

futile.


             The petition for a writ of certiorari is frivolous.


      12. In cases where a plaintiff is proceeding in forma pauperis

Delaware law permits the court to dismiss a frivolous complaint

without requiring service upon the defendant. The law provides for

this because, unlike cases in which plaintiffs pay the filing fee,

                                      6
there is no economic disincentive to the filing of frivolous or

malicious complaints by a plaintiff proceeding in forma pauperis. 3


         14. The court is required to dismiss cases such as this when

it determines that the case is legally or factually frivolous.

According to section 8803 of Title 10:

                Upon establishing the amount of fees and costs to be
                paid, the court shall review the complaint. Upon such
                review, the complaint shall be dismissed if the court
                finds the action is factually frivolous, malicious or,
                upon a court's finding that the action is legally
                frivolous and that even a pro se litigant, acting with
                due diligence, should have found well settled law
                disposing of the issue(s) raised. 4

          The court finds that Morgan’s claims are legally frivolous.


         15.     Insofar as Morgan’s lack of standing is concerned, she

points to nothing giving her standing to contest a judgment

rendered against an artificial business entity. In particular she did

not bring to the court’s attention any document giving her (as

opposed to Turkeys) a right to possession of the premises.

Although Morgan was a guarantor of Turkey’s financial obligations

under the lease, the action merely sought possession of the

premises and did not seek recovery of any money damages from

3   Wood v. Brian Collison & Dep’t of Corr., 2014 WL 7149214, at *5 (Del. Super. Dec. 12, 2014).
4   10 Del. C. § 8803(b).

                                                 7
Turkeys. Consequently, she had no standing to contest the action

for a writ of possession.


       16. Even assuming that Morgan had standing here, she would

not be entitled to a writ of certiorari. According to the Supreme

Court:

              [T]he petition must raise the type of claim reviewable
              on certiorari, namely whether the lower tribunal (1)
              committed errors of law, (2) exceeded its jurisdiction,
              or (3) proceeded irregularly.      A decision will be
              reversed for an error of law committed by the lower
              tribunal when the record affirmatively shows that the
              lower tribunal has proceeded illegally or manifestly
              contrary to law. Reversal on jurisdictional grounds is
              appropriate ‘only if the record fails to show that the
              matter was within the lower tribunal's personal and
              subject matter jurisdiction. Reversal for irregularities
              of proceedings occurs if the lower tribunal failed to
              create an adequate record for review. 5



The court finds that the opinion of the three judge panel was

orderly and well-reasoned. The closest Morgan gets to alleging any

of the required showings for a writ of certiorari is her contention

that her petition is “[b]ased on lack of judicial standing of

Landlord’s plea,” which the court interprets as challenging the

jurisdiction of the Justices of the Peace Court. It is settled however


5Black v. Justice of the Peace Court 13, 105 A.3d 392,394 (Del. 2014) (internal footnotes and
marks omitted).

                                               8
that the Justices of the Peaces Courts are vested with jurisdiction to

hear petitions for a writ of possession brought by landlords of

commercial leaseholds. 6


         Morgan’s petition to proceed in forma pauperis is therefore

DENIED and her claims are DISMISSED.




                                         __________________________
February 18, 2015                             John A. Parkins, Jr.
                                                    Judge




oc:      Prothonotary

cc:      Kathleen Morgan, 9 West Shore Court, Landenberg,
         Pennsylvania 19350
         Limestone Valley Enterprises, LLC, 3403 Lancaster
         Pike, Wilmington, Delaware 19805
         Jeffrey M. Weiner, Law Offices of Jeffrey M. Weiner,
         P.A., Wilmington, Delaware




6   25 Del. C. chapter 57.

                                     9
