IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

ANTHONY E. SAPIENZA,
: C.A. No. K18M-09-001 WLW
Plaintiff, :

Vv.

DELAWARE STATE UNIVERSITY
POLICE DEPARTMENT, et al.

Defendants.
Submitted: July 22, 2020
Decided: July 24, 2020
ORDER
Defendants’ Motion to Dismiss for Failure
to Prosecute or, in the Alternative, for

Judgment on the Pleadings
Granted Without Prejudice.

Ronald G. Poliquin, Esquire of The Poliquin Firm, LLC, Dover, Delaware; attorney
for Plaintiff.

James D. Taylor, Jr., Esquire and Randall S. MacTough, Esquire of Saul Ewing
Arnstein & Lehr, LLP, Wilmington, Delaware; attorneys for Defendants.

WITHAM, R.J.
Anthony Sapienza v. Del. State. University, et al.
C.A. No. K18M-09-001 WLW
July 24, 2020

1. Presently before the Court is Defendant’s Motion to Dismiss the Complaint
for Failure to Prosecute pursuant to Superior Court Civil Rule 41(b) (“Rule 41(by”),
or, in the alternative, for Judgment on the Pleadings pursuant to Superior Court Civil
Rule 12(c) (“Rule 12(c)”). After considering Defendant’s Motion, Plaintiffs
Response in Opposition, the record of the case, as well as hearing arguments of
counsel on July 22, 2020, it appears to the Court that:

2. Anthony Sapienza, Plaintiff in this case, was employed by the Defendant,
Delaware State University, as a sworn police officer certified by Delaware Criminal
Justice Council. On or about June 12, 2018, Plaintiff's employment was terminated.!
Plaintiff claims that the termination violated his rights under Chapter 92, Title 11 of
the Delaware Code, which is also referred to as the Law Enforcement Officers Bill
of Rights (““LEOBR”).

3. Plaintiff bases his allegations on the fact that he was not questioned at the
agency headquarters or office of the local troop or police unit as required by 11 Del.
C. § 9200(c)(2). Plaintiff further claims he wasn’t informed of the name, rank, and
command of the officer in charge of the investigation as required by 11 Del. C. §
9200(c)(3). He also claims that he was not informed in writing of the nature of the
investigation prior to being questioned and was not informed of the results of the
investigation in writing as required under 11 Del. C. § 9200(c)(4) and 11 Del. C. §
9200(c)(11). Finally, Plaintiff claims that he never received a hearing required by 1]

 

' See Compl. { 1-7. Plaintiffs employment was terminated during the probationary period for all
new employees.
Anthony Sapienza v. Del. State. University, et al.
C.A. No. K18M-09-001 WLW
July 24, 2020

Plaintiff explains that his counsel’s failure to appear at the status hearing was a
mistake.* Plaintiff disputes that his rights’ violations were technical in nature, claims
that his Due Process rights were violated, and also states that even if the Court
decided that the writ of mandamus was not the correct remedy, the dismissal of the
case would still be inappropriate.’ Finally, Plaintiff claims that the CBA did not
supersede LEOBR in this case because Article XVI of the Agreement stated that
certified police officers still were entitled to the Act’s protections.!?

6. Pursuant to Rule 12(c), any party may move for judgment on the pleadings
after the pleadings are closed but within such time as not to delay trial. However,
“(t]he standard for granting a motion for judgment on the pleadings is stringent,”
and the motion will be denied unless there are no material issues of fact and the
movant is entitled to judgment as a matter of law.'' Where a document is integral to
the pleadings, the court may consider it in deciding a Rule 12(c) motion without
converting it to one for summary judgment.'? Delaware Superior Court Civil Rule
41(b) states that “for failure of the plaintiff to prosecute or to comply with these

Rules, or any order of Court, a defendant may move for dismissal of an action or of

 

8 Td. at 6.

? Id. at | 7.

'0 Td. at J 10.

'' Bakotic v. Bako Pathology LP, 2018 WL 6601172, at *2 (Del. Super. Dec. 10, 2018).

2 Id.
Anthony Sapienza v. Del. State. University, et al.
C.A. No. K18M-09-001 WLW
July 24, 2020

any claim against the defendant.”'? The Court has discretion to dismiss a claim for
failure to prosecute in order to ensure that its procedures are managed effectively.'*

7. Here, some disagreement exists as to whether the parties actually engaged
in meaningful discovery. Plaintiff also admits that neither him not his counsel
attended a status hearing but contends that it was a mistake. Furthermore, the parties
engaged in a settlement negotiation. Analyzing all these factors together, it does not
appear to the Court that the dismissal for failure to prosecute is appropriate in this
case, and, indeed, the Defendants have not pressed this issue.

8. LEOBR applies to all police officers. In this case, however, the relationship
between the parties is governed by the CBA. Article XVI of the Agreement states
that “LEOBR should apply to all employees covered by this agreement.”!> The
Agreement in this case is somewhat ambiguous, and it is unclear whether it
incorporates the Act in relation to probationary employees. Additionally, purely
technical LEOBR violations do not warrant the issuance of a writ of mandamus.!'®
Plaintiff here also alleges that his right to a hearing was not honored, which is not a
purely technical violation.

9. Delaware courts recognize “the requirements of the procedural process due

in employment termination cases as follows: (1) clear notice of the charge being

 

'3 Ivory v. Harrington Raceway, Inc., 2016 WL 7468082, at *1 (Del. Super. Dec. 28, 2016).

'4 Breeding v. Hillandale Farms of Del., Inc., 2011 WL 378847, at *1-2 (Del. Super. Jan. 28,
2011).

'S See Defendant’s Answer to Coml. Exhibit B p. 23.

'® See Smith v. Dep’t of Public Safety of Del., 1999 WL 1225250, at *13 (Del. Super. Oct. 26,
1999).
Anthony Sapienza v. Del. State. University, et al.
C.A. No. K18M-09-001 WLW
July 24, 2020

considered; (2) a reasonable time interval to marshal facts and evidence to respond;
(3) an explanation of the evidence supporting the charges; and (4) an opportunity to
present plaintiff's side of the case in a manner which will allow a decision maker to
weigh both sides.”'’ Here, Plaintiff pled enough facts to infer that he may not have
been afforded a proper process. Therefore, Plaintiff may be entitled to other
remedies.

10. Nevertheless, even if Plaintiff was entitled to a hearing, the writ does not
appear to be an appropriate remedy in this case. This conclusion follows from the
fact that most of the alleged violations appear to be technical in nature, the fact that
significant time passed since Plaintiff's termination, and the fact that the CBA in this
case provides for officers’ protections and procedures to follow in case of a
disciplinary action. Accordingly, in Stump v. Town of Middletown, the Court refused
to issue a writ of mandamus despite the fact that it determined that the officer was
entitled to a hearing under the CBA that governed his employment.'® This Court
finds that the rationale of the Stump court is helpful.

11. “A writ of mandamus is designed to compel the performance of an official
duty if it is shown that: 1) the complainant has a clear right to the performance of
the duty; 2) that no other adequate remedy is available; and 3) that the officer,

tribunal, board, or agency arbitrarily has failed or refused to perform its duty.”!? A

 

'7 Id. at *8 (citing Barber v. City of Lewes, 1997 WL 127951, at * 13 (Del. Super., Jan. 31, 1997).
'8 See Stump v. Town of Middletown, 2019 WL 1514206, at *3-5 (Del. Super. Apr. 8, 2019).

'9 Td. at *4 (citing Land v. Carroll, 810 A.2d 350 (Del. 2002).
Anthony Sapienza v. Del. State. University, et al.
C.A. No. K18M-09-001 WLW
July 24, 2020

writ of mandamus should be issued “in the exercise of a sound judicial discretion.”
Additionally, a writ of mandamus is an extraordinary measure.”! “Mandamus is
an extraordinary writ used to compel performance of a duty by an administrative
agency,” public body, or public official which the Superior Court will issue only
where the petitioner has shown a “clear legal right to the performance of a non-
discretionary duty.”

12. Under the facts of this case, Plaintiff should consider a different form of
relief. Accordingly, the Motion to Dismiss is GRANTED without prejudice.

IT ISSO ORDERED.

/s/_ William L. Witham, Jr.
Resident Judge

WLW/dmh

 

20 Td.
2! See Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015).

*2 New Castle County v. Pike Creek Recreational Services, LLC, 82 A.3d 731, 760-761 (Del. Ch.
2013) (quoting Pleasanton v. Hugg, 2010 WL 5313228, at *1 (Del. Super. Nov. 29, 2010) (talking
about extraordinary measure)); (quoting Ramedio v. City of Newark, 337 A.2d 317, 318 (Del.
1975) (talking about clear legal right)).
