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

NEW CASTLE AUTO AUCTION
& CONSIGNMENTS, INC.,

Plaintiff—Below/Appellant,

V. CA. No. CPU4-13—001066

ERIC RILEY & JEANNE RILEY,

Defendants-Below/Appellees.

VVVVVVVVVK—Jv

Submitted: November 10, 2014
Decided: December 1, 2014

D. Miika Roggio, Esquire David 1.3. Facciolo, Esquire
Silverman, McDonald & Friedman Jessica L. Cuprak, Esquire
1010 N. Bancroft Parkway, Suite 22 Minster & Facciolo, LLC
Wilmington, DE 19805 521 West Street

Attorney for Plaintiﬁ Wilmington, DE 19801

Attorneyfor Defendants

OPINION AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
FOR LACK OF JURISDICTION
The instant matter is an appeal de novo brought pursuant to 10 Del C. § 9570 et’ seq. from
the Justice of the Peace Court. Trial in this matter was originaily scheduled for October 23,
2014. During sidebar, Counsel for Appeilees raised a potential jurisdictional issue, and indicated
that Appeliant may have untimely ﬁled the appeal.1 The Court ordered counsel for both parties
to submit legal argument on whether the instant appeal was timely ﬁled pursuant to 10 Del. C. §
9570 et seq. and whether the Court therefore has jurisdiction. This is the Court’s Decision and

Order.

' At sidebar, counsel did not stipulate that this potential issue was being raised as a Motion to Dismiss;
however the Court shall treat this dispositive issue as a Motion to Dismiss pursuant to CC'P Civil Rule

12(b)(1).

W

Plaintiff-Below/Appellant New Castle Auto Auction & Consignments, Inc. (“Appellant”)
brought an action for breach of contract in JP Court against Defendants—Belothppellees Eric
Riley & Jeanne Riley (“Appellees”) defaulted on a loan. On March 5, 2013, the Justice of the
Peace Court dismissed the case for Appellant’s failure to produce evidence of any debt.

The docket reﬂects that Appellants originally filed the Notice of Appeal and Complaint
on Appeal on March 20, 2013 Via the eFlcx Electronic Filing System, the electronic ﬁling system
for the Court. On March 25, 2013, Appellant received a rejection notice from the Court’s
electronic ﬁling system, indicating that the Court rejected the appeal due to there being
insufﬁcient funds in Appellant Counsel’s eFlex Electronic Filing System account.2 The Notice
of Appeal and Complaint on Appeal otherwise complied with 10 Del. C. § 9571 and Court of
Common Pleas Civil Rule 723. By letter dated March 28, 2013, Counsel explained that he
replenished the tiling funds in the account and re-ﬁled the appeal. The Clerk of the Court
accepted the appeal on April 2, 2013.

After the Court accepted the appeal, Appellees ﬁled Answers,3 and both parties have
participated in the litigation process by engaging in motion practice; attending a pre-trial
conference; exchanging written discovery and documents, and jointly preparing a Case
Management Order and trial exhibits. The parties have also engaged in mediation and settlement
discussions.

On October 23, 2014, after Counsel for Appellees raised the potential jurisdictional issue,
the Court instructed counsel for both parties to ﬁle legal argument on whether the instant appeal

was timely ﬁled. Both parties submitted brieﬁng on the matter.

2 The funds available at the time totaled to $106.50; the filing fees for the appeal totaled to $128.50.
3 Appellees originally ﬁled two separate, but identical Answers, pro .38, but have since retained counsel.

2

Section 9571 of Title 10 of the Delaware Code governs appeals ﬁ'om the Justice of the
Peace Court. Court of Common. Pleas Civil Rules 72.1 and 72.3 deﬁne the procedures for ﬁling
an appeal under 10 Del. C. § 9571, and “. . . [t]he Court rules are afforded the same status” as the
statute.4 An appeal brought pursuant to 10 Del. C. § 9571 “...shall be taken within ﬁfteen days
of the ﬁnal judgment.”5 Failure to timely ﬁle an appeal within the ﬁfteen day time period creates
“a jurisdictional defect,” which the Court may excuse in unusual circumstances if the untimely
ﬁling was beyond the appellant’s control.6 This narrow exception includes a situation where the
failure of court personnel results in an untimely ﬁled appeal.7

In their legal argument, Appellees rely on Smith v. Staie8 and Giordano v. imitate9 to
support their argument that Appellant’s appeal was untimely ﬁled, and that the untimeliness was
attributable to Appellant’s own actions. Appellees equate the conduct of the Smith and Giordano
appellants to that of Appellant’s; however the matter at hand is distinguishable from both cases.
In both Smith and Giordano, the appellants ﬁled untimely notices of appeal and attributed the
untimeliness to a failure of court personnel.10 The Supreme Court found, in both Smith and

Giordano, that the untimely ﬁlings were not attributable to Court personnel, but rather, were

 

4 Tiger Roofing, Inc. v. Schwamman, 201 I WL 6947609 at *2 (Del. Com. Pl. Dec. 13, 201 1).

5 10 Del. C. § 9571(1)); CCP Civ. R. 72.3(b).

6 Riggs v. Riggs, Del.Supr., 539 A.2d 163, 164 (1988).

7 Pulitzer v. DCSE, 32 A.3d 989 at *1 (TABLE) (Del. 201 1) (oiling Bey v. State, 402 A.2d 362, 363 (Del.
1979)).

S 812 A.2d 224 (TABLE) (Del. 2002).

9 723 Add 833 (Del. 1998).
:0 111 Smith, the appellant sought review of a February 22, 2002 ﬁnal order of Superior Court, and ﬁled the

notice of appeal in the Delaware Supreme Court on May 28, 2002. 812 A.2d at *1. The Smith appellant
mistakenly ﬁrst ﬁled the appeai in Superior Court, and argued that his ﬁling in the Supreme Court was
attributable to the Superior Court Prothonotary, who failed to inform him of his error concerning his
original ﬁling. Id. in Giordano, the appellant also claimed that his untimely ﬁling was attributable to
cou1t personnel, claiming that the court’s personnel failed to notify him of the court’s entry of a ﬁnal
judgment. 723 A.2d at 834.

attributable to the appellants themselves.” Unlike Smith and Giordano, the matter at hand does
not involve a situation in which Appellant relied on court personnel or untimely ﬁled the appeal.
instead, Appellant timely ﬁled the appeal, and properly responded to the rejection notiﬁcation

from the Court’s automated electronic ﬁling system.

In 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.
Court of Common Pleas Civil Rule 79 governs the Court’s e—Filing Rules, and permits civil cases
to be electronically ﬁled.12 Speciﬁcally, CCP Civil Rule 79.1(11)(4)(i) addresses system or user

ﬁling errors, and provides the following:

If the electronic ﬁling is not ﬁled with the Clerk or served because
of (1) an error in the transmission of the document to the Court
which was unknown to the sending participant, or (2) a failure to
process the electronic ﬁling when transmitted to the Court, or (3)
rejection by the Clerk, or (4) other technical problems experienced
by i'heﬁler, the Court may upon satisfactory proof enter an order
permitting the document to be ﬁled or served nunc pro tune to the
date it was ﬁrst attempted to be sent electronically.”

In Nicholas v. Nat ’1 Union Fire Ins. Co, the issue before the Supreme Court of Delaware
concerned the timeliness of an electronically-ﬁled appeal from Superior Court.14 The appeal,

although correctly captioned and in compliance with the Court’s rules, was mistakenly ﬁled in

n In Smith, the Court noted that contrary to the appellant’s contention, his pro se status did not excuse his
failure to properly comply with the timeﬁ'ame in which he could file an appeal. 812 A.2d at * l.
Ultimately, the Court found that “[tjhere [was] no evidence to suggest that the Prothonotary did anything
to lead Smith to believe that his appeal had been perfected,” and dismissed the appeal. Id. In Giordano,
the Court stated that although the appellant claimed to be unaware of the Court of Chancery’s ﬁnal order,
appellant had “a continuing duty of inquiry” to be aware of the entry of the ﬁnal judgment under the
speciﬁc circumstances. 723 A.2d at 837—38.

‘ ccr Civ. R. 79(b).

‘3 ccr Civ. R. 79.](h)(4)(i) (emphasis added).

M Nicholas v. Nat’l Union Fire Ins. Co, 74 A.3d 634, 635 (Del. 2013), remanded to 83 A.3d 73l (Del.
Super. Dec. 20, 2013)

Superior Court.15 The day after receiving notiﬁcation of the error, the appellants immediately
acted to correct their mistake; however, the time in which the appellants were permitted to file an
appeal had organ-ed.26 The Supreme Court noted that “...[a} notice of appeal should not be
rejected automatically by the File and Serve system. The sufficiency of an appeal is a legal
question to be determined by a judge after notice to the appellant and an opportunity to be
heard.”17 Ultimately, the Court found that “[that] process was not followed as a result of the

Superior Court’s automated ﬁling system,” and accepted the Nicholas appellants’ notice of

appeal nunc pm lune}8

Although the factual scenario differs from Nicholas, the pertinent issue underlying the
matter at hand and Nicholas are similar. On March 20, 2013, Appellant’s Counsel properly and
timely filed an appeal from a March 5, 2013 final order of the JP Court. Similar to counsel in
Nicholas, Appellant’s Counsel complied with the Court’s rules and procedure by ﬁling the
appeal within the ﬁfteen—day time period in which it was permitted to appeal. Additionally,
Appellantis Counsel’s actions in remedying its filing error are similar to that of the Nicholas
appellant because Counsel acted prudently and reasonably. Within three days of receiving the
automated rejection notice, Counsel replenished the funds in the eFlex account; notiﬁed the
Court; and re—filed the appeal. Although the Nicholas appellant attempted to correct its error one
day after the time to appeal had expired, in the matter at hand, Appellant did not receive the
automated rejection notice untii March 25, 2013, which was ﬁve days past the deadline to
appeal. Under these circumstances, the Court finds that Appellant timely filed the appeal, and

that the rejection of the electronic ﬁling was attributable to the Court’s automated system. The

15 Nicholas, 74. A.3d at 635.
1" Id.

*7 Id.

“Id. at 635—636.

Court also ﬁnds the replenishment of the funds in the E-Flex account relates back to the original
ﬁling.

This issue concerning the automated rejection notice has highlighted a new possible
glitch in today’s litigation process. Over the past eighteen years, this Judicial Ofﬁcer has spoken
to members of the Delaware Bar at the Fundamentals of the Courts’ Litigation Section and
recently the e-ﬁling system, and has discovered that while the e-filing system has enhanced and
facilitated the litigation process, it also has generated a new set of technological problems for
litigants. The automated rejection notice, such as the one in this matter, may be one of them as it
mechanically discards an appellant’s ﬁling without affording the appellant an opportunity to be
heard before the Court, which is standard practice in deciding whether an appeal has been
perfected.

In the interest of manifest justice, the Court cannot dismiss this case on the present facts.
The Court ﬁnds that Counsel’s prudent act of replenishing funds relates back to the original

March 20, 2013 ﬁling date, and accepts the Appellant’s ﬁling of appeal mmc pro rune.

III. OPINION AND ORDER
The Court therefore accepts the Notice of Appeal nunc pro tune in accordance with Court
of Common Pleas Civil Rule 79. 10:) (49(1). The Court will retain jurisdiction over this matter.

IT IS SO ORDERED this lst day of December, 2014.

% \C wgick
John K. elch,

Judge

cc: Ms. Tamu White
Chief Civil Clerk

