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

JUAN ORTIZ,
Plaintiff-Below/Appellant,
v. C.A. N0. CPU4-16-000625

PAUL WARFIELD, et. al.,

Defendants-Below/Appellees.

\/\J\J\./\./\J\/\y\./\./

Submitted: March 14, 2016
Decided: April 12, 2016

Juan Ortiz, SBI# 194247 Stuart B. Drowos, Esquire

J ames T. Vaughn Correctional Center Deputy Att0rney General

1181 Paddock Road Department of Justice

Smyrna, DE 19977 820 N. French Street
Pro SeAppellant Wilmington, DE 19801

Attorney for Appellees

ORDER AND MEMORANDUM OPINION ON
APPELLANT’S MOTION FOR REARGUMENT

Juan Ortiz ("Appellant") brings this Motion for Reargument pursuant to Court of
Common Pleas Civil Rule 59(e) (the "Motion"). Appellant seeks to reargue this Court’s Order of
February 26, 2016, which dismissed the Appellant’s appeal for being filed in an untimely

manner. This is the Court’s final decision and Order.

 

  

FACTS AND RELEVANT PROCEDURAL POSTURE

On January 15, 2015, Appellant filed a claim against Paul Warfield, et. al., ("Appellees")
in the justice of the Peace Court, alleging that on August 20, 2014, Appellees broke Appellant’s
radio while conducting a shakedown at J ames T. Vaughn Correctional Center ("JTVCC").
Appellant initially submitted his claim to the grievance board, which voted in his favor, however
the Appellees denied the relief. Thus, Appellant sought damages in the amount of $179.00 plus
the cost of filing to repair or replace the radio.

On March 26, 2015, Appellees filed a Motion for Summary Judgment, arguing that
Appellant failed to establish a prima facie case of trespass that, the Doctrine of Sovereign
Immunity bars the claim, therefore depriving the Court of subject matter jurisdiction, and that the

1

Doctrine of Qualified Immunity acts an additional bar to Appellant’s claim. On February 1,

2016, the Justice of the Peace Court granted the Motion, and dismissed the case with prejudice
(the "Order"). The Clerk of the court docketed the court’s Order that same day and sent a copy

to both parties.

On February 22, 2016, the Appellant filed a Notice of Appeal with this Court. On
February 26, 2016, the Court dismissed the Appeal sua sponte because it was not timely filed as
proscribed by Court of Common Pleas Civil Rule 72.1(e). On March 2, 2016, the Clerk of the
Court docketed the Court’s Order and sent a letter to the Appellant notifying him of the Court’s

decision. On March 14, 2016, Appellant filed the present Motion for Reargument.z

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, ar 11 2-4, M¢cormick, J. (F@bruary 1, 2016)

  

APPELLANT’S CONTENTIONS

In his Motion, Appellant alleges that on February 5, 2016, the corrections center received
the Justice of the Peace Court’s Order, which was dated February l, 2016.3 Appellant further
maintains that he did not receive the Justice of the Peace Court’s Order until February 6, 2016.4
He then placed his appeal in the prison mail scheduled to be sent out on February 14, 2016.5
Appellant argues that his appeal was timely for two reasons: (1) "the starting of the clock to
[appeal] is triggered by service . . . [t]he day of service being excluded from the calculation of

93

time, and (2) the federal prison mailbox rule established in Houston v. Lack is applicable
because he is a pro se litigant who is incarcerated.6

In regards to the first argument, Appellant does not cite a specific rule that he wishes the
Court to examine. The Court has carefully reviewed Appellant’s argument, and for purposes of
this Motion, will take he is referring to 10 Del. C. § 3104(g) and Court of Common Pleas Civil
Rule 6(e), which seem to correspond to Appellant’s contentions. Appellant argues that the
tolling of time to appeal began when he received the Justice of the Peace Court’s Order in his
hands on February 6, 2016, which would make his filing date of February 22, 2016 timely.
Appellant also argues that he should be afforded more consideration with respect to the timing of

his filing given his status as an incarcerated pro se litigant. Ultimately, Appellant requests that

the Court grant the present Motion for Reargument.

-3 Appellant’s Motion for Reargument, 11 2.

" Id. at 11 2.
5 1a at 11 3.
6 Appellant’s Motion for Reargument, 1] 4-5 (citing Houston v. Lack, 487 U.S. 266, 270 (1988)).

3

DISCUSSION
ln addressing the Appellant’s arguments, the Court will address: (1) Whether Appellant
filed the Motion in a timely manner; (2) Whether 10 Del. C. § 3104(g) or Court of Common
Pleas Civil Rule 6(e) applies to the time limitation for appeals; and, (3) Whether the federal
prison mailbox rule applies.
I. Untimely Filing of Motion for Reargument
Court of Common Pleas Civil Rule 59(e) governs motion for reargument, which
provides: "[a] motion for reargument shall be served and filed within 5 days after the filing of the
Court’s opinion or decision . . . ." When computing this period of time, Court of Common Pleas
Civil Rules 6(a) provides:
The day of the act, event, or default after which the designated
period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday or
Sunday, or legal holiday, or other on which the office the Clerk of
the Court is closed, in which event the period shall run until the
end of the next day on which the office of the Clerk of Court is
open. When the period of time prescribed or allowed is less than
11 days, intermediate Saturdays, Sundays, and other legal holidays
shall be excluded in computation . . . .
Rule 6(e) states: "[w]henever a party has the right . . . to do some act or take some proceeding
within a prescribed period after being served and service is by mail, 3 days shall be added to the
prescribed period." However, the Delaware Supreme Court found that Rule 6(e) does not apply
to motions for reargument.7 Appellant’s Motion is untimely because he filed the Motion on
March 14, 2016, which was eight business days after the Court dismissed the Appeal on March

2, 2016. Appellant’s tolling deadline to file a motion for reargument was on March 9, 2016.

Nonetheless, the Court will address Appellant’s arguments.

-- -- -.__»

7 McDaniel v. Daimler Chrysler Corp., 860 A.2d 321, 323 (Del. 2004)
4

 

'II. Service by Mail Time Extensi0n for Appeals

This Court’s jurisdiction over appeals from the Justice of the Peace is strictly governed
by statute, specifically 10 Del. C. § 9571 and not 10 Del. C. § 3104(g).8 An appeal brought
pursuant to § 957l "shall be taken within fifteen days of the final judgment."g Pursuant to 10
Del. C. § 957l(d), "[t]he Court of Common Pleas shall establish [the] appeal procedures . . . ."
Court of Common Pleas Civil Rule 6(e), again states: "[w]henever a party has the right . . . to do
some act or take some proceeding within a prescribed period after being served and service is by
mail, 3 days shall be added to the prescribed period." The service-of-rri_ail time extension
provided in Rule 6(e) only applies to parties serving papers upon another party; it does not apply
to time limitation governing appeals.lo "Thus, when a party fails to perfect an appeal within the
proscribed time period under § 9571, ‘a jurisdictional defect is created which may not be excused
in the absence of unusual circumstances [that] are not attributable to the appellant or the
appellant‘s attorney."’u "Under this caveat, the Court may exercise jurisdiction over an untimely
appeal where the untimeliness is attributable to court personnel."lz "In support of such a claim,
an appellant must present credible evidence attributing the delay to court personnel."w

Appellant contends that he timely filed the appeal because the time period did not begin
until February 6, 2016, when he received the notice of the Justice of the Peace Court’s Order

granting Appellee’s motion for summary judgment. If the time period began on February 6,

 

 
 

     
 
   
  
 
 
   

11 Short v.
 ';L .

' __ _ _ ____ (citing Palmer v. DCSE, 32 A.3d 989 at
 __ _ ___-;:»§f’ig»'_i$  ar *1 (Det,;.r  1>1. Mar. 30,':;1@§{-__ j(citing RQber¢REED v. CLARK'S
Swimmi gP00ls, Inc., 1997 WL 1737122, at *3 (Del. Com. Pl. Sept. 19, 1 97).

         

.\_ _

2016 the tolling deadline would indeed be February 22, 2016. However, this argument appears
to rely on 10 Del. C. § 3104(g) and Rule 6(e), neither of which apply to the strict time limitation
on appeals. Instead, 10 Del. C. § 9571 governs,“ and therefore, the time period to appeal started
on February 1, 2016. The Justice of the Peace Court Docket reflects that on February 1, 2016,
the Clerk of the court docketed the court’s order, and sent a copy of the order to both parties;
thus, the tolling deadline to appeal occurred on February 16, 2016. Furthermore, Appellant does
not present any evidence of or attribute any fault to court personnel for the untimely filing of the
appeal. Under this circumstance, Appellant untimely filed the appeal.
III. Prison Mailbox Rule

As stated supra, this Court’s jurisdiction over appeals from the Justice of the Peace is
strictly governed by statute, specifically 10 Del. C. § 9571. An appeal brought pursuant to §
9571 "shall be taken within fifteen days of the final judgment."l§ Section 9571(d) also provides
that: "[t]he Court of Common Pleas shall establish [the] appeal procedures . . . ." Under Court of
Common Pleas Civil Rule Rule 72.1(b), "[w]hen an appeal is permitted by law, a party may
appeal by filing a notice of appeal with the Clerk of the Court of the appropriate county within
the time prescribed by statute."

Appellant argues that the Court should apply Houston v. Lack, which established the
federal prison mailbox rule. "ln [Lack], the United States Supreme Court held that a pro se
prisoner’s notice of appeal is deemed ‘frled’ at the moment of delivery to prison authorities for
forwarding to the court."m Appellant claims he placed his appeal in the prison mail on February
14, 2016, which, under the rule from Lack would make his appeal timely. However, in Smith v.

State, the Delaware Supreme Court held that the unambiguous language of Delaware statute’s

 

  
 
 
   

  wL  at ===1 (Dei.  May 30, 2003)
.  2012);_ _  

   

and procedural rules "preclude[] [the Court] from adopting the prison mailbox rule-or a tolling
analysis that reaches the same result_by judicial decision alone."" This Court will adopt the
Supreme Court’s reasoning and not adopt the federal prison mailbox rule because the governing
laws in this case, 10 Del. C. § 9571 and Rule 72.l(b), are unambiguous. Appellant filed his
appeal on February 22, 2016, the day in which the Court received the filing, as reflected in the
docket. This was after the tolling deadline of February 16, 2016. Therefore, the appeal is
untimely.
CONCLUSION

For the foregoing reasons, Appellant’s Motion for Reargument is DENIED. Appellant’s

appeal was untimely filed, and as a result, this Court lacks jurisdiction under 10 Del. C. § 9571.

IT IS SO ORDERED this i 2: Day of April, 2()16.

 

Robert H. Surles,
Judge

" smith v. s¢me, 47 A.3d 481, 486 (Del. 2012)

