      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY
EDWARD MURRAY,                        )
                                      )
           Appellant/Defendant-Below, )
                                      )
     v.                               )      C.A. No. N15A-02-001 ALR
                                      )
LANCASTER COURT                       )
RENTAL, LLC,                          )
                                      )
           Appellee/Plaintiff-Below.  )

                            Submitted: February 11, 2015
                             Decided: February 12, 2015

                 ORDER DENYING DEFENDANT’S
            EMERGENCY MOTION FOR STAY OF EVICTION

      Upon Defendant/Appellant’s motion for a stay of eviction submitted

February 11, 2015, the Court finds as follows:

      1. This is a summary possession case filed by Plaintiff, Lancaster Court

         Rentals, against Defendant, Edward Murray, in Justice of the Peace Court

         Number 13. 1

      2. Trial was scheduled in the Justice of the Peace Court on November 18,

         2014.   Defendant did not appear for trial and default judgment was

         entered against Defendant. A writ of possession was issued.

      3. The proper procedure to appeal a writ of possession as a matter of right

         requires an appellant to request a trial before a three-judge Justice of the

1
  The Justice of the Peace Court has exclusive jurisdiction over summary possession
proceedings. 25 Del. C. § 5701 et seq.
             Peace panel pursuant to 25 Del. C. § 5717(a). 2 The statutory framework

             under Title 25, Section 57 of the Delaware Code provides no right to

             appeal from a decision of the three-judge panel.

         4. Here, Defendant did not follow this procedure to appeal the writ of

             possession.     Instead, Defendant filed a motion to vacate the default

             judgment with the Justice of the Peace Court. Defendant’s motion to

             vacate claimed Defendant failed to appear at the November 18th trial

             because he was involved in a motor vehicle accident.

         5. On December 18, 2014, the Justice of the Peace Court held a hearing on

             Defendant’s motion to vacate default judgment. The Justice of the Peace

             Court determined Defendant lacked credibility and that Defendant

             offered no documentary evidence of the alleged accident through

             insurance information or otherwise.            Accordingly, by Order dated

             December 23, 2014, the Justice of the Peace Court denied Defendant’s

             motion to vacate the default judgment.3

         6. Defendant then appealed the Justice of the Peace Court’s Order denying

             Defendant’s motion to vacate default judgment to the Court of Common

             Pleas.



2
    Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1208 (Del. 2008).
3
    Lancaster Ct. Rentals, LLC v. Murray, C.A. No. JP13-14-012335 (Del. J.P. Dec. 23, 2014).
                                                2
       7. On January 30, 2015, the Court of Common Pleas issued an Order

           finding that the Justice of the Peace Court did not abuse its discretion in

           denying Defendant’s motion to vacate default judgment. 4 The Court of

           Common Pleas affirmed the Justice of the Peace Court’s decision and

           remanded the case back to the Justice of the Peace Court.

       8. On February 2, 2015, Defendant filed a notice of appeal from the

           decision of the Court of Common Pleas with the Superior Court.

       9. In the meantime, on February 9, 2015, upon remand, the Justice of the

           Peace Court issued an eviction notice on the grounds that Defendant did

           not appeal the writ of possession.

       10.As noted previously, a writ of possession may only be appealed to a

           three-judge panel.       Defendant did not properly appeal the writ of

           possession pursuant to 25 Del. C. § 5717. 5

       11.Defendant did not appeal the eviction notice. Defendant’s only option,

           upon following the appellate procedure, would have been to file a writ of

           certiorari with this Court because this Court has the original and

           exclusive jurisdiction to issue writs of certiorari to the Justice of the

           Peace Court in summary possession cases. 6 Instead, on February 11,


4
  Murray v. Lancaster Ct. Rentals, LLC, C.A. No. CPU4-14-003830 (Ct. C.P. Jan. 30, 2015).
5
  See Smith v. Justice of Peace Court No. 1, 1990 WL 123051, at *4 (Del. Super. Aug. 7, 1990).
6
  Maddrey, 956 A.2d at 1212.
                                               3
            2015, Defendant filed the pending emergency motion for stay of eviction

            with this Court.

        12.This Court does not have subject matter jurisdiction to stay the eviction.

        13.Even if Defendant had followed the appropriate appellate procedure,

            Defendant would still be without a right to appeal the summary

            possession decision and accompanying issues to this Court. 7

        14.Furthermore, even if Defendant filed a proper writ of certiorari with this

            Court, Defendant’s appeal has no merit because there are no errors on the

            face of the record. 8 This Court cannot accommodate Defendant’s request

            to stay a properly executed eviction notice because this Court lacks

            jurisdiction and to do so would be an improper act, functionally

            equivalent to a traditional appellate review. 9

        NOW, THEREFORE, upon this 12th day of February 2015,

Defendant’s emergency motion for stay of eviction is hereby DENIED.

        IT IS SO ORDERED.

                                          Andrea L. Rocanelli
                                          ____________________________________
                                          The Honorable Andrea L. Rocanelli




7
  Id.
8
  See id. at 1207.
9
  Id.
                                             4
