         IN THE SUPREME COURT OF THE STATE OF DELAWARE

THE LIMA DELTA COMPANY, a                 §
Delaware Corporation, TRIDENT             §
AVIATION SERVICES, LLC, a                 §
Delaware Limited Liability                §   No. 126, 2019
Company, and SOCIÉTÉ                      §
COMMERCIALE ET                            §   Court Below—Superior Court
INDUSTRIELLE KATANGAISE,                  §   of the State of Delaware
                                          §
       Plaintiffs Below,                  §   C.A. No. N14C-02-042
       Appellants,                        §
                                          §
       v.                                 §
                                          §
GULFSTREAM AEROSPACE                      §
CORPORATION, a Delaware                   §
Corporation, and GULFSTREAM               §
AEROSPACE CORPORATION, a                  §
Georgia Corporation,                      §
                                          §
       Defendants Below,                  §
       Appellees.                         §

                             Submitted: March 29, 2019
                             Decided: April 26, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                      ORDER

      Upon consideration of the notice to show cause and the responses to the

notice to show cause, it appears to the Court that:

      (1)    On March 19, 2019, the plaintiffs below-appellants, The Lima Delta

Company, Trident Aviation Services, LLC and Société Commerciale et Industrielle

Katangaise (collectively, “Lima Delta”), filed a notice of appeal from a Superior
Court opinion, dated and docketed on February 13, 2019, granting the motion to

dismiss of the defendants-below appellees Gulfstream Aerospace Corporation, a

Georgia corporation, and Gulfstream Aerospace Corporation, a Delaware

corporation (collectively, “Gulfstream”). A timely notice of appeal should have

been filed on or before March 15, 2019.1 The Senior Court Clerk issued a notice

directing Lima Delta to show cause why this appeal should not be dismissed as

untimely.

       (2)     In response to the notice to show cause, Lima Delta described the events

leading to the untimely notice of appeal as follows:

       In an abundance of caution, Appellants filed their Notice of Appeal a
       day prior to the appeal deadline, on March 14, 2019 with the Superior
       Court in New Castle County. The Clerk’s Office erroneously accepted
       the Notice of Appeal that same day not realizing that the Notice of
       Appeal was docketed by an attorney’s office rather than the Court
       Clerk. A copy of the File & ServeXpress transaction receipt reflecting
       the acceptance is attached hereto as Exhibit “A.” At the time of filing,
       counsel for the Defendants/Appellee received notice through File &
       ServeXpress. See Exhibit “A.”

       After not receiving any notifications from the Supreme Court, this
       office contacted the Superior Court Clerk’s Office to inquire as to the
       status of the appeal. We were initially informed that everything was
       accepted and they were just waiting for the Supreme Court to give them
       the notifications triggered by the filing of the Notice of Appeal. After
       further review and discussion with the Clerk’s Office the staff realized
       the error in accepting the filing of the Notice of Appeal. My office
1
  10 Del. C. § 148 (“No appeal from a final judgment of the Superior Court in a civil action shall
be received or entertained in the Supreme Court unless the praecipe or notice of appeal is duly
filed in the office of the Clerk thereof within 30 days after the date of the judgment or decree.”);
Supr. Ct. R. 6(a)(i) (providing that notice of appeal from civil judgment must be filed within 30
days from entry of the judgment on the docket).
                                                 2
       promptly contacted the Supreme Court Clerk’s office for direction how
       to correct this error and was instructed to re-file the Notice of Appeal
       with the Supreme Court. The Notice of Appeal was immediately filed
       with, and accepted by, the Supreme Court.2

Gulfstream argues that the appeal is untimely, does not fall within the

exception for untimely appeals attributable to court-related personnel, and

should be dismissed.

       (3)    Time is a jurisdictional requirement.3 A notice of appeal must be

received by the Office of the Clerk of this Court within the applicable time period in

order to be effective.4 An untimely appeal can be considered if the appellant

demonstrates that the failure to file a timely notice of appeal is attributable to court-

related personnel.5 In Bey, for example, this Court accepted an untimely appeal

“[b]ecause defendant did all that was required of him in seeking review; and because

his default had been occasioned by court related personnel.”6 Similarly, in Riggs v.

Riggs, this Court accepted an untimely appeal where the appellant had incorrectly

filed his notice of appeal in the Family Court and the Family Court proceeded as if

the appeal had been properly filed by acknowledging receipt of the papers, setting




2
  Appellants’ Response to the Notice to Show Cause at 1-2.
3
  Carr v. State, 554 A.2d 778, 779 (Del. 1989).
4
  Supr. Ct. R. 10(a).
5
  Bey v. State, 402 A.2d 362, 363 (Del. 1979).
6
  402 A.2d at 363.
                                              3
bond for the appeal, and questioning its ability to provide further relief while the

matter was on appeal to this Court.7

        (4)     The decision to file the initial notice of appeal in the wrong court is

attributable to Lima Delta alone.                 As to Lima Delta’s contention that the

Prothonotary’s Office should have rejected the notice of appeal upon seeing it was

filed by a law firm,8 this Court has held that a notice of appeal should not be refused

by a clerk or rejected automatically by the File and Serve system.9 Lima Delta also

refers to a conversation in which the Prothonotary’s Office initially indicated that

the appeal was accepted and that they were waiting for notification from this Court,10

but fails to indicate when that conversation occurred. This silence suggests that the

conversation did not occur until after the time to appeal had expired and thus did not

cause the untimely filing of the notice of appeal. Because Lima Delta has not shown

that the failure to file a timely notice of appeal is attributable to court-related

personnel, the appeal must be dismissed.


7
  539 A.2d 163, 164 (Del. 1988).
8
  Under Supreme Court Rule 7(a), the Supreme Court Clerk is supposed to forward a copy of the
notice of appeal “to the clerk of the trial court for filing in such court or to the arbitrator.” In civil
cases, the Supreme Court Clerk e-files the notice of appeal in the trial court docket.
9
  Nicholas v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 74 A.3d 634, 635 (Del. 2013) (“This
Court has held that ‘no notice of appeal should ever be refused by a clerk for filing if the intention
to appeal is clear from the document filed.’ Similarly, a notice of appeal should not be rejected
automatically by the File and Serve system.”) (citations omitted). In Nicholas, the appellants
sought to transfer the appeal they mistakenly filed in the Superior Court to this Court under 10
Del. C. § 1902 and were allowed to do so. Lima Delta has not raised § 1902 so we do not address
that possibility.
10
   Lima Delta does not explain why they contacted the Superior Court instead of this Court about
an appeal intended for this Court.
                                                    4
     NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),

that the appeal is DISMISSED.

                                    BY THE COURT:


                                    /s/ Collins J. Seitz, Jr.
                                           Justice




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