      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STANLEY C. LOWICKI,                     )
                                        )
      Defendant-Below/Appellant,        )
                                        )
             v.                         )       C.A. N18A-01-001 AML
                                        )
STATE OF DELAWARE,                      )
                                        )
      Plaintiff-Below/Appellee.         )


                             Submitted: May 31, 2019
                             Decided: August 5, 2019

                                       ORDER

   On Appellant’s Appeal from the Court of Common Pleas: AFFIRMED
      1.    This is an appeal from a Court of Common Pleas decision dismissing

for lack of jurisdiction an appeal from a Justice of the Peace Court (“JP Court”)

decision regarding a red light traffic camera citation. Title 21, Section 4101

provides a right to appeal traffic camera violations if the civil penalty imposed

exceeds $100. The court below concluded the civil penalty against the Defendant-

below/Appellant did not exceed that threshold, and the court therefore lacked

jurisdiction to consider the appeal. For the reasons that follow, I agree with the

Court of Common Pleas that it lacked jurisdiction to consider the appeal, and I

therefore affirm the decision below.



                                            1
Factual Background

       2.      On May 18, 2017, a car Stanley C. Lowicki owned was captured by a

traffic camera disobeying a red light on Route 72 at Kenmore Drive. Mr. Lowicki

was issued a civil traffic violation under 21 Del. C. § 4101. He contested the

violation in accordance with the statute, and a hearing was held in JP Court in

August 2017. At the hearing, Mr. Lowicki contended he was not driving the

vehicle at the time of the offense and therefore was not liable. At the conclusion of

the hearing, the JP Court found Mr. Lowicki responsible for the violation and

ordered him to pay $172.50, consisting of the following amounts:

       Fine Amount:                           $75.00
       Court Costs:                           $25.00
       Court Security Fee:                    $10.00
       Transportation Trust Fund:             $37.50
       State Police Fund:                      $7.50
       Local Law Enforcement Fund:             $7.50
       Ambulance Fund:                        $10.00

       3.      Mr. Lowicki appealed the JP Court’s decision to the Court of

Common Pleas.1 After full briefing, the Court of Common Pleas dismissed the

appeal, holding that under 21 Del. C. § 4101(d)(12), a person found responsible

under that Section only may appeal if the “civil penalty” imposed exceeds $100.


1
  Mr. Lowicki posted a bond in connection with his appeal to the Court of Common Pleas. On
appeal to this Court, the State argued for the first time that Mr. Lowicki did not post a bond and
therefore the Court of Common Pleas lacked subject matter jurisdiction under 21 Del. C. §
4101(d)(12). The record transferred by the Court of Common Pleas includes both an Appeal
Bond and a notation by the Justice of the Peace that a $100 unsecured appeal bond was entered
on August 25, 2017.
                                                 2
The Court of Common Pleas held the civil penalty imposed by the JP Court did not

exceed that threshold, reasoning that court costs and other amounts imposed by the

JP Court did not fall within the plain meaning of “civil penalty” under the statute.2

         4.      Mr. Lowicki then appealed that ruling to this Court. On appeal, Mr.

Lowicki raises three arguments: (1) the Court of Common Pleas erred in its

interpretation of the meaning of “civil penalty” within 21 Del. C. § 4101(d)(12);

(2) the JP Court erred in assessing amounts not permitted by the statute; and (3) the

JP Court erred in not granting dismissal in Mr. Lowicki’s favor after he

“undisputedly” rebutted the statutory presumption that the owner of a vehicle

found in violation is liable for the violation.

         5.      In response, the State contends the lower court correctly interpreted

21 Del. C. § 4101(d)(12) when it dismissed Mr. Lowicki’s appeal for lack of

jurisdiction. The State argues “the civil penalty that must exceed $100 refers only

to the fine at issue and does not include any costs and surcharges imposed.”3 The

State contends that because Mr. Lowicki’s fine only was $75, it did not meet the

$100 threshold and the Court of Common Pleas lacked jurisdiction over the appeal.

         6.      On April 17, 2019, the Court requested that the State submit

supplemental briefing addressing whether the amounts Mr. Lowicki was required

to pay for the various “funds” were authorized by 21 Del. C. § 4101(d)(3) and, if

2
    Lowicki v. State, 2017 WL 6186690, at *3 (Del. Com. Pl. Dec. 7, 2017).
3
    Appellee’s Answering Br. at 6-7.
                                                 3
they were not so authorized, whether those amounts necessarily constituted a “civil

penalty” under 21 Del. C. § 4101(d)(12).4 The State filed its response on May 7,

2019. The State contends the amounts for the Transportation Trust Fund, State

Police Fund, Local Law Enforcement Fund, and Ambulance Fund were authorized

under 21 Del. C. § 4101(d)(3) through later-enacted legislation and a 2010 JP

Court policy directive.5 The State also argues the “fund” amounts do not constitute

a “civil penalty” under 21 Del. C. § 4101(d)(12). The State cites the legislative

history of 21 Del. C. § 4101(d)(12) and Santillo v. State6 to support this contention.

The State also argues that Mr. Lowicki did not raise, and therefore waived, the

issue of whether the “fund” amounts constitute a civil penalty under 21 Del. C. §

4101(d)(12).

       7.      Mr. Lowicki filed a response on May 30, 2019. He argues the “fund”

amounts are not authorized by 21 Del. C. § 4101(d)(3), and the later-enacted

legislation cited by the State is not applicable because Title 11 is for criminal

offenses, and a violation under 21 Del. C. § 4101(d)(3) is not a criminal offense.

Mr. Lowicki also points out that the use of the words “fine” and “penalty” in those

provisions does not comport with the term “assessment” used in 21 Del. C. §

4101(d)(3). If the Court finds the “fund” amounts are authorized, however, Mr.


4
  This issue was not addressed by the lower court or the State in its answering brief.
5
  See 11 Del. C. § 4101(g)(1), (h), (j).
6
  1985 WL 189243 (Del. Super. Aug. 9, 1985).
                                                 4
Lowicki contends they should be considered part of the civil penalty for appeal

purposes.

Analysis

       8.     In considering an appeal from a Court of Common Pleas decision, this

Court’s role is to review questions of law, such as statutory interpretation and

decisions regarding jurisdiction, de novo.7 Mr. Lowicki’s appeal of the lower

court’s decision regarding jurisdiction requires interpretation of 21 Del. C. §

4101(d)(12), which defines the scope of the appellate right for persons found

responsible for a traffic camera violation. There is a right to appeal only when the

“civil penalty imposed exceeds $100.”                The statute goes on to state that

“[a]dditional penalty assessments” for late payment or response imposed under 21

Del. C. § 4101(d)(3) shall be included in the “civil penalty” for purposes of

determining whether a right to appeal exists.8

       9.     In this case, Mr. Lowicki argues the court costs and other fees

imposed by the JP Court are part of the “civil penalty” under 21 Del. C. §

4101(d)(12) and therefore the total civil penalty imposed exceeded $100 and

triggered a right to appeal. Mr. Lowicki argues 21 Del. C. § 4101 permits the

Court to impose the following, which he refers to as the “liability assessment

7
  Delaware Institute of Health Sciences, Inc. v. Okorie, 2011 WL 3481055, at *1 (Del. Super.
Aug. 4, 2011).
8
  21 Del. C. § 4101(d)(12). No late payment or late response assessments are at issue in this
case.
                                               5
exposure”: (i) an “amount” not to exceed $110.00,9 (ii) an “additional assessment”

of up to $30 for late payment, (iii) court costs and fees of up to $35.10 Mr. Lowicki

contends that “[f]or purposes of an appeal[,] all three categories are added together

for determining the right to appeal.”11 According to Mr. Lowicki, 21 Del. C. §

4101(d)(3) “clearly states court cost[s] or similar administrative fees are

assessments for liability for [a] violation and arise out of a defendant’s []response[]

or request for hearing and losing.”12 Mr. Lowicki reasons “[a]s an additional

penalty assessment[,] [court costs and fees are] included expressly in meeting the

$100.00 civil penalty threshold for appeal to the [C]ourt of [C]ommon [P]leas.”13

       10.    As the Court of Common Pleas found, Mr. Lowicki’s argument

contradicts the plain language of the statute when it is read as a whole.14 The

lower court held that Section 4101(d)(3) uses the phrase “civil or administrative

assessment” to refer to a civil penalty and caps that assessment at $110 unless late

fees are assessed as permitted by Section 4101(d)(3). Section 4101(d)(3) also

permits the JP Court to charge court costs and similar administrative fees if a




9
  Mr. Lowicki studiously avoids using terms like fine or penalty to describe this “amount.”
10
   Appellant’s Opening Br. at 7-8.
11
   Id. at 8.
12
   Id.
13
   Id.
14
   Lowicki, 2017 WL 6186690, at *2 (“Based on a plain reading of § 4101, the ‘civil penalty’
does not include court costs or ‘similar administrative fees.’ When § 4101(d)(12) and
§4101(d)(3) are read in conjunction, there are no ambiguities.”).
                                               6
person unsuccessfully contests a violation.15 The Court of Common Pleas held that

those costs and fees are not part of the “civil and administrative assessment” in

Section 4101(d)(3) because the statute specifically separates that assessment from

the court costs and fees.        Because the lower court held that the “civil or

administrative assessment” referred to in Section 4101(d)(3) is the same as the

“civil penalty” referred to in Section 4101(d)(12), the Court rejected Mr. Lowicki’s

argument that the court costs and administrative fees should be considered in

calculating whether his civil penalty exceeded the appeal threshold.

           11.   I agree with the lower court’s analysis. The term “civil penalty” in

Section 4101(d)(12) corresponds to the amount of the fine assessed by the JP

Court, which falls within the “civil or administrative assessment” referenced in

Section 4101(d)(3). Section 4101(d)(12) specifies that any late fees assessed under

subsection (d)(3) also will be considered part of the civil penalty for determining

whether there is a right to appeal. By specifically referring to only one of the

amounts contained in subsection (d)(3), the legislature made clear that the other

costs and fees imposed were not included within the “civil penalty.” Section

4101(d)(3) refers to those amounts as costs and fees, not assessments or penalties.

           12.   I also agree with the State that the additional fees imposed for the

various “funds” were required by statute and permitted by 21 Del. C. § 4101(d)(3).


15
     Id.
                                            7
Those additional amounts expressly were mandated by 11 Del. C. § 4101.

Subsections (g), (h), and (j) of that section require a court to levy those additional

amounts for violations of Title 21. Mr. Lowicki first argues those amounts cannot

be imposed in his case because violations of 21 Del. C. § 4101 are civil violations,

not criminal offenses, and therefore Title 11 does not apply.                    This argument

ignores the unambiguous language of 11 Del. C. § 4101, which imposes those

amounts on both criminal defendants and recipients of civil offenses who violate

Title 21.16

       13.     Mr. Lowicki also argues that those fees are not permitted by 21 Del.

C. § 4101(d)(3), which states that “[no] assessments and court costs other than

those specified in this subsection may be imposed.” Given the conflict between 21

Del. C. §4101(d)(3), which prohibits fees other than those expressly listed, and 11

Del. C. § 4101, which requires imposition of the fees for the various funds,

principles of statutory construction require that the “more specific and later-

enacted statute controls the former, more general statute.”17                    The applicable

provisions of 21 Del. C. § 4101 became effective law on June 23, 2005, and all the


16
   11 Del. C. § 4101(g)(1) and (j) refer to imposing the Transportation Trust Fund and
Ambulance Fund fees on a “recipient of a civil offense . . . for any violation of Title 21.” 11 Del.
C. § 4101(h) refers to imposing the State Police and Local Law Enforcement Fund fees on a
“traffic defendant . . . for any civil violation or civil penalty under . . . Title 21.” All those
subsections make clear that individuals who commit a civil violation under Title 21 are liable for
the fees listed in Title 11, Section 4101.
17
   Clark v. State, 2008 WL 3906890, at *3, n.19 (Del. 2008) (citing State v. Cook, 600 A.2d 352,
355 n.6 (Del. 1991)).
                                                 8
applicable sections of 11 Del. C. § 4101 were adopted well after that date.18 The

provisions of Title 11, Section 4101 are more specific and later-enacted than those

in Title 21, Section 4101, and the provisions of Title 11 therefore control.19

       14.     Finally, Mr. Lowicki did not squarely raise in the Court of Common

Pleas the argument that the fees imposed for the various funds are “civil penalties”

under Section 4101(d)(12). That argument therefore has been waived. Even if Mr.

Lowicki clearly had articulated that argument, however, the “civil penalty”

imposed still would not exceed $100. 11 Del. C. § 4101(h) refers to the Police and

Law Enforcement Funds as an additional $15 “penalty,” and 11 Del. C. § 4101(j)

refers to the Ambulance Fund as an additional $10 “penalty.” 11 Del. C. §

4101(g)(1), however, refers to the Transportation Fund as a “surcharge” rather than

as a penalty.      Therefore, even if the Court considered the Police Fund, Law

Enforcement Fund, and Ambulance Fund amounts as part of the “civil penalty”

under 21 Del. C. § 4101(d)(12), Mr. Lowicki’s “civil penalty” only would total

$100 and therefore would not exceed the appeal threshold.

       15.     Having concluded that Mr. Lowicki did not have a right to appeal the

JP Court decision to the Court of Common Pleas, I do not reach the remaining



18
   See Del. H.B. 100, 143d Gen. Assem. (2005); Del. H.B. 264, 144th Gen. Assem. (2007); Del.
H.B. 153, 146th Gen. Assem. (2011); Del. H.B. 315, 147th Gen. Assem. (2014).
19
   This interpretation is consistent with a policy directive issued by the JP Court in 2010. See JP
Policy Directive 10-238, Penalties & Costs for Red Light Camera Civil Violations Contested in
Justice of the Peace Court.
                                                 9
issues he raises on appeal, which relate to the merits of the JP Court’s decision.20

For the foregoing reasons, the Court of Common Pleas’ decision is AFFIRMED.




                                                   /s/ Abigail M. LeGrow
                                                   Abigail M. LeGrow, Judge


Original to Prothonotary




20
  Even if I concluded the Court of Common Pleas erred, this Court could not address Mr.
Lowicki’s arguments regarding the merits of the JP Court’s decision. At best, if the Court of
Common Pleas had erred in concluding it lacked jurisdiction, this Court would have remanded
the appeal to the Court of Common Pleas for further decision on the merits.
                                              10
