     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DELAWARE TECHNICAL AND                )
COMMUNITY COLLEGE,                    )
                                      )
     v.                               )      C.A. No. N17A-01-002 ALR
                                      )
STATE OF DELAWARE HUMAN               )
RELATIONS COMMISSION, and             )
DELAWARE DEPARTMENT OF                )
STATE, DIVISION OF HUMAN              )
RELATIONS,                            )
and KARIN SAUNDERS.                   )

                        Submitted: March 13, 2017
                         Decided: May 17, 2017

                       MEMORANDUM OPINION

                      Upon Motion to Dismiss Appeal
                              GRANTED

              Upon Motion to Stay Administrative Proceedings
                          DENIED AS MOOT



Margaret M. DiBianca, Esq., Young Conaway Stargatt & Taylor, LLP,
Wilmington, Delaware, and Elizabeth Y. Olsen, Esq., Delaware Technical and
Community College, Dover, Delaware, Attorneys for Delaware Technical and
Community College.

Zoe Plerhoples, DAG and Laura Gerard, DAG, Attorneys for Delaware State
Human Relations Commission and Delaware Department of State, Division of
Human Relations.

Neilson C. Himelein, Esq., Community Legal Aid Society, Inc., Wilmington,
Delaware, Attorney for Karin Saunders.

ROCANELLI, J.
                    I.    PROCEDURAL BACKGROUND

      Karin Saunders is a student at the Owens Campus of Delaware Technical

and Community College (“Del-Tech”). On May 20, 2016, Ms. Saunders filed a

complaint against Del-Tech pursuant to Delaware‟s Equal Accommodations Law

(“DEAL”)1 with the Delaware Department of State, Division of Human Relations

(“Division”). Ms. Saunders alleged that Del-Tech violated DEAL by refusing to

allow her to attend classes with her qualified service animal. In response, Del-

Tech filed a motion to dismiss Ms. Saunders‟s complaint for lack of subject-matter

jurisdiction. Del-Tech argued that the complaint was untimely under the statutory

deadline.2

      By Decision dated December 6, 2016, the State Human Relations

Commission (“Commission”) denied Del-Tech‟s motion to dismiss Ms. Saunders‟s

complaint (“Commission Decision”).3 On January 17, 2017, Del-Tech filed an


1
  6 Del. C. § 4500 et seq.
2
  See id. at § 4508(b) (“No complaint shall be filed with the Division more than 90
days after the occurrence of the alleged discriminatory public accommodation
practice.”).
3
  Saunders v. Del. Tech. & Cmty. Coll., Case No. S-EA-1514-16 (Human Rel.
Comm‟n Dec. 6, 2016). The Division is required by statute to investigate an
alleged violation of DEAL within 120 days after a complaint is filed in order to
eliminate any discovered discriminatory practice through conciliation between the
parties. 6 Del. C. § 4508(c). If the complaint is not resolved through conciliation
by the conclusion of the 120-day investigation period, the Commission must
appoint a panel of Commissioners to hold a public hearing on the merits of the
complaint. Id. at § 4508(e). Prior to appointment of a full panel, the Commission
is authorized to designate a single Commissioner to consider the complaint on
                                        1
appeal from the Commission Decision in Superior Court, asserting that the

Commission committed legal error in denying the motion to dismiss. On January

20, 2017, three days later, Del-Tech filed a Motion to Stay proceedings before the

Commission pending resolution of the appeal.

      Upon initial consideration of Del-Tech‟s request for relief, this Court noticed

that the Division, the Comission, and Ms. Saunders were identified as “Appellees”

on Del-Tech‟s notice of appeal. However, the docket did not reflect that these

parties were served process. Accordingly, by letter dated January 24, 2017, this

Court requested that Del-Tech serve process on all parties with interest in this case

to ensure proper notice and an opportunity to respond.

      On February 13, 2017, after service of process was complete, the State

appeared on behalf of the Division and Commission. The State filed a Motion to

Dismiss Del-Tech‟s appeal and a response in opposition to Del-Tech‟s Motion to

Stay. On March 3, 2017, Ms. Saunders filed a response in support of the State‟s

Motion to Dismiss. On March 13, 2017, Del-Tech filed a response in opposition to

the State‟s Motion to Dismiss.


behalf of the Commission. 1 Del. Admin. C. § 601-5.1.2. The designated
Commissioner may consider and adjudicate a motion to dismiss for lack of
jurisdiction without conducting an evidentiary hearing. Id. at § 601.5.1.8. See also
6 Del. C. § 4508(k) (authorizing the Commission to adopt procedures for
dismissing complaints based on lack of jurisdiction or failure to state a claim upon
which relief is available). In this case, the Commission Decision was made by a
designated Commissioner without an evidentiary hearing.
                                         2
                           II.       LEGAL STANDARDS

A.    Superior Court Civil Rule 72(i)

      This Court‟s analysis is governed by Superior Court Civil Rule 72.4 Rule

72(i) provides, in pertinent part:

      The Court may order an appeal dismissed, sua sponte, or upon a
      motion to dismiss by any party. Dismissal may be ordered for
      untimely filing of an appeal, for appealing an unappealable
      interlocutory order, . . . for failure to comply with any rule, statute, or
      order of the Court or for any other reason deemed by the Court to be
      appropriate.

B.    Rules Of Statutory Interpretation

      Delaware rules of statutory interpretation are well-established and “designed

to ascertain and give effect to the intent of the legislators, as expressed in the

statute.”5 The Court must first determine whether the statutory provision is

ambiguous.6 The mere fact that the parties dispute the interpretation of a statute

does not render the provision ambiguous.7 Instead, a statute is ambiguous if it is




4
  Super. Ct. Civ. R. 72(a) (“This Rule shall apply to appeals to the Superior Court
from all commissions, boards, hearing officers under the Personnel Rules for Non-
Judicial Employees, or courts from which an appeal may at any time lie to the
Superior Court to be tried or heard on the record made below.”).
5
  Del. Bd. of Nursing v. Gillespie, 41 A3d 424, 427 (Del. 2012) (internal citations
omitted); Dewey Beach Enters., Inc. v. Bd. of Adjustment of Dewey Beach, 1 A.3d
305, 307 (Del. 2010).
6
  Taylor v. Diamond State Port Corp., 14 A.3d 536, 538 (Del. 2011); Dewey Beach
Enters., 1 A.3d at 307.
7
  Chase Alexa, LLC v. Kent Cty. Levy Court, 991 A.2d 1148, 1151 (Del. 2010).
                                          3
“reasonably susceptible of two interpretations”8 or “if a literal reading of the statute

would lead to an unreasonable or absurd result not contemplated by the

legislature.”9

      When a statute is unambiguous, statutory construction is unnecessary.10

Rather, the Court should give the words in the statute their plain meaning.11

Delaware courts have held that the plain meaning of a statutory term is determined

by considering the term in a common or ordinary way.12 If a statutory provision is

ambiguous, the Court must consider the statute as a whole and read each part “in

light of the others to produce a harmonious whole.”13 The Court should read

ambiguous statutory terms in a way to promote the statute‟s apparent purpose.14


8
  Taylor, 14 A.3d at 538; Dewey Beach Enters., 1 A.3d at 307.
9
  Del. Bd. of Nursing, 41 A.3d at 427.
10
   See Taylor, 14 A.3d at 538; Dewey Beach Enterprises, Inc., 1 A.3d at 307.
11
   See Zhurbin v. State, 104 A.3d 108, 110 (Del. 2014) (internal citations omitted)
(“Where a statute contains unambiguous language that clearly reflects the intent of
the legislature, then the language of the statute controls.”); Dewey Beach Enters., 1
A.3d at 307 (“If [a statutory provision] is unambiguous, no statutory construction
is required, and the words in the statute are given their plain meaning.”); Hoover v.
State, 958 A.2d 816, 819 (Del. 2008) (“If the language of the statute is
unambiguous, the plain meaning of the words control.”).
12
    See, e.g., Nw. Nat. Ins. Co. v. Esmark, Inc., 672 A.2d 41, 44 (Del. 1996)
(considering the common and ordinary meaning of the term “under”); Moore v.
Chrysler Corp., 233 A.2d 53, 55 (Del. 1967) (“Words in statutes must be given
their common and ordinary meanings.”); State v. Virdin, 1999 WL 743988, at *3
(Del. Super. Aug. 20, 1999) (finding that “pregnant” has a common and ordinary
meaning); O’Donald v. O’Donald, 430 A.2d 800, 803 (Del. Fam. Ct. 1981)
(“[S]tatutes will be given their common and ordinary meaning . . . .”).
13
   Taylor, 14 A.3d at 538; Dewey Beach Enters., 1 A.3d at 307.
14
   Delaware Bd. of Nursing, 41 A.3d at 427.
                                           4
C.    Appellate Procedure Under The Delaware Equal Accommodations
      Law

      Ms. Saunders filed her complaint against Del-Tech pursuant to DEAL.

DEAL is intended to prevent discrimination in places of public accommodation on

the basis of race, age, marital status, creed, color, sex, physical disability, sexual

orientation, gender identity, or national origin.15 The statute‟s purpose is reflected

by DEAL‟s prohibition of discriminatory business practices and the requirement

that public facilities implement reasonable accommodations to ensure equal access

to all Delaware citizens.16

      DEAL authorizes an alleged victim of prohibited discriminatory conduct to

file a complaint with the Division.17 The Division investigates the allegations set

forth in the complaint in order to eliminate any discovered discriminatory practice

through conciliation between the parties to the action.18 If the Division is unable to

resolve the complaint through conciliation, DEAL requires the Commission to

adjudicate the complaint on the merits following an evidentiary hearing.19

      The Court‟s jurisdiction over appeals from the Commission is conferred by

statute,20 subject to the Superior Court Civil Rules and Delaware‟s Administrative


15
   6 Del. C. § 4501.
16
   Id. at § 4504 (a)–(d).
17
   Id. at § 4508(a).
18
   Id. at § 4508(c).
19
   Id. at § 4508 (e)–(h).
20
   Id. at § 4511(a); 29 Del. C. § 10142(a).
                                          5
Procedures Act.21 DEAL authorizes appellate review of a Commission decision

for a “party aggrieved by an order for relief under § 4508.”22      DEAL sets forth

specific circumstances where the Commission issues an order pursuant to § 4508

affecting the rights of the parties to a dispute. Specifically, the Commission (i)

issues an order dismissing the complaint if the Commission determines that the

respondent has not engaged in prohibited discriminatory conduct;23 or (ii) issues an

order for relief that contains findings of fact and conclusions of law if the

Commission determines that the respondent has engaged in prohibited

discriminatory conduct.24

D.    Principles Of Appellate Review In Decisional Law

      The right of appeal is generally conditioned upon the entry of a final

judgment by the authority with original jurisdiction over the controversy. 25 An

appealable final judgment is a non-procedural ruling that relates to the merits of the


21
   6 Del. C. § 4511(a). See also 29 Del. C. § 10161(a)(5) (extending Delaware‟s
Administrative Procedures Act to Commission proceedings and decisions); 29 Del.
C. § 10161(f) (“Where the respondent is in disagreement with the action of the
board, the respondent may appeal the board‟s decision in accordance with the
provisions of the Administrative Procedures Act.”).
22
   6 Del. C. § 4511(a).
23
   6 Del. C. § 4508(g). The Commission may award reasonable attorneys‟ fees,
costs and expenses if the Commission determines that the complaint is for an
improper purpose, such as to harass or embarrass the respondent. Id.
24
   Id. at § 4508(h).
25
   Tyson Foods, Inc. v. Aestos Corp., 809 A.2d 575, 579–80 (Del. 2002); Gibbs v.
City of Wilmington, 2013 WL 1411236, at *3 (Del. Super. Mar. 27, 2013); Boyle v.
Christina Sch. Dist. Bd. of Educ., 2010 WL 60126, at *1 (Del. Super. Jan. 8, 2010).
                                          6
case by determining the rights and claims of the parties involved.26 Although “the

primary inquiry is „whether the trial court clearly declared its intention that the

order be its final act of the case,‟”27 it is also “essential to the analysis . . . whether

the order „ends the litigation on the merits and leaves nothing for the trial court to

do but execute the judgment.‟”28

                                 IV.    DISCUSSION

       Del-Tech requests this Court to intervene in proceedings before the

Commission to review the Commission Decision. In response, the State contends

that this Court lacks jurisdiction to consider the Commission Decision because the

Commission Decision constitutes an interlocutory order by an administrative

agency. Ms. Saunders agrees with the State‟s position that Del-Tech‟s appeal

should be dismissed as interlocutory but does not oppose Del-Tech‟s Motion to

Stay if this Court concludes that appellate review is appropriate.




26
   Tyson Foods, 809 A.2d at 579 (citing Showell Poultry, Inc. v. Delmarva Poultry
Corp., 146 A.2d 794, 796 (Del. 1958)).
27
   Mentor Graphics Corp. v. Shapiro, 818 A.2d 959, 962 (Del. 2003) (alterations
omitted) (quoting Tyson Foods, 809 A.2d at 579–580); Nichols v. Lewis, 2007 WL
1263509, at *1 (Del. May 1, 2007) (citing J.I. Kislak Mortg. Corp. v. William
Matthews, Builder, Inc., 303 A.2d 648, 650 (Del. 1973)).
28
   Mentor Graphics, 818 A.2d at 962 (quoting Lipson v. Lipson, 799 A.2d 345, 347
(Del. 2001)).
                                            7
A.    The Commission Decision Is Not An Appealable Order Under The Plain
      Language of DEAL.

      Upon consideration of the procedural circumstances of this case and the

statutory language of DEAL pertaining to appellate review, this Court finds that

the Commission Decision is not an appealable order. The section of DEAL that

authorizes appeals to Superior Court plainly limits appellate review to an “order

for relief under § 4508” without establishing a right to appeal from interlocutory

orders.29 As previously discussed, DEAL sets forth specific circumstances where

the Commission issues an order pursuant to § 4508. The Commission Decision

does not fall under one of these circumstances.

      If the Commission had dismissed Ms. Saunders‟s complaint in favor of Del-

Tech after concluding that Ms. Saunders was not entitled to relief, Ms. Saunders

would have the right to appeal to this Court.30 Alternatively, if the Commission

awarded relief in favor of Ms. Saunders after concluding that Del-Tech engaged in

discriminatory conduct, Del-Tech would have the right to appeal to this Court.31

However, that is not the procedural posture of this case. Here, the Commission

denied Del-Tech‟s motion to dismiss after determining that the complaint was

timely under the applicable statutory deadline. Under the plain language of the

applicable provisions of DEAL, the Commission Decision does not qualify as an

29
   6 Del. C. § 4511(a).
30
   See Id. at § 4508(g); Id. at § 4511(a).
31
   See Id. at § 4508(h).
                                             8
“order for relief under § 4508”32 or a “case decision” under Delaware‟s

Administrative Procedures Act.33

B.    The Commission Decision Is Not An Appealable Order Under
      Principles of Appellate Law.

      Well-established principles reflected in decisional law support this Court‟s

conclusion that the Commission Decision is an unappealable interlocutory order.

The Commission Decision does not reach the merits of Ms. Saunders‟s cause of

action.34 The Commission Decision does not resolve the issues set forth in Ms.

Saunders‟s complaint by determining whether or not Del-Tech engaged in

prohibited discriminatory conduct.35 The Commission Decision does not determine

Ms. Saunders‟s rights or Del-Tech‟s obligations pursuant to DEAL.36 The


32
   6 Del. C. § 4511(a); Id. at § 4508. Del-Tech‟s reliance on the Commission
Decision as an “Order” is misplaced because the Commission Decision is not a
final determination that is subject to appellate review. Compare Del-Tech‟s Resp.
to State‟s Mot. Dismiss at 2 (“[T]here is no doubt that the Commission‟s decision
and order denying [Del-Tech‟s] Motion (the „Order‟) was, in fact, an „order.‟”)
(emphasis added), with Brunhammer v. State, 2016 WL 611822, at *1 n.2 (Del.
Feb. 12, 2016) (defining a “final order” as “[a]n order that is dispositive of the
entire case.”) (alteration in original) (quoting Order, Black‟s Law Dictionary (10th
ed. 2014)).
33
   29 Del. C. § 10102(c) (“„Case‟ or „case decision‟ means any agency proceeding
or determination that a named party as a matter of past or present fact, or of
threatened or contemplated private action, is or is not in violation of a law or
regulation . . . .”).
34
   See Mentor Graphics, 818 A.2d at 962 (quoting Tyson Foods, 809 A.2d at 579–
580); Nichols, 2007 WL 1263509, at *1.
35
   See Tyson Foods, 809 A.2d at 579 (citing Showell Poultry, 146 A.2d at 796).
36
   See Tyson Foods, 809 A.2d at 579 (internal citations omitted).

                                         9
Commission makes no indication that it intends for the Commission Decision to be

the final act in this case,37 and the Commission Decision does not “mark the

„consummation‟ of the agency‟s decision making process.”38

      Fragmented litigation is disfavored under Delaware law,39and this Court

agrees that litigants “should have their dispute fully, fairly and finally resolved in

the tribunal of original jurisdiction before alleged errors of law are brought to an

appellate court for review.”40 Review of the Commission Decision under the

procedural circumstances of this case is contrary to the strong public policy against

a “piecemeal” approach to appellate litigation41 and the rule adopted by courts in



37
   See Mentor Graphics, 818 A.2d at 962.
38
   Bennett v. Spear, 520 U.S. 154, 178 (1997) (citing Chi. & S. Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 113 (1948)).
39
   See, e.g., Thompson v. Thompson, 2004 WL 2297396, at *1 (Del. Oct. 5, 2004)
(recognizing the Delaware Supreme Court‟s strong policy against accepting
piecemeal appeals from a single proceeding in a trial court); E.I. du Pont de
Nemours & Co. v. Allstate Ins. Co., 686 A.2d at 1016 (“The goal [of interlocutory
review], in all events, is to facilitate the orderly disposition of claims without
inadvertently promoting a piecemeal approach to litigation.”); Castaldo v.
Pittsburgh-Des Moines Steel Co., 301 A.2d 87, 87–88 (Del. 1973) (holding that
fragmented litigation is contrary to the efficient operation of the judicial system);
Showell Poultry, 146 A.2d at 795 (“The purpose of not permitting appeals except
in such cases [of a final judgment] is to prevent piecemeal litigation and to
eliminate delays which might be occasioned by so many interlocutory or interim
appeals.”).
40
   Gibbs, 2013 WL 1411246, at *3 (citing Frunzi v. Dep’t of Pub. Safety, 2000 WL
303455 (Del. Super. Feb. 23, 2000)).
41
   See Hill Int’l, Inc. v. Opportunity Partners L.P., 119 A.3d 30, 36–37 (Del. 2015)
(internal citations omitted); Hecksher v. Fairwinds Baptist Church, Inc., 2014 WL
1717071, at *1 (Del. Apr. 30, 2014) (quoting Tyson Foods, 809 A.2d at 580).
                                         10
Delaware and other jurisdictions: an order denying a motion to dismiss is not a

final determination that is ripe for appellate review.42

C.    Del-Tech’s Motion to Stay Is Moot.

      For the reasons set forth above, this Court finds that there is no order from

which an appeal may be taken. Accordingly, this Court finds that Del-Tech‟s

Motion to Stay pending appeal is not ripe for consideration at this time.43


42
   See, e.g., Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1367 (11th Cir. 2016)
(“An order denying a motion to dismiss does not result in a final decision. Thus,
we lack jurisdiction to review such an order unless it is „otherwise made appealable
by statute or jurisprudential exception.‟”) (quoting The Royalty Network v. Harris,
756 F.3d 1351, 1355 (11th Cir. 2014)); Abelesz v. OTP Bank, 692 F.3d 638, 661
(7th Cir. 2012) (“A district court‟s erroneous denial of a motion to dismiss for lack
of personal jurisdiction is ordinarily not reviewable in this court without either a
final judgment or a . . . certification for interlocutory appeal.”); In re Empresas
Noroeste, Inc., 806 F.2d 315, 317 (1st Cir. 1986) (citing Caitlin v. United States,
324 U.S. 229, 236 (1945)); McLeod v. McLeod, 2014 WL 2568545, at *1 (Del.
June 5, 2014) (“In denying the appellant‟s motion to dismiss based on the absolute
litigation privilege, the Superior Court did not finally determine a claim of right of
the appellant.”); Manley v. Marisco, 876 N.E. 2d 910, 911 (Ohio 2007) (finding
that an order denying a motion to dismiss for failure to comply with the affidavit-
of-merit requirement under the Ohio Civil Rules does not qualify for immediate
appellate review); Flanagan v. Blumenthal, 828 A.2d 572, 573 n.4 (Conn. 2003)
(internal quotations and citations omitted) (“The general rule is that the denial of a
motion dismiss is an interlocutory ruling and, therefore, is not a final judgment for
purposes of appeal.”); Gibbs, 2013 WL 1411236, at *3 (“In similar fashion, a
motion to dismiss that is denied cannot be appealed, a motion to dismiss that is
granted can.”).
43
   See Jenney v. Seabreeze Homeowners Ass’n, Inc., 2015 WL 3824867, at *2 (Del.
June 18, 2015) (“Dismissal of the appeal renders the Motion for Stay moot.”);
Deloitte LLP v. Klig, 2010 WL 3736141, at *1 (Del. Sept. 27, 2010) (finding that
appellant‟s motion for a stay pending appeal was moot after denying appellant‟s
application for interlocutory appeal); Hefley v. Onuoha, 2010 WL 890457, at *1
(Del. Mar. 12, 2010) (finding that appellant‟s motion for a stay pending appeal was
                                          11
                               IV.    CONCLUSION

      “[T]his Court cannot decide an appeal over which it does not have

jurisdiction.”44 Upon a plain reading of the applicable statutory provisions in light

of established principles in decisional law, this Court finds that it lacks jurisdiction

to consider the Commission Decision. Although appellate review is inappropriate

at this stage of proceedings, Del-Tech will have the right to appeal all interlocutory

orders in this case upon entry of a final judgment by the administrative authority

with original jurisdiction.45 In the meantime, Del-Tech‟s appeal must be dismissed.


moot after concluding that appellant‟s appeal was premature); In re Tex. E.
Overseas, Inc., 2009 WL 5173805, at *2 (Del. Ch. Dec. 23, 2009) (“For the
reasons set forth above, there is no order from which an appeal may be taken and,
thus, any motion for a stay pending appeal is not yet ripe.”); Archstone Partners,
L.P. v. Lichtenstein, 2009 WL 2031785, at *6 (Del. Ch. July 10, 2009) (“As
explained above, plaintiffs have not met the requirements in order for this Court to
certify . . . an interlocutory appeal. Accordingly, it is my opinion that there is no
„pending appeal,‟ and that plaintiffs‟ motion for injunction pending appeal should
be denied for this reason alone.”); TowerHill Wealth Mgmt., LLC v. Bander Family
P’ship, L.P., 2008 WL 4615865, at *4 (Del. Ch. Oct. 9, 2008) (addressing
defendant‟s application for a stay pending appeal “for completeness‟ sake only”
after concluding that defendant failed to meet the requirements for certification of
interlocutory appeal).
44
   Street v. Butler, 2017 WL 991079, at *1 (Del. Mar. 13, 2017).
45
   See O’Riley v. Rogers, 69 A.3d 1007, 1110 n. 4 (Del. 2013) (“Generally, under
modern statutes and modern rules, an appeal from a final judgment brings up for
review all interlocutory or immediate orders involving the merits and necessarily
affecting the final judgment which were made prior to its entry.”) (quoting
Robinson v. Meding, 163 A.2d 272, 275 (Del. 1960)); Tyson Foods, 809 A.2d at
580 (“But once interlocutory rulings achieve finality at the trial level, through
incorporation in the final judgment of the trial court, review of those subsidiary
rulings must be achieved through a timely appeal of that final order.”); Showell
Poultry, 146 A.2d at 796 (“If there is no finality of the decision of the essential
                                          12
      NOW, THEREFORE, this 17th day of May, 2017, the State’s Motion to

Dismiss the appeal filed by Delaware Technical and Community College is

GRANTED, and the Motion to Stay is DENIED AS MOOT.

      IT IS SO ORDERED.

                                            Andrea L. Rocanelli
                                            _____________________________
                                            The Honorable Andrea L. Rocanelli




questions involved, the right to review any step in the proceeding must be held in
abeyance until the case has reached a stage when it may be reviewed in a single
appeal involving the whole issue.”) (citing Ownbey v. Morgan et al., 105 A. 838
(Del. 1917)).
                                       13
