Delay In Filing the Certified Transcript Notice of Appeal to Court
In Wilson v. Thomas (1997) the Court addressed the standard for reviewing late filings of certified transcripts.
Since judgment was entered in the Justice of the Peace Court 16 on December 20, 1996, a timely appeal should have been filed with this Court on or before January 4, 1997.
Delaware Courts have held that 10 Del. C. 9571 is a jurisdictional statute governing the right of appeals from judgments recovered in a Justice of the Peace Court. Williams v. Singleton, Del. Super. 52 Del. 488, 160 A.2d 376 (1960).
If such a statute is not complied with, the appeal should be dismissed. Dzedzej v. Prusinski, Del. Super., 259 A.2d 384 (1969).
But, if the appellant is prevented from properly perfecting an appeal beyond a deadline by the action or inaction of state agencies and the appellant did all that required of her then the Court will allow the appeal. Bey v. State, Del. Supr., 402 A.2d 362 (1979).
In this case the appellant would have filed a notice of appeal and paid a filing fee on December 31, 1996 if she had not been prevented from doing so by a clerk of the Court of Common Pleas.
The appellee also contends that the appeal should be dismissed pursuant to the cases of Trala v. Melmar Industries, Del. Super., 254 A.2d 249 (1969) (where a magistrate's clerk gave incorrect advice to an appellant) and Williams v. West, Del. Supr., 479 A.2d 1253 (1984) (mistake of Judge in approving cash bail).
These cases concern the requirement of a surety bond as appeal security and this anachronism has now been eliminated by statute. 10 Del. C. 9571.
Where an appellant did all that was required of him in seeking review, but his default was occasioned by Court related personnel, his petition for review will not be denied. Bey v. State, supra.
I will apply the principle set forth in Bey v. State, supra to the present case. In this case the pro se appellant's failure to file a timely appeal was occasioned by the erroneous actions of agents of the state.
I, therefore, conclude this appeal should proceed to a determination on its merits.
I correctly denied appellants motion to dismiss and the motion for reargument is denied.
In Reed v. Clark's Swimming Pools, Inc (1997), Judge Stokes ruled that the time period of ten (10) days for filing the transcript may be enlarged upon a showing of action by the trial court that prevented compliance. However, Judge Stokes also noted as follows:
. . . the jurisdictional requirements of 10 Del. C. 9571 must be satisfied unless a default by a clerk or officer of the court prevents the timely filing of an appeal by a party who took all necessary steps to comply with the rule. (Citing Lenape, supra at fn. 7; citing fn. 12 Casey v. Southern Corporation, 26 Del. Ch. 447, 29 A.2d 174 (1942).
In Reed v. Clark, et al., the Court of Common Pleas ruled that appellant "has not presented the Court with any credible facts attributing the delay to the Magistrate.
The Court also ruled that the document certified transcript "could easily have been obtained by a personal visit rather that accepting the vicissitude of the mail. No justification for the delay is shown."