IN THE SUPERIOR COURT OF THE DATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
EDW ARD BOC K, JR.,
Claiman t–App ellant,
v.
CAT ALY TIC, IN C.,
Employer-Appellee
and
IND UST RIAL ACC IDEN T BO ARD ,
Appellee.
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IAB Hearing No.: 783950
C.A. 03A-05-014 JRS
Date Submitted: June 22, 2004
Date Decided: September 29, 2004
Upon consideration of the Appellee’s Motion to Strike.
GRANTED.
Upon considera tion of the Appellee’s Motion to D ismiss.
GRANTED.
ORDER
This 29 th day of September, 2004, Catalytic, Inc. (“Catalytic”), having moved
to strike the Opening Brief of Appellant, Edward Bock, Jr. (“Bock or Appellant”), and
to dismis s App ellant’s app eal, it appea rs to the C ourt that:
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Facts
1. Bock w as emplo yed by C atalytic on N ovemb er 7, 198 4 whe n he sus tained
an injury to his back from an industrial accident. The Industrial Accident Board
(“IAB”) heard Bock’s injury claim and awarded relief.
2. Bock r eceived W orker’s C ompen sation be nefits un til 1993 when he was
“able to get back into an employability position . . . and gain other employmen t.” 1
Bock suffered a second, but unrelated, compensable injury while working for this new
employer.
3. Com pensatio n for B ock’s 19 84 injur y ceased o n June 5 , 1993.
4. More than five years later, on December 19, 2001, Bock filed a Petition to
Determine Additio nal Com pensatio n agains t Catalytic, recorded under IA B File
Number 783950. After a hearing, the IAB denied the Petition on the ground that the
five year statute of limitations had run on Bock’s 1984 injury, the last payment of
compe nsation h aving b een mad e on Jun e 5, 199 3.
5. Under Del. Code An n. tit. 19, § 2361(b) (“Section 2361"), the five year
statute of limitations “where payments of compensation have been made under an
agreement approved by the [IAB]” . . . runs from “the time of the making of the last
paymen t.”2 And, under Del. Code Ann. tit. 19, § 2301(5) (“Section 2301"), payment
of compensation does not include any additional payments for medical reports and
Edward Bock v. Catalytic, Inc., Testimony, Industrial Accident Board , State of Delaware, Hearing
No. 783950, at 3 (August 8, 2003).
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Section 2361provides in part: “(b) Where payments of compensation have been made in any case
under an agreement approved by the Board or by an award of the Board, no statue of limitations
shall take effect until the expiration of 5 years from the time of the making of the last payment for
which proper receipt has been filed with the Department.”
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other administrative materials.3
Bock’s Petition to Determ ine Ad ditional
Compensation clearly w as filed be yond fiv e years fro m the last p ayment m ade to him
by Catalytic.
6. On May 16, 2003, the attorney for Appellant filed a complaint for Citation
on Appeal of the IAB decision under Del. Super. Ct. Civ. R. 72(e). Thereafter, on
July 17, 2003, Appellant’s counsel sought leave to withdraw as counsel on the ground
that Bock h ad been advised before th e appeal w as taken that counsel would not
prosecu te the appeal, but thereafter Bock failed to communicate with counsel about
retaining new co unsel. C ounsel f iled the ap peal pro phylactica lly and im mediately
moved to withdraw. The Court granted the motion to withdraw and allowed Bock
ninety (9 0) days to retain new counse l.
7. On N ovemb er 20, 20 03, Cata lytic filed a request for a briefing schedu le. A
briefing schedule was issued by the Court setting January 5, 2004 as the deadline for
the filing of Appellant’s Opening Brief. On January 7, 2004, the Court received a
handwritten letter from Bock w ith his req uest that ce rtain medical expen ses be pa id
by the workers compensation carrier. On or about March 19, 2004, in response to an
inquiry directed to him by the Prothon otary, Bo ck indica ted that he intended to
proceed pro se and that his January 7 th letter would serve as his opening brief.
8. On Ju ne 22, 2 004, A ppellee file d a Mo tion to S trike Ap pellant’s Opening
Brief and to Dismiss the Appeal. Bock has not responded to the motion.
The Contentions
9. Appellee contends that Appellant’s Opening Brief on Appeal “(1) w holly
Section 2301 provides, in part: “(5) Compensation, wherever the context requires it, includes
surgical, medical and hospital services, medicines and supplies and funeral benefits provided for in
this chapter.”
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fails to comp ly with re quirem ents of D el. Supe r. Ct. Civ. R. 107(c) and (d); and (2)
was never served on Catalytic’s counsel, as required by Del. Super. Ct. Civ. R. 5 and
107(e) .”
Discussion
10. The Supreme Court of Delaware and th is Cour t “recogn ize the nee d to
grant some d egree of leniency to pro se ap pellants.” 4 On sev eral occas ions in this
litigation, the Court has afforded grea t deference to this pro se appellant.
For
example, Bock failed to file an opening brief by the January 5, 2004 deadline, yet the
court kept this potential appeal open. When Bock’s informal “to whom it may
concern” letter was received on January 7, 2004, th e Cour t tried to ascertain its
purpose. For two months, the Court awaited clarification from Bock regarding the
intended purpose of his January 5, 2004 letter. Ultim ately, wh en Boc k contin ued in
his failures to respond to the Court’s inquiries, the Prothonotary set a response
deadline of March 19, 2004. On or about that date, Bock, still acting pro se, indicated
that he wished to have the January 5, 2004 letter serv e as his ap peal brief . Catalytic
has now called the question of whether this cryptic letter can suffice as an opening
brief on app eal in this Court. For the reasons that follow, the Court concludes that the
letter is fatally deficient and that the appeal must be dismissed.
11. The Supreme Court of Delaware has ruled that “at a minimum, briefs must
be adequa te to enable an appellate c ourt to co nduct a m eaningf ul review of the m erits
of the appe llant’s claims.” 5 The m inimum requirem ents for a n appea l brief in th is
Power v. Myriad Services, Inc., 718 A.2d 528, 528 (Del. 1998) (Pro se Appellant’s opening brief
failed to comply with Supr. Ct. R. 25(a) even when viewed with the typical leniency afforded pro
se litigants.).
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Id. at 528.
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Court a re prov ided in D el. Supe r. Ct. Civ . R. 5 and 107.
12. Del. Super. Ct. Civ. R. 107(c) requ ires that all b rief cove rs “shall co ntain
the follow ing info rmation :”
1.
The na me of th e Cour t.
2.
The title o f the case a nd its nu mber in this Cou rt.
3.
The names of counsel for party submittin g the brie f with
the office addresses of such counsel resident outside the
State.
Bock’s letter contained none of this information and, as such, violates the
Court’s rule.
13. Even assuming that this Court was to look beyond the requirements of Del.
Super. Ct. Civ. R . 107(c) , as it might be inclined to do for a pro se litigant, the
Appellant’s brief still must comply with the more su bstantive requirem ents of D el.
Super. Ct. Civ. R. 1 07(d). A s a practica l matter, this rule gov erns the c ontent o f all
briefs so that the opposing party has sufficient information upon wh ich to bas e its
response and the Court has sufficient information upon which to conduct a meaningful
review of the issues. Specif ically, Del. S uper. C t. Civ. R. 1 07(d) r equires th at all
briefs “shall contain the following matter arranged in the following order:”
1.
A table of contents or index.
2.
A table of citations arranged alphabetically and indicating
the pages o f the brief on wh ich each c ited authority
appears.
3.
In the first br ief of each party, a state ment of the case,
including a statement of the nature of the proceedings and
a concise chrono logical state ment, in narrative form, o f all
relevant facts with page references to the transcript of
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testimony, if any, and to any pleadings and exhibits.
4.
A statement of the questions involved.
5.
Argu ment,
divided into sections under appropriate
headings, one section to be devoted to each of the questions
involved.
14. In order to assess Bock’s compliance with both the letter and, more
importantly, the spirit of Rule 107(d), the Court has undertaken a comparison of the
substantive elements of the rule against the contents of Bock’s January 5, 2004 letter
brief. This comparison leads to following conclusions: Bock’s letter failed to provide
the opposing party (Catalytic) with his view of the facts as required by 107(d)(3),
failed to identify the question or issue to be resolved as required by 107(d)(4), failed
to identify his arguments by headings or otherwise as required by 107(d)(5), and failed
to identify an y author ity, legal or o therwis e, upon which his argu ments (a lso not
identified ) might b e based a s require d by Ru le 107(d )(2).
15. In short, Bock’s January 5, 2004 letter fails to satisfy any of the Cou rt’s
requirements for an o pening appellate b rief. Mo re impo rtantly, the le tter fails to
identify what the IAB d id wro ng, wh y it was w rong, o r how the Cou rt should fix it.
Catalytic cannot be expected meaningfully to participate in this appeal when neither
it nor the Court can discern Bock’s basis for taking the appeal in the first place.6
Under these circu mstance s, when the Ap pellant has refused to avail himself of
Howard v. Snyder, Civ. No. 01-376-SLR, 2004 U.S. Dist. LEXIS 11117 (appeal must
state the “claim on which relief could be granted.”).
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multiple opportunities to cure the deficiencies, the Court is left with no cho ice but to
strike his p urporte d open ing brief and dism iss the app eal. 7
Based on the foregoing, Appellee’s Motion to Strike and Motion to Dismiss the
Appeal are GRA NTE D.
IT IS SO ORDERED.
________________________
Judge Joseph R. Slights, III
Original to Prothonotary
7
Power, 718 A.2d at 528 (when an opening appeal brief, including pro se briefs, fails to meet the
requirements of Del. Super. Ct. Civ. R. 107, “the Superior Court [is] well within the bounds of its
discretion in dismissing the appeal” in accordance with Del. Super. Ct. R. 72(i) which states
“dismissal may be ordered for . . . failure to comply with any rule [or] statute . . . of the Court.”).
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