Johnson v. Delhaize America, LLC, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY KANESHIA JOHNSON, Appellant, v. DELHAIZE AMERICA, LLC and INDUSTRIAL ACCIDENT BOARD, Appellees. Decided: ) ) ) ) ) C.A. No. N15A-11-001 EMD ) ) ) ) ) November 18, 2015 On Appeal from the Industrial Accident Board Decision DISMISSED DAVIS, J. This is an appeal (the “Appeal”) filed by Appellant Kaneshia Johnson from a decision of the Industrial Accident Board (the “Board”). The Board rendered its decision on November 13, 2014. For the reasons set forth below, the Court dismisses this Appeal as untimely under Rule 72(i) of the Superior Court Rules of Civil Procedure (“Civil Rule 72”) and 19 Del. C. § 2349 (“Section 2349”). APPLICABLE LAW Under Civil Rule 72(b), an appeal may be taken from the final decision of the Board by filing a notice of appeal with the Prothonotary of the appropriate county within the time prescribed by the controlling statute. 1 Section 2349 prescribes that the award decreed by the 1 Rule 72. Appeals from Certain Commissioners, Boards and Courts (a) Application of Rule. This Rule shall apply to appeals to the Superior Court from all commissions, boards, hearing officers under the Personal 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. (b) How Taken. When an appeal is permitted by law, a party may appeal by filing a notice of appeal with the Prothonotary of the appropriate county within the time prescribed by statute. If no time is Board shall be final, unless within 30 days of the day the notice of award was mailed to the parties, either party appeals to the Superior Court of the appropriate county. 2 Civil Rule 72(i) directs how the Court is to handle an untimely appeal from a final decision of the Board. Civil Rule 72(i), in part, provides: 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 of a party diligently to prosecute the appeal, 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. 3 A party must comply with both Section 2349 and Civil Rule 72 in order for this Court to proceed on any appeal from the Board. In other words, because an untimely-filed appeal is grounds for dismissal under Superior Court Rule 72(i), this Court lacks jurisdiction to hear it. 4 DISCUSSION Ms. Johnson filed this on November 9, 2015. The Board entered its final order on November 13, 2014. From the face of the Notice of Appeal and its attachments, the Appeal is untimely by almost eleven months. The only question is whether an exception applies that would excuse such a delayed filing of appeal. Ms. Johnson provides only one reason why the Appeal has been delayed. Ms. Johnson provides that “[t]he audio transcript was sent to New York in which caused my [appeal] time to prescribed by statute, the notice of appeal shall be filed within 15 days from entry of judgment, order, or disposition from which an appeal is permitted by law. Del. Super. R. Civ. P. 72(a) and 72(b). 2 Section 2349 provides, in part, “[a]n award of the Board, in the absence of fraud, shall be final and conclusive between the parties, except as provided in § 2347 of this title, unless within 30 days of the day the notice of the award was mailed to the parties either party appeals to the Superior Court for the county in which the injury occurred or, if the injury occurred out of the State, to the Superior Court in and for the county in which the hearing was had.” 19 Del. C. §2349. 3 Del. Super. R. Civ. P. 72(i). 4 See, e.g., Genesis Health Ventures v. Horne, C.A. No. 07A-12-007 WCC, 2008 WL 2331983, at *2 (Del. Super. May 30, 2008); Foster v. Walt’s Flavor Crisp Chicken, C.A. No. 07A-08-006 JRS, 2008 WL 62545, at *1 (Del. Super. Jan. 4, 2008); Irvin-Wright v. State, C.A. No. 03A-04-010PLA, 2003 WL 21481004, at *2 (Del. Super. June 16, 2003). go by.” This is not a valid reason for a delay in noting an appeal. The audio transcript is not the relevant document. Rather, the Board’s final order or award is the relevant document. Ms. Johnson does not contend that the final order of the Board was not mailed to the parties. 5 Moreover, Ms. Johnson does not indicate that the jurisdictional defect created by the untimely filing of the appeal was caused by some action of court-related personnel. 6 Under these circumstances, the Court finds that the Appeal is untimely and must be dismissed. CONCLUSION For the reasons stated above, the Appeal is DISMISSED as untimely under Civil Rule 72(b) and Section 2349. IT IS SO ORDERED. /s/ Eric M. Davis Eric M. Davis, Judge 5 In fact, the Board’s order indicates that the order was sent to counsel for both Ms. Johnson and Delhaize America LLC. 6 See, e.g., Bey v. State, 402 A.2d 362, 363 (Del. 1979).
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