Opinion
CIVIL ACTION NO: 00A-01-002.
Date Submitted: June 26, 2000.
Date of Decision: August 31, 2000.
David J. Weidman, Esquire, Hudson, Jones, Jaywork Fisher, 100 North Bedford Street, P.O. Box 359, Georgetown, Delaware 19947, attorney for Petitioner/Appellant;
James J. Hanley, Esquire, Deputy Attorney General, Department of Justice, 820 North French Street, 6th Floor, Wilmington, Delaware 19801, attorney for Respondent/Appellee.
MEMORANDUM OPINION
Capitol Credit Services, Inc. ("Capitol Credit") filed this action seeking judicial review of the Justice of the Peace Court's ("JP Court") requirement, under threat of dismissal for lack of prosecution, that plaintiffs prosecuting debt actions provide a physical address for defendants where original service of process is effected by certified mail, return receipt requested, and such substituted service is returned either "refused" or "unclaimed." Capitol Credit argues that under 10 Del. C. § 9524 substituted service on plaintiffs by certified mail is a proper method of service and that the JP Court's requirement of a secondary method of service is in derogation of the statute. The JP Court, however, argues first that this Court does not have jurisdiction to act on this petition. Moreover, the JP Court argues that substituted service by certified mail is merely one of several methods of service that it may, but not necessarily exclusively, accept. This is the Court's decision on the matter.
All references to "JP Court," unless otherwise noted, refer to the named respondent in this action.
STATEMENT OF FACTS AND NATURE OF PROCEEDINGS
Because of the procedural posture of this particular action, these facts are principally developed from the parties' briefs and not merely from the record.
Capitol Credit, a Delaware corporation, is in the business of collecting outstanding debts owed to other businesses and hospitals in Kent and Sussex Counties, Delaware. Capitol Credit takes the debts on assignment and attempts to collect the money owed from the debtors. Many of the collection efforts necessitate the filing of debt actions in the Justice of the Peace Courts. Moreover, in many cases, Capitol Credit has no physical address for the debtors, and thus, cannot serve them personally.
In October, 1999, Capitol Credit filed a lawsuit in the JP Court against Darrell Quail seeking payment on a debt. Mr. Quail's address was listed as P.O. Box 525, Greenwood, Delaware 19950. Service of process was attempted by certified mail but remained unclaimed at the Greenwood post office. On December 13, 1999, Capitol Credit received a Notice of Failure to Serve Complaint from the JP Court. The notice provided in part that:
The Court has been unable to serve the necessary papers at the address you provided for the Defendant because:
Constable needs a physical address, can not serve a P.O. Box. Certified mail returned (unclaimed).
If you wish further action taken you must file an alias praecipe and provide the Court with a valid address for the defendant. The fee for an alias praecipe is fifteen ($15.00) dollars.
In the event no action is taken within one (1) year from the date of this notice, the court will dismiss this civil action for lack of prosecution.
The JP Court's procedure in this situation is to use the physical address to either serve the defendant personally, or after the address is verified by the post office, a copy of the summons is posted at the entry door of the residence.
Capitol Credit has no physical address for Mr. Quail and is subject to having its case dismissed for lack of prosecution as stated in the Notice from the JP Court. On January 12, 2000, Capitol Credit filed this Writ of Certiorari asking this Court to declare that the JP Court's procedure, as outlined above, does not comport with Delaware law.
After briefs were submitted by the parties, the American Civil Liberties Union ("ACLU") moved for, and was granted, permission to file a brief, amicus curiae. The ACLU argues that the provisions of 10 Del. C. § 9524 do not provide notice sufficient to satisfy the requirements of due process.
DISCUSSION
The Plaintiffs petition raises two issues that must be decided.
1) Does this Court have jurisdiction to rule on this writ?
2) Is substituted service by certified mail, under 10 Del. C. § 9524, sufficient in itself to perfect service where the mail is returned "unclaimed?"
Jurisdiction. The Defendant argues that this Court does not have jurisdiction to rule on this petition because all of the requirements for a valid Writ of Certiorari are not satisfied. Specifically, the Defendant argues that there is no "final order" to be reviewed and that there is not a proper record upon which the Court could base its decision.
Under 10 Del. C. § 562, the Superior Court is given the power to issue writs of certiorari. "The power to review the judgments and proceedings of certain inferior courts is a part of the supervisory or appellate jurisdiction of the Superior Court. . . ." Victor B. Woolley, Woolley's Practice in Civil Actions § 894 (1906). There are two primary vehicles through which the Superior Court reviews the actions of the Justice of the Peace Courts; certiorari and appeal. With the former, the record is tried, with the latter, the case is reviewed on its merits. Woolley § 900.
This Court no longer hears direct appeals from the Justice of the Peace Court. Those appeals are now to the Court of Common Pleas.
"As a broad general rule, a writ of certiorari lies from the Superior Court to inferior tribunals, to correct errors of law, to review proceedings not conducted according to law, and to restrain an excess of jurisdiction." Woolley § 896. Before a writ of certiorari will be issued, two initial requirements must be met. First, the judgment below must be final. Second, there must be no other available basis for review. Matter of Butler, Del. Supr., 609 A.2d 1080, 1081 (1992). See also Matter of Wilson, Del. Supr., No. 592, 1999, Berger, J. (Feb. 28, 2000) ORDER. Moreover, only certain claims, for instance, those not requiring the weighing of evidence, may be reviewed on certiorari.Butler, 609 A.2d at 1081. "Where these threshold requirements are not met, this Court has no jurisdiction to hear the petitioner's claims, and the proceedings will be dismissed." Id.
The present action does not meet the requirements for a writ of certiorari. The Notice of Failure to Serve Complaint does not rise to the level of a "final order" as commonly contemplated by existing Delaware law. This Notice is more of a statement of what steps the Plaintiff needs to take to keep the action alive. Here, a final order would typically be in the nature of an order of dismissal, which has not been issued. While there is some element of finality in the JP Court's notice, Capitol Credit could have reduced this to a "final order" by seeking a stipulation or order of dismissal for lack of prosecution. Or, Capitol Credit could have waited for the year, as provided in the notice, to expire. Either way, this Court would then have the necessary "final order" to consider.
In the alternative, Capital Credit could have filed a motion for default judgment, which, if denied because further service was not attempted, would have enabled Capital Credit to seek a mandamus. Thus, there were other steps which could have been taken to have the issue before the Court in a legally correct procedural posture.
The other aspect of the jurisdiction issue is whether the Court has before it a proper record upon which to rule. The "record" that may be reviewed on certiorari is a somewhat amorphous concept. In two cases, however, courts found the record to consist of merely the order of the Court without supplemental information. See Butler at 1082 (Superior Court's Order is the entire record); Hassan v. State, Del. Super., C.A. No. 99A-04-009, Herlihy, J. (December 8, 1999) (Court of Common Pleas Judge's transcribed findings constitute the record for review on Certiorari). In the present case, the Notice reflects the JP Court's position on the issue of substituted service. The Notice does not, however, provide a sufficient factual record for this Court to review. As noted earlier, the facts as recited above were developed from the parties' pleadings and briefs before this Court. Thus, these facts are "extra-record" information and cannot form a basis for this Court's decision.
Because there is no "final order" from the JP Court and the Notice does not provide a sufficient factual record for review, Capitol Credit's petition for a Writ of Certiorari suffers from fatal procedural defects and must be dismissed.
While the Court is dismissing this petition solely on the basis of this procedural defect, it recognizes that the core issues the JP Court's notice and Capitol Credit's petition raised are of significant importance to the prosecution of debt actions in the JP Court. To that end, this Court sets forth below an analysis of the issue that reflects how the Court would view the practices of the JP Court if properly presented.
Substituted Service under 10 Del. C. § 9524. Justice of the Peace Civil Rule 5(g)(l)(a) provides that service of process may be made, "where authorized by statute, by certified mail, return receipt requested." The statute, 10 Del. C. § 9524, provides for the service of summons and verification for default judgment for cases brought in the JP Court. The statute provides in pertinent part:
(a) Service of a summons in an action under this subchapter upon an individual . . . shall be made by delivering a copy of the summons . . . to the individual personally . . . or by sending a copy of the summons . . . to the individual by certified mail, return receipt requested, or by delivering copies thereof to an agent authorized . . . to receive service of process. . . .
(b) The service and the manner of service shall be stated in the return thus, "served personally" by the Justice of the Peace Constable or duly authorized special process server . . . or "served by certified mail, return receipt requested," and a judgment by default shall not be rendered until the service shall be verified by (1) the Constable's or the special process server's affidavit in writing, or (2) the certified mail return receipt signed by the defendant, . . . or with the word "unclaimed" or "refused" noted thereon by the postal authorities.10 Del. C. § 9524.
The JP Court does not contend that this statute proscribes substituted service of process by certified mail, and rightfully so. The plain language of the statute provides for such service of process. See Patterson v. Townsend, Del. Super., C.A. No. 94C-04-031, Terry, J. (Dec. 2, 1994) ORDER; Eanes v. Custer, Del. Super., C.A. No. 94C-05-019, Terry, J. (Aug. 31, 1994) Mem. Op.; Gland v. Smith, Del. CCP, C.A. No. 1999-03-333, Smalls, J. (Nov. 4, 1999).
The JP Court contends that it is not required to accept "unclaimed" certified mail alone as sufficient service of process. Moreover, in its brief, the JP Court states that it has no dispute with this Court's decisions in both Eanes and Patterson and argues that the statute and cases stand for the proposition that the JP Court may, but is not required to, accept "unclaimed" or "refused" certified mail as perfected service. Brief at 7. This Court can find no authority for adopting such an interpretation of this statute. In fact, the Court, in Eanes, stated that " 10 Del. C. § 9524 (b) provides that if a summons is returned in an envelope `refused' service is perfected." Eanes at 3 (emphasis added). This same theory would apply to a summons returned "unclaimed." This Court would find that substituted service of process by certified mail is, alone, proper and sufficient to perfect service of process even if returned "unclaimed." This interpretation comports with the plain meaning of the statute.
This Court would not, however, rule that the JP Court must enter an order of judgment of default whenever substituted service under the statute is returned "refused" or "unclaimed." The language "a judgment by default shall not be rendered until service shall be verified" is not mandatory language, but rather, sets a condition precedent to the granting of default judgment. Moreover, the JP Court's power to enter a default judgment is discretionary and the Court is provided the power to hold hearings on the issue as it deems necessary. See 10 Del. C. § 9537, There may be situations where certified mail is returned "unclaimed" where a plaintiff may not be entitled to default judgment on that basis alone. For instance, the document may not have been properly addressed or the defendant may never have used that address. See Gland at 2. This Court would, however, instruct the JP Court that while it has discretion whether to enter default judgment, a denial of default judgment may not lie solely on the basis that substituted service by certified mail was returned "unclaimed."
10 Del. C. § 9537 (a) provides:
(a) After verification of the return of service, if a defendant, being duly summoned in an action under this subchapter, fails to appear by written motion or pleading at or before the date provided for in the summons, or at any time to which the cause is regularly adjourned, judgment by default may be entered, by a Clerk of the Court for a sum certain or for a sum which can by computation be made certain or by the justice of the peace in all other cases in which the party is entitled to judgment by default. The Court may conduct such hearings as it deems necessary and proper.
Again, this Court notes that the present petition is being dismissed for procedural defects and that the preceding discussion of substituted service is advisory in nature. Ultimately, however, if the issue was properly before the Court, it would find that service of process is perfected where a plaintiff uses substituted service by certified mail under 10 Del. C. § 9524 and that service is returned "unclaimed." Because service is perfected, the JP Court may not require parties to provide alternate forms of service in such cases. To do so is an error of law.
ACLU's amicus curiae Brief. The ACLU, in its brief, argues that a defendant's constitutional right to due process is violated if the JP Court must accept certified mail that is returned "unclaimed" as perfected service of process because such a situation does not adequately provide notice of the institution of proceedings. This constitutional issue is not properly before the Court and cannot be considered. Here, the only party whose constitutional rights may or may not be jeopardized are those of Mr. Quail. Mr. Quail is not a party to these proceedings. Thus the issue is not justiciable. If default judgment were entered against Mr. Quail, then he would have standing to assert his constitutional rights and his claim would be ripe. That case is not before this Court and it will not address the issue.
CONCLUSION
The Court finds that the Notice from the JP Court does not rise to the level of a "final order." Moreover, because of the procedural nature of this petition, there is not a sufficient factual record for this Court to rule on the petition. For these reasons, the Court finds that the jurisdictional prerequisites of Butler are not met and the petition for Writ of Certiorari is DISMISSED.