Opinion
C.A. No. K17A-03-003 RBY
04-11-2017
MAXWELL ASANTE, Appellant, v. COURT OF COMMON PLEAS and TRACY D. CRISCO, Appellees.
Maxwell Asante, Appellant, Pro se. Tracy D. Crisco, Appellee, Pro se.
Upon Consideration of Appellee Tracy D. Crisco's Motion to Dismiss
DENIED
ORDER
Maxwell Asante, Appellant, Pro se. Tracy D. Crisco, Appellee, Pro se. Young, J.
SUMMARY
Tracy D. Crisco ("Appellee") moves this Court to dismiss an appeal filed by Maxwell Asante ("Appellant"). Appellee claims the notice of appeal was filed in an untimely manner. Appellant filed his notice of appeal within the applicable thirty day time period. Therefore, Appellee's motion is DENIED.
Appellee Court of Common Pleas did not file a response to the Motion to Dismiss.
FACTS AND PROCEDURE
Justice of the Peace Court 16 awarded Appellant a judgment with respect to his breach of contract claim against Appellee. On May 13, 2016, Appellee appealed the Justice of the Peace Court 16's decision to the Kent County Court of Common Pleas. The Court of Common Pleas demanded that Appellant file a Complaint by December 12, 2016. Because Appellant failed to file a Complaint, as directed, the Court of Common Pleas dismissed Appellant's claim. Appellant moved to vacate the dismissal on January 30, 2017. The Court of Common Pleas denied that motion on February 22, 2017. Appellant filed an appeal, to this Court, on March 13, 2017. Appellee filed the instant motion to dismiss on March 21, 2017.
DISCUSSION
Appellee explains that Appellant's notice of appeal was filed more than fifteen days after the Court of Common Pleas entered its final order. On that basis, Appellee maintains that this Court should dismiss Appellant's notice of appeal.
Dismissal is improper in this instance. Appellee accurately states that Superior Court Civil Rule 72(i) indicates that this "Court may order an appeal dismissed . . . upon a motion to dismiss by any party. Dismissal may be ordered for untimely filing of an appeal . . . ." If no time is prescribed otherwise by statute, a party has fifteen days from the date on which a final order is entered to file an appeal with this Court.
Super. Ct. Civ. R. 72(i).
Super. Ct. Civ. R. 72(b).
However, a different time is presented by statute. Under 10 Del. C. § 1326(b), a party has thirty days from the date of a final order to appeal a civil action from the Court of Common Pleas to the Delaware Superior Court.
10 Del. C. § 1326(b). --------
In this case, the Court of Common Pleas entered its final order on February 22, 2017. Appellant filed his Notice of appeal with this Court on March 13, 2017. That is within thirty days from the date on which the Court of Common Pleas entered its final order.
CONCLUSION
Appellant filed a timely notice of appeal under 10 Del. C. 1326(b). Therefore, Appellee's motion to dismiss is DENIED.
SO ORDERED.
/s/ Robert B. Young
J. RBY/dsc
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oc: Prothonotary
cc: Clerk, Court of Common Pleas, CPU15-16-000419