Opinion
No. 621, 2011 C.A. No. 11M-09-042
02-10-2012
PETER KOSTYSHYN, Petitioner Below, Appellant, v. STATE OF DELAWARE, Respondent Below, Appellee.
Court Below-Superior Court of
the State of Delaware in and
for New Castle County
Before BERGER, JACOBS and RIDGELY, Justices.
ORDER
This 10th day of February 2012, it appears to the Court that:
(1) On September 13, 2011, the appellant, Peter Kostyshyn, filed a request for information under the Freedom of Information Act (hereinafter "FOIA request") in the Superior Court. Apparently, Kostyshyn's FOIA request was directed to certain judicial officers and employees of the Superior Court.
(2) The Superior Court directed the Prothonotary to docket Kostyshyn's FOIA request as a miscellaneous matter. By order dated October 6, 2011, the Superior Court denied Kostyshyn's FOIA request.
(3) On November 16, 2011, Kostyshyn filed a notice of appeal from the Superior Court's October 6, 2011 order. On November 16, 2011, the Clerk issued a notice directing that Kostyshyn show cause why the appeal should not be dismissed as untimely filed.
(4) Kostyshyn filed a response to the notice to show cause on December 1, 2011. In his response, Kostyshyn contends that he filed a timely motion for reargument of the October 6, 2011 order. Kostyshyn also argues the merit of his FOIA request, and he requests the appointment of counsel.
(5) Kostyshyn's response to the notice to show cause does not provide a legitimate basis upon which to excuse the untimely filing of the notice of appeal. The Superior Court docket does not support Kostyshyn's claim that he filed a motion for reargument—timely or otherwise—of the October 6, 2011 order.
(6) "Time is a jurisdictional requirement." To invoke this Court's appellate jurisdiction, a notice of appeal in a civil proceeding must be received by the Clerk within "[w]ithin thirty days after entry upon the docket" of the order sought to be reviewed.
Carr v. State, 554 A.2d 778, 779 (Del. 1989).
Del. Supr. Ct. R. 10(a).
Del. Supr. Ct. R. 6(a)(i).
(7) In this case, any appeal from the Superior Court's October 6, 2011 order was required to be filed with the Clerk of this Court on or before November 7, 2011. Kostyshyn did not file the notice of appeal until November 16, 2011.
See Del. Supr. Ct. R. 11(a) (providing that "[t]he last day of the period so computed shall be included, unless it is a Saturday or Sunday, or other legal holiday, or other day on which the office of the Clerk is closed, in which event the period shall run until the end of the next day on which the office of the Clerk is open.").
(8) It does not appear that Kostyshyn's delay in filing the notice of appeal is attributable to court-related personnel. Consequently, this case does not fall within the exception to the general rule that mandates the timely filing of an appeal.
See Bey v. State, 402 A.2d 362, 363 (Del. 1979) (permitting review of untimely appeal when delay was "occasioned by court related personnel").
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NOW, THEREFORE, IT IS ORDERED, pursuant to Supreme Court Rules 6(a)(i) and 29(b), that the appeal is DISMISSED. The motion for appointment of counsel is moot.
BY THE COURT:
Jack B. Jacobs
Justice