Opinion
C.A. No. 01A-05-011 CG
Date Submitted: January 18, 2002
Date Decided: February 19, 2002
Upon Appellant's Motion for Reargument. DENIED.
Thomas C. Marconi, Losco Marconi, P.A., Wilmington, Delaware, Attorney for Petitioner/Appellant.
Amy E. Evans, Assistant City Solicitor, Wilmington, Delaware, Attorney for Respondent/Appellee.
ORDER
This day 15th day of February, 2002, upon consideration of the papers filed by the parties and the record in this case, it appears that:
(1) On May 25, 2001, Appellant, McDonald's Corporation, filed a Petition for a Writ of Certiorari with this Court pursuant to 22 Del. C. § 328 seeking review of a decision of the City of Wilmington Zoning Board of Adjustment. The Court ordered that the writ be issued and the appeal was submitted to the Court.
(2) On January 10, 2002, the Court dismissed McDonald's appeal as untimely. The Court found that the final decision of the Board from which appeal must have been taken was the Board's written Building Zone Ordinance Decision dated July 25, 2001 rather than the oral vote taken by the Board at the April 25, 2001 hearing. The Court concluded that, because McDonald's filed its appeal prematurely, it had no jurisdiction to consider the merits of the appeal.
McDonald's Corp. v. Zoning Bd. of Adjustment for the City of Wilmington, Del. Super., C.A. No. 01A-05-011, Goldstein, J. (Jan. 10, 2002) (ORDER).
Id. at 3.
Id. at 4.
(3) McDonald's has now filed a Motion for Reargument, asking that the Court reinstate its appeal and consider the merits of its arguments. In support of its motion, McDonald's argues that there is no evidence that the Board ever filed its decision in the office of the Board as contemplated by 22 Del. C. § 328. McDonald's states that the Board is required to file its decision immediately pursuant to 22 Del. C. § 323. McDonald's argues that it should not be prejudiced by the Board's failure to file its decision until approximately three months after the hearing took place.
Specifically, the statute, which sets forth the procedure for appeal to the Superior Court from a decision of the Board, provides, 22 Del. C. § 328, which sets forth the procedure for appeal to this Court from a decision of the Board, provides that "[s]uch petition shall be presented to the Court within 30 days after the filing of the decision in the office of the board." Del. C. Ann. tit. 22 Del. C. § 328(a) (1997).
Section 323 requires, in part, that the Board "keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record." Del. C. Ann. tit. 22 Del. C. § 323 (1997).
(4) McDonald's notes that there is no indication in the record as to when, if ever, the decision was filed in the office of the Board as contemplated by section 328 and that the July 25, 2001 written decision by the Board was issued only after the Court directed the Board to produce a record of the proceedings below for purposes of this appeal. McDonald's states that, "[McDonald's] was not aware that a written decision dated July 25, 2001 existed until two months after the appeal was docketed by McDonald's." The Board asks that the Court deem the decision of the Board to have been filed pursuant to 22 Del. C. § 328 on April 25, 2001, the date of the hearing, because the Board was without statutory authority to wait ninety days to file its decision.
(5) In its order dismissing McDonald's appeal, the court held that the final decision of the Board from which McDonald's was required to appeal was the Board's written decision. In so holding, the Court considered the language of the statute and the Board's own rule which states that the final disposition of any appeal to the Board be in the form of a Resolution. The Court finds that its decision was not erroneous.
Id. at 4.
McDonald's, C.A. No. 01A-05-011, at 3.
(6) McDonald's also argues that the Board's failure to file its decision immediately in the office of the Board prejudiced McDonald's appeal and that its failure to file a timely appeal can be attributed to Board personnel. It is unclear whether the Board erred by failing to follow its statutory mandate to file its decision. However, as the Court noted earlier, unless the untimely filing of an appeal can be attributed to "court-related personnel," not even excusable neglect on the part of a party can cure the jurisdictional defect created. McDonald's premature appeal was not the result of court-related personnel.
Id. (quoting PNC Bank, Delaware v. Hudson, 687 A.2d 915, 916 (Del. 1997) (citing Eller v. State, 531 A.2d 951 (Del. 1987)).
(7) The Court also notes that it was McDonald's burden to make sure that it complied with the statutory requirements for filing its appeal of the Board's decision with this Court, including ascertaining whether the Board's decision had been filed in the office of the Board and the date that the decision was filed. Also, as the Court stated in its prior decision, McDonald's could have re-filed its appeal upon learning of the Board's written decision, thus curing the jurisdictional defect. If the Board has not yet filed its decision in the office of the Board, McDonald's will be permitted to re-file its petition for writ of certiorari with this Court upon the filing of the Board's decision.
Id. at 4-5.
(8) In conclusion, the Court cannot find that it has overlooked a decision or principle of law that would have had a controlling effect or that it has misapprehended the law or facts so that the outcome of this appeal would have been affected.
See Mainiero v. Microbyx Corp., 699 A.2d 320, 321 (Del.Ch. 1997) (citations omitted.). See also Steadfast Ins. Co. v. Eon Labs Mfg., Inc., Del. Super., C.A. No. 98C-01-058, Del Pesco, J. (Aug. 18, 1999), Letter Op. at 2.
Therefore, McDonald's Motion for Reargument is hereby DENIED.
IT IS SO ORDERED.
BY THE COURT:
/s/ Carolyn Berger Justice