Opinion
C.A. No. 06A-05-002 WLW.
Submitted: July 26, 2006.
Decided: October 25, 2006.
Paul D. Powers, DC, pro se.
Christopher J. Spizzirri, Esquire, Department of Justice, Wilmington, Delaware; attorneys for the Appellee.
ORDER Upon Defendant's Motion to Dismiss Appeal. Granted.
Defendant, Delaware Board of Chiropractic ("The Board"), filed a Motion to Dismiss the Plaintiff's appeal from an administrative agency, pursuant to Rule 72(I). The Board argues that this Court lacks subject matter jurisdiction, because the Plaintiff, Paul D. Powers, DC ("Mr. Powers"), filed an untimely appeal concerning the Board's action. Further, the Board claims that Mr. Powers' appeal should be dismissed, because the appeal was improperly served on the Defendant. Mr. Powers argues that the Board's Motion to Dismiss should be denied, because he acted in an appropriate and timely manner in addressing all administrative remedies with the Board, before filing an appeal. Secondly, Mr. Powers claims that his appeal should not be dismissed for insufficient process, because the correct parties were in no way harmed by the Service of Process. The pertinent facts are as follows: On or about April 21, 2005, the Board adopted changes to its Regulation 4.2. The changes were published as a final order of the Board on May 1, 2005 in the Register of Regulations. Mr. Powers argues that he became aware of the above Regulation change on November 9, 2005. On December 5, 2005, Mr. Powers filed a Petition for Rule Change with the Board. In the Plaintiff's Petition for Rule Change, Mr. Powers attempted to have the recent limitation of online continuing education hours removed. On January 19, 2006, the Board denied the Petition for Rule Change. On February 9, 2006, Mr Powers filed a Motion for Reconsideration. The Board failed to respond to Mr. Powers concerning his Motion for Reconsideration. Therefore, Mr. Powers submitted a follow-up to the Motion for Reconsideration on March 27, 2006. On April 21, 2006, the Board denied Mr. Powers' Motion for Reconsideration. On May 5, 2006, Mr. Powers filed an appeal in this Court concerning the Board's action.
Superior Court Rules of Civil Procedure, Rule 72(i) states in relevant part: The Court may order an appeal dismissed . . . upon a motion to dismiss by any party. Dismissal may be ordered for untimely filing of an 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.
The Rule change limited the amount a person could utilize online continuing education programs to satisfy their continuing education hour requirements. Before the rule change, a person could fulfill all of their 24 hours of continuing education requirements with online programs. As a result of the Rule change, only 12 of 24 hours of the continuing education requirements may now be taken online.
Discussion
Judicial review of a regulation is unavailable, unless a complaint is filed in the Court within 30 days of the day the agency order with respect to the regulation was published in the Register of Regulations. Pursuant to 29 Del. C. § 10141(d), an appeal concerning the Board's adoption of Regulation 4.2 was required to be brought within 30 days of the Regulation being published in the Register of Regulations. The Board adopted Regulation 4.2 on April 21, 2005 and published a final order of the Board concerning the Regulation on May 1, 2005. Mr. Powers did not file a Petition for Rule Change with the Board until December 5, 2005, about 7 months after the Regulation was published. Further, Mr. Powers did not file an appeal with this Court concerning Regulation 4.2, until over 1 year after the Regulation was published. The 30 day period that an appeal could be brought for judicial review of Rule 4.2 expired in early June 2005, well before Mr. Powers actually brought his appeal. Therefore, the appeal is untimely under 29 Del. C. § 10141(d), and judicial review of Regulation 4.2 is unavailable to the Plaintiff. The Court may order an untimely appeal dismissed, pursuant to Superior Court Civil Rule 72(I). Based on the foregoing, the Defendant's Motion to Dismiss Mr. Powers' appeal from an administrative agency is granted.
The Board's second argument concerning insufficient service of process does not need to be addressed as a consequence of the Court's ruling on Defendant's first procedural contention.
IT IS SO ORDERED.