Nicholas v. National Union Fire Insurance Co. of Pittsburgh
Nicholas v. National Union Fire Insurance Co. of Pittsburgh
Opinion of the Court
A Notice of Appeal was filed in this Court on April 19, 2013 (Trans. ID 51880229). This Court’s electronic filing system generated a rule to show cause as to why the appeal should not be dismissed as untimely. The Appellants and the Ap-pellees have each addressed the issue of timeliness. We have decided to remand this matter to the Superior Court.
Facts
On March 19, 2013, the Delaware Superior Court issued an Opinion and Order granting Appellees’ Joint Motion to Dismiss in Civil Action No. N12C-07-311 JRJ CCLD (Trans. ID 51207563). On April 18, 2013, Appellants filed a Notice of Appeal of the Opinion and Order via LexisNexis File & Serve, the filing system for both the Delaware Superior Court and Delaware Supreme Court. The Notice of Appeal contained the correct Supreme Court caption and fulfilled the requirements of Supreme Court Rule 7. Due to a clerical error in the office of the Appellants’ attorney, while using the eFiling system, the Appellants filed their Notice of Appeal in the Superior Court rather than in this Court.
Appellants received a confirmation receipt for the Notice of Appeal from the Superior Court’s LexisNexis File and Serve assigning Transaction ID 51862782 to the filing. The next morning, the Appellants discovered the error and immediately prepared to seek a transfer to the Supreme Court pursuant to title 10, section 1902 of the Delaware Code (“section 1902”). Prior to the Appellants filing of their petition to transfer, the Superior Court electronic filing system rejected the Notice of Appeal for being “filed in incorrect Court.”
Rejection Improper
The Appellants’ Notice of Appeal clearly indicated their intent to file in the Supreme Court. The Superior Court’s electronic filing system allowed the Appellants to timely file their Supreme Court papers in the Superior Court and assigned the filing a transaction identification number. All parties received notice of the filing and were served with the appeal paperwork on the April 18, 2013 filing deadline.
This Court has held that “no notice of appeal should ever be refused by a clerk for filing if the intention to appeal is clear from the document filed.”
Transfer Statute Applies
The Appellants assert that but for the improper automatic electronic rejection of the Notice of Appeal, the Appellants would have applied to transfer the appeal to the Supreme Court pursuant to section 1902.
In Giles, this Court held that section 1902 is “a legitimate vehicle” for transferring an appeal to the appropriate court rather than dismissing it.
Conclusion
This matter is remanded to the Superior Court to accept the Notice of Appeal nunc pro tunc and to allow the Appellants to transfer this matter to this Court pursuant to section 1902. Jurisdiction is retained.
.We note that is not a reason for rejection that is listed in the Superior Court Proper eFile Procedures.
. Kostyshyn v. State, 3 A.3d 1097, 2010 WL 3398943, at *1 (Del. Aug. 30, 2010) (table).
. Id.
. Section 1902 provides that "[n]o civil action, suit or other proceeding brought in any court of this State shall be dismissed solely on the ground that such court is without jurisdiction of the subject matter, either in the original proceeding or on appeal." (emphasis added).
. Family Court of Delaware v. Giles, 384 A.2d 623 (Del. 1978).
. Id. at 624.
. Id.
. Id.See also Harbison v. State, 667 A.2d 1319, 1995 WL 496929, at *2 (Del. Aug. 14, 1995) (table); Carney v. Qualls, 514 A.2d 1126, 1127-28 (Del.Super.Ct. 1986).
. See Johnson v. Div. of Child Protective Servs., 551 A.2d 825, 1988 WL 137203, at *1 (Del. Nov. 4, 1988) (table) (remanding after Superi- or Court sua sponte dismissed appeal).
. Spry v. Gill, 639 A.2d 74, 1994 WL 87344 (Del. Feb. 17, 1994).
Reference
- Full Case Name
- Dr. Henry T. NICHOLAS, III, Wiliam J. Ruehle, and Dr. Henry Samueli, Below v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Below
- Cited By
- 9 cases
- Status
- Published