More Categories

Rule 72 – Appeals from certain commissioners, boards and courts

May 15, 2021 | Civil Procedure, Civil Procedure Superior Court, Delaware

(a) Application of Rule. This Rule shall apply to appeals to the Superior Court from all commissions, boards, hearing officers under the Personnel Rules for Non-Judicial Employees, or courts from which an appeal may at any time lie to the Superior Court to be tried or heard on the record made below.
(b) How taken. When an appeal is permitted by law, a party may appeal by filing a notice of appeal with the Prothonotary of the appropriate county within the time prescribed by statute. If no time is prescribed by statute, the notice of appeal shall be filed within 15 days from entry of the final judgment, order, or disposition from which an appeal is permitted by law.
(c) Notice of appeal. The notice of appeal shall specify the parties taking the appeal, shall designate the order, award, determination, or decree, or part thereof appealed from; shall state the grounds of the appeal; shall name the Court to which the appeal is taken; shall name all necessary parties, if any, to the appeal; and shall be signed by the attorney for the appellants. In appeals from the Industrial Accident Board, where the claimant accepts part of the award while appealing the remainder of the award, the notice of appeal must specify that portion of the award accepted. In the absence of a cross-appeal as to the accepted portion of the award, that portion is deemed “due” and subject to a proper demand under 19 Del. C. ยง 1103.

At the same time that the appeal is filed, appellant shall mail copies of the notice of appeal to all parties to the appeal and to the proceeding below, and file a certificate of such mailing together with the notice of appeal with the Prothonotary. No notice of appeal need be given to the party or parties taking the appeal. The notification of a party shall be given by mailing a copy of the notice of appeal to the party’s attorney of record or, if the party is not represented by an attorney, then to the party at the party’s last known address, and such notification is sufficient notwithstanding the death of the party or of the party’s attorney prior to the giving of the notification.

(d) Docket entries. The Prothonotary shall note in the appropriate docket the certificate of mailing and include the names of the parties to whom notices of appeal and citations have been mailed, the date of mailing, the names of the papers in which citations have been published, the dates of such publications, and the dates when citations for the record issued and were returned.
(e) Citation for record. Upon the filing of the notice of appeal, the Prothonotary shall forthwith issue a citation of the Commissioners, board or court from which the appeal is taken, which citation shall be served upon the custodian of the records thereof. The citation shall direct such custodian to send to the Superior Court of the county out of which the citation has issued, together with the citation, within 20 days from service thereof, a certified copy of the record of the proceedings below, including a typewritten copy of the evidence. It shall not be necessary to include a typewritten copy of the evidence as a part of the record if all parties having an interest in the outcome of the appeal shall file with the commissioners, board or court from which the appeal is taken, within 10 days from the filing of said notice of appeal, a written stipulation that the evidence may be omitted as part of the record, in which case the stipulation shall be included as a part of the record; provided that any Judge of the Superior Court may at any time thereafter order a typewritten copy of the evidence to be filed as a part of the record at any time during the pendency of the appeal.
(f) Bond of nonresident appellant. Any appellant who is a nonresident of this State may be required, upon motion in writing of any appellee and proof to the satisfaction of the Court of such nonresidence, by affidavit or otherwise, to give security for costs by a certain day, and in default thereof the appeal of such nonresident appellant may be dismissed.
(g) Procedure for handling appeals. Appeals shall be heard and determined by the Superior Court from the record of proceedings below, except as may be otherwise expressly provided by statute. The Prothonotary shall give all parties written notice of the date of the filing of the record of the proceedings below. The appellant’s brief shall be served and filed 20 days after the date of said filing of such record as provided in Rule 72(e). The appellee’s answering brief shall be served and filed 20 days thereafter. The appellant shall serve and file the reply brief, if any, not later than 10 days thereafter. If appropriate, the assigned judge shall schedule the case for argument.
(h) Cross-appeals. Any party may cross-appeal from any judgment or order from which an appeal lies to the Superior Court to be tried or heard on the record made below. A notice of cross-appeal shall be filed within 10 days after the date on which the first notice of appeal was filed. The notice of cross-appeal shall designate the decree, judgment or order, or part thereof, sought to be reviewed. It shall be docketed under the same number as the main appeal, without payment of a filing fee. The caption of a cross-appeal shall be substantially in the following form:

A.B., Plaintiff (or Defendant) below,
Appellee and Cross-Appellant,
v. No.
C.D., Defendant (or Plaintiff) below,
Appellant and Cross-Appellee.
(i) Dismissal. At any time before filing of the appellee’s brief, an appellant may dismiss his appeal voluntarily by serving a notice of dismissal upon the other parties to the appeal, by filing the same with the Prothonotary and paying the costs. Otherwise, a voluntary dismissal may be made only upon stipulation of all parties to the proceeding and with the approval of the Court.

The Court may order an appeal dismissed, sua sponte, or upon a motion to dismiss by any party. Dismissal may be ordered for untimely filing of an appeal, for appealing an unappealable interlocutory order, for failure of a party diligently to prosecute the 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. In the event that the Court shall conclude, sua sponte, that dismissal is appropriate, the Prothonotary shall forward to the appellant a notice directing that he show cause why the appeal should not be dismissed for the reasons stated in the notice. The notice shall direct the appellant to respond within 10 days after receipt of the notice. After consideration of such response, the Court shall enter an order dismissing the appeal or maintaining jurisdiction of the case. If a response is not filed within the time allowed, the dismissal shall be deemed to be unopposed. If the Court is satisfied that the appeal should be dismissed it shall enter an order of dismissal. Upon entry of any order of dismissal, the Court shall specify the terms thereof including provision for payment of cost.

Del. R. Civ. P. Super. Ct. 72

Amended June 11, 2016, effective July 1, 2016.