Appealing a Delaware board decision to the Superior Court: fifteen days if no statute says otherwise

Delaware routes appeals from boards, commissions and lower courts into the Superior Court on the record made below. Rule 72 governs, and its first number is the one to find:

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.

Fifteen days is the fallback. Where a statute sets a period, that governs — so the first question is always whether one does.

What the rule covers

Rule 72(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.

That last phrase does the sorting. This rule is for record review. An appeal that is tried afresh in the Superior Court is not governed here.

What the notice must say

Rule 72(c) lists six requirements. The notice of appeal shall:

Stating the grounds in the notice itself is not universal across jurisdictions, and it is easy to omit when working from a generic form.

There is a provision specific to one board:

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. § 1103.

A claimant taking part of an award and appealing the rest must say which part is accepted. Do that, and absent a cross-appeal the accepted portion is "due" and demandable.

Serving it

At the same time as filing, the appellant must mail copies of the notice to all parties to the appeal and to the proceeding below, and file a certificate of that mailing with the notice.

Notification goes to a party's attorney of record, or to an unrepresented party at their 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."

"No notice of appeal need be given to the party or parties taking the appeal."

Getting the record up

Rule 72(e) is where the timetable really starts. On the filing of the notice, the Prothonotary "shall forthwith issue a citation" to the commission, board or court below, served on the custodian of the records.

There is a way to trim that:

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

Ten days from filing the notice, a written stipulation from all interested parties, filed with the tribunal below — not with the Superior Court. That is a short window and an unusual filing destination.

Even then, any Judge "may at any time thereafter order a typewritten copy of the evidence to be filed" during the appeal.

Briefing

Rule 72(g) runs everything off the date the record is filed, and the Prothonotary must give written notice of that date.

The appeal is "heard and determined by the Superior Court from the record of proceedings below, except as may be otherwise expressly provided by statute", and the assigned judge schedules argument if appropriate.

Rule 107's form and length requirements apply to these briefs — 8,000 words, Times New Roman 14-point, a certificate of compliance, and no extension by consent. See Delaware briefs.

Cross-appeals

Rule 72(h):

A notice of cross-appeal shall be filed within 10 days after the date on which the first notice of appeal was filed.

Ten days, measured from the first notice of appeal, not from service on you. It is docketed under the same number "without payment of a filing fee", and must designate the decree, judgment or order, or part, sought to be reviewed. The rule prints the required caption form.

The ten days matter especially in an Industrial Accident Board appeal, where the absence of a cross-appeal on an accepted portion makes that portion due.

A nonresident appellant may have to post security

Rule 72(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.

It takes a written motion by an appellee and proof of nonresidence. The consequence of not posting by the day set is dismissal of that appellant's appeal.

Dismissal, voluntary and otherwise

Rule 72(i) gives an appellant a clean exit early:

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.

Three steps — serve, file, pay the costs. After the appellee's brief is filed, it takes a stipulation of all parties and the Court's approval.

The Court may also dismiss on its own or on motion, for:

Where the Court is considering it on its own, the Prothonotary sends a show-cause notice directing a response "within 10 days after receipt of the notice" — and "If a response is not filed within the time allowed, the dismissal shall be deemed to be unopposed."

Note that this ten days runs from receipt, unlike the fifteen-day show-cause period in Rule 41(e), which runs from the date of the notice. See Delaware dismissal for want of prosecution.

On any dismissal the Court "shall specify the terms thereof including provision for payment of cost".

Where this connects

For what happens after the Superior Court decides, see Delaware reargument — five days from the filing of the opinion, and it cannot be extended.

For the enforcement of any resulting judgment, see enforcing a Delaware money judgment, where Rule 62(c) covers a stay on an appeal from a lower court to the Superior Court and requires a bond sufficient for the judgment plus interest and costs.

How Delaware compares

A short checklist

1. Look for a statutory appeal period first. Fifteen days applies only if none is prescribed.
2. State the grounds in the notice — the rule requires them there.
3. Mail copies to everyone below and file the certificate of mailing with the notice.
4. If the evidence is not needed, get the stipulation filed within ten days — with the tribunal below.
5. Diary twenty days from the Prothonotary's notice that the record is filed.
6. Cross-appeal within ten days of the first notice of appeal, not of service on you.
7. On an Industrial Accident Board appeal, specify the accepted portion of the award.
8. If you are dismissing, do it before the answering brief — after that it takes a stipulation and approval.

Where these rules live

• Del. Super. Ct. Civ. R. 72 — Appeals from certain commissioners, boards and courts
• Del. Super. Ct. Civ. R. 107 — Briefs
• Del. Super. Ct. Civ. R. 41 — Dismissal of actions
• Del. Super. Ct. Civ. R. 62 — Stays by trial court and on appeal

This page explains what the rules say. It isn't legal advice, and the statute governing your particular board or commission may set a different appeal period.