Boulden Brother's Corp. v. Snipe, CPU4-21-000684

CourtCourt of Common Pleas of Delaware
Writing for the CourtMONICA A. HORTON, JUDGE.
PartiesBOULDEN BROTHER'S CORP. AND GABE MCCLUSKEY, Appellants/Defendants Below, v. ALLEN SNIPE AND MARIA SNIPE, Appellees/Plaintiffs Below.
Decision Date23 September 2021
Docket NumberCPU4-21-000684


ALLEN SNIPE AND MARIA SNIPE, Appellees/Plaintiffs Below.

No. CPU4-21-000684

Court of Common Pleas of Delaware

September 23, 2021

Submitted: July 23, 2021

Victoria K. Petrone, Esq., Baird Mandalas Brockstedt LLC Attorney for Appellants.

Allen and Maria Snipe Pro Se Appellees.



On March 4, 2021, Appellants/Defendants-Below Boulden Brother's Corp, and Gabe McCluskey (collectively "Boulden") filed an appeal in this Court seeking a trial de novo from an order of the Justice of the Peace Court. Boulden subsequently filed a Motion for Judgment ("Motion") alleging that Appellees/Plaintiffs-Below Allen and Maria Snipe (collectively "Snipes") failed to comply with the Court's Rules of Civil Procedure. On July 23, 2021, the Court held a hearing. For the reasons set forth below, the Court DENIES Boulden's Motion.


According to the record, the Snipes filed a trespass action against Boulden in the Justice of the Peace Court, alleging that Boulden, through its employees, damaged the Snipes' furnace during a routine inspection. After a hearing, the Justice of the Peace Court entered judgment for the Snipes. Thereafter, Boulden timely filed a Notice of Appeal with this Court. The record reflects the Snipes were served with the Summons on Appeal by the Sheriff of New Castle County on March 29, 2021. On May 21, 2021, Boulden filed the Motion alleging that the Snipes failed to file a complaint within 20 days of service as required under Ct. Com. Pl. Civ. R. 72.3(b). On May 27, 2021, some 6 days later, the Snipes filed their complaint in this Court (the "Complaint on Appeal").

During the hearing, the Snipes argued that their first notice of this appeal was in May of 2021 when they received a copy of the Motion. Based on this circumstance, they believed that the filing of the Complaint on Appeal on May 27, 2021, was timely. Although initially denying that he was served by the Sheriff with a copy of the appeal, Mr. Snipes eventually admitted that he did, indeed, receive "something" from the Sheriff, though he was unsure of the exact date of service.


It is well settled law that "the timely filing of a notice of appeal is the operative action to confer jurisdiction on an appellate court."[1] Once jurisdiction has been established, the parties must also comply with the Rules of this Court. Pursuant to Ct. Com. Pl. Civ. R. 72.3(b), once an appellant who is the defendant-below has filed and served an appeal, the appellee/plaintiff-below must file the complaint on appeal within 20 days after being served the appeal documents. If an appellee fails to do so, then Ct. Com. Pl. Civ. R. 55(bb2) dictates that judgment shall be entered against appellee for failure to plead.[2]

The Court must first determine whether Boulden properly served the appeal in this case. In general, Delaware courts have adopted the premise that when a sheriff s return of service is complete and regular on its face, it is to be construed as conclusively valid.[3] Based on its face, the Sheriffs returns of service in this matter appear to be complete and regular. Specifically, the returns set forth that a member of the Sheriffs Office personally served Mr. Snipes at 8:22 AM on March 29, 2021, at which time Mr. Snipes also accepted service for Mrs. Snipes. Furthermore, the Snipes did not provide any evidence at the hearing, other than the vague statement referenced above, that would challenge the veracity of the return. The Court notes that the returns of service were attached as an exhibit to Boulden's Motion. Ordinarily, the return of service is electronically filed with the Court and, thus, reflected on the docket; however, it appears that that did not occur in this case. While such a situation is somewhat unusual, the Court notes that pursuant to Ct. Com. Pl. Civ. R. 4(g), failure to make a return or proof of service does not affect the validity of service. Accordingly, the Court finds that the Snipes were properly served with notice of the appeal on March 29, 2021.

As noted above, the Snipes filed the Complaint on Appeal on May 27, 2021- after the original appeal was filed and six days after the Motion for Judgment was filed. The question thus becomes: when an appellee having the duty to file a complaint on appeal does so untimely, is the Court required to enter judgment for the appellant based on this...

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