State Personnel Commission v. Howard

Citation420 A.2d 135
PartiesSTATE PERSONNEL COMMISSION, Defendant Below, Appellant, v. Paul W. HOWARD, Plaintiff Below, Appellee.
Decision Date15 April 1980
CourtUnited States State Supreme Court of Delaware

Charles J. Durante, Deputy Atty. Gen., Dover, for defendant below, appellant.

Harvey B. Rubenstein, Wilmington, for plaintiff below, appellee.

Before HERRMANN, C. J., and McNEILLY and HORSEY, JJ.

HERRMANN, Chief Justice:

We are asked to dismiss this appeal for failure to join necessary parties appellee and for failure to perfect the appeal within the 30 day period prescribed by 10 Del.C. § 148. 1


This motion to dismiss the appeal arises out of a suit in the Superior Court by plaintiff Paul W. Howard and co-plaintiffs Council 81, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter Council 81) and Local Union 1726, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter Local 1726), against the State Personnel Commission, seeking a declaratory judgment to resolve a dispute concerning the filling of a vacancy within the plaintiff Howard's employment bargaining unit. All the plaintiffs were represented below by one attorney; he represents the plaintiff Howard in this appeal. The Superior Court found for the plaintiffs; the defendant State Personnel Commission appeals.

The caption of the notice of appeal filed in this Court named only the plaintiff Howard as appellee. The notice of appeal was served on the plaintiff's attorney in compliance with Supreme Court Rule 7(a). 2 After more than thirty days had elapsed from the date of the Superior Court judgment, but before any further action had been taken in the appeal proceedings, the defendant moved for permission to add the names of the plaintiffs Council 81 and Local 1726 to the caption of the notice of appeal as appellees. Plaintiff Howard moved for dismissal of the appeal on the ground that the defendant had failed to perfect its appeal within the 30 day period as required by 10 Del.C. § 148.


In support of his motion to dismiss the appeal, the plaintiff relies in the main on two principles of law. First, he argues that

"it is almost universally recognized that every party to the record who has any interest that would be directly affected by the determination in an appellate review must be made a party to the review proceedings ... (I)t is generally considered that the rule is not a question resting in the discretion of the appellate court, but is a fundamental question of jurisdiction, which cannot be waived by the parties or disregarded by the appellate court ..."

4 C.J.S. Appeal & Error § 391 (1957). Second, the plaintiff contends that the failure to join Council 81 and Local 1726 as appellees in the caption requires dismissal of the appeal because they were necessary parties to the appeal and by their omission, therefore, the defendant failed to perfect its notice of appeal within the statutory period.


The plaintiff is correct in his assertion that all parties to the litigation who would be directly affected by a ruling on the merits of an appeal, should be made party to the appellate proceedings. This rule has its foundation in the policy of this Court and others to prevent piecemeal litigation. 4 Am.Jur.2d Appeal & Error § 276 (1957). We cannot agree, however, that failure to do so necessarily results in dismissal of the appeal in all cases.

Formerly, it was the general practice of appellate courts to dismiss appeals for failure to join as parties appellee litigants who would be directly affected by the appellate decision. E. g., Frankforter v. Turner, Nebr.Supr., 175 Neb. 252, 121 N.W.2d 377 (1963); Tupelo Townsite Co. v. Cook, Okl.Supr., 52 Okl. 703, 153 P. 164 (1915); First National Bank of Thermopolis v. Bonhan, Wyo.Supr., 559 P.2d 42 (1977). However, the modern trend, developed in recent years in both state and federal courts, de-emphasizes the technical procedural aspects of appeals and stresses the importance of reaching and deciding the substantive merits of appeals whenever possible. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Edmondson v. Blakey, Ala.Supr., 341 So.2d 481 (1976); Hanen v. Willis, Ariz.Supr., 102 Ariz. 6, 423 P.2d 95 (1967); Carr v. Pacific Telephone Company, Cal.Ct.App., 26 Cal.App.3d 537, 103 Cal.Rptr. 120 (1972); Greyhound Corporation v. Carswell, Fla.Supr., 181 So.2d 638 (1966); Turner v. Purdum, Idaho Supr., 289 P.2d 608 (1955); In re Hore's Estate, Minn.Supr., 220 Minn. 365, 19 N.W.2d 778 (1945); Stubblefield v. Seals, Mo.Ct.App., 485 S.W.2d 126 (1972); Baker v. Sojka, N.M.Supr., 74 N.M. 587, 396 P.2d 195 (1964). In some courts, this policy has been recognized and expressly established as Rules of Court. See Federal Rules of Appellate Procedure Rule 3(c); California Appellate Rule 1.

The modern view has been adopted in Delaware. In Episcopo v. Minch, Del.Supr., 7 Storey. 549, 203 A.2d 273, 275 (1964) this Court, confronted with a petition to dismiss an appeal for failure to state the order and judgment appealed from and the date of the order, as currently required by Supreme Court Rule 7(c)(3), 3 stated:

"It appears to us, however, that to all practical purposes the plaintiff of necessity could appeal only from the final order of the Superior Court dated November 25, 1963 entering final judgment for defendant.... We think that appeals as well as trials should, where possible and where the other side has not been prejudiced, be decided on the merits and not upon nice technicalities of practice. Since the defendant, in our opinion, has been put upon adequate notice of the nature of the appeal, and since as a practical matter the only appealable matter was the final judgment below, we deny the motion to dismiss."

We endorse that expression of disapproval of the disposition of appeals upon technical grounds. The general policy to be followed under the Rules of this Court is now expressed in Rule 102(a): "These rules shall be construed so as to do substantial justice and to provide for the speedy and efficient determination of proceedings in this Court." (Emphasis added). This policy would not be furthered by the evasion of substantive questions on the basis of technical violations of procedural rules.

Consonant with this policy, the following guidelines will govern cases involving omissions in the notice of appeal such as occurred in this case:

(1) Such omission in the notice of appeal will not cause the appeal to be dismissed unless the omission is substantially prejudicial to a party in interest; and

(2) The burden rests upon the appellant to establish the absence of such substantial prejudice.

Applying these rules to the case at bar, we conclude that the motion to dismiss the appeal must be denied. This is not a case in which this Court lacks jurisdiction because the appellant failed to file any notice of appeal within the 30 day statutory period. Cf. Scott v. Draper, Del.Supr., 371 A.2d 1073 (1977). On the contrary, the appellant here has met the jurisdictional requirement imposed by § 148 by filing a notice of appeal within the prescribed period. The determinative question is whether the appeal should be dismissed because sufficient prejudice flows to the unjoined parties to prevent their joinder at this stage of the appeal. 4

An important purpose served by the procedural requirements as to the form and service of the notice of appeal, is to provide notice of the appeal to all litigants who may be directly affected thereby, and to afford them an opportunity to come in and adequately protect their interests in the appellate court. 4A C.J.S. Appeal & Error § 547 (1957). It is within this function of the notice of appeal that the question of prejudice in this case lies. If the granting of the motion to add Council 81 and Local 1726 as appellees at this time would seriously burden their ability to protect their interests adequately, then that motion must be denied and, consequently, the appeal dismissed. If, however, there is a lack of such prejudice to the unjoined parti...

To continue reading

Request your trial
25 cases
  • Di's, Inc. v. McKinney
    • United States
    • United States State Supreme Court of Delaware
    • December 7, 1995
    ...Court ruled that appeals should be "decided on the merits and not upon nice technicalities of practice." In State Personnel Commission v. Howard, Del.Supr., 420 A.2d 135 (1980), this Court again endorsed a policy favoring substantive review. In Howard, appellant failed to join two of the or......
  • Abb Flakt Inc. v. NAT. UNION FIRE INS. CO.
    • United States
    • United States State Supreme Court of Delaware
    • June 28, 1999
    ...altered as Flakt clearly provided notice of its appeal from the stay of all discovery. See Supr.Ct.R. 7(c); State Personnel Comm. v. Howard, Del.Supr., 420 A.2d 135, 138 n. 4 (1980). Additionally, Flakt stated in its notice that it appealed from the "Final order granting summary judgment to......
  • Preston v. Board of Adjustment
    • United States
    • United States State Supreme Court of Delaware
    • May 2, 2001
    ...favoring substantive review of appeals. See Di's, Inc. v. McKinney, Del.Supr., 673 A.2d 1199, 1202 (1996); State Personnel Comm'n v. Howard, Del.Supr., 420 A.2d 135, 137 (1980); Episcopo v. Minch, Del.Supr., 203 A.2d 273, 275 (1964). It is equally well-settled that "all parties to the litig......
  • Ccs Investors, LLC v. Brown
    • United States
    • United States State Supreme Court of Delaware
    • July 16, 2009
    ...the importance of reaching and deciding the substantive merits of appeals whenever possible." Id. at 11-12 (citing State Pers. Comm'n v. Howard, 420 A.2d 135, 137 (Del.1980); Weston v. State, 554 A.2d 1119, 1122 (Del.1989) (holding that Howard should be applied where the amendment sought is......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT