A&H Metals, Inc. v. Erin Bradley Enterprises, LLC and Humphries Construction Co., Inc.

IN THE COURT OF COMMON PLEAS FOR THE STATE OF
DELAWARE
IN AND FOR NEW CASTLE COUNTY

A&H METALS, INC., )
)
Appellant/Plaintiff-Below, )
)
V. ) C.A. No.: CPU4-22-002409
)
ERIN BRADLEY ENTERPRISES, LLC _)
AND HUMPHRIES CONSTRUCTION _ )
CO., INC., )
)
Appellees/Defendants-Below. )
Victoria K. Petrone Josiah R. Wolcott
J. Garrett Miller Connolly Gallagher LLP
Baird Mandalas Brockstedt 267 East Main Street
Federico & Cardea, LLC Newark, DE 19711
2711 Centerville Road, Suite 401 Attorney for Appellees
Wilmington, DE 19808
Attorneys for Appellant
ORDER

On October 14, 2022, A&H Metals Inc. (Appellant/Plaintiff-Below) appealed
an order by the Justice of the Peace Court dismissing Appellant’s action against Erin
Bradley Enterprises, Inc. and Humphries Construction Co., Inc.
(Appellees/Defendants-Below). The appeal was filed by Mr. Brian Perry, the Form
50 agent who represented Appellant in the court below. Soon after, Appellant
retained counsel; and an entry of appearance was filed by counsel for Appellant on

October 26, 2022.
Appellees filed the present Motion to Dismiss on December 12, 2022.
Appellees argue that Appellant’s appeal should be dismissed as it was not filed by
an attorney pursuant to Delaware Supreme Court Rule 57(e)(1), thus rendering the
appeal void. Appellant refutes Appellees’ contention and asserts that the appeal is
proper as it retained counsel soon after the commencement of the action in this Court.

A hearing on the Motion was held on January 27, 2023. During the hearing,
the Court heard arguments from both parties. At the conclusion of the hearing, the
Court requested supplemental briefing from Appellant on whether a prior Superior
Court decision is dispositive as to Appellees’ Motion.

Appellant filed its supplemental brief on February 27, 2023. In its brief,
Appellant states that this Court is authorized to endorse its own rules. Appellant
relies on the same case it cited in its Motion, wherein this Court previously held that
entry by counsel was not required to perfect an appeal.’ However, as the Court stated
on the record during the hearing, a subsequent decision by the Superior Court
essentially overruled this Court’s Porter decision. In Biddles Constr., LLC v. Seeley,

WL 6126251 (Del. Super. Ct. 2016), the Superior Court addressed the following

‘In Porter v. Doherty & Assoc., Inc., 2014 WL 6804723 (Del. Com. PI.), appellants filed a JP Court
appeal 14 days after the JP Court entered judgment. Appellants were informed by the Court Clerk that the
appeal was deficient. The Clerk indicated that appellant’s counsel was required to enter their appearance
within 10 days, but appellant’s counsel failed to do so. In denying appellee’s motion to dismiss, this Court
held that “there is no jurisdictional issue in the matter at hand because neither 10 Del. C. § 9571 nor Court
of Common Pleas Civil Rule 72.3 requires counsel to enter an appearance in order to perfect an appeal.”
question on appeal: is the Court of Common Pleas deprived of jurisdiction when a
non-attorney files a timely notice of appeal on behalf of an artificial entity? In that
case, the Superior Court first noted that Delaware courts have a longstanding
preference for hearing appeals on the merits rather than dismissing a case on mere
technicalities. However, it held that

...in this case, the very act of filing was void because it was done by a person

who lacked authority to file on behalf of the party. It was no mere technicality.

Despite the apparent harshness of the outcome, in cases like this a defective

pleading may serve to deprive the [cJourt of [j]urisdiction.’
Similarly, here, the appeal filed on behalf of Appellant was not filed by a Delaware
attorney. Thus, as the Superior Court’s decision in Biddles is binding on this Court,
it therefore dictates the outcome of the case at bar. Accordingly, the Court rules that
the appeal filed on behalf of Appellant is void as it was not filed by a Delaware
attorney.

CONCLUSION
For the foregoing reasons, Appellee’s Motion to Dismiss is GRANTED. This

action is dismissed with prejudice.

IT IS SO ORDERED this 1* day of May, 2023.

Bradley VManning,
Judge

2 Id. (citing Kent Sussex Auto Care, Inc. v. Bd. of Adjustment, No. 09A—02—002, 2009 WL 1152165, at *2
(Del. Super. Mar. 11, 2009) (quoting Di's Inc. v. McKinney, 673 A.2d 1199, 1202 (Del. 1996)).