GENESIS HEALTH VENTURES v. HORNE, 07A-12-007 WCC (Del.Super. 5-30-2008)

GENESIS HEALTH VENTURES, Appellant, Employer below, v. CONNIE FRANKLIN HORNE, Appellee, Claimant below.

C.A. No. 07A-12-007 WCC.Superior Court of Delaware, New Castle County.Submitted: February 27, 2008.
Decided: May 30, 2008.

On Claimant/ Appellee’s Motion to Dismiss.
GRANTED.

R. Stokes Nolte, Esquire, Reilly, Janiczek McDevitt, PC, Wilmington, Delaware, Attorney for Employer/Appellant.

Mary E. Sherlock, Esquire, Dover, Delaware, Attorney for Claimant/Appellee.

ORDER
CARPENTER, J.

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On this 30th day of May, 2008, upon consideration of Claimant/Appellee’s Motion to Dismiss it appears to the Court that:

1. In April of 2004, Claimant Connie Franklin Horne (“Appellee”) was injured in a work-related accident when a supervisor dropped a television on her kneecap. As a result of her injury, Appellee’s knee gave out and she fell down a flight of stairs in October 2004. Appellee subsequently underwent knee surgery in November of 2005, and in 2006 was undergoing physical therapy, receiving injections and taking medication to reduce swelling. Appellee had an additional knee surgery in April 2007 and surgery on her back in September of 2007.

2. Appellee sought additional compensation for her unpaid mileage for traveling to her medical providers, as well as disfigurement benefits from the scars from her surgeries. In a decision mailed on November 27, 2007, the Industrial Accident Board granted both of Appellee’s petitions. Genesis Health Ventures (“Appellant”) filed a notice of appeal of the Board’s decision on December 28, 2007.

3. On February 5, 2008 Appellee filed a motion to dismiss the appeal. She claims the 30-day statute of limitations bars the Appellant’s appeal, which was filed on the 31st day.[1] In addition to untimeliness, Appellee raises a second ground for dismissal, this one based on jurisdiction. The injury to Appellee’s knee took place at

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Appellant’s facility in Milford, Delaware, in Sussex County, but the appeal was filed in New Castle County. Appellee claims the relevant statute requires the appeal to be filed in Sussex, where the injury in fact occurred.[2]

4. Appellant contends that under Superior Court Civil Rule 6(e), the appeal was timely filed. Rule 6(e) states, “Whenever a party has the right to or is required to do some act or take some proceeding within a prescribed period after being served and service is by mail, 3 days shall be added to the prescribed period.”[3]

5. The question before the Court is a narrow one. Do the time allowances provided by Rule 6(e) apply to appeals from decisions mailed by the Industrial Accident Board? The Court finds, based on precedent and the plain language of Section 2349, that the answer is no.

6. Under a similar set of facts, the Court in Davidson v. Hewlett[4] addressed the application of Rule 6(e) to a filing deadline in an appeal from a decision of the Delaware Department of Labor. The Appellant in Davidson argued that because he received the Department’s determination by mail, Rule 6(e) entitled him to an additional 3 days to file his appeal. The Court held the service-by-mail extension

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provided in Rule 6(e) does not apply to the time limitation governing appeals. “The service-by-mail extension applies only when one party to a case duly commenced in this court serves papers upon another party, as provided in Superior Court Civil Rule 5.”[5]

7. Furthermore, nothing in the plain language of Section 2349 indicates the 30-day rule is a flexible one. In Irvin-Wright v. State[6] , this Court found the language of Section 2349 to be unambiguous as to filing dates and lacks any “accommodating language” that would extend or toll the 30-day filing deadline.

8. Based on the above case law and the plain reading of 19 Del. C. § 2943 this Court again finds that the time allowances of Rule 6(e) do not apply to notices of appeal from a decision of the Industrial Accident Board when that decision was received by mail. Because an untimely-filed appeal is grounds for dismissal under Superior Court Rule 72(I), this Court lacks jurisdiction to hear it.[7]

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9. Along the same lines, a plain reading of 19 Del. C. § 2943 requires an appeal to be filed in the county where the injury occurred. Here, Appellant’s notice of appeal was filed in New Castle County as opposed to Sussex County, where Appellee’s injury occurred. Similar facts were present in Irvin-Wright v. State.[8] There, the Appellant’s injury occurred in Sussex County, but the notice of appeal was filed in New Castle County. The Court held that this filing was improper under Section 2943, and found Appellant’s noncompliance with statutory requirements was grounds for dismissal.[9] Therefore, in addition to the Appellant’s appeal being untimely it was filed in the wrong county warranting dismissal.

10. Finally, the Court finds under the circumstances, the discretionary awarding of attorney’s fees in this matter is not warranted or appropriate.

11. For the foregoing reasons, Appellee’s Motion to Dismiss is hereby GRANTED.

IT IS SO ORDERED.

[1] See 19 Del. C. § 2349. “An award of the Board, in the absence of fraud, shall be final and conclusive between the parties . . . unless within 30 days of the day the notice of the award was mailed to the parties either party appeals to the Superior Court for the county in which the injury occurred. . .”

[2] Id.

[3] Super. Ct. Civ. R. 6(e).

[4] 1994 WL 1747809 (Del.Super. July 1, 1994).

[5] Id. at *1.

[6] 2003 WL 21481004, *2 (June 16, 2003 Del. Super.); see also Foster v. Walt’s Flavor Crisp Chicken, 2008 WL 62545, *1 (Jan. 4, 2008 Del. Super.) (holding “the statute [Section 2349] is clear on its face that parties have thirty days from the day the decision is mailed to file an appeal.”).

[7] Id. “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.” Super. Ct. Civ. R. 72(i).

[8] 2003 WL 21481004 (June 16, 2003 Del. Super.).

[9] Id. at *3.

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