No. 452, 1999.Supreme Court of Delaware.Submitted: December 20, 1999.
Decided: December 27, 1999.
Court Below: Superior Court of the State of Delaware in and for Sussex County C.A. No. 99C-07-007.
APPEAL DISMISSED.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This 27th day of December 1999, it appears to the Court that:
(1) On October 1, 1999, the Clerk issued a notice directing the plaintiff-appellant, Robert Saunders, to show cause why this appeal should not be dismissed pursuant to Supreme Court Rule 29(b) based on this Court’s lack of jurisdiction to consider an appeal from an apparent interlocutory order. On October 14, 1999, Saunders was granted an extension of time from October 15 to November 15, 1999 to file his response.
(2) In a motion filed November 17, 1999, Saunders requested an additional extension of time to file his response until January 31, 2000. That request was denied, but Saunders was granted an extension of time until December 15, 1999 to file his response. Saunders responded by filing a motion for appointment of counsel on December 20, 1999.
(3) Saunders filed this appeal from a decision of the Superior Court dated September 3, 1999, which held that Saunders’ claims against the defendants-appellees were frivolous and that process should not issue against them. The Superior Court’s order further held, however, that process should issue against another defendant, Lance Nienow, who is not named as an appellee in this appeal.
(4) The test for whether an order is final and therefore ripe for appeal is whether the trial court has clearly declared its intention that the order be the court’s “final act” in a case. J.I. Kislak Mortgage Corporation of Delaware v. William Matthews Builder, Inc., Del. Supr., 303 A.2d 648, 650 (1973) (quoting United States v. F. M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S.Ct. 674, 678 (1958)). The Superior Court’s September 3, 1999 order clearly was not the court’s final act in this case for purposes of appeal. The Superior Court did not dismiss defendant Nienow from the action below, nor did it direct the entry of a final judgment upon Saunders’ claims against the appellees in accordance with Superior Court Civil Rule 54(b).
(5) Consequently, an appeal from the Superior Court’s September 3 order must satisfy the requirements for taking an interlocutory appeal under Supreme Court Rule 42. Saunders has not attempted to comply with Rule 42. Accordingly, his appeal must be dismissed.
NOW, THEREFORE, IT IS ORDERED that the within appeal be and hereby is DISMISSED pursuant to Supreme Court Rules 29(b) and 42.[*]
BY THE COURT:
Maurice A. Hartnett, III Justice