Submitted: July 27, 2012
Barnabas Malawi, 5760 Devers Drive, Apartment J, Indianapolis, Indiana, 46216, Appellant, Pro Se
Thomas D. Walsh, Esquire, PHI Service Company, Newark, Delaware, Attorney for the Defendant-Appellee and Third-Party Plaintiff
Zedekia Malawi, 104 Bennett Court, Apartment H, Newport, Delaware, 19801, Third-Party Defendant, Pro se
Before the Court is PHI Service Company's ("Appellee") motion to dismiss the notice of appeal filed by Barnabas Malawi ("Appellant"), appealing an order from the Court of Common Pleas. The appeal is untimely under 10 Del. C. § 1326(b). Accordingly, Appellee's motion to dismiss is GRANTED.
The instant appeal arises from a decision rendered in the Court of Common Pleas on February 22, 2012. Appellant filed a case in that court against Pepco Holdings Inc. ("Pepco"), seeking reimbursement of a $644.03 electrical payment. After trial, the Court of Common Pleas ruled in favor of Pepco. Specifically, the court found Appellant's payment to the electric company was voluntarily made, and thus, did not meet the elements of duress, as he had claimed. Thus, the court held Appellant was not entitled to a reimbursement of $644.03 paid to Pepco.
Appellant attempted to appeal the Court of Common Pleas February 22, 2012 decision to this Court by mailing his appeal via the United States Postal Service on March 19, 2012. On March 26, 2012, the Prothonotary's office informed Appellant in writing that the appeal was rejected, as the proper filing fee was not included. A month later, on April 26, 2012, Appellant filed his appeal in this Court.
Appellee moves to dismiss based on the untimely appeal. It contends the appeal was untimely filed because the Court of Common Pleas' decision was rendered on February 22, 2012 and the Appellant did not file an appeal until April 26, 2012. Thus, according to 10 Del. C. § 1326, Appellee argues dismissal is appropriate.
Appellant responds that his appeal was originally filed on March 19, 2012, but was rejected for re-submission because the filing fee was not attached. Appellant notes he is a full-time, active member of the United States Armed Forces and was involuntarily relocated to Indiana following the Common Pleas' decision. He further informs this Court that he has, "always made a good faith effort in ensuring that [he] is in compliance with all the Court's requisite procedures in securing [his] interest in this matter." Appellant requests the Court to deny Appellee's motion to dismiss.
Oral argument in this matter was scheduled for July 18, 2012, but was cancelled because of an additional issue discovered by the Court and because of the Appellant's military schedule. The additional issue was based on the applicability of 10 Del. C. § 1326(a) to this case. The parties were directed to respond to this additional issue by July 27, 2012. The Appellee responded, taking the ...