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New Castle County v. Pellicone

Superior Court of Delaware, New Castle

May 22, 2013

NEW CASTLE COUNTY, upon the relation of the County Executive, Plaintiff,
v.
DONALD L. PELLICONE; 2, 657 square feet, a Permanent Taking of One Easement; 4, 672 square feet, a Temporary Taking of One Easement, situated in Christiana Hundred, New Castle County, State of Delaware; and UNKNOWN OWNERS, Tax Parcel No. 07-043.20-043, and DONALD L. PELLICONE; 6, 446 square feet, a Temporary Taking of One Easement, Situated in Christiana Hundred, New Castle County, State of Delaware, and UNKNOWN OWNERS, Tax Parcel No. 07-043.40-050, Defendants

Submitted: April 14, 2013

Non-Arbitration Case

Gregory B. Williams, Esquire and Mian R. Wang, Fox Rothschild LLP, Attorney for Plaintiff New Castle County.

Richard L. Abbott, Esquire Attorney for Defendant Donald L. Pellicone.

MEMORANDUM OPINION AND ORDER GRANTING POSSESSION

Eric M. Davis Judge

Introduction

This is an action under the power of eminent domain brought by Plaintiff New Castle County ("NCC"), by and through the County Executive of New Castle County, for the taking of three easements. On March 12, 2013, NCC filed a Notice of Intention to Take Possession with Certificate of Deposit (the "Notice). Through the Notice, NCC seeks entry of an Order of Possession under 10 Del. C. §6110 and Superior Court Civil Rules of Procedure 71.1 ("Rule 71.1"). Defendant Donald L. Pellicone filed a Response in Opposition to Request for Possession (the "Response") and Defendant Donald L. Pellicone's Motion to Dismiss (the "Motion to Dismiss"). The Court held a hearing on the Notice, the Response and the Motion to Dismiss on April 15, 2013. For the reasons set forth below, the Court will GRANT the relief requested by NCC.

Procedural Background

A review of the docket in this action demonstrates an inordinate number of filings, responses, requests, supplements and alike. In order to get a proper prospective of the present state of this rather straightforward proceeding, the Court will identify the pleadings and filings considered by the Court in deciding this matter.

NCC initiated this action by filing a complaint (the "Complaint") on March 6, 2013. In addition to certain other exhibits, NCC attached an Affidavit of Necessity executed by Thomas P. Gordon, the NCC Executive, to the Complaint.[1] NCC also filed the Notice. Moreover, NCC deposited into the Court a sum of $15, 529.33. A hearing on the Notice was set for April 15, 2013.

In response, Mr. Pellicone filed an Emergency Motion to Stay Proceedings on March 13, 2013. The next day, Mr. Pellicone also filed a notice of depositions. On March 18, 2013, NCC filed a Motion for a Protective Order and its Response in Opposition to Defendant's Emergency Motion to Stay Proceedings. A series of letters to the Court followed and the Court scheduled a hearing on Mr. Pellicone's Emergency Motion to Stay Proceedings for April 3, 2013.[2]

Mr. Pellicone filed his answer to the complaint on March 20, 2013. In addition, on March 20, 2013, Mr. Pellicone filed a Response in Opposition to Request for Possession. The next day, Mr. Pellicone filed his (i) Response in Opposition to Motion for Protective Order, Countermotion to Compel and Motion to Shorten Discovery Response Time; (ii) Motion to Continue Order of Possession Hearing; and (iii) Motion to Dismiss.

At the hearing on April 3, 2013, the Court denied Mr. Pellicone's Emergency Motion to Stay Proceedings and Motion to Continue Order of Possession Hearing. The Court did allow the parties limited discovery prior to the hearing on the Notice – document exchange and a Rule 30(b)(6) deposition of a representative of NCC. Mr. Pellicone deposed Anthony G. Schiavi, NCC Assistant County Engineer, on April 9, 2013.

After the hearing, the parties again provided the Court with a series of letters and filings. Included in this were: (i) Mr. Pellicone's Memorandum of Law in Support of His Motion to Dismiss; (ii) NCC's Response in Opposition to Defendant's Motion to Dismiss; (iii) Mr. Pellicone's Order of Possession Hearing Exhibits; (iv) Mr. Pellicone's Revised Order of Possession Hearing Exhibits; (v) NCC's Affidavit of Anthony Schiavi in Support of New Castle County's Motion for Order of Possession; (vi) NCC's Affidavit of Catherine DiCristofaro in Support of New Castle County's Motion for Order of Possession;[3] (vii) Letter, dated April 12, 2013, from Richard L. Abbott, Esquire, to the Honorable Eric M. Davis providing case law regarding 9 Del. C. ยง 1525; (viii) Mr. Pellicone's Emergency ...


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