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New Castle County v. Pellicone

Superior Court of Delaware, New Castle

January 10, 2014

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: November 14, 2013

Non-Arbitration Case

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

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

MEMORANDUM OPINION REGARDING REMAND FOR FURTHER CONSIDERATION

ERIC M. DAVIS JUDGE

Introduction

On November 14, 2013, after hearing arguments on appeal in this civil action, the Supreme Court of Delaware issued an Order (the "Remand Order").[1] In the Remand Order, the Supreme Court remanded the matter to this Court for further consideration of three questions. The Remand Order's three questions are:

a) Does Chapter 12 of the [New Castle] County Code require specific procedural steps in order to authorize a County flood project?
b) If so, were those procedural requirements adhered to?
c) Can the Federal Flood Control Project legally constitute a County project? The Supreme Court also ordered this Court to file its opinion after remand with the Supreme Court by January 13, 2013.

On December 5, 2013, as this Court was not involved in the briefing and argument before the Supreme Court, this Court asked the parties if they wished to provide supplemental submissions with respect to the three questions to be addressed on remand. On that same day, counsel for Mr. Pellicone submitted a letter to the Court, taking the position that further submissions were unnecessary, could cause confusion, were not feasible and were not permitted by the Remand Order. On December 5, 2013, NCC submitted a letter that the Court believes sets forth NCC's position on the remanded questions. Because of Mr. Pellicone's opposition to additional submissions, this Court did not order additional submission and did not review the NCC letter dated December 5, 2013 in responding to the questions set forth in the Remand Order.

This is the Court's Memorandum Opinion Regarding Remand for Further Consideration.

Procedural Background

History of Action before this Court

On March 6, 2013, Plaintiff New Castle County ("NCC") filed a complaint (the "Complaint") in this Court. Through the Complaint, NCC -- by and through the County Executive of New Castle County -- sought to exercise its power of eminent domain for the taking of three easements (the "Easements"). NCC asserted its authority for the taking pursuant to 9 Del. C. § 1525. On March 12, 2013, NCC filed a Notice of Intention to Take Possession with Certificate of Deposit (the "Notice). Through the Notice, NCC sought 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 a 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. The Court held the hearing pursuant to Rule 71.1 and 10 Del. C. § 6110. Pursuant to those authorities, the hearing was not a final adjudication after trial on the Complaint under 10 Del. C. § 6108 but, rather, a disposal of preliminary questions of law. After considering supplemental filings by the parties, the Court, through a Memorandum Opinion and Order Granting Possession dated May 22, 2013 ("Opinion on Possession"), granted possession in favor of NCC.

Under 10 Del. C. § 6108, this Court was prepared to place this civil action upon the regular trial calendar. Before the action could be placed on the trial calendar, however, Mr. Pellicone sought – among other things -- a stay of proceedings and the right to pursue an interlocutory appeal. This Court denied the requests. Subsequently, Mr. Pellicone eschewed any further litigation or trial before this Court and requested an entry of a final judgment. While objecting to the form of the relief, NCC did not oppose entry of a final judgment. This Court granted that request and, on June 3, 2013, entered a Final Award of Just Compensation. At the request of the parties, the Court revised the form of the Final Award of Just Compensation and entered the Amended Final Award of Just Compensation on June 21, 2013. Mr. Pellicone then pursued his rights of appeal to the Supreme Court under 10 Del. C. § 6112.

Opinion on Possession

In the Opinion on Possession, this Court listed all of the pleadings and filings considered by the Court before making its decision on possession under Rule 71.1 and 10 Del. C. § 6110. The Court considered the following:

• the Complaint and its exhibits, including an Affidavit of Necessity executed by Thomas P. Gordon, the NCC Executive;
• Mr. Pellicone's Emergency Motion to Stay Proceedings;
• NCC's Motion for a Protective Order and its Response in Opposition to Defendant's Emergency Motion to Stay Proceedings;
• Mr. Pellicone's Answer to the Complaint;
• Mr. Pellicone's Response in Opposition to Request ...

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