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Speedy Key Lock & Tow Service, LLC v. Moyer Park, LLC

Court of Common Pleas of Delaware, New Castle

October 8, 2018

SPEEDY KEY LOCK & TOW SERVICE, LLC, Defendant-Below, Appellant,
v.
MOYER PARK, LLC, Plaintiff-Below, Appellee.

          Submitted: July 13, 2018

          Albert M. Greto, Esquire Greto Law Attorney for Appellant

          Josiah R. Wolcott, Esquire Connolly Gallagher LLP Attorney for Appellee

          MEMORANDUM OPINION AND ORDER ON PLAINTIFF-BELOW/APPELLEE'S MOTION TO DISMISS

          HONORABLE CARL C. DANBERG, JUDGE.

         Defendant-Below/Appellant, Speedy Key Lock & Tow Service, LLC (hereinafter "Speedy Key"), appeals a Justice of the Peace Court 13 ("JP Court") Order dated February 23, 2017. In the court below, Plaintiff-Below/Appellee, Moyer Park, LLC (hereinafter "Moyer Park"), brought a summary possession action against Speedy Key based on breaches of a commercial real estate lease. Moyer Park prevailed and obtained a writ of possession and Speedy Key moved to vacate the writ of possession which was denied. In the order denying Speedy Key's motion, the court below granted Speedy Key permission to retrieve certain vehicles from the premises. Thereafter, Speedy Key filed a motion for rule to show cause, alleging difficulty in obtaining the vehicles from Moyer Park and requesting relief. The JP Court Order dated February 23, 2017, the order being appealed, granted Speedy Key relief by allowing them twelve additional calendar days to retrieve their vehicles. Now Moyer Park brings this Motion to Dismiss alleging the Court of Common Pleas does not have subject matter jurisdiction over a matter concerning summary possession and that the appeal was not timely filed.

         On July 13, 2018, a motion hearing was held and the issues regarding jurisdiction and timeliness were presented to the Court. At the conclusion of the hearing, the Court took the matter under advisement. This is the Final Decision and Order of the Court on Moyer Park's Motion to Dismiss the appeal.

         FACTS AND PROCEDURAL HISTORY

         Moyer Park entered into a commercial lease with Speedy Key for the lease of gated acreage on which Speedy Key would store repossessed vehicles. Upon breaches of the lease agreement, Moyer Park sought summary possession in JP Court on July 1, 2016. On September 28, 2018, the parties entered into a stipulated agreement which stated that Speedy Key would vacate the premises and return possession to Moyer Park by October 10, 2016 and failure to do so would result in an immediate writ of possession of the premises.

         Upon Speedy Key's failure to timely vacate the premises in accordance with the stipulation, Moyer Park filed a notice of default and obtained immediate possession. On October 31, 2016, a writ of possession was issued pursuant to Moyer Park's request and the constable later delivered possession of the premises to Moyer Park on November 3, 2016. On November 15, 2016, Speedy Key moved to vacate the writ of possession without disputing Moyer Park's right to possession of the premises. Instead, Speedy Key raised issues with service of the notice of eviction and requested additional time to remove vehicles from the property. In an order dated December 21, 2016, JP Court denied Speedy Key's motion to vacate, but ordered Speedy Key to provide Moyer Park's attorney with a list of vehicles owned by family members to be retrieved by January 6, 2017. Such list, containing 27 vehicles, was furnished by Speedy Key to Moyer Park. On February 2, 2017, Speedy Key filed a motion for rule to show cause alleging difficulties in obtaining the vehicles from Moyer Park. In an Order dated February 23, 2017, JP Court granted Speedy Key an additional 12 calendar days (7 business days) to remove the 27 listed vehicles, making the new deadline March 1, 2017. A delay in the entry of the February Order prevented Speedy Key from providing proof of the order to a third party holder of the vehicles, thus resulting in Speedy Key's inability to comply with the deadline. As a result, JP Court issued a modified order on March 2, 2017, extending Speedy Key's time for removing the vehicles to March 15, 2017. This appeal of the February Order followed on March 13, 2017.

         PARTIES' CONTENTIONS

         Moyer Park argues that the Court of Common Pleas does not have subject matter jurisdiction over summary possession matters because summary possession is within the exclusive jurisdiction of the Justice of the Peace Court pursuant to 25 Del. C. § 5701. Moyer Park argues that an appeal of a summary possession action must go before a three-judge panel in JP Court pursuant to 25 Del. C. § 5717(a). Moyer Park relies on three cases [1] in making their argument. Alternatively, Moyer Park argues that the appeal should be dismissed as untimely under 10 Del. C. § 9571 even if the Court finds jurisdiction to exist. [2]

         In opposing the Motion to Dismiss, Speedy Key argues that jurisdiction is proper because contract law should be applied rather than the Residential Landlord-Tenant Code as 25 Del. C. § 5101(b) [3] excludes commercial leases. As to the timeliness of the appeal's filing, Speedy Key argues that the appeal was originally filed by prior counsel, who is no longer with the firm, on February 28, 2017, five days after the final judgment order on February 23, 2017. Speedy Key provided a record of the filings showing that a rejection notice from the File & Serve system was received on March 6, 2017, while counsel was out of the office. Upon discovery of the rejection, Speedy Kay asserts prior counsel successfully refiled the appeal on March 13, 2017.

         DISCUSSION

         I.Jurisdic ...


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