SPEEDY KEY LOCK & TOW SERVICE, LLC, Defendant-Below, Appellant,
MOYER PARK, LLC, Plaintiff-Below, Appellee.
Submitted: July 13, 2018
M. Greto, Esquire Greto Law Attorney for Appellant
R. Wolcott, Esquire Connolly Gallagher LLP Attorney for
MEMORANDUM OPINION AND ORDER ON
PLAINTIFF-BELOW/APPELLEE'S MOTION TO DISMISS
HONORABLE CARL C. DANBERG, JUDGE.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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
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)  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,