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Pepsi Bottling Ventures, LLC v. Holben
Supreme Court of Delaware
February 1, 2019
PEPSI BOTTLING VENTURES, LLC, Employer Below, Appellant,
TERESA HOLBEN, Claimant Below, Appellee.
Submitted: January 22, 2019
Below-Superior Court of the State of Delaware C.A. No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
STRINE, JR. CHIEF JUSTICE.
consideration of the notice to show cause, the
appellant's response, and the decisions of the Superior
Court and the Industrial Accident Board, it appears to the
(1) On January 10, 2019, the appellant, Pepsi Bottling
Ventures, LLC ("Pepsi"), filed a notice of appeal
from a December 13, 2018 decision of the Superior Court in an
appeal from a decision of the Industrial Accident Board (the
(2) The appellee, Teresa Holben, experienced a work-related
injury while employed by Pepsi. After Holben partially
recovered following a period of total disability, the parties
disputed how the Board should calculate the compensation rate
for Holben's temporary partial disability benefits. After
a hearing, the Board awarded compensation at a lower rate
than Holben claimed was warranted. The Board awarded Holben
medical witness fees under 19 Del. C. §
2322(e), but it determined that she was not entitled to an
award of attorneys' fees under 19 Del. C. §
2320 because Pepsi had made a settlement offer at least
thirty days before the hearing that was greater than the
award that Holben received from the Board.Holben
appealed to the Superior Court.
(3) On appeal, the Superior Court affirmed the Board's
compensation award, but it reversed the denial of
attorneys' fees, holding that attorneys' fees were
available under the statute because Pepsi's settlement
offer had explicitly excluded medical witness fees and the
Board had awarded Holben medical witness fees. The Superior
Court remanded the case to the Board "with direction to
the Board to award Ms. Holben attorney's fees pursuant to
19 Del. C. 2320."
(4) On January 10, 2019, Pepsi filed a notice of appeal in
this Court. Pepsi did not comply with Rule 42, which sets
forth the procedural requirements for invoking the
jurisdiction of this Court to consider an appeal from an
interlocutory order. The Senior Court Clerk issued a notice
directing Pepsi to show cause why the appeal should not be
dismissed as an improper interlocutory appeal.
(5) In response to the notice to show cause, Pepsi argues
that the Superior Court's ruling is not interlocutory.
Specifically, Pepsi contends that the Superior Court's
order remanding the case to the Board requires the Board to
perform a merely ministerial function, and not a
(6) The Court disagrees. "An order is deemed final and
appealable if the trial court has declared its intention that
the order be the court's 'final act' in disposing
of all justiciable matters within its
jurisdiction." The further action required by the
Board in this matter following remand from the Superior Court
does not involve a purely ministerial act but an exercise of
discretion by the Board in fashioning an appropriate fee
award. The Superior Court's ruling is
(7) Absent compliance with Supreme Court Rule 42, the
appellate jurisdiction of this Court is limited to the review
of final orders. Pepsi's failure to comply with Supreme
Court Rule 42 leaves this Court without jurisdiction to hear
its interlocutory appeal.
THEREFORE, IT IS ORDERED that this appeal is ...
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