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Pepsi Bottling Ventures, LLC v. Holben

Supreme Court of Delaware

February 1, 2019

PEPSI BOTTLING VENTURES, LLC, Employer Below, Appellant,
v.
TERESA HOLBEN, Claimant Below, Appellee.

          Submitted: January 22, 2019

          Court Below-Superior Court of the State of Delaware C.A. No. K18A-05-003

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          LEO E. STRINE, JR. CHIEF JUSTICE.

         After 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 Court that:

(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 "Board").
(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.[1]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 quasi-judicial one.
(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."[2] 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.[3] The Superior Court's ruling is therefore interlocutory.
(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.

         NOW, THEREFORE, IT IS ORDERED that this appeal is ...


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