Chadwick v. Janaman

349 A.2d 742, 1975 Del. LEXIS 546

• Court: Supreme Court of Delaware
• Decided: December 23, 1975
• Status: Published

Opinions

McNEILLY, Justice.

The sole issue in this appeal is whether a petition for a writ of certiorari, pursuant to 9 Del.C. § 1353, is “presented to the Superior Court” when filed with the Prothon-otary.

I

On October 25, 1974, the New Castle County Board of Adjustment granted a zoning variance to John David Chadwick. On November 22, 1974, Anthony Janaman filed with the Prothonotary * a petition to the Superior Court for review of the Board’s decision. The petition was presented to a Judge of the Court on December 31, 1974.

* The Prothonotary is the Clerk of the Superior Court.

A writ of certiorari was allowed over Chadwick’s objection that presentment of the petition was not timely under 9 Del.C. § 1353 which, he argues, requires such petitions to be presented to a Superior Court Judge, and not simply filed with the Pro-thonotary, within thirty days after the Board’s decision.

II

9 Del.C. § 1353 provides in part:

(a) “Any person aggrieved by any decision of the Board of Adjustment . may present to the Superior Court a petition duly verified alleging that such decision is illegal in whole or in part, and specifying the grounds of illegality. The petition shall be presented within 30 days after the filing of the decision in the office of the Board.”

(b) “Upon the presentation of the petition, the Court may allow a writ of certiorari directed to the Board of Adjustment, to review the decision of the Board . . . .”

Rules 72 of the Civil Rules of the Superior Court provides:

“(a) Application of Rule. This Rule shall apply to appeals to the Superior Court of all Commissions, Boards or Courts from which an appeal may at any time lie to the Superior Court to be tried or heard on the record made below.

(b) How Taken. When an appeal is permitted by law, and within the time prescribed, a party may appeal by filing a notice of appeal with the Prothonotary of the appropriate County.”

Rule 5(e) of the Civil Rules of the Superior Court provides:

“(e) Filing with the Court defined. The filing of pleadings and other papers with the Court as required by these Rules shall be made by filing them with the Prothonotary, except that the Judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and transmit them to the office of the Prothonotary.”

10 Del.C. § 562, which codified the common law rule, provides:

“The Superior Court may frame and issue all remedial writs, including writs of habeas corpus and certiorari, .... all writs shall be granted of course

Judicial action is clearly required under § 1353(b) before the appropriate order will issue to the Board; and, to the extent that it may be applicable here, Board of Adjustment v. Barone, Del.Super., 314 A.2d 174 (1973), relied upon by appellants, says no more. But because the writ is granted “of course” if the form of the petition is prima facie complete, because under Rule 5(e) the Prothonotary is the Superior Court’s Clerk and agent for accepting pleadings and other papers, and because Rule 72 requires Notice of Appeal to be filed with the Prothonotary in an appeal from a board to be heard on the record, we find it illogical and inconsistent that § 1353 should require the unusual procedure urged by appellant. A presentation “to the Superior Court”, under § 1353 is timely when filed with the Court’s Clerk. Certiorari to the Superior Court is, in effect, an appeal, differing only by being confined to the record and requiring a mere ministerial act on the part of a judge in ordering issuance of the writ.

Accordingly, we agree with the decision of the Court below, and its reliance upon Nepi v. Lammot, Del.Super., 2 Storey 281, 156 A.2d 413 (1959), that the running of the time period was stopped by the filing of the petition with the Prothonotary.

Affirmed.