IN THE SUPREME COURT OF THE STATE OF DELAWARE
NICHOLAS KROLL, § § No. 266, 2021 Plaintiff-Below, § Appellant, § Court Below: Court of Chancery § of the State of Delaware v. § § Case No. 2019-0969 CITY OF WILMINGTON, CITY OF § WILMINGTON POLICE § DEPARTMENT, and MICHAEL § PURZYCKI, in his official capacity as § Mayor of the City of Wilmington, § § Defendants-Below, § Appellees. §
Submitted: February 2, 2022 Decided: April 11, 2022
Before SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Robert C. McDonald, Esquire, (argued), and Adrienne M. McDonald, Esquire, SILVERMAN MCDONALD & FRIEDMAN, Wilmington, Delaware, for Appellant, Nicholas Kroll.
Aaron C. Baker, Esquire, CITY OF WILMINGTON LAW DEPARTMENT, Wilmington, Delaware, for Appellees, City of Wilmington, City of Wilmington Police Department, and Michael Purzycki.
VAUGHN, Justice: The Appellant, Nicholas Kroll, appeals from the Court of Chancery’s
dismissal of his complaint. Kroll was terminated from his position as a police officer
for the City of Wilmington (the “City”) on the ground that he failed to comply with
a departmental requirement that he reside in the City. A second ground was that he
violated a departmental regulation regarding dishonesty by giving a false or
inaccurate address on annual, required residency affidavits. After his dismissal, he
filed this action in the Court of Chancery. He seeks a declaratory judgment that the
City, its police department, and its mayor, in his official capacity, breached the police
Collective Bargaining Agreement (the “CBA”) and his right to due process by
modifying the definition of the term “residence” in October 2017, and applying the
modified definition to him without giving the Fraternal Order of Police an
opportunity to bargain the new definition on behalf of its members. The
modification, Kroll argues, was material to the decision to terminate his
employment. He also seeks an injunction reinstating him as a City police officer
with back pay.
The Appellees filed a motion to dismiss Kroll’s complaint under Court of
Chancery Rule 12(b)(1) alleging that the Court of Chancery lacked jurisdiction over
the complaint’s subject matter. The Appellees argued, in part, that Kroll had an
adequate remedy at law in the form of a petition for a writ of certiorari, which was
within the jurisdiction of the Superior Court.
2 The Court of Chancery granted the City’s motion on the ground that the
subject matter of Kroll’s complaint fell within the grievance procedure set forth in
the CBA. The grievance procedure, the Court reasoned, gave Kroll an adequate
remedy at law. As the Court stated, “Here, a ‘complete remedy otherwise exists’ in
the form of the grievance procedure outlined in the Agreement.”1
The Appellees had not argued that Kroll’s complaint fell within the CBA
grievance procedure. That issue was raised sua sponte by the Court in its ruling.
The parties have made clear to us on appeal, however, that the disciplinary action
taken against Kroll is not subject to the grievance procedure set forth in the CBA.
The Appellees, to their credit, candidly agree that the Court of Chancery committed
legal error by basing its decision on the CBA’s grievance procedure. They urge us,
however, to affirm on the alternative grounds for dismissal that were asserted in the
Court of Chancery.
Kroll was employed as a police officer by the Wilmington Police Department
(the “WPD”) from March 18, 2013, until he was terminated on April 11, 2018.
When Kroll joined the WPD, he agreed to comply with the City’s residency
requirement, which requires employees to become residents of the City within six
months of starting employment and to maintain residency for at least sixty months.
1 Opening Br. Ex. A at 7 (quoting Christiana Town Ctr., LLC v. New Castle Ctr., 2003 WL 21314499, at *3 (Del. Ch. June 6, 2003)). 3 To fulfill this requirement, Kroll and his wife purchased a home in Wilmington in
August 2013. In November 2014, they purchased a second home in Middletown,
Delaware. The Middletown home was to be the primary residence of Kroll’s wife
and children, and it would allow Kroll’s autistic child to attend a specialized
educational program in the Appoquinimink School District.
To ensure compliance with the residency requirement, WPD employees are
required to file a residency affidavit each year. In April 2017, the City discovered
alleged inconsistencies in Kroll’s 2015 and 2017 residency affidavits. Kroll alleges
that these inconsistencies were the result of a transposed house number on the 2015
affidavit and a newly identified apartment number on the 2017 affidavit. The City
began investigating Kroll’s residency as a result of the inconsistencies.
In November 2017, the WPD notified Kroll that his residency affidavits
contained fraudulent and dishonest information, and a Disciplinary Hearing Board
was convened to consider two claims—a Residency Charge alleging that he was in
violation of the residency requirement and a Dishonesty Charge alleging that he had
been dishonest on his 2015 and 2017 residency affidavits. A hearing was held on
January 11, 2018. Whether the Panel applied the definition of residency in effect
prior to the 2017 modification or whether it applied the modified version seems to
be a point of contention between the parties. Our disposition of this appeal does not
require us to pass judgment on the specific differences between the two definitions.
4 We do note, however, that the 2017 revised definition added the following sentence,
which was not contained in the previous definition: “In the absence of a marital
separation, [the residence] is the dwelling at which an employee’s spouse and
children, if any, reside.”2 The Disciplinary Hearing Panel found that Kroll was
guilty of both the Residency and Dishonesty Charges. An internal appeal was
conducted in April 2018, and the decision was affirmed.
Kroll filed a notice of appeal in the Superior Court on December 18, 2018. In
the notice, Kroll argued that the “Disciplinary Hearing Panel and the subsequent
Appeal Hearing Panel committed error when applying the [modified] Residency
Requirement . . .”3 and “when it concluded the [sic] Officer Kroll was not a resident
of the City of Wilmington, in clear conflict to the evidence presented.”4 The City
responded in July 2019, arguing that the appeal was both improper and untimely. A
few months later, the parties agreed to voluntarily dismiss the appeal.
During the same time frame that the investigation of Kroll and the disciplinary
proceeding against him were taking place, the Fraternal Order of Police Lodge No.
1, Inc. (the “FOP”), of which Kroll was a member during his employment with the
WPD, challenged the modified definition of residency as having been adopted in
violation of the CBA between the FOP and the City. The dispute was submitted to
2 App. to Opening Br. at A20. 3 App. to Answering Br. at B3. 4 Id. 5 arbitration, and the arbitrator concluded that the revised language materially altered
the residency requirement and was a unilateral alteration of the conditions of
employment in violation of the CBA. The City sought to vacate the arbitrator’s
decision in the Court of Chancery, but the court upheld the result in January 2020.
Kroll then filed this action.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPREME COURT OF THE STATE OF DELAWARE
NICHOLAS KROLL, § § No. 266, 2021 Plaintiff-Below, § Appellant, § Court Below: Court of Chancery § of the State of Delaware v. § § Case No. 2019-0969 CITY OF WILMINGTON, CITY OF § WILMINGTON POLICE § DEPARTMENT, and MICHAEL § PURZYCKI, in his official capacity as § Mayor of the City of Wilmington, § § Defendants-Below, § Appellees. §
Submitted: February 2, 2022 Decided: April 11, 2022
Before SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Robert C. McDonald, Esquire, (argued), and Adrienne M. McDonald, Esquire, SILVERMAN MCDONALD & FRIEDMAN, Wilmington, Delaware, for Appellant, Nicholas Kroll.
Aaron C. Baker, Esquire, CITY OF WILMINGTON LAW DEPARTMENT, Wilmington, Delaware, for Appellees, City of Wilmington, City of Wilmington Police Department, and Michael Purzycki.
VAUGHN, Justice: The Appellant, Nicholas Kroll, appeals from the Court of Chancery’s
dismissal of his complaint. Kroll was terminated from his position as a police officer
for the City of Wilmington (the “City”) on the ground that he failed to comply with
a departmental requirement that he reside in the City. A second ground was that he
violated a departmental regulation regarding dishonesty by giving a false or
inaccurate address on annual, required residency affidavits. After his dismissal, he
filed this action in the Court of Chancery. He seeks a declaratory judgment that the
City, its police department, and its mayor, in his official capacity, breached the police
Collective Bargaining Agreement (the “CBA”) and his right to due process by
modifying the definition of the term “residence” in October 2017, and applying the
modified definition to him without giving the Fraternal Order of Police an
opportunity to bargain the new definition on behalf of its members. The
modification, Kroll argues, was material to the decision to terminate his
employment. He also seeks an injunction reinstating him as a City police officer
with back pay.
The Appellees filed a motion to dismiss Kroll’s complaint under Court of
Chancery Rule 12(b)(1) alleging that the Court of Chancery lacked jurisdiction over
the complaint’s subject matter. The Appellees argued, in part, that Kroll had an
adequate remedy at law in the form of a petition for a writ of certiorari, which was
within the jurisdiction of the Superior Court.
2 The Court of Chancery granted the City’s motion on the ground that the
subject matter of Kroll’s complaint fell within the grievance procedure set forth in
the CBA. The grievance procedure, the Court reasoned, gave Kroll an adequate
remedy at law. As the Court stated, “Here, a ‘complete remedy otherwise exists’ in
the form of the grievance procedure outlined in the Agreement.”1
The Appellees had not argued that Kroll’s complaint fell within the CBA
grievance procedure. That issue was raised sua sponte by the Court in its ruling.
The parties have made clear to us on appeal, however, that the disciplinary action
taken against Kroll is not subject to the grievance procedure set forth in the CBA.
The Appellees, to their credit, candidly agree that the Court of Chancery committed
legal error by basing its decision on the CBA’s grievance procedure. They urge us,
however, to affirm on the alternative grounds for dismissal that were asserted in the
Court of Chancery.
Kroll was employed as a police officer by the Wilmington Police Department
(the “WPD”) from March 18, 2013, until he was terminated on April 11, 2018.
When Kroll joined the WPD, he agreed to comply with the City’s residency
requirement, which requires employees to become residents of the City within six
months of starting employment and to maintain residency for at least sixty months.
1 Opening Br. Ex. A at 7 (quoting Christiana Town Ctr., LLC v. New Castle Ctr., 2003 WL 21314499, at *3 (Del. Ch. June 6, 2003)). 3 To fulfill this requirement, Kroll and his wife purchased a home in Wilmington in
August 2013. In November 2014, they purchased a second home in Middletown,
Delaware. The Middletown home was to be the primary residence of Kroll’s wife
and children, and it would allow Kroll’s autistic child to attend a specialized
educational program in the Appoquinimink School District.
To ensure compliance with the residency requirement, WPD employees are
required to file a residency affidavit each year. In April 2017, the City discovered
alleged inconsistencies in Kroll’s 2015 and 2017 residency affidavits. Kroll alleges
that these inconsistencies were the result of a transposed house number on the 2015
affidavit and a newly identified apartment number on the 2017 affidavit. The City
began investigating Kroll’s residency as a result of the inconsistencies.
In November 2017, the WPD notified Kroll that his residency affidavits
contained fraudulent and dishonest information, and a Disciplinary Hearing Board
was convened to consider two claims—a Residency Charge alleging that he was in
violation of the residency requirement and a Dishonesty Charge alleging that he had
been dishonest on his 2015 and 2017 residency affidavits. A hearing was held on
January 11, 2018. Whether the Panel applied the definition of residency in effect
prior to the 2017 modification or whether it applied the modified version seems to
be a point of contention between the parties. Our disposition of this appeal does not
require us to pass judgment on the specific differences between the two definitions.
4 We do note, however, that the 2017 revised definition added the following sentence,
which was not contained in the previous definition: “In the absence of a marital
separation, [the residence] is the dwelling at which an employee’s spouse and
children, if any, reside.”2 The Disciplinary Hearing Panel found that Kroll was
guilty of both the Residency and Dishonesty Charges. An internal appeal was
conducted in April 2018, and the decision was affirmed.
Kroll filed a notice of appeal in the Superior Court on December 18, 2018. In
the notice, Kroll argued that the “Disciplinary Hearing Panel and the subsequent
Appeal Hearing Panel committed error when applying the [modified] Residency
Requirement . . .”3 and “when it concluded the [sic] Officer Kroll was not a resident
of the City of Wilmington, in clear conflict to the evidence presented.”4 The City
responded in July 2019, arguing that the appeal was both improper and untimely. A
few months later, the parties agreed to voluntarily dismiss the appeal.
During the same time frame that the investigation of Kroll and the disciplinary
proceeding against him were taking place, the Fraternal Order of Police Lodge No.
1, Inc. (the “FOP”), of which Kroll was a member during his employment with the
WPD, challenged the modified definition of residency as having been adopted in
violation of the CBA between the FOP and the City. The dispute was submitted to
2 App. to Opening Br. at A20. 3 App. to Answering Br. at B3. 4 Id. 5 arbitration, and the arbitrator concluded that the revised language materially altered
the residency requirement and was a unilateral alteration of the conditions of
employment in violation of the CBA. The City sought to vacate the arbitrator’s
decision in the Court of Chancery, but the court upheld the result in January 2020.
Kroll then filed this action. In its motion to dismiss the complaint for lack of
subject matter jurisdiction, the Appellees argued that “Kroll cannot claim that [the
Court of Chancery] should exercise its equitable jurisdiction to allow him to
resurrect his [Superior Court] appeal under the guise of a request for equitable
relief.”5 The City also contended that Kroll did not challenge the Dishonesty Charge,
which by itself is “an independent and sufficient basis for [Kroll’s] dismissal from
his position as a police officer in WPD.”6 It also argued that certiorari provided
Kroll with an adequate remedy at law in the Superior Court. The Court of Chancery
granted the motion to dismiss on the ground that the CBA grievance procedure was
an adequate remedy as described above. This appeal followed.
While the Appellees agree on appeal that the Chancery Court erred by
dismissing Kroll’s claim on the ground that the grievance procedure in the CBA
provides him with an adequate remedy at law, they urge us to affirm the Court of
5 App. to Opening Br. at A53. 6 Id. at A55. 6 Chancery’s judgment on the independent grounds they set forth in their arguments
in that court. The Court of Chancery did not address the Appellees’ arguments.
“We recognize that this Court may affirm on the basis of a different rationale
than that which was articulated by the trial court. We also recognize that this Court
may rule on an issue fairly presented to the trial court, even if it was not addressed
by the trial court.”7 We, however, decline to do so.8 We believe the Court of
Chancery should have the opportunity to address the Appellees’ arguments in the
first instance.
The judgment of the Court of Chancery is reversed, and the case is remanded
for further proceedings.
7 Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995) (citing Standard Distrib. Co. v. Nally, 630 A.2d 640, 647 (Del. 1993)). 8 See Unitrin, Inc., 651 A.2d at 1361 (remanding and declining to affirm the Court of Chancery’s decision, notwithstanding the reversible error, based on alternative grounds not reached by the trial court). 7