CHARLES W. WELCH, III JUDGE
Ms. Angelique Harris
44 Carver Road
Dover, DE 19904 Decision on Appeal from Justice of the Peace Court Dear Ms. Harris:
Appellant, Defendant-Below, Angelique Harris, has filed a civil appeal with this Court pursuant to 10 Del. C. § 9571 and Ney v. Polite, 399 A.2d 527 (Del. 1979). The appellant has also filed an Application to Proceed In Forma Pauperis ("Application") with the Court, pursuant to Court of Common Pleas Civil Rule 110, requesting that she be permitted to proceed with her appeal without paying court fees and costs. The Court has carefully reviewed the appellant's Application and filings in support of her appeal. The appellant's Application is denied and her appeal is dismissed sua sponte as the Court lacks subject matter jurisdiction for the appeal. The Court lacks subject matter jurisdiction because (1) the appellant did not appeal a final order of the Justice of the Peace Court ("J.P. Court") and (2) the appellant has added parties to the appeal who were not parties to the action in the J.P. Court in violation of the "mirror image rule."
Appellee, Petroleum Equipment, Inc., T/A Poores Propane filed a civil action for debt in the Justice of the Peace Court against the appellant, Angelique Harris. A default judgment was entered against the appellant in that court when she failed to timely file an answer or appear for a scheduled trial. The defendant then requested a levy of property (attachment fieri facias) on the property of the plaintiff to satisfy the judgment and a constable sale which was scheduled for April 26, 2012. However, the appellant failed to appeal' for the sale, so it did not move forward. The appellee then requested a rule to show cause hearing which was scheduled for May 11, 2012. At the hearing, the appellant explained that she had final exams at the time of the sale, and thus, the court did not hold her in contempt. The court ruled that the defendant should produce the levied goods and chattels for constable sale or it would find her in contempt and impose all appropriate sanctions.
Another sale was scheduled for July 19, 2012, but again, the appellant failed to appear, and the house was empty of all items that were supposed to be sold. Therefore, the sale did not go forward. J.P. Court held another rule to show cause hearing, upon appellee's request, to determine whether the appellant should be held in contempt for failing to make goods available for the constable sale. At this hearing, on September 26, 2012, the court held the appellant in contempt of court, but held sentencing in abeyance pending a third attempt to levy and sell the goods and chattels to satisfy the judgment.
There were five additional unsuccessful attempts to execute the levy, specifically on October 16 and 17 and November 1, 7 and 19, 2012, and the levy was declared non est. On December 5, 2012, the J.P. Court scheduled a sentencing hearing on its finding of contempt for the appellant for December 31, 2012. Prior to the sentencing hearing, the appellant filed this appeal.
In her appeal to this Court, the appellant filed a complaint alleging that the appellees violated Delaware's Rules of Civil Procedure, infringed on the appellant's due process rights, violated Delaware's Judges Code of Judicial Conduct, abused authority, committed perjury, tampered with evidence, wrongfully entrapped the appellant, and threatened, degraded, bullied and harassed the appellant. The appellant also filed her Application. In her appeal, the appellant added Justice of the Peace Court No. 16, William Sweet, Brad Stemrich, and Lisa Anderson as appellees.
Section 9571 of Title 10 of the Delaware Code provides that a party can file a civil appeal from a final order of the Justice of the Peace Court to the Court of Common Pleas for a trial de novo. Court of Common Pleas Civil Rule 110 permits the Court to authorize the commencement of a civil appeal without prepayment of fees and costs upon request of an affidavit of a person stating that he or she cannot pay such fees and costs. When reviewing the request, the court must also review the complaint, or appeal documentation. 10 Del. C. § 8803(b). If the Court finds the action factually frivolous, legally frivolous or malicious, the action must be dismissed. Id.
Court of Common Pleas Civil Rule 72.3 provides the procedures an appellant must follow for the perfection of an appeal pursuant to 10 Del. C. § 9571. In paragraph (f), that rule provides that "[a]n appeal to [the Court of Common Pleas] that fails to join the identical parties and raise the same issues that were before the Court-below shall result in a dismissal on jurisdictional grounds." Ct. Com. Pl. Civ. R. 72.3(f). The requirements of Civil Rule 72.3(f) are known as the "mirror image rule." If a party fails to comply with the "mirror image rule," the Court of Common Pleas has no jurisdiction over the appeal and it must be dismissed. "The purpose of [the mirror image rule] is to 'prevent this [C]ourt from acquiring subject matter jurisdiction over an appeal. . . from the Justice of the Peace Court, unless the appeal from the court below contains the identical: 1) parties, 2) character or right in which the parties are sued, and 3) cause and form of action.'" Four Corners Fin. Group v. Augeley, 2011 WL 3655149 at *5 (Del. Com. PL Aug. 3, 2011). The burden is upon the appellant to assemble the parties to the appeal. Fossett & Strock v. Dalco Constr., 2003 WL 22787844, at *2 (Del. Super. Nov. 24, 2003).
In the current action, there is no appealable issue because the appellant appealed the J.P. Court's order to schedule a sentencing hearing on the contempt order of September 26, 2012. This order was not an appealable final order of the court. It merely scheduled a hearing. Therefore, the appeal must fail under Section 9571 of Title 10. Additionally, Justice of the Peace Court No. 16, William Sweet, Brad Stemrich, and Lisa Anderson, were not parties in the original proceedings in the Justice of the Peace Court, but were included in the appeal from that court. The appellant's addition of those persons and/or entities named above as parties to this appeal strips this Court of jurisdiction as it violates the "mirror image rule." Accordingly, the Application to Proceed In Forma Pauperis must be denied and the appellant's appeal must be dismissed sua sponte for lack of subject matter jurisdiction.
IT IS SO ORDERED.
/s/_________
Charles W. Welch, III
Judge