Cooper v. Delaware Department of Health and Social Services Division of Long Term Care Residents Protection ( 2018 )

SUPERIOR COURT
oFTHE
STATE OF DEL.AWARE
NEW CASTLE COUNTY COURTHOUSE
500 NORTH KING STREET, SU|TE 104-00
WlLMlNGTON, DE|_AWARE 19801-3733
TELEPHONE (302) 255-0664
R lCHARD R. COOCH
REleENTJuDGE
Caesar Kasarnba Cooper
5580 Heritage Court Drive, Apt. 1C
Wilmington, Delaware 19808
Appellant, Pro se
Karen M. Volker, Esquire
Deputy Attorney General
Department of`` Justice
820 North French Street, 6th Floor
Wilmington, Delaware 19801
Attorney for Appellee
Re: Caesar Kasamba Cooper v. I)elawarc Department of Hea|th
and Social Services Division of Long Term Care Residents
Protection
C.A. No. N18A-09-005 RRC
Submitted: October 24, 2018
Decided: December 4, 2018
On Appellee’s Motion to Dismiss. GRANTED.
Dear Mr. Cooper and Ms. Volker:
Appellee Department of Health and Social Services, Division of Long Term
Care Residents Protection (“DHSS” and “DLTCRP” respectively) filed a Motion to
Dismiss Appellant Caesar Kasamba Cooper’s Appeal of the Decision of the Hearing
Officer on behalf of DLTCRP. Pursuant to 11 Del. C. § 8564(b), the finding of the
hearing of``ficer is the final decision of DLTCRP, and is appealable on the record to
the Superior Court. ' Under Superior Court Civil Rule 72(b), “[i]f no time is
prescribed by statute, the notice of appeal shall be filed Within 15 days from entry of
' 11 Del. C. § 8564(b).
the final judgment, order, or disposition from Which an appeal is permitted by laW.”2
Section 8564 does not prescribe a deadline for filing an appeal. Thus, in this matter,
Civil Rule 72(b) applies.3
lt is Well established that the Court lacks jurisdiction to decide a direct appeal
that is untimely, and jurisdictional defects cannot be Waived.4 There is no remedy
for an untimely appeal, as the Court lacks jurisdiction.5 Under Superior Court Civil
Rule 72(i), the Court has discretion to dismiss any appeal sua sponte, or on a motion
to dismiss by any party.6 Among other reasons, “[d]ismissal may be ordered for
untimely filing of an appeal....”7
In this case, Appellant filed his appeal five days after the 15-day deadline. The
hearing officer, on behalf of DLTCRP, rendered a final decision on August 31, 2018.
Thus, Appellant Was required to file a notice of appeal on or before September 15,
2018, or risk Waiving any right to further appeal. Appellant filed his appeal on
September 20, 2018. Appellant’s appeal must be dismissed.
Accordingly, Appellee’s Motion to Dismiss is GRANTED.
IT IS SO ORDERED.
Vel'y truly yotu's,
RRC
cc: Prothonotary
Department of Health and Social Services
Division of Long Term Care Residents Protection
2 Super. Ct. Civ. R. 72(b).
3 Appellant Was advised that Civil Rule 72(b) applied to his matter under Section V of the
hearing officer’s Written decision. See Final Decision of the Division of Long Term Care
Residents Protection, Appellee’s Mot. to Dismiss, Ex. B, Trans. ID 62593786, at 11, § V.
4 Eller v. State, 531 A.2d 951, 953 (Del. 1987).
5 Eller, 531 A.2d at 951; Irvin-Wright v. State, 2003 WL 2148100'4, at *3 (Del. Super. June 16,
2003).
6 Super. Ct. Civ. R. 72(i).
7 Id.