Michael Higgin v. State of Delaware, Office of the Fire Marshall

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MICHAEL HIGGIN, )
)
Appellant, )
)
v. )
C.A. No. N24A-06-006 CEB
)
STATE OF DELAWARE, )
OFFICE OF THE FIRE )
MARSHALL, )
)
Appellee. )
Submitted: September 26, 2024
Decided: November 8, 2024
ORDER DISMISSING APPEAL
Michael Higgin has filed an appeal of a decision by the State Fire Marshall.
The State Fire Marshall, represented by the Department of Justice, has moved to
dismiss. For the following reasons, the motion to dismiss will be granted.
1. In this appeal, Michael Higgin (“Higgin”), pro se, explains that the appellant
is “Messiah’s Angels Foundation, LLC” (“Messiah’s Angels”). The complaint
comes from a printer that appears to have just about run out of ink. It is quite
difficult to read.
2. From what the Court can discern, admittedly by some reference to the Fire
Marshall’s motion to dismiss, Messiah’s Angels has either purchased or leased
the now closed Catholic school belonging to Our Lady of Fatima church.
Messiah’s Angels was seeking to convert its use to an adult day care center or
some similar purpose. In order to make the conversion, the plans for the
facility needed approval from the State Fire Marshall. That approval was not
forthcoming, and Mr. Higgin appealed to this Court. Several substantive
grounds involving complicated fire protection regulations are asserted, but the
substance is not relevant here. Mr. Higgin’s appeal must be dismissed on
procedural grounds.
3. First, Appellant is identified as Messiah’s Angels, which self identifies as an
artificial legal entity – an LLC. Under Delaware law, legal entities may not
appear in a matter pro se, but must be represented by counsel. “While a natural
person may represent himself or herself in court even though he or she may
not be an attorney licensed to practice, a corporation, being an artificial entity,
can only act through its agents and, before a court only through an agent duly
licensed to practice law.”1
4. Second, the appeal is said to be an appeal of a decision by the State Fire
Marshall dated October 17, 2023. The appeal was filed on June 25, 2024.
Appeals from the State Fire Marshall’s decisions are to the State Fire
1
Transpolymer Indus., Inc. v. Chapel Main Corp., 582 A.2d 936, 936 (Del. 1990) (quoting C.D.
Sumner, Annotation, Propriety and Effect of Corporation's Appearance Pro Se, Through Agent
Who Is Not Attorney, 19 A.L.R.3d 1073 (1968); see also Street Search Partners, L.P. v. Ricon
Intern., L.L.C., 2006 WL 1313859, at *2 n.8 (Del. Super. May 2, 2006) (citing Poor v. Fox Hollow
Enterprises, 1994 WL. 150872, *1 (Del. Super. March 29, 1994)) (as with corporations, LLCs
must be represented by legal counsel in court).
2
Prevention Commission.2 In fact, an exhibit to Appellant’s Notice of Appeal
is a final order of the State Fire Prevention Commission, dated October 17,
2023.3 But appeals from the State Fire Prevention Commission must be filed
within thirty days of the decision of the Commission.4 The docket reflects that
the actions complained of took place more than six months earlier, making the
appeal untimely. The Court does not have jurisdiction to consider untimely
appeals.5
5. Finally, it seems that at some point after the Fire Marshall denied the requested
permitting, the parties continued discussing alternatives. In fire permit
parlance, this is apparently called a “Request for Alternative,” and in this case
an alternative was approved by the Fire Marshall and pursued, but apparently
2
“Appeals by any person aggrieved by an order or decision of the State Fire Marshal, the Marshal's
Deputy or Deputies, or Assistant State Fire Marshals based upon or made in the course of the
administration or enforcement of this chapter or local regulations incorporating the State Fire
Prevention Commission Regulations shall be taken to the State Fire Prevention Commission.” 16
Del. C. § 6609(b).
3
D.I. 1 (Ex. C), Trans. ID 73476932 (June 25, 2024) at 8.
4
“Any person jointly or severally aggrieved by any decision of the State Fire Prevention
Commission . . . may appeal the final order of the State Fire Prevention Commission to the Superior
Court within 30 days of service.”16 Del. C. §6611(a).
5
Giordano v. Marta, 723 A.2d 833, 834 (Del. 1998) (citing Bey v. State, 402 A.2d 362, 363 (Del.
Super. 1979)) (“This Court lacks jurisdiction to consider an appeal when the notice of appeal is
not filed in a timely manner unless the appellant can demonstrate that the failure to file a timely
notice of appeal is attributable to court-related personnel.”); Branch Banking and Trust Company
v. Eid, 114 A.3d 955, 957 (Del. 2015) (quoting Giordano, 723 A.2d at 834).
3
did not work out.6 In any event, the grant of the “Alternative” was not
appealed to the State Fire Prevention Commission and is not a “final order”7
from which an appeal to this Court may lie. The Court thus has no appellate
jurisdiction over this dispute as it is, at best, interlocutory.
For all of the above reasons, the appeal filed by Mr. Higgin must be dismissed.
IT IS SO ORDERED.
/s/ Charles E. Butler
Charles E. Butler, Resident Judge
6
D.I. 1 (Ex. E), Trans. ID 73476932 (June 25, 2024) at 2-4; D.I. 1 (Ex. F), Trans. ID 73476932
(June 25, 2024) at 1-5.
7
16 Del. C. §6611(a); see also Gala v. Delaware Bd. of Med. Licensure & Discipline, 2020 WL
2111372, at *5 (Del. Super. May 1, 2020), aff'd sub nom. Gala v. Bullock, 250 A.3d 52 (Del. 2021)
(citing Clendaniel v. McDaniel Constr., Inc., 787 A.2d 100, 100 (Del. 2001)) (“Only final orders
of an agency may be appealed; e.g., an appeal of a decision . . . short of a final award, will be
dismissed as interlocutory.”).
4