IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

EDWARD MURRAY, )

)

Appellant/Defendant-Below, )

)

v. ) C.A. No. N15A-02-001 ALR

)

LANCASTER COURT )

RENTAL, LLC, )

)

Appellee/Plaintiff-Below. )

Submitted: February 11, 2015

Decided: February 12, 2015

ORDER DENYING DEFENDANT’S

EMERGENCY MOTION FOR STAY OF EVICTION

Upon Defendant/Appellant’s motion for a stay of eviction submitted 

February 11, 2015, the Court finds as follows:

1. This is a summary possession case filed by Plaintiff, Lancaster Court 

Rentals, against Defendant, Edward Murray, in Justice of the Peace Court 

Number 13.1

2. Trial was scheduled in the Justice of the Peace Court on November 18, 

2014. Defendant did not appear for trial and default judgment was 

entered against Defendant. A writ of possession was issued.

3. The proper procedure to appeal a writ of possession as a matter of right

requires an appellant to request a trial before a three-judge Justice of the 

 

1 The Justice of the Peace Court has exclusive jurisdiction over summary possession

proceedings. 25 Del. C. § 5701 et seq.
2

Peace panel pursuant to 25 Del. C. § 5717(a).

2

 The statutory framework 

under Title 25, Section 57 of the Delaware Code provides no right to 

appeal from a decision of the three-judge panel. 

4. Here, Defendant did not follow this procedure to appeal the writ of 

possession. Instead, Defendant filed a motion to vacate the default 

judgment with the Justice of the Peace Court. Defendant’s motion to 

vacate claimed Defendant failed to appear at the November 18th trial 

because he was involved in a motor vehicle accident. 

5. On December 18, 2014, the Justice of the Peace Court held a hearing on 

Defendant’s motion to vacate default judgment. The Justice of the Peace 

Court determined Defendant lacked credibility and that Defendant 

offered no documentary evidence of the alleged accident through 

insurance information or otherwise. Accordingly, by Order dated 

December 23, 2014, the Justice of the Peace Court denied Defendant’s 

motion to vacate the default judgment.3

6. Defendant then appealed the Justice of the Peace Court’s Order denying 

Defendant’s motion to vacate default judgment to the Court of Common 

Pleas.

 

2 Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1208 (Del. 2008).

3 Lancaster Ct. Rentals, LLC v. Murray, C.A. No. JP13-14-012335 (Del. J.P. Dec. 23, 2014).
3

7. On January 30, 2015, the Court of Common Pleas issued an Order 

finding that the Justice of the Peace Court did not abuse its discretion in 

denying Defendant’s motion to vacate default judgment.4

 The Court of 

Common Pleas affirmed the Justice of the Peace Court’s decision and 

remanded the case back to the Justice of the Peace Court.

8. On February 2, 2015, Defendant filed a notice of appeal from the 

decision of the Court of Common Pleas with the Superior Court.

9. In the meantime, on February 9, 2015, upon remand, the Justice of the 

Peace Court issued an eviction notice on the grounds that Defendant did 

not appeal the writ of possession.

10.As noted previously, a writ of possession may only be appealed to a 

three-judge panel. Defendant did not properly appeal the writ of 

possession pursuant to 25 Del. C. § 5717.5

11.Defendant did not appeal the eviction notice. Defendant’s only option, 

upon following the appellate procedure, would have been to file a writ of 

certiorari with this Court because this Court has the original and 

exclusive jurisdiction to issue writs of certiorari to the Justice of the 

Peace Court in summary possession cases.6

 Instead, on February 11, 

 

4 Murray v. Lancaster Ct. Rentals, LLC, C.A. No. CPU4-14-003830 (Ct. C.P. Jan. 30, 2015).

5 See Smith v. Justice of Peace Court No. 1, 1990 WL 123051, at *4 (Del. Super. Aug. 7, 1990).

6 Maddrey, 956 A.2d at 1212.
4

2015, Defendant filed the pending emergency motion for stay of eviction 

with this Court.

12.This Court does not have subject matter jurisdiction to stay the eviction.

13.Even if Defendant had followed the appropriate appellate procedure, 

Defendant would still be without a right to appeal the summary 

possession decision and accompanying issues to this Court.7

14.Furthermore, even if Defendant filed a proper writ of certiorari with this 

Court, Defendant’s appeal has no merit because there are no errors on the 

face of the record.8

 This Court cannot accommodate Defendant’s request 

to stay a properly executed eviction notice because this Court lacks 

jurisdiction and to do so would be an improper act, functionally

equivalent to a traditional appellate review.9

NOW, THEREFORE, upon this 12th day of February 2015, 

Defendant’s emergency motion for stay of eviction is hereby DENIED.

IT IS SO ORDERED.

Andrea L. Rocanelli ____________________________________

The Honorable Andrea L. Rocanelli

 

7 Id.

8 See id. at 1207.

9 Id.