IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

)

KATHLEEN MORGAN and )

TURKEYS, INC., )

)

 Plaintiffs/Petitioners/Appellants, )

) 

v. ) C.A. No. 14A-11-005 JAP

)

LIMESTONE VALLEY )

ENTERPRISES, LLC, )

)

 Defendant/Respondent/Appellee. )

)

ORDER

1. Petitioners ask this court to issue a writ of certiorari 

reviewing an adverse holding of a three judge panel of the Justice of 

the Peace Court. Petitioner Morgan’s check for the payment of filing 

fees in this court was returned for lack of sufficient funds. 

Consequently, petitioners have added a request for leave to proceed 

in forma pauperis. This court previously struck the petition of 

Turkeys Inc. because it was not signed by a member of this court. 

At the same time it ordered petitioner Morgan to show cause why 

her claim should not be dismissed for lack of standing. Petitioners 
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have responded to that order, and this is the court’s final judgment 

in this matter. It has not previously acted on the request to proceed 

in forma pauperis because that application was only recently filed.

Facts and Procedural History

2. Turkeys Inc. was at one time a franchisee of Capriotti’s, 

Inc. and operated a sandwich shop using the Capriotti’s name in 

the Lantana Square Shopping Center. Petitioner Morgan was the 

sole stockholder and officer of Turkeys. It appears that Morgan 

personally guaranteed at least some of Turkeys’ financial 

obligations.

3. For reasons which are not clear, Turkeys apparently fell 

into financial trouble. One creditor, Geoffrey Scott, brought suit in 

this court against Turkeys and Morgan, who was the guarantor of 

Turkeys’ debt to Scott. He ultimately obtained a judgment against 

both for $298,000 and in 2013 he began to levy on the goods and 

chattels at the sandwich shop.

4. Limestone Valley Enterprises, LLC owned the premises 

which Turkeys used as the sandwich shop. Limestone and Turkeys 
3

entered into the lease in 2008 and Turkeys began operation soon 

thereafter. A few weeks after he obtained his judgment, Scott 

served a writ of attachment on Limestone seeking to attach Turkeys’ 

interest in the Limestone-Turkeys lease. The issuance of the writ of 

attachment constituted an event of default by Turkeys under the 

lease. In May 2014 Limestone notified Turkeys of the default and, 

without waiving its rights, allowed Turkeys time to cure the default 

by having the attachment vacated.

5. Turkeys did not cure the default, so in August 2014 

Limestone filed an action against Turkeys for a writ of possession in 

the Justice of the Peace Court. Limestone sought no monetary relief 

against Turkeys and, accordingly, Morgan was not named as a 

defendant. Turkeys demanded a jury trial, which Limestone 

opposed on the basis that Turkeys waived any right to a jury trial in 

its lease with Limestone. The matter was tried before a single 

Justice of the Peace, who found in favor of Limestone. Turkeys 

appealed to a three judge panel of that court.

6. On October 20, 2014, the three judge panel found in favor 

of Limestone. In doing so it rejected Turkeys’ request for a jury trial 
4

because of the waiver in the lease. The court found that Turkeys 

was in violation of its lease. 

7. On November 17, 2014, Morgan and Turkeys filed a 

petition for a writ of certiorari in this court. No attorney entered an 

appearance on behalf of Turkeys.

8. Shortly thereafter this court entered an order which in 

pertinent part:

(a) struck Turkeys’ petition because it was not signed by 

a member of the Bar of the Supreme Court of Delaware, 

and

(b) directed Morgan to explain why her petition should 

not be dismissed because she lacked standing since she 

was not entitled under the lease to possession of the 

premises.

Morgan timely responded to this court’s order.

9. In response to this court’s decision to strike Turkeys’ 

petition because it was not signed by an attorney, Morgan asks this 

court to appoint an attorney to represent it. There is no basis for 

the court to appoint an attorney here. Consequently, it will not 

vacate its decision striking Turkey’s petition.
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The request for leave to proceed in forma pauperis.

10. Plaintiffs in a civil matter are required by law to pay a filing fee 

when instituting a civil matter in this court.1 The court is 

authorized to conditionally waive or reduce that fee when an 

individual is unable to pre-pay that fee. In order to obtain such a 

waiver, the plaintiff must:

[S]ubmit a sworn affidavit sufficient to allow the court 

to determine the ability of the affiant to pay all or any 

portion of the court costs and fees associated with the 

filing of an action in that court. Such affidavit shall 

contain a statement that the affiant is unable to pay 

the costs and fees, and shall provide complete 

information as to the affiant's identity, the nature, 

source and amount of all of the affiant's income, the 

affiant's spouse's income, all real and personal 

property owned either individually or jointly, all cash or 

bank accounts held either individually or jointly, any 

dependents of the affiant and all debts and monthly 

expenses. The affiant shall further swear or affirm that 

the information in the affidavit is true and correct and 

made under penalty of perjury.2

In her request for leave to proceed in forma pauperis Morgan failed 

to provide any information concerning the personal property, 

including bank accounts, which she owns. This omission is not a 

mere technicality. A profit and loss statement Morgan submitted in 

 1 Superior Court Civil Rule 3(e).

2 10 Del. C. § 8803(b).
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connection with her petition for a writ of certiorari shows a net 

profit for Turkey of $285,000 in 2013. Accordingly, the court finds 

that it is not a foregone conclusion that Morgan owned no personal 

property and therefore her omission of that information (even 

though called for by the form she completed) is material.

11. Ordinarily in instances in which a pro se plaintiff has 

omitted information in an in forma pauperis request the court would 

grant the plaintiff an opportunity to remediate such a deficiency. 

Here the court will not do so because the underlying petition for a 

writ of certiorari is frivolous and would therefore be subject to 

immediate dismissal even if Morgan had submitted an adequate 

affidavit in support of her motion to proceed in forma pauperis. 

Thus, any supplement or amendment to her affidavit would be 

futile.

The petition for a writ of certiorari is frivolous.

12. In cases where a plaintiff is proceeding in forma pauperis 

Delaware law permits the court to dismiss a frivolous complaint

without requiring service upon the defendant. The law provides for 

this because, unlike cases in which plaintiffs pay the filing fee, 
7

there is no economic disincentive to the filing of frivolous or 

malicious complaints by a plaintiff proceeding in forma pauperis.3

14. The court is required to dismiss cases such as this when 

it determines that the case is legally or factually frivolous. 

According to section 8803 of Title 10:

Upon establishing the amount of fees and costs to be 

paid, the court shall review the complaint. Upon such 

review, the complaint shall be dismissed if the court 

finds the action is factually frivolous, malicious or, 

upon a court's finding that the action is legally 

frivolous and that even a pro se litigant, acting with 

due diligence, should have found well settled law 

disposing of the issue(s) raised.4

The court finds that Morgan’s claims are legally frivolous.

15. Insofar as Morgan’s lack of standing is concerned, she 

points to nothing giving her standing to contest a judgment 

rendered against an artificial business entity. In particular she did 

not bring to the court’s attention any document giving her (as 

opposed to Turkeys) a right to possession of the premises. 

Although Morgan was a guarantor of Turkey’s financial obligations 

under the lease, the action merely sought possession of the 

premises and did not seek recovery of any money damages from 

 3 Wood v. Brian Collison & Dep’t of Corr., 2014 WL 7149214, at *5 (Del. Super. Dec. 12, 2014). 4 10 Del. C. § 8803(b).
8

Turkeys. Consequently, she had no standing to contest the action 

for a writ of possession.

16. Even assuming that Morgan had standing here, she would 

not be entitled to a writ of certiorari. According to the Supreme 

Court:

[T]he petition must raise the type of claim reviewable 

on certiorari, namely whether the lower tribunal (1) 

committed errors of law, (2) exceeded its jurisdiction, 

or (3) proceeded irregularly. A decision will be 

reversed for an error of law committed by the lower 

tribunal when the record affirmatively shows that the 

lower tribunal has proceeded illegally or manifestly 

contrary to law. Reversal on jurisdictional grounds is 

appropriate ‘only if the record fails to show that the 

matter was within the lower tribunal's personal and 

subject matter jurisdiction. Reversal for irregularities 

of proceedings occurs if the lower tribunal failed to 

create an adequate record for review.5

The court finds that the opinion of the three judge panel was 

orderly and well-reasoned. The closest Morgan gets to alleging any 

of the required showings for a writ of certiorari is her contention 

that her petition is “[b]ased on lack of judicial standing of 

Landlord’s plea,” which the court interprets as challenging the 

jurisdiction of the Justices of the Peace Court. It is settled however 

 5 Black v. Justice of the Peace Court 13, 105 A.3d 392,394 (Del. 2014) (internal footnotes and 

marks omitted).
9

that the Justices of the Peaces Courts are vested with jurisdiction to 

hear petitions for a writ of possession brought by landlords of 

commercial leaseholds.6

Morgan’s petition to proceed in forma pauperis is therefore 

DENIED and her claims are DISMISSED.

__________________________

February 18, 2015 John A. Parkins, Jr.

 Judge

oc: Prothonotary

cc: Kathleen Morgan, 9 West Shore Court, Landenberg, 

Pennsylvania 19350

Limestone Valley Enterprises, LLC, 3403 Lancaster 

Pike, Wilmington, Delaware 19805

Jeffrey M. Weiner, Law Offices of Jeffrey M. Weiner, 

P.A., Wilmington, Delaware

 6 25 Del. C. chapter 57.