IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CFT AMBULANCE SERVICE, :

A DELAWARE CORPORATION, :

 :

Appellant, : C.A. No. K16A-02-005 JJC

 :

 v. :

 :

STATE FIRE PREVENTION :

COMMISSION, :

 :

Appellee. :

OPINION and ORDER

Submitted: July 28, 2016

Decided: October 24, 2016

Kester I.H. Crosse, Esquire, WILLIAMS & CROSSE, Wilmington, Delaware, 

Attorney for Appellant.

Olivia Patricia Davis, Esquire, DEPARTMENT OF JUSTICE, Wilmington, 

Delaware, Attorney for the Appellee.

Clark, J.
2

I. Introduction

This appeal arises from the State Fire Prevention Commission’s (hereinafter 

“Commission’s”) decision to decertify Appellant CFT Ambulance Service 

(hereinafter “CFT”). After a hearing where CFT failed to appear, the Commission 

found that CFT had numerous and ongoing violations of the Commission’s 

regulations. As a result of these serious violations, the Commission decertified 

CFT as a licensed non-emergency ambulance provider in the State of Delaware. 

CFT appeals the Commission’s decision to decertify the company. After a review 

of the record and the parties’ submissions, the Court AFFIRMS the decision of the 

Commission. 

II. Procedural and Factual Background

Since this matter involves an appeal of an administrative agency’s decision, 

the Court is confined to a review of the facts contained in the record, and it is those 

facts that are referenced herein. CFT has been a Delaware licensed non-emergency 

ambulance service provider since 2009. This status requires the company to 

comply with the Commission’s regulations regarding ambulance maintenance and 

equipment requirements. 

Beginning in 2009, CFT failed to comply with those requirements. In 

December 2009, the Commission cited CFT twice for its ambulances having 

equipment that was not in reasonable and working condition. The violations 

continued as the Commission again cited CFT in March 2010 after inspecting five 

of the company’s ambulances. The Commission found these units’ equipment to be 

deficient and to be missing several critical items. In October 2010, the Commission 

conducted another inspection of CFT’s ambulances and found leaking smoke from 

an exhaust pipe affecting the interior of one of its units. 
3

The violations continued into 2011 and 2012. In April 2011, the 

Commission conducted an inspection and found one ambulance missing a side 

mirror on the driver’s side door and lacking oxygen in the main oxygen tank. In 

May 2011, another CFT unit had to be placed out-of-service for missing equipment 

and other safety violations. When the Commission next inspected CFT in August 

2012, it placed two of the company’s ambulances out of service for a 

malfunctioning air conditioning in one and an overheating engine in the other. 

In June 2013, the Commission placed two more units out-of-service, and in 

January 2014, another ambulance was placed out-of-service when the Commission

determined equipment was malfunctioning and missing. In August 2014, another 

ambulance had to be taken out-of-service due to issues with the vehicle’s brakes 

and other deficiencies. Over the course of 2014, the Commission removed a total 

of three units from service. 

In addition to these inspections, the Commission received correspondence 

from an employee of CFT complaining of deficiencies and hazards found in its

ambulances. The employee testified at the hearing regarding the company’s 

management practices. He testified that management exchanged a license plate 

from a certified unit for a non-certified unit, enabling a non-certified ambulance to 

appear to be a unit that had passed inspection. The employee also testified that 

management replaced a broken axle on one ambulance with an axle from a van and 

put a tire on, inside out, making tire pressure testing impossible.

CFT’s deficiencies next resulted in a customer filing a complaint with the 

Commission in August 2015. The complaint alleged that an ambulance had no

functioning air conditioning while transporting a patient. Due to this lack of air 

conditioning, the patient’s body temperature became dangerously high, 

necessitating an emergency ambulance. Following this complaint, the Commission 
4

conducted another inspection of CFT’s ambulances and found several additional 

safety hazards as well as a lack of required equipment. 

Based on documentation of the Commission’s inspection results and the 

testimony at the hearing, the Commission decertified CFT as a licensed nonemergency ambulance provider. CFT failed to appear at the hearing due to an error 

on the company’s part and petitioned the Commission for a rehearing. Namely, 

though CFT acknowledges proper service of a hearing notice, it alleges that the 

employee receiving the notice neglected to forward it up the chain of command. 

Accordingly, the hearing proceeded without a representative of CFT. Thereafter, 

upon learning of the Commission’s adverse decision, CFT petitioned for a 

rehearing. The Commission denied the rehearing and issued a final order to 

decertify the company. CFT then appealed the Commission’s decision to this 

Court. 

III. Standard of Review

The Commission is not one of the agencies itemized in Section 10161(a) of

Delaware’s Administrative Procedure Act (“APA”).

1

Therefore, Subchapter III, 

Case Decisions, of the APA does not apply to the Commission.2Instead, a party 

suffering an adverse ruling by the Commission has a right to appeal to the Superior 

Court pursuant to Section 6611(a) of Title 16 of the Delaware Code. However, 

Section 6611(a) of Title 16 does not articulate the appropriate standard of review

for such an appeal. Nevertheless, even though the statute is not clear regarding the

standard of review, both parties agree that a substantial evidence and error of law 

 

1

29 Del. C. § 10161(a).

2

The inapplicability of the APA in this case includes the standard of review, notice, and other 

case decision related provisions outlined in the APA. 29 Del. C. §§ 10161(a), (b).
5

review is appropriate. In the absence of statutory direction, the Court will therefore 

determine whether the agency’s decision was supported by substantial evidence 

and is free from legal error.3

Substantial evidence equates to “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.”4Substantial evidence is 

“more than a scintilla but less than a preponderance.”5 On review, “the court is not 

authorized to make its own factual findings, assess credibility of witnesses or 

weigh the evidence.”6 Absent an error of law, the standard of review for a Board’s 

decision is for abuse of discretion.7The Commission has abused its discretion only 

when it “acts arbitrarily or capriciously”8or when its decision has “exceeded the 

bounds of reason in view of the circumstances.”9

 

3

E.g., Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205 (Del. 1992); Maurer v. Council 

on Police Training, 2007 WL 625903, at *3 (Del. Super. 2007); see also Bon Ayre Land LLC v. 

Bon Ayre Comty. Ass’n, 133 A.3d 559, at *2 n.11 (Del. 2016) (Table) (explaining that even 

though the statute’s language is unclear regarding the standard of review, the substantial 

evidence standard is appropriately applied).

4 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Fed. Mar. Comm’n, 383 

U.S. 607, 620 (1966)).

5

Id. (quoting Cross v. Califano, 475 F.Supp. 896, 898 (D. Fla. 1979)).

6

Sokoloff v. Bd. of Med. Practice, 2010 WL 5550692, at *5 (Del. Super. 2010).

7 Digiacomo v. Bd. Of Pub. Educ., 507 A.2d 542, 546 (Del. 1986).

8

PAL of Wilm. v. Grahm, 2008 WL 2582986, at *4 (Del. Super. 2008).

9

Floundiotis v. State, 726 A.2d 1196, 1202 (Del. 1999).
6

IV. Discussion

A. CFT was afforded constitutional due process protections.

CFT argues that it was not provided due process protections by the 

Commission. While it received notice of the hearing, CFT argues that because the 

company did not appear at the hearing, it did not have an adequate opportunity to 

be heard. Both parties agree that CFT’s professional license is property protected 

under the Due Process Clause, thereby triggering notice and hearing protections. 

However, the parties disagree regarding whether the Commission satisfied the 

hearing requirement. CFT argues that it did not waive its right to a hearing by 

failing to appear, and because it did not appear, the hearing requirement was not 

satisfied. In contrast, the Commission argues that CFT received proper notice of 

the hearing, and because the Commission held a hearing where CFT was entitled to 

present evidence and argue material facts, it was provided with an opportunity to 

be heard. 

An administrative agency hearing is required to provide due process 

protections to its litigants.10 Due process requires “providing the parties with the 

opportunity to be heard, by presenting testimony or otherwise.”11 It also “requires 

that the notice inform the party of the time, place, and date of the hearing and the 

subject matter of the proceedings.”12 CFT did not challenge the sufficiency of the 

notice before the Commission when it requested a rehearing or when it filed its 

Opening Brief on appeal. The Court’s review is limited to the arguments properly 

raised below. Furthermore, for the reasons set forth herein, the Commission 

 

10 See Vincent v. E. Shore Mkts., 970 A.2d 160, 164 (Del. 2009) (noting that the Industrial 

Accident Board is governed by due process requirements).

11 Id.

12 Id.
7

satisfied the requirements of the Due Process Clause of the Fourteenth 

Amendment.

In Straley v. Advance Staffing Inc., in an unemployment matter, the 

Delaware Supreme Court was confronted with a similar issue.

13 There, a Claims 

Deputy denied Straley unemployment benefits.14 Straley then appealed to an 

Appeals Referee where the Claims Deputy’s decision was overturned.15 When the 

employer appealed to the Unemployment Insurance Appeals Board (hereinafter the 

“Board”), Straley failed to appear for the hearing.16 Despite her absence, the Board 

continued with the hearing and reversed the Appeals Referee’s decision.17 Straley 

appealed to the Superior Court claiming the Board violated her due process rights 

but the Superior Court upheld the Board’s decision.18 On appeal, the Delaware 

Supreme Court recognized that “Due Process is satisfied when notice is sent by a 

method reasonably calculated to afford the party an opportunity to be heard.”19

Because the Board provided Straley with notice of the hearing and the Board held 

a hearing to determine the appropriateness of an award of unemployment benefits, 

the Board satisfied due process requirements despite Straley’s failure to appear at 

the hearing.20

 

13 984 A.2d 124 (Del. 2009) (Table).

14 Id. at *1.

15 Id.

16 Id.

17 Id.

18 Id. at 2.

19 Id.

20 Id.
8

Similarly, the Commission satisfied due process requirements. Namely, it 

provided CFT with notice of the hearing, which the company admits was delivered 

to its business. Additionally, the Commission provided the company with the 

opportunity to be heard. It held a hearing to address the alleged violations. During 

this hearing, the Commission was willing to hear testimony from both parties 

regarding CFT’s failure to comply with the Commission’s regulations. Had CFT

appeared at the hearing, it could have introduced evidence in its defense. CFT 

failed to take advantage of its opportunity to be heard through no fault of the 

Commission. Accordingly, the Court does not find that CFT’s failure to appear at 

its hearing deprived CFT of due process. 

B. CFT waived its argument regarding sufficiency of the notice; independent

of this waiver, the APA notice provisions relied upon by CFT are inapplicable. 

In its Reply Brief, CFT, for the first time, raises an argument that the form of 

the notice below violated its due process rights. Specifically, CFT argues that 

because the Commission failed to provide it with notice in accordance with the 

APA’s standards, it is due a new hearing with the opportunity to present evidence. 

CFT correctly recognizes that the APA’s notice requirements require more 

detail than otherwise required by the Due Process Clause. CFT points to two 

provisions in the APA that it alleges the Commission’s notice violated. First, CFT 

looks to Section 10122 of the APA as it includes the basic requirements regarding 

the date, time, and place of the hearing and the right to counsel and subpoena 

witnesses. Section 10122 also includes notice requirements including the subject 

matter of the proceedings. CFT argues that the notice at issue contained no 

information regarding whether or not a choice of informal fact finding was 

permitted, nor did it include a sufficient description of the subject matter of the 
9

proceedings, which violates this section’s requirements.

21 CFT further relies upon 

Section 10131 of Title 29 in arguing that the Commission violated the APA by not 

providing notice that it was seeking a revocation of CFT’s license.22 CFT claims

that the Commission’s failure to adhere to the APA’s specific statutory notice

requirements invalidates the results of the hearing.

CFT’s argument must be rejected for two reasons. Even if the Commission 

was required to adhere to the notice requirements identified by CFT, the issue was 

not properly raised. Due process rights regarding insufficient notice are subject to 

waiver when not properly raised.23 CFT raised the lack of sufficient notice for the 

first time in its Reply Brief. Furthermore, CFT fails to point to a part of the record 

establishing that this issue was raised before the Commission and therefore waives 

this argument. Delaware courts consistently hold that when a party fails to raise an 

argument in its opening brief, that failure generally constitutes waiver of that 

claim.24 Consequently, CFT waived its insufficient notice argument.

Independently, the text of the APA does not support CFT’s reliance on its 

relevant provisions. Section 10161(a) of the APA enumerates the agencies that are 

bound by the provisions of the chapter.

25 The Delaware State Fire Prevention 

Commission is not an itemized agency in Section 10161(a).26 As a result, the 

 

21 29 Del. C. § 10122.

22 29 Del. C. § 10131.

23 See Christiana Town Ctr., LLC v. New Castle Cnty., 865 A.2d 521, at *3 (Del. 2004) (Table) 

(stating that notice and hearing due process rights are subject to waiver).

24 See, e.g., Camtech School of Nursing and Technological Sciences v. Del. Bd. of Nursing, 2014 

WL 604980, at *2 n.29 (citing Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993)) (noting that 

claims raised for the first time in Appellant’s Reply Brief will not be considered). 

25 29 Del. C. § 10161(a).

26 Id.
10

Commission is not bound by the entirety of the APA’s provisions. Instead, 

according to Section 10161(b), the agencies not listed in subsection (a) are only 

“subject to Subchapters I and II . . . and Sections 10141, 10144, and 10145. . .” of 

the APA.

27 The procedural violations alleged by CFT reference requirements found 

in Subchapters III and IV. Accordingly, the Court must reject CFT’s argument that 

the APA notice violations resulted in a statutory or Due Process Clause violation. 

C. The Commission did not abuse its discretion.

CFT argues that the Commission’s denial of a rehearing was an abuse of 

discretion and therefore should be reversed with a remand for a new hearing. In 

order to overturn the Commission’s decision, CFT must show that the Commission 

abused its discretion by showing that it “act[ed] arbitrarily or capriciously”28 or it 

“exceeded the bounds of reason in view of the circumstances.”29

Delaware courts have addressed an agency’s denial of a rehearing on several 

occasions. Consistently, Delaware courts refuse to find a denial of a rehearing to be 

an abuse of discretion.30 Where an agency “followed its regulations, provided due 

notice to all parties involved,” provided an opportunity to be heard, and then 

subsequently denied a rehearing, such a decision is not an abuse of discretion.31

 

27 29 Del. C. § 10161(b).

28 PAL of Wilm. v. Grahm, 2008 WL 2582986, at *4 (Del. Super. 2008).

29 Floundiotis v. State, 726 A.2d 1196, 1202 (Del. 1999).

30 E.g., Petrilli v. Discover Bank, 2012 WL 1415705, at *5 (Del. Super. 2012); Kreider v. JC 

Penny Custom Decorating, 2010 WL 2562210, at *2 (Del. Super. 2010); Connors v. Mountaire 

Farms of Delmarva, 1996 WL 453327, at *3 (Del. Super. 1996).

31 E.g., Petrilli v. Discover Bank, 2012 WL 1415705, at *5 (Del. Super. 2012); see also Kreider 

v. JC Penny Custom Decorating, 2010 WL 2562210, at *2 (Del. Super. 2010) (finding that the 

Unemployment Insurance Appeal Board did not abuse its discretion in denying a rehearing after 

the Board followed its regulations and provided notice and an opportunity to be heard); Connors 
11

Here, as noted above, the Commission provided CFT with adequate notice of the 

hearing and an opportunity to be heard. Additionally, the Commission followed its 

regulations when decertifying the company. As such, it cannot be said that the 

decision to deny the rehearing was arbitrary or capricious. Likewise, its decision 

did not exceed the bounds of reason. 

CFT also argues the Commission abused its discretion with regard to the 

severity of the sanction, while citing no comparatives for purposes of 

proportionality review. It merely argues that the decertification decision was 

disproportionate to the violations and therefore was an abuse of the Commission’s 

discretion. According to CFT’s argument, because the sanction is disproportionate, 

this Court has the authority to modify the Commissioner’s order. 

In support of this argument, CFT cites two Delaware Supreme Court cases

that are inapplicable to the case at hand. In the cases cited by CFT, the Delaware

Supreme Court was reviewing the Court of Chancery’s decisions regarding 

whether to modify an order by Delaware’s Securities Commissioner.32 In both

cases, the Delaware Supreme Court recognized the Court of Chancery’s statutory 

power to modify a Commissioner’s order on the basis that it was 

disproportionate.

33 When the Court of Chancery is undertaking a review pursuant 

to the Delaware Securities Act, it is statutorily permitted to review de novo the 

remedy ordered by the Commissioner.34 In this case, there is no statutory authority 

 

v. Mountaire Farms of Delmarva, 1996 WL 453327, at *3 (Del. Super. 1996) (finding that the 

Unemployment Insurance Appeal Board did not abuse its discretion in denying a rehearing 

where the Board followed its regulations and claimant failed to appear).

32 Hubbard v. Hibbard Brown & Co., 633 A.2d 345 (Del. 1993); Blinder, Robinson & Co. v. 

Bruton, 552 A.2d 466 (Del. 1989). 

33 Hubbard, 633 A.2d at 353; Blinder, Robinson & Co., 552 A.2d at 475.

34 Hubbard, 633 A.2d at 353; see also 6 Del. C. § 73-502(b) (granting the Court of Chancery the 

exclusive jurisdiction to modify an order of the Director under the Delaware Securities Act).
12

cited by CFT that permits the Superior Court to substitute its independent 

judgment regarding the appropriate sanction for the violation. As there is no 

similar statutory authority for the Superior Court to modify the State Fire 

Prevention Commission’s orders, CFT’s argument regarding disproportionality of 

the sanction has no merit.

D. CFT’s failure to appear was not excusable neglect.

CFT next argues that the Superior Court should grant it relief from the 

Commission’s final order pursuant to Superior Court Civil Rule 60 because its 

failure to appear was excusable neglect or mistake.35 It claims that due to excusable 

neglect, CFT’s senior management did not have knowledge of the hearing. 

Accordingly, CFT argues that the company’s failure to appear was a mistake, and 

therefore, the Superior Court should grant it relief from the Commission’s final 

order which in effect closed the company. CFT further contends that the State’s 

policy of hearing cases on the merits rather than by default further supports its 

argument for relief under Rule 60.

Foremost, the Court notes that Superior Court Civil Rule 60 does not apply

to a final order issued by an administrative agency. Superior Court Civil Rule 60 

provides relief only from a Superior Court final judgment or order. Nevertheless, 

in applying that standard to the agency’s decision, as urged by CFT, the Court does 

not find excusable neglect. 

Relief from judgment under Rule 60 requires the moving party to show 

“valid reasons for the neglect—reasons showing that the neglect may have been 

 

35 The rule provides the Superior Court with the authority to relieve a party from a final 

judgment, order, or proceeding for the following reasons: “[m]istake, inadvertence, surprise, or 

excusable neglect.” Del. Super. Ct. Civ. R. 60(b)(1).
13

the act of a reasonably prudent person under the circumstances.”36 Furthermore, “a 

mere showing of negligence or carelessness without a valid reason may be deemed 

insufficient.”37

Here, CFT contends its negligence was the result of a part-time employee 

and the stress of the holiday season. Even if the Court were to review the issue at 

hand, de novo, as CFT seems to urge, this does not constitute excusable neglect. 

From the licensee’s perspective, it exhibited mere carelessness without a valid 

reason. 

In Apartment Communities Corp. v. Martinelli, the Delaware Supreme Court 

addressed the issue of excusable neglect by looking to federal precedent due to the 

similarities between the Superior Court Civil Rules and the Federal Rules of Civil 

Procedure.38 There, the Delaware Supreme Court reviewed federal case law in 

determining whether an employee failing to inform the company that it was served 

with a compliant constituted excusable neglect.39 The Supreme Court held it was 

not excusable neglect after relying on a case from the United States Court of 

Appeals for the Fifth Circuit where a company failed to respond to a complaint 

because of a mistake by a commercial carrier in his attempt to deliver the 

document from an employee to the company’s claims office.40 The Delaware 

Supreme Court found persuasive the reasoning that “the corporation should have 

implemented at least minimum internal procedural safeguards to avoid such 

 

36 Dishmon v. Fucci, 32 A.3d 338, 346 (Del. 2011).

37 Id.

38 859 A.2d 67, 70—71 (Del. 2004).

39 Id. at 70.

40 Id. at 71 (citing Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933 (5th Cir. 1999)).
14

mishaps.”41 Similarly, in Martinelli, the Court relied upon the United States Court 

of Appeals for the Eleventh Circuit holding in a case where a mail clerk misplaced 

a complaint, which also did not constitute excusable neglect.42

In Martinelli, the Delaware Supreme Court refused to find excusable neglect 

stating that “it was the responsibility of the defendant . . . to ensure that all 

employees who are capable of accepting service of process know when and to 

whom the complaint should be forwarded.”43 The Court went on to state that 

“when service of a complaint is complete and legal, it is immaterial that the agent 

does not communicate the fact of service to the principal.”44 Due to the company’s 

failure to implement safeguards to avoid such a situation, the Delaware Supreme 

Court refused to find excusable neglect.45 For purposes of this analysis, service of a 

civil complaint does not meaningfully differ from a notice of an administrative 

hearing. This Court cannot find CFT’s failure to appear at the hearing to be

excusable neglect on the basis of the part time employee’s failure to forward the 

notice to senior management. 

Furthermore, the fact that the company was busy due to the holiday season is 

not grounds for finding excusable neglect. In Cohen v. Brandywine Raceway 

Ass’n, the Superior Court was faced with an excusable neglect argument based on 

a similar claim.

46 In that case, the office manager received the amended complaint 

but failed to ensure that appropriate personnel in the company were aware of it 

 

41 Id. (quoting Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933 (5th Cir. 1999)).

42 Id. (citing Gibbs v. Air Can., 810 F.2d 1529, 1537 (11th Cir. 1987)).

43 Id.

44 Id. 71—72.

45 Id.

46 238 A.2d 320, 325 (Del. Super. 1968).
15

because that employee was exceptionally busy because of the Christmas season.47

Likewise, the Commission’s denial of a rehearing cannot be said to have been an 

abuse of discretion when evaluated pursuant to the standards of Superior Court 

Civil Rule 60(b)(1).

E. The Commission’s decision to decertify CFT is supported by substantial 

evidence and is free from legal error.

Section 6604 of Title 16 of the Delaware Code provides the Commission 

with the authority to formulate rules and regulations. Pursuant to this authority, the 

Commission enacted Regulation 7.10 (12.1) which provides the Commission with 

the authority to revoke an ambulance service provider’s license.48 Regulation 710 

(12.3) further delineates when the Commission may revoke a license.49 The 

Commission identifies two such provisions that justified it in revoking CFT’s 

license: (1) violation of any provision of the regulations, and (2) demonstration of 

the licensee’s gross negligence, incompetence, or misconduct.50

At the hearing, the State, on behalf of the Commission, submitted evidence 

of several inspections where the Commission found violations of the regulations. 

Generally speaking, the various inspections found deficient equipment and safety 

hazards. The results of these inspections frequently required the Commission to 

place CFT’s ambulances out-of-service. 

Additionally, at the hearing there was testimony from a former employee of

CFT. He testified that management took a license plate from a certified unit and 

 

47 Id.

48 17 DE Reg. 982 (04/01/14).

49 Id.

50 Id.
16

placed it on a non-certified unit, enabling the non-certified ambulance to appear to 

be a unit that had passed inspection. The employee also testified that management 

replaced a broken axle in an ambulance with an axle from a van and put a tire on 

inside out, rendering the tire unable to be pressure tested. Such action by 

management certainly constitutes misconduct. 

The Commission’s order outlined the specific facts found and the evidence 

submitted which formed the bases for its conclusions. In light of the evidence of 

non-compliance throughout the six year span in which CFT was licensed, there 

was substantial evidence to support the Commission’s decision. Furthermore, the 

Commission’s decision was free from legal error.

V. Conclusion

For the aforementioned reasons, the Commission’s decision to decertify 

CFT is supported by substantial evidence and is free from legal error. The 

Commission’s refusal to grant a rehearing was not an abuse of discretion. 

Accordingly, its decision to decertify CFT is AFFIRMED.

IT IS SO ORDERED

/s/Jeffrey J Clark

 Judge