1

THE SUPERIOR COURT OF THE STATE OF DELAWARE

)

INTERNATIONAL BROTHERHOOD OF )

TEAMSTERS LOCAL 326, )

COMPANY, )

Petitioner, )

v. ) C.A. NO. N21C-08-211 DJB

 )

TOWN OF DELMAR POLICE )

DEPARTMENT, )

Respondent. )

MEMORANDUM OPINION

On Respondent’s Motion to Dismiss Amended Complaint for Writ of Certiorari 

and to Quash Summons - GRANTED

Date Submitted: June 7, 2022

Date Decided: August 15, 2022

Jeffrey M. Weiner, Esquire, Wilmington, Delaware, attorney for Petitioner

Aaron M. Shapiro, Esquire, Connolly & Gallagher, LLP, attorney for Respondent

Brennan, J.
2

I. INTRODUCTION

This dispute arises from the Delaware Public Employment Relations Board’s 

(hereinafter “PERB” or the “Board”) denial of International Brotherhood of 

Teamsters Local 326’s (hereinafter “IBT”) petitions under Delaware’s Police 

Officers and Firefighters Employment Relations Act (hereinafter “POFERA”).1 IBT 

filed two petitions to represent the interests of police officers employed by 

Respondent Town of Delmar Police Department (hereinafter “the Town”). Initial 

review was by an Executive Director of the Board, who issued a decision which 

denied IBT’s petitions. IBT appealed and following a public hearing, the denial was

affirmed by the full Board. After the denial of its petitions, IBT filed a Complaint

In Proceedings for Extraordinary Writ (“Complaint”) seeking a writ of certiorari in 

this Court to review PERB’s decision.2

Before the Court is Town of Delmar Police Department’s motion to dismiss 

IBT’s amended petition for writ of certiorari. For the reasons set forth below, 

Respondent’s motion is GRANTED.

II. BACKGROUND

The town of Delmar, Delaware is a municipal corporation located in Sussex 

County on the border between Delaware and Maryland. The town of Delmar, 

Maryland, is a municipal corporation located in Wicomico County. In 1954, the two 

towns agreed to a unification of certain public services, including the Town of 

Delmar Police Department. As part of the agreement, both Delmar, Delaware and 

Delmar, Maryland agreed to share costs of the unified police department. To oversee

the shared public services, the towns created the “Town of Delmar”3a singular 

1

19 Del. C. §§ 1601-1623.

2 D.I. 1

3 The Court will refer to the unified government entity as “Town of Delmar.”
3

government entity serving both towns. The Town of Delmar is governed by a joint 

council comprised of elected officials from both Delmar, Delaware and Delmar, 

Maryland. 

On December 11, 2017, IBT filed a petition for “Bargaining Unit 

Determination”4and “Certification of Exclusive Bargaining Representative”5

seeking to represent the labor interests of police officers employed by the Town of 

Delmar Police Department. In accordance with the allotted procedure, an Executive 

Director of PERB reviewed and subsequently dismissed the petitions on May 17, 

2021, more than three years after the filing of the initial petition. In dismissing the 

petitions, it was determined that the Town of Delmar is an administrative entity 

created by two towns, one of which is an independent sovereign municipality of the 

State of Maryland. Accordingly, the Board concluded that PERB lacked jurisdiction 

over the Town of Delmar, as it was not a “public employer” as defined in the 

Delaware Code and dismissed IBT’s petitions. IBT appealed the Executive 

Director’s decision before the full Board, which the PERB affirmed on August 17, 

2021.

Just prior to the affirmation, however, on June 22, 2021, the Delaware Senate 

passed Senate Bill No. 181 proposing an amendment to POFERA which would 

expressly designate the Town of Delmar as a public employer under POFERA.6 The 

legislation became effective on September 10, 2021, less than a month after PERB

denied IBT’s appeal.7 Delmar, Delaware’s charter was also amended to reflect the 

new legislation.8

4

19 Del. C. § 1610.

5

19 Del. C. § 1611.

6 Original Synopsis, Senate Bill No. 181 (June 10, 2021), available at 

https://legis.delaware.gov/BillDetail?LegislationId=78889.

7

19 Del. C. § 1602(13)b. 

8 Delmar, DE Town Charter, Section 4(c)(1), at http://charters.delaware.gov/delmar.shtml 

(last visited July 29, 2022).
4

On August 25, 2021, IBT filed a Complaint seeking a writ of certiorari,

requesting the extraordinary relief of this Court’s review of PERB’s decision.

9

In 

lieu of an Answer, Respondent filed a motion to dismiss on October 19, 2021.10 

Following oral argument on that motion, the Court ruled that IBT was permitted to 

file an amended petition to attempt to conform its Complaint in accordance with the 

requirements for such a writ. IBT filed its Amended Complaint on January 13, 

2022.11 Following the filing of the Amended Complaint, Respondent filed the 

instant Motion to Dismiss and costs pursuant to Superior Court Civil Rule 12(b)(6) 

on January 20, 2022.12 On February 28, 2022, the Court held oral argument and took 

the matter under advisement.13 

Based upon arguments presented at the February 28 hearing, the Court 

requested further briefing from counsel on March 1, 2022, regarding the rules and 

regulations of PERB and whether a breach of those rules and regulations impacts 

this Court’s decision on the motion.

14 On May 24, 2022, IBT informed the Court 

about a Town of Delmar resolution to recognize its status as a public employer under 

POFERA.15 The Court permitted the parties to submit their respective positions on 

the resolution to the extent they deemed it relevant to the pending motion.

16

 On June 

2, 2022, Petitioner filed its “Position in Light of Respondent Delmar Delaware’s 

Resolution 2022-05-23.”17 This filing details that the Town of Delmar, Delaware, 

9 D.I. 1

10 D.I. 7

11 D.I. 21-22

12 D.I. 23. Although the motion is titled “Respondent’s Motion to Dismiss Amended 

Complaint for Writ of Certiorari and to Quash Summons,” IBT voluntarily withdrew its 

notice of deposition on November 7, 2021. D.I. No. 15. Accordingly, the Court will 

treat Respondent’s motion solely as a motion to dismiss. 

13 D.I. 26

14 D.I. 28

15 D.I. 34

16 D.I. 35

17 D.I. 36
5

recognized that the amended Title 19, Section 1602 of the Delaware Code mandates 

a finding that Respondents is a “public employee,” thus subjecting it to the 

jurisdiction of the PERB. The Town of Delmar Police Department responded on 

June 7, arguing that the status of this resolution does not change the posture of the 

challenge to the writ.18

III. STANDARD OF REVIEW

“Under Superior Court Civil Rule 12(b)(6), the legal issue to be decided is, 

whether a plaintiff may recover under any reasonably conceivable set of 

circumstances susceptible of proof under the complaint.”19 Under that Rule, the 

Court will:

(1) accept all well pleaded factual allegations as true; (2) 

accept even vague allegations as “well pleaded” if they 

give the opposing party notice of the claim, (3) draw all 

reasonable inferences in favor of the non-moving party, 

and (4) not dismiss the claims unless the plaintiff would 

not be entitled to recovery under any reasonably 

conceivable set of circumstances.20

“If any reasonable conception can be formulated to allow Plaintiffs’ recovery, 

the motion must be denied.”21

A writ of certiorari is derived from common law and permits “a higher court 

to review the conduct of a lower tribunal of record.”22 Delaware law is clear that a 

petition for writ of certiorari is “not a substitute for, or the functional equivalent of” 

18 D.I. 37

19 Vinton v. Grayson, 189 A.3d 695, 700 (Del. Super. Ct. 2018) (quoting Superior Court 

Civil Rule 12(b)(6)).

20 Id. (quoting Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 

531, 535 (Del. 2011)).

21 Id. (citing Cent. Mortg. Co., 27 A.3d at 535).

22 Christiana Town Ctr., LLC v. New Castle Cty., 865 A.2d 521, at *2 (Del. 2004) (citing 

Shoemaker v. State, 375 A.2d 431, 436-37 (Del. 1997)).
6

a direct appeal.23 Superior Court cannot review the lower tribunal’s factual findings, 

weigh evidence, or consider the case on its merits.24 Review is strictly limited in 

scope to determine if the decision was either manifestly contrary to the law or the 

result of a procedural irregularity.25 This Court must undertake a disciplined and 

constrained review in considering a petition for writ of certiorari.

26

IV. DISCUSSION

The Town of Delmar Police Department argues that the Amended Petition

fails to state a claim upon which relief can be granted because the relief IBT seeks 

is beyond this Court’s scope of review under a certiorari proceeding. Respondent

contends that IBT’s Amended Petition fails to contain any factual allegations 

asserting how PERB failed to satisfy this Court’s limited standard of review. IBT 

claims that the Amended Petition sufficiently states a claim upon which relief can 

be granted. 

The Delaware General Assembly has not provided a right of appellate review 

from PERB decisions regarding bargaining unit determination27 or certification of a 

bargaining representative.

28

 As a result, IBT seeks relief under a writ of certiorari. 

To obtain certiorari review, petitioners must satisfy two threshold requirements—

the lower tribunal’s decision must be final and no alternative basis for review 

exists.29 The reviewable record in certiorari proceedings is “limited to the complaint 

initiating the proceeding, the answer or response (if required), and the docket 

entries."30 Based on the limited record, the reviewing court may only consider 

23 Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1213 (Del. 2008).

24 Id. at 1031. 

25 Black v. New Castle County Board of License, 117 A.3d 1027, 1029 (Del. 2015).

26 Id.

27 19 Del. C. § 1610

28 19 Del. C. § 1611

29 Maddrey, 956 A.2d at 1213.

30 Id. at 1216.
7

whether the lower tribunal (1) exceeded its jurisdiction; (2) committed errors of law; 

or (3) proceeded irregularly.31 “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.”32 In addition, courts 

will reverse on the grounds of irregular proceedings if “the lower tribunal failed to 

create an adequate record to review.”33

As a preliminary matter, the Court finds that IBT has met the threshold 

requirements to permit certiorari review. The decision before the full Board was 

final and no other basis for review exists.34 Thus, to survive dismissal, IBT must 

allege that the PERB exceeded its jurisdiction, committed errors of law, or proceeded 

irregularly under any reasonably conceivable set of circumstances. 

A. Errors of Law 

To support its claim that PERB committed errors of law, IBT advances the 

same arguments that were raised, considered, and decided by the Executive Director 

in its May 17, 2021, decision. Specifically, IBT claims that PERB failed to find 

whether:

(a) the dissolution of the Police Commission does not 

vitiate the prior decisions?

(b) The funding source does not impact the computation 

of numbers of full-time employees under the definition of 

a public employer? 

(c) the inclusion of all Delmar Police Officers in the 

Delaware County and Municipal Police/Firefighter 

Pension Plan for Police Officers does not make Delmer 

DE a public employer under [POFERA]? and/or 

31 Christiana, 865 A.2d at *2. 

32 Id.

33 Id.

34 Although the General Assembly has provided a specific right of appeal to the Court of 

Chancery for PERB decisions under 19 Del. C. §§ 1608, 1615, no such right exists for 

decisions under 19 Del. C. §§ 1610, 1611, which are at issue here. See 19 Del. C. § 

1609(a).
8

(d) Delmar, DE cannot avoid its statutory mandates by 

entering into an agreement with another entity?35

Although IBT’s claims may have merit upon a direct appeal; before the Court

is a writ of certiorari. As such, this Court cannot consider the factual findings, 

evidence, or merits of the decision below.36 Reversible errors of law under certiorari 

review are not equivalent to errors of law on direct appeal. In a certiorari

proceeding, the reviewing court may only reverse for an error of law if the lower 

tribunal proceeded illegally or manifestly contrary to law.37 IBT makes no such 

allegations in its Amended Petition. Instead, IBT requests that the Court review the 

same questions presented to PERB and evaluate the merits of the Board’s decision. 

As a result, IBT’s requested relief exceeds the Court’s limited authority on certiorari 

review. 

In its opposition to the motion to dismiss, IBT contends that the September 

10, 2021, amendment to POFERA represents an intervening change of law in its 

favor. The POFERA amendment explicitly states that “Public employer or employer 

includes the Town of Delmar, Delaware.”38 IBT maintains that the amendment 

renders PERB’s decision as an error of law apparent on the face of the record. 

Notwithstanding that IBT failed to allege this avenue of relief in its Amended 

Petition, the change of law became effective after PERB’s final decision,

39 the 

record before the Court on certiorari review is limited to the complaint, the answer 

or response, and the docket entries below.

40

 To consider an intervening change of 

35 Am. Compl. ¶ 29, Jan. 13, 2022 (D.I. 22).

36 Black, 117 A.3d at 1031. 

37 Christiana, 865 A.2d at *2.

38 19 Del. C. § 1602(13)b. 

39 See Am. Compl., Ex. G (hereinafter “PERB Appeal Decision”) at 3 (“[PERB’s] scope of 

review is limited to the record created by the parties and consideration of whether the 

Executive Director’s decision is arbitrary, capricious, contrary to law, or unsupported by 

the record.”) (emphasis added). 

40 Maddrey, 956 A.2d at 1216.
9

law on certiorari review would require this Court to exceed its narrow scope of 

review.

Likewise, the passage of the recent resolution No. 2022-05-23 similarly does 

not allow the Court’s review. This resolution, which formally recognized the Town 

of Delmar, Delaware Police Department as a “public employer” and consequently 

subjects it to the jurisdiction of the PERB, effectively paves the way for a successful 

collective bargaining petition being filed going forward by IBT. However, this 

Resolution does not create an error of law committed by the PERB. Additionally, 

because these two developments – the change of law and the Town’s Resolution –

both came into effect after the PERB’s decision, it cannot be said that the decision

was based upon an error of law. At the time of the decision, the law was as the 

PERB stated it was: the Town of Delmar Police Department was not a “public 

employer” under the Code’s definition. The fact that this has changed does not make 

the PERB’s decision erroneous at the time it was made. Accordingly, there are no 

reasonably conceivable circumstances under which IBT may seek review on its 

claim for error of law.

B. Irregularity of Proceedings 

Petition argues that because the initial decision of the Executive Director was 

made untimely, that an irregularity of the proceedings occurred, allowing for a grant 

of certiorari. Respondent disagrees. Rule 7.2 of PERB’s Rules & Regulations states 

“[w]ithin thirty (30) days after the close of the record, the Executive Director shall 

issue a decision.”41 Even accepting that the record closed on June 14, 2020, when 

the final email sent from counsel was received,

42 the initial decision was not issued

41 19 Del. Admin. C. §3002-7.2. 

42 Compare Petitioner’s Supplemental Mem. at 4-6, Mar. 14, 2022 (D.I. 32) (indicating IBT 

“believes” the record closed on April 27, 2018); with Respondent’s Letter at 4-6, Mar. 14, 

2022 (D.I. 33) (noting that the PERB accepted emails from counsel on June 14, 2020).
10

until May 17, 2021—337 days later. While it clearly appears that PERB did not 

strictly follow its own rules, the Court finds that this delay does constitute an 

“irregularity of the proceedings” that would allow a grant of certiorari.

On certiorari review, reversible procedural irregularity hinges on whether the 

lower tribunal “failed to create an adequate record for review.”43 “The record is 

adequate if it includes a fair statement of the conclusions of the lower tribunal as 

well as the material facts to show the grounds for those conclusions including the 

legal standard the tribunal applied.”44 The timing of this initial decision has no 

relation to the adequacy of the record in this case. As a result, a grant on this basis 

“would disregard the appropriate standard of certiorari review.”45

V. CONCLUSION

The Delaware Supreme Court stated, “it is always tempting for a court, 

including our own, to stray from the disciplined contours governing a petition for 

writ. But to do so undermines the General Assembly’s authority to determine which 

administrative agencies are subject to direct appeal and which are not.”46 The Court 

recognizes that considering the amendment to POFERA and the recent resolution, 

IBT’s core claim that the Town of Delmar is now within PERB’s jurisdiction is a 

persuasive argument. However, the Court cannot grant the relief IBT seeks upon a 

writ of certiorari.

47

43 Maddrey, 956 A.2d at 1214.

44 Black v. New Castle Cty. Bd. of License, 2014 WL 4955183, at *5 (Del. Super. Ct. Sept. 

26, 2014).

45 Black, 117 A.3d at 1033.

46 Id. at 1032.

47 While the Court cannot grant the relief requested given the standard of review, the Court 

recognizes that IBT may once again re-file its Petitions before the PERB, with the 

amendment to POFERA on its side. The Court hopes that the PERB, however, issues a 

more timely decision so as not to create potential for any irregularities in any future 

proceedings. 
11

For the foregoing reasons, Defendant’s motion to dismiss is GRANTED. 

The Court will award reasonable costs incurred by Respondent in accordance 

with Superior Court Civil Rule 54(d) and 10 Del. C. § 5101. Any request for an 

award of attorney’s fees, is denied.48 Respondent is to submit any such request 

within twenty (20) days to the Court. Petitioner thereafter has twenty (20) days to 

respond.

IT IS SO ORDERED.

 /s/ Danielle J. Brennan 

Danielle J. Brennan, Judge

48 Casson v. Nationwide Ins. Co., 455 A.2d 361, 369 (Del. Super. 1982).