1

THE SUPERIOR COURT OF THE STATE OF DELAWARE

) INTERNATIONAL BROTHERHOOD OF ) TEAMSTERS LOCAL 326, ) COMPANY, )

P etitioner
, )

v. ) C.A. NO. N21C

- 08

- 211 DJB ) TOWN OF DELMAR POLICE ) DEPARTMENT, )

Responden t. )

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 1 5
, 2022

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

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

Brennan, J.2

I. I NTRODUCTION

This dispute arises from the Delaware Public Employment Relations Board’s (hereinafter “PERB” or t he “Board” ) denial of International Brotherhood of Teamsters Local 326’s (hereinafter “IBT”) petition s 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 a n Executive Director of the Board, who i ssued 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 a mended petition for writ of certiorari

. For the reasons set forth below, Respondent’s motion is GRANTED

.
II. B ACKGROUND

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 servic es, 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” 3 a 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.

O n December 11, 2017, IBT filed a petition for “Bargaining Unit
Determination” 4 and “Certification of Exclusive Bargaining Representative” 5 seeking to represent the labor interests of police officers employed by the Town of
Delmar Police Department

. In a ccordance with the allotted procedure, a n 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, th e 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, o n June 22, 2021, th e 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
deni ed 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 t o file an amended petition to attempt to conform its Complaint in accordance with the requirements for such a writ. IBT filed its A mended Complaint on January 13,
2022. 11 Following the filing of the Amended Complaint
, Respondent filed the
instant Motion to D ismiss 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 argume nts 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 J une 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 volunta rily 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. 365

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

I II

. S TANDARD OF R EVIEW
“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

- movi ng 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 denie d.” 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 o f”

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 R eview 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 Th is Court must undertake a disciplined and constrained review in considering a petition for writ of certiorari

. 26

I V. D ISCUSSION
The Town of Delmar Police Department argues that the A mended 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 A mended 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 de cisions regarding bargaining unit determination 27 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 tribu nal’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 c ontrary 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 pe rmit 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 def inition 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 error s of law under certiorari
review are not equivalent to error s 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 A mended Petition

. Instead, IBT requests that the Court review the

same q uestions 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 m otion to d ismiss, 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 P ERB’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 A mended 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 recognize d the Town of Delmar, Delaware Police Department as a “public employer” and consequently subject s it to t he 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 the se two devel opments

– 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 De lmar 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. Irregularit y 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 cer tiorari . 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 d ecision was not issued

41 19 Del. Admin. C. §3002

- 7.2. 42 Compare Petitioner’s Supplemental Mem. a t 4

- 6, Mar. 14, 2022 (D.I. 32) (indicating IBT “believes” the record closed on April 27, 2018) ; with Resp onden t ’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 Ma y 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 i ncludes 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 th is 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. C ONCLUSION

T he Delaware Supreme Court stated, “it is always tempting for a court, including our own, to stra y 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 B lack 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 d enied. 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. Brenna n Danielle J. Brennan, Judge

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