CHAPTER 133

FORMERLY

SENATE BILL NO. 309

AN ACT CREATING "THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE": PRESCRIBING THE POWERS AND JURISDICTION OF SAID COURT: PROVIDING FOR THE APPOINTMENT, NUMBER AND TERM OF THE JUDGES OF SAID COURT, AND THE SALARIES AND PAYMENT OF THE JUDGES AND OTHER OFFICERS AND EMPLOYEES OF SAID COURT: PROVIDING FOR A SEAL AND RULES: PROVIDING FOR THE SERVICE OF PROCESS AND TRIAL PROCEDURES IN CIVIL AND CRIMINAL CASES: PROVIDING FOR THE TRANSFER OF CERTAIN CAUSES FROM THE SUPERIOR COURT TO THE COURT OF COMMON PLEAS: PROVIDING FOR THE VALIDITY OF CERTAIN JUDGMENTS WHICH MAY EXCEED THE JURISDICTION OF THE COURT: PROVIDING FOR THE DISPOSITION OF PENDING CASES IN THE COURTS OF COMMON PLEAS FOR THE RESPECTIVE COUNTIES: REPEALING CHAPTERS 13, 15 AND 16 OF TITLE 10, CHAPTERS 53, 55 AND 56 OF TITLE 11, DELAWARE CODE OF 1953, AMENDING SECTION 2701 OF TITLE 11, DELAWARE CODE OF 1953; PRESERVING EMPLOYEE RIGHTS, AND TRANSFERRING APPROPRIATIONS.

WHEREAS, the Court of Common Pleas for New Castle County, the Court of Common Pleas for Kent County and the Court of Common Pleas for Sussex County are distinct and separate entities; and

WHEREAS, there is a movement nationally to unify and reorganize the criminal and civil courts in order to provide speedier, more efficient, and better administration of justice ; and

WHEREAS, it would be to the best interest and welfare of the State of Delaware if the jurisdiction, policies, practices and procedures of these Courts were made uniform and consistent; and

WHEREAS, the establishment of a Court of Common Pleas for the State of Delaware with State-wide jurisdiction will accomplish the ends desired.

NOW, THEREFORE,

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the members elected to each branch thereof concurring therein):

Section 1. Amend Title 10, Delaware Code of 1953 by striking Chapters 13, 15, and 16 of said Title and inserting in lieu thereof a new Chapter 13 to read as follows :

CHAPTER 13. THE COURT OF COMMON PLEAS

FOR THE STATE OF DELAWARE

SUBCHAPTER I. ORGANIZATION AND OPERATION

§ 1301. Creation; designation

There is created for the State of Delaware a Court of Record to be known as 'The Court of Common Pleas for the State of Delaware' and hereinafter sometimes referred to in this Chapter as the 'Court'.

§ 1302. Judges; qualifications, residence

(a) There shall be four (4) Judges of the Court of Common Pleas, who shall be citizens of the State and shall have been actively engaged in the general practice of law in the State of Delaware for at least five (5) years. Two Judges shall be residents of New Castle County, one Judge a resident of Kent County and one Judge a resident of Sussex County. The Judge with seniority in service shall serve as Chief Judge and administrative head of the Court.

§ 1303. Appointment of Judges; term, vacancies, political representation, salary

(a) The Judges presently serving in the Court of Common Pleas for New Castle County, The Court of Common Pleas for Kent County and the Court of Common Pleas for Sussex County, respectively, at the time the Courts are merged by this Chapter, shall continue to serve as judges of this Court for the remainders of their present terms and until their successors are duly appointed and qualify. The enactment of this Chapter ratifies their respective appointments and confirmations as judges of this Court with state-wide jurisdiction. All further appointments of Judges of this Court from time to time hereafter shall be made by the Governor, by and with the consent of a majority of all the members elected to the Senate. Appointments, including appointments to fill vacancies which may occur during a term shall be for a term of twelve (12) years and until their successors are duly appointed and qualify. Seniority in this Court shall be calculated from the date of the judges original appointment to each respective Court of Common Pleas for the applicable county, any provisions to the contrary herein contained notwithstanding.

(b) Each Judge of the Court of Common Pleas shall receive annually as compensation for his services the sum of at least twenty-nine thousand dollars ($29,000.00), payable monthly in equal amounts by the State Treasurer out of the General Fund of the State. The Chief Judge shall receive an additional sum of five hundred ($500.00) dollars per annum.

(c) The Judges upon assuming their duties, shall not practice law during their terms of office.

(d) Appointments to the office of Judge of the Court of Common Pleas shall at all times be subject to the following limitations: At any time when the total number of Judges of the Court of Common Pleas shall be an even number, not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a majority of one of the members of all such offices shall be of the same political party.

§ 1304. Composition of Court of Common Pleas; quorum

(a) One Judge shall constitute a quorum of said Court and may open and adjourn any session thereof.

§ 1305. Places of holding Court

(a) The Court of Common Pleas shall be held:

(1) In New Castle County, at Wilmington;

(2) In Kent County, at Dover; and

(3) In Sussex County, at Georgetown.

§ 1306. Terms of Court

The designation and the duration of the terms of the Court of Common Pleas and the nature of the proceedings to be conducted at each such term, shall be determined as provided by the rules adopted for the Court.

§ 1307. Seals, rules of Court

The Judges of the Court of Common Pleas, or a majority of them, shall, for and on behalf of the Court of Common Pleas, adopt a seal, make and publish general rules regulating the practice and procedure therein and the keeping of its records, including a schedule of costs and fees and providing for such deposits as are deemed necessary.

§ 1308. Disposition of money

The fees, fines and costs received by the Court shall be paid to the State Treasurer, except as otherwise provided by statute.

SUBCHAPTER II. OFFICERS AND EMPLOYEES

§ 1309. Appointment of Clerks and Other Officers; terms; compensation

(a) The Judges of the Court of Common Pleas, or a majority of them, shall appoint competent persons from each County as Clerks for the Court in said County, and such other officers and employees in each County as in deemed necessary to perform the business of the Court.

() The Clerks, other officers and employees shall hold office at the pleasure of the Court.

§ 1310. Bonds of clerks

Each Clerk and Deputy Clerk of the Court of Common Pleas shall, before entering upon the duties of the office, give bond to the State in the sum of five thousand dollars ($5,000.00) with approved surety to faithfully perform and execute all the duties of his office during his continuance therein. The bond shall be approved by the Chief Judge. Should any Clerk or Deputy Clerk so appointed fail to give bond as required within thirty (30) days from the date of his appointment, the Court shall make a new appointment.

§ 1311. Powers and duties of clerks

(a) The Clerk of the Court in and for the County in which he is appointed to serve shall have the care of the records of the Court in and for said County, and the records of all proceedings had before the Court, and he shall receive all fees, fines and costs arising out of any proceedings had in the Court, or before any Judge thereof, and he shall pay the same over as in this Chapter provided.

(b) The Clerk may administer all necessary oaths; he shall enter the judgments, issue commitments and executions to enforce the same and make and keep the records of the Court in all cases therein under the direction of the Judges. He shall issue all process under his hand and the seal of the Court, signing such process by his title of Office and shall tax costs.

(c) The Clerk shall have such other duties as may be prescribed by Rule of Court, or by administrative direction.

§ 1312. Deputy Clerk; powers and duties

The Court may appoint a suitable person in each County to be Deputy Clerk, who shall hold such office at the pleasure of the Court and who during his tenure in said office, shall have, exercise and perform the powers and duties of the Clerk, when so instructed by the Court and shall perform such other duties as shall be assigned to him by the Court.

§ 1313. Scope of jurisdiction and process

The jurisdiction of the Court of Common Pleas shall extend throughout the State. Process may be issued out of each County, into each County.

§ 1314. Civil jurisdiction; amount in controversy

(a) The Court shall have jurisdiction in the State in all civil actions at law arising ex contractu or ex delicto, where the matter or thing in controversy, exclusive of interest, does not exceed the sum of three thousand dollars ($3,000.00).

(b) The amount claimed by the plaintiff, where the claim is for a sum certain and not in excess of three thousand dollars ($3,000.00), exclusive of interest, shall be conclusive as to jurisdiction of the Court.

(c) The Court shall have and may exercise the same jurisdiction and powers in all civil actions as is vested in Justices of the Peace for the several Counties.

(d) No counterclaims or cross-claims, as defined and provided by Rule of Court, shall be barred in any actions ex contractu or ex delicto which exceed the jurisdictional amount provided in the Section and any judgment rendered in favor of any such counterclaim or cross-claim which exceeds the sum of three thousand dollars ($3,000.00) shall be valid in all respects.

§ 1315. Causes transferred from Superior Court

The Court shall have jurisdiction to receive, hear, try and dispose of all such arguments, cases, matters and business as, by a certificate of a Judge of the Superior Court, may be assigned to it, pursuant to the Rules of the Court made for that purpose, provided they come within the jurisdiction of the Court of Common Pleas.

§ 1316. General Powers of Court

The Court of Common Pleas shall have all the powers of a court of record possessed by the Superior Court of the State of Delaware in the endorsement of its writs, rules, processes, the attendance of witnesses, the requiring of security for costs from non-residents plaintiffs, the production of documents, books and records and the production of all other necessary evidence.

§ 1317. Judgments and executions

(a) All civil judgments rendered by the Court of Common Pleas shall be entered in a Judgment Docket, which shall be properly indexed. The judgment shall not constitute a lien upon real estate, but a transcript thereof may be filed in the office of the Prothonotary in and for the County wherein the judgment was rendered upon motion made in the Court of Common Pleas by the judgment creditor in the judgment, and the Prothonotary shall enter in his Judgment Docket the names of the parties, the amount of the judgment, the name of the Court in which the judgment was recovered, the time from which interest runs, and the amount of the costs, with the true date of such filing and entry. The judgment, so transferred, shall, from that date, become and be a lien on all the real estate of the debtor in the County in the same manner and as fully as judgments rendered in the Superior Court as liens, and may be executed and enforced in the same manner as judgments of the Superior Court. If any judgment is lawfully assigned to a joint debtor or surety, the assignee shall have the benefit of this Section.

(b) Writs of execution for the seizure and sale of personal property based upon judgments obtained in the Court, shall be issued in the manner provided by law for writs issuing out of the Prothonotary's office in and for the respective Counties for the seizure and sale of personal property. The Court, may, by Rule of the Court made for that purpose, change the method of procedure.

§ 1318. Appeal in civil actions

From any order, rule, decision, or judgment of the Court in a civil action, the aggrieved party shall have the right of appeal to the Superior Court of the State of Delaware in and for the County in which the judgment was rendered in the same manner as is provided by law as to causes tried before Justices of the Peace, except that appeals to the Superior Court shall be reviewed on the record and shall not be tried de novo. The Superior Court shall have the power to make rules to carry the provisions of this Section into effect.

§ 1319. Civil trial without jury or referees

All civil cases tried before the Court shall be without a jury or referees.

§ 1320. Civil actions.

Demand for jury trials; waivers, removal to Superior Court

(a) Every person who commences a civil action in this Court shall, by virtue of such commencement, be deemed to have waived any right to trial by jury of the issues to which such person's original pleading is directed.

(b) Except as otherwise provided in this Chapter any party other than the party commencing the action may demand a trial by jury of an issue triable of right by a jury by serving upon the other parties a demand therefor in writing and depositing with the Clerk of the Court the amount necessary for the commencement of an action in Superior Court. Such demand shall be served and filed and the necessary amount deposited with the Clerk, not later than five (5) days after the service of the last pleading directed to such issue. The demand for jury trial may be endorsed upon a pleading of the party, provided it is typed or written on the first page of the pleading immediately following the caption of the case.

(c) The failure of a party to serve and file a demand for trial by jury or to deposit the necessary amount in accordance with the requirements of this section constitutes a waiver by him of trial by jury.

(d) Upon demand for trial by jury as provided in this section, the Clerk of the Court shall forthwith transmit all records in the matter and the amount necessary for commencement of an action in Superior Court to the Prothonotary of the County in which the action has been commenced. Following such removal, proceedings shall continue as though the action has been commenced in Superior Court.

§ 1321. Record

A verbatim record shall be kept of all evidence taken in the Court of Common Pleas.

§ 1322. Proceedings pending at time of effective date of this chapter; books, records and papers

(a) All suits, proceedings and matters pending, at the time this Chapter becomes effective, in the Courts of Common Pleas for New Castle, Kent and Sussex Counties, as heretofore constituted, shall be proceeded within the Court of Common Pleas for the State of Delaware hereby established and all the books, records and papers of the said Courts of Common Pleas as heretofore constituted, shall be the books, records and papers of the Court of Common Pleas hereby established.

(b) All informations, proceedings and matters of a criminal nature pending in the former Courts of Common Pleas for New Castle, Kent and Sussex Counties, respectively, at the time this Chapter becomes effective, and all books, records and papers of the said former Courts of Common Pleas for New Castle, Kent and Sussex Counties shall be transferred to the Court of Common Pleas for the State of Delaware hereby established, and the said informations, proceedings and matters pending shall be proceeded with to final judgment and determination in the said Court of Common Pleas hereby established."

Section 2. Amend §2701, Chapter 27, Title 11, Delaware Code, 1953, by striking subsections (b), (c) and (g) of said section and substituting in lieu thereof a new subsection (b) to read as follows:

"(b) The Court of Common Pleas for the State of Delaware shall have original jurisdiction over all misdemeanors alleged to have been committed in this State except where the Superior Court, Family Court, Justices of the Peace for the respective counties, and the Municipal Court of the City of Wilmington, respectively have concurrent or original jurisdiction as provided by statute.

The Municipal Court for the City of Wilmington shall have jurisdiction to hear, try, and finally determine all misdemeanors and violations alleged to have been committed in the City of Wilmington, except where jurisdiction over such offenses is vested exclusively in another court. The Municipal Court shall have sole original jurisdiction to inquire of, hear, try, and finally determine all offenses committed within the city against any of the laws, ordinances, regulations, or charter of the city. The jurisdiction conferred by this subsection includes concurrent jurisdiction with the Justices of the Peace in all cases in which the Justices have jurisdiction.

The Court of Common Pleas for the State of Delaware shall have concurrent jurisdiction over all misdemeanors alleged to have been committed in this State where the Courts of Common Pleas of New Castle, Kent and Sussex Counties have heretofore had jurisdiction."

Section 3. Amend Title 11, Delaware Code, 1953, by striking Chapters 53, 55 and 56 of said Title and substituting in lieu thereof a new Chapter 53 to read as follows :

CHAPTER 53. CRIMINAL PROCEDURE

§ 5301. General provisions

(a) The accused shall have the right to trial by petit jury in all criminal cases except as otherwise provided by statute. In any criminal case pending in New Castle County in which the defendant does not waive his right to a jury trial, the case and all records of the Court pertaining thereto shall be transferred to the Superior Court and the case shall continue upon information and without indictment, according to the same procedures applicable to cases originating in the Superior Court.

(b) The Court shall have the power to receive pleas of guilty from persons charged with misdemeanors and to impose sentence or probation according to law, as fully as is now done by the Superior Court.

() From any order, rules, decision, judgment or sentence of the Court in a criminal action, the accused shall have the right of appeal to the Superior Court in and for the County wherein the information was filed as provided in Section 28 of Article 4 of the Constitution of the State of Delaware. Such appeal to the Superior Court shall be reviewed on the record and shall not be tried de novo.

§ 5302. Rules of criminal procedure

(a) The Judges of the Court of Common Pleas, or a majority of them, may, from time to time, adopt and promulgate general rules which prescribe and regulate the form and manner or process, pleading, practice and procedure governing criminal proceedings in the Court of Common Pleas from their inception to their termination.

§ 5303. Election by accused to have case tried by court when proceedings brought before Justices of the Peace.

The accused, in all criminal cases where a Justice of the Peace in the County where the charge is brought has jurisdiction and power to hear and finally determine the matter, may elect at any time prior to day of trial to have the case tried by the Court of Common Pleas.

§ 5304. Contempt, issuance of process in aid of jurisdiction

The Court of Common Pleas may punish contempt and may issue all process necessary for the exercise of its criminal jurisdiction, which process may be executed in any part of the State.

§ 5305. Bail and commitment upon election to trial by Court

(a) In all those cases where, by the provisions of Section 5303 of this Title, the accused may elect to be tried by the Court of Common Pleas, if the accused elects to be tried by the Court of Common Pleas, the Justice of the Peace shall hold such accused under sufficient bail for a hearing or for his appearance at the Court of Common Pleas where the matter shall proceed as though originating in the Court of Common Pleas by information filed.

(b) In default of bail, the person accused shall be committed to the custody of the Department of Health and Social Services to await the session of the Court of Common Pleas.

§ 5306. Witness fees

(a) The witnesses attending the Court of Common Pleas in criminal cases shall receive the same fees as in the Superior Court.

(b) In criminal cases witness fees shall be taxed as part of the costs of such proceeding."

Section 5. All sums heretofore appropriated for the general operations of the Court of Common Pleas for New Castle, Kent and Sussex Counties, respectively, shall be transferred to and be made available to the Court of Common -Pleas for the State of Delaware.

Section 6. Employees of the Court of Common Pleas for New Castle, Kent and Sussex Counties, respectively, shall become employees of the Court of Common Pleas for the State of Delaware. No employee's compensation, retirement benefits or other employment right or benefit, now existing, shall be diminished in any way as a result of any provision of this Act. The retirement benefits or eligibility thereto of any former Judge of the Courts of Common Pleas for New Castle, Kent or Sussex Counties shall be unaffected by any provision of this Act.

Section 7. Acts or part of Acts inconsistent with this Act are repealed to the extent of such inconsistency only.

Section 8. This Act shall take effect thirty days after the enactment.

Approved July 3, 1973.