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All hail John Morgan and Anthony Delcollo of Heckler & Frabizzio. They won at the Board and they won on appeal. Murphy v. Allen Family Foods, 12A-02-007, (Del. Super.) J. Brady, 1/23/2013. The issue is, where a claimant files a DCD Petition, withdraws it without prejudice, and then re-files it after the running of the 2 year statute of limitations of 19 Del. Code Section 2361, can the "saving statute" of 10 Del. Code Section 8118(a) provide relief?
The answer is no. The Superior Court on appeal of the Board's dismissal of the DCD Petition found that "the Board correctly interpreted and applied the saving statute." The exceptions to the statute of limitations enumerated by the saving statute provide relief for "procedural defects" and, as such, "voluntary withdrawal neither explicitly nor implicitly fits such criteria." It's that simple, folks.
Here are a few practice pointers to take from this:
• Beg, plead or grovel for a continuance instead of withdrawing the DCD.
• File the DCD and ask that the DOL hold it in abeyance while your evidence is being developed and then re-activate once you have your ducks in a row.
• Extract an agreement from your opponent that the withdrawal will not serve to create a SOL defense that does not already exist.
• If you cannot find a medical expert to support your claim, perhaps not file the DCD in the first place-not sure what the nature of the claim was in this particular case but it never bodes well when you have doctors telling you they will not testify.
• A little anal-retentiveness is not always a bad thing - especially when it comes to your diary system.
And on that note, I think I will go check out a few things with my paralegal......:>)
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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