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PENNYPACK WOODS HOME OWNERSHIP ASSOCIATION v. PAUL DAHLBERG (11/21/79)

decided: November 21, 1979.

PENNYPACK WOODS HOME OWNERSHIP ASSOCIATION, APPELLANT
v.
PAUL DAHLBERG, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Pennypack Woods Home Ownership Association v. Paul Dahlberg, No. 4299 January Term, 1974.

COUNSEL

Edward I. Swichar, with him Wexler, Weisman, Maurer & Forman, P.C., for appellant.

David C. Harrison, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 47 Pa. Commw. Page 381]

This is the appeal of Pennypack Woods Home Ownership Association (Association) from a final judgment entered against it in the Court of Common Pleas of Philadelphia County after trial before a judge without a jury of the Association's suit in ejectment against the appellee, Paul Dahlberg. The Association is a nonprofit corporation which owns a housing development in Northeast Philadelphia. The development was constructed by the United States of America as defense housing pursuant to the Lanham Act, 42 U.S.C.A. ยง 1521 et seq. Paul Dahlberg was a member of the Association and as such he and his family were entitled to occupy one of the dwelling units at the low monthly charge of $139. The Association

[ 47 Pa. Commw. Page 382]

    has purported to revoke Dahlberg's membership with the effect of terminating his right to occupy a unit in the development.

This litigation has been protracted. In July 1973 the Association assertedly revoked Dahlberg's Home Security Policy and thus his right to occupy his unit; in January 1974 the Association brought this suit in ejectment; in October 1975 summary judgment for the Association was entered in the Court of Common Pleas; in October 1976 the Commonwealth Court affirmed this judgment per curiam; and in February 1976 the Pennsylvania Supreme Court per curiam vacated the Commonwealth Court order and remanded the case to the court of common pleas "to be heard on the merits". The case was tried on the merits in January 1978 and the final order entered in September 1978. The summary judgment entered below and vacated by the Pennsylvania Supreme Court was founded on the Association's assertion that Dahlberg was not entitled to judicial relief because he had failed to exhaust his remedies provided in the By-Laws of the Association by not appealing from the Board of Directors' action revoking his membership to the Association's general membership. At the trial, the able judge presiding considered the Association's renewed contention that Dahlberg had failed to exhaust his By-Law remedies and rejected it because the procedures by which the Board of the Association purported to revoke Dahlberg's membership had, in her opinion, denied Dahlberg's procedural due process rights and, in addition, constituted violations of By-Laws provisions.

The Association on the occasion of this appeal again raises the issue of Dalhberg's asserted failure to exhaust his By-Law remedies. This contention is clearly now ineffective. First, the Pennsylvania Supreme Court's remand for a trial on the merits seems

[ 47 Pa. Commw. Page 383]

    to be an implicit rejection of the Association's position. Second, we are satisfied from our own examination of the record that the Association's failure to conform to the By-Law procedures in revoking Dahlberg's membership robbed that action of any effectiveness.

The Association devotes much of its brief and argument in this appeal in contesting the trial judge's conclusion that Dahlberg had procedural due process rights. While we are inclined to agree with the learned trial judge that the connection of the Association with the United States and other circumstances provided a valid basis for the assertion of such rights, our examination of the record convinces us that the Board of Directors ...


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