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BARROWS DUNHAM v. TEMPLE UNIVERSITY COMMONWEALTH SYSTEM HIGHER EDUCATION (03/13/81)

filed: March 13, 1981.

BARROWS DUNHAM, APPELLANT,
v.
TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, THE MEDIUM TEMPLE UNIVERSITY AMBLER CAMPUS AND JORDAN GOLLUB



No. 1531-32, 1738, & 1958 OCTOBER TERM, 1979, Appeals from the Orders of the Court of Common Pleas of Montgomery County, at Nos. 78-21687 and 79-14106

COUNSEL

Edwin P. Rome, Philadelphia, for appellant.

Oliver C. Biddle, Philadelphia, for appellees.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 288 Pa. Super. Page 525]

A Motion for Judgment on the Pleadings in a civil action for libel has been granted by the Trial Court because of appellant's failure to file a brief in opposition to the Motion within the 30-day period required by Rule 302(d) of the Rules of Civil Procedure of the Montgomery County Court

[ 288 Pa. Super. Page 526]

    of Common Pleas. A Motion for Reconsideration and a Motion to Open or Strike the Judgment were denied. A subsequent Complaint, filed while the Motion for Reconsideration was pending and reiterating the same cause of action for libel, was dismissed as res judicata. Each ruling has been appealed and the appeals have been consolidated for argument. We affirm them all for the reasons hereinafter explained.

Neither we nor the Trial Court has passed upon the merits of the allegations of libel set forth in the Complaint. It was filed by appellant, Barrows Dunham, a former member of the faculty of Temple University, against the University, the campus newspaper (The Medium), and a Temple undergraduate (Jordan Gollub). Barrows was a member of the Temple faculty from 1937 to 1953, when he was discharged for "intellectual arrogance" and "misuse of the Fifth Amendment," following his refusal to testify before the House Unamerican Activities Committee. The heart of the Complaint is the charge that on September 28, 1978, the newspaper published a letter written by Gollub in which Gollub expressed the view that appellant was "a traitor" for having been an active member of the Communist party from 1938 to 1945, and that he had been discharged from the University for "treason".

Gollub's published letter, headed "Another View", was written in response to an editorial and a student interview with appellant, both published in the preceding issue of the school paper. In the interview, the appellant described his activities and beliefs as a member of the Communist party from 1938 until 1945, and his experience with the House Unamerican Activities Committee in 1953. The accompanying editorial spoke approvingly of the appellant and expressed support for a proposal that he be restored to favor by being voted a professor emeritus of the University. The appellees defend publication of Gollub's letter as a commentary on the articles which preceded it, protected by the First Amendment.

[ 288 Pa. Super. Page 527]

On May 23, 1979, appellees moved for Judgment on the Pleadings and contemporaneously filed a memorandum in support of their Motion. Appellant did not file a respondent's Brief until June 27, 1979, this being five days more than the 30-day period mandated by the Trial Court's local Rule of Civil Procedure 302(d). The Court Administrator advised the Trial Court of this default, and on June 28, 1979, the Trial Court on its own Motion entered an Order granting appellee's Motion for Judgment on the Pleadings because of appellant's failure to comply with the rule.

On July 3, 1979, appellant filed a Motion for Reconsideration, and on July 9 a Motion to Open or Strike the Order of June 28. On July 18, the Court entered an order dismissing the Petition to Open or Strike, and on August 13 it issued an Order denying the Motion for Reconsideration. On July 23, 1979 appellant filed a second civil Complaint alleging the same libel and differing in its averments in no significant respect from the original Complaint. The Court dismissed the second Complaint as res judicata, by an Order dated August 20, 1979. The appeals from all four Orders have been consolidated, inasmuch as the application of Rule 302(d) is the controlling issue in each Order.

Rule 302(d) was adopted in its present form by the Court of Common Pleas of Montgomery County by Orders dated January 8 and January 29, 1979, to become effective March 1, 1979. It provides:

302(d) Briefs required -- Submission of briefs or memoranda of law may be made by counsel to the Judge scheduled to hear the argument prior to the time fixed for the argument, at the time of argument or, if requested by the Court, within such time as shall be fixed by the Judge hearing argument other than the demurrers, motions for summary judgment and in such other cases as the Court may direct. In those cases the moving party or parties shall file its brief within thirty (30) days of the date of filing of the demurrers, motions for ...


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