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APPEAL LYNCH COMMUNITY HOMES (03/20/87)

decided: March 20, 1987.

IN RE: APPEAL OF LYNCH COMMUNITY HOMES, INC. FROM THE DECISION OF THE CHELTENHAM TOWNSHIP ZONING HEARING BOARD. LYNCH COMMUNITY HOMES, INC., APPELLANT


Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of In Re: Appeal of Lynch Community Homes, Inc. from the decision of the Cheltenham Township Zoning Hearing Board, No. 82-11200.

COUNSEL

Elias S. Cohen, for appellant.

Gilbert P. High, Jr., High, Swartz, Roberts & Seidel, for appellees.

Frank J. Laski, with him, Judith A. Gran, for Amicus Curiae, Association for Retarded Citizens, Pennsylvania.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 105 Pa. Commw. Page 30]

Lynch Community Homes, Inc. (appellant) applied for a special exception under Article VI, Section 601(1) and Article I, Section 100(15) of the Cheltenham Township Zoning Ordinance (ordinance) for the purpose of operating a community living arrangement which would accommodate three retarded individuals and a supervisor in a class "R-4" residential district. A hearing was held before the Zoning Hearing Board of Cheltenham Township (Board) on May 10, 1982, at which time testimony

[ 105 Pa. Commw. Page 31]

    was presented and exhibits entered into evidence. On June 21, 1982, the Board entered a decision denying appellant's application. (Decision of the Cheltenham Township Hearing Board, Appeal No. 1960).

Thereafter, on July 16, 1982, appellant took a statutory appeal to the Court of Common Pleas of Montgomery County (trial court). The case then remained inactive for almost two years until March 6, 1984, when the Township of Cheltenham intervened.

On April 10, 1984, counsel representing both the intervenors and the Board (appellees) filed a praecipe for argument in the zoning appeal. Appellant failed to file a responsive brief within the thirty (30) days allowed after the filing of a praecipe for argument under Montgomery County Local Rule of Civil Procedure 302(f). Therefore, on May 30, 1984, the trial court, sua sponte, dismissed the appeal, choosing the most severe of the discretionary sanctions available under the local rule. Appellant then filed a motion to vacate the order of May 30, 1984. The trial court dismissed this motion, and this appeal followed.

On appeal, appellant argues that the trial court committed an error of law or an abuse of discretion in dismissing the statutory appeal pursuant to local rule 302(f). Secondarily, appellant argues that the merits of the case, if reached, indicate that the Board's decision is contrary to the law and that a special exception should have been granted.

Appellant states that local rule 302(f) violates the Pennsylvania Supreme Court's dictate in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983), that a local rule mandating the automatic dismissal of an appeal for the late filing of a ...


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