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decided: March 20, 1987.


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.


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 brief was invalid. See also DeAngelis v. Newman, 501 Pa. 144, 460 A.2d 730

[ 105 Pa. Commw. Page 32]

(1983). However, as a review of the rule indicates, local rule 302(f)*fn1 does not share the shortcomings of its predecessor 302(d) which was invalidated in Brogan. Rather, local rule 302(f) gives the trial court discretion to impose such sanction as the circumstances warrant. Therefore, this was not an automatic dismissal as was the case in Brogan.*fn2

[ 105 Pa. Commw. Page 33]

In the instant case, the trial court dismissed the appeal because it found that no excuse had been offered for appellant's failure to make a timely filing. The trial court concluded that mere inadvertence in failing to meet a filing deadline merited dismissal of the appeal. The trial court stated, "[i]n the absence of any showing of more than mere inadvertence of counsel, the Court was compelled to dismiss the appeal. . . ." Opinion at page 7.

Appellant has seized upon the word "compelled" to argue that this Court is faced with a local rule compelling dismissal as in Brogan. We do not agree. We cannot

[ 105 Pa. Commw. Page 34]

    conclude that the trial court's use of "compelled" transformed a discretionary action into a mandatory dismissal.

Appellant's stronger argument, and the argument underlying the Supreme Court's decision in Brogan, is that the trial court's application of local rule 302(f) violated the spirit of liberal construction set forth in Pa. R.C.P. No. 126, which states:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Put another way, the question before this Court is whether or not the trial court committed an "abuse of discretion" in dismissing this action rather than addressing the merits of the case.

Pertinent to this question is our Supreme Court's recently delivered opinion, Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), which echoes Justice Larsen's statements in Brogan that procedural rules are not to be exalted, but are means to an end and, therefore, must be consistent with the dictates of justice. The Court in Feingold stated:

This court's approach to the enforcement of procedural rules, whether local or state-wide, is dictated by the facts and circumstances in each individual case. To analyze otherwise would exalt procedural rules, which were created for efficiency and fairness, to a status far beyond their inherent power. 'It has been our policy to overlook . . . procedural errors when a party has substantially complied with the requirements of

[ 105 Pa. Commw. Page 35]

    the rule and no prejudice would result. "Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exaulted to the status of substantive objectives."'

Id. at 512, 517 A.2d at 1272 (quoting Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978)) (citations omitted).

In the instant case, however, there has been no substantial compliance with the requirements of the local rule. Appellant initially sought a special exception and was afforded a hearing before the Board. Appellant argued its case and lost. Thereafter, appellant took an appeal and, as the moving party, bore both the burden of production and the burden of proof in seeking to reverse the Board's decision. However, after taking this appeal, appellant took no further action for almost two years. Subsequently, the township intervened and filed a praecipe for argument. Appellant still failed to prosecute its appeal and, therefore, the trial court, in its discretion, dismissed the appeal.

The above does not indicate substantial compliance with the Rules of Civil Procedure. Therefore, Feingold would itself suggest that this is not a case where the dictates of justice require that the merits should be addressed.

Furthermore, this does not present the same sort of situation as was before the Court in Feingold. In Feingold, our Supreme Court concluded that a trial court had erred in refusing to permit a defendant to call a witness crucial to his case because the local rule called for all non-rebuttal or impeachment witnesses to be listed in appellant's pre-trial statement. The trial court had concluded that the witness to be called could not properly be considered a rebuttal witness. Therefore, since

[ 105 Pa. Commw. Page 36]

    he was not listed in appellant's pre-trial statement, the trial court refused to hear the witness' testimony. However, in the instant case, we are dealing with a local rule designed for the purpose of controlling the docket and providing for a rapid and just resolution of pending matters. This rule differs from a local rule which is not administrative in nature, and, thus, would have a greater impact upon the equities of the case, as in Feingold.

The Pennsylvania Superior Court in Alston v. Philadelphia Electric Company, 337 Pa. Superior Ct. 46, 486 A.2d 473 (1984), addressed itself to the question of when it is appropriate to reinstate a case which has been dismissed for failure to prosecute. This is, essentially, the same question before this Court.*fn3 The Superior Court in Alston catalogued the various instances in which the court had granted relief and concluded:

We acknowledge that a litigant is generally held to the representation provided by his chosen counsel. There are cases where delay caused merely by counsel's neglect have resulted in the court's refusal to deprive a litigant of his day in court. . . . A bare assertion of counsel's neglect, without more, will not mandate a second day in court.

Id. at 57, 486 A.2d at 478 (citations omitted) (emphasis added).

In the instant case, appellant offered no excuse for its failure to prosecute its appeal by filing a brief as required by local rule 302(f). For this reason, the trial court reasonably found that the circumstances called for

[ 105 Pa. Commw. Page 37]

    the most stringent sanction available and, in so doing, did not abuse its discretion.*fn4 Consequently, the dismissal must stand.

Since we have affirmed the trial court's dismissal due to procedural grounds, we shall not address the merits of appellant's claim. Accordingly, the trial court's dismissal of the appeal from the Board's decision is hereby affirmed.


And Now, this 20th day of March, 1987, the decision of the Court of Common Pleas of Montgomery County, dated May 30, 1984, in the above-captioned matter, is hereby affirmed.



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