Dunham v. Temple University of Commonwealth System of Higher Ed.
| Decision Date | 18 August 1981 |
| Citation | 432 A.2d 993,288 Pa.Super. 522 |
| Parties | Barrows DUNHAM, Appellant, v. TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, the Medium Temple University Ambler Campus and Jordan Gollub. |
| Court | Pennsylvania Superior Court |
Edwin P. Rome, Philadelphia, for appellant.
Oliver C. Biddle, Philadelphia, for appellees.
Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
VAN der VOORT, Judge:
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 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.
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 summary judgment, and such other cases as the Court may have directed; and shall file the same by giving three (3) copies of the brief to the Court Administrator's Office who shall stamp the same received, and by serving concurrently copies upon all other parties of record. The Court Administrator shall distribute to the Judge or Judges assigned to hear those matters a copy of said brief or briefs.
The responding party or parties, within thirty (30) days of the filing and service of the moving party's brief, shall likewise file three (3) copies of its brief with the Court Administrator's Office, who shall stamp the same received, and shall serve concurrently therewith copies upon all other parties of record. The Court Administrator shall distribute to the Judge or Judges assigned to hear those matters, a copy of said brief or briefs.
If the briefs of either the moving party or responding party are not timely filed within the period above stated, unless the time shall be extended prior thereto by the Court for good cause and reason shown, the Court Administrator shall notify the Court, and the Court shall, without further notice, mark the demurrer, motion for judgment on the pleadings, motion for summary judgment or such other matter as the Court may have directed, granted or dismissed, depending upon which party does not comply with the brief filing requirement of this rule. If neither party complies, the Court, at the time of argument and upon notification of joint compliance, shall impose whatever sanction it deems appropriate. In the case of multiple parties, the relief shall be granted or the action dismissed as appropriate to the position of the nonfiling party or parties. The Court Administrator shall notify the Judge or Judges to whom the argument has been assigned. There can be no extension of the time for the filing of briefs by agreement of counsel. (Emphasis added.)
The promulgation of this rule was widely advertised by the Court at the time of its adoption, as detailed in the Opinion of President Judge Lowe, speaking for the Trial Court. Appellant makes no claim that his counsel was unaware of the Rule.
The Rule is addressed to the timely filing of briefs in support of and in opposition to certain enumerated Motions. The sanction provided by the Rule is the grant or dismissal of whatever motion is pending before the Court at that time. The President Judge tells us in his Opinion that the effectiveness of the Rule is evidenced by the fact that from March 1, 1979, when it became effective, to and including September 8, 1979, two hundred sixty-two (262) Motions had been disposed of by application of the sanction mandated by the Rule.
The application of the rule to the matter before us was a granting of the pending Motion for Judgment on the Pleadings. In effect, appellant's Complaint was dismissed with prejudice for failure to provide the Court with sufficient material to enable it to render a decision on the issues presented.
The Rule requires the party responding to a Motion to file its brief with the Court Administrator's Office within thirty (30) days of the filing and service of the moving party's brief. In the situation before us, the appellee's brief in support of its Motion for Judgment on the Pleadings was filed on May 23, 1979. The appellant's brief in response was due on June 22, but was not received by the Court Administrator until June 27, five days late. The Administrator at once notified the Trial Court of the delayed filing and on June 28, it entered the first of its Orders in this case. The Court entered Judgment for the appellees because no responsive brief had been filed by the appellant within the 30-day period mandated by Rule 302(d). On July 3, 1979, appellant filed a Motion for Reconsideration, and on July 9 a Motion to Open or Strike the Judgment. In support of those Motions, he submitted an affidavit by one of his counsel to the effect that counsel filed appellant's brief on June 25 by leaving copies at the Prothonotary's Office at approximately 5:15 p. m. The Prothonotary's Office regularly closed at 4:15 p. m., so counsel slipped copies under the door of the Prothonotary's Office. They reached the Court Administrator, with whom they should have been filed, on June 27 and were so stamped by him. In a second affidavit, a secretary of the same law firm avers that copies of the brief were likewise served on counsel for the appellees on June 25.
Plainly, appellant did not meet the 30-day deadline mandated by the Rule. He offers three arguments in response: (1) that local Rule 302(d) is invalid because it is in conflict with Pa.R.C.P. 1034(b) and 1037(c); (2) that Rule 302(d) should not have been applied in this case because of irregularities in the filing of appellees' Praecipe for Argument; and (3) that, properly calculated, he was not late in filing his brief. We shall deal with each argument in turn.
Pennsylvania Rule of Civil Procedure 1034(b) provides:
The Court shall enter such judgment or order as shall be proper on the pleadings.
Rule 1037(c) provides:
In all cases, the court, on motion of a party, may enter an appropriate judgment against a party on default or admission.
It is appellant's contention that ...
To continue reading
Request your trial
-
McCarter v. Mitcham
...and parties to the action; and (4) an identity of the quality or capacity of the parties suing or sued. Dunham v. Temple University, 288 Pa.Super. 522, 534, 432 A.2d 993, 999 (1981). For relitigation to be precluded, Pennsylvania law requires that the prior determination be "on the merits."......
-
Day v. Volkswagenwerk Aktiengesellschaft
...187, 190, 208 A.2d 786, 787-788 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965); Dunham v. Temple University, 288 Pa.Super. 522, 534, 432 A.2d 993, 999 (1981); Notoro v. Hyer Estate, 239 Pa.Super. 10, 14, 361 A.2d 766, 768 (1976). "The doctrine of res judicata applies ......
-
Hillgartner v. Port Auth. of Allegheny Cty.
...claim is a final judgment on the merits. Res judicata precludes the same claim here. Dunham v. Temple Univ. of Commonwealth Sys. of Higher Ed., 288 Pa.Super. 522, 432 A.2d 993 (1981). Furthermore, Plaintiffs' state constitutional claim could have been raised in the federal action. Indeed, t......
-
Cole v. Finsel
...Co. v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Schultz v. City of Philadelphia, supra, 460 A.2d at 835; Dunham v. Temple University, etc., 288 Pa.Super. 522, 432 A.2d 993 (1981). The Court in In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 450-451, 477 A.2d 527 (1984) stated a court'......