Snyderman v. Pennsylvania Liquor Control Board
Opinion of the Court
This is an appeal from an order refusing to allow the Philadelphia School District to intervene in a statutory appeal involving the Liquor Control Board.
The district relies on Phila.Civ.R. 320(E) (“subpart (E)”), arguing it authorizes intervention via praecipe in any appeal so long as the would-be intervenor “entered an appearance in the proceedings before the agency [below].”
It is well-settled that a local rule authorizing “notice” appeals cannot trump a statutory command, like the one in the Liquor Code, that appeals “shall be” commenced by “petition.”
It is common ground that the district was entitled to appeal. If it had, I could have consolidated its appeal with Mr. Snyderman’s. If it had filed its praecipe before the appeal period expired, I could have invoked section 708 of the Judicial Code, 42 Pa.C.S. §708(a), and transformed it into a valid appeal.
Although intervention is not authorized, neither is it forbidden. Instead, it is one of several appellate subjects that are adrift, so to speak, in a procedural “void.” The Supreme Court is content, at least for now, to have trial judges fill such “voids.”
In short, if the district had asked, I could have granted intervention. Instead, it demanded to intervene “as of right,” got annoyed when I explained that such a right did not exist, declined my invitation to participate on a non-party basis, and stomped out of court just before the start of the (de novo) hearing on Mr. Snyderman’s appeal.
APPENDIX “A”
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NOTICE OF APPEAL
[Appellant] hereby appeals from the adjudication of [agency from which appeal taken] made on ,
19 at [calendar number, docket number, etc.] [See Philadelphia Civil Rules 325(B) and 330(B) for additional requirements, if applicable].
(Appellant or Attorney for Appellant)
Dated:
APPENDIX “B”
Mark J. Schwemler, Esquire Attorney I.D. No. 44544 Elliott Reihner Siedzikowski & Egan, PC. Union Meeting Corporate Center V 925 Harvest Drive Blue Bell, PA 19422 (215) 977-1000 Attorneys for Appellant, Rick Snyderman
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY Term, 1995
No. 95-07-SD-0169
RICK SNYDERMAN, Appellant, v. PENNSYLVANIA LIQUOR CONTROL BOARD and WORLD BEAT RESTAURANTS INC., Appellees.
NOTICE OF APPEAL
Appellant, Rick Snyderman, hereby appeals from the adjudication of the Pennsylvania Liquor Control Board made on July 10, 1995. A copy of the order appealed from is attached hereto.
/s/Mark J. Schwemler
DATED: July 28, 1995
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION
No. 95-07 SD-0169
Snyderman v. LCB, a state or local agency
STANDING CASE MANAGEMENT ORDER: OTHER AGENCY APPEALS
(1) Status conference: Your appeal has been assigned to me, and I have listed it for a brief conference on 9-19-1995, at 10 a.m., in courtroom “N,” 12th Floor, Wanamaker Building, 100 Penn Square East, Philadelphia, PA.
(2) Service:
(a) State agency: If you are appealing from an order of a state agency, you must serve a copy of your appeal papers upon (1) the agency that issued the order; and (2) any party who participated in the proceedings before that agency;
(b) Local agency: If you are appealing from an order of a local agency, you must serve a copy of your appeal papers upon (1) the agency that issued the order; (2) any party who participated in the proceedings before that agency;
(3) Continuances: No one is authorized to postpone this listing except me. A postponement request is not likely to be granted unless it is presented in advance of the conference and in open court after reasonable notice to opposing counsel. In an emergency, such a request may be made via telephone conferencing.
(A) Ancillary applications: Motions and petitions shall be presented in accordance with established practice under Phila.Civ.Rule 206.2. Ancillary applications may be presented as of course at the status conference. Other presentation dates may be obtained from the clerk, (215) 686-2907. In an emergency, ancillary applications may be presented via telephone conferencing.
(5) Unsolicited communications: I do not read unsolicited correspondence or accept ex parte telephone calls. If you need to communicate, kindly follow the procedures in paragraph 4.
(6) Standard for timely disposition: The court, as opposed to the parties, is responsible for the timely disposition of all cases, including appeals from administrative agencies. The court expects to dispose of 90 percent of its agency appeals within 180 days of filing.
(7) Additional instructions: If your appeal is not disposed beforehand, I will enter a scheduling order at the conclusion of the status conference.
BY THE COURT:
Date July 21, 1995
. Pennsylvania courts and commentators use the expression, “statutory appeal,” to describe a legislative grant of court access that is designed to facilitate judicial review of action taken by administrative bodies. See e.g., Erie Human Relations Commission ex rel. Dunson v. Erie Insurance Exchange, 465 Pa. 240, 245, 348 A.2d 742, 744 (1975); Comment, Judicial Review of Administrative Action in Pennsylvania: An Updated Look at Reviewability and Standing, 16 Duq. L. Rev. 201, 202 (1977-78).
. Mr. Snyderman lost his case and did not appeal. Consequently, the only matter for appellate review is the propriety of my order denying the District intervenor status.
. See memorandum (October 23, 1995) at 2. As a preliminary matter, the language quoted in the text does not appear in the body of subpart (E). Instead, it appears at the bottom of a form that is
. Section 4-464 of the Liquor Code, 47 P.S. 4-464, states: “[Schools within] three hundred feet of the [proposed premises], aggrieved by [a transfer decision] may take an appeal limited to the question of such grievance .... Such appeal shall be upon petition of the aggrieved party, who shall serve a copy thereof upon the board, whereupon a hearing shall be held upon the petition by the court . . . .” (emphasis added)
. Appellate courts are devoted to the maxim that whenever the legislature creates a remedy, the statutory requirements must be rigidly applied. For this reason, would-be litigants are routinely denied court access for inconsequential mistakes like labeling a paper a “notice of appeal,” as opposed to a “petition for appeal.” See e.g., Queen Village Neighbors Association Inc. v. Zoning Board of Adjustment,
. Former Rule 320 was titled, “zoning board,” and governed appellate practice under the ancient writ of certiorari. Former Rule 146 was adopted in 1981 and titled “administrative agency appeals.” It governed appeals involving the Local Agency Law and probably subsumed former Rule 320. See e.g., Queen Village Neighbors Association Inc., 132 Pa. Commw. at 405, 572 A.2d at 1324. Former Rule 146 was amended slightly and renumbered Rule 320 in February 1988.
. For historical (and political) reasons, LCB appeals were always regarded as “criminal” matters and, hence, entered the courthouse via tbe clerk of Quarter Sessions. See e.g., Appeal of Zatek, 99 P.L.J. 31, 33 (1951) (Pa.R.C.P. 209, which governs civil cases, has no bearing on LCB appeals since they are criminal matters heard by Quarter Sessions Courts). Although this arrangement was enshrined in the Judicial Code, 42 Pa.C.S. §2756(a)(2), I persuaded the clerk, a publicly elected official, to relinquish his jurisdiction, effective July 1, 1991. See 42 Pa.C.S. §2756(b)(2) (authorizing elected clerks to relinquish certain powers). Afterwards, LCB appeals were filed with the prothonotary and processed on the civil side of the court.
. It may be worth adding that Mr. Snyderman did not include any advice on intervention in the notice of appeal which he served on the district. See appendix “B.”
. See e.g., Albrechta v. Borough of Shickshinny, 129 Pa. Commw. 206, 212, 565 A.2d 198, 201 (1989) (improvident process filed after the appeal period has expired cannot be transformed into a valid appeal), appeal denied, 525 Pa. 620, 577 A.2d 891 (1990).
. In the area of zoning, the law is otherwise. See e.g, section 11004A of the Municipalities Planning Code, 53 Pa.C.S. §11004-A (authorizing intervention as of right within 30 days in zoning appeals, and thereafter, upon petition, pursuant to the Pennsylvania Rules of Civil Procedure); section 14-1807(2) of the Philadelphia Zoning Code (same, but not mentioning the statewide rules). Compare Phila.Civ.R. 325(D) (authorizing intervention via praecipe for persons who entered an appearance before the zoning board).
. See e.g., Industrial Terminal & Salvage Co. v. Borough of Industry, 140 Pa. Commw. 115, 118, 591 A.2d 782, 783 (1991) (“[BJecause this is a statutory appeal... the rules of civil procedure generally do not apply.... Therefore, use of the petition to intervene as a vehicle to gain participation in the litigation is inappropriate.”) (citations omitted); Appeal of Borough of Churchill, 525 Pa. 80, 87, 575 A.2d 550, 553 (1990) ("Churchill”) (statutory appeals are not “civil actions” and, hence, not governed by the statewide mies).
. See e.g., G. Ronald Darlington et al., Pennsylvania Appellate Practice §103:2 (2d ed. 1994) (“[T]he [appellate] rules are not applicable to procedures before a county court of common pleas. . . .”). See also, id. at §1531.3 & n.41 (“[T]he device of intervention may not be used as a substitute for the [filing of an appeal].”).
. See e.g., Standard Pennsylvania Practice §166:259 (2d ed. 1992) (“The Administrative Agency Law [does] not apply to any appeal from a Commonwealth agency which may be taken initially to the courts of common pleas under [section 933 of the Judicial Code, 42 Pa.C.S. §933].”).
. See e.g., Churchill, 525 Pa. at 89, 575 A.2d at 554 (authorizing trial judges to process statutory appeals on an ad hoc basis). See also, id. (explaining that the rules laid down by individual judges are not subject to Pa.R.C.P. 239). Only one justice presently favors uniform processing: “I believe the better approach would be to establish one [statewide] procedure, rather than to defer to [every] trial judge’s discretion.” Id. at 93, 575 A.2d at 556 (Zappala, J., concurring and dissenting).
. For a classic discussion of the power of decision and its rule-making implications, see Renzo D. Bowers, The Judicial Discretion of Trial Courts (1931). For an analogous discussion that receives more attention from commentators, see Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978).
. See appendix “C” (“ancillary applications”). I grant intervention in most cases because I rue administering justice on an assembly-line basis.
. See transcript (December 15, 1995) at 4-18.
Persons in this category must also be served with a copy of this order.
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