Border v. Grooms

Murphy, C. J., delivered the opinion of the Court. This appeal involves an eighty-four acre tract of land in Allegany County, located approximately six miles west of Cumberland at the intersection of Vocke and Winchester Roads in LaVale, Maryland. The LaVale Zoning Board, on appellants’ petition, changed the zoning classification of the property from Residential A and Rural Residential to Commercial A, thereby making possible the proposed construction of an enclosed shopping mall of approximately 500,000 square feet, accommodating over fifty stores. 1 The Board’s decision was premised on its finding, made after an evidentiary hearing, that there had been a substantial change in the character of the neighborhood since the original zoning in 1957. Appellees ¹⁰³ —property owners residing in the area of the subject property — appealed to the Circuit Court for Allegany County.

That court (Getty, J.) concluded that the rezoning was not justified because no legally sufficient evidence to establish a change in the character of the neighborhood had been adduced before the Board. The court reversed the Board’s decision and this appeal followed. I Appellants contend that Judge Getty erred in denying their Motion Ne Recipiatur to exclude appellees’ appeal to the Circuit Court for Allegany County, filed on the ground that appellees had failed to serve a copy of their Petition of Appeal upon the LaVale Zoning Board as required by Maryland Rule B2 e, which provides: “The appellant shall join with his order for appeal, or shall file with the clerk of the court, within ten days after filing the order, a petition setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought, and shall serve a copy thereof on the agency.” (Emphasis supplied.) The record discloses that by letter dated March 3, 1972, addressed to the Board’s office, appellees’ counsel notified the Board that its decision of February 14, 1972 granting the requested reclassification would be appealed to the Circuit Court for Allegany County. Appellees thereafter filed both their order and petition of appeal in the Circuit Court on March 6, 1972; the certificate of service appended to the order and petition of appeal specified that copies thereof had been mailed to Leslie Clark, attorney for the Board, on March 3, 1972 at his designated office address (not the address of the Board).

It was Clark’s testimony that he did not receive either the order or petition of appeal. Other testimony in the record from the secretary to counsel for appellees was to the effect that she typed both the order and petition of appeal and personally mailed a copy of each on March 3, 1972 ¹⁰⁴ in th& same envelope to the Board’s counsel at his office address. The secretary testified that she particularly remembered these events because her employer advised her of the importance and necessity of complying with the various notices required by the law. There was other evidence in the case showing that on March 16, 1972 the Board’s counsel notified all parties that the appeal had been filed.

In denying appellants’ Motion Ne Recipiatur, Judge Getty held, in effect, that personal service upon the Board of the petition of appeal was not required; that the appellees had filed their petition of appeal with the Circuit Court and certified that a copy had been served on the agency by service upon its counsel; and that the mailing of a copy of the petition to the Board’s counsel constituted “substantial compliance” with the provisions of the Rule. Implicit in Judge Getty’s opinion is his conclusion that the petition of appeal was in fact properly mailed to the Board’s counsel. Under Maryland law, such a finding raises a presumption that the petition “reached its destination at the regular time and was received by the person to whom it was addressed.” Kolker v. Biggs, 203 Md. 137, 144 , 99 A. 2d 743, 746 (Í953). See also Mohr v. Universal C.I.T. Credit Corp., 216 Md. 197 , 140 A. 2d 49 (1958); McFerren v. Goldsmith-Stern Co., 137 Md. 573 , 113 A. 107 (1921).

Clark’s testimony that he did not receive a copy of the petition did not, of course, conclusively rebut the presumption of its receipt; rather, it was merely evidence for the trier of fact to consider, together with the other evidence in the case, in determining whether a copy of the petition had been mailed to Clark, as specified in the certificate of service, and received by him. On the record before us, we cannot say that the balance struck by Judge Getty was erroneous. Appellants urge that even if a copy of the petition was served upon the Board’s counsel, the appeal to the Circuit Court nevertheless should have been dismissed ¹⁰⁵ under Maryland Rule B5 2 because Maryland Rule B2 e requires that a copy of the petition be served “on the agency” and service thereof upon counsel for the agency does not constitute compliance with the Rule. Rule B5 mandates dismissal of an appeal where the appellant “shall fail to file” either the order or petition of appeal “within the time prescribed” by the Rules, “unless cause to the contrary be shown.” In Volk v. Pugatch, 262 Md. 80 , 277 A. 2d 17 (1971), we approved the granting of a motion to dismiss where the appellant completely failed to file the petition of appeal required by Rule B2 e and also failed to transmit the record and testimony, as required by Rule B7 a.

In Salisbury Board of Zoning Appeals v. Bounds, 240 Md. 547 , 214 A. 2d 810 (1965), we reversed the lower court’s ruling refusing to dismiss an appeal where the appellants failed to file a petition of appeal setting forth the error committed by the agency until thirty days beyond the time prescribed for such filing by Rule B2 e. Both Volk and Bounds involved failure to file a petition of Appeal complying with the requirements of Rule B2 e; in each case, we noted that the Rule did not require a showing of prejudice to the adverse party as a prerequisite to dismissal of the appeal. In Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A. 2d 294 (1966), the petition was timely filed but failed to expressly allege that appellants were persons aggrieved by the Board’s order. We there held, in refusing to approve a dismissal of the appeal, that “[w]here there is compliance with the substance of the requirements of statutes or rules and the other parties have not been prejudiced, technical irregularities cannot be made the basis for depriving persons of the opportunity to assert their legal rights.” 245 Md. at 61 , 225 A. 2d ¹⁰⁶ at 299-300.

In Board of County Commissioners v. Kines, 239 Md. 119 , 210 A. 2d 367 (1965), it was claimed that the appeal was subject to dismissal because a copy of the order of appeal had not been served on the agency prior to its filing with the Clerk of the lower court, as required by Rule B2 c. After noting that the agency received a copy of the petition of appeal before the expiration of the time for appeal, and therefore had “full and timely notice” that its action was sought to be overturned, we ruled that there was “substantial compliance with the appeal procedures.” 239 Md. at 125 , 210 A. 2d at 371 . Appellees in the present case did not “fail to file” their order and petition of appeal “within the time prescribed” by the Rules; on the contrary, the order and petition were both filed with the Clerk of the lower court well within the time prescribed by Rule B2. The content of the petition of appeal fully complied with the requirements of Rule B2 e; indeed, a review of the petition shows that it sets forth, in extended detail, as required by the Rule, “the action appealed from, the error committed by the agency in taking such action, and the relief sought.” Three days prior to filing their order and petition of appeal, appellees notified the Board by letter sent to its office that an appeal would be taken from its decision granting the requested reclassification.

The Board’s counsel, who had appeared on its behalf at the zoning hearing, and upon whom a copy of the petition of appeal had been timely served, thereafter notified all other parties on March 16, 1972 — ten days after the petition was filed — that an appeal had been taken. It may be presumed that in affording such notification, as required by Rule B2 d, counsel was acting on the Board’s behalf. Plainly, therefore, this is not a case where the agency’s failure to receive a copy of the petition of appeal kept'it in darkness ; clearly, it had full and timely notice that its decision had been appealed and thus the real purpose of Rule B2 e was satisfied. In these particular circumstances, the lack of any prejudice being manifest, the failure of the ¹⁰⁷ appellees to serve a copy of their timely filed petition of appeal “on the agency,” as they did on the Board’s counsel, does not mandate dismissal of the appeal under Rule B5.

We think this case wholly unlike either Volk or Bounds where no proper petitions of appeal were ever timely filed; it is closer to Kines and Town of Somerset and while, because of the differing factual situation, it is not controlled by either of those cases, the substance of compliance with Rule B2 e, as in those cases, is wholly apparent. We, therefore, conclude that appellants’ Motion Ne Recipiatur was properly denied. II Appellants contend that the