Volk v. Pugatch

McWilliams, J., delivered the opinion of the Court. On 25 June 1970 the County Board of Appeals of Baltimore County granted to the appellees a special exception for the construction and operation of a convalescent home subject to certain restrictions not now relevant. ⁸¹ On 15 July the appellants Volk, Smith and Plain (Volk) filed an order for appeal. On 24 July the appellant Century Convalescent Center, Inc. (Century), also filed an order for appeal. Both appeals were filed by the same attorney.

On 26 August the appellees moved to dismiss both appeals for failure to file the petitions required by Maryland Rule B2 e and for failure to transmit the record and the testimony as required by Rule B7 a. “[I]n fact,” the appellees added, “[they] have not even ordered said testimony to be transcribed.” The motions further added the representation that counsel for the appellees “telephoned counsel for the appellants to ascertain” the reason for the failure to file the petitions and the testimony and that he was told the “appellants” had failed “to advance the funds necessary therefor.” After a hearing on 14 September the trial judge, Jenifer, J.„ relying on Warmack v. Bradley Club, Inc., 242 Md. 394 (1966), and Salisbury Board of Zoning Appeals v. Bounds, 240 Md. 547 (1965), dismissed both appeals. Appellants, pointing out that the appellees had sustained no injury or prejudice as a result of their failure to comply with Rules B2 e and B7 a urge us to “take a, practical look at the Rules governing this case” and to use our “broad discretion” to give them their day in court. They say we held in Board of County Comm’rs of Prince George's County v. Kines, 239 Md. 119 (1965), and in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 (1966), that substantial compliance with the “rules in question” is all that is necessary. So we did but, as w@ shall see, they were other cruises.

Appellants admit, as indeed they must, that neither petition was filed within the ten days following the filing of the appeals. By a letter dated 27 July (ten days after the Volk appeal was filed) counsel advised Century that $900 would be required for his retainer and for transcribing the stenographic record and that the costs would be $16. There is in the transcript the affidavit of the proprietor of Century stating that on 28 July one check for ⁸² $900 was mailed to counsel and another for $16 to Baltimore County. Neither check was delivered and, for aught that appears in the record, neither was ever heard of thereafter.

No effort to obtain extensions of time appears to have been made. The testimony was not ordered from the stenographer nor was either petition ever filed. Appellants claim