author: Moore, J.,

text:
    AURELIO P. BENEDETTO v. BALTIMORE GAS AND ELECTRIC COMPANY
    [No. 418,
    September Term, 1975.]

      Decided January 30, 1976.

    The cause was argued before Moore, Lowe and Melvin, JJ.

      Weldon Leroy Maddox for appellant.

      Stephen J. Bosasco, with whom was James A. Biddison, Jr., on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The issues which we are here requested to decide are whether the failure to file a deposition precludes the use of excerpts from the deposition in support of a motion for summary judgment; and whether the trial court, after being presented with such excerpts, properly granted summary judgment under the doctrine of assumption of risk.

On March 20, 1974, appellant, Aurelio P. Benedetto, brought an action in the Superior Court of Baltimore City against appellee, the Baltimore Gas & Electric Company. He alleged that he sustained personal injuries caused by appellee’s negligence on October 22, 1971, when he fell while crossing “a small alley which joins with Charles Street,” near Lombard Street. Appellee had placed planks over mud and debris in the alley and appellant fell as he stepped on one of them.

Appellee filed a general issue plea and pleaded specially that appellant had been negligent and/or had assumed the risk of injury by stepping on the plank. Appellee thereafter took Mr. Benedetto’s deposition on May 20, 1974 and moved for summary judgment on November 14, 1974. Appended to appellee’s memorandum as exhibits in support of the motion were photo-copies of the following pages of appellant’s deposition, each of which (except sequential pages) was accompanied by the title page of the deposition showing the date, time and place, appearances of counsel and identity of the Notary Public and Reporter; pages 29-30, 35, 36, 27, 17, 18-19, 40, 15. These represented eight separate portions of appellant’s deposition urged upon the court as supporting the grant of summary judgment. The testimony included the following subject matter:

(a) That appellant observed a “whole lot” of people cross the same boards just in front of him, none of whom fell;

(b) That appellant himself had safely walked across the planks “at least 20 times before” and as.recently as that very morning;

(c) That appellant could not say “for sure if the plank tilted or slipped or I slipped on the plank”;

(d) That, although it might not have been as convenient, he could have gone another way;

(e) That there “might have been a certain amount of caution on my part stepping off onto a board ____I hesitated.”

On December 31, 1974 appellant filed a memorandum in opposition. In it he stated that the deposition “is not even before the Court at this time. Even if plaintiffs testimony is as described by the defendant, which the plaintiff vehemently denies, no case need be decided solely on the basis of a litigant’s testimony.” (Emphasis added.) Appellant himself made no answering affidavit. An affidavit of a witness, Thomas M. Rush, was filed, however, on February 7,1975.

I

Appellant does not contend that his deposition was improperly or irregularly taken. Without adverting to any of the Maryland rules pertaining to Depositions and Discovery, it is vehemently argued that the excerpts from his deposition were not “properly and legally” before the court below because the record did not contain his complete deposition, either the original or a copy. By the same token, the record before this Court, it is suggested, is deficient.

There is, to be sure, an applicable rule of procedure pertaining to the filing of depositions. Maryland Rule 411 b 2 makes it mandatory that a deposition be filed promptly, in the absence of a contrary stipulation. It provides, in pertinent part, that

“unless the parties otherwise agree [the officer] shall promptly file [the deposition] with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. ...” (Emphasis added.)

This rule is not, however, of a self-executing nature and if the deposition is not filed, there occurs an “error or irregularity” which, under Md. Rule 412 d, is waived in the absence of a timely motion to suppress. Rule 412 is designated “Error and Irregularity in Deposition” and subsection d reads as follows:

“d. As to Completion and Return of Deposition.
An error or irregularity in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer is waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.” (Emphasis added.)

Here, appellant made no motion to suppress and, therefore, any “error or irregularity” of which he complains has been waived.

At all events, we are constrained to venture two observations: First, a motion to suppress, had it been made, would have been unavailing. This deposition was appellant’s own, and both he and his counsel were fully aware of its contents. As the United States Court of Appeals for the Sixth Circuit stated in McVay v. Cincinnati Union Terminal Co., 416 F. 2d 853, 856 (1969) under circumstances not dissimilar to those which confront us here and with reference to F. R. Civ. P. 30 (f), which is virtually the same as Maryland Rule 411 b 2, supra:

“While appellant relies on the absence of prompt certification and filing under Rule 30 (f) . . . the failure of such prompt certification and filing should be of no controlling importance when the counsel for the party taking the deposition is fully aware of its contents. The failure promptly to file is harmless where the adverse party saw the deposition prior to trial. The knowledge of the contents of the deposition, when the objecting party had the deposition in his file and elected not to permit it to be certified or filed, nullifies the requirement of prompt filing under Rule 30 (f);.. .” (Emphasis added.)

Second, appellant was afforded a full opportunity to file opposing affidavits by order of Judge Murphy on January 7, 1975. He utterly failed, however, to make any attempt or request, see Md. Rule 413 a 4, to include any additional parts of his deposition which would support his opposition or “which ought in fairness to be considered with the part introduced.” Obviously, he cannot be heard to complain that his testimony was not “as described by the [appellee].”

II

As to appellant’s contention that the entry of summary judgment below was erroneous, we are not persuaded that any material fact was in dispute and we do not find error in Judge Murphy’s application of the law. Appellant argues that, notwithstanding his statement in the deposition that he could have taken another route across the alley, a dispute of fact arises out of the affidavit of Thomas M. Rush, Jr., who stated that “[t]he only way to go across the street was to walk on the boards.”

Assuming, arguendo, that Mr. Rush’s statement could be used by appellant to create a dispute, it would not be a “genuine dispute as to [a] material fact” under Maryland Rule 610. Burke v. Williams, 244 Md. 154, 223 A. 2d 187 (1966). In Burke, the plaintiff was delivering sink tops to a house then under construction. The only route by which the house could be entered was an inclined ramp made of two ten or twelve foot boards which crossed an excavation. Upon leaving the house the plaintiff slipped and fell off the walkway which was slippery with mud and slush caused by melting snow. The trial court directed a verdict for defendant homeowners on grounds similar to those assigned by the trial court to its award of summary judgment in the instant case.

Judge Horney, for the Court of Appeals, stated:

“On appeal, the appellant contends that there was sufficient evidence of primary negligence to take the case to the jury and that he had neither contributed to the accident nor assumed the risk of being injured. The appellees, on the other hand, besides claiming that no primary negligence was shown, argued that the plaintiff was guilty of contributory negligence or assumption of risk.
As we see it, it is not necessary for us to decide whether or not the case should have been submitted to the jury on the issue of primary negligence for even assuming there was primary negligence, it is clear that the appellant was not entitled to recover damages under the facts presented,
While the doctrines of assumed risk. and contributory negligence are similar in scope, they are not the same in that an assumed risk implies an intentional exposure to a known danger which may or may not be true of contributory negligence. People’s Drug Stores v. Windham, 178 Md. 172, 12 A. 2d 532 (1940). Also see Baltimore County v. State use of Keenan, 232 Md. 350, 193 A. 2d 30 (1963). We think the plaintiff in this case voluntarily assumed the risk of being injured. The rule is that when a plaintiff in a personal injury action becomes aware of a previously created risk and voluntarily chooses to put up toith the situation where as here a workman confronted with a slippery walkway nevertheless chose to use it then his willingness to take a chance is implied and he would be barred from recovering for a risk he chose to assume. See Prosser, Torts (1964 Ed.) Sec. 67; Restatement (Second), Torts Sec. 496.

In cases such as this one, where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed himself to a known danger, we have sustained the granting of a summary judgment or the direction of a verdict. See Evans v. Johns Hopkins University, 224 Md. 234, 167 A. 2d 591 (1961) and Finkelstein v. Vulcan Rail Co., 224 Md. 439, 168 A. 2d 393 (1961).

* * *

The appellant argues, however, that if he assumed the risk, it was not voluntary in that the appellees provided him with only one means of ingress and egress to and from the house and that the economic necessity of keeping his job and not being discharged for failure to deliver the sink tops forced him to involuntarily assume the risk of crossing the slippery walkway. The contention is clearly without merit because there is no evidence that the owners of the house, or anyone else, ever demanded that the appellant use the walkway against his will.” 244 Md. at 157-8. (Emphasis added.)

See, also, Craig v. Greenbelt Consumer Services, Inc., 244 Md. 95, 222 A. 2d 836 (1966); Duross v. Mayor & City Council of Baltimore, 136 Md. 56, 110 A. 98 (1920); Berzups v. H. G. Smithy Co., 22 Md. App. 157, 321 A. 2d 801 (1974).

In the instant case, where appellant could not legitimately argue that it was economically necessary that he cross the alley on the planks, it is clear that whether or not he had a selection of routes is immaterial. Even had he no options, as Rush’s statement suggests, his behavior in choosing to walk on the boards amounts to assumption of the risk as did plaintiffs behavior in Burke, supra. He assumed the risk by walking on the plank walkway, whether or not there was another means available.

With regard to the distinction between contributory negligence and assumption of the risk, the trial court here properly assigned appellant’s conduct to the latter category since appellant, while denying at one point in his deposition that he perceived any risk, went on to state that “there might have been a certain amount of caution on my part stepping off onto a board .... I hesitated.” He thus indicated that he was aware of the danger in the route which he followed and the court properly concluded that recovery was barred by his assumption of the risk. The case was properly decided pursuant to Maryland Rule 610. As the Court of Appeals stated in Chalmers v. Willis, 247 Md. 379, 385, 231 A. 2d 70 (1967):

“As in the case of contributory negligence, when the undisputed facts permit only one reasonable conclusion, we have approved the granting of a summary judgment or the direction of a verdict because we found, as a matter of law, that the plaintiff had assumed the particular risk.”

Judgment affirmed; costs to be paid by appellant.

      1. In the instant case, Judge Murphy wrote: “Plaintiff makes no allegations sufficient to make out a case of primary negligence as to the Defendant. Even if primary negligence of the Defendant is conceded, the law of Maryland would bar recovery by the Plaintiff on the theory of assumption of risk.”

      . See, Sacks v. Pleasant, 253 Md. 40, 251 A. 2d 858 (1969). Cf., Maryland Sales & Service Corp. v. Howell, 19 Md. App. 352, 311 A. 2d 432 (1973).


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    STILLMAN & DOLAN, INC. et al. v. THE CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF MARYLAND
    [No. 456,
    September Term, 1975.]

      Decided January 30, 1976.

      The cause was argued before Orth, C. J., and Thompson, Moylan and Menchine, JJ.

      Peter Parker, with whom were White, Page & Lentz on the brief, for appellants.

      Jaynes S. Hamasaki and Paul v. Niemeyer, with whom were J. William Sarver and Piper & Marbury on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

We hold in this appeal that the Court of Common Pleas in Baltimore City did not err in sustaining without leave to amend the demurrer of The Chesapeake and Potomac Telephone Company of Maryland (Telephone Company) to the declaration filed by Stillman & Dolan, individually and as agent for sixty-two other plaintiffs, “in their own behalf and on behalf of all other subscribers of [the Telephone Company] similarly situated” (Stillman).

The declaration, filed 12 October 1972, ^instituting an action in assumpsit for money payable by the Telephone Company to Stillman, contained four counts. The first three were the common counts. The fourth count set out the heart of the action. It alleged that the Telephone Company was a public service and telephone company as those terms are defined in Code, art. 78, § 2. 3As such, the Telephone Company operated a telephone communications system on a monopoly basis throughout Maryland under rules and regulations promulgated by the Public Service Commission (Commission). The Telephone Company had on file with the Commission tariffs providing certain maximum rates to be charged its customers for services specified in the tariffs. Pursuant to these tariffs, the narr declared the Telephone Company “agreed to provide services at the lowest rates obtainable between any two points within the State of Maryland or for the charges relating to the intra-state aspects of multistate telephone charges.” It asserted that Code, art. 78, § 26 “specifically prohibits [the Telephone Company] from charging, demanding or receiving from any person a greater or lower compensation than from any other person under substantially similar circumstances.” The declaration states that the tariffs filed provided “for certain specific charges to be applicable within the State of Maryland for those customers desiring to have direct toll-free calling privileges between their location within the State of Maryland and Washington, D. C. Such tarriffs apply for all direct toll-free calling to Washington, D. C. from all points within the State of Maryland with the exception of those areas within the State in the so-called Washington, D. C. metropolitan area which include Washington, D. C. within their local calling area. Such charges on a monthly basis are based on a mileage charge providing for a certain minimum charge for each line installed plus a mileage charge of $3.00 per mile for the first 25 miles of distance covered by such line and $2.10 per mile thereafter up to a distance of 100 miles.” The declaration further alleged that Stillman had been repeatedly overcharged for services with respect to tariffs relating to the installation and usage of direct toll-free calling lines to Washington, D. C. It declaimed:

“Pursuant to the requirements of the tariffs on file at the Public Service Commission of Maryland and the requirements of the law of the State of Maryland prohibiting preference and discrimination referred to above, [the Telephone Company] has been,! is and should be required to furnish its services on a uniform and non-discriminatory basis. Thus, for , example, customers residing and situate in Baltimore City who desire direct toll-free calling to Washington, D. C. should be given one of the following exchanges located in Laurel, Berwyn and/or Glendale — 953, 345, 474, 552, 982, 390, or 794 — in order to minimize the mileage charges for such customers. In fact, [the Telephone Company] has over a long period of time deliberately refrained from giving its Baltimore customers one of such exchanges and, assuming its customer to be unknowledgeable of the tariffs on file at the Public Service Commission of Maryland, has steered said customers into using Baltimore City exchanges which, in effect, more than double the mileage charges applicable for such customers for such direct toll-free calling. The same holds true in equal measure for other areas of this state. A few selected customers have been granted numbers for such direct toll-free calling in the above listed exchanges which are available for the purposes enumerated. All other customers, which includes all of the plaintiffs herein, have been arbitrarily discriminated against and are entitled to refunds of all sums paid by them in excess of the aforementioned tariffs together with a reduction in present and future charges plus punitive damages and attorneys’ fees as well as the costs of this action.”

Stillman prayed:

“a. That judgment be entered against [the Telephone Company] in an amount to be established by the Court, such sum to constitute a sum total of all excess charges made by the defendant relating to its direct toll-free calling program to Washington, D. C. in the past together with such punitive damages which the Court feels appropriate under the circumstances, it being estimated at this time that such sum is approximately $2,000,000.
b. That [the Telephone Company] be ordered to forthwith cease and desist from all preferences and discrimination in said direct toll-free calling program to Washington, D. C. and that all of its customers who are under substantially similar circumstances be treated in the same manner.
c. That [Stillman] be awarded attorneys’ fees and the costs of this action.
d. That [Stillman] may have such other and further relief as the case may require.”

The Telephone Company demurred to each count on the grounds that the declaration purported to allege a violation of Code, art. 78, § 26 in that the Telephone Company discriminated against Stillman, that The Public Service Commission Law provides that complaints of this type be filed with the Commission, which has authority to hear them in the first instance, subject to judicial appellate review, that the declaration failed to allege exhaustion of the administrative remedy, and that the failure to exhaust the administrative remedies authorized, denied Stillman’s standing to sue in the courts. Maryland Rule 345; Allen v. Wilkinson, 250 Md. 395 (1968).

On 9 August 1974, upon motion of Stillman, the court ordered that Maryland Rule 530 a, subjecting the action to dismissal for lack of prosecution, be suspended for six months from that date. On 29 October 1974 the court, denying the Telephone Company’s motion to “Postpone Time to Answer Plaintiffs Interrogatories pending ruling on Demurrer”, ordered that the hearing on the demurrer be promptly set. The court ruled on the demurrer on 14 May 1975. By its order, it sustained the demurrer without leave to amend. A memorandum opinion included in the order read:

“Preferences and discrimination in respect to any service are a violation of Article 78, Section 26, Annotated Code of Maryland.
Under Article 78, Section 56, the Public Service Commission has the duty of enforcing compliance by such companies with all the requirements of law, including service.
C &P Telephone Co., vs. Pincoffs, 23 Md. App. 474, 478; Spintman vs. C & P Telephone Co., 254 Md. 423.
The procedures before the Commission are outlined in Article 78, Sections 76-88. There are provisions for review at both the circuit and appellate level. Article 78, Sections 89-98.
Plaintiffs are bound to follow the special form of remedy provided for in Article 78, Sections 76-88, i.e., a hearing before the Commission.
In the present posture of the Plaintiffs complaint, the Court feels that it is without jurisdiction to entertain the cause of action.”

Stillman noted an appeal. The issue for decision is the propriety of the action of the court below in sustaining the demurrer without leave to amend.

The general rule is that when we consider the propriety of an order sustaining a demurrer without leave to amend, we are required to assume, for the purposes of the ruling, the truth of all material and relevant facts that are well pleaded as well as all inferences which can be reasonably drawn from those well pleaded facts. Schwartz v. Merchants Mort. Co., 272 Md. 305, 307-308 (1974); Kight v. Bowman, 25 Md. App. 225, 227 (1975). But here the question is one of law going to the jurisdiction of the trial court. Md. Rule 345 a 1. See Legum v. Blank, 105 Md. 126, 135 (1907).

We spelled out the jurisdiction and powers of the Commission in C. & P. Telephone Co. v. Pincoffs, 23 Md. App. 474, 478-479 (1974), cert. denied, 274 Md. 730 (1975):

“[T]he Commission is charged with the duty of . supervising and regulating all public service companies subject to its jurisdiction, and of enforcing compliance by such companies with all the requirements of law, including requirements with respect to manner of operation, rates, and service. Code, Art. 78, § 56. So it may fulfill this duty and its general duties and exercise its powers, the Legislature provided that proceedings be conducted before the Commission and designated the procedures to be followed. Code, Art. 78, §§ 76-88. The Commission is authorized to receive complaints from any person, § 77 (a) or proceed on its own motion, § 77 (c) and to conduct investigations, § 77 (b) and hearings, §§79 and 82, serve process, § 78, issue subpoenas, § 80, and compel testimony on the production of evidence, § 81. In all hearings it shall prepare an official record, which shall include testimony and exhibits, § 83. The proceedings are governed by the rules of the Commission. It is not bound by the technical rules of evidence or procedure of courts of law or equity, § 76. It shall take final action by order, § 77 (d), which in any contested action shall be in writing and state concisely the grounds for the Commission’s conclusions, § 85. There are provisions for judicial review at the circuit court level, §§ 89-97, and further review at the appellate level, § 98.

Section 56 of art. 78 reads in full:

“The Commission shall supervise and regulate all public service companies subject to its jurisdiction, and shall enforce compliance by such companies with all the requirements of law, including, but not limited to requirements with respect to financial condition, capitalization, franchises, plant, manner of operation, rates, and service. The powers and duties enumerated specifically in this subtitle are not intended to limit the scope of the general powers and duties of the Commission provided for by this article.”

It is clear that the Legislature established a comprehensive scheme with respect to matters within the jurisdiction and power of the Commission. That scheme embraced the view that the Commission was first to determine such matters under procedures carefully designated, with judicial review thereafter available, Code, art. 78, § 90, first, at the circuit court level, § 91, and then at the appellate level, § 98 and Courts Art. § 12-308. When the Public Service Commission Law contemplates a hearing before the Commission, that procedure must be followed. C. & P. Telephone Co. v. Pincoffs, supra, at 482 and cases therein cited. See also David W. Chertkof Trust v. Department of Natural Resources, 265 Md. 291, 295 (1972); Spintman v. C. & P. Tel. Co. of Md., 254 Md. 423, 428 (1969); Poe v. Baltimore City, 241 Md. 303, 311 (1966); Gayer v. Kasdon, 234 Md. 7, 9-10 (1964); appeal dismissed, 379 U. S. 13 (1964); Shpak v. Mytych, 231 Md. 414, 417-418 (1963). We said in Pincoffs, at 483-484, quoting in part from Spintman, at 428:

“Where an administrative remedy is available, such as a hearing before the Public Service Commission, to determine the reasonableness of a rate [which includes any schedule, regulation, classification or practice of any public service company affecting the nature of the services rendered], prior resort to that remedy is a necessary prerequisite to a standing before the courts.”

The rationale of this rule was succinctly expressed in Gingell v. Board of County Commissioners, 249 Md. 374, 376-377 (1968):

“The reasons for requiring the exhaustion of administrative remedies before resorting to the courts are that it is within the expertise of the administrative agency involved to hear and consider the evidence brought before it and make findings as to the propriety of the action requested; court would be performing the function that the legislature specified by done by the administrative agency; courts might be called on to decide issues that would never arise if the prescribed administrative remedies were followed; and where a statute provides a specific form of remedy in a specific case then this remedy must be followed. . . .”

The propriety of the lower court’s action in sustaining the demurrer without leave to amend, therefore, turns on whether, upon the facts alleged in the declaration, there was an administrative remedy available. That is, was there a specific form of remedy provided by the statute which had to be exhausted before resort to the courts.

It is manifest that, under the declaration^. Stillman would nowise be entitled to the specific relief prayed unless it was first established that the Telephone Company did “ [cjharge, demand or receive from any person a greater or less cpmpensation than from any other person under substantially similar circumstances”, or did “[e]xtend any privileges or facilities to any person except such as are uniformly extended to all persons under substantially similar circumstances”, or did “ [g]ive any undue or unreasonable preference to or discriminate against or cause any undue or unreasonable prejudice to, any person, locality, or particular class of service.” In other words, as a basis for the award of damages constituting “a sum total of all excess charges made by [the Telephone Company] relating to its direct toll-free calling program to Washington, D. C. in the past together with such punitive damages” appropriate in the circumstances, and as a basis for an order that the Telephone Company “cease and desist from all preferences and discrimination in said direct toll-free calling program to Washington, D. C.” and that it treat “all of its customers who are under substantially similar circumstances ... in the same manner”, it must be found that the Telephone Company violated the dictates of § 26 of art. 78. It is the clear legislative intent, apparent from the Public Service Commission Law, that this determination, in the first instance, be by the Commission and not by the courts. Such a determination is within the expertise of the Commission, and it is the function of that agency to hear and consider evidence brought before it, and its duty to make findings on the propriety of the Telephone Company’s actions, assuming, with respect to the demurrer, they are as alleged in the declaration. We can conceive that there may be valid reasons why demands for every type of service cannot always be met forthwith. Whether particular facts constitute a failure to extend a privilege or facility uniformly enjoyed by others under substantially similar circumstances, or whether the failure or refusal to grant certain services results in “any undue or unreasonable preference”, or is discriminatory, or causes “any undue or unreasonable prejudice”, cries for expert evaluation, and this evaluation is the function of the Commission. Stillman is aggrieved because it was not provided with toll-free calling lines to Washington, D. C. when others, similarly situated, had them. It suggests, in its declaration, that “customers residing and situate in Baltimore City who desire direct toll-free calling to Washington, D. C. should be given one of [certain designated exchanges] in order to minimize the mileage charges for such customers.” And it asserts that the Telephone Company “has over a long period of time deliberately refrained from giving its Baltimore customers one of such exchanges and, assuming its customers to be unknowledgeable of the tariffs on file . . ., has steered said customers into using Baltimore City exchanges” at a substantially higher cost. We think it properly requires the expertise of the Commission to determine, in the light of circumstances existent, whether the failure to provide toll-free lines was deliberate with an undue and unreasonable prejudice to those who did not have them and an undue and unreasonable preference to those who had them. The Telephone Company argues, and we believe fairly, that Stillman would call upon a jury “to determine initially such questions as whether expediting the unusual service it seeks would place an unreasonable burden on the availability of regular toll service to the general public, whether it would adversely affect [the Telephone Company’s] ability to provide local exchange service, and whether it is economically prudent in the interest of the public to invest the resources required, on a crash basis, for additional switching and interexchange facilities, bearing in mind that the Commission would in due course have to impose the cost burden on the telephone-using public.. . . Whether and to what extent [the Telephone Company] should alter its construction programs in order to meet the needs of one class of customers or another, or to meet the needs of one area of the State as distinguished from other areas, is a question which will tax the experience and knowledge of the members of the Public Service Commission.” All such issues, the Telephone Company observes, “are normally ventilated before the Commission when complaints regarding adequacy of service are brought before it.” And, we add, properly so. As the Court of Appeals said in Spintman v. C. & P. Tel. Co., supra, at 429, with reference to the function of rate making: “The soundness of having such matters originally determined by a commission of persons qualified to evaluate the issues in a specialized field lies beyond dispute.” We, as did the court below, find strong support in Spintman for the view that Stillman must exhaust the available administrative remedies before resort to the courts. Spintman dealt with the rate making power of the Commission. Spintman contended that “the court may well determine that a rate is discriminatory or produces excessive revenues and grant a retroactive refund to correct this injustice, without in fact, engaging in the function of rate making.” The Court of Appeals observed: “This is a spurious argument which advocates that a court may do by indirection that which it is not permitted to do directly. ... If we were to follow the argument advanced by [Spintman] to its logical conclusion, we would witness the chaotic situation where juries would be performing the rate making function of the Public Service Commission by having a veto power over rates. Certainly, such would be the ultimate and practical effect of their action if they were allowed to render a verdict for reparation in favor of the plaintiff consumer in an action of assumpsit.” 254 Md. at 428. The observation is apt with respect to any question which it is the duty of the Commission to determine originally. The Court of Appeals noted in Spintman, at 429, that an action in assumpsit may well be the proper remedy for collection of an overcharge “where the consumer was charged a rate not in conformity with the established and published tariff set by the Commission or where there was error in the computation or application of the established rate.” But the Court was not confronted with such a situation in Spintman, nor are we here. Here, as in Spintman, the consumers were charged the approved tariff for the service in fact provided them. Therefore, § 103 of art. 78 would not be applicable. Here, as in Spintman, they strive, by a collateral attack, to have declared discriminatory and unreasonable acts or omissions of the Telephone Company. Here, as in Spintman, the consumers minimize the nature of this collateral attack by emphasizing that it is necessary in order to support their claim for reparations. Id., at 429. The Court in Spintman was not persuaded by the argument, nor are we. It found that the declaration there failed to state a cause of action and affirmed the action of the lower court in sustaining the appellee’s demurrer, without leave to amend.” Id., at 433. We believe the rationale of Spintman to be controlling and do likewise.

Carter v. The Suburban Water Co., 131 Md. 91 (1917) cited by Stillman, does not compel a contrary conclusion. In Carter, at 95, the Court said: “We do not find that the Public Service Commission is invested with the power to hear and determine the controversy between the parties as to the correctness of the bills rendered, or to determine what amount the plaintiff owes.” This finding was reached in equity on a bill for an injunction to restrain the water company from cutting off the supply of water to Carter’s houses. The threat to cut off the water arose from a refusal by Carter to pay a bill for water. He claimed that the water company had failed to supply the houses with a suitable quantum of water and offered to pay such sum of money as would reasonably and fairly represent the proper charges for the services rendered. Thus, the issue was simply the correctness of the bill with no question of rate, discrimination, or preferences. The Court continued, at 95: “But if that power [to determine the correctness of the bill] be conceded, the Court of Equity would not for that reason be deprived of its original jurisdiction to grant the injunction. It has been long since settled, that where a Court of equity has original jurisdiction, and a statute confers upon the common law courts a similar power, the jurisdiction of equity is not thereby ousted.” Even assuming this ruling to be the law today, it would not be applicable to the action at law here.

The answer to the question Stillman presents, set out in note 10 supra, is that, under the facts and circumstances, the Commission had original jurisdiction over the matter, at the least for the determination whether the Telephone Company violated the mandates of art. 78, § 26. The answer to the question the Telephone Company presents, also set out in note 10 supra, is that the lower court held correctly that complaints alleging discrimination in violation of the Public Service Commission Law should be presented in the first instance to the Commission. The rule requiring exhaustion of administrative remedies before resort to the courts may not be circumvented simply by seeking reparations. The answer to the issue for decision, as we see it, is that the action of the court below in sustaining the demurrer without leave to amend was proper. We note that we do not believe that the legislative scheme apparent in the Public Service Commission Law may be defeated by the bringing of a class action.

Order of U May 1975 sustaining demurrer without leave to amend affirmed; judgment in favor of appellee affirmed; costs to he paid by appellants.

      . “1. For money paid by the plaintiffs for the defendant at its request.
      2. For money received by the defendant for the use of the plaintiffs.
      3. For money found to be due by the defendant to the plaintiffs on accounts stated between them.”

      . “ ‘Public service company’ means a ... telephone company....” Code, art. 78, § 2 (o).
      “ ‘Telephone company’ includes any public service company which owns telephone lines for the reception, transmission or communication of messages by telephone or teletype, or which lets, licenses, or sells telephonic or teletype communication.” Code, art. 78, § 2 (z).
      The meanings of certain of the terms used in the above definitions are set out in other subsections of art. 78, § 2: “company”, subsection (e); “own”, subsection (j); “plant”, subsection (mj; “telephone lines”, subsection (aa).

      . Art. 41 of the Declaration of Rights of the Constitution of Maryland declares “That monopolies are odious contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.” The activities of a public service company are exempted from the provisions of the Maryland Anti-Trust Act. Code, art. 83, § 39 (3).

      . “The jurisdiction and powers of the Public Service Commission shall extend to all public service companies, as hereinafter defined, engaged in or operating a utility business in this State ... to the full extent permitted by the Constitution and laws of the United States.” Code, art. 78, § 1. See Code, art. 23, subtitle “Telegraph and Telephone Companies”, §§ 317-327. The Public Service Commission is exempted from the provisions of the Administrative Procedure Act. Code, art. 41, § 244 (a).

      . “ ‘Rates’ includes tolls, fares, tariffs, fees, prices and any other charges for public utility services, whether individual or joint, of a public service company; and any schedule, regulation, classification or practice of any public service company affecting the amount of such charges or the nature and value of the services rendered therefor.” Code, art. 78, § 2 (q).

      . Code, art. 78, § 26 reads:
      “(aj Preferences and discrimination prohibited. — No public service company shall (with the exceptions listed in the following subsection) directly or indirectly, by any means whatever (including but not limited to special rates, rebates, drawbacks or refunds) in respect of any service rendered or commodity furnished by it:
      (1) Charge, demand or receive from any person a greater or less compensation than from any other person under substantially similar circumstances;
      (2) Extend any privileges or facilities to any person except such as are uniformly extended to all persons under substantially similar circumstances;
      (3) Give any undue or unreasonable preference to or discriminate against or cause any undue or unreasonable prejudice to, any person, locality, or particular class of service.”
      Exceptions set out in subsection (b) are not here applicable.

      . The short title of art. 78 authorized by its § 107.

      . In the interim both Stillman and the Telephone Company were active. On 5 December 1974 the Telephone Company filed answers to the interrogatories propounded by Stillman, and on 13 December it submitted a supplemental memorandum of law in support of its demurrer. On the latter date Stillman excepted to the answers to the interrogatories and on 19 December requested a hearing on the exceptions.

      . The “Order for Appeal” filed 5 June 1975 requested of the Clerk of the court below: “Please enter an appeal to the Court of Special Appeals of Maryland from the order of May 14, 1975 sustaining the demurrer of defendant to plaintiffs’ declaration without leave to amend.”
      Judgment absolute in favor of the Telephone Company for costs of suit was entered on 14 May 1975. See Rule 345, § e.

      . Stillman presents the question “Do the courts or the Public Service Commission have jurisdiction over suits for money damages in a case in which a public utility is a party? ”
      The Telephone Company asks whether the court below held “correctly that complaints alleging discrimination in violation of The Public Service Commission Law should be presented in the first instance to the Public Service Commission to exhaust administrative remedies? ”
      No issue is raised on appeal with respect to the trial court’s action on the demurrer in the frame of reference of the common counts. See note 1, swpra.

      . “Proceedings for review under § 90 of this article shall be instituted in the circuit court for any county within which operations are carried on by the public service company involved, or in any equity court in Baltimore City.” Code, art. 78, § 91 (a).

      . Stillman elected “to have this case tried by jury.”

      . The Telephone Company’s brief at 8. This argument was also presented to the court below in a “Memorandum of Points and Authorities in Support of Demurrer.”

      . Code, art. 78, § 103 provides: “In any action by any public service company for the collection of any charge, no recovery shall be had if in the transaction on which suit is brought, the company has demanded a rate in excess of that which is lawful under this article at the time.” See Spintman, at 432-433.

      . The Court set out the allegations in the Spintman declaration at 424-425 of 254 Md.:
      “Daniel A. Spintman and Judith A. Spintman, his wife (appellants), are subscribers to the ‘262’ exchange service of the appellee, Chesapeake and Potomac Telephone Company of Maryland. Appellants brought an action in assumpsit for themselves, and on behalf of all other similarly situated subscribers to the ‘262’ exchange service in the City of Bowie, and other areas in Prince George’s County, Maryland, that are not within the area designated for telephone rate services as the ‘Washington, D. C. Metropolitan Exchange Area’ (D. C. Area). The first count of appellant’s declaration claims reimbursement for money paid for telephone services at rates that include mileage and other charges which are not included in the rates charged by the appellee for similar services to subscribers within the ‘D. C. Area,’ to the extent of such mileage and other charges. Appellants allege that they are under substantially similar circumstances as those persons who subscribe to the appellee’s service within the ‘D. C. Area,’ who do not pay such mileage and other charges and that the mileage and other charges applied to appellants are unjustly discriminatory charges for like services under like conditions.
      The second count of appellants’ declaration claims money paid for telephone service at rates in excess of just and reasonable rates, resulting in excessive compensation to the appellee, and demands reparations to the extent of such excessive compensation in the amount of $2,500,000.00.”
      As is obvious, the situation in Spintman and the situation here are very similar. The question in Spintman was phrased thus by the Court, at 425:
      “We are presented with the question of whether telephone subscribers who have accepted, used, and paid for telephone service, on terms not alleged to be different from those stipulated in tariffs on file with the Public Service Commission, can attack those tariff rates retroactively and demand refunds in an original court proceeding allegedly based on common law rights.”


author: Powers, J.,

text:
    STATE OF MARYLAND v. DOUGLAS JAMES HAYWARD and VIVIAN KIM HAYWARD
    [No. 481,
    September Term, 1975.]

      Decided February 2, 1976.

    The cause was argued before Powers, Gilbert and Davidson, JJ.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and David

      Wilson, Assistant State’s Attorney for Baltimore County, on the brief, for appellant.

      Dennis M. Henderson, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Arnold M. Zerwitz, Assistant Public Defender, on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

This appeal by the State was taken from an order entered in the Circuit Court for Baltimore County, Proctor, J., quashing a four count indictment against the appellees charging possession of controlled dangerous substances. The indictment was based entirely upon evidence obtained by the police in the execution of a search and seizure warrant. The proceedings leading up to the order of dismissal will be discussed more fully later.

In their brief in this Court appellees moved to dismiss the appeal as not allowed by law, citing Maryland Rule 1035 b 1. We first consider that motion.

The right of the State to appeal the lower court’s order must be found in Code, Courts Art., § 12-302 (c), as interpreted by the Court of Appeals in Lohss and Sprenkle v. State, 272 Md. 113, 321 A. 2d 534 (1974). The statutory authority says:

“(c) In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.”

In Lohss and Sprenkle, supra, decided under a predecessor code provision in essentially the same language, the Court of Appeals reversed a judgment of this Court and remanded the case to us, directing that the appeals by the State be dismissed, because this Court lacked jurisdiction to entertain them. The defendants there, Lohss and Sprenkle, had been arrested at Friendship International Airport because of evidence seized in search of luggage in their possession. Their motions to suppress that evidence were heard and granted in the Circuit Court for Anne Arundel County. Thereafter Lohss moved to dismiss the indictment against him. Noting that the prosecuting attorney conceded, and had no objection, the trial judge dismissed the indictment. The State itself then moved to dismiss the indictment against Sprenkle, and the trial judge ordered that it be dismissed.

In its opinion in Lohss and Spenkle, supra, the Court of Appeals, after noting that it is well settled in Maryland that the State has no right of appeal from the granting of a motion to suppress evidence, said, 272 Md. at 118-19:

“The State readily concedes that its appeal from the circuit court was merely a ‘vehicle’ for obtaining review of the trial judge’s ruling on the motions to suppress. Nevertheless, it clings to the argument — successfully maintained in the Court of Special Appeals — that its appeal was . . from a final order or judgment granting a motion to dismiss . . .’ the indictment.”
“The question presented here, therefore, is whether this was an appeal ‘. . . from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, .. .’ within the meaning of Art. 5, § 14; and, even if it were, whether the State was precluded from prosecuting its appeal by having effectively agreed to one dismissal and having initiated the other. In the view we take of this case, it becomes unnecessary for us to decide the first part of the question, since we think the State was barred from appealing even if we assume arguendo that this was a dismissal within the contemplation of § 14.
“As we see it, the State is in the anomalous position of appealing from two orders to which it consented. In civil cases this Court has adhered to the rule that, to have standing for maintaining an appeal, one must be aggrieved by the decision from which the appeal is taken. [Citations omitted]. Moreover, the right of appeal may be lost by waiver or estoppel when there is acquiescence or recognition in the validity of the decision from which the appeal is taken or by otherwise taking a position inconsistent with the right of appeal, * * * .
“We perceive no reason why these principles should not apply with equal vigor to appeals taken by the State in criminal cases. In essence, by agreeing to the dismissals of the two indictments, the State has simply abandoned their prosecution, since it candidly recognized that it could not proceed without the suppressed evidence. It concedes, as indeed it must, that had it entered a nolle pros in each case, there could have been no appeal.”

The Court said further, at 119-20:

“The State acknowledges that the dismissals — and the effort to appeal therefrom — were merely a gambit for circumventing the denial of the State’s right to appeal from the granting of a motion to suppress. If we were to countenance this effort, we would be in the position of supplying judicially an omission in the statute which, at this point, must be regarded as having been deliberately made by the Legislature, * * *

The order quashing the indictment in the case now before us does not fit the pattern of either of the orders in Lohss and Sprenkle. We cannot agree with the appellees’ argument that the order was entered “solely for the purpose of providing the State with a vehicle for obtaining review of the court’s ruling that a search warrant was defective.” If the effect of the order was to provide such a vehicle, then that vehicle had a valid license to travel the road to appellate review.

The case was called for trial. No motion was made and none was pending. It appears that all parties were present and ready for trial. Defense counsel stated that the plea was not guilty, and tendered a waiver of jury trial. After the court questioned the defendants, it accepted their waiver of a jury trial. It appears from the transcript that the judge read the affidavit upon which the search warrant has been issued, and then asked the Assistant State’s Attorney what he had to say in support of it. There followed some 16 pages in the transcript of argument, or discussion, among the judge and both counsel. The question discussed was whether the affidavit was sufficient to establish the reliability of the informant. The judge stated that he had not made up his mind finally, but was leaning against the State’s position. At one point the judge commented, “I sure wish the State had a right to appeal on these things.”

Resolution of the question, upon which up to that time there was no motion and no ruling, came about in this way:

“THE COURT: All right. Are you ready to try the case now?

“MR. WILSON [Assistant State’s Attorney]: I will, Your Honor.

“THE COURT: My suggestion is we go ahead and try it with the understanding that I may very well strike out all the evidence. If by ruling now you can take an appeal, why, I’d rule now, but —

“MR. WILSON: Your Honor, the only way that I could take an appeal, it’s my understanding — I researched this fairly recently when I had a warrant thrown out, because the warrant signed by the judge, he missed the signature — apparently the only way I could possibly have filed an appeal would have been if the Court itself had dismissed the case at the point the motion was argued, and I had entered at least a token objection on the record and not acquiesced in it.

“THE COURT: Well, your motion is what, to quash the indictment?

“MR. CARDIN [Defense counsel]: May we approach the bench?

“THE COURT: Yes, come on up.

“(An off-the-record discussion was had by court and counsel.)

“MR. CARDIN: If Your Honor please, the motion will be a motion to quash the indictment.

“THE COURT: And that is based upon the contention that the indictment is based upon the search which was made as a result of the warrant and your contention is that the warrant is — that the application is wholly inadequate?

“MR. CARDIN: That is correct, Your Honor.

“MR. WILSON: For the record the State will enter an objection based on reasons already stated.

“THE COURT: All right. And I am going to grant the motion to quash the indictment. You go ahead and take it to the Court of Appeals and see what they say about it.

“MR. CARDIN: Thank you, Your Honor.”

Perhaps uncommon, but not unheard of in our courts, is a ruling which has something that pleases everybody. The ruling before us may be one of those. Defense counsel’s motion to quash the indictment obviously was made as a matter of considered judgment. The favorable ruling he had some reason to expect would at least put off, and might forever prevent exposure of the appellees to a trial on the issue of guilt. The alternative to his motion was that the trial would commence then and there. To be sure, the trial could result in an acquittal, but that was by no means certain. If the appellees were tried and convicted they could, , of course, appeal, and might or might not be free on bond pending an appeal.

We merely illustrate that there were tactical decisions to be made. Such tactical decisions will not be reviewed for error. Woodell v. State, 223 Md. 89, 96, 162 A. 2d 468 (1960); Madison v. State, 200 Md. 1, 8-9, 87 A. 2d 593 (1952).

The record shows that the State vigorously opposed the basis upon which the motion to quash was made and granted. The Assistant State’s Attorney’s comment that the right of the State to appeal required at least token opposition to a motion to dismiss or quash the indictment was, no doubt, his understanding of Lohss and Sprenkle, supra. If the State’s objection was “token” opposition, it was no less real, and no less effective. It was not consent — it was not acquiescence.

We hold that the State had the right to appeal from the order of the Circuit Court for Baltimore County, and that the motion to dismiss the appeal should be denied.

Judge Proctor granted the appellees’ motion to quash the indictment because the ground for it, as articulated for counsel by the judge, was that the indictment was based on a search made as a result of a warrant, and the application for the warrant was wholly inadequate. The judge never ruled directly on the legality of the warrant, or the adequacy of the application for it, perhaps because the question was never put to him squarely.

It appears to be appropriate, in an appeal by the State from the dismissal of an indictment, to consider the legality of the seizure of the evidence upon which the indictment was based. We did so in State v. Siegal, 13 Md. App. 444, 285 A. 2d 671 (1971), where the trial judge dismissed the indictment for reasons stated in a motion to suppress evidence obtained through a wiretap. In affirming the judgment of this Court the Court of Appeals, State v. Siegel, 266 Md. 256, 292 A. 2d 86 (1972), ruled upon the merits of the legality of the seizure. In State v. Lee, 16 Md. App. 296, 295 A. 2d 812 (1972), we affirmed an order of the lower court dismissing indictments because the evidence supporting them had been suppressed.

We shall consider the legality of the seizure of evidence in this case. After a careful examination of the affidavit supporting the application for the search warrant we conclude that the facts stated in it, though arguably thin, were sufficient to show probable cause for the issuance of the warrant. The State in its brief summarized the contents of the police officer’s affidavit:

“(1) the [first] informant was told by Douglas Hayward that Hayward was in possession of several pounds of marijuana;
(2) the informant had been to Douglas’ home in the past and had observed a small quantity of marijuana; and
(3) on October 24, 1974, the informant was with Douglas at 5426 Cynthia Terrace;
(4) the informant took the affiant to 5426 Cynthia Terrace, pointed it out as the home of Douglas Hayward, and told the affiant that on that same date, he observed Douglas carry into the house a scale used to measure marijuana and other drugs;
(5) the informant observed marijuana and a light green substance known as P.C.P. in the possession of Douglas;
(6) the informant had made one controlled buy, which was analyzed and found to be a controlled dangerous substance;
(7) that the informant had supplied information that led to the arrest of two defendants against whom court action was pending; and
(8) the informant had supplied detailed information about narcotics dealers and places in Baltimore County that were checked out and found to be true.
A second informant stated that he saw Douglas borrowing a scale from someone at an unknown address in the Dutch Village Apartments. The second informant also supplied a phone number for Douglas which was verified by the police.”

In our evaluation of these facts we have borne in mind, and need not discuss further, the applicable principles of law as discussed in Aguilar v. Texas, 378 U. S. 108, 12 L.Ed.2d 723, 84 S. Ct. 1509 (1964); Spinelli v. U. S., 393 U. S. 410, 21 L.Ed.2d 637, 89 S. Ct. 584 (1969); Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975); State v. Kraft, 269 Md. 583, 307 A. 2d 683 (1973); State v. Edwards, 266 Md. 515, 295 A. 2d 465 (1972); Barber v. State, 23 Md. App. 655, 329 A. 2d 760 (1974); and McCarthy v. State, 22 Md. App. 722, 325 A. 2d 132 (1974).

We hold that the trial judge erred in quashing the indictment, and that at the trial of this case after our remand, the contraband seized in the execution of the search warrant should be admitted in evidence.

Motion to dismiss appeal denied.

Order quashing indictment reversed.

Case remanded for trial.

      . State v. Lohss and Sprenkle, 19 Md. App. 489, 313 A. 2d 87 (1973).


author: Menchine, J.,

text:
    PERRY L. HAMILTON v. STATE OF MARYLAND
    [No. 494,
    September Term, 1975.]

      Decided February 2, 1976.

      The cause was argued before Powers, Menchine and Davidson, JJ.

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Suñsher, State’s Attorney for Baltimore City, and Michael Glushakow, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Brought to bench trial in the Criminal Court of Baltimore on two charges of storehouse breaking, Perry L. Hamilton was convicted and sentenced to concurrent terms of ten years imprisonment. Prior to commencement of the trial, the trial judge was informed by assigned counsel “that Mr. Hamilton * * * has advised me at this time that he wishes to proceed without counsel and I told him that he would have to tell that to the Court and the Court would have to rule on the request.” The trial judge responded as follows: “You may proceed without counsel, but you may sit at the trial table.”

That one accused of crime has an independent constitutional right of self-representation is now beyond question. In Faretta v. California, 422 U. S. 806, 95 S. Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court of the United States said:

“The Framers selected in the Sixth Amendment a form of words that necessarily implies the right of self-representation. That conclusion is supported by centuries of consistent history.”

The Court then added:

“There can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court’s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel.” 45 L.Ed.2d at 580.

The Supreme Court cautioned that when an accused makes known his desire to represent himself, the trial judge should assure of record that such choice has been knowingly and intelligently made, saying at 45 L.Ed.2d 581:

“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. 458, 464-465. . . . Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 . . . (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. 269, 270.”

The Supreme Court had been, however, quite emphatic that the constitutional right to self-representation is absolute if knowingly and intelligently demanded, saying at 45 L.Ed.2d 581:

“It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ Illinois v. Allen, 397 U.S. 337, 350-351 . . . (concurring opinion of BRENNAN, J.).”

It is true that the assigned public defender in the subject case, unlike the course followed by counsel in State v. Renshaw, 276 Md. 259, 347 A. 2d 219 (1975), did not stand mute. Indeed, the record establishes that such assigned counsel participated substantially but not exclusively in the management of the conduct of the trial. Such also was the posture of the case in Faretta v. California, supra, where the Supreme Court made crystal clear that the fact that an accused was assisted by counsel in the course of the ensuing trial is of no moment in the determination whether the right to self-representation has been denied, saying:

“We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.
“In forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the California courts deprived him of his constitutional right to conduct his own defense. Accordingly, the judgment before us is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.” 45 L.Ed.2d at 582.

In the subject case there was no inquiry under Maryland Rule 719 c such as would have met the command of Faretta, supra, that the trial judge cause the accused to “be made aware of the dangers and disadvantages of self-representation.” In the absence of such an inquiry when there is an expressed desire for self-representation, we are not permitted to assume from a silent record that the appellant “knowingly and intelligently” chose such a course. Neither are we permitted to assume that appellant would have elected to proceed with the assistance of counsel if such an inquiry had in fact been made.

We note that the subject case came to trial prior to the Supreme Court decision in Faretta and necessarily was decided without its guidance.

We do not reach other issues.

Judgments reversed and case remanded for a new trial.

      . An apparent reference to assigned counsel for the accused.

      . In State v. Renshaw, supra, the opinion stated that, “at no time did appellee indicate a desire or inclination to waive representation. Nor did he express a desire to proceed in proper person.” (266 [225]). Thus, the issue herein decided was not before the Court of Appeals in that case.


author: Thompson, J.,

text:
    DENNIS WISE v. STATE OF MARYLAND
    [No. 508,
    September Term, 1975.]

      Decided February 2, 1976.

    The cause was argued before Thompson, Moore, Melvin and Mason, JJ.

      Joseph P. Rieger, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General,
      with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Dennis Wise, the appellant, was convicted by a jury in the Criminal Court of Baltimore of sodomy and common law assault. He was sentenced to concurrent ten year terms, both sentences to be served consecutively to a sentence currently being served. From these judgments Wise appeals.

On May 22, 1974, a detainer covering these charges was filed at the Maryland State Penitentiary against Dennis Wise. Two days later Neal J. Folse, a classification counselor at the penitentiary, visited Wise in the segregation wing, where he was committed on an unrelated charge, for the purpose of informing him of the detainer lodged against him and any rights that accrue therefrom. While Mr. Folse could not recall his exact conversation with Wise, the classification counselor did give the appellant a standard intrastate detainer notification form and informed him that he had thirty days to demand a speedy trial, which would insure such trial within 120 days. The appellant was informed that if he signed the form that would be all that was required of him, but that it was not necessary to sign at that exact time. Wise declined to sign until he had consulted with an attorney. Folse then left a copy of the form and told Wise to notify him if the appellant wanted an attorney. The form made no mention of the necessity to file an inmate status form. On May 31, 1974, a letter was received by the Clerk of the Criminal Court of Baltimore from the appellant stating that the detainer had been placed against him and he was requesting an immediate trial in accordance with Md. Code, art. 27, § 616S. There was no inmate status form enclosed in the letter. A notation in the Clerk’s file indicates that a copy of this letter was given to the State’s Attorney and the Criminal Assignment Office on the same day. A subsequent motion requesting a trial under “Article 27, Section 616S of The Annotated Code” was filed with the Clerk of the Criminal Court of Baltimore on June 27, 1974. On August 27, 1974 the case was removed by the Criminal Assignment Office and reset for October 30, 1974. A hearing supporting this decision was not held in open court with the appellant or his attorney present. Arguments on the motion under the Intrastate Detainer Act were heard on December 9, 1974 and the request to dismiss the indictments was denied. On February 11,1975 Wise was convicted.

If, as appellant contends, the 120 day time period began to run on May 31, 1974, he was required to be tried no later than September 28, 1974. Since the continuance on August 27, 1974 was not held in open court it does not stay this time period. Gardner v. State, 29 Md. App. 314 (1975). The question then is whether the receipt of the inmate status form by the appropriate court and State’s Attorney is a condition precedent necessary for bringing the provisions of art. 27, § 616S into play.

Art. 27, § 616S (a) provides that:

“Whenever the Department of Correction receives a detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State’s Attorney of the City of Baltimore or of the county in which the indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiciton of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed vnthin 30 days of the prisoner’s notification of any untried indictment, information, or complaint and shall be ac companied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.” (Emphasis added).

Failure to comply with this by the State results in a loss of jurisdiction by the trial court. Art. 27, § 616S (c).

In State v. Barnes, 273 Md. 195, 328 A. 2d 737 (1974), the Court of Appeals stated that the “failure in § 616S [Intrastate Detainer Act] to provide that the statute shall be ‘liberally construed so as to effectuate its purpose,’ as is provided in § 616J [Interstate Detainer Act] is [not] here material since both statutes at the time of enactment were common in derivation and purpose, were remedial in nature, designed to correct existing law, to redress existing grievances and to introduce regulations conducive to the public good; as such they are to be liberally construed in order to advance the remedy and obviate the mischief.” Id. at 208. The mischief, at which these statutes take direct aim, is an unnecessary delay between the filing of a detainer against an inmate and final disposition of that detainer. In order to redress the existing grievances, the operative state officials are charged with taking the necessary steps to bring the pending case to trial, once their attention has been brought to the inmate’s request for such action. Barnes, supra.

King v. State, 5 Md. App. 652, 249 A. 2d 468 (1969), held that the 120 day time limit could not be invoked where the other provisions of the statute had not been complied with, no matter whether the fault lay with the warden or the inmate. The proper statutory procedure, as indicated by King, is for the warden to inform the inmate of the detainer; the prisoner then make a request in writing for final disposition of the indictment and deliver it to the warden; then the warden deliver the request and his statement to the State’s Attorney and the appropriate court. The Court of Appeals indicated in Barnes, supra, however, that the holding in King was limited to those situations in which there has been utter disregard for the statutory procedure and that King therefore should not be construed to require a strict construction of § 616S. Davis v. State, 24 Md. App. 567, 577, 332 A. 2d 733 (1975). Neither the State’s Attorney nor the appropriate court, in that case, had actual knowledge that the inmate was demanding a speedy disposition of the detainer against him under § 616S. A general motion for a speedy trial and an attempt to invoke a statutory speedy trial are not the same. In this regard the case at bar differs.

Appellant’s motion, received by the Criminal Court of Baltimore and the State’s Attorney on May 31, 1974, was admitted into evidence. It reads:

“Dear Sir:

“1 regret to impede on your time, knowing that your time is most monopolized by important legal matters. I am presently contacting you as a result of a detainer notification that I received on May 23, 1974. The stated charge on the detainer is sodomy. The detainer was placed by the Sheriff of Baltimore City.

“In accordance with Article 27, Section 616S, of the Annotated Code of Maryland, I am hearby filing a motion for an imediate trial for final disposition of the above stated charge. Thank you for your time.

Respectfully yours,

/s/ Dennis D. Wise #111093”

The indictment number was inserted by the Clerk of the Court.

Where the State’s Attorney and court have been amply informed of the inmate’s intention to invoke § 616S it is mandatory for them to take the appropriate action. This they failed to do. The somewhat technical requirement of having the institution file the inmate status form should not prevent the inmate from invoking his rights where he has made his demands clear. We hasten to add, however, that our decision today should in no way be interpreted to allow a prisoner to knowingly fail to comply with all the statutory requirements for the purpose of ambushing the authorities. This case, however, is not one in which Wise wanted his demand to be on file and did not want anyone to know it was a proceeding under the Intrastate Detainer Act. Compare Ekis v. Darr, 217 Kan. 817, 539 P. 2d 16 (1975) and State v. Savage, Mo. App., 522 S.W.2d 144 (1975). Where, however, the proper authorities have actual knowledge of the inmate’s intention they cannot ignore the demand because of a technical deficiency. We do not find it too great a burden to require the State to either proceed with the disposition of the case or inform either the inmate or the institution of the deficiency.

As pointed out, Barnes states that the applicability of each of the statutes is predicated upon the delivery of his written request, with accompanying statements from the warden, to the State’s Attorney and the court where the charge is pending, that a final disposition be made of that charge. Barnes, supra at 209; see also Davis v. State, supra. Generally it is easier for the inmate to simply notify the warden of his intentions, in which case it becomes the duty of the warden to send this notice and the appropriate forms to the State’s Attorney and appropriate court. Obviously this was not the procedure taken in this case. To assess fault for this, however, to the inmate who had no knowledge of the inmate status form and thus preclude the inmate of his rights would contradict the philosophy of the Intrastate Detainer Act as expressed in Hoss v. State, 266 Md. 136, 292 A. 2d 48 (1972) and Barnes, supra, when the State’s Attorney and appropriate court have actual knowledge of the request.

The purpose of the inmate status form is somewhat cloudy. The wording of § 616S (a) is similar to § 616D (a). With regard to the Interstate Act the inmate status form would be helpful in aiding the prosecuting attorney’s decision whether to initiate costly extradition proceedings. The value of this form is not so evident when the inmate is already incarcerated in the state. The same information is much more accessible to the prosecutor when the Intrastate Act is being invoked. Obviously it is convenient to have all information concerning the inmate in one file, and it should be submitted in accordance with the statute, but this reason alone should not preclude the inmate of his rights where he complied with the other requirements of the statute. It should not be a condition precedent to invocation of his rights.

In the instant case Wise was in segregation. The form given to him stated only that he had thirty days in which to file for an immediate trial. It did not state that he should inform the warden in order to invoke this right, nor was there any testimony that he was ever specifically so informed. Under these circumstances we can find no inference of any attempt on the part of Wise to create or ignore any deficiencies in his demand. We do find, however, that a duty to dispose of the case within 120 days was placed upon the State’s Attorney and the court, after receipt of the inmate’s written request under § 616S. They failed in this regard. We, therefore, reverse the judgment and remand the case for dismissal of the indictment with prejudice.

In view of our decision we do not reach the other questions raised by the appellant.

Judgments reversed.

Case remanded for further proceedings.