author: Gilbert, C. J.,

text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. STATE DEPARTMENT OF HEALTH AND MENTAL HYGIENE, etc.
    [No. 473,
    September Term, 1977.]

      Decided January 17, 1978.

      The cause was argued before Gilbert, C. J., and Moylan and Liss, JJ.

      Richard M. Hartman, Chief City Solicitor, with whom was Benjamin L. Brown, City Solicitor, on the brief, for appellant.

      Jack C. Tranter, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This Court, in Youngstown Cartage Co. v. N. Point Peninsula Community Co-Ordinating Council, 24 Md. App. 624, 628, 332 A. 2d 718, 720 (1975), found it unnecessary to decide whether a municipality had authority to zone land “owned and used by the State.” We pointed out that “[t]he question of a county’s right to zone” such land “does not appear to have been decided thus far in Maryland.” 24 Md. App. at 628, n. 4, 332 A. 2d at 720. Subsequently, the Court of Appeals, in Mayor of Baltimore v. State, 281 Md. 217, 378 A. 2d 1326 (1977), came firmly to grip with the problem. The Court, speaking through Judge Eldridge, held that “since the General Assembly has neither named the State nor manifested an intention that the State be bound in the provisions of the Zoning Enabling Act, Baltimore City has no authority to subject the State’s use of the Continental Can property to its zoning ordinance.” (Footnote omitted.) (Emphasis supplied.) We read that language to mean that when the State uses its property for State purposes, municipal zoning laws are not applicable to the use. Left unanswered by Mayor of Baltimore v. State, supra, is the question: What effect does the municipal zoning ordinance have on State-owned property that is leased to another for private purposes or for public purposes?

We, in Youngstown, made clear that we did not share the view espoused in two New Jersey cases, Aviation Servs., Inc. v. Bd. of Adjustment, 20 N. J. 275, 119 A. 2d 761 (1956); Hill v. Borough of Collingswood, 9 N. J. 369, 88 A. 2d 506 (1952), that when a State leases or rents its property to a tenant for the tenant’s private venture or purpose, the sovereign’s immunity from local zoning laws is transferred to the tenant 24 Md. App. at 630, 332 A. 2d at 721. Indeed, we expressed our concern that to follow such a practice would be to permit the sovereign to trample willy-nilly over the zoning ordinances of the municipalities to the possible detriment of the public health, safety and general welfare. The Court of Appeals did not reach the issue in Mayor of Baltimore v. State, supra, inasmuch as the Continental Can property was not only to be acquired by the State, but was to be used by the State as a penal institution to alleviate the crowded, congested, and combustible conditions existent in the present correctional system.

The situs of the controversy out of which this case has arisen occurred at almost the opposite end of the City from the Continental Can location. The matter now before us had its origin as a result of the creation of the State Department of Juvenile Services (DJS) as a part of the Department of Health and Mental Hygiene. 1969 Md. Laws, ch. 77, § 25. By the legislative mandate of what is now known as Md. Ann. Code art. 52A, § 5, the DJS was charged with developing "programs for the predelinquent child whose behavior tends to lead to contact with law-enforcement agencies.” (Emphasis supplied.)

Apparently, as a part of its program, DJS acquired the property known as 3119 Ferndale Avenue in the Howard Park area of Baltimore City. DJS then rented the property to the Camp Fire Girls Council of the Chesapeake, Inc., (CFG), a private, non-profit, charitable organization. The rental agreement was a month-to-month tenancy. It is clear from the record, however, that if and when this litigation is final, the parties will enter into a lease for a longer period of time. The purpose of the agreement between the DJS and CFG was to provide a home for six (6) teenage girls between the ages of fifteen (15) and eighteen (18). The girls have all been committed by the Juvenile Court of Baltimore City to the jurisdiction of the DJS as “children in need of supervision” (CINS). According to Md. Cts. & Jud. Proc. Code Ann. § 3-801 (f), a CINS child is one “who requires guidance, treatment, or rehabilitation because

(1) He is required by law to attend school and is habitually truant; or

(2) He is habitually disobedient, ungovernable, and beyond the control of the person having custody of him without substantial fault on the part of that person; or

(3) He deports himself so as to injure or endanger himself or others; or

(4) He has committed an offense applicable only to children.”

A CINS child is not a delinquent child. See Md. Cts. & Jud. Proc. Code Ann. § 3-801 (1) for the definition of a delinquent child.

On October 21, 1976, a permit was issued to the DJS by the Department of Housing and Community Development of Baltimore City. The permit manifests that it is for “Campfire New Day Home” and authorized DJS to house “one family and no more than six (6) children” at the Ferndale Avenue site. Within the “reasonable time” prescribed by The Zoning Ordinance of Baltimore City, Ord. 1051, § 11.0-3 jl (1971), what is described as a “negative appeal” was taken to the Board of Municipal and Zoning Appeals to “prohibit the use of 3119 Ferndale Avenue for a home for Delinquent Girls as proposed by the State.”

The appeal was heard before the Board on December 7, 1976. The same day the Board, being of the opinion that the home was “simply an institution for the care of delinquent children or girls,” found that the use “would have an obviously adverse effect, not only on this community, but on any neighborhood in the City.” The Board concluded that the “permit was issued in error,” and “would menace and endanger the public health, security, general welfare and morals.” The action of the Zoning Administrator in issuing the permit was disapproved. In short, the permit was revoked. The State appealed to the Baltimore City Court.

In that tribunal, Judge Martin B. Greenfeld correctly pointed out that contrary to the Board’s finding, CINS children are not “delinquents,” to which we add that they should not be so characterized. The Board’s revocation of the permit was in turn reversed by the court on the ground that the purpose of the use of the State-owned house was a public purpose and that the Board had no jurisdiction over the issuance of the permit in the first instance.

The City has now appealed to this Court and asks us to reverse the order entered by Judge Greenfeld and to reinstate the Board’s finding. We shall not, because we are in accord with Judge Greenfeld.

At the outset, we made manifest that the law is that a municipality may not exercise zoning jurisdiction over State-owned and used property unless the State has subjected itself to the authority of the municipality. Mayor of Baltimore v. State, supra.

If the issue before us were one of the State’s property being leased to a private party for private use, we would have given the matter short shrift because we have already resolved that question in Youngstown.

Judge Greenfeld was of the view that the use made of the property in the case sub judice was public, and that it served a public purpose. We fully agree.

The Court of Appeals, in Prince George’s County v. Collington Crossroads, Inc., 275 Md. 171, 186-90, 339 A. 2d 278, 286-88 (1975), noted that “ ‘public use’ is not synonymous with the physical use or access by the general public.” The fact that some private enterprise or person will also benefit from an acquisition via condemnation will not convert the public character to private. Furthermore, that the property, after the taking by way of condemnation, will be “put into private hands does not destroy the public character of the taking insofar as that taking may accomplish a proper public benefit.” Herzinger v. Mayor of Baltimore, 203 Md. 49, 60, 98 A. 2d 87, 92 (1953).

In Riden v. Philadelphia, B. & W. R.R., 182 Md. 336, 340, 35 A. 2d 99, 101 (1943), it was stated that:

“[T]he Legislature cannot make a use public merely by declaring it so. Whether a particular use for which private property is sought is in fact public is ultimately a question for the determination of the court.”

There is no one definition of the phrase “public use” which can be utilized in order to determine whether a specific use is public or private. Youngstown Cartage Co. v. N. Point Peninsula Community Co-Ordinating Council, supra at 628, n. 5, 332 A. 2d at 720. See also Prince George’s County v. Collington Crossroads, Inc., supra at 180-81, 339 A. 2d at 283. We pointed out in Youngstown, quoting Ghingher & Ghingher, A Contemporary Appraisal of Condemnation in Maryland, 30 Md. L. Rev. 301, 303 (1970), that:

“Maryland has two distinct concepts of public use, both of which are of constitutional dimension: a taking under article III, section 40 [of the Maryland Constitution] is constitutional only if the property is to be used ‘by the public/ while the purpose of the takings authorized by article XI-B is constitutional if it is for the ‘public benefit/ ”

We further said that the “public benefit test seems to be limited to Land Development and Redevelopment projects such as slum clearance____” 24 Md. App. at 629, 332 A. 2d at 721. Thus, because the property in the instant case is not concerned with land development or redevelopment, we eliminate the “public benefit test” from our consideration.

“Use by the public,” as we have previously indicated, is not susceptible to any one single, all-inclusive definition. The term may have different meanings, dependent upon the factual circumstances. In Youngstown, supra, we held that the State-owned land, leased to a private enterprise for purely private purposes, was not subject to “public use” because “[t]he public has no right to enter upon or make use of the ... property so long as ... [Youngstown] remains a lawful tenant thereof.” (Emphasis supplied.) 24 Md. App. at 630, 332 A. 2d at 721.

There are many State-owned facilities where the public, in the sense of the average citizen, has “no right to enter” absent a special permission received from competent authority. Some examples are:

1) Any penal institution in the State, which of necessity, for the protection of the public, the inmates, and the custodians, the public is not free to enter at will upon the property. Specific visiting hours and rules govern entry into the institution, yet the facility is unquestionably “in the public use.”
2) A courthouse is open to the public, but certain portions of it are not. The public may enter a courtroom but have no right to burst in upon a jury during its deliberation, yet the jury room is being employed “in the public use.”
3) The Comptroller’s office is most certainly a public building, and “in the public use,” but one is not free to roam throughout that office. Not only would the daily routine be interrupted by the interloper, but the intruder would be placed in a position of breaching the public trust in the Comptroller’s office by his gaining access to confidential individual income tax information.
4) One need but think of the chaotic conditions which could be created by the public’s use of all public facilities such as the National Guard Armories’ weapons rooms, police headquarters’ interrogation rooms, or the record rooms of the Motor Vehicle Administration, and he will realize that “public use” does not mean the right of individual members of the public to enter upon all State-owned property at random.

The DJS is specifically charged by Md. Ann. Code art. 52A, § 11 with establishing, maintaining, and operating “within the annual budgetary appropriations” such “facilities as may be needed properly to diagnose, care for, train, educate, and rehabilitate children in need of these services____” By § 11A of the same article, enacted as 1974 Md. Laws, ch. 788, § 1, the legislative mandate directed to DJS was that it “shall provide for care, diagnosis, training, education, and rehabilitation of children by placement in group homes and institutions operated by nonprofit charitable corporations. ...”

We think it apparent from the record that the CFG is a “charitable corporation” and that the DJS, in acquiring the property on Ferndale Avenue and renting it to CFG as a “group home” for CINS, is carrying out the will of the General Assembly as manifested by § 11A. We further think that the use made of the Ferndale property is a “public use” in that it is being used by the State for the benefit of the general public in providing to CINS “care, diagnosis, training, education, and rehabilitation.” Md. Ann. Code art. 52A, § 11 A. Hopefully, such a program will turn a CINS from any desire to pursue errant ways into a responsible and productive member of society.

We hold that the property known as 3119 Ferndale Avenue, while owned by the DJS and utilized in the circumstances of this case, is not subject to the jurisdiction of the Board of Municipal and Zoning Appeals of Baltimore City.

Order affirmed.

Costs to be paid by Mayor and City Council of Baltimore

      . Such a situation would be deplorable. Imagine the hypothetical situation wherein the State acquires a tract of land in a highly desirable residential area of the city and then leases it to a tannery or a slaughter house. The effect on the surrounding area would be devastating.

      . The term “predelinquent child” is not defined. Patently, it can refer to all children under the age of eighteen (18) years who have not been adjudicated delinquent, and would include a child in need of supervision (CINS) as that term is defined in Md. Cts. & Jud. Proc. Code Ann. § 3-801 (f).

      . Most people recognize that homes are needed for CINS children, but many feel just as the Board obviously felt, that they should be located “someplace else.” Chief Judge Desmond, in Von Kohorn v. Morrell, 9 N.Y.2d 27, 34, 172 N.E.2d 287, 289, 210 N.Y.S.2d 525, 528 (1961), cogitatively observed that, “everyone wants churches, schools (and clubs) [and homes for CINS children] but not in his own neighborhood.”

      . The Zoning Ordinance of Baltimore City, Ord. 1051, § 11.0-3 1 (1971).'

      ! It may be that the State would not need a permit unless the use to be made was to a private parly for a private use. We do not, however, decide that issue in this case.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    MONCEF GUEN v. INGE GUEN
    [No. 479,
    September Term, 1977.]

      Decided January 17, 1978.

      The cause was argued before Thompson, Moore and Couch, JJ.

      James K. Foley for appellant.

      Jeffrey Hannon for appellee.
   Couch, J.,

delivered the opinion of the Court.

This appeal stems from a decree of divorce a vinculo matrimonii (entitled Decree of Divorce Pro Confesso A Vinculo Matrimonii by the court below) granted to Inge Guen on December 13, 1976 by the Circuit Court for Montgomery County (Mitchell, J.). That decree dissolved the marriage between Inge Guen, appellee, and her husband, Moncef Guen; awarded custody of one minor child (Karim Guen) to appellee; and ordered the appellant to pay $60 per week child support, and $250 per week for the support and maintenance of the appellee. On December 17, 1976, Moncef Guen, who had not appeared in the divorce proceedings, filed a motion raising preliminary objection asking that the divorce decree be set aside on the ground of insufficiency of service of process. The Chancellor denied the motion, whereupon appellant filed a new motion to set aside, raising both jurisdictional and non-jurisdictional grounds. Appellant then took this appeal before the court below ruled on his new motion to set aside.

The issues presented in this appeal revolve around the sufficiency of the service of process under Md. Rule 107 (a)(4)(i). Appellant maintains that service was not properly accomplished under this Rule, and as a result the trial court lacked jurisdiction to award the divorce, child custody, and support.

Appellee, in essence, contends that service was valid under Rule 107 (a)(4)(i) because that Rule requires only that the appellant have actual notice of the pending suit, and appellant here had actual notice. Appellee in this context maintains that strict compliance with the foreign law of service was not necessary.

Appellee also contends that by virtue of the appellant moving to set aside the decree of the Montgomery County Circuit Court, appellant “generally appeared” so as to waive his preliminary objection.

Appellant and appellee both briefly consider whether the court below had in rem jurisdiction. It is unclear whether the Chancellor proceeded on an in rem or in personam basis for jurisdiction. Rule 105 makes it clear that the acquisition of in rem jurisdiction is to be accomplished in the same manner as in personam jurisdiction. In light of our disposition of this case, we decline to consider whether the court below had in rem jurisdiction in this appeal.*

The facts leading to this appeal are relatively simple and undisputed. Moncef Guen, a Tunisian national, and Inge Guen, a German national, were married in London in 1958. According to evidence before the Domestic Relations Master, they resided in Montgomery County from 1968 until February 28,1975. They owned, as tenants by the entireties, a residence at 6009 Bradley Boulevard, Bethesda, in Montgomery County. On February 28, 1975, appellant left the marital residence, returning in early May to remove one of the minor children, and left permanently to reside in Tunis, Tunisia.

On May 13,1976 appellee filed a bill of complaint for divorce a vinculo matrimonii. The circuit court issued a show cause order directing that the appellant show cause on June 21,1976 why he should not be required to make reasonable child support and alimony pendente lite. On July 6, 1976, counsel for appellee filed a return of private process server, certifying that service of process on appellant was accomplished by sending the Bill of Complaint and Show Cause Order to the appellant at 31 Avenue de Paris, Tunis, Tunisia, by certified mail, restricted delivery, return receipt requested. On the same day counsel for appellee filed an affidavit “showing notice of proceedings” on the part of appellant. It alleged that counsel for appellee and appellee had received threatening communications from appellant, indicating that he had actual notice of the action. The return receipt was attached to the affidavit. The signature on the receipt did not appear to be that of the appellant.

Apparently appellant pursued his own divorce in Tunisia for he was granted a divorce on July 20, 1976 by a Tunisian court.

On December 13, 1976, pursuant to appellee’s motion, the Chancellor ordered the sequestration of the residence at 6009 Bradley Boulevard. On the same day, the Chancellor set aside the Tunisian divorce obtained by appellant. More importantly, the Chancellor signed a decree of divorce pro confess© {a vinculo matrimonii) which, including dissolving the marriage, awarded custody of the minor child, Karim, to appellee, ordered the appellant to pay $60 per week child support, and $250 per week for support and maintenance of appellee. It was ordered that the sums to be paid for child support and alimony were to be paid from the equity owned by appellant in the sequestered property.

Four days later, appellant filed his motion raising preliminary objection and to set aside the decree. The only ground advanced was insufficiency of service of process. Appellant also filed an affidavit asserting that his signature did not appear on the return receipt.'After a hearing on the motion, the Chancellor denied the motion on March 30,1977.

On April 11,1977, appellant filed a new motion to set aside the decree of divorce, raising various jurisdictional grounds, including the original ground of insufficiency of service of process that had been raised in his initial motion raising preliminary objection, and non-jurisdictional grounds, including that the appellee had testified falsely in the proceedings leading up to the decree of divorce.

Also on April 11,1977, appellant filed a motion for written opinion pursuant to the Chancellor’s denial of his motion raising preliminary objection.

On April 26, 1977, appellant filed an order for appeal to this Court. Though appellee filed a reply to appellant’s second motion to set aside, that motion was never ruled on below. On June 22, 1977, the Chancellor filed his memorandum, explaining his grounds for denying appellant’s motion raising preliminary objection.

In his written opinion the Chancellor held that although the signature on the return receipt did not appear to be appellant’s signature, the appellant had been validly served under Md. Rule 107 (a)(4)(i). In so holding, the Chancellor relied on Art. 9 of the Tunisian Code of Civil and Commercial Procedure.

Article 9 is, of course, the wrong provision of Tunisian law. Rule 107 (a)(4)(i) contemplates service as it would be accomplished within the foreign country where the defendant can be found. Article 9 applies to service by a Tunisian on a person without Tunisia. To this extent, the Chancellor erred.

Proper reliance should have been placed by the Chancellor on Articles 6 and 8 of the Tunisian Code, which provide for service on a defendant within Tunisia. The Chancellor made no findings as to the sufficiency of service under these articles. However, we believe it within our province to examine the record to determine if there is sufficient evidence of valid service under Articles 6 and 8, so as to prevent the time and expense of an additional appeal, if possible, as permitted by Md. Rule 1085.

Assuming, without deciding, that the return of service of process in this case was proper, and entitled to prima facie validity, the return could only be overcome by clear and convincing evidence of the invalidity of service. J. Whitson Rogers v. Hanley, 21 Md. App. 383, 319 A. 2d 833 (1974). That standard has been met beyond question in this case. The appellant in his affidavit asserted that he did not sign the return receipt, nor authorize anyone else to sign it. More importantly, as recognized by the trial court and the appellee, the return receipt does not bear appellant’s signature. Thus no prima facie validity can be accorded to the return of service.

Further, the record is devoid of any evidence that service was properly made in accordance with Articles 6 and 8. There is no evidence of personal service on appellant. There is no evidence that appellant could not be found at his domicile, so as to allow service on a member of his household. There is no evidence that the notice was left with appellant’s representative, servant, or member of his household who had the capacity of discernment. There is no evidence that no one could be found at the domicile of the appellant, or that appellant refused to accept process, so as to allow service on the local sheik or headman.

There is, essentially, no evidence as to who was served, and under what circumstances, other than the process was mailed to a certain address in Tunis. Accordingly, there is no sufficient evidence on which a finding that service was properly made under Articles 6 and 8 could be predicated.

We must conclude that the formal requirements of Maryland Rule 107 (a)(4)(i) were not met.

Appellee argues that despite the failure to meet the formal requirements of Rule 107 (a)(4)(i), the record shows that appellant had actual notice of the Montgomery County divorce proceeding. Appellee contends that Rule 107 (a)(4) requires only actual notice on the part of a defendant. For this proposition appellee relies on certain language found in Walter E. Heller & Co. v. Kocher, 262 Md. 471, 278 A. 2d 301 (1971), to the effect:

“[T]he obvious purpose of the provisions of these Rules [106 and 107] is to provide for methods which will reasonably insure the ultimate reception by the corporation of actual notice that an action has been filed against it____When... a corporation has actual notice, in fact, of the pendency of the action, due process of law is obviously afforded . . . .”

262 Md. at 478, 278 A. 2d at 305. Kocher must be put in its proper context, however. That case involved only a due process attack on the service of process. As the Court of Appeals noted later in Kocher;

"When, however, a corporation has actual notice, in fact, of the pendency of the action, due process of law is obviously afforded and unless the defect in service is jurisdictional, the corporation cannot effectively complain that it has not been afforded due process.”

Id. at 479, 278 A. 2d at 305.

The language of Rule 107 (a)(4) itself indicates that more than the due process minimum.’is required by the Rule. The phrase “when reasonably calculated to give actual notice” is the due process minimum requirement. But the Rule goes on to provide different formal alternatives for service, indicating that the Rule encompasses a jurisdictional prerequisite as well as a due process prerequisite.

In J. Whitson Rogers v. Hanley, 21 Md. App. 383, 319 A. 2d 833 (1974), this Court considered the same Rule (106) as was considered in Kocher. We held (speaking through then Chief Judge Orth) that the failure to comply with the formal requirements of Rule 106 was jurisdictional, and the defect was fatal to the jurisdiction of the lower court. We noted that:

“[D]ue process is satisfied not only by personal service as such, but when there is adherence to the Maryland Rules with respect to service of process.”

21 Md. App. at 392, 319 A. 2d at 838-39.

The Court of Appeals has often held that defective service is jurisdictional, and that actual knowledge on the part of the defendant will not cure the jurisdictional defect. Little v. Miller, 220 Md. 309, 153 A. 2d 271 (1959); Sheehy v. Sheehy, 250 Md. 181, 242 A. 2d 153 (1968); Miles v. Hamilton, 269 Md. 708, 309 A. 2d 631 (1973).

In light of these cases, we conclude that in Maryland the plaintiff must do more than satisfy the due process requirement identified in Kocher. The plaintiff must serve the defendant in accordance with the applicable rules, or the court will fail to acquire jurisdiction over the defendant. In this case the appellee, plaintiff below, failed to comply fully with the applicable rule, Md. Rule 107 (a)(4)(i). To that extent the court below did not acquire jurisdiction to order the decree of divorce or an in personam judgment for alimony and child support. Therefore, the trial court erred in denying appellant’s motion raising preliminary objection.

Appellee attempts to rescue the decree of divorce, despite the defect in the service of process, through her contention that the appellant voluntarily appeared in the action by virtue of both his motions to set aside the decree, thereby waiving his preliminary objection.

The initial motion raising preliminary objection was not a voluntary appearance so as to waive service of process. In it, appellant asserted only the jurisdictional ground of insufficiency of service of process. Appellant complied with the only prerequisite to Md. Rule 323 — that the defect in service be raised before any other defense.

The Court of Appeals was confronted with a similar proposition in Keen v. Keen, 191 Md. 31, 60 A. 2d 200 (1949). There the trial court granted Pauline Keen a divorce after a decree pro confesso from Howard Keen, plus $500 per month alimony. One month later, Howard entered a special appearance in order to file an order of appeal. Thereafter Howard dismissed the appeal and filed a petition to set aside and to allow him to file an answer, based on several non-jurisdictional grounds. Two months later Howard moved to strike the decrees on the ground of insufficiency of service of process. Both the motion and prior petition were overruled, and Howard appealed.

The Court of Appeals held that due to the insufficiency of service of process, the decree should have been stricken. The Court noted:

“[T]he validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently.”

This reasoning is applicable to this case. Appellant quite properly asserted the service defect first, as required by the rules, precluding a finding of waiver of his objection to the decree. Thus, the decree had to be judged on the jurisdiction of the court as it existed before it was rendered, not upon the possibility that jurisdiction was voluntarily conferred after it was rendered. Given that service defect the decree cannot stand.

However, as in Keen, the fact that appellant did not waive his preliminary objection and that the decree is invalid, does not also mean that appellant did not enter a voluntary appearance so as to submit himself to the jurisdiction of the court in all subsequent proceedings. In Keen, despite striking the decree, the Court of Appeals went on to hold that by virtue of Howard’s original order of appeal and his petition to set aside which set out meritorious defenses, Howard had voluntarily appeared. Thus he was bound in all subsequent proceedings, and was required to file an answer on the remand of that case. That is also the result in the instant case.

In his second motion to set aside, appellant raised at least one non-jurisdictional ground —- that appellee had not represented the facts truthfully to the Chancellor. What appellant did, in effect, was to controvert the allegations made by appellee relevant to the placing of fault for the divorce. Appellant was speaking to the merits. As such, he made a voluntary appearance, submitting himself to the jurisdiction of the court for all subsequent proceedings. Keen v. Keen, supra at 41-42, 60 A. 2d at 205, 206.

Accordingly, we vacate the orders and decrees of the trial court and remand this case with directions that appellant be permitted to file his answer and defenses within the applicable rule period, counting from the return of the mandate of this Court. The court below will have full jurisdiction to hear this case and sign an appropriate decree, or, if appellant fails to file a responsive pleading, to enter a new decree pro confesso.

Orders reversed; decree and decree pro confesso stricken; case remanded for further proceedings.

Costs to be paid by appellee.

      . Rule 107:
      “When the law of this State authorizes service of process outside this State as a basis for personal jurisdiction over persons outside this State the service may bo made in the following manner:
      4. When service is to be effected in a foreign country, it is sufficient if service of a copy of the summons, together with a copy of the original pleading, when reasonably calculated to give actual notice, is made:
      (i) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction.”

      . See Shaffer v. Heitner, 433 U.S 186, 97 S. Ct. 2569, 53 L.Ed.2d 683 (1977), in which the Supreme Court held that in rem jurisdiction must be judged by the minimum contacts analysis of International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). See also Maryland Rule 1085.

      . Tunisian Code of Civil and Commercial Procedure:
      Art. 9:
      “If the person to whom the notice is to be served is not in Tunisia but his domicile in a foreign country is known, a copy of the notice shall be posted at the board reserved for official postings located in the court of the plaintiff. Another copy is sent by registered mail, along with a return of acknowledgment receipt, to the person to whom the notice is to be served.”

      . Art. 6:
      “A copy of the notice shall be delivered to the person to whom the notice is to be served, or it has to be left at his real domicile, or if need be, at his elected domicile.”
      Art. 8:
      “If the process-server cannot find in his domicile the person to whom the notice is to be served, he shall then leave a copy of the notice with his representative or with his servant or with any member of his household who has the capacity of discernment. If no one is found at the domicile, or if the person to whom the notice is addressed refuses to accept the copy of the notice, then the process-server shall deliver the notice to the headman of the neighborhood, the sheik of the locality or the chief of the police of the district. . . .”

      . See Sanders v. Sanders, 12 Md. App. 441, 278 A. 2d 615 (1971), for a case where this Court, applying Kansas taw, held that strict compliance was jurisdictional, in respect to a Williams v. North Carolina, 317 U. S. 287, 87 L. Ed. 279, 63 S. Ct. 207 (1942), divorce.

      . In Barrie-Peter Pan Schools v. Cudmore, 261 Md. 408, 276 A. 2d 74 (1971), the strict formalities of the appropriate statute were compiled with. This is inapposite to the instant case.

      . We are not to be understood to imply the court below could have acquired'in personam jurisdiction through proper service, only that it did not. Whether there existed a basis for in personam jurisdiction was not raised below or on appeal, and in light of our disposition of this case, it is unnecessary for us to decide the question.

      . The voluntary appearance has two effects: it not only waives service of process, but supplies a valid basis for the acquisition of jurisdiction — consent. Keen v. Keen, supra; Killen v. American Casualty Co., 231 Md. 105, 189 A. 2d 103 (1963).


text:
    W. LUTHER HALL et al. v. JULE ABNER JOHNSON, Personal Representative of the Estate of Catherine W. Johnson
    [No. 518,
    September Term, 1977.]

      Decided January 17, 1978.

    Appeal from the Orphans’ Court for Prince George’s County (Oneglia and Heffron, JJ.).

      The cause was argued before Gilbert, C. J., and Moylan and Liss, JJ.

      Paul Manaes, with whom was Philip M. Glick on the brief, for appellant W. Luther Hall. Theodore Kligman for other appellant.

      Alexander Breuer for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

When Dr. Catherine W. Johnson of Fort Foote, Mayland, died on November 19, 1973, she left a gross estate of $579,576.71, a will containing a marital trust for the benefit of her widower, a number of specific bequests, a residuary trust for the benefit of one son who has suffered from mental illness, and a controversy over whether the Federal Estate Tax is to be apportioned among the legatees or borne by the estate so that all bequests are free and clear of taxation.

The provenance of this litigation is found in the Last Will of Dr. Johnson immediately following the formal recitation of her animus testandi. The “FIRST” clause of the will reads in pertinent part:

“I direct that all lawful debts I owe at the time of my death, including funeral and administration expenses and the expenses of my last illness ..., and all estate and inheritance taxes, be paid as soon after my death as can lawfully and conveniently be done. I further direct that the amount spent for my funeral ... be left to the discretion of my Executor I! without regard to the amount authorized by law.” (Emphasis supplied.)

The other two clauses of the will that have led to some difficulty among the legatees are:

“THIRD: Specific Bequests
I hereby give and bequeath the following sums to the following named persons, in grateful appreciation of their kindness to me and my family, each gift and bequest being subject to the condition that the beneficiary survive me:
(H) To my kind and competent physician, DR. W. LUTHER HALL, ... or, if he predeceases me, then to his wife, ELIZABETH HALL, or, if they predecease me, then in equal shares to such of their children as survive me, One Hundred (100) shares of common stock of Marriott Corporation and Eight Hundred (800) shares of common stock of Emerson Electric Co.
O') To DR. JAMES M. BACOS, ... in appreciation of his kind and competent medical care, Four Hundred (400) shares of common stock of Emerson Electric Co.”

The will was admitted to probate in December 1973, and the testatrix’s son, Jule Abner Johnson, was designated as the personal representative of his deceased mother’s estate, a role in which he is still cast, as appellee, in this appeal.

Approximately, six months later, the surviving husband and his daughter instituted a caveat proceeding in which they sought to void the bequest to Doctors Hall and Bacos. After a not unusual amount of preliminary sparring by way of discovery proceeding, the matter of the caveats was settled, but apparently not without producing the wounds which festered into the instant appeal.

The administration of the estate continued without further complication until the appellee sought, in January 1977, to apportion the payment of the Federal Estate Tax among the several legatees. The apportionments for taxes and interest due amounted to slightly more than twenty (20) percent of the bequest. Hence, in the case of Dr. Hall, the tax totals $5,785.62. Dr. Bacos was assessed $2,733.67. Drs. Hall and Bacos opposed the apportionment, assigning as reason, that “Article FIRST” of Dr. Johnson’s will directed the personal representative to pay “all estate and inheritance táxes.” Therefore, the appellants reasoned that the bequests made to them were free and clear of any tax. In short, the tax was to be charged, in this case, exclusively against the residuary trust. The Orphans’ Court for Prince George’s County disagreed with the position taken by the appellants and ordered the apportionment of the federal estate taxes. This appeal ensued.

Although the appellants present three arguments as to why they believe the Orphans’ Court erred, the real issue before us may be stated thusly: Did the Orphans’ Court err in apportioning federal estate taxes among the legatees under the will in view of “Article FIRST” of that will?

Md. Est. & Trusts Code Ann. § 11-109, the Maryland Uniform Estate Tax Apportionment Act, provides in pertinent part:

“(b) Persons among whom tax to be apportioned.
— The tax shall be apportioned among all persons interested in the estate. The apportionment shall be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax shall be used for that purpose.”

The statute then sets out the procedure for determining apportionment, the method of proration, and the allowance for exemptions, deductions, and credits. Md. Est. & Trusts Code Ann. § 11-109 (c) (d) and (e).

There is, however, a clause in the Act that permits a testator to avoid apportionment. The escape hatch is found in Md. Est. & Trusts Code Ann. § 11-109 (k), which provides:

“Except as otherwise provided in the will, or other controlling instrument, the provisions of . . . [the Maryland Uniform Estate Tax Apportionment Act] shall apply to the apportionment of, and contribution to, the federal and Maryland estate taxes.” (Emphasis supplied.)

It is the italicized portion of subsection (k) of § 11-109 that appellants assert that Dr. Johnson invoked through the use of the language, in “Article FIRST” of her will, “I direct that all lawful debts I owe at the time of my death... and all estate and inheritance taxes, be paid as soon after my death as can lawfully and conveniently be done.”

Appellants assert that their position is bolstered by “Article TENTH” of Dr. Johnson’s will. Subsection (B) of that article authorizes and empowers the Personal Representative “[t]o pay all expenses enumerated in Article FIRST hereof, either from the real or personal property of my estate, as my . . . [Personal Representative] in his discretion may determine.”

The precise issue put to us does not appear to have been decided by an appellate court of this State, although courts of other States have come to grips with the matter. We bear in mind the mandate given us by the General Assembly that:

“Such of the provisions of this section [Md. Est. & Trusts Code Ann. § 11-109] as are uniform with statutes enacted in other states shall be so construed as to effectuate their purpose to make uniform the laws of those states which enact such provisions.” Md. Est. & Trusts Code Ann. § 11-109 (i).

On oral argument, appellee conceded that in view of the legislative direction relative to uniformity of construction, Md. Est. & Trusts Code Ann. § 11-109 (i), that cases decided on the issue in those States which have adopted the Uniform Act, n. 5, infra, are to be considered more persuasive than opinions from the courts of those States which have not statutorily caressed the Act to their bosom.

Words, or words closely akin to those used in “Article FIRST” of the will of Dr. Johnson have been held to be sufficient to show a clear, unambiguous manifestation of testamentary intent to shift the payment of estate taxes from the many to the few; from more than one to one.

The legislative mandate is not as easy to follow as it is to articulate. This is so because insofar as we have been able to ascertain, a limited number of States have adopted the Uniform Estate Tax Apportionment Act. There is a paucity of judicial decisions on the particular point before us in those States that have embraced the Uniform Act. Of the few cases that we have been able to find, only two are directly on point. The first is In re Ogburn’s Estate, 406 P. 2d 655 (Wyo. 1965). There, the testatrix’s will provided:

“FIRST: I direct the payment of all my just debts, taxes, funeral expenses and expense of administration of my estate.” 406 P. 2d at 657 (Emphasis supplied.)

Then followed certain specific bequests and a residuary clause. The question arose as to whether the federal estate taxes were to be paid from the residuary estate in the light of the direction in the FIRST Article that taxes be paid or apportioned under the Wyoming Estate Tax Apportionment Act. The Supreme Court of Wyoming noted that the testatrix was a successful business woman cognizant of estate taxes, and although the particular clause of the will was not a model of clarity, it “sufficiently expressed the intention of the testatrix to direct against statutory apportionment of taxes imposed on [the specific bequest] gifts.” The court observed that, “[i]t is only by such an interpretation that force and effect can be given to such language ...” as that utilized by the testatrix. 406 P. 2d at 660.

The second case. In re Crozier’s Estate, 105 N. H. 440, 201 A. 2d 895 (1964), interpreted a clause reading:

“I direct the payment of all my just debts, funeral charges, expenses of administration and inheritance taxes out of my estate as soon as practicable after my decease.”

The Supreme Court of New Hampshire believed that the decedent intended that the State inheritance and federal estate taxes were to be paid from the residuary estate. The court conceded that the language of the testatrix was “artless and ambiguous but in the last analysis an effective provision against apportionment of death taxes.” 105 N. H. at 442, 201 A. 2d at 897.

The principal rule in determining the effect of a tax clause in a will is to glean the testamentary intent. We look to the four corners of the will to ascertain that intent. Once we have determined that intention, it prevails. In short, intention is the thread by which we weave our way through the Minotaur’s maze. Wilmington Trust Co. v. Copeland, 33 Del. Ch. 399, 94 A. 2d 703 (1953); Union Bank & Trust Co. v. Bassett, 253 S.W.2d 632 (Ky. 1952); Brauburger v. Sheridan, 7 N.J. Super. 576, 72 A. 2d 363 (1950); In re Bayne’s Will, 31 Misc. 2d 296, 102 N.Y.S.2d 525 (1950); Whitlow v. Thomas, 54 Ohio L. Abs. 41, 86 N.E.2d 622 (1949); Norton v. Jones, 210 S.W.2d 820 (Tex. Civ. App. 1948); Annot., 37 A.L.R.2d 7 (1954); Annot., 16 A.L.R.2d 1282 (1951); Annot., 15 A.L.R.2d 1216 (1951). See also General German Aged People’s Home v. Johns Hopkins Hosp., 170 Md. 128, 183 A. 247 (1936); Union and New Haven Trust Co. v. Sullivan, 142 Conn. 685, 116 A. 2d 908 (1955); McLaughlin v. Green, 136 Conn. 138, 69 A. 2d 289 (1949); In re Estate of Hilliar, 498 P. 2d 1237 (Wyo. 1972); In re Ogburn’s Estate, 406 P. 2d 655 (Wyo. 1965).

An apportionment statute, such as Md. Est. & Trusts Code Ann. § 11-109, is an expression of the legislative policy that federal estate taxes are to be levied among the beneficiaries in proportion that benefit received bears to the total taxable estate. Absent direction from the testator expressed in the will to the contrary, the personal representative is charged by § 11-109 not only with seeing that the federal estate tax is paid, but also with the duty of fixing the impact of the tax upon each beneficiary’s share in the proportion that the share contributed to the total tax. See Estate of Hendricks, 11 Cal. App. 3d 204, 89 Cal. Rptr. 748 (1970); In re Cushing’s Estate, 113 Cal. App. 2d 319, 248 P. 2d 482 (1952); In re Myers’ Trust, 20 Misc. 2d 990,190 N.Y.S.2d 566 (1959). “In a tax allocation problem the text of the will is to be scanned only to see if there is a clear direction not to apportion; and if such explicit direction is not found, construction of text ceases because the statute states the rule.’’ In re Mills’ Estate, 189 Misc. 136, 64 N.Y.S.2d 105, 110 (1946), aff’d 212 App. Div. 229, 70 N.Y.S.2d 746 (1947), aff’d 297 N. Y. 1012, 80 N.E.2d 535 (1948) (Emphasis in original text.); Oviatt v. Oviatt, 24 Ohio Misc. 98, 260 N.E.2d 136 (1970).

Since the statute represents the Legislature’s judgment of the normal intent of a testator, any provision in a will which endeavors to render the statute inapplicable must do so in such a manner that no other reasonable interpretation can be made. In re Estate of Erieg, 439 Pa. 550, 267 A. 2d 841 (1970).

The appellee, in the case sub judice, relies upon a number of cases which hold basically that in order to defeat an apportionment statute the intent of the testator must be clear and unambiguous, a statement with which we are in complete accord. The problem lies in whether, in the case now before us, “Article FIRST” sets out such a statement.

Those who contend against the statutory apportionment of Md. Est. & Trusts Code Ann. § 11-109 must bear the burden of proof by a preponderance of evidence. In re Pepper’s Estate, 307 N. Y. 242, 120 N.E.2d 807 (1954). We shall now consider whether appellants have done so, bearing in mind the aforegoing discussion.

We note that the testatrix was a medical doctor with a degree of success in order to accumulate an estate of more than half a million dollars, exclusive of insurance, except for a nominal policy of $1,837.03. She sought and obtained competent legal advice in the preparation of her will, and in order to take every possible tax advantage, she created a marital trust for her aged husband. She further created a residuary trust for her son. A large portion of her estate consisted of stocks and bonds totaling $247,109.90 in value.

We think it safe to infer that Dr. Johnson possessed a reasonable command of the English language and knew what she had written in “Article FIRST” of her will. We think it equally safe to infer further that when she directed “all estate and inheritance taxes, be paid as soon after” her death as could be lawfully and conveniently done, she was not simply acknowledging the existence of the federal estate tax and uttering mere platitudes relative to payment thereof. We think Dr. Johnson to have said, in effect, “I direct that. . . all estate and inheritance taxes, be paid” as soon as it is lawful and convenient to so do. We further think the doctor meant that the federal estate taxes were to be deducted from the residuary trust, and that all other testamentary gifts would pass to the beneficiaries free and clear of the tax. To hold otherwise would be to attach absolutely no meaning to anything contained in “Article FIRST” except the non-limitation on the funeral expenses. Certainly, the first portion of the Article is a mere formal recitation directing the personal representative to do what the law clearly requires be done, but the law does not require that bequests be paid over free and clear of federal estate taxes. Indeed, as we have seen, Maryland law requires otherwise, unless the will provides to the contrary.

We think that Dr. Johnson’s will did clearly so provide. The federal estate taxes should be deducted from the residuary trust and paid over to the Treasurer of the United States. The appellants should have received their legacies free and clear of federal estate, Maryland estate, and Maryland inheritance taxes. In our view, the Orphans’ Court was wrong in obstructing Dr. Johnson’s intent and, in effect, rewriting her will.

Judgment reversed.

Case remanded to the Orphans' Court for the passage of an order denying apportionment.

Costs to be paid by the appellee.

      . We pointed out in Bugg v. Maryland Transp. Auth., 31 Md. App. 622, 626, n. 3, 358 A. 2d 562, 565 (1976), that the use of the designation “executor” is passe. See former Md. Ann. Code art. 93, § 1-101 (n) and former Subtitle VI of art. 93. The proper designation is “personal representative.” Md. Est. & Trusts Code Ann. s§ 1-101 (o), 6-101 et seq.

      . By the terms of the settlement the bequests to Dr. Hall and Dr. Bacos were reduced by fifteen (15) percent. Thus, Dr. Hall received 85 shares of Marriott and 680 shares of Emerson Electric. Dr. Bacos received 340 shares of Emerson Electric.

      . At the time of Dr. Johnson’s death, former Md. Ann. Code art. 93, § 11-109 was viable and controlling. When the Legislature recodified certain portions of Md. Ann. Code by 1974 Md. Laws, ch. 11, articles 16, 21, 36, 37A, 43, 49A, 75B, and 90 were repealed. Article 93 was repealed in its entirety. The repealed articles and sections were reenacted as the Estates and Trusts Article of the current code. The only change made to § 11-109 was in subsections (j) and (k), and those changes were stylistic only. For purposes of simplicity, we shall refer to the present code.

      . Quarreling over the meaning of words is not uncommon to the legal profession. As G.K. Chesterton (1874-1936) put it, “What is the good of words if they aren’t important enough to quarrel over? Why do we choose one word more than another if there isn’t any difference between them?”

      . The ten (10) States which have thus far adopted either the 1958 or 1964 versions of the “Uniform Estate Tax Apportionment Act” are: Maryland, Md. Est. & Trusts Code Ann. § 11-109; Alaska, Alaska Stat. § 13.16.610; Hawaii, Haw. Rev. Stat. § 236A-1 to § 236A-9; Michigan, Mich. Comp. Laws Ann. §§ 720.11-720.21; New Hampshire, N.H. Rev. Stat. Ann. § 88-A:l to § 88-A:12; North Dakota, N.D. Cent. Code § 30.1-20-16; Oregon, Or. Rev. Stat. § 116.303 to § 116.383; Rhode Island, R.I. Gen. Laws 8 44-23.1-1 to 44-23.1-12; Vermont, Vt. Stat. Ann. tit. 32, 88 7301 to 7309; Wyoming, Wyo. Stat. 88 2-336 to 2-346.

      . This case is sometimes cited as Textor v. Textor, apparently taking that name from the testator, Anton Textor.

      . Weinberg v. Safe Deposit and Trust Co. of Baltimore, 198 Md. 539, 85 A. 2d 50 (1951); Bouse v. Hutzler, 180 Md. 682, 26 A. 2d 767 (1942); General German Aged People’s Home v. Johns Hopkins Hosp., 170 Md. 128, 183 A. 247 (1936) (“Textor v. Textor”); Maron v. Girard Trust Co., 168 Md. 692, 179 A. 324 (1935); Godwin v. Kemp, 129 Md. 159, 98 A. 495 (1916); Iglehart v. Kirwan, 10 Md. 559 (1857); In re Estate of Armstrong, 17 Cal. Rpt. 138, 366 P. 2d 490 (1961); In re Estate of Hendricks, 11 Cal. App. 3d 204, 89 Cal. Rpt. 748 (1970); In re Estate of Buckhantz, 120 Cal. App. 2d 92, 260 P. 2d 794 (1953); In re Estate of Cushing, 113 Cal. App. 2d 319, 248 P. 2d 482 (1952); Union and New Haven Trust Co. v. Sullivan, 142 Conn. 685, 116 A. 2d 908 (1955); McLaughlin v. Green, 136 Conn. 138, 69 A. 2d 289 (1949); Merchants Nat'l Bank of Boston v. Merchants Nat’l Bank of Boston, 318 Mass. 563, 62 N.E.2d 831 (1945); In re Pepper’s Estate, 307 N. Y. 242, 120 N.E.2d 807 (1954); In re Mills’ Estate, 272 App. Div. 229, 70 N.Y.S.2d 746 (1947); In re Estate of Wise, 37 Misc. 2d 403, 235 N.Y.S.2d 633 (1962); In re Estate of Cutler, 26 Misc. 2d 804, 209 N.Y.S.2d 358 (1960); In re Myers’ Trust, 20 Misc. 2d 990, 190 N.Y.S.2d 566 (1959); Oviatt v. Oviatt, 24 Ohio Misc. 98, 260 N.E.2d 136 (1970); In re Estate of Erieg, 439 Pa. 550, 267 A. 2d 841 (1970); In re Estate of Henderson, 46 Wash. 2d 401, 281 P. 2d 857 (1955); In re Estate of Hilliar, 498 P. 2d 1237 (Wyo. 1972); In re Ogburn’s Estate, 406 P. 2d 655 (Wyo. 1965).


author: Moore, J.,

text:
    JOSEPH F. TRIONFO & SONS, INC. et al. v. ERNEST B. LaROSA & SONS, INC.
    [No. 548,
    September Term, 1977.]

      Decided January 18, 1978.

      The cause was argued before  Menchine, Moore and Liss, JJ.

      S. Leonard Rottman for appellants.

      Michael J. Schwarz, with whom were Fleischmann, Needle, Ehudin & Schwarz on the brief, for appellee.

        Reporter’s Note: Menchine, J., participated in the hearing of this case and its decision, but retired before it was filed.

   Moore, J.,

delivered the opinion of the Court.

The ever-expanding body of law with respect to “arbitration” is involved in this appeal which arises out of a controversy between a general contractor on a school construction project (the appellant) and the excavation and site-work subcontractor (the appellee). The narrow question presented is whether an agreement to arbitrate existed, as claimed by the general contractor, against whom the subcontractor recovered a judgment in excess of $200,000 after a thirteen-day jury trial. The Uniform Arbitration Act, Md. Cts. & Jud. Proc. Code Ann. §§ 3-201 et seq. (1974), adopted in 1965 in Maryland, does not address the substantive requirements for an agreement to arbitrate the subject matter of a dispute. Flood v. Country Mutual Insurance Co., 242 N.E.2d 149 (111. 1968). See Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., 21 Md. App. 307, 320 A. 2d 558 (1974) , rev’d on other grounds, 274 Md. 307, 334 A. 2d 526 (1975) . I

The construction of the New North Harford Middle School on Route 165 in Harford County forms the backdrop for this dispute. On January 21,1974, appellant, Joseph F. Trionfo & Sons, Inc., a general contractor, entered into an agreement with the Board of Education of Harford County for the building of the school. The contract specifications included certain “Conditions of Contract.” Article 2 of the Conditions dealt with the architect, and contained a subsection entitled “Administration of the Contract.” The relevant portions of this subsection provided as follows:

“The Architect will make periodic visits to the site to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect, he will endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor. The Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work____
“Based on such observations and the Contractor’s Applications for Payment, the Architect will determine the amounts owing to the Contractor and will issue Certificates for Payment in such amounts, as provided.
“The Architect will be, in the first instance, the interpreter of the requirements of the Contract Documents. The Architect will, within a reasonable time, render such interpretations as he may deem necessary for the proper execution or progress of the Work.
“Claims, disputes and other matters in question between the Contractor and the Owner relating to the execution or progress of the Work or the interpretation of the Contract Documents shall be referred to the Architect for decision.
“All interpretations and decisions of the Architect shall be consistent with the intent of the Contract Documents. In his capacity as interpreter, he will exercise his best efforts to insure faithful performance by both the Owner and the Contractor and will not show partiality to either.
“The Architect’s decision in matters relating to artistic effect will be final if consistent with the intent of the Contract Documents.” (Emphasis added.)

On the same date, appellant entered into a subcontract with appellee, Ernest B. LaRosa & Sons, Inc., whereby, for the sum of $203,000, appellee was to “supply all labor, materiel and equipment” to complete the work under the main contract involving excavation, paving, landscaping and fencing. The agreement was made on a printed form headed by appellant’s full corporate name. The second paragraph of the subcontract, after a description of the subcontractor’s responsibilities, contained the following boilerplate language, incorporating by reference certain sections of the agreement between the Board of Education as owner and the appellant as general contractor:

“. . . all as provided for in the contract between Contractor and Owner as aforesaid, which said contract, plans, specifications and general conditions are hereby made a part hereof so far as the same are applicable to the work to be done hereunder, as fully as though the same were herein set out at length, and Sub-Contractor hereby assumes and agrees in carrying out this agreement to comply with all the stipulations and conditions of said contract, and the plans and specifications and general conditions accompanying the same or any parts thereof, that are applicable to the work to be done hereunder or that may be construed as applicable thereto by the architect or engineer in charge of said work; it being the intent hereof that in respect to the work covered hereunder Sub-Contractor shall be under the same obligations to Contractor under this contract as Contractor is to Owner under the terms of the general contract aforesaid, the Contractor shall be entitled to all the rights, privileges and remedies as against Sub-Contractor, which Owner may have or be construed to have under the general contract against Contractor, and that any direction or order of the architect or engineer aforesaid which may be binding upon or given to Contractor shall ipso facto be construed as binding upon or given to Sub-Contractor as soon as Sub-Contractor receives notice thereof.” (Emphasis added.)

An addendum to the form contract between appellant and appellee further provided, in pertinent part:

“If sub-contractor encounters rock, boulders, or buried logs, trees, stumps, or any sub-surface conditions the contract price shall be increased [$15.00] per cubic yard, and if blasting is required the cost thereof will also be added to the contract price.”

On March 26,1975, appellee brought an action at law in the Circuit Court for Harford County against appellant, alleging that in the performance of the subcontract, appellee did encounter and excavate rock and boulders and that extra compensation was due, under the terms of the subcontract, which appellant had failed and refused to pay. Appellant filed as its first pleading a “Motion Raising Preliminary Objection or in the Alternative to Order Arbitration and Stay These Proceedings.” A claim was therein made that the main contract designated the architect “as the arbitrator of all matters involving claims and disputes concerning amounts owing and interpretations of the Contract Documents,” and that such provision was effectively incorporated by reference into the subcontract.

Judge Harry E. Dyer, Jr. presided at the hearing on the motion, and denied appellant’s request that arbitration be ordered, holding essentially that:

1) The main contract provision in question was not an arbitration clause;
2) An architect was not a private, impartial third-party, and could not properly be designated an arbitrator;
3) The decision of the architect was not deemed to be “final,” and could not be considered a binding arbitration award.

Judge Dyer further stated:

“[T]he only consistent interpretation of the contract is to read the architect’s function as that of making the day to day decisions on the proper course of construction. The contract calls for the architect to render such decisions ‘within reasonable time,’ so that the execution of the work will progress....”

The case proceeded, no further steps being taken by appellant to compel arbitration of the dispute. After a protracted jury trial before Judge Edward D. Higinbothom, a verdict was returned in favor of the subcontractor, and damages were awarded for removal of the rock under the terms of the addehdum to the subcontract.

The primary issue on this appeal is stated in appellant’s brief in the following manner:

“Did the Court err in failing to grant [Appellant’s] Motion Raising Preliminary Objection, and order arbitration in these proceedings?”

A subsidiary question raised is whether the court erred in refusing to grant a removal from Harford County. We answer appellant’s inquiries in the negative.

II

As already stated, the language of the contract between the owner and the general contractor (incorporated by reference into appellee’s excavation subcontract), upon which appellant lays claim to an agreement to arbitrate, is the following:

“Claims, disputes and other matters in question between the Contractor and the Owner relating to the execution or progress of the Work or the interpretation of the Contract Documents shall be referred to the Architect for decision.”

We do not consider this clause to represent an agreement to arbitrate the subject-matter of the dispute between the parties, namely, the extent of the additional excavation work required to be performed by the subcontractor, and the additional compensation, pursuant to specific provisions of the subcontract, to which it was entitled.

In so holding, it is not our view that, to constitute an agreement to arbitrate, the language employed must be the now familiar provisions of the standard form of agreement adopted by the American Institute of Architects. We recognize that no particular form of words is indispensable to the making of a valid agreement to adjust and mediate a dispute between contracting parties without resort to litigation. Indeed, the language need not include the word “arbitrate” nor “arbitration.” Mencher v. B. & S. Abeles & Kahn, 84 N.Y.S.2d 718 (Sup. Ct. 1948). Neither is it fatal or improper, contrary to Judge Dyer's holding below, that a representative of one of the contracting parties — be it the architect, engineer or other third-party — is the one designated as the mediator whose decision is to be recognized as final and binding. See Nelley v. Mayor of Baltimore, 224 Md. 1, 166 A. 2d 234 (1960); Mayor of Baltimore v. Allied Contractors, Inc., 236 Md. 534, 204 A. 2d 546 (1964). See also Mayor of Baltimore v. M. A. Talbott & Co., 120 Md. 354, 87 A. 941 (1913); J. A. La Porte Corp. v. Mayor of Baltimore, 13 F. Supp. 795 (D. Md. 1936); Mayor of Baltimore v. Ault, 126 Md. 402, 94 A. 1044 (1915). There must, however, be some reliable evidence from the language actually employed in the contract that the parties intended the disputed issue to be the subject of arbitration, the intent of the parties being the controlling factor. Pumphrey v. Pumphrey, 172 Md. 323, 191 A. 235 (1937).

The cases upon which appellant relies involve agreements containing clear and unambiguous language and broader delegations of authority than that with which we are presented in this case. Thus, in Nelley, supra, involving a dispute between a contractor and the City of Baltimore with respect to a claim for additional costs incurred in the construction of a sewer line, there was an actual arbitration clause, specifically designated as such and containing, in part, the following language:

“ ‘To prevent disputes and litigations, the Director of Public Works will be the referee in case any question shall arise between the Contractor and the City touching the Contract, and his determination, decision and/or estimate shall be final and conclusive upon the Contractor and shall also be a condition precedent to the right of the Contractor to receive any moneys under the Contract.’ ” 224 Md. at 6, 166 A. 2d at 236. (Emphasis added.)

It is of more than passing interest that the identical clause was also involved in Allied Contractors, supra, where the court sustained the validity of an arbitration award of additional costs incurred in the performance of a contract for the construction of a bridge.

In the instant appeal, the language in the general contract above quoted, considered in the light most favorable to the appellant, is not indicative of an intention that the disputed matter here involved be submitted to arbitration, but rather, that the work proceed to completion on a day-to-day basis without undue delay. There is manifested an intent that the work under the contract progress smoothly and not be impeded by recourse to judicial determination of minor questions which would inevitably arise during the course of construction. See Eisel v. Howell, 220 Md. 584, 155 A. 2d 509 (1959).

Other provisions of the contract pertaining to its “administration” reinforce our conclusion that no agreement for the arbitration of this particular dispute existed. The architect was to be, “in the first instance, the interpreter of the requirements of the Contract Documents.” (Emphasis added.) It was further the responsibility of the architect to “make periodic visits to the [construction] site to determine in general if the work is proceeding in accordance with the Contract Documents.” The “best efforts” of the architect were to be utilized “to insure faithful performance by both the Owner and the Contractor,” and partiality was not to be shown to either. The only expression of “finality” with respect to the architect’s decision was as to “artistic effect.” Although an expression of finality is not, we fully realize, required, Ferris v. Polansky, 191 Md. 79, 59 A. 2d 749 (1948), it is indisputable that the designation of the architect’s decision on such matter as final, without any similar designation with respect to interpretation of the contract documents, or other matters, sheds light upon the intent of the parties as to the responsibilities of the architect.

The language of the agreement upon which appellant relies, read in the context of the entire agreement, does not indicate an intent to submit the matter of a payment dispute after the work has been completed to the architect for binding arbitration. See Eisel v. Howell, supra. Had the contract contained language analogous to the arbitration clause found in both Nelley and Allied Contractors, supra, we would reach a different result.

III

Appellant has brought forth an additional argument for reversal of the judgment in this case. Prior to trial, appellant filed a Suggestion for Removal, alleging that a fair and impartial trial could not be obtained in Harford County because of newspaper articles concerning increased costs of the construction of the school, the issuance of a citation to appellant by the State Department of Environmental Services because of dirt and dust, and a fatal automobile accident involving an employee who was killed as he was leaving the site. Appellant also pointed to a newspaper photograph of the construction site containing a caption to the effect that appellee had encountered rock and had begun blasting, and complained that the precise issue before the jury for determination was whether or not rock was encountered by appellee at the site.

We do not believe the trial court abused its discretion in denying appellant’s Suggestion. Under Davidson v. Miller, 276 Md. 54, 83, 344 A. 2d 422, 439 (1975), a constitutional right to removal no longer exists, but courts may freely exercise

“. . . their common law discretionary power (which is subject to appellate review for abuse) to remove an action to another jurisdiction ... in order to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached____”

Appellant has clearly not made a sufficient showing of prejudice under this standard. See also Firstman v. Atlantic Construction and Supply Co., 28 Md. App. 285, 345 A. 2d 118 (1975).

IV

Appellee subcontractor alternatively argues in its brief that appellant waived, or should be estopped from asserting, a right to arbitration, because its motion raising preliminary objection did not comport with the prescribed statutory procedure. We have chosen to decide the case upon the merits. For the guidance of litigants in the future, however, we express our view that the statutory procedure was intended to be an exclusive method for obtaining an order to compel arbitration, and that the issue of arbitration should not be asserted in a motion raising preliminary objection under Maryland Rule 323.

Section 3-207 of the Maryland Uniform Arbitration Act provides as follows:

“(a) If a party to an arbitration agreement described in § 3-202 refuses to arbitrate, the other party may file a petition with a court to order arbitration.
“(b) If the opposing party denies existence of an arbitration agreement, the court shall proceed expeditiously to determine if the agreement exists.
“(c) If the court determines that the agreement exists, it shall order arbitration. Otherwise it shall deny the petition.” (Emphasis added.)

Appellant, in its zeal to obtain a determination of the controversy by the architect, overlooked the definitional section of the Uniform Act, § 3-201, which provides, in pertinent part:

“(a) In this subtitle, the following terms have the meanings indicated.
“(b) ‘Court’ means a court of equity.” (Emphasis added.)

Since appellee’s declaration was filed at law in the Circuit Court for Harford County, appellant should have separately petitioned in equity for an order compelling arbitration.

Appellant’s error was of some consequence, as it tended to thwart what we regard as an implied purpose of the Uniform Act, permitting an appeal from a final order of an equity court denying an application to compel arbitration. In resorting to a motion raising preliminary objection, appellant precluded itself from obtaining a pretrial appellate determination as to the existence of the arbitration agreement, since the court’s denial of the motion was interlocutory in nature, and not a final order under Md. Cts. & Jud. Proc. Code Ann. § 12-301 (1974).

Judgment affirmed; appellants to pay the costs.

      . The agreement was contained on a standard form prej American Institute of Architects (AIA) but did not include the s “Conditions” among which are specific arbitration provisions.

      2. Appellant relies upon this clause in support of its claim that an arbitration agreement existed.

      . The original typed provision called for an increase in the amount of $50.00 per cubic yard. A handwritten change to $15.00 was initialed by appellee’s agent.

      . Suit was also brought against Travelers Indemnity Co., the bonding agent for appellant. (For convenience, appellants will be referred to in the singular.)

      . It is uncontroverted that the subcontract itself contained no specific provision for arbitration.

      . See infra, Section IV of this opinion. The proper procedure would have been to file a petition on the equity side of the court to require arbitration. Md. Cts. & Jud. Proc. Code Ann. § 3-207 (1974).

      . The AIA “Conditions of the Contract” contains the following broad arbitration language in § 7.10.1:
      “All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court, having jurisdiction thereof.” AIA Architect’s Handbook of Professional Practice, Chapter 19, pp. 10-11.
      We observe in this connection that in a leading arbitration case considered by this Court and by the Court of Appeals, Bel Pre Medical Center, Inc. v. Frederick Contractors, Inc., supra, similar specific arbitration language was employed, and the narrow issue involved was the question whether a timely demand for arbitration had been made was itself arbitrable. The Court of Appeals held that the timeliness of the demand for arbitration is a threshold question for the courts to decide in the first instance.

      . In this respect, the language employed in this case is somewhat similar to the first paragraph of the arbitration clause in Nelley, supra, upon which the Court of Appeals made no comment and which was not involved in the arbitration proceedings under the second paragraph, above quoted, which the Court upheld. The language in the first paragraph was as follows:
      “ ‘Subject to the power and authority of the Director of Public Works as provided by law and in these contract documents, the Sewerage Engineer shall in all cases, determine the amount or quantity, quality and acceptability of the work and materials which are to be paid for under this contract; shall decide all questions in relation to said work and the performance thereof; and shall, in all cases, decide questions which may arise relative to the fullfillment of the contract or to the obligations of the Contractor thereunder.’ ” 224 Md. at 6,166 A. 2d at 236.

      . Prior to the recodification of the Maryland Act in the Courts and Judicial Proceedings Article, a separate section was devoted to appeals. Md. Ann. Code of 1957, art. 7, § 18, provided in pertinent part:
      “(a) An appeal may be taken from:
      (1) An order denying an application to compel arbitration . . .;
      (2) An order granting an application to stay arbitration. . . .”
      The only remnant of this section in the Courts Article is § 12-303, entitled “Appeals from certain interlocutory orders,” providing:

        “A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:
      “(c) An order
      “(9) Granting an application to stay arbitration pursuant to § 3-207 of this article.
      The Revisor’s Note to § 12-303 states:
      “[Paragraph (9) picks up a provision of Article 7, § 18. Section 18 deals with appeals with respect to arbitration and award. Most of its language deals with appeals from final judgments and is thus covered by § 12-301. The particular provision contained in paragraph (9) might authorize an appeal from an interlocutory judgment, and thus is included here----” (Emphasis added.)
      Section 12-301 authorizes an appeal from the entry of a final judgment in a civil or criminal case. It is our view that an order denying an application to compel arbitration would be a final order, and an appeal could be taken with a stay of court proceedings until disposition of the appeal.

      . Courts in other jurisdictions have held that procedures under arbitration statutes are intended to be exclusive remedies. See Housing Authority v. Henry Ericsson Co., 2 So. 2d 195 (La. 1941); Cadbury-Fry (America) Inc. v. Opler, 91 N.Y.S.2d 742 (Sup. Ct. 1949); Koscove v. Peacock, 317 P. 2d 332 (Colo. 1957).


text:
    ROBERT W. ALSTON v. STATE OF MARYLAND
    [App. No. 188,
    September Term, 1977.]

      Decided January 20, 1978.

    Before Gilbert, C. J., and Morton and Melvin, JJ.

      JohnL. Calhoun, Assistant Public Defender, for applicant.

      Francis B. Burch, Attorney General, and Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, for respondent.
   Gilbert, C. J.,

delivered the opinion of the Court.

Robert W. Alston seeks leave to appeal from a denial of post conviction relief by the Circuit Court for Prince George’s County.

A review of the record before us discloses that Alston is literally the victim of the type of predicament one finds in the popular novel, Catch-22. He has sought relief in the circuit court and in the courts of the District of Columbia, but both have turned a deaf ear to his supplications to assuage his distress.

The facts from which the application has grown are uncommon, if not extreme.

On December 4, 1975, Alston pled guilty, as the result of a plea bargain, to the crime of robbery with a deadly weapon. At the time, he was awaiting sentencing in the District of Columbia for another offense. The plea bargain provided that the State would nolle pros the remaining charges against Alston, recommend that the sentence not exceed twelve years, and that the sentence be concurrent with the sentence to be imposed in the District of Columbia. Two months later, Alston appeared for disposition. The judge pronounced the following sentence:

“All right, Mr. Alston, it is the sentence of the Court that you be sentenced to the Department of Correction for a term of 12 years, and that such term is to commence as of February 14th, 1975. El The said sentence is to be concurrent with the sentence you have now to be imposed on you by the District of Columbia authorities.” (Emphasis supplied.)

Thereafter the following sequence of events occurred:

1. On March 15,1976, the applicant was sentenced in the District of Columbia to “3 to 9 years to run consecutively to time being served in the State of Maryland” for carrying a pistol without a license. This gun charge grew out of the same incident and arrest for which the applicant was sentenced in Prince George’s County.
2. On May 11,1976, petition for reconsideration of sentence was heard in the Circuit Court of Prince George’s County and was denied.
3. On June 18, 1976, application for review of sentence was confirmed without a change by a three-judge panel.

A petition under the Uniform Post Conviction Procedure Act was filed by the applicant in the Circuit Court for Prince George’s County on March 11,1977. Judge Loveless made the following findings in connection with the applicant’s petition:

“On May 11th of 1976, which was just eight days after filing of the reconsideration of sentence,... [it was] denied____We do not have before us the reasoning that was given ... in denying this, or any alternatives that. . . fwere] considered.
“It would appear that one of the alternatives that ... could have [been]... considered would be to have him turned over to the District of Columbia authorities to start serving his three to nine sentence with a detainer being placed there for him on any [Maryland] sentence that was not served.
Because of the unusual situation that exists here and the problem between the two jurisdictions, and in order to make sure that... [the sentencing judge] did have a full picture of the plea negotiations and the dilemma that the ... [applicant] found himself in, we are going to permit a belated filing of a motion for further reconsideration before . . . [the sentencing judge] on this matter insofar as post conviction is concerned. What he does will be in his sole discretion at that time.”

While the docket entries show that a hearing was held November 1, 1977, and that an order was to be submitted, there is no such order filed in the record.

Alston is in the predicament of serving a sentence in Maryland that has been imposed as a concurrent sentence to a District of Columbia sentence which is in turn consecutive to the Maryland sentence. Hence, while the Maryland sentencing judge, acquiescing to the State’s recommendation, looked upon the Alston offense as meriting the imposition of a concurrent sentence, Alston is, nevertheless, serving that time in Maryland as a straight sentence and not a concurrent one. The net result is that instead of receiving credit on the Maryland sentence at the same time that he is serving the District of Columbia sentence, Alston has not as yet even begun to account to the District for the offense committed there despite the three years that have already been served in Maryland correctional institutions.

The Maryland sentence has two obvious limitations. First, incarceration may not exceed twelve (12) years, and second, the sentence must be served concurrently with that imposed by the District of Columbia. The latter limitation has been patently ignored by Maryland authorities.

The circuit court may not increase or decrease the length of the sentence that it levied on Alston. Md. Rule 774 b. Yet, its refusal to exercise the powers to correct the wrong that is being done to Alston amounts, in fact, to an increase in the sentence.

We would be remiss in our duty if we did not comment upon the State’s Attorney’s refusal to assist the hearing judge in a pragmatic solution to the bureaucratic nightmare in which Alston has been placed. While it is true that the State’s declination to “stipulate” to Alston’s being turned over to the District authorities is not required by the plea bargain entered into between the State and Alston, the failure to “stipulate” amounts to a breach of the “bargain” in spirit, though not in letter. By refusing to agree, the State is in effect turning a twelve (12) year concurrent sentence into a fifteen (15) to twenty-one (21) year sentence and simultaneously disassociating itself from the responsibility for the increase. When the State’s Attorney has given his word in the form of a plea bargain and that bargain is accepted by the trial court, it behooves the State’s Attorney to make every reasonable effort to correct any deviation from the bargain when the deviation is called to his attention. His failure to do so, as here, renders “valueless the State’s word” and “effectively ... [erodes] the accused’s trust in the integrity of the State.” Sturgis v. State, 25 Md. App. 628, 637, 336 A. 2d 803, 807 (1975). Moreover, the State should not stand idly by when it knows that its word is being traumatized, and like Pilate, proclaim its hands clean because it kept its word by making the original accepted recommendation.

Fairness would seem to require that the circuit court order Alston’s surrender to the District of Columbia where he may then commence the period of incarceration meted to him by that jurisdiction for his crimes committed therein. See ABA, Standards Relating to the Administration of Criminal Justice 362-63 (1974). Upon the completion or other termination of that sentence, Alston should be returned to Maryland to serve such remaining time as may be necessary to fulfill the Maryland sentence. When Alston is surrendered to the District so that he may serve both the District and Maryland sentences, justice will be done. As Mr. Justice Potter Stewart has observed, “[fjairness is what justice really is.”

In any event, although not raised by the applicant, we think the sentence that was imposed to be improper. This is so because it was made to run concurrently with a sentence that had not yet been meted out to the applicant. We believe courts should eschew such sentences as they may, and often do, lead to confusion.

We shall vacate the sentence and remand the case to the Circuit Court for Prince George’s County for the imposition of a proper sentence which, hopefully, will resolve the dilemma which that court inadvertently created.

Application for leave to appeal granted.

Sentence vacated and case remanded to the Circuit Court for Prince George's County for the imposition of a proper sentence.

Costs to be paid by Prince George’s County.

Mandate to issue forthwith.

      . By Joseph Heller (1923- )

      . Sentence was meted out on February 9,1976, with credit for time spent in jail prior to trial. Md. Ann. Code art. 27, § 638C (a).

      . See n. 2, supra.


author: Mason, J.,

text:
    RICHARD. A. FISHER et al. v. MAXWELL C. TYLER et al.
    [No. 181,
    September Term, 1977.]

      Decided February 9, 1978.

    The cause was argued before Morton, Mason and WlLNER, JJ.

      Albert D. Brault and David A. Levin, with whom were Brault, Graham, Scott & Brault and O’Malley, Miles, Farrington & McCarthy on the brief, for appellants.

      D. William Simpson, with whom were John W. T. Webb and Webb, Burnett & Simpson on the brief, for appellees Maxwell C. Tyler and the Hardester Corporation. Samuel S. Smalkin for other appellee.
   Mason, J.,

delivered the opinion of the Court.

This is an appeal by appellants, Richard A. Fisher, Fisher Trucking Corporation and Russell Allen Taylor, from a declaratory judgment proceeding brought in the Circuit Court for Dorchester County against appellees, Maxwell C. Tyler, Hardester Corporation and Northland Insurance Company, to determine their rights under an automobile liability insurance policy. The genesis of the present litigation stems from an accident that occurred on January 26,1973. The basic facts, as summarized in appellees’ brief, are not in dispute:

In the afternoon of January 25, 1973, appellant, Richard A. Fisher, President of Fisher Trucking Corporation, received a telephone call from a dispatcher at the bark plant division of Perdue, Inc., in Salisbury, Maryland. The dispatcher asked Fisher whether he had a tractor “available to pull their (Perdue) trailer to Webster, New York” from the Salisbury bark plant. The quoted fee for hiring the tractor was a set, flat fee and Fisher did not receive a smaller fee for hauling a Perdue trailer than he would have received for hauling a Fisher trailer. Fisher agreed to the proposed terms and sent Russell Allen Taylor, a Fisher employee, to the Salisbury bark plant with a Fisher tractor. Taylor picked up a Perdue trailer, already loaded with bark, and was on his way to Webster, New York when [the tractor owned by Fisher Trucking Corporation and the attached trailer owned by Perdue were involved in a multi-car accident resulting in multiple personal injuries and property damage.]

At the time of the accident Northland Insurance Company (Northland) carried a policy of liability insurance on the Fisher Trucking Corporation (Fisher), but disclaimed coverage of insurance for claims arising out of the accident because of the following exclusion in the policy:

This policy does not apply:
(e) Under coverages A [Bodily Injury Liability] and B [Property Damage Liability] while the automobile is used for the towing of any trailer, vehicle or machine unless such trailer, vehicle or machine is covered by like insurance in the company; or while any trailer, vehicle or machine covered by this policy is used with any automobile not covered by like insurance in the company.

Under this exclusion, it is clear that Northland was relieved of liability while the insured Fisher tractor was towing the Perdue trailer, which was not insured by Northland.

At trial below, and in this Court, appellants’ cause of action is based solely on the narrow and limited theory that appellees were negligent, or in the alternative, breached a contract, in failing to attach a “hired car” endorsement to the policy of insurance issued by Northland, and that if such an endorsement had been attached, it would have provided coverage to appellants for the accident.

Consistent with this theory, counsel for appellants, in his opening statement to the jury, said:

We have brought this suit against the Hardester Corporation, Northland Insurance Company and Mr. Tyler on the theory that they were negligent in failing to provide the hired car endorsement which the basic price of which for the premium, I think, was $24.00.
We are only concerned with the absence of this little hired car endorsement for $24.00 which Mr. Tyler, we claim, and which the evidence will show, is the practice of any knowledgeable insurance agent who is dealing with a trucker where split units are involved, where you have units that are capable of separation and particularly tractors, of course, capable of attachment to anybody else’s trailer.

Additionally, appellants offered two witnesses who testified, in essence, that it was the prevailing standard and practice for an insurance agent writing automobile liability insurance on a business such as Fisher Trucking Corporation, to include a “hired car” endorsement in the policy to protect the insured when his tractor pulled someone else’s trailer.

In granting appellees’ motion for a directed verdict at the conclusion of appellant’s case, the trial court ruled, as a matter of law, that the Northland policy would not have provided coverage to appellants for the accident even if the “hired car” endorsement had been attached. In view of the posture of the case as framed by the proceedings below, we need not decide whether appellees were negligent or breached the contract in failing to provide appellant with insurance that would have provided coverage for the accident. Rather, we are limited in our review to the question of whether, as a matter of law, the Northland policy with a “hired car” endorsement would have provided coverage for the accident.

In determining whether the “hired car” endorsement would have extended coverage to appellants, the pivotal question is whether the Perdue trailer was a “hired automobile” as defined in the following endorsement:

“HIRED AUTOMOBILE”
It is agreed that such insurance as is afforded by the policy . . . applies with respect to hired automobiles, subject to the following provisions:
1. APPLICATION OF INSURANCE: The insurance applies to the maintenance or use, for the purposes stated in the schedule forming a part hereof of any hired automobile.
6. DEFINITIONS: “Hired Automobile” means a land motor vehicle, trailer or semi-trailer used under contract in behalf of, or loaned to, the name insured. . .

Appellees argue that this hired automobile endorsement would not have provided coverage to appellants for the accident. They rely on the case of Pennsylvania Thresherman and Farmer’s Mutual Casualty Ins. Co. v. Hartford Accident and Indemnity Co., 310 F. 2d 618 (4th Cir. 1962) which is factually parallel to the present case. In that case Drake owned a tractor which was insured by Pennsylvania Thresherman. Under an agreement for a flat sum per mile, Drake furnished Carolina Tank Corporation a tractor and driver to haul a Carolina trailer containing a cargo of gasoline tanks. The tractor-trailer was involved in an accident resulting in personal injuries and property damage. Pennsylvania Thresherman contended that it was free from liability under its policy by reason of the following exclusion:

This policy does not apply ... (c) under coverage A & B while the automobile is used for towing of any trailer owned or hired by the insured and not covered by like insurance in the company____(Emphasis supplied).

Pennsylvania Thresherman, which stood in the same insuring posture as Northland in the present case, argued that the trailer at the time of the accident was “hired” by Drake and was, therefore, excluded from coverage under the policy. The Fourth Circuit found no substance to this argument.

Drake paid no rental or other compensation for the use of the trailer. On the contrary, as we have seen, he exacted a higher price for the use of his tractor than he ordinarily charged for his complete tractor-trailer outfit. There was no hiring on Drake’s part. The contract merely provided that Drake, for an agreed price, would furnish his tractor and a driver to haul Carolina’s loaded trailer... and return the trailer to its owner. Id. at 620-21 (Citation omitted).

On this authority, it is clear the Perdue trailer was not “hired” by Fisher.

Appellants, however, contend that Pennsylvania Thresherman is not dispositive because in that case the term “hired” was not defined in the policy; whereas the Northland endorsement defined “hired automobile” as one “used under contract in behalf of, or loaned to, the named insured.” Thus appellants argue the inclusion of the “loaned” provision in the definition of hired automobile makes the result in Pennsylvania Thresherman inapposite in the present case.

It is obvious that the definition of “hired automobile” is broader in the Northland policy than that in the Pennsylvania Thresherman policy. The question, therefore, is whether the Perdue trailer comes within the purview of the broader definition, i.e., whether the Perdue trailer was loaned to Fisher.

In interpreting insurance contracts words are to be given their customary and normal meaning. See e.g. State Farm Mutual Auto Ins. Co. v. Treas., 254 Md. 615, 619 (1969). Consistent with this principle, court interpretations of the hired automobile clause now under examination have looked to the commonly understood meaning of the term “loan”. Trinity Universal Ins. Co. v. Cincinnati Ins. Co., 513 F. 2d 915, 920 (6th Cir. 1975); Rasmussen v. Western Casualty and Surety Co., 15 Utah 2d 333, 393 P. 2d 376, 378 (1964). Webster’s Third New International Dictionary (Unabridged ed. 1971) defines “loan” as “1____b: something lent for the borrower’s temporary use on condition that it or its equivalent be returned.” Of like import see The American Heritage Dictionary of the English Language (1973); The Random House Dictionary of the English Language (Unabridged ed. 1966). See also Black’s Law Dictionary which defines “loan for use” as: “Occurs where a chattel is to be used by bailee without reward and then specifically returned to bailor.”

Of importance in the above definitions is that the item is lent for the borrower’s. use. Thus, if a_ person obtains the temporary use of his neighbor’s lawn mower, without monetary pay or its equivalent, to mow his own lawn, we say that the mower was loaned to him. See Boyington v. American Liberty Ins. Co., 284 Ala. 581, 226 So. 2d 640, 643 (1969). However, if a person receives money to use his neighbor’s mower to cut his neighbor’s lawn, we do not say the mower was loaned to him. The mere grant of custody and exercise of control over the mower does not create the relationship of lender and borrower. Indemnity Ins. Co. of North America v. Pacific Clay Products Co., 13 Cal. App. 3d 304, 91 Cal. Rptr. 452, 458-59 (1970).

Similarly, we do not find that the custody and control exercised by Fisher over the Perdue trailer amount to a loan. If Perdue had supplied both the tractor and trailer and had simply arranged for Fisher Trucking Corporation to supply the driver, one would not customarily and normally characterize Fisher’s use of the tractor-trailer as a loan. Nor would one call Fisher’s custody of Perdue property a loan, if Perdue had simply arranged to have Fisher haul Perdue goods in a Fisher tractor-trailer. The control exercised by Fisher over the Perdue trailer in the present case is no different in character than that in the above mentioned situations. We are thus led to conclude that the trailer was not loaned to Fisher.

The cases relied upon by appellant in which courts found that the vehicle was loaned to the insured are unpersuasive. In Rasmussen v. Western Casualty and Surety Co., supra, 393 P. 2d at 378, a son left a car for his father to use while he was away on a church mission. The Court found that the car was “loaned to” the father. This case is consistent with the above noted definition of a loan. The father had complete custody and control of the car, unlike Fisher who had custody alone of the trailer but was limited as to what it would do with the trailer. The case of Michigan Mutual Liability Co. v. Hoover Bros., Inc., 96 Ill. App. 238, 237 N.E.2d 754, 758 (1968) is not helpful to appellants because the court simply concluded that the truck involved in the accident was “borrowed”, without going into the facts behind the arrangement.

The final case relied upon by appellants is Miller v. National Farmers Union Property and Cas. Co., 470 F. 2d 700 (8th Cir. 1972). In Miller two companies were both engaged in the bulk milk hauling business.

[I]t was the custom of the two companies to interchange vehicles on a temporary basis whenever a truck of one or the other was disabled. This was merely an informal oral agreement with the only apparent obligation being for each party to reciprocate if the need arose.

Id. at 702. The insurance policy of the user of the truck, not the owner, covered losses incurred while a vehicle was “used under contract in behalf of, or loaned to...” the insured. Of importance to appellants’ argument, the Court noted that the reciprocal borrowing agreement would bring the truck within the provision of being “loaned to” the insured. Id. at 705. In Miller the borrower used the truck for his own purpose, not that of the lender; thus, distinguishing the interchange program in that case from the present case.

Because we have concluded that the Perdue trailer was not loaned to Fisher, coverage for the accident in question would not have been provided even if the “hired automobile” endorsement had been included in the Northland policy.

Judgment affirmed.

Costs to be paid by appellants.

      . “In most standard form policies now in existence there is a specific exclusion of coverage. while any insured automobile is used with an uninsured trailer, or while an insured trailer is used with an uninsured automobile. Such provisions are valid and enforceable because of the added hazard created by the towing of the trailer, and a breach of the policy would prevent recovery. The purpose of such provisions is self-evident, namely, to prevent liability of the insurer while an insured vehicle was used for towing a trailer not insured with the company.” Appleman, Insurance Law and Practice, Vol. 7, Sec. 4438, at 457, 458.

      . This case is before us for a second time. In Fisher v. Tyler, 24 Md. App. 663 (1975), we determined that this was a declaratory judgment suit which could be maintained at law and that a transfer of the case to the equity court was error. In that opinion the Court discussed the general legal theory underlying this suit. 24 Md. App. at 669-70. We note that the character of the action has changed since that opinion in that the question is no longer whether appellees breached a duty to provide insurance coverage for the accident in question; but is now whether appellees breached a duty to include a specific insurance clause in the policy.