text:
    AMERICAN RADIO-TELEPHONE SERVICE, INC. v. PUBLIC SERVICE COMMISSION OF MARYLAND
    [No. 25,
    September Term, 1976.]

      Decided November 3, 1976.

      The cause was argued before Davidson, Melvin and Liss, JJ.

      Roger D. Redden, with whom was Francis X. Wright on the brief, for appellant.

      James A. Pine, with whom was Teresa M. Bay on the brief, for appellee the Public Service Commission of Maryland. Henry F. Leonnig for Radio Communications, Inc., other appellee.
   Liss, J.,

delivered the opinion of the Court.

It was the Bard of Avon who first suggested, “It is a wise father that knows his own child.” In this case, the Public Service Commission of Maryland has had greater difficulty in determining the lineage of a “grandfather.”

This appeal was noted by American Radio-Telephone Service, Inc. (American) from an order of the Circuit Court for Prince George’s County affirming a decision of the Public Service Commission of Maryland (the “Commission”), granting certain “grandfather” operating rights in the mobile radio communications business to Radio Communications, Inc. (“RCI”), a radio common carrier. Appellant was one of several competing radio common carriers who were granted permission to intervene in the proceedings before the Commission.

The source of this controversy was the enactment in 1971 by the Maryland General Assembly of a new section of the Public Service Commission Law — designated as Maryland Code (1957, 1975 Repl. Vol.) Art. 78, § 55A. The new section established the first statutory basis for the comprehensive regulation of radio common carriers in Maryland. Because several companies were already doing business as radio common carriers in Maryland, the General Assembly provided a “grandfather” clause, codified as subsection (b) of Section 55A, which states:

“Any company not presently franchised or certificated by the Commission as a radio common carrier but engaged in the operation of any radio common carrier system licensed by the Federal Communications Commission on July 1,1971, shall, upon qualification as a public service company, receive a certificate of convenience and necessity from the Commission authorizing the company to continue the operation of the radio common carrier in the territory professed to be served by that company on July 1, 1971, if, within ninety days after July 1, 1971, that company shall file with the Commission an application for the certificate, including copies of any license or licenses issued by the Federal Communications Commission to that company, showing the area professed to be served by that company.”

In September of 1971, RCI filed an application with the Commission for a certificate of convenience and necessity, under subsection (b), which would authorize its operation of a radio common carrier system in an area that included Baltimore City and all Maryland counties except Allegany, Garrett and Worcester. Hearings were held before the Commission; and in February, 1972, the Commission by Order No. 59659 granted RCI a certificate of convenience and necessity authorizing it to engage in the radio communications business in Montgomery, Calvert, Prince George’s and St. Mary’s Counties in addition to portions of seven other counties. In determining the area which RCI might serve, the Commission used as its guide a plotted contour line known as the 37 dbu (decibel units) line plus 5 miles, and from this line, they determined the “reliable service area” of RCI.

RCI appealed to the Circuit Court for Prince George’s County which affirmed the Commission.

An appeal was noted to the Maryland Court of Appeals, Radio Communications Inc. v. Public Service Commission of Maryland, 271 Md. 82, 314 A. 2d 118 (1974), raising the issue of what the legislature intended as the standard for carriers seeking “grandfather” rights under Sec. 55A. Judge Levine, speaking for that Court, said at page 95-96:

“We read subsection (b) to say that those who assert ‘grandfather’ status cannot obtain certification by merely ‘professing to serve’ a given area or county. Subsection (b) provides for certification of a radio common carrier ‘engaged in the operation of. any radio common carrier system .. ..’ By obtaining certification, a carrier is expected '... to continue the operation ... in the territory professed to be served ... .’ Thus, when the application of a subsection (b) radio common carrier professing to have served an area is challenged, that carrier must then prove that, in fact, it did serve that area, i.e., that on July 1,1971, it was ‘engaged in the operation’ of a radio common carrier system in each subdivision for which certification is sought. As we have already held, that requirement may not be embellished with any other standard not found in the language of subsection (b) itself.” (emphasis in original).

At page 96, the Court remanded the case to the Commission:

“ ... for further proceedings, including the introduction of such additional evidence as the Commission may require, in order that RCI may be afforded the opportunity of establishing in what areas it did actually provide service, and for which it seeks certification under subsection (b) [of § 55A of the PSC Law]; and so that intervenors may have the opportunity to present contrary evidence.”

On remand, the Commission assigned its Chief Hearing Examiner, Wilson B. Stringer, to hold hearings on any additional evidence which might be offered. A pre-hearing conference was held in May of 1974, and the parties agreed that the record of the 1971 hearings “would be considered in making a recommended report to the Commission.” The Examiner also issued a ruling in which he determined:

“ ... that additional evidence is to be presented by the Applicant [RCI] to show that operations were established for a representative period prior to and including July 1, 1971 in the areas that it professed to serve prior to July 1, 1971. Such additional evidence should include, but need not be limited, to: 1) the number of customers served in each area; 2) the frequency of service for such customers; and 3) the geographical scope of such operations by customers within such areas. In this regard, an area should be considered a county or a geographically defined portion of a county.
“The guidelines for furnishing additional evidence do not preclude the Applicant from putting on such other additional evidence as it believes is necessary to support its application.”

At the 1971 hearing, the only witness for RCI was its president, Boyd King (King), who testified that the company operated five base stations on July 1, 1971: two at Bethesda, and one each at Prince Frederick, Upper Marlboro and Annapolis. Maps were introduced with circles indicating the area in which RCI transmitted and received communications signals to and from mobile units. The circles were drawn on the basis of where RCI could “put” a signal and could communicate with mobile units from that particular base station. It was in this manner, King claimed, that RCI transmitted and received signals in the 21 subdivisions for which it sought certification under the “grandfather” clause. He further stated that expansion of RCI from its original seven service areas was the result of a change from low to high power transmitters and significant increases in antenna height.

The intervenors at the 1971 hearing presented the testimony of a radio engineer, John E. Dettra, Jr. (Dettra), whose evidence consisted of an explanation of the “reliable service area” of a radio common carrier and the technical determination of the plotted contour line known as 37 dbu. He produced maps to support his contention that RCI could not render “reasonably adequate” service in the 21 subdivisions for which it requested certification but conceded that it could do so in parts of the counties of Dorchester, Frederick, Kent, Queen Anne’s, Talbot, and Wicomico, in addition to the seven counties it had served since its original entry into the radio communications business in 1963.

Three witnesses testified for RCI at the evidentiary hearings before the Examiner in early 1975: Mrs. Margaret King (Mrs. King), Boyd King, and Paul Woofter (Woofter), a customer of RCI. Mrs. King stated that she was the secretary of RCI as well as its principal radio operator during the year preceding July 1, 1971, and that her testimony was based on the records she kept as well as her actual experience with customers during that period. She stated that calls were logged by telephone number, mobile number, and the time of the beginning and end of each call; and that during the period in question, some 30,000 call tickets had been retained which she had reviewed and compiled; that in those instances where she did not know where the mobile unit or caller was located at the time of the transmission, she included the call amongst those from the area of that unit’s regular operation — which was known to her because of her experience as principal operator; that her review of the call tickets covered approximately three-quarters of each month’s tickets and that the tickets listed only completed calls or calls where messages were left. Using this information, she compiled an exhibit listing the calls by the counties where they occurred; this compilation was introduced as Petitioner’s Exhibit 1. A second exhibit, Petitioner’s Exhibit 2, gave the total of calls handled for the years 1969 (15,290 calls), 1970 (21,083 calls), and 1971 (42,593 calls). Exhibit 3 listed RCI’s subscribers by billing address, base of operations, and scope of operations. The first two items in this exhibit were developed from RCI’s records; the last was determined by Mrs. King from her knowledge of the customer’s business operations. She gave as a specific example RCI’s experience with the Baltimore Gas and Electric Company: that corporation’s billing address was Baltimore City, but it used RCI’s service in connection with the erection of the Calvert Cliffs nuclear plant, which required calls not only in Calvert County and Baltimore City but in all the counties where the employee’s duties required him to go. To the same effect was her testimony regarding a tree trimming company doing business in Calvert, Prince George’s, and Anne Arundel counties, as well as an engineering company whose employees used RCI’s service from Laurel, Maryland to the Pennsylvania line during the 1970-71 period, when the company was constructing a transmission line. Her testimony included statements as to service in Frederick and Hagerstown. She said she was able to be specific about the location of her customers because in many instances they would advise her in advance where they would be so that she would know the proper channel to use in order to reach them.

King, in his testimony, reiterated the statements he made at the 1971 hearings, and he submitted again the exhibits he had offered at that hearing.

Woofter made affidavit as to certain facts within his personal knowledge, which was admitted into evidence. On cross-examination, he substantiated service by RCI in Baltimore, Harford, Howard, Anne Arundel, Montgomery, Prince George’s, Calvert, Frederick, and Queen Anne’s Counties, as well as in Baltimore City.

Over objection, the Examiner admitted into evidence affidavits of two customers of RCI who were not made available for cross examination. One was made by an employee of the Gas and Electric Company, who stated that in the period between July 1, 1970, and June 30, 1971, he utilized RCI’s services in connection with his employment in Calvert, Anne Arundel, Prince George’s, and Baltimore County, as well as in Baltimore City, Queen Anne’s, Talbot, Dorchester, St. Mary’s, Charles and Howard Counties. The other affidavit, made by Morgan Wayson, Jr., stated that his company had used RCI’s service while engaged in /construction activities in St. Mary’s, Calvert, Charles, Prince George’s, Anne Arundel, Montgomery, Howard and Baltimore Counties and in Baltimore City, Frederick, Queen Anne’s and Talbot Counties.

Appellant offered as its principal witness Graham Randolph (Randolph), vice president of American, whose testimony was based on a presentation of certain map overlays which he had prepared depicting the territorial scope of RCI’s operation in 1971: One overlay outlined the seven counties RCI had been authorized to serve by the original order of the Commission in 1963 (Howard, Montgomery, Anne Arundel, Prince George’s, Charles, Calvert and St. Mary’s). The second overlay, based on the information presented in Applicant’s Exhibit 3 about the “base of operations” of RCI’s customers, indicated that 94.6 per cent of RCI’s 1970-71 customers were encompassed in six of these counties, i.e., in all but Howard. The third overlay showed the areas from which a person could reach one of RCI’s message centers by a toll-free phone call. The fourth overlay showed the “37 dbu contours” of RCI’s transmitting stations as they existed on July 1, 1971. Randolph in addition offered testimony which tended to contradict that of Mrs. King concerning service allegedly used by two purported customers (Colby and Cade) in the crucial time period.

The appellant offered as an additional witness Arthur Blooston, a lawyer who specializes in telecommunications matters before the Federal Communications Commission (FCC) and the courts; and his testimony concerned the criteria used by the FCC in defining the service area of radio communications carriers and the constraints upon and privileges exercised by such carriers under an FCC license.

The Chief Hearing Examiner thereafter filed a report and recommendation in which he adopted a line of demarcation of the service area of RCI that coincided with the “interference contours” which prescribed the area in which RCI was actually engaged in the operation of a radio common carrier system in 1971. He stated:

“These contours encompass the substantiated testimony of service to Harper’s Ferry, West Virginia, and Frederick, Baltimore, Harford, Queen Anne’s, and Dorchester Counties. And, while Mr. King’s testimony of service to subscribers in Carroll and Washington Counties was not supported by other evidence, the southern portion of Carroll County (including Westminster) and the southern portion of Washington County lie within the interference contour of RCI’s Bethesda station. Therefore, these areas, which lie between the evidentiary supported portions of Baltimore and Frederick Counties, should be included within RCI’s area of certification. In the same way, Mrs. King’s testimony of service to portions of Kent, Wicomico, Somerset, and Caroline Counties can be supported by these counties’ positions between evidentiary supported areas and by the interference contours of RCI’s Annapolis and Prince Frederick stations.”

On the basis of these findings, the Examiner recommended:

“ ... that Radio Communications, Inc. be granted a Certificate of Convenience and Necessity for the continued operation of a radio common carrier system in the following counties in their entirety: Anne Arundel, Calvert, Charles, Howard, Montgomery, Prince George’s, St. Mary’s, Talbot, and in Baltimore City; and portions of Washington, Frederick, Carroll, Baltimore, Harford, Kent, Queen Anne’s, Caroline, Wicomico, Somerset, and Dorchester Counties, in accordance with the delineations on maps which are in evidence in this proceeding as Docket No. 26, representing the interference contours of Radio Communications, Inc.”

Thereafter, the Commission passed an Order in which it “adopted as its own” the findings and recommendations of the Examiner. Appellant appealed to the Circuit Court for Prince George’s County (Powers, C. J., presiding), where the Commission’s order was affirmed. It is from this ruling that the instant appeal was filed.

The principal question to be determined by this Court is whether Chief Judge Powers was correct in finding that the Commission’s order was supported by substantial evidence on the record considered as a whole. After a thorough and painstaking review of the voluminous record, we agree with Judge Powers and shall affirm.

In the interest of finally determining this long drawn out litigation, we shall consider and rule on the basic legal and factual questions involved in this proceeding.

The scope of judicial review of orders of the Commission is governed by § 97 of the Public Service Commission statute, supra. It provides in pertinent part:

“Every final decision ... of the Commission shall be prima facie correct and shall be affirmed unless clearly shown to be ... (3) made upon unlawful procedure, or (4) arbitrary or capricious, or (5) affected by other error of law, or (6) if the subject of review is an order entered in a contested case after hearing, such order is unsupported by substantial evidence on the record considered as a whole.”

The guidelines for applying the substantial evidence test are set out in State Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 309-10, 236 A. 2d 282, 291-92 (1967):

“Whichever of the recognized tests the court uses — substantiality of the evidence on the record as a whole, clearly erroneous, fairly debatable or against the weight or preponderance of the evidence on the entire record — its appraisal or evaluation must be of the agency’s fact-finding results and not an independent original estimate of or decision on the evidence. The required process is difficult to precisely articulate but it is plain that it requires restrained and disciplined judicial judgment so as not to interfere with the agency’s factual conclusions under any of the tests, all of which are similar. There are differences but they are slight and under any of the standards the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.” (emphasis supplied, citations omitted).

Public Service Commission of Maryland v. Baltimore Gas & Electric Co., 273 Md. 357, 362-63, 329 A.2d 691, 695 (1974).

In the oft quoted words of Chief Justice Hughes in Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126, 140 (1938): “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (citations omitted).

The question before us, then, is whether from our own review of the record, we are convinced that there was substantial evidence to support the Examiner’s conclusion and the Commission’s order?

The Kings offered voluminous business records of some 30,000 calls received in the test period of 1970-1971. They offered evidence of substantial increases in the utilization of their services from the time they began their business to the period considered by the Commission. At least a portion of their service area was conceded correct and is not before us as a contested area. Their testimony, if believed, established calls to and from each of the areas included in the Commission’s order. In many of these areas, customer’s billing and business addresses coincided with the area claimed to be served. In almost every instance, there was testimony as to the scope of a customer’s business which would tend to substantiate that service was rendered within the area in which it was offered. Woofter’s testimony in a number of instances corroborated the Kings’ testimony. It is true that appellant offered evidence which tended to contradict or weaken the effectiveness of the Kings’ testimony, but this disparity raised the issue of the weight to be given to that testimony, and this was resolved by the Examiner’s conclusions in his report. Appellant complains that it was improper for the Examiner to use the interference contour lines to determine the territory in which RCI was entitled to “grandfather” rights. Our own examination of the line as drawn on the schematic presentation of the RCI service area contours, in the appendix to appellant’s reply brief, convinces us that it is a logical method of delineating the area. In effect, the Commission has located on the map those areas actually served by RCI and has used the interference contour line as the boundary connecting these points; this has resulted in a reduction of the area which RCI might be authorized to serve had the Commission accepted county lines as the points of demarcation. We find ño objection to the utilization of the interference contours to establish — not the area served — but rather its outer limits.

Appellant makes one other objection which has some merit: it complains that the Examiner should not have admitted the affidavits of two witnesses who purported to substantiate the Kings’ testimony regarding their utilization of RCI’s facilities, when these witnesses were not made available for cross-examination, albeit appellant made reasonable efforts to obtain their attendance (One of the witnesses was on vacation in Florida; the other had not been summoned.).

Although administrative agencies are not bound by the technical common law rules of evidence, they must observe the basic rules of fairness as to parties appearing before them. Dickinson-Tidewater, Inc. v. Supervisor of Assessments, 273 Md. 245, 253, 329 A. 2d 18 (1974). One of these basic rules of fairness is that in an adversary proceeding before an administrative board, the opportunity for reasonable cross-examination must be allowed. Hyson v. Montgomery County Council, 242 Md. 55, 67, 217 A. 2d 578 (1966).

The Rules of Practice and Procedure of the Public Service Commission of Maryland (1910), provide for the acceptance of affidavits under certain circumstances. Rule IV2 provides:

“Except where stipulations are filed as above, the witnesses whose testimony may be desired at any hearing, investigation or proceeding before the Commission, or before any one of the Commissioners, as authorized by Section 7 of the Public Service Commission Law, shall testify orally and under oath, unless the Commission or Commissioner for good cause shown deems it proper in special cases that written evidence, under affidavit or otherwise, be submitted.”

We believe, under the circumstances, that the affidavits should not have been admitted unless the witnesses were made available for cross-examination; however, we find that there was error without harm. Although Appellant objected to the admissibility of the affidavits, it made no request for a postponement or for an oppportunity to bring the affiants in for cross-examination. The Examiner admitted the affidavits into evidence with the statement that they “would not be given the same weight as if the people were cross-examined.” The information in the affidavits was established by other competent evidence, if believed. The evidence of service by RCI which the affidavits were used to corroborate — that is King's testimony of RCFs service in St. Mary’s, Calvert, Charles, Talbot, and Dorchester Counties — was not contradicted by the appellant: appellant conceded RCFs service in the first three counties mentioned on July 1, 1971; and appellant’s expert witness, Dettra, had testified at the original hearing in 1971 as to RCFs ability to serve Talbot and Dorchester Counties. All five of the counties were included in the Commission’s original order granting “grandfather” rights to RCI in 1971, and the order was not contested by American at that time.

The record in this case contains hundreds of pages of testimony, innumerable exhibits and maps, and reams of legal and factual argument. The two affidavits taken together amount to an infinitesimal portion of the total information available to the Examiner in reaching his conclusion. We hold, therefore, that the Examiner erred in admitting the affidavits without some provision for cross-examination but that under all the circumstances, no prejudice resulted.

Order affirmed.

Costs to be paid by appellant.

      . Shakespeare, “Merchant of Venice,” Act II, Scene 11, L. 83.

      . All other intervenors have withdrawn from the proceedings.

      . Radio common carriers provide a mobile communications service _either by two-way transmission or one-way signaling.

      . “Reliable service area” designates an area in which service is generally expected to have an average reliability of not less than 90 per cent.

      . When two stations are utilizing the same channel and the signal given out by one is such as to interfere with or overcome the competing signal, it becomes necessary to determine the “interference contour.” The interference contour is calculated to guarantee to any co-channeled station the required protection of 90 per cent reliability of its signal.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    A. MICHAEL HOOKE, SR. et al. v. EQUITABLE CREDIT CORPORATION
    [No. 26,
    September Term, 1976.]

      Decided November 3, 1976.

    The cause was argued before Davidson, Melvin and Liss, JJ.

      Benjamin Swogell for appellants.

      Jay I. Morstein, with whom was Lawrence F. Rodowsky on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

This is an appeal by A. Michael Hooke and Marguerite E. Hooke, Trustees, from an order of the Superior Court of Baltimore City denyingtheir motion to strike a judgment by confession against them in the sum of $152,565.69, plus attorney’s fees of $22,600.00 and costs.

On October 25, 1973, the appellee, Equitable Credit Corporation (Equitable) loaned $100,000 to two Maryland corporations, Holly Lane Apartments, Inc. and A. Michael Hooke and Sons, Inc. The loan was evidenced by a confessed judgment note signed on behalf of the two corporations by A. Michael Hooke and Marguerite E. Hooke in their respective capacities as president and secretary of each corporation. The Hookes also signed the note in their individual capacities as guarantors. The note contained a provision that the Hookes’ liability as guarantors was “joint, several and unconditional with HOLDER having the express right to proceed against . . . [them] ... without first proceeding against makers.”

On March 14, 1974, Equitable loaned $50,000 to “A. Michael Hooke, Sr. and Marguerite E. Hooke, Trustees, under a certain Deed of Trust dated May 1, 1972, and recorded on May 12, 1972 among the Land Records of Baltimore County, in Liber O.T.G. 5267, at Folio 391.” This loan was also evidenced by a confessed judgment note, signed by the Hookes as trustees and, in their individual capacities, as guarantors. This note also provided that their liability as guarantors was “primary and not secondary”. Thus, upon default of the first note (hereinafter termed “corporate note”) Equitable had the option of proceeding directly against any one of the corporate makers and individual guarantors, against all of them, or any combination of them. Upon default of the second note (hereinafter termed “trustee note”) Equitable had the option of proceeding against the Hookes either in their capacities as trustees or in their individual capacities, or in both capacities.

Both notes being in default, Equitable, on November 21, 1974, filed a declaration in the Superior Court of Baltimore City against “A. Michael Hooke, Sr. and Marguerite E. Hooke ..., Trustees under that Certain Deed of Trust dated May 1, 1972, and recorded among the Land Records of Baltimore County in Liber O.T.G. 5267 at Folio 391 . . . . ” No other party was named as a defendant in the action.

The declaration alleged the non-payment of the corporate note in the amount of $101,562.50 and a counsel fee of $15,000, and the non-payment of the trustee note in the amount of $51,003.46 and a counsel fee of $7,500.00. Both notes were filed with the declaration together with an affidavit stating the combined amount due on the notes to be $152,565.96. Also filed with the declaration was the entrance of the appearance of an attorney “for the defendants” and a direction to the clerk to “enter a Judgment by Confession for the Plaintiff” for the sum of $152,565.96 with interest, costs of suit and attorney’s fees of $22,600.00 “as provided in said note.” (Emphasis added). The clerk entered the judgment as directed and issued a summons to “A. Michael Hooke, Sr. and Marguerite E. Hooke” to appear “ . . . within 30 days after service of this notice upon them and show cause, if any they may have, why the judgment of Confession entered against them ... for $152,565.96, interest, and attorney’s fee of $22,600.00 and costs, should be vacated, opened or modified.” (Emphasis added) The summons further stated, “If no such cause be shown within thirty days said judgment will be deemed to be final to the same extent as a judgment entered after trial.” The summons was served on the Hookes on November 30, 1974. Maryland Rule 645 c provides that if no application is made to vacate, open, or modify a judgment by confession within 30 days after service of a summons upon the defendants, “the judgment shall stand to the same extent as a judgment absolute entered after trial.”

On May 26, 1975, the Hookes, in their capacities as trustees, petitioned the court to strike the judgment “or in the alternative to modify” it. Their “Amended Motion to Strike Judgment”, filed October 27, 1975, alleged that the $152,565.96 (plus a $22,600.00 attorney fee) judgment had been obtained against them “as Trustees” on two confessed judgment notes; that the corporate note was not executed by the trustees and the trustees were “in no way responsible for its payment”; that “the Plaintiff and its attorney knew that the said Trustees were not responsible for the $100,000.00 note but joined that note with the Trustees’ note in order to confuse and deceive the court and thereby have a judgment on both notes rendered against them as Trustees”; that “the said judgment was entered by the court by mistake because of the fraud practiced upon it by the Plaintiff”; and that “the notice of the judgment served on your Petitioners did not disclose that it was against them as Trustees so that they were unaware of the judgment against the Trust Estate and had no opportunity to file a motion to strike.” (Emphasis added) After a hearing, the court below denied the motion. It is from that ruling that the Hookes have appealed.

It is clear under Rule 645 that a defendant in a confessed judgment action is entitled to move to vacate, open or modify the judgment within 30 days after service of a “summons for the defendant notifying him of the entry of the judgment.” (Emphasis added) The defendants in the instant proceedings are “A. Michael Hooke, Sr. and Marguerite E. Hooke, Trustees ... . ” The summons did not notify the trustee defendants of any judgment against them. The summons purported to notify the Hookes only that Equitable had obtained a judgment against them individually and not in any representative capacity.

Equitable invokes the second sentence of Md. Rule 625 a claiming that the failure of the Hookes to respond within 30 days after service of the summons upon them resulted in a final enrolled judgment against them as trustees, that the court’s revisory power and control over the judgment could then only be exercised “in case of fraud, mistake, or irregularity”, and that neither fraud, mistake or irregularity had been shown. In our view, that portion of Rule 625a is not applicable to this case, presupposing as it does the existence of a final enrolled judgment. Under Rule 645, dealing with judgments by confession, the judgment does not become a final enrolled judgment against a party defendant until 30 days after that party has been properly summoned and has failed to move within those 30 days to have the judgment vacated, opened or modified. The defendant, of course, does not have to wait until he receives a proper summons before filing the motion.

In Gay Investment Co. v. Angster, 231 Md. 323 (1963), the Court pointed out the necessity of strictly following the Maryland Rules regarding notice in confessed judgment cases — even where the defendant may have actual knowledge of the judgment. The Court said at 322:

“In Suydam v. Bank of Silver Spring, 233 F. 2d 21 (D.C.), where the record did not show that the judgment debtor had been served with summons as required by the General Rules of Practice and Procedure of Maryland, Pt. Three, II, Rule 1 (a, c, g), the predecessor of present Rule 645, the United States Court of Appeals, District of Columbia Circuit, held that the action of the Circuit Court of Montgomery County in granting plaintiffs motion for summary judgment on a confessed judgment note was in error. (The plaintiff was a Maryland corporation and the defendants were nonresidents of the State.) The United States Court stated that no judgment against the defendants could be said to be final until the Maryland General Rules of Practice and Procedure had been fully complied with in regard to service of process. In the instant case, the record shows that although the summons had been issued, it was returned non sunt as to all three makers of the note, including appellee. Appellant contends that even though this is so, appellee had actual knowledge of the judgment, and that this is sufficient to satisfy the requirement of notice to the judgment debtor.” (Emphasis supplied).

The Court went on to hold that even though the defendant may have had actual knowledge of the judgment, it was not “a final and enrolled judgment” because “the procedure required by Rule 645 was not gratified”. Id. at 322-323.

Equitable’s reliance on Temple Hill Baptist Church, Inc. v. Dobson, 259 Md. 515 (1970) is misplaced. The plaintiff in that case was an attorney who had obtained a judgment against Doctor William B. Adams (Adams) for his attorney’s fee for representing Adams in a dispute with the federal government. In order to collect the judgment, the plaintiff brought an attachment action against a church of which Adams was the pastor and a member of the Board of Trustees of the church. According to the sheriffs return the writ of attachment was “laid in the hands of [the church] Garnishee and Garnishee [was] summoned by service on William B. Adams, Pastor, this 28th day of February, 1968”. When neither the church nor Adams filed any responsive pleading within the time required, the plaintiff obtained a judgment by default and subsequently a judgment of condemnation absolute against the garnishee church. More than 30 days later, the garnishee church sought to set aside the judgment against it on the ground that Adams had failed to notify the church of the attachment proceeding and that service was actually made upon Adams individually and that there was nothing in the writ “to notify the church or to notify ... Adams that he received service in his capacity as Trustee for the church rather than as the individual judgment debtor” of the plaintiff. Adams testified at the hearing that he did not send his then attorney the writ of attachment served on him because he thought it was intended for him personally and not for the church. The Court held, however, that the hearing judge (The Honorable Irving A. Levine, now Associate Judge of the Court of Appeals) was not in error in his ruling that Adams, as pastor and trustee for the church, was a proper person to be served with process so as to constitute notice to the church and, more importantly, that the writ of attachment served on Adams contained language that “could reasonably be understood” as “being directed to someone other than ” Adams.

In the case before us, the summons served upon the Hookes did not contain the slightest clue that Equitable had obtained a judgment against them in their capacity as trustees. It could reasonably be understood to be directed to them only in their individual capacities.

Since Equitable elected to sue the Hookes only in their capacities as trustees, the actual defendants in the suit were never served and the requirements of Rule 645 were not satisfied. See Bank of America National Trust & Savings Association v. Carr, 292 P. 2d 587 (Calif. 1956), where the California Court of Appeals made it clear that a party must be served in that legal capacity in which he is sought to be bound. We adhere to that principle. Thus, at the time the trustees filed their petition the judgment against them was not a final enrolled judgment and the second sentence of Rule 625 a with its stringent requirements of a showing of fraud, mistake or irregularity is not applicable. Rather, it was only necessary that they meet the more liberal requirements of Rule 645 c and 645 d. We hold that the Hookes have fully met those requirements. Their petition clearly set forth facts indicating a meritorious defense to the judgment against them in their capacities as trustees insofar as the corporate note is concerned. At the very least, the evidence presented at the hearing established “that there are substantial and sufficient grounds for an actual controversy as to the merits of the case” regarding their alleged liability as trustees for the payment of that note. Therefore, it was the duty of the court to vacate that portion of the judgment resulting from non-payment of the corporate note, with leave to the Hookes as trustees to file a responsive pleading to the declaration with respect thereto. As the defendants set forth no facts indicating a meritorious defense to the alleged non-payment of the trustee note, the order of the hearing judge, pro tanto, is affirmed. In summary, we hold that as to $51,103.46 of the total judgment entered against the appellants (plus one-half of the court costs below and a counsel fee of $7,500.00), the order of the court denying the petition to set aside the judgment is affirmed. As to the remainder of the total judgment the order is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Order affirmed in part and reversed in part; case remanded for further proceedings not inconsistent with this opinion; costs of this appeal to be paid by appellee.

      . Under the trust instrument, the Hookes as trustees held fee simple _ title to a 72.5 acre tract of land in Baltimore County for the benefit of three minor children.

      . We observe that the claimed attorney’s fee of $15,000 on the corporate note, plus the $7,500 fee claimed on the trustee note, equal $22,500, not $22,600.

      . Rule 625a provides:
      “For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.”

      . The appellee claims it told Mr. Hooke it had obtained a judgment against him as trustee. Mr. Hooke denied this, claiming that he only learned the judgment was against him as trustee when he attempted to refinance a mortgage loan against some of the trust property.

      . “Rule 645. Judgment by Confession
      “c. Application by Defendant.
      Application to vacate, open or modify the judgment must be made by motion within 30 days after service of the summons. The motion shall be made on the ground that the defendant has a meritorious defense to the cause of action. It shall set forth fully the facts relied on for such defense. A copy of the motion shall be served on the plaintiff or his attorney. If no application is made within the time allowed, the judgment shall stand to the same extent as a judgment absolute entered after trial.

        “d. Disposition of Application.
      The motion shall be heard promptly by the court. If the evidence presented at the hearing establishes that there are substantial and sufficient grounds for an actual controversy as to the merits of the case, the court shall order the judgment by confession vacated, opened or modified with leave to the defendant to file a pleading and the case shall stand for trial. If the evidence does not establish that there are substantial and sufficient grounds for actual controversy as to the merits of the case, the judgment shall stand to the same extent as a judgment absolute entered after trial."