text:
    BAY STATE INSURANCE COMPANY v. ROBERT H. HILL
    [No. 389,
    September Term, 1976.]

      Decided February 3, 1977.

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

      George H. Eggers for appellant.
    No appearance for appellee.
   Moore, J.,

delivered the opinion of the Court.

A friendly fire almost became a conflagration as the result of faulty construction of a fireplace in a newly-constructed residence in Silver Spring, Montgomery County. Appellant, Bay State Insurance Company, paid a fire damage claim in the sum of $4,286.46 presented by the homeowners, its insureds. Subsequently, it brought suit against the builder, R. H. Hill, appellee, pursuant to a subrogation clause in the fire insurance policy. A jury in the Circuit Court for Montgomery County returned a verdict for Bay State but the presiding judge (McAuliffe, J.) thereafter granted a motion for judgment n.o.v. and entered judgment for costs in favor of Mr. Hill.

In a comprehensive written opinion, the court ruled that appellant’s claim was barred by the two-year statute of limitations applicable to implied warranties under Maryland Code, Real Prop. Art., § 10-204; and that Mr. Hill, as a mortgagee “loss payee” under the terms of the insurance contract, was immune from suit by Bay State; he could not, in effect, be sued by his own insurer. Upon our review of the record and the applicable law, we affirm the trial court’s ruling that the statute of limitations barred the action, although we do so on different grounds. We find it unnecessary to consider the question of appellee’s immunity as a “loss payee.”

I

The critical factors involving the statute of limitations emerge from the following chronological outline:

November 21,1971 Fire casualty occurred;

April 17,1974 Original declaration filed by Bay State alleging breach by Hill of express warranty based upon construction contract;

November 25,1974 Plea of Hill filed asserting general issue, waiver and estoppel, and immunity;

November 7,1975 Amended declaration filed containing same allegations as original but further alleging that Hill breached the implied warranties contained in Real Prop. Art., § 10-203.

November 10,1975 Plea filed to amended declaration asserting same defenses but adding, “That the plaintiffs action, or parts thereof, are not brought within the time prescribed by statute of limitations for such cases made and provided.” (Emphasis added.)

The express warranties alleged in the original and amended declarations were that, under the terms of the construction contract, appellee Hill agreed to construct the fireplace according to the plans and specifications and in a workmanlike manner, “using sound materials, and in compliance with all building regulations then in effect in Montgomery County.” At the trial, appellant’s proof was confined to evidence of Mr. Hill’s alleged breaches of the implied warranties set forth in § 10-203. No evidence of an express warranty was introduced and, indeed, the trial court instructed the jury that no express warranty was either claimed or proven.

Appellant’s cause of action, as subrogee under the fire insurance policy, arose on the date of the alleged breach, i.e., November 21, 1971. Cotham v. Board of County Commissioners, 260 Md. 556, 562, 273 A. 2d 115, 118 (1971); Real Prop., § 10-204 (c). Except as otherwise provided by statute, a civil action sounding in contract must be filed within three years from the date of the breach. Cts. & Jud. Proc., § 5-101. Thus, the original declaration, which alleged only a breach of an express warranty, having been filed approximately 2V2 years following the casualty, was timely. There is, however, a shorter period of limitations, namely two years, for breach of implied warranties created by § 10-203. In this respect, § 10-204 (c) provides:

“(c) Limitation of actions. — Any action arising under this subtitle shall be commenced within two years after the defect was discovered or should have been discovered or within two years after the expiration of the warranty, whichever occurs first.”

From the chronology heretofore presented, it is readily apparent that both the original and amended declarations were filed after the two-year statute of limitations above quoted. The trial court held that although the original declaration was filed after the two-year period, Mr. Hill waived that defense by not specifically pleading it in his initial plea and the court then analyzed the questions presented as being (1) whether the amendment of the declaration “related back” to the date the original fire; and (2) assuming relation back, whether the special plea of limitations interposed to the amended declaration would likewise relate back and operate as a bar.

Although we reach the same ultimate result as the learned trial judge, we do not agree that there was any waiver of limitations on the part of Mr. Hill. The only cause of action alleged in the original declaration was a breach of an express warranty as to which a three-year statute of limitations pertained and, as previously shown, the original declaration was filed within 2l/z years. Mr. Hill therefore had no reason to plead limitations to the original declaration. The doctrine of relation back and the familiar cases in which it has been applied and explicated are not apposite. See, e.g., Morrell v. Williams, 279 Md. 497 (1976); Mack Trucks, Inc. v. Webber, 29 Md. App. 256, 347 A. 2d 865 (1975), cert. denied, February 3, 1976. The fundamental issue is whether appellee Hill could legally interpose the defense of the two-year statute of limitations when he filed a plea to the amended declaration on November 10, 1975. We think the answer is clearly in the affirmative.

The subject of amendments to pleadings is comprehensively treated in Maryland Rule 320, pursuant to which appellant filed its amended declaration asserting for the first time a breach of implied warranty and did so, properly, without leave of court. Maryland Rule 320 d.l. Although provision is made for objections to amendments, Rule 320 d.5, that subsection mandates that “amendments shall be freely permitted in order to promote justice.” The relevant guidelines for a “response” to an amended pleading are contained in Rules 320 d.6 and 320 d.8. Maryland Rule 320 d.6 provides:

“6. Response — New or Additional.
Where an amendment is made, and new facts are introduced, or the case is varied in any material respect, the opposite party shall be at liberty to file such new or additional response to the amended pleading as may be necessary.” (Emphasis added.)

Maryland Rule 320 d.8 provides:

“8. Default in Responding to Amendment.
(a) Party Who Has Not Responded.
If a new party or an original party who has not responded shall fail to file his response within the time allowed, the case shall proceed in the same manner as if a party had failed to respond to the original pleading.
(b) Party Who Has Responded.
If an original party who has responded shall fail to file an additional response within the time allowed, the case shall proceed and the response previously filed shall be deemed to be a response to the amended pleading.”

As we interpret the provisions of Rule 320 d.6, supra, in the light of the facts here involved, the conclusion is inescapable that “the case [was] varied in [a] material respect by the amended declaration.” The trial judge made such a finding, unmistakably, when he stated:

“It is ‘material’ that § 10-203 created a contract implied in law, in addition to the express promises pleaded; it is ‘material’ that the plaintiff must prove a ‘sale’ or an ‘improvement’; finally, it is ‘material’ that there is a shorter statute of limitations for § 10-203 warranties than for an ordinary civil action.”

Once it is determined that the amended declaration materially altered the original declaration within the language above quoted, then appellee’s right to file a plea raising the defense of the statute of limitations is, in our judgment, unquestionable. 2 J. Poe, Pleading and Practice § 619 (6th ed. 1970); see Mack Trucks, Inc. v. Webber, supra; Crowe v. Houseworth, 272 Md. 481, 325 A. 2d 592 (1974); Doughty v. Prettyman, 219 Md. 83, 148 A. 2d 438 (1959).

Appellant also contends that Hill’s plea to the amended declaration did not adequately set forth the defense of limitations. We note that this point was not raised below by a motion to strike, or otherwise, and therefore is not preserved on appeal. Rule 1085. Even if properly before us, this contention is without merit. In his plea, Hill did not state that the applicable statute of limitations was two years, alleging only that the action was not brought “within the time prescribed.” Although it is generally preferred that the plea raising such a defense contain the appropriate statute of limitations, we do not consider such omission fatal. All that is required is “a plain statement of such facts as may be necessary to form the defense.” Wallace v. Schaub, 81 Md. 594, 597, 32 A. 324, 324 (1895); see 2 J. Poe, Pleading and Practice, supra, at § 620.

Finally, appellant challenges the timeliness of appellee’s assertion of the defense of limitations by contending that Hill did not raise the bar, expressly, in his motion for directed verdict. We find no merit to this contention. The defense was not only raised in the plea, but also in exceptions to the court’s charge and in appellee’s motion for judgment n.o.v.

Judgment affirmed; costs to be paid by appellant.

      . The court noted the existence of a question of interpretation as to whether the implied warranties contained in Real Prop., § 10-203 applied only to the sale of improved realty and not to improvements on unimproved realty already acquired, especially in the light of the language of § 10-201 c- defining “purchaser” as the “original purchaser of improved, realty.” (Emphasis added.) In the face of “perplexing statutory language and the dearth of appellate construction to guide us” the court assumed without deciding that the implied warranties were applicable. As is noted, infra, although the amended declaration alleged a breach of express and implied warranties, the case was submittted to the jury only on the issue of implied warranties. For purposes of this appeal, we also assume the applicability of the implied warranties.

      . See Federal Insurance Co. v. Tamiami Trail Tours, Inc., 117 F. 2d 794 (5th Cir. 1941); General Insurance Co. of America v. Stoddard Wendle Ford Motors, 410 P. 2d 904 (Wash. 1966); Keeton, Insurance Law § 4.2(b) (1971).

      . Real Prop., § 10-203, titled “Implied warranties,” provides:
      (a) Warranties which are implied. — Except as provided in subsection (b) or unless excluded or modified pursuant to subsection (d), in every sale, warranties are implied that the improvement is:
      (1) Free from faulty materials,
      (2) Constructed according to sound engineering standards,
      (3) Constructed in a workmanlike manner, and
      (4) Fit for habitation, at the time of the delivery of the deed to a completed improvement, or at the time of completion of an improvement not completed when the deed is delivered.

      . Appellant did not take exception to the trial court’s instructions in this regard.

        . As to both questions, the trial court found in the affirmative.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    EUGENIA B. FRITZ v. ERNEST S. FRITZ
    [No. 431,
    September Term, 1976.]

      Decided February 3, 1977.

    The cause was submitted on brief to Menchine, Moore and Lowe, JJ.
    Submitted by William R. Voltz for appellant.
    No appearance for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Ernest S. Fritz (husband) was divorced a vinculo matrimonii from Eugenia B. Fritz (wife) by a decree of the Circuit Court for Montgomery County passed on October 21, 1975. His bill had been grounded on desertion. The decree read as follows:

“ADJUDGED, ORDERED and DECREED, that the Plaintiff ERNEST S. FRITZ, be, and he hereby is, divorced a vinculo matrimonii from the Defendant EUGENIA B. FRITZ, and it is further
“ORDERED, that Plaintiff pay the costs of this suit.”

It will be noted that the decree did not deal in any way with the property rights of the parties or with the maintenance and support of a minor child of the parties.

Wife, through counsel, on November 19, 1975, filed a “motion to vacate judgment” — within 30 days after passage of the final decree.

The oral opinion of the chancellor included the following comment: “when I read the pleadings and I read everything.” We assume from this language that no evidentiary hearing was had upon wife’s motion. In any case, the transcript of the hearing below as it appears in the record is limited to an oral opinion of the chancellor.

The following order was passed on March 17,1976:

“ORDERED, that the judgment herein be and it hereby is vacated and remanded to the Domestic Relations Master for hearing and consideration as to the property rights to be adjudicated, if any, and it is further
“ORDERED, that as to the divorce granted by the judgment herein, the defendant’s motion be and it hereby is denied.”

It will be observed that the judgment was vacated as to a subject it had not addressed but the motion was denied as to the subject it did address.

The wife has appealed from the denial of her motion to vacate the divorce decree.

A motion to vacate, interposed within 30 days after entry of final judgment, is directed to the discretion of the trial court. Maryland Rule 625 a. Clark Baridon v. Union Co., 218 Md. 480, 483, 147 A. 2d 221, 222-23 (1958).

In Hamilton v. Hamilton, 242 Md. 240, 218 A. 2d 684 (1966), the Court of Appeals, although affirming denial of such a motion in a divorce proceedings, declared the rule and policy in appellate assessment whether discretion in such cases has been abused, saying at 243 [686]:

“When a motion is made to set aside an unenrolled decree the trial court possesses an extremely broad power of revision and must exercise its discretion liberally ‘lest technicality triumph over justice.’ Eshelman Motors v. Scheftel, 231 Md. 300, 189 A. 2d 818 (1963). The trial court’s discretion is not restricted in regard to setting aside an unenrolled decree as it is where the decree has become enrolled, after which it may then only be revised on grounds of fraud, mistake or irregularity. Maryland Rule 625a. In the case of an enrolled decree even a possible error in the entry of a summary judgment may not constitute such a mistake as would warrant setting it aside. Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 146 A. 2d 771 (1959). See Tasea Investment Corp. v. Dale, 222 Md. 474, 160 A. 2d 920 (1960) and Newark Trust Co. v. Trimble, 215 Md. 502, 138 A. 2d 919 (1958).
“While there is a strong public policy in favor of sustaining the finality of divorce decrees (Leatherbury v. Leatherbury, 233 Md. 344, 196 A. 2d 883 (1964)), this policy would not operate in regard to an unenrolled decree before parties could have changed their position and relied on it to their detriment. Cf. Pryor v. Pryor, 240 Md. 224, 213 A. 2d 545 (1965) and cases cited therein.”

In the subject case there is no evidence that the parties have changed their position.

We shall detail the proceedings below from the time of the filing of the bill of complaint to the time of the passage of the decree.

Husband’s bill of complaint had alleged that he had been a resident of Montgomery County for more than one year; that wife was an adult resident of Rome, Italy; that the parties had been married on November 12, 1949 in Charleston, South Carolina; that three children were born of the marriage, only one of whom was a minor (residing with wife in Rome, Italy); that wife on June 26, 1973, deserted and abandoned him without just cause or reason and that such desertion was continuous and uninterrupted since that date. He prayed for divorce a vinculo matrimonii, with a general prayer for such other and further relief as may seem just and proper.

On the same date the attorney for husband filed an order directed to the Clerk of Court requesting issuance of “summons per Rule 107.”

On April 24, 1975, the attorney for husband filed in the proceedings an affidavit purporting to be in compliance with the provisions of Rule 107 but reading as follows:

“I HEREBY CERTIFY that I personally delivered to the Rockville Post Office an envelope containing a true copy of the Bill of Complaint of Divorce A Vinculo Matrimonii filed herein and a true copy of the summons directing the defendant to file an answer or make other defense within 60 days after completion of service, [ ] addressed to the Defendant, EUGENIA B. FRITZ, at Viculo del Gallinaccio, 8, Int. 10, 00187 Roma, Italy; and that I prepaid the registered mail costs and the restricted delivery (addressee only) costs as well as costs for a return receipt and other postage as evidenced by the attached original receipt for registered mail, labeled Exhibit 1; and that I received back through the postal service the attached signature card, labeled Exhibit 2, which bears the signature of the defendant as having received it on March 21,1975.” (Emphasis added.)

Decree pro confesso was taken on July 14,1975.

On July 30,1975, notice was given to husband’s counsel — but not to wife — that a hearing would be had on September 11,1975, at 11 a.m. before a Domestic Relations Master.

On September 3, 1975, a letter dated August 25, 1975, addressed by Eugenia B. Fritz to the Clerk of Court was filed in the proceedings. The letter read as follows:

“Viculo del Gallinaccio, 8, Int. 10 00187, Rome, Italy

Dear Mr. Smith:

This is my defense to Equity No. 51837, with special reference to Article 5 of said Equity. It represents also reply to James R. Trimm, Attorney for Plaintiff, Ernest S. Fritz.

(signed) Eugenia B. Fritz”

Attached to that letter and dated simultaneously therewith, was a letter purporting to have been addressed to counsel for husband containing, inter alia, the following allegations:

“. .. the Plaintiff has perjured himself in the following manner; the phrase, ‘without just cause or reason,’ is a deliberate untruth in Article 5, and I am prepared to present evidence and witnesses to testify that in fact that there was just cause and very concrete reason for my action. A statement was made by the Plaintiff on or about May 30,1973 in the presence of my parents and my children that he intended to divorce me. This was a statement made by the Plaintiff in a rare instance of sobriety and with all deliberate forethought. I further contend that said Plaintiff also stated: T found you in Charleston and I am going to leave you in Charleston’.. ..
“In regard to the phrase ‘without just cause,’ I would call ‘just cause’ the fact that Plaintiff over a period of years has: 1) threatened my life with physical violence and that these threats were more often than not executed. 2) locked me out of own home, making me spend the night in the garage. 3) wilfully destroyed articles of furniture in our home. 4) was subject to continual periods of inebriation. 5) jeopardized my mental and physical health; 6) received compromising letters from two women on or about July 15, 1968 — said letters are in my possession.”

Notwithstanding the filing of the tardy proper person answer of wife, the hearing before the master went forward as scheduled without notice to her. Harrison v. Morton, 87 Md. 671, 677, 40 A. 897, 899 (1898).

On October 6, 1975, the Domestic Relations Master filed his report. The report noted that the “defendant did not appear at the hearing and was not represented by counsel.” The report also noted that “The defendant having defaulted by reason of her failure to file a responsive pleading, the Court signed a Decree Pro Confesso on July 14, 1975.” The report made no reference to wife’s proper person answer in the form of the letters referred to herein, supra. The report recommended that “Ernest S. Fritz be awarded a divorce a vinculo matrimonii .. .” and that “the costs ... be paid by the plaintiff.” The report noted, however, that a copy had been mailed to wife at the address appearing on her letters, supra.

October 21,1975, a decree was passed granting to husband a divorce a vinculo matrimonii.

On November 19,1975, the wife, through counsel, filed her motion to vacate, that read in pertinent part as follows:

“1. Defendant is presently residing in Rome, Italy and mail service to and from Rome is very slow. Upon receiving the report of the Domestic Relations Master, Defendant immediately attempted to communicate with Counsel to object to the Decree being entered and to take whatever other actions were necessary for her to have a full hearing of her case. Upon receiving prior Court papers, Defendant had written directly to the Court and was of the opinion and belief that her letter would serve as a responsive pleading and avoid default.
“2. Defendant has a meritorious defense to Plaintiffs cause of action and a counter claim she wishes to pursue. A copy of the Answer and Counter-Claim is attached hereto and the allegations [sic] set forth therein adopted as a part of this Motion.”

The “answer” referred to in the second paragraph of wife’s motion denied that she had deserted and abandoned husband as alleged and alleged that “there are certain property rights to be adjudicated.” The answer prayed that the husband’s bill of complaint be dismissed; that she be awarded custody of a minor child and that she be granted other and further relief.

The “counter-claim” referred to in the wife’s motion, alleged, inter alia, (as summarized by this Court):

(a) That she was always a good and dutiful wife.
(b) That she had been treated “in a cruel, unbearable, bulliing [sic] and abusive manner, has many times struck and beat her, such to constitute cruelty ... or constructive desertion and abandonment.”
(c) That husband, on “May 30, 1973 told Defendant and Counter Plaintiff that he was going to divorce her and thereafter he left the family which was then residing in Charleston, South Carolina, and moved to Rockville, Maryland where he resided with relatives and made no attempt to bring his wife or family with him or to provide a place for them to live in Maryland.”
(d) “That the parties have remained separate and apart without cohabitation .. ..”
(e) That there is no hope of reconciliation.
(f) That there are certain property rights to be adjudicated.
(g) That husband “is gainfully employed and able to support wife who, although gainfully employed does not earn a sufficient income to support and maintain herself and minor child.”

The proposed “counter-claim” prayed that she be divorced a, vinculo matrimonii; that she be awarded alimony, both pendente lite and permanent; that she be awarded custody of the minor child of the parties; that “she be awarded a one-half interest of the property rights of the parties”; that she be awarded reasonable attorney fees and costs; that she be awarded support and maintenance of the minor child; and that “she be granted such other and further relief as to the Court may seem just and proper.”

Maryland Rule 675 reads in pertinent part as follows:

“Rule 675. DECREE PRO CONFE SSO ........ Equity
a. Interlocutory and Final Decree Setting Aside —Answer.
3. Answer — When May Be Filed.
At any time after a decree pro confesso shall have been entered, and before final decree upon motion or upon its own initiative, the court may set aside the decree, and permit the filing of an answer or the interposing of other defense. ll
4. Conditions on Granting of Motion.
Such motion shall be granted only upon payment of the costs of the plaintiff up to that time unless the court by its order shall relieve the defendant of the payment of such costs upon such terms as the court shall prescribe for the purpose of avoiding expense or delay, and as justice may require.
5. Answer Not to Affect Validity of Prior Testimony.
The filing of such answer shall not affect the validity of any testimony previously taken.”

Whether leave should be granted to file an answer or other defense is a matter left to the discretion of the chancellor. Guerriero v. Friendly Finance Corp., 230 Md. 217, 222, 186 A. 2d 881, 883-84 (1962).

We think that appellate decisions indicate that leave to file an answer in such cases should be freely granted when it appears that a colorable meritorious defense has been shown.

The case of Miller v. Talbott, 239 Md. 382, 211 A. 2d 741 (1965), is analogous to the subject, although relating to a bill for specific performance rather than for divorce. The Court said at 388, et seq. [745-46]:

“We next turn to question . .. which raises the propriety of the entry of the final decree for specific performance of August 29, 1964 in view of the matters of defense to the bill which the defendants offered to prove. We have already decided that the hearing of May 15, 1964 was not a hearing on the merits of the defendants’ defenses. In spite of argument of defendants’ new counsel with respect to those defenses, the only testimony introduced was that respecting the plaintiffs’ damages. In fact, the motion to set aside the interlocutory decree had already been denied before the testimony was taken. In the absence of any other hearing held by Chief Judge Boylan, we take it as established that the defendants have never had their day in court with regard to the meritorious defenses they assert. But this is not necessarily fatal. Maryland Rule 675 a 1 provides:
‘Where a bill is taken pro confesso, a final decree may be entered at any time after the expiration of thirty days from the entry of the order of pro confesso, if an answer or other defense is not interposed, and the allegations of the bill or petition present a proper case for relief.’
Maryland Rule 675 a 3 provides:
‘At any time after a decree pro confesso shall have been entered, and before final decree, upon motion or upon its own initiative, the court may set aside the decree, and permit the filing of an answer or the interposing of other defense.’
“There is some ambiguity as to whether the party against whom the interlocutory decree has been entered may file an answer as a matter of right, or only with leave of court. The ambiguity was resolved in favor of the latter construction in Guerriero v. Friendly Finance Corporation, supra, where Judge Hammond for the Court said (at page 222), ‘The defense may be filed not by the unilateral act of one party filing or tendering it, but only with the court’s permission.’ This interpretation makes the equity procedure more analogous to that at law upon the entry of an interlocutory or default judgment under Rule 648, and gives real meaning and weight to this type of interlocutory decree. Discretion being the controlling test, we are of the opinion that upon an appeal from a final decree entered upon a decree pro confesso, without a hearing on the merits of the suit, we may determine inter alia whether the refusal of the lower court to hear and determine the merits of the case of the party in default was an abuse of the discretion reposed in it.
“Under the circumstances of this case we hold that the refusal of the lower court to hear evidence on, and to determine the merits of, the defendants’ proffered defenses constitutes an abuse of the discretion given by Maryland Rule 675 a 3, and that the final decree of specific performance dated August 29, 1964 must be reversed. The Maryland Rules of Procedure should, of course, be liberally construed so as to effectuate their purposes and to do justice between the parties.”

We disagree with the conclusion reached by the chancellor that “she has not stated enough grounds in her motion or anything else to show she had a meritorious defense.” We think her proposed answer, coupled with her proposed cross-claim, (the latter incorporated in her answer by reference) alleged a colorable meritorious defense. Compare Franciscus v. Franciscus, 31 Md. App. 78, 354 A. 2d 454 (1976), wherein this Court said at 81 [457]:

“Appellant, in his brief filed in this Court, steadfastly maintains that he has a ‘meritorious defense’ to the appellee’s petition. He cites Md. Rule 675 a 3 which permits the trial court to set aside a decree pro confesso when ‘... an answer or the interposing of other defense’ is filed. The rule is, however, permissive, not mandatory. Furthermore, Miller v. Talbott, 239 Md. 382, 211 A. 2d 741 (1965), and Richardson v. Richardson, 217 Md. 316, 142 A. 2d 550 (1958), relied upon by appellant, are inapposite. Both cases were concerned with the interposing of a meritorious defense. We interpret the term ‘meritorious defense’ to be one that goes to the core, heart, merits, essence, or substance of the case. Dilatory, procedural, jurisdictional, or other technical objections are not included within its ambit.”

The case of Richardson v. Richardson, 217 Md. 316, 142 A. 2d 550 (1958), is factually quite similar to the subject case. In that case an order dismissing a motion to strike a decree and a decree pro confesso was reversed and the cause remanded for further proceedings. The decision in Richardson delineated the course to be followed upon remand (at 322-23 [554]). We shall follow a similar course.

It may be that upon a new hearing on the merits of the appellant’s motion to strike that the chancellor may conclude that the motion should not be granted. In that event, a decree of divorce such as that passed on October 21, 1975, could be entered without any further hearing, so far as we are presently advised. No objection was made in this Court to the correctness of the decree of divorce on the record before the court, except on the ground that the wife had been denied the opportunity to present her defense by reason of the ruling on the motion to strike the decree pro confesso.

If, on the other hand, the chancellor should conclude that the motion should be granted and that the answer and cross-complaint should be filed, the case would continue in ordinary course. Terms may be imposed under Rule 675 a 4, as a condition of granting the motion.

Order dated March 17, 1976, reversed; decree dated October 21st, 1975, vacated; case

remanded for further proceedings not inconsistent with this opinion; the costs of this appeal to be paid by the appellee.

      . Maryland Rule 107, dealing with service of process outside the State.

      . Such a direction was erroneous. Under Rule 107 b a defendant outside of the United States has ninety days to answer. No jurisdictional issue arises by reason of such error, however, because the defendant, by filing a motion contesting the merits of the cause, waived any jurisdictional complaint she might otherwise have asserted. McCormick v. Church, 219 Md. 422, 149 A. 2d 768 (1959).

      . See Maryland Rules 301 f; S71 and S72.

      . The nature of the claimed property rights was undisclosed. We note that an equity court exercising its divorce jurisdiction has no authority to adjust the property rights of a husband and wife without statutory authority. Schwartzman v. Schwartzman, 204 Md. 125, 102 A. 2d 810 (1954); Bailey v. Bailey, 218 Md. 527, 147 A. 2d 747 (1959); Abell v. Abell, 12 Md. App. 99, 277 A. 2d 629 (1971), cert. den. 263 Md. 709. See Maryland Code CJ 3:603.

      . At an earlier period the Rules of Court required that a motion to set aside a decree pro confesso must be filed within thirty days after its entry. See Richardson v. Richardson, 217 Md. 316, 320, 142 A. 2d 550, 552-53 (1958).


author: Melvin, J.,

text:
    MICHAEL KEITH HINES v. STATE OF MARYLAND
    [No. 448,
    September Term, 1976.]

      Decided February 3, 1977.

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

      John R. Salvatore, with whom was Michael G. Day on the brief, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and John S. Hollyday, State’s Attorney for Washington County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

Michael K. Hines (appellant) was tried by a jury in the Circuit Court for Washington County (Ottinger, J. presiding), and on 7 November 1975 was convicted of murder committed during a storehouse burning, Md. Code Ann. Art. 27, § 409; and murder committed during a storehouse breaking, Art. 27, § 410. He was also convicted of storehouse burning, attempted storehouse burning, and storehouse breaking. Concurrent life sentences were imposed for the felony murder convictions. A twenty year sentence for storehouse burning and a two year sentence for attempted storehouse burning were imposed to run consecutively to the felony murder sentences. A ten year consecutive sentence for storehouse breaking was also imposed.

On 23 June 1975 a sprinkler system and fire alarm were automatically activated at the E. J. Fennell Company in Hagerstown, Maryland. Upon responding, the fire department found that fourteen separate fires had been set inside the building. The lifeless body of the night watchman, Roy Rowland, whose skull had been crushed, was found inside. An arson investigation supported the conclusion that all fourteen fires had intentionally been set. Further investigation by the police revealed that an exterior window had been broken, apparently as a means of access, and office files ransacked. Also found at the scene was a note, written on an envelope, reading “WELL HIT AGAEN. THE FIRE BIGG” (sic). The printing on this note was identified at trial as being that of the appellant.

At trial, two prosecution witnesses, Richard Roser and Nelson Bowers, both testified that the appellant admitted clubbing “someone” at the E. J. Fennell plant. Another witness for the State, Carl Stablein, testified that while incarcerated in a nearby jail cell, the appellant related his involvement in the incident. Stablein testified that the appellant told him he had broken a window and entered the Fennell plant; that an accomplice struck the night watchman, and that he started some fires. Bowers also testified to an admission by appellant that when he left the building “the place was burning”.

Appellant now attacks his convictions claiming:

1) The court erred by not removing the case from Washington County.

2) The corpus delicti of murder was not proven because the victim’s body was not identified.

3) There was insufficient evidence to support a conviction of storehouse burning.

4) The convictions and sentences for both felony murder counts were duplicitous.

5) The crime of attempted storehouse burning merged into the conviction for storehouse burning.

We shall consider these contentions separately.

I

“DID THE COURT ERR IN REFUSING TO REMOVE THE CASE FROM THE TRIAL JURISDICTION?”

Appellant claims that Judge Rutledge abused his discretion by refusing to grant his motion for removal. He maintains that because stories concerning the crimes and photographs of the appellant in handcuffs appeared in two local newspapers and on a local UHF television news broadcast, the potential jurors were inflamed, influenced, and incapable of rendering an impartial verdict.

The burden is on the party seeking removal of a trial to demonstrate:

“. . . that he has been ‘prejudiced by adverse publicity and that the voir dire examination of prospective jurors . . . would not be adequate to assure him a fair and impartial jury’ ”. Van Meter v. State, 30 Md. App. 406, 410, 352 A. 2d 850 (1976); quoting Sizemore v. State, 5 Md. App. 507, 511, 248 A. 2d 417 (1968).

Following a hearing on the suggestion for removal Judge Rutledge denied the motion. After reviewing the newspaper stories, the film clips and photographs, Judge Rutledge found:

“. .. that any prejudice to the petitioner that may have resulted from any of the pictures, scripts or article, can be, by proper examination upon voir dire, eliminated so as to guarantee the petitioner a fair trial in Washington County”.

The transcript of the voir dire examination is not included in the record. In its absence, there is nothing before us from which we can determine whether the voir dire examination did or did not result in the selection of an impartial jury, “untainted” by the pre-trial publicity. Van Meter v. State, supra. See, Md. Rule 1026 a (2). On the record before us we are unable to say that the appellant met his burden of proving that a fair trial could not be obtained, or that Judge Rutledge abused his discretion in denying removal of the trial. Md. Rule 738 b; Van Meter v. State, supra; Cleveland v. State, 12 Md. App. 712, 280 A. 2d 520 (1971).

II

“DID THE COURT ERR IN DENYING DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL FOR COUNTS 4 AND 6 AT THE CONCLUSION OF THE STATE’S CASE?”

Appellant next contends that because the identity of the victim named in the indictment was not proven, the corpus delicti of the murder with which he was charged was not established. This contention is without merit.

No direct evidence was presented which would establish the identity of the victim as Roy Calvin Rowland. It is, however, well settled that the identity of the victim of a crime may be established by circumstantial evidence. Watson v. State, 208 Md. 210, 117 A. 2d 549 (1955); Jones v. State, 188 Md. 263, 272, 52 A. 2d 484 (1947); Smith v. State, 31 Md. App. 106, 355 A. 2d 527 (1976).

There was ample evidence presented in the instant case which would support an inference that the victim was Mr. Rowland. The medical examiner testified that he performed an autopsy on the body of Roy Calvin Rowland. Carl Stablein testified to the admissions of the appellant that he and two accomplices broke into the E. J. Fennell plant, wrestled the night watchman to the ground, and hit him in the head with a pipe. William Fennell, Vice-President of the E. J. Fennell Company, testified that Roy Rowland was working as a night watchman for the company in June, 1975. In addition, a wallet was found near the victim’s body. Although it contained no positive identification of the victim, there was evidence that it did contain Roy Rowland’s pay check stubs.

In reviewing the evidence presented in a jury trial, the function of an appellate court is limited. In von Lusch v. State, 31 Md. App. 271, 356 A. 2d 277 (1976), reversed on other grounds. 279 Md. 255, 368 A. 2d 468 (1977), we reiterated the rule:

“In reviewing the sufficiency of the evidence in a jury trial, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt. Rather it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged, [citations omitted!.” 31 Md. App. at 279-280.

See also, Tillery v. State, 3 Md. App. 142, 238 A. 2d 125 (1968). We hold that the evidence in the instant case supports a rational inference that the body found in the Fennell plant was that of Roy Calvin Rowland, the alleged victim.

Ill

“WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE CONVICTION OF ARSON IN COUNT 2?”

Count of the indictment charges the appellant with the statutory crime of wilfully and maliciously setting fire to and burning “the manufacturing plant and warehouse of the E. J. Fennel Co., Inc.” See Md. Code Ann. (1976 Repl. Vol.), Art. 27, § 7. In addition to the mens rea, an indispensable element of the crime, as it is with the common-law crime of arson, is proof of a burning of the building involved. “If there is the slightest burning of any part of the building, the offense is complete”. Fulford v. State, 8 Md. App. 270, 259 A. 2d 551 (1969). Appellant argues that there is no evidence that the building itself was burned. We agree and shall therefore reverse the conviction under Count 2 of the indictment. If the building was burned, even “slightly”, the State made no attempt to show it. None of the pictures introduced in evidence even purport to show that any part of the building was burned and no witness testified to any such burning.

The State argues that evidence that “the place was full of smoke” coupled with appellant’s extrajudicial statement to the witness Bowers that “the place was burning when he [appellant] left”, was sufficient proof of this element of the corpus delicti. We can not agree.

The deputy fire chief who investigated the alleged “arson” testified that the building’s sprinkler system had been activated; that he arrived at the building within a few minutes thereafter; that he was unable to enter the building until the smoke was cleared away; that upon entering “we found fourteen different fires, set fires”; that all the fires were out when he entered; and that the fires had been set in “open areas” of the building with “materials that were already on hand, combustible materials, cloth, paper and wood”. There is no evidence that anything other than the “combustible materials” was actually burned.

“Merely ‘putting fire into or towards a house, however maliciously, if either by accident or timely prevention the fire do not take, and no part be burned, does not amount to arson at common law’. Nor will this offense result from the burning of chattels in or about the building, if the fire is not communicated to any part of the structure itself. Thus setting fire to paper in a drying loft is not arson if no part of the house itself is burned.” Perkins on Criminal Law, 2nd Ed. (1969), p. 221.

There being no evidence that the “set fires” were “communicated to any part of the structure itself’ an indispensable element of proof of the corpus delicti of the crime charged in Count 2 of the indictment was missing.

IV

“WERE THE CONVICTIONS AND SENTENCES FOR THE TWO COUNTS OF FELONY MURDER DUPLICITOUS?”

In view of our holding that the evidence is insufficient to sustain appellant’s conviction of storehouse burning, it follows that his conviction of felony murder under count 4 of the indictment must also be reversed. This is so because the underlying felony alleged in count 4 is storehouse burning. It is therefore unnecessary to consider appellant’s argument concerning the “duplicity” of his convictions and sentences under the two felony murder counts. We cannot refrain from commenting, however, that it is difficult to conceive how it is legally possible to be convicted and sentenced for twice murdering the same person. Under the present state of medical science, we think the State would be hard put to prove that a murder victim died twice, regardless of the manner or means of effecting the “first” death. See Stansbury v. State, 218 Md. 255, 146 A. 2d 17 (1958); Wood v. State, 191 Md. 658, 62 A. 2d 576 (1948).

V

“WAS THE CONVICTION FOR ATTEMPTED ARSON (COUNT 3) IMPROPER IN LIGHT OF THE CONVICTION FOR ARSON (COUNT 2)1”

Appellant does not question the sufficiency of the evidence to convict him of attempted storehouse burning under Count 3 of the indictment. He argues that his conviction thereunder “should have merged into the conviction” for the consummated crime of storehouse burning (Count 2). In view of our holding that the conviction under Count 2 must be reversed, the question is moot and need not be decided.

Judgments under Count 2 (storehouse burning) and Count k (felony murder-storehouse burning) reversed: judgments under Counts 3 (attempted storehouse burning), 5 (storehouse breaking) and 6 (felony murder-storehouse breaking) affirmed.

Costs to be paid one-half by appellant and one-half by Washington County.


author: Gilbert, C. J.,

text:
    NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, DISTRICT 1199E, etc. et. al. v. LAFAYETTE SQUARE NURSING CENTER, INC., etc.
    [No. 776,
    September Term, 1976.]

      Decided February 3, 1977.

      The cause was argued before Gilbert, C. J., and Thompson and Moore, JJ.

      Bernard, W. Rubenstein, with whom were Ann F. Hoffman and Edelman, Levy & Rubenstein, P.A. on the brief, for appellants.

      George W. McManus, Jr., with whom was Frank S. Astroth on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Labor disputes resulting in strikes are never pleasant, are ofttimes filled with bitterness and rancor, and are sometimes violent. When the strikers’ jobs are filled by management with strikebreakers or “scabs,” as they are commonly known, emotions may give way to violence. In that event, the labor dispute becomes more than a management-union controversy because the police and the courts then become involved as keepers of the public peace. This appeal is the direct result of such an occurrence.

To comprehend fully the issues herein discussed, we shall briefly set the factual predicate giving rise to this case:

Lafayette Square Nursing Center, Inc. (Center) purchased on August 9, 1976, a nursing home from Community Health Corporation (Community Health). Immediately prior to the acquisition of the home by Center, the home was known as Bolton Hill Nursing and Convalescent Center (Bolton). Community Health had previously entered into a labor agreement with National Union of Hospital and Health Employees, District 1199E, an unincorporated trade union (Union). By terms of the agreement, Union was recognized as the collective bargaining agent for certain employees of Bolton.

Almost simultaneously with Center’s emption of Bolton from Community Health, it entered into an agreement with Olympic Management Services, Inc., a Delaware corporation, whereby Olympic was to supply the labor for Center. The employees of Community Health who had been working at Bolton were informed that they could make job applications to Olympic and “they would be hired . . . and continue to receive the same wages, benefits and other terms and conditions of employment they enjoyed as employees of Community Health. . . .”

At approximately 1 p.m. on August 10, 1976, representatives of the Union went to the Center and demanded that the Union be recognized by Center as the collective bargaining agent and that Center assume Community Health’s collective bargaining agreement. Unsuccessful in that endeavor, the Union advised Center, by telegram from its parent organization, that a strike would be called, and Center would be picketed commencing 6 a.m., August 22, 1976. Notwithstanding the date set in the telegram, pickets arrived on the morning of August 11, 1976, and the strike began.

Two days later a “Bill of Complaint for Temporary and Permanent Injunction” was filed by Center against the Union. The Bill recited that acts of coercion, intimidation, violence and property damage had occurred at the nursing home and prayed that the Union be enjoined “from threatening, intimidating, warning, assaulting, blocking or in any other way molesting or interfering with any person on or about the premises” of Center. Additionally, the Circuit Court of Baltimore City was asked to limit to not more than two (2) the number of pickets “at any of the entrances to the premises” of Center.

Following the hearing of August 17 and 18, 1976, the trial court issued an injunction which restrained the Union from,

“(c) Threatening, intimidating, warning, assaulting, blocking or in any other way molesting or interfering with any person on or about the premises of . . . [the Nursing Center] or seeking entrance or exit to or from the . . . [Center’s] premises; and,
(d) Placing or allowing more than four (4) pickets at the main or Lafayette Avenue entrance to . . . [Center’s] nursing home.
(e) Placing or allowing more than two (2) pickets at the courtyard entrance to . . . [Center’s] nursing home, said entrance being located on John Street.
(f) Placing or allowing more than two (2) pickets at the ambulance entrance ....
(g) Placing or allowing more than two (2) pickets at either of the alley entrances . .. .”

The Union promptly appealed to this Court where it alleges that the chancellor erred because:

“A. The Court’s finding that unlawful acts have been threatened or committed and will be executed or continued unless restrained is clearly not supported by the evidence.
B. The Court’s finding that substantial and irreparable injury to . . . [Center’s] property will follow unless relief is granted is unsubstantiated by the evidence.
C. The Court’s finding that ... [Center] has no adequate remedy at law is not supported by the evidence.
D. The record does not support the Trial Court’s finding that the police could not control the situation nor that police protection was inadequate.
E. The Maryland Code requires that a complainant seeking an injunction make every reasonable effort to settle a labor dispute either with the aid of any available machinery, through governmental mediation or voluntary arbitration, unless irreparable injury is threatened.”

The scope of review of injunctions by the Court of Appeals is governed by Md. Rule 886. Md. Trust Co. v. Tulip Realty, 220 Md. 399, 411, 153 A. 2d 275, 283 (1959). The Court of Special Appeals has its counterpart in Md. Rule 1086. Sullivan v. Auslaender, 12 Md. App. 1, 3 n. 3, 276 A. 2d 698, 700 (1971). The standard to be applied, therefore, in this Court’s review of Union’s contentions “A” through “D”, is whether the chancellor’s findings of fact were “clearly erroneous.”

The General Assembly has declared with regard to the use of injunctions in labor-management disputes that:

“Negotiations of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers the individual unorganized worker is helpless to exercise actual liberty of contract, and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from interference, restraint or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Md. Ann. Code art. 100, § 63.

By enactment of Md. Ann. Code art. 100, § 68, the legislature has mandated:

“No court nor any judge or judges thereof shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined, except after hearing the testimony of witnesses in open court, (with opportunity for cross-examination) in opposition thereto, if offered, and except after findings of all the following facts by the court or judge or judges thereof;
(a) Acts committed. — That unlawful acts have been threatened or committed and will be executed or continued unless restrained; ■
(b) Injury In general. — That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted;
Tc) Same — Extent. —That _as to each item of relief granted greater injury will be inflicted upon complainant by the denial thereof than will be inflicted upon defendants by the granting thereof;
(d) Jurisdiction. — That no item of relief granted is relief that a court or judge thereof has no jurisdiction to restrain or enjoin under § 65 of this article;
(e) No remedy at law. — That complainant has no adequate remedy at law; and
(f) Failure to protect property. —That the public officers charged with the duty to protect complainant’s property have failed or are unable to furnish adequate protection.
(g) Notice of hearing. — Such hearing shall be held after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to those public officers charged with the duty to protect complainant’s property.” (Emphasis supplied.)

The chancellor found as a fact:

“a.) that the mass picketing, blocking of exits and entrances, acts of violence, loud noise, verbal abuse, verbal assaults and threats set forth . . . are illegal and unlawful acts caused by or engaged in by the representatives, agents, servants, and employees of Respondent Local 1199E and those acting in consort and participation with them and such Acts will continue unless restrained;
b. ) that the potential for violence to Complainant’s employees and destruction of Complainant’s property is great and substantial and irreparable injury to Complainant’s property will more probably then [sic] not follow unless the relief requested in the Bill of Complaint is granted;
c. ) that as to each item of relief requested, greater injury will be inflicted upon Complainant by the denial thereof than will be inflicted upon Respondents by the granting thereof;
d. ) that as a matter of law, those acts complained of by the Complainant and sought by it to be enjoined are not within the prohibitions of S 65 of Article 100 of the Annotated Code of Maryland and that there has been no Federal pre-emption of the right of the State courts to prohibit the acts complained of;
e. ) that as a result of the aforesaid unlawful acts by Respondent Local 1199E, Complainant has suffered substantial and irreparable injuries for which it has no adequate remedy at law and unless a permanent injunction is issued, Complainant will suffer substantial and irreparable injury;
f. ) that the public officers charged with the duty to protect ... [Center’s] property have failed or are unable to provide adequate protection;
g. ) that only by the issuance of the injunctive relief hereinafter set forth may the peace and security of the citizens of this State and their property be protected;
h.) that the end sought to be obtained may best and most fairly be reached by prohibiting those particular acts which lead to the continuing disorders and may place reasonable limitation on the number of pickets that may be maintained by Respondent Local 1199E; that the unlawful acts which have been committed will be continued unless restrained . . .

At the hearing before the trial court, there was testimony that (1) the noise created by the picketers of the Center was great and disturbed persons living in the neighborhood; (2) a hose was placed through the window of the kitchen of the Center and the water was turned on; (3) tacks were placed in the driveway of the Center; (4) a picket was struck by a car driven by an employee of Center; (5) Arlene Lewis, an employee of Center, while on her way to work, was pushed against a wall by pickets and told to “get her ass back on the bus”; (6) Mary Nutter, an employee, was blocked from entering the Center, and subsequently had a bottle thrown at her car as well as having Rick Ehrman, District 1199E’s Administrator, beat and kick her car; (7) Harriet Pitt was told, on two occasions, by a picket that if she went into the building the picket “was going to whip ... [her] ass”; (8) Employee Margarite Thomas, as she left the Center, was allegedly assaulted by her brother who was picketing for 1199E; and (9) Sonya Gershowitz, owner of the Center, testified that pickets kicked her car and threw rocks and stones at it, broke windows in the chapel, called her names and tried to stop trash from being picked up and food from being delivered.

The Union refers us to a number of cases decided in various other State courts as well as Federal tribunals. A reading of those cases, however, fails to reveal that in any of them was a trial court precluded from issuing an injunction to prevent violence to the person or to property.

Although it is clear that Md. Ann. Code art. 100, §§ 63-75 (sometimes called “Maryland’s Little Norrjs-La Guardia Act”) was intended to and did abridge substantially the authority of courts of equity to issue injunctions in matters involving labor disputes, the act did not strip those courts totally of injunctive power. Indeed, § 68, quoted above, makes it beyond question that an equity court may issue an injunction in labor disputes provided that the issuing court shall first find from the evidence certain specific facts. If all of those facts are found, the injunction may issue. Conversely, if any one or more is not so found, no injunction may be issued.

Applying the provisions of Md. Ann. Code art. 100, § 68 to the evidence produced at the hearing before the trial court, a summation of which we have heretofore recounted, and to the findings of the judge, it is manifest that those findings by the trial court comply completely with the statutory mandate. Moreover, we are unable to conclude that the findings of fact are clearly erroneous. Md. Rule 1086; Md. Trust Co. v. Tulip Realty, supra; Sullivan v. Auslaender, supra.

Union also argues that the Center did not comply with the expressed ukase of Md. Ann. Code art. 100, § 69 which provides:

“No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available machinery or governmental mediation or voluntary arbitration, but nothing herein contained shall be deemed to require the court to await the action of any such tribunal if irreparable injury is threatened. ” (Emphasis supplied.)

As we have earlier indicated, the Maryland Anti-Injunction Act is a sibling of the Norris-La Guardia Act, 29 U.S.C. §§ 101-115. Because of the paucity of Maryland cases interpreting the Maryland Act, we must look to federal decisions for guidance.

We construe § 69 to be a condition precedent to the granting of an injunction in a labor dispute. Thus, before the trial court may issue an injunction the complainant must show affirmative compliance with the section even though all the elements of § 68 are found to be present. General Electric Co. v. Gojack, 68 F. Supp. 686, 689 (N.D. Ind. 1946). The italicized language of § 69 above does not permit a court to enjoin a strike because “irreparable injury is threatened” Unless there first is shown full compliance with §§68 and 69. Once that compliance has been proven, however, the court need not await the action of any “governmental mediation or voluntary arbitration” to enjoin threatened or real irreparable injury.

We observe that the Supreme Court, in Brotherhood of Railroad Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50, 64 S. Ct. 413, 88 L. Ed. 534, 150 A.L.R. 810 (1944) said of the Norris-La Guardia Act § 8, almost identical to Maryland Act § 69, that:

“In general the Act [Norris-La Guardia] was not intended to interfere with the power to restrain violent acts. And it was contemplated expressly the court might intervene to prevent them, when the particular circumstances show the complainant has had no opportunity to comply with such requirements as those of § 8. But one major purpose of the Act was to prevent the use of injunction improperly as a strikebreaking implement. And the discussion of § 8 in the Congressional debates shows that, while it would not apply if on the facts the complainant could not meet its terms, it was intended to apply when he had had ample opportunity but refused to do so. This is clear not only from Representative O’Connor’s ‘clean hands’ characterization of the section, but also from the general character of the discussion regarding it. Most, if not all, of the objection was upon the mistaken view that § 8 would apply even though the complainant might have no notice or knowledge of the facts calling for him to take the conciliatory steps before seeking injunctive relief. What has been said above shows this was not the intent or effect of the section. There was indeed no expression of concern for the complainant who, having full opportunity to comply with the section, might refuse deliberately and steadfastly to do so. On the contrary, it appears to have been understood clearly he would be remitted to other forms of relief not touched by the Act.” (Footnotes omitted.) 321 U. S. at 65-66, 64 S. Ct. at 421-22, 88 L. Ed. at 543-44, 150 A.L.R. at 818-19.

Paraphrasing what Judge Johnsen said in International Ass'n of Bridge, etc. Workers v. Pauly Jail Bldg. Co., 118 F. 2d 615, 616-17 (8th Cir.), cert. denied, 314 U. S. 639, 62 S. Ct. 75, 86 L. Ed. 513 (1941), of the Norris-La Guardia Act and transposing it to the Maryland Act, strict compliance with its terms is mandatory. The very purpose of injunctive relief in a labor dispute, no matter how narrowly the injunction be drawn, is to tip the scale of the controversy. Such an event is the very iniquity the Act was designed to prevent.

Except for the failure of the complainant, Center, to demonstrate that it had met the requirement of Section 69 overtly or was prevented from meeting those requirements, Brotherhood of Railroad Trainmen v. Toledo, P. & W. R. Co., supra, 321 U. S. at 66, 64 S. Ct. at 422, 88 L. Ed. at 544, 150 A.L.R. at 819, the injunction in this case would have been properly issued. The record, however, is silent with respect to compliance or inability to comply with § 69. That silence is, in the instant case, fatal to the relief sought, and the trial court should not have issued, under the circumstances, the requested injunction.

We believe that by the enactment of Md. Ann. Code art. 100, § 69, particularly when read together with the legislative purpose articulated in § 63 thereof, that § 69 sets forth a condition precedent to equitable relief, that chancellors may not ignore, no matter how loudly the other facts seem to cry out for such relief. General Electric v. Gojack, supra. The legislatively created barrier was not overcome by Center and the injunction was improperly issued.

Order reversed.

Costs to be paid by appellee.

      . Also named as defendants in the Bill were: Ronald Hollie, President of District 1199E; Isiah T. Spriggs, Executive Vice President, District 1199E; and Cyril E. Kearl, Secretary-Treasurer of District 1199E. All defendants in the trial court have appealed. We shall refer to all collectively as “Union.”

      . The statute, Md. Ann. Code art. 100, § 68, continues on to provide:
      “(h) Temporary injunction — In general. — Provided, however, that if a complainant shall also allege that unless a temporary restraining order shall be issued before such hearing may be had, a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be granted upon the expiration of such reasonable notice of application thereof as the court may direct by order to show cause, but in no case less than forty-eight (48) hours.
      (i) Same — Service of notice to show cause; duration. — Such order to show cause shall be served upon such party or parties as are sought to be restrained and as shall be specified in said order, and the restraining order shall issue only upon testimony, or in the discretion of the court, upon affidavits, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing as herein provided for. Such a temporary restraining order shall be effective for no longer than five days, and at the expiration of said five days shall become void and not subject to renewal or extension, provided, however, that if the hearing for a temporary injunction shall have been begun before the expiration of the said five days the restraining order may in the court’s discretion be continued until a decision is reached upon the issuance of the temporary injunction.
      (j) Same — Bond. — No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order of injunction, including all reasonable costs (together with a reasonable attorney’s fee) and expenses against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.
      (k) Same — Decree; pursuit of other remedy. — The undertaking herein mentioned shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, submitting themselves to the jurisdiction of the court for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity.”
      Subsections “h” through “k” are not here applicable and indeed are not part of the “fact finding” process required by Section 68.

      . Re: Contention A. Kayser-Roth Corp. v. Textile Workers Union of America, 347 F. Supp. 801 (D. Tenn. 1972), aff'd 479 F. 2d 524 (6th Cir.), cert. denied, 414 U. S. 976, 94 S. Ct. 292, 38 L.Ed.2d 219 (1973) (Intra-family assault taking place away from strike scene, remoteness from labor dispute); United Aircraft Corp. v. International Ass’n of Machinists, 161 Conn. 79, 285 A. 2d 330 (1971) (Acts of violence occurring at locations away from strike scene); and, AFA Protection Systems v. Local 3, IBEW, 337 N.Y.S.2d. 599, 71 Misc. 2d 823 (1972) (The New York Anti-Injunction Statute is not as broad as Maryland’s and the acts of violence took place over a longer time period.). Contention B. Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., 311 U. S. 91, 61 S. Ct. 122, 85 L. Ed. 63 (1940); Lauf v. E.G. Shinner & Co., 303 U. S. 323, 58 S. Ct. 578, 82 L. Ed. 872 (1938); and, General Electric Co. v. Gojack, 68 F. Supp. 686 (N.D. Ind. 1946) (These cases discuss the strict terms of the Norris-La Guardia Act and the Sherman Anti-Trust Act. They do not hold that neighbors’ discomfort occasioned by noise from a strike may not be considered in determining whether an injunction may issue.); League of Vol. Hosp. & Homes of N.Y. v. Local 1199, Drug & Hosp. Union, 490 F. 2d 1398 (Temp. Emer. Ct. App. 1973) and Potomac Electric Co. v. CORE, 210 F. Supp. 418 (D.C. 1962) (These cases describe examples of what can constitute substantial and irreparable injury. They do not set forth standards which must be met.); Wilkes-Barre Ind. Co. v. Newspaper Guild, Local 120, 455 Pa. 287, 314 A. 2d 251 (1974) (Applies the “clearly erroneous” standard of appellate review.). Contention C. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 79 S. Ct. 773, 3 L.Ed.2d 775 (1959); International Union, UAW v. Russell, 356 U. S. 634, 78 S. Ct. 932, 2 L.Ed.2d 1030 (1958); United Construction Workers v. Laburnum, 347 U. S. 656, 74 S. Ct. 833, 98 L. Ed. 1025 (1954) (State courts have jurisdiction to entertain damage suits arising from a labor dispute.). Contention D. Green v. Obergfell, 121 F. 2d 46 (D.C. 1941) (Violence occurring four (4) years prior to suit is too remote to be considered.); Cupples Co. v. AFL, 20 F. Supp. 894 (E.D. Mo. 1937) (To support finding that police protection was inadequate, courts do not have to wait for a definite declaration that police are unwilling to act nor wait for actual bloodshed, strife and violence.); Miller v. Gallagher, 28 N.Y.S.2d 606, 176 Misc. 647 (1941) (Request for injunction against all picketing found to be an attempt, under the circumstances, to punish past offenses.).

      . See also Parade Publications, Inc. v. Philadelphia Mailers Union No. 14, 459 P. 2d 369 (3rd Cir. 1972); Rutland Ry. Corp. v. Brotherhood of Locomotive Engineers, 307 P. 2d 21 (2d Cir. 1962), cert. denied, 372 U. S. 954, 83 S. Ct. 949, 9 L.Ed.2d 978 (1963); Donnelly Garment Co. v. ILGW, 99 F. 2d 309 (8th Cir. 1938), cert. denied, 305 U. S. 662, 59 S. Ct. 364, 83 L. Ed. 430 (1939); and Dean v. Mayo, 8 F. Supp. 73 (D. La. 1934).

      . The federal act does not contain “... but nothing herein contained shall be deemed to require the court to await the action of any such tribunal if irreparable injury is threatened.”


text:
    WILLIAM E. BARNHART v. STATE OF MARYLAND
    [No. 455,
    September Term, 1976.]

      Decided February 4, 1977.

    The cause was submitted on briefs to Davidson, Melvin and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Dennis M. Henderson, Assistant Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Alexander L. Cummings, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and William Townsend, Assistant State’s Attorney for Baltimore City, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

Pursuant to plea negotiations with the State, the appellant William E. Barnhart, tendered to the Criminal Court of Baltimore (Howard, J. presiding) a plea of guilty to common-law robbery, the third count of a multi-count indictment against him, and agreed to permit the State to proceed by way of stipulated testimony of various State witnesses. In return, the State agreed to nol pros the remaining counts of that indictment and to nol pros another indictment charging assault with intent to murder. As part of the “bargain”, the State also agreed that it “would not make a recommendation as to sentence ” and “would join with defense counsel in requesting a pre-sentence report”.

Judge Howard duly accepted the plea and found appellant guilty “based on your plea and the statement of facts”. A pre-sentence report was ordered. Several weeks later, on 7 April 1976, appellant received a sentence of ten years, the maximum allowed by law for common-law robbery. Code Art. 27, § 486.

In this appeal, appellant presents a single question:

“Must the judgment entered below be reversed because the prosecutor breached his plea bargain agreement to make no recommendation as to sentence?”

At the time of sentencing the prosecutor told the court:

“Very briefly, Your Honor, it is true as Mr. Kountz points out, the reports clearly indicate that at least a portion of Mr. Barnhart’s problem is alcohol related. It is well settled, as we all know, self-induced intoxication is no defense, not an acceptable defense in a criminal case. Reliable estimates are that there are some two million alcoholics in our national population. Had all of them committed the kind of act committed in this case, we would have a fearful national problem. Alcohol is a disease, that is true, but in this case the assault was particularly brutal. The victim, Mr. Martin, suffered, and suffers today, and will the rest of his life irreparable loss of hearing because of the beating and other injuries. The State considers it a most serious case.” (Emphasis added.)

In Miller v. State, 272 Md. 249, 332 A. 2d 527 (1974), the Court of Appeals said, at 253:

“. . . As the Supreme Court of Pennsylvania stated in Commonwealth v. Alvaredo, supra, 276 A. 2d at 529, a prosecutor’s promise to make no recommendation as to the sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statements at the time of sentencing/ ”

In Burroughs v. State, 30 Md. App. 669, 354 A. 2d 205 (1976), we held that the State breached its agreement “to remain silent” at sentencing when after the acceptance by the court of a negotiated plea, the prosecutor said to the court, “Your Honor, the State considers this to be a most serious case”. In the instant case, the State concedes that the prosecutor’s remarks constituted a breach of the plea bargain, but argues that the “issue of error in this respect has not been preserved for appellate review”. We agree and shall therefore not disturb the judgment below.

In Miller v. State, supra, the only issue before the Court was whether or not the State had breached the plea bargain. The issue of whether the point had been preserved for appellate review was not briefed by the appellant or the State, and the Court did not address the issue.

In Burroughs, supra, the State did contend that the question of breach was not preserved for judicial review. We addressed the issue and held that appellant’s counsel had entered a timely objection to the breach and had therefore “adequately preserved the question for our review”. In the instant case, there is nothing in the record to indicate that appellant or his counsel objected to the prosecutor’s remarks at sentencing, or sought any relief from the judge because of them. The issue is raised for the first time in this appeal. The issue was neither presented to nor decided by the court below; it is therefore not properly before us for decision. Maryland Rule 1085.

Were we to remand the case for further proceedings in accordance with the procedures set forth in Miller, supra, we would direct the trial court to do precisely what it could have, and presumably would have, done had the issue been presented to it, i.e., give the accused the option of withdrawing his guilty plea and proceeding to trial or of allowing the plea to stand and be resentenced by a different judge. To obtain such relief, however, it is necessary that the accused ask for it at the trial court level where there was ample time and opportunity to do so, and not for the first time on direct appeal to this Court. See People v. Barajas, 26 Cal. App. 3d 932, 103 Cal. Rptr. 405 (1972), to the same effect.

Judgment affirmed.

Appellant to pay costs.


author: Thompson, J.,

text:
    HOWARD LEON WHITE, SR. v. KAY FRANCES WHITE
    [No. 458,
    September Term, 1976.]

      Decided February 4, 1977.

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

      R. Richard Donadío for appellant.

      David Blum, with whom was Sidney Blum on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Howard Leon White, the appellant, on a petition by his wife for contempt, was ordered to pay $1400.00 for arrearages in child support payments pursuant to a previous divorce decree by the Circuit Court for Baltimore County. The court, on the husband’s petition, modified the decree of divorce by transferring custody of three of the minor children to the appellant and voided appellant’s obligation to make any future child support payments. The parties were ordered to pay their own counsel fees. On this appeal, Mr. White contends that the chancellor erred in his award of the money judgment and should have awarded him child support from the wife and reasonable counsel fees.

On October 18, 1974, a decree of divorce awarded Mrs. White a divorce a vinculo matrimonii, custody of the parties’ five minor children, and $50.00 per week child support. There was no breakdown in the support ordered for each -child, but the children were named. Shortly after the decree, Lisa White, one of the minor children, went to live with the appellant. In September of 1975 April and Gregory White moved in with their father. In October of 1975 Howard Leon White, Jr. reached his majority. While Howard, Jr. continued to live with the appellee, as of that date, Charles Jeffrey White was the only minor child still residing with Mrs. White.

At the hearing on these petitions there was testimony that as of November of 1975, when the petition for contempt was filed, Mr. White was $340.00 in arrears. On the date of the hearing he owed a balance of $1400.00. The appellant testified that he stopped paying support because he had three of the minor children living with him, while the appellee only had one living with her. He did make several payments of $10.00 for the support of the one minor child living with the appellee, but gave no reason why these payments were not continued.

The appellant’s net income is $143.00 per week and his expenses are said to be approximately $714.50 per month. The appellee’s net income is $156.50 per week and her expenses are said to be approximately $738.00 per month. The appellant had a bank account from an inheritance of $3000.00.

The question of whether a husband should be given credit for expenditures for the period during which he had defacto custody has been discussed several times by the Court of Appeals. In Bradford v. Futrell, 225 Md. 512, 171 A. 2d 493 (1961), the Court recited the two schools of thought:

“There is considerable conflict among the cases as to whether any credit can be given for expenditures made by the father on behalf of his children other than as provided by the decree. One line of decisions is to the effect that since the obligation of the father has been fixed by the decree, it cannot be satisfied except by strict compliance with its terms, and the proper remedy for the father, if any remedy is called for, is a motion to modify the decree. A father may not himself determine the method of payment or to whom payment should be made. See, for example, Cotton v. Wright, 190 So. 665 (La. 1939); Campbell v. Campbell, 4 S.W.2d 1112 (Ky. 1928); Bradley v. Fowler, 192 P. 2d 969 (Wash. 1948); Roberts v. Roberts, 226 S.W.2d 579 (Ark. 1950).
“Somewhat opposed to this view are decisions holding that where ‘compulsion of circumstances’ makes necessary the direct expenditures by the husband, he will be given credit when the expenditures constitute ‘substantial compliance with the spirit and intent of the decree’. Jackson v. Jackson, 209 S.W.2d 79 (Ky. 1948); Schlom v. Schlom, 115 So. 197 (Miss. 1928); Mooty v. Mooty, 179 So. 155 (Fla. 1938); Mason v. Mason, 34 P. 2d 328 (Ore. 1934). There appears to be no general rule as to when the circumstances will demand crediting the husband, but the result seems to depend in many cases on the finding of some express or implied consent of the mother to a mode of payment other than that called for in the decree. In this regard, see Briggs v. Briggs, 165 P. 2d 772 (Ore. 1946).
“In the absence of some finding of consent by the mother, most courts refuse to allow a husband' to dictate how he will meet the requirements for support payments when the mode of payment is fixed by a decree of court. Thus he will not be credited for payments made when he unnecessarily interposed himself as a volunteer and made payments direct to the children of his own accord. Wills v. Baker, 214 S.W.2d 748 (Mo. 1948); Openshaw v. Openshaw, 42 P. 2d 191 (Utah 1935).” Id. at 518-519.

In Stewart v. Stewart, 256 Md. 272, 260 A. 2d 71 (1969), the wife was awarded a divorce a vinculo matrimonii. The husband was ordered to pay arrearages determined to be due under a prior order for alimony pendente lite and child support. The Court refused to allow credit for the time three children lived with the father pending divorce litigation. While the finding in that case seemed to follow the doctrine of strict compliance with the terms of the decree, the facts showed that the wife did not voluntarily give up actual custody of the children, but was forced out of the home and ordered to stay away.

In Coffman v. Hayes, 259 Md. 708, 270 A. 2d 808 (1970), the Court reviewed the prior cases and determined that a “compulsion of circumstances” coupled with express or implied consent on the part of the mother to a mode of payment other than that prescribed in a decree may serve as a basis for giving credit to the father for the period of time that he actually cared for the children.

Under the facts of the case at bar, we find that the chancellor was clearly erroneous in not giving credit to Mr. White for the direct support he gave to the three children in his physical custody and under his actual care. The evidence shows that it was not a unilateral act on the part of Mr. White which brought the three children to his home but discord between Mrs. White and the children. The record shows no disagreement by Mrs. White to this arrangement. In the opening argument counsel for Mrs. White stated she had no objections to the change in legal custody if the children agreed. The children did agree. We find that Mrs. White impliedly consented to a mode of payment other than money for the support of the three children and the appellant should receive credit for this time, there being sufficient “compulsion of circumstances” for Mr. White to make direct expenditures when the children of their own accord moved into his home.

The chancellor determined, after considering the financial positions of the two parties, that neither party should be responsible to the other for future child support and they should pay their own counsel fees. We see no error in these determinations.

It appears from the record the appellant has made all payments required of him to approximately October 1,1975, at which time three of the four children were living with him. The record shows no change in the income of the parties after that date. We will affirm the decree except for the money judgment.

Decree modified by striking out the $11+00 award to appellee, and as modified affirmed.

The parties to pay their own costs.


author: Liss, J.,

text:
    VIRGINIA THOMPSON v. EMPLOYMENT SECURITY ADMINISTRATION
    [No. 484,
    September Term, 1976,]

      Decided February 4, 1977.

    The cause was argued before Thompson, Moylan and Liss, JJ.

      Cleopatra Campbell for appellant.

      Joel J. Rabin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Lois F.

      Lapidus, Assistant Attorney General, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This appeal by Virginia Thompson, appellant, arises out of a decision by the Circuit Court for Frederick County (Barrick, J., presiding), affirming a finding and order of the Board of Appeals of the Employment Security Administration, Maryland State Department of Human Resources. That order directed that, because of her gross misconduct, the appellant be disqualified from unemployment insurance benefits until such time as she became re-employed and earned at least ten times her weekly benefit amount.

The appellant had been employed as a presser by Me Guesta Mills, located in Brunswick, Maryland, and was discharged by the company. As a result of the discharge, the appellant filed a claim for unemployment benefits. The employer objected to the payment of the benefits and raised the issue that appellant had been discharged for misconduct connected with her work within the meaning of § 6 (c) of Article 95A of the Annotated Code of Maryland (1957, 1969 Repl. Vol.). The initial determination in the case was made by a Claims Examiner who found that the appellant was discharged for misconduct connected with her work, and the appellant was denied certain benefits under the Act. An appeal was noted by appellant, and a hearing was held before a Hearings Officer. At that hearing, the appellant did appear but the employer did not; the Hearings Officer reversed the decision of the Claims Examiner and allowed benefits to the claimant. From that decision the employer appealed, and a hearing to take testimony in the case was set before a Special Examiner delegated by the Board of Appeals of the Agency.

After that hearing before the Special Examiner (September 18, 1975), the Board of Appeals on October 10, 1975, issued a decision in which it found that the claimant was discharged from her employment but for reasons other than misconduct connected with her work within the meaning of § 6 (c) of the Maryland Unemployment Insurance Law. It also found that the issue in the case had become moot from a monetary standpoint because the claimant had already received the 26 weeks’ benefits to which she was entitled.

Our examination of the record fails to disclose a transcript of the September 18, 1975 hearing before the Special Examiner; nor, so far as we have been able to determine, was there any such transcript available to the Board of Appeals when its initial decision of October 10, 1975 was rendered. At oral argument in this case, counsel for the Agency advised us that no such transcript existed and that no testimony was taken from the employer’s witnesses at that hearing because of a failure of the recording equipment. Counsel for the appellant, who was present at that hearing, professed no recollection of the circumstances of that hearing but conceded that no transcript was available and that no witnesses testified on behalf of the employer. When the employer received the October 10th decision, a representative of the company called the Agency, complained of the unusual circumstances of the Special Examiner’s hearing, and requested a rehearing. In response to this complaint, the Board of Appeals on October 16,1975, notified in writing the employee, the employer, and employee’s counsel that the Board had decided to rescind its decision of October 10, 1975. It further notified the parties that the employer would be given the opportunity to present any evidence to prove its allegation that the claimant was discharged for reasons which would warrant the imposition of either § 6 (b) or (c) of the Unemployment Insurance Law: § 6 (b) provides for a disqualification of benefits for gross misconduct; § 6 (c) provides for a denial of benefits for misconduct.

On October 28, 1975, a rehearing was held before the Special Examiner at which all parties appeared and were heard, and a transcript of that hearing was furnished to the Board of Appeals. On November 7,1975, the Board reversed the decision of the Hearing Examiner and found that the claimant was discharged for gross misconduct connected with her work within the meaning of § 6 (b) of the Unemployment Insurance Law of Maryland. An appeal was filed to the Circuit Court for Frederick County and after a hearing, the trial court affirmed the decision of the Board of Appeals. It is from the judgment of that court that this appeal was timely filed.

Appellant’s brief recites four issues to be determined, but for convenience of decision we believe they may be combined into two issues: first, did the Board of Appeals have authority to rescind its October 10,1975 decision and order a new hearing?; and second, did the appellant receive adequate notice of the rescission of the original decision and the consideration of the gross misconduct issue at the subsequent hearing on October 28, 1975? We shall answer both questions in the affirmative and uphold the judgment of the court below.

Appellant in her brief and in her argument has furnished us with an exhaustive legislative history of § 7 (f) of Art. 95A, the portion of the law which is applicable to the problem in this case and which provides in part:

“The Board of Appeals shall promptly notify the parties to any proceeding before it of its decision, including its findings and conclusions in support thereof, and such decision shall be final within ten days after the mailing of notice thereof to the party’s last known address or, in the absence of such mailing, within ten days after the delivery of such notice, and judicial review thereof shall be permitted the claimant or any interested party claiming to be aggrieved thereby as provided in subsection (h) of this section....”

Appellant argues that because of the several amendments made to subsection (£) by the Legislature, confusion and conflict have been created between it and Maryland Rule B4 (a), which requires that an appeal be filed within 30 days. She further contends that as § 7 (f) does not give the Board of Appeals explicit authority to rescind its findings, it is the common law rule which applies and, therefore, the Board may reconsider its decisions only if it finds error caused by fraud, surprise, mistake, or inadvertence.

We find no conflict between § 7 (f) and Maryland Rule B4 (a). We do not have before us a situation in which notice of appeal of the Board’s decision was filed in the 10-day period and the Board then sought to rescind its finding. “Sufficient unto the day is the evil thereof.” We will face that problem if and when it arises. We believe it was the intention of the Legislature to permit the Board in the exercise of its quasi-judicial powers to retain control of its decisions for the 10-day period specified; we can conceive of no other purpose for the 10-day provision. Even if arguendo we agree that the Board’s authority to revise or rescind its decisions is found in the common law, we believe that the facts in this case justify the Board’s action in rescinding its previous decision and setting the case for a rehearing. Certainly the Board was required to have before it the employer’s evidence before reaching its decision; to deny the employer the right to be heard would have been at best arbitrary and capricious.

Our Court of Appeals had before it a similar situation in Redding v. Board of County Commissioners for Prince George’s County, Maryland, 263 Md. 94, 282 A. 2d 136 (1971); and the Court at page 111 stated the rule as to reopening of an administrative decision:

“The common law rule in regard to the power of an administrative body acting in a quasi-judicial capacity is therefore applicable. Our predecessors in Zoning Appeals Board v. McKinney, 174 Md. 551, 564-566, 199 A. 540, 546-547 (1938) indicated that in that type of situation, the administrative body has the right to reconsider a decision if an error has been caused by fraud, surprise, mistake or inadvertence.”

Similar to the case sub judice is Mackler v. Board of Education of City of Camden, 16 N. J. 362, 108 A. 2d 854 (1954); there the Board ordered a reopening of a case to correct a mistake. The Court said at page 369:

“The argument on this point is that it was improper for the board to reopen its case and rehear the testimony of witnesses. No authorities are cited. We know of no vested right in a defendant to prevent a reopening of a case or a hearing for the taking of evidence. The board realized it had made a mistake in not insisting that all its members or a quorum thereof hear all of the evidence, and in our judgment it took the only proper course when it ordered that the testimony be repeated for the benefit of those who had been absent. The defendant’s fundamental rights were not infringed upon. ‘Administrative determinations are subject to reconsideration and revision by the agency itself, and a rehearing and the taking of new evidence to that end, so long as it retains control of the proceeding and rights have not vested. This is an inherent power.. . .’ There was no denial of a fair hearing in the procedure adopted.” (citations omitted).

Obviously, the Board of Appeals acted mistakenly when it rendered its original decision without having before it the testimony of the employer’s witnesses. Once the error was called to its attention, however, the Board acted properly in rescheduling the hearing in order to give all parties an opportunity to be heard.

The second issue as stated supra concerns the notice of rehearing sent to the claimant. We find nothing objectionable in that notice: It clearly states the Board’s decision to rescind its previous finding; it indicates that the employer will be given an opportunity to present its evidence as to the justification for the imposition of penalties under either subsection (b) or (c) of § 6 of the Unemployment Insurance Law; and the date, time, and place of the hearing were furnished to the claimant and her attorney, who were present at the rehearing. They raised no issue at that time regarding the validity of the notice or the scope of the hearing; they presented their evidence and were heard in argument. Even if there had been a defect in the notice, it would have been effectively waived by the claimant’s active participation in the hearing.

Appellant also complains that the Board of Appeals did not have the authority to add a consideration of gross misconduct when the issue as previously considered was only misconduct. Section 7 (f) answers this complaint. It states in part:

“Upon review on its own motion or upon appeal, the Board of Appeals may on the basis of the evidence previously submitted in such case, or upon the basis of such evidence as it may direct be taken, affirm, modify or reverse the findings and conclusions of the referee or special examiner.”

No issue as to the sufficiency of the evidence of gross misconduct has been raised. That finding is clearly supported by substantial evidence and should, therefore, be affirmed. Employment Security Board v. LeCates, 218 Md. 202, 145 A. 2d 840 (1958); Barley v. Maryland Department of Employment Security, 242 Md. 102, 218 A. 2d 24 (1966).

Order affirmed.

Costs to be paid by appellant.

      . It is not necessary to discuss the distinction between misconduct and gross misconduct, as appellant raised no issue as to whether the Board was factually correct in its determination that the appellant was discharged for gross misconduct; nor was that issue briefed or argued before us.

      . Rule B4 (a) provides: “An order for appeal shall be filed within thirty-days from the date of the action appealed from, except that where the agency is by law required to send notice of its action to any person, such order for appeal shall be filed within thirty days from the date such notice is sent, or where by law notice of the action of such agency is required to be received by any person, such order for appeal shall be filed within thirty days from the date of the receipt of such notice.”

      . The Bible, New Testament, Matthew, Chapter 6, Verse 34.

      . We call attention to the heavy bureaucratic overlay evident in disposing of disputed claims for benefits under the Maryland Unemployment Insurance Law. We note that in this case the parties were bounced from the local claims examiner to the hearing examiner (referee), to a special examiner, to the Board of Appeals, to the Circuit Court, to our Court, and, perhaps, if certiorari is granted, to the Court of Appeals. We are advised that the two tier administrative appeal level is not required by the Federal statutes, so that any unnecessary bureaucratic overkill must be laid at the door of the Legislature. We call this situation to the attention of the legislative leaders for such action as they may deem appropriate.