author: Liss, J.,

text:
    PUBLIC SERVICE COMMISSION OF MARYLAND et al. v. DELMARVA POWER & LIGHT COMPANY OF MARYLAND
    [No. 1077,
    September Term, 1978.]

      Decided May 11, 1979.

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

      James A. Pine and Kirk J. Emge, with whom were Allen M. Freifeld and John B. Gontrum on the brief, for appellant Public Service Commission of Maryland. Gary R. Alexander, with whom were John K. Keane, Jr., and Philip S. Shapiro on the brief, for other appellant.

      John W. T. Webb, with whom were David A. Vorhis and Webb, Burnett & Duvall on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This case results from an appeal by the Public Service Commission of Maryland, hereinafter the Commission, from an order of the Circuit Court for Dorchester County reversing on appeal an order of the Commission directing the Delmarva Power and Light Company, hereinafter Delmarva, to refund to its retail customers an alleged overcharge by Delmarva in the amount of $125,000.00. The original order of the Commission was issued at the conclusion of extensive hearings before a Commission hearing examiner and after a full hearing before the Commission itself. The original order included several other decisions by the Commission involving the manner of determining future fuel rate adjustment charges of Delmarva customers; however, no appeal was filed by Delmarva with respect to those other portions of the Commission’s order. The only question on appeal is the validity of the Commission’s order directing the refund.

Case No. 6759 dated April 24, 1974 was instituted by the Commission on its own motion for the purpose of investigating the Fuel Rate Adjustment clauses, hereinafter FRA, of all Maryland gas and electric public utility companies. The purpose of the FRA clause which has been used in Maryland for a number of years is to compensate for an increase or decrease in the cost of fuel used to generate electricity. The fluctuations in a company’s fuel costs are reflected in its rates by means of an FRA adjustment provision. A typical FRA clause is stated in terms of a formula whereby a mathematical calculation from designated book figures each month establishes the fuel adjustment rate to be applied to a customer’s bill in a particular month. The fuel adjustment rate added to or subtracted from the base rate determines the charge per kilowatt hour which the customer will pay. The FRA clause, therefore, automatically adjusts each customer’s monthly bill upward or downward in accordance with the company’s fuel expenses and permits a more rapid recognition and recovery of fluctuating fuel costs than would be possible in a base rate proceeding. The FRA clause worked satisfactorily for a number of years, but the rapidly rising costs of oil imposed by the OPEC cartel and parallel increases in the cost of coal raised an understandable howl of protest which caused the Governor of Maryland, the members of the Legislature, citizens’ groups and consumers to complain bitterly over the effect of the FRA on the spiraling cost of electric service in Maryland and throughout the country.

In response to this concern, the Commission began its investigation into the operation of fuel rate adjustment clauses in Maryland. The Commission initially directed each of the electric companies subject to its jurisdiction to submit responses to twenty-three questions, propounded by the Commission, which were designed to elicit detailed data concerning the operation of each company’s FRA. The People’s Counsel of Maryland additionally requested answers to thirty-one questions covering the same ' area of investigation. Responses to both sets of questions were filed by each of the gas and electric utilities under the Commission’s jurisdiction.

In March of 1975, the Commission engaged the services of an independent accounting firm, Haskins and Sells, to review the activities of Delmarva, as well as the other utilities not involved in this case relative to the manner of procurement of fuel used in the generation of electric power and the manner of computing costs in the billing of adjusted fuel costs to the companies’ retail customers.

A report on the activities of Delmarva was submitted by Haskins and Sells on June 24, 1975, and on July 7, 1975, the Commission issued an order requiring Delmarva to file with the Commission a plan for returning to Maryland customers the sum of $400,000.00 which the Commission found was received as an overpayment by Delmarva by reason of the method of computation of the fuel rate adjustment.

The FRA clause at issue in this case was initially filed with the Commission by Delmarva on April 12, 1972. Subsequently, in two successive rate increase cases filed by Delmarva in 1974 and 1976, the identical FRA clause was filed as a part of the company’s tariffs. The FRA clause remained in effect from its inception in October of 1972 until Delmarva filed a revised clause on December 27, 1976 which was accepted by the Commission and became effective on January 31, 1977.

The clause in effect from October of 1972 until December of 1976 provided as follows:

The price per kwh of electricity sold will be adjusted each month to reflect changes in the cost of fuel above or below the base cost of 3.52 mills per kwh.
The monthly fuel cost will be the total Delmarva System fossil fuel expense cleared during the second preceding month from FPC Account 151 to Accounts 501 and 547 expressed as mills per kwh of net Delmarva System fossil fuel generation increased by 5% to compensate for system losses.
The adjustment in mills per kwh applied to sales shall be the difference between the monthly and base fuel costs, multiplied by the ratio of Delmarva’s System fossil fuel net generation to total net generation, (emphasis supplied.)

The bone of contention between Delmarva and the Commission concerned the proper treatment to be accorded to power produced as a result of nuclear test generation by the Company in bringing the nuclear plant at Peach Bottom into commercial operation as part of Delmarva’s system.

Judge Edmondson, the trial judge, accurately and concisely stated the basis of the dispute when he said in his memorandum opinion:

In calculating “total net generation” for purposes of developing the ratio between fossil fuel net generation and total net generation, Delmarva did not include the test generation from nuclear stations until they were fully tested and operational. This resulted in a higher ratio between fossil fuel and total generation than would have been the case if the test generation had been included in calculating the total, and accordingly resulted in a higher fuel cost for purposes of application of the fuel adjustment clause. Haskins & Sells pointed out in its report that Delmarva’s exclusion of nuclear test generation resulted in the collection of approximately $400,000 more in fuel revenue than would have been the case if nuclear test generation had been included to calculate the ratio. Of the $400,000 which Haskins & Sells calculated to be the difference in FRA revenues depending on whether nuclear test generation was included or excluded, $275,000 was effectively returned to the customers through lower rates before Delmarva’s next rate proceeding was concluded, so that Order No. 62552 directed Delmarva to refund only the remaining difference of $125,000.

The hearing examiner of the Commission after extensive hearings filed a proposed order which included a provision that Delmarva be required to refund $125,000.00 to its retail customers. On August 30, 1977, the Commission adopted the recommendation of the hearing examiner. It should be noted that the hearing examiner’s proposed order required the inclusion of nuclear test generation in all future computations of Delmarva’s FRA, and that the Commission included this recommendation in its order. It should also be noted that Delmarva, in anticipation of the Commission’s order, had already filed an adjustment in its FRA computation prior to the issuance of that order. There is, therefore, no pending appeal from that portion of the Commission’s order. Delmarva appealed only that portion of the Commission’s order which directed it to refund $125,000.00 to the Circuit Court for Dorchester County. After a hearing and argument, the trial judge reversed the Commission on the basis that “this Court is unable to reach the factual conclusion the Commission reached. It is also unable to find any express or implied law or authority to sustain the Commission’s action and concludes that the Commission did not have the power to order the refund in question.” It is from that order that this appeal was filed.

The issues raised by the appeal may be stated as follows:

1. During the period in question did Delmarva’s tariffs require the inclusion of nuclear test generation in the computation of its FRA clause?

2. Was there substantial evidence in the record considered as a whole to support the Commission’s order for refund?

3. Was the order for refund under the circumstances of this case within the statutory authority of the Commission?

We shall answer each of these questions in the affirmative and shall reverse the trial judge’s order.

These issues are so inextricably entwined that we shall consider them together. The Commission contends that its authority to require the refund ordered in this case is inherent in Article 78 of the Annotated Code of Maryland.

Code (1957,1975 Repl. Vol.) Art. 78, Sec. 27 (a) (2) provides:

(a) Prohibited Acts — No public service company shall in its utility operations:
(2) Demand or collect a greater or less compensation for any service or commodity than specified therefor in its schedules as in force at the time.

Code (1957,1975 Repl. Vol., 1978 Cum. Supp.) Art. 78, Sec. 56 gives the Public Service Commission broad general supervision of the activities of public utilities in the following language:

The Commission shall supervise and regulate all public service companies subject to its jurisdiction to assure their operation in the interest of the public and to promote adequate, economical and efficient delivery of utility services in the State without unjust discrimination, giving consideration to the public safety, the economy of the State, the conservation of natural resources, and the preservation of environmental quality. To these ends the Commission shall enforce compliance by such companies with all the requirements of law, including, but not limited to requirements with respect to financial condition, capitalization, franchises, plant, manner of operation, rates and service. The powers and duties enumerated specifically in this subtitle are not intended to limit the scope of the general powers and duties of the Commission provided for by this Article.

Code (1957,1975 Repl. Vol.) Art. 78, Sec. 1 requires that the powers of the Commission shall be liberally construed and spells out the overall authority of the Commission as follows:

The jurisdiction and powers of the Public Service Commission shall extend to all public service companies, as hereinafter provided, to the full extent permitted by the Constitution and laws of the United States. The powers of the Commission shall be liberally construed; and the Commission shall have the powers specifically conferred by this Article and by any other law, and also all implied and incidental powers necessary and proper to carry out effectually the provisions of this article.

Code (1957, 1975 Repl. Vol.) Art. 78, Sec. 97 specifies the scope of judicial review of Commission decisions and provides that:

Every final decision, order, rule or regulation of the Commission shall be prima facie correct and shall be affirmed unless clearly shown to be (1) in violation of constitution provisions, or (2) not within the statutory authority or jurisdiction of the Commission, or (3) made upon unlawful procedure, or (4) arbitrary or capricious, or (5) affected by other error of law, or (6) if the subject of review is an order entered in a contested case after hearing, such order is unsupported by substantial evidence on the record considered as a whole.

The Court of Appeals has on many occasions noted that the decisions of the Commission are prima facie correct, and that the burden of proof is on the party seeking to set aside an order to show by clear and satisfactory evidence that the Commission’s decision is unreasonable or unlawful. See Baltimore Gas & Electric Co. v. McQuaid, 220 Md. 373, 152 A. 2d 825 (1959); Montgomery County v. Public Service Commission, 203 Md. 79, 98 A. 2d 15 (1953). As the Court has said, the reviewing court does not sit as a “board of revision,” Baltimore Transit Co. v. Public Service Commission, 206 Md. 533, 558, 112 A. 2d 687 (1955); “it will not substitute its judgment for that of the Commission,” Public Service Commission v. Baltimore Gas & Electric Co., 273 Md. 357, 362, 329 A. 2d 691 (1974); and the reviewing court must accord to the Commission’s decision “the respect due an informed body aided by a competent and experienced staff,” Baltimore Transit, supra, at 558. Former Chief Judge Hammond articulated the standards of judicial review in Insurance Commissioner v. National Bureau, 248 Md. 292, 236 A. 2d 282 (1967) when he said:

There are differences but they are slight and under any of the standards the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.

Accord, Public Service Commission, supra; Brotherhood v. B & O.R.R., 248 Md. 580, 238 A. 2d 516 (1968).

Delmarva urges that the record discloses that its calculations were in complete conformity with the FRA clause filed by Delmarva with the Commission in 1972 and in effect during the period of 1974 which is here in controversy. Delmarva contends that to change the method of calculation retroactively from the approved and effective method in existence at that time would constitute “the forbidden practice of retroactive rate making.” Public Service Commission v. Baltimore Gas & Electric Co., 40 Md. App. 490, 393 A. 2d 1973 (1978).

Delmarva further contends that its interpretation of its FRA clause as requiring exclusion of nuclear test generation was reasonable, in conformity with the language of the clause, consistent with the treatment of its fossil fuel test generation as mandated by the FRA clause, and implicitly approved by the Commission’s acceptance of that method of calculation in Delmarva’s previous rate case. Finally, the appellee contends there was no evidence to support a finding of a miscalculation of its rates under the effective FRA clause.

The appellee suggests that the propriety of its calculations is dependent on the construction of its FRA clause, and that construction should be considered in the light of the oft-stated rule that in the interpretation of a clause in a contract the court must look first at the language of the clause, and then if there is ambiguity, the court must look at the historic interpretation and application of the clause to resolve the ambiguity. See Walker v. Associated Dry Goods Corp., 231 Md. 168, 189 A. 2d 91 (1963); Mattingly Lumber Co. v. Equitable Bldg. &Sav. Ass’n, 176 Md. 403, 5 A. 2d 458 (1939); 17 Am. Jur. 2d Contracts, Sec. 274 (1964).

We conclude that the general principles of contract construction as expressed by the appellee are inapplicable in the case at bar. The fuel adjustment clause as filed by Delmarva was not the result of bargaining between the utility and the Commission, as expressed in a contractual agreement, but rather was an integral part of the company’s tariff. See American Telephone and Telegraph Co. v. Florida Texas Freight, Inc., 357 F. Supp. 977 (S.D. Fla. 1973). In the present case, the rate with which we are concerned was under the jurisdiction of the Commission and was subject to revision pursuant to the Commission’s authority.

In effect, Delmarva contends that by reason of the Commission’s failure to question Delmarva’s interpretation of the FRA clause filed in 1972 until the Commission’s initiation of the generic investigation in this case, that the Commission was without power to order the refund in this case.

We do not agree. We note that it was Delmarva’s unilateral, internal, administrative decision to exclude from its calculations of the total net generation of its system the factor of the power generated during the test generation period immediately prior to the bringing of those nuclear generators into commercial use. This decision was never specifically brought to the attention of the Commission by Delmarva, nor does it appear that the Commission knew of the Company’s position on this matter until the report of Haskins and Sells disclosed Delmarva’s position to the Commission.

Delmarva argued before the Commission and before us that the acceptance by the Commission of its FRA clause which permitted the exclusion of test generation of power in its fossil fuel generation authorized the identical treatment of nuclear test generation. Delmarva contends that the Haskins and Sells report supports its position that the undisputed evidence disclosed that the Company’s fuel adjustment calculations conformed fully to the express language of the FRA as filed with the Commission, and that Haskins and Sells recommended, at the most, that the recognition of nuclear test generation in determining total net generation was a preferable approach to be adopted for the future. Delmarva offered as further support of its position the failure of the Haskins and Sells report to recommend the imposition of a refund. We held in the recent case of Public Service Commission v. Baltimore Gas & Electric Co., supra, that the failure of Haskins and Sells, in a similar case, to recommend refunds was not an indication that no evidence was present to support the Commission’s refund order. We quoted with approval from the trial court’s opinion as follows:

The Company asserts that Order No. 62300 requiring it to make refunds to its customers was not supported by substantial evidence and was arbitrary and capricious. The reason it puts forth for this assertion is that no witness, not even the expert witness of the Commission, Haskins and Sells, testified that, under the circumstances, a refund should be ordered. This Court thinks that this contention confuses the evidence with the action to be taken on it. The Commission certainly had before it substantial evidence on which to base a finding that the Company had over-recovered its fuel costs under the three-part fuel rate adjustment clause. It was . peculiarly within the province of the Commission to decide what action it should take on the basis of the finding and it was not bound to follow a policy recommendation by its expert witness....

The Haskins and Sells report specifically found that Delmarva had miscalculated its fuel adjustment revenues. It so stated in express language when it reported:

However, regarding Step 4, DELMARVA received test generation from Peach Bottom Nuclear Units Nos. 2 and 3 during 1974. DELMARVA owns approximately 7.5% of Peach Bottom Unit No. 2 and Peach Bottom No. 3; Peach Bottom Unit No. 2 became commercial in July 1974, and Peach Bottom Unit No. 3 became commercial in December 1974. The Company did not consider the test generation from these nuclear units prior to commercial operation to be “generation” and therefore excluded such generation from the foregoing monthly calculations. The effect of the exclusion produced monthly ratios of system fossil fuel generation to total system geheration which were higher than if such test generation had been included. By applying the higher ratios to the fossil fuel differential in Step 4, higher fuel adjustment factors resulted, which produced approximately $400,000 of additional fuel adjustment clause revenues in Maryland.
We believe that test generation during 1974 should have been included in the monthly-calculations of the fuel adjustment factors to prevent an over recovery of fuel costs, (emphasis supplied.)

In effect, Haskins and Sells declined to make any recommendation as to refund because it recognized that the question of refund was a policy decision to be made by the Commission. Haskins and Sells’ recommendation that future nuclear test generation be included in the calculation for determining total net generation was entirely consistent with its conclusion that Delmarva had incorrectly excluded nuclear test generation results from its calculation of total net generation in the 1974 period which was in dispute. It is fair to state that neither the examiner’s report nor the Commission’s order particularized the reasons for their conclusion that a refund should be required to Delmarva’s retail customers. There was, however, evidence in the record from which the Commission could conclude that Delmarva’s failure to factor nuclear test generation into the calculation of fuel rate adjustment charges resulted in the collection of greater revenues than Delmarva was entitled to receive.

All the parties to this case agree that retroactive rate making is impermissible, but we think the controversy in this case is to be distinguished from the Commission’s function in approving rates to be charged in a base rate hearing proceeding.

As we have indicated, the theory of permitting the filing of FRA clauses with the Public Service Commission is to permit a more rapid recognition and recovery of fluctuating fuel costs without the requirement of lengthy and complex hearings. As these FRA clauses contemplate complex formulas which must be tested against mathematical calculations from designated figures each month, we conclude that implicitly, the Commission must retain jurisdiction over such charges in order to assure that the charges made are fair and reasonable to the customer as well as to the company. Where, as in this case, the Commission determines that an overrecovery has been made by the company, the Commission under the broad powers granted it by Section 1, and Section 56 of Article 78 may in its discretion order a refund of the overrecovery in order to enforce the plain meaning of Section 27 (a) (2) which prohibits a public utility company from demanding or collecting a “greater or less compensation for any service or commodity than specified therefor in its schedules in force at the time.” If, as determined by the Commission, Delmarva did miscalculate its fuel rate and as a result of the miscalculation did receive $400,000 in excess charges, then to suggest that the Commission had no power to order a refund as to these particular charges would make Section 27 (a) (2) completely unenforceable and nugatory. We do not mean by this ^conclusion to suggest even remotely that the Commission is empowered to engage in retroactive rate making, but we distinguish between the ordinary rate making process and the necessarily ongoing process of verifying and adjusting fuel rate adjustment clauses so that they accurately reflect the increased and decreased costs (we hope) of the fuel necessary to operate a utility plant.

We believe that upon a consideration of the entire record before the Commission a reasoning mind could have reached the factual conclusion the Commission reached, i.e., that Delmarva should have included its nuclear test generation in calculating its total net generation, and that having reached that conclusion the Commission had the express and inherent power under Section 27 (a) (2), Section 1, and Section 56 of Article 78 to order a refund of moneys the Commission found overrecovered by Delmarva.

Judgment reversed, remanded to Circuit Court for Dorchester County with instructions to enter judgment affirming order of Public Service Commission; costs to be paid by appellee.

      . The Public Service Commission law, Maryland Code (1957, 1975 Repl. Vol.) Art. 78, permits a regulated public utility to apply'to the Commission periodically for a change m its base rates to the level required to fulfill current obligations for labor, depreciation, taxes, materials, and supplies and to earn a fair and reasonable return on its investment. A change in base rates requires lengthy evidentiary hearings with testimony from company officials ana outside expert witnesses with similar witnesses being presented on behalf of People’s Counsel, intervenors and the Commission staff. These hearings frequently result in regulatory lag and the PRA clauses were intended to bypass the delay of adjustment in recovering increases in fuel costs.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    GERTRUDE LAW v. JOHN HANSON SAVINGS AND LOAN, INC. et al.
    [No. 1093,
    September Term, 1978.]

      Decided May 11, 1979.

      The cause was argued before Melvin, Wilner and Couch, JJ.

      Leroy Handwerger for appellant.

      Carlton M. Green and Richard C. Daniels, with whom were Josef B. Brown and Reichelt, Nussbaum, Brown & Topf on the brief, for appellee John Hanson Savings and Loan, Inc. L. Dale Burgmeier, with whom was William A. Branch on the brief, for other appellees.
   Wilner, J.,

delivered the opinion of the Court.

Melissa J. Rowe is 89 years old. She formerly lived in Davidsonville, in Anne Arundel County, but she now is in a nursing home. She has six children — five daughters and a son.

In January, 1974, with Melissa’s written consent, and with the express or tacit consent of her other children, Melissa’s son Marvin petitioned the Circuit Court for Anne Arundel County to have Melissa declared a person under disability and to have himself appointed as guardian of her property. Melissa was alleged to suffer from “generalized arteriosclerosis with infirmity and cerebral arteriosclerosis with intermittent cerebral insufficiency”, an allegation that was supported by the certificates of two physicians. Her disability was alleged to be a physical rather than a mental one; and, upon Melissa’s consent, her nomination of Marvin as guardian, and the two physician’s certificates, the court made the requested declaration and appointment. Most of Melissa’s property at the time consisted of about 90 acres of land in Anne Arundel County having a value of some $150,000. That is what everyone seems to be fighting about.

In June, 1975, appellant, one of Melissa’s daughters, filed a lengthy petition (which she amended in November, 1975) seeking (1) removal of her brother as guardian, (2) an accounting, (3) rescission of certain deeds of trust and releases, (4) to have her brother, her nephew, the lawyers who represented Melissa and the guardian, and others made “parties defendant” in the proceeding, and (5) other relief. In this petition and amended petition appellant made a number of allegations of very serious wrongdoing which, if true, would not only warrant removal of the guardian, but would likely justify a variety of civil proceedings and possibly criminal action against a number of other people as well. She accused her nephew (Melissa’s grandson) of converting Melissa’s assets to his own use; she accused several lawyers of most serious conflicts of interest and both active and passive complicity in schemes to defraud Melissa and to misappropriate her assets; and she accused her brother of mismanagement, conflict of interest, and worse.

These petitions touched off a proceeding, or series of proceedings, that dragged on over a three-year period before four judges of the circuit court, and produced a record (excluding depositions and transcripts of hearings) exceeding 1,630 pages. The end of all this came on May 22, 1978, when the court dismissed appellant’s petition against all defendants with prejudice. What is before us, of course, is the correctness of that action; and, to resolve that issue, we must consider who and what was before the circuit court.

Notwithstanding the assertion in her petition and amended petition that she was acting on behalf of her mother, her brother and sisters, and herself, appellant maintained throughout most of the proceeding that she was acting as a statutory “interested person” solely on behalf of Melissa and the guardianship estate, and not in her own interest. But in that limited capacity of “interested person”, she filed exceptions to accounts and reports prepared by the court auditor, as well as extensive interrogatories, demurrers, motions for summary judgment, requests for subpoenas duces tecum, and a host and variety of other pleadings of one type or another. Through counsel, she participated in the taking of depositions and in at least three hearings in open court, all conducted at her request. When her nephew, one of those persons named by her as a “party defendant” went into bankruptcy, she requested and received leave to file a claim in the bankruptcy on behalf of her mother and the guardianship estate. It is fair to say that the entire proceeding in the circuit court, from beginning to end, was occasioned by and was in response to the charges leveled by appellant.

In the course of these protracted proceedings, and in large part through the discovery efforts of appellant, a mass of documents was brought before the court. Some of these documents were merely placed routinely in the court file, as appendages to pleadings of one type or another; others were more directly brought to the court’s attention, and even placed in evidence at one of the several hearings conducted along the way. In November, 1976, at a hearing on certain law motions then pending, including appellant’s exceptions to the auditor’s report, appellant had two groups of documents pertaining to the 1974 deed of-trust sought to be annulled admitted into evidence in support of her exceptions.

In June, 1977, appellant filed with the court a 46-page “Statement of Facts” (supplemented by a 2-page “Supplemental Statement of Facts”) to which was appended 143 pages of exhibits laying out in great detail all of the alleged wrongdoings on the part of the various people she caused to be named as defendants in the matter.

A month later, a hearing was held with respect to some of the staggering array of pleadings and motions then open. At that hearing, the court observed that the allegations set forth in appellant’s pleadings were serious ones and would have to be answered. They sufficed, said the court, to shift the burden to the “defendants” to show that their actions had been proper ones; and that would require a hearing on the merits — i.e., to determine whether appellant’s charges were, in fact, valid. In connection with that hearing, the court also noted that appellant “would have to introduce formally at the hearing those matters that constitute the file. They would have to be introduced as exhibits.” Counsel for appellant, apparently in recognition of this requirement, offered the originals of his various exhibits at this “preliminary” hearing, but was told, “Why don’t we wait until the hearing on the merits and then do that. We’ll just clog up our files with them....”

On at least two occasions, appellant had formally asked the court to appoint a guardian ad litem for Melissa, and periodically bemoaned the fact that this had not been done. On January 3, 1978, the court appointed “counsel” for Melissa, but that appointment was rescinded shortly thereafter. Instead, on January 25,1978, appellant was appointed as guardian ad litem, and her attorney was appointed as counsel for her, as such guardian. In this new capacity, appellant promptly filed a 17-page motion seeking summary judgment that the two deeds of trust were null and void. While pursuing all of these requests for affirmative relief, including, as noted, the filing of extensive interrogatories, she resisted any effort on the part of the defendants to engage in their own discovery, in particular refusing to answer interrogatories served upon her. Her defense seemed to be that she was not a “party” upon whom interrogatories could be served. When the court ruled that she would have to answer the interrogatories, her counsel sent a letter to the court (with a copy to the Commission on Judicial Disabilities but not to other counsel) “formally resigning] as a natural and non-statutory individual party, specifically retaining all statutory positions to which she has been appointed or approved by Court Order.”

Finally, after denial of several last-minute motions by appellant, trial was set for May 22, 1978. This proceeding commenced with appellant taking the stand and testifying that her mother was mentally incompetent — so detached from reality as to be unable even to receive notice of the trial. She offered letters from two physicians supporting that assertion. Her counsel, Jerome Piven, then advised the court and the assembled parties and their counsel: (1) of his great astonishment to learn that the office or position of guardian ad litem — that for which he had persistently pressed and ultimately obtained for his client — had been abolished years earlier, and thus no longer existed in Maryland, and that (2) his client, as a statutory interested person, was not a party, nor a representative of a party, and thus had no status in the case. Upon this basis, after three years of pleadings and hearings, all stemming from the petitions filed by him on behalf of appellant, he simply asked to be “excused from this case” — “... I don’t belong here. I have no power to act as an attorney here today____I’m asking to be excused from this courtroom because I have no status----”

Upon questioning by the court, Piven, in effect, said: Here are all these pleadings and exhibits; you, court, take care of the matter henceforth; I’m out of the case. He specifically declined to offer any further evidence in support of appellant’s allegations — no testimony, not the exhibits which had previously been marked and identified, not his “Statement of Facts” or the exhibits appended to it. In short, he left the court with no formal evidence (except perhaps the documents admitted into evidence at the November, 1976, hearing on exceptions to the auditor’s report) to support his client’s charges — only some 1,600 pages of pleadings “for whatever use the Court wishes to make of [them]”. At that point and upon that premise, the court granted the motions made by all of the defendants that appellant’s amended petition be dismissed with prejudice. It did, however, order that “all records from the beginning of this estate [be] turned over to the Court auditor so that there will be a full and complete audit of this estate....”

Appellant, represented by different counsel, now asks this Court to strike the orders of dismissal and to remand the case to the circuit court “with appropriate instructions as to procedure in the premises.” She claims that the court erred in refusing to stay the proceedings until appointment of a substitute guardian, and in requiring appellant to proceed with the “presentment of evidence”. Both of these complaints relate, on the one hand, to appellant’s responsibility to proceed with some evidence to substantiate her charges, and, on the other hand, to the court’s overall responsibility to its ward, Melissa Rowe.

Appellant’s position seems to be that, as a mere “interested person”, she was entitled to bring matters pertaining to the guardianship estate to the attention of the court, but had no responsibility (or standing) to proceed any further. Having made all these charges, it was then up to the court to investigate them, obtain and evaluate the evidence, and grant the relief requested by her. Such is patently not the law.

As an heir of Melissa, appellant was, and is, an “interested person” in terms of the guardianship. Estates and Trusts article (hereafter “E.T.”) § 13-101 (i). As such, she “may invoke the jurisdiction of the court at any time to resolve questions concerning the estate or its administration.” E.T. § 13-203 (d). She is authorized, specifically, to file a petition for an accounting, to remove the guardian, and for the granting of “other relief” (E.T., § 13-210 (a)), which is precisely what she did.

The law provides that upon such a petition, “[u]pon hearing after notice and upon good cause shown, the court may issue an appropriate order.” (Emphasis supplied.) E.T. § 13-210 (c). The critical word here is “shown” — the court may act when good cause has been shown, when the cause has been proved, demonstrated. This is done by the presentation of evidence. A court may not, under § 13-210 (c), pass substantive and final orders supported only by bald allegations, or by documents or assertions that are not in evidence. When presented with a petition such as was filed here, its obligation is to conduct a hearing so that the complaining party can produce evidence in support of his complaint and so that the parties complained about can have an opportunity to defend themselves. This is what due process is all about. This is what the statute requires. Under the circumstances that pertained here, and faced with Mr. Piven’s sudden and obviously unanticipated exodus from the case, the court was not wrong in dismissing appellant’s amended petition. It could not have granted the relief prayed absent some further evidence to establish the alleged wrongdoing; and there seemed to be no one willing to proceed with that evidence.

It was wrong, however, in dismissing the amended petition with prejudice, because that might serve to preclude any further inquiry into the allegations made in it. A guardianship is not an ordinary type of lawsuit in which the court’s role is merely that of fact-finder and adjudicator. It has a much deeper involvement — a much more significant function — in a guardianship proceeding. As stated by the Court of Appeals in Kicherer v. Kicherer (Sept. Term, 1978, No. 109, Opinion filed May 4, 1979):

“Lest sight be lost of the fact, we remind all concerned that a court of equity assumes jurisdiction in guardianship matters to protect those who, because of illness or other disability, are unable to care for themselves. In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility.”

See also 39 Am. Jur. 2d Guardian and Ward, § 1.

Quite apart from any allegations by appellant, the court’s own file in this case reflected the fact that the guardian had never, over the three-year period of his guardianship, rendered a proper account of his actions, as required by Maryland Rule V74 and E.T. § 13-209. Especially when coupled with the charges made by appellant, that fact alone should have spurred the court, on its own motion, to inquire into both the affairs of the guardianship and Mr. Rowe’s fitness to continue as guardian. Moreover, with respect to one of the challenged deeds of trust, the court had before it documents, apparently valid on their face, indicating that:

(1) the mortgage was executed in May, 1974 — five months after creation of the guardianship;

(2) it was not executed by Marvin Rowe as guardian who (in that capacity) was vested with tjtle to Melissa’s property and was the only person who validly could execute such a deed of trust at that time (E.T. § 13-206);

(3) it was executed instead by Melissa herself, who had no power to do it, and by Marvin Rowe and his wife, individually;

(4) the interest rate on the mortgage was 12% (plus five “points”) which, unless the transaction were in some way exempt from the State usury law in effect at the time, would have made the loan a usurious one; and

(5) the lawyers who represented Melissa in her affairs prior to the guardianship, and who continued to represent the guardian with respect to guardianship matters, also represented the mortgagee, John Hanson Savings & Loan, Inc., and acted as settlement attorneys; indeed, one such lawyer was shown as a director and member of the Executive Committee of the Association and actually voted to make the loan. He also served as a trustee for the Association under the deed of trust.

The validity of this deed of trust, and the underlying note for $55,000 was obviously of critical importance to the guardianship estate, and to Melissa herself. If not valid, payments made on it might have constituted a waste of guardianship assets, especially in light of appellant’s further allegations that the proceeds of the loan had been misappropriated.

We shall not describe the other allegations made by appellant in any greater detail. Suffice it to say that these charges alone, coupled with the documents in the court’s own file, and of which it was made aware, required an answer — not merely a pleading, but an explanation on the record. The court is not expected, as the judge suggested, to descend from the bench and act as a prosecutor; but neither may it forever foreclose an inquiry into these matters by dismissing the petition with prejudice. Charges of wrongdoing on the part of a guardian, or adversely affecting the guardianship estate, are, and must remain, viable until withdrawn or resolved on their merits. Perhaps the audit ordered by the court can serve as the vehicle for determining the validity of such charges as were made in this case. Perhaps some collateral proceeding may be the vehicle to resolve some of these, issues. If neither suffices to permit the court to carry out its supervisory responsibility, it will have to act upon its own motion in some other way, and promptly!

As an editorial comment, we observe that this is the type of case that necessarily brings discredit upon the whole legal and judicial community. It may turn out that the charges made by appellant are absolutely groundless. But it should not take nearly four years to find out.

Orders and final decrees vacated; case remanded to Circuit Court for Anne Arundel County (1) to enter orders dismissing amended petition without prejudice and (2) for further proceedings as may be required in conformance with this opinion; costs to be paid half by appellant, half by appellees.

Mandate to issue forthwith.

      . A number of documents that were produced in court that day in response to appellant’s subpoena duces tecum were marked for identification as petitioner’s exhibits but were not formally admitted into evidence, despite counsel’s request that they be so admitted.

      . The grounds for this motion were essentially those asserted in appellant’s earlier motion for summary judgment, which had been denied by the court, the basic difference being that this second motion was filed by her as guardian ad litem.

      . See comment to Maryland Rule 205 e. There has been no provision for a guardian ad litem for at least nine years. Some of the confusion in this case might have been avoided if counsel and the court had kept even moderately current on the Maryland Rules of Procedure.

      . We were advised at oral argument that the mortgagee has attempted to foreclose on the disputed deeds of trust, and that their validity has been brought into issue in the foreclosure proceeding. As a result, and in light of our conclusion that appellant’s amended petition should be dismissed, it is not necessary for us to reach the issue of whether appellant would have standing to challenge the validity of the mortgages in the guardianship proceeding.

      . A swift resolution of these complaints is in everyone’s interest. At oral argument, counsel for appellees lamented the fact that they never had the opportunity to present their defense to appellant’s charges.


author: Lowe, J.,

text:
    BRUCE LEONARD FISHER v. STATE OF MARYLAND
    [No. 1097,
    September Term, 1978.]

      Decided May 11, 1979.

    Judgment reversed. Case remanded for retrial. Costs to be paid by Anne Arundel County.
    Submitted by Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Ray E. Stokes, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Lowe, J.,

'delivered the opinion of the Court.

Appellant was convicted by and in the Circuit Court for Anne Arundel County of escape. He contends that his right to a jury trial was not knowingly and voluntarily waived so far as is ascertainable from the record; that the record does not disclose a waiver of his fifth amendment right to silence; and that the judge did not properly evaluate his defense of necessity.

— jury trial waiver —

Appellant correctly contends that the colloquy before the court with his counsel did not constitute a knowing and intelligent waiver of a jury trial pursuant to Md. Rule 735 d.

“MR. COCHRAN [Defense Attorney]: Furthermore, Mr. Fisher, we are, by going ahead with this system in front of Judge Goudy, we are waiving our right to a jury trial. Do you understand that?
DEFENDANT: Yes, sir.
MR. sCOCHRAN: Is that okay with you, Sir?
DEFENDANT: Yes, sir.
MR. COCHRAN: Alright. Very well.
COURT: Alright. The Defendant was arraigned on September 11th. He’s plead not guilty.
MR. COCHRAN: We waiver [sic] our right to a jury trial, your Honor, and we’ll go on a Statement of Facts and we will prevent — present a defense.
COURT: Proceed.”

It is not necessary that the inquiry be conducted by the trial judge personally, only that it be responded to affirmatively by appellant personally; Fairbanks v. State, 42 Md. App. 15 (1979); Jones v. State, 42 Md. App. 209 (1979); nor is it necessary to spell out the various aspects of a jury trial, such as the fact that all jurors must be convinced beyond a reasonable doubt before he can be convicted. It is sufficient that the record affirmatively indicates that the defendant knew that a jury trial was available; however, he must also understand the general nature of a jury trial when he elects to be tried by the court. Harris v. State, 42 Md. App. 248 (1979).

While it is clear that appellant knew that a jury trial was available, and he was waiving it, there is no evidence of record that he did so “with full knowledge” of it as required by Md. Rule 735 d. The record does not show that he understood that which he was waiving, i.e., “the general nature of a jury trial” Harris, supra, at 252-53. We must reserve, and remand for retrial. Because the other two issues raised by appellant may arise upon retrial, we will address them briefly.

— necessity —

Appellant testified that he escaped because he feared being beaten and stabbed. Appellant contends that:

“Clearly, such a danger must excuse a non-violent escape (departure).”

The foundation is faulty to begin with. It presupposes a binding conclusion upon a factfinder from the testimony of a defendant. If such were the case, no escapee could be convicted if he but expressed such fear.

The trial judge responded to appellant’s argument by addressing the defense of “duress” and concluding that insufficient circumstances existed to justify an escape. Appellant contends now that the judge should have weighed the evidence in light of a necessity defense, i.e., that “the literal words of the law may be violated to avoid a greater harm.” But even assuming the availability of such defense, it is an excuse permissibly applied by a factfinder, not mandated upon him. Whatever words the judge felt appropriate to respond to appellant’s argument, we must assume he was aware of the permissible defenses available. See Samson v. State, 27 Md. App. 326, 334 (1975). That he did not excuse the prisoner indicates only that he was not evidentiarily satisfied that the facts warranted an escape. Furthermore, that appellant did not address necessity in his argument, even when asked “... do you want to argue any further?”, precludes his right to raise the issue on appeal. Md. Rule 1085. An appellant may not dream up legal theories of defense after the case is concluded, then charge a trial judge with failure to address the facts in light of the new theory espoused.

— the right not to speak —

When the time came for appellant to testify, he was advised on the record by his counsel of his right to decline without prejudicial effect and of the consequences if he elected to speak. When asked if he understood these rights and •consequences, he responded in the affirmative.

He was then asked:

“Do you wish, under those circumstances, to remain silent, or tell your side of the story?”

The record does not relate an understandable response.

“DEFENDANT: (Unintelligible)”.

This, he now contends, is a deficient record of a valid waiver; without an affirmative showing in the record, no valid waiver may be presumed.

The record does demonstrate a valid waiver. After an adequate recitation of rights and consequences which appellant expressly understood, he was given the choice of remaining silent or telling his side of the story. By choosing the latter, he affirmatively waived his known right to silence. The act of voluntarily testifying in chief needs no waiver; it is sufficient waiver in itself. State v. McKenzie, 17 Md. App. 563, 576, et seq. (1973).

The irony of the limitations upon the “right” to testify as contrasted to its counterpart, the right to remain silent, was interestingly explained, historically and conceptually, by Judge Moylan in McKenzie, supra, an excerpt from which will suffice for our purposes here:

“The act of voluntarily testifying in chief needs no waiver. The act of voluntarily testifying in chief is itself sufficient waiver with respect to subsequent cross-examination. That the decision to take the stand in one’s own defense needs no waiver as a condition precedent is more easily grasped when it is firmly remembered that what is involved is not a negative right ‘not to testify’ but rather an affirmative right ‘to testify’. It is a nuance, perhaps, but a crucial one conceptually. The right to testify is not constitutional, but statutory. At the common law, all criminal defendants were absolutely incompetent and were barred from testifying as witnesses at their own trials. The statutory right ‘to testify’ came late and came slowly. Only the great reform movement of the Nineteenth Century, championed by Jeremy Bentham and Sir James Fitzjames Stephen, brought the gradual amelioration from this harsh testimonial disqualification. Maryland 357 of the Acts of 1876. Before that, he was absolutely barred. To avail oneself of the long-sought and hard-won right to testify involves the affirmative exercise of an active privilege, not the negative waiver of a passive protection.” Id. at 576-577 (footnotes omitted).

We add that a defendant faced with any deprivation of his liberty deserves the same attention to detail, regardless of the comparative import of the case.

Judgment reversed.

Case remanded for retrial.

Costs to be paid by Anne Arundel County.


author: Moore, J.,

text:
    HARVEY IGNATIUS SLYE v. STATE OF MARYLAND
    [No. 1117,
    September Term, 1978.]

      Decided May 14, 1979.

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

      Carmel Snow, Assigned Public Defender, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Michael P. Whalen, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal presents an interesting question of merger of criminal offenses: does a grand larceny conviction — for which a fifteen-year maximum penalty may be imposed — merge into a shoplifting conviction — for which the maximum penalty is three years — or does the latter merge into the former? For the reasons set forth, we hold that it was error not to merge the larceny conviction — the “lesser offense” — into the shoplifting conviction — the “greater offense.”

I

Harvey Ignatius Slye, the appellant, was convicted by a jury in the Circuit Court for Prince George’s County (Bowie, J.) of larceny and shoplifting of men’s suits valued at $835. The court imposed a 10-year sentence for the larceny conviction and a 3-year concurrent sentence for the shoplifting conviction.

At the trial, Troy Ratliff, the store detective at the Woodward & Lothrop department store in Iverson Mall, Prince George’s County, testified that, at approximately 9:30 p.m. on October 9,1975, he was summoned to the Men’s Suits Department. There he observed a man, whom he later identified in court as appellant, leaving the department with a number of suits “draped” over his arms. Cecile Langston, a salesperson, also saw appellant departing, thus encumbered. As Ratliff followed appellant towards the front door, he called by radio for assistance. Alerted, appellant began to run. Ratliff chased him outside where appellant jumped into a car. Ratliff grabbed him. A struggle ensued during which the detective sprayed appellant with mace and knocked the suits to the ground. Appellant nevertheless managed to re-enter and to start his car. Ratliff clung to the moving vehicle for 10 or 15 feet before he released his grip. He was able, however, to get the license number. Subsequently, the car was traced to appellant and his wife.

Appellant testified on his own behalf. He also presented three alibi witnesses who testified that he was with them at the time of the alleged criminal conduct. Without objection, the court submitted both counts — larceny and shoplifting — to the jury. The jury returned guilty verdicts to both offenses.

II

Appellant contends that the trial court should have merged the larceny conviction into the shoplifting conviction. The State responds that the issue of merger was not properly preserved for appellate review. Md. Rule 1085. If preserved, however, appellee concedes that merger should take place but argues that the shoplifting should merge into the larceny.

Examination of the record reveals that appellant’s trial counsel moved for a judgment of acquittal at the close of the State’s case and stated, in the course of his supporting argument, that “the application of both the grand larceny and grand shoplifting would seem to merge somehow or some way in that aspect.” The motion was denied. Appellant did not object thereafter when the trial court submitted both offenses to the jury nor when the jury returned a verdict convicting him under each count nor when the court sentenced him to 10 years for grand larceny and a concurrent three-year term for shoplifting. The State, citing Rose v. State, 37 Md. App. 388, 377 A. 2d 588, cert. denied, 281 Md. 743 (1977), argues that Rule 1085 precludes appellate review of the merger issue when, as here, the sentences imposed were concurrent, not consecutive.

Writing for the Court in Rose v. State, Judge Davidson observed:

“This Court will not ordinarily decide any point or question which does not plainly appear to have been tried or decided by the trial court. We have, however, occasionally decided such points or questions. While we have often refused to decide a question of merger which has not been raised or decided in the trial court in cases in which concurrent terms were imposed, we have not declined to consider such questions in cases in which consecutive terms were imposed. In such cases we shall decide the merger question in order to avoid the manifest injustice which would result if consecutive sentences were imposed for merged offenses." (Emphasis added.)

37 Md. App. at 393-94.

The “manifest injustice” rationale enunciated in Bose is, we think, clearly applicable to the instant appeal. Here, appellant contends that the larceny conviction, for which he received a sentence of 10 years, should merge into the shoplifting conviction, for which he received a 3-year term. The latter, it is true, was concurrent. However, if we were not to entertain the merger issue because of Md. Rule 1085, appellant is faced with the prospect of an additional seven years incarceration for an offense which he claims, on the authority of Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977), should have been merged into the conviction for which he received the lesser, 3-year, sentence. The situation is, in practical effect, indistinguishable from that where consecutive sentences are imposed and considerations of “manifest injustice” are equally present.

In this respect, we deem it appropriate to point out that, upon close scrutiny, the cases wherein we have declined to review the question of merger of concurrent sentences because of Rule 1085, do not involve these considerations. In those cases, unlike the present appeal, the sentence imposed for the conviction proposed to be merged was less than or, at most, equal to the sentence imposed for the other conviction.

Therefore, under the circumstances of this case, we shall decide the merger question.

Ill

The prohibition against double jeopardy, both under the Fifth Amendment and at common law, bars not only successive trials but also multiple punishment for the same offense. Newton v. State, 280 Md. 260, 263, 373 A. 2d 262 (1977), citing Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872 (1873); Cousins v. State, 277 Md. 383, 388, 354 A. 2d 825 (1976); Thomas v. State, 277 Md. 257, 353 A. 2d 240 (1976). This appeal represents a case of multiple punishment. Two questions arise: (a) must the offenses, arising from the same act or criminal episode, be deemed the same for double jeopardy purposes? (b) if so, which offense merges into the other?

The established test for determining whether two offenses merge is the “required evidence” test. This was made clear in Newton v. State, in which Judge Eldridge wrote for the Court:

“Thus, under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of offenses is the required evidence test. If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.” (Emphasis added.)

280 Md. at 268.

Applying the required evidence test to the two offenses involved here, it is manifest that only one, shoplifting, requires proof of a fact that the other, larceny, does not, thus requiring a merger. “Larceny is the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent.” (Emphasis deleted.) State v. Gover, 267 Md. 602, 606, 298 A. 2d 378 (1973). The elements of the shoplifting offense under Md. Ann. Code art. 27, § 551A (a) (1), with which appellant was charged, are identical to those of larceny with the addition of one element: the goods must be taken from a mercantile establishment.

When a merger is necessitated, the “lesser” crime is merged into the “greater” and the judgment of conviction and the sentence on the lesser offpnse are vacated. Stewart v. Warden, 243 Md. 697, 699, 221 A. 2d 709 (1966). The lesser offense is that which is itself an “essential ingredient” of the offense requiring proof of an additional fact. Newton v. State, 280 Md. at 269. Here, larceny is an “essential ingredient” of shoplifting under subsection (a) (1) of the shoplifting statute. Shoplifting requires proof of an additional fact — theft from a mercantile establishment. Larceny is thus the “lesser” offense and the conviction and sentence must be vacated.

The penalties prescribed for the respective crimes are not, as the appellee contends, a factor to be considered. Johnson v. State, 283 Md. 196, 388 A. 2d 926 (1978). One of the issues before the Court, in Johnson, was whether a false pretenses conviction merged into a welfare fraud conviction. It was held that the false pretenses conviction merged. In language appropriate to this case, Judge Smith stated:

“There is at least a suggestion here that because false pretenses carried a potential punishment of 10 years imprisonment while the maximum imprisonment for welfare fraud is three years that this in some fashion makes false pretenses the greater crime into which welfare fraud would merge. This concept was rejected by the Court in Flannigan v. State, 232 Md. 13, 19, 191 A. 2d 591 (1963). The issue there before the Court involved Art. 27, § 140, the False Pretense Act, and § 142, the Worthless Check Act, the latter of which provided the lesser sentence.” (Emphasis added.)

Id at 204. Thus, the focus and emphasis in the determination of the “greater” and “lesser” offenses are upon the “required evidence” to prove them, not the prescribed penalties.

Judgment of conviction and sentence for larceny vacated; costs to be paid by Prince George’s County.

      . Md. Ann. Code art. 27, § 340 (1976) provides that a “person convicted of the crime of larceny to the value of one hundred dollars or upward ... shall be deemed guilty of a felony” and prescribes the punishment: restoration to the owner or payment to the owner of the value of the property and a fine of not more than $1,000 or imprisonment of not more than 15 years, or both such fine and imprisonment. In Maryland, the dividing line between felonious and nonfelonious larceny is the value of $100. The theft of goods under $100 is a misdemeanor. Id. § 341. Larceny is not by statute designated as “grand” or “petit” but is commonly referred to in those terms. Melia v. State, 5 Md. App. 354, 360-61, 247 A. 2d 554 (1968).

      . Maryland's shoplifting law was enacted in 1961 and is codified in Md. Ann. Code art. 27, § 551A (1976 & Supp. 1978). Under subsection (aj (1), the crime is committed when any person, in any mercantile establishment, removes “any goods, wares or merchandise [from a place within the establishment] with the intent to appropriate the same to [his own use], or to deprive the owner of the use, or value, or any part thereof.” These, of course, are also the essential elements of common law larceny. Under subsections (a) (2) through (a) (5), shoplifting is also defined, disjunctively, to include obtaining possession, “with a like intent,” of any such goods by charging them to a fictitious person or to a real person without the latter’s authority; concealment of any such goods; alteration, removal, or disfigurement of any label or price tag; and transferring of any such goods from their container to any other container. The dividing line between felony and misdemeanor shoplifting is again $100, under subsection (d). The maximum imprisonment for the felony is 3 years; for the misdemeanor, 18 months.

      . Appellant was convicted on July 8, 1976. The case is before us as a belated appeal after a successful application for post conviction relief.

      . Under these circumstances, we find it difficult to accept appellate counsel’s assertion at oral argument that the limited reference to the merger issue at the time of the motion for judgment of acquittal was sufficient to preserve the question for review.

      . This familiar rule pertains to the scope of appellate review and reads, in part: “This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court....”

      . In Brooks v. State, 38 Md. App. 550, 381 A. 2d 718 (1978), appellant had received consecutive sentences of twelve years for assault with intent to murder and three years for carrying a weapon openly with intent to injure. Citing Rose v. State, Judge Melvin held for the Court: “Because appellant was given consecutive sentences, we will consider the issue of merger even though it was not raised or decided below.” Id. at 552.

      . See, e.g., Johnson v. State, 38 Md. App. 306, 316, 381 A. 2d 303 (1977); Colbert v. State, 18 Md. App. 632, 645, 308 A. 2d 726, cert. denied, 269 Md. 756 (1973); Carter v. State, 15 Md. App. 242, 248, 289 A. 2d 837, cert. denied, 266 Md. 734 (1972); Moore v. State, 15 Md. App. 396, 406, 291 A. 2d 73, cert. denied, 266 Md. 740 (1972); Alston v. State, 11 Md. App. 624, 630, 276 A. 2d 225, cert. denied, 262 Md. 745 (1971).

      . See Saunders v. State, 8 Md. App. 143, 147-48, 258 A. 2d 776 (1969) (shoplifting statute did not repeal by implication the law allowing a conviction of larceny from a mercantile establishment, and there was no “manifest inconsistency” in allowing either a conviction for larceny or shoplifting for a theft of goods from a mercantile establishment.)

      . In Newton, appellant had been convicted of felony murder and attempted robbery. The Court held that the underlying felony merged into the felony murder. Both offenses required proof of the same facts but the felony murder contained an additional ingredient — a death occurring in the perpetration of the felony. 280 Md. at 268-69. Because of this additional element of proof, the felony murder was the “greater” offense into which the underlying felony, the “lesser offense,” merged.

      . Compare, Henry v. State, 273 Md. 131, 328 A. 2d 293 (1974). In Henry, the Court held that larceny of use or unauthorized use of an automobile did not merge into larceny of an automobile because the former required an intent to use temporarily the vehicle and to return it thereafter while the latter required an intent to deprive permanently the owner of the car. Each offense had a distinct element inconsistent with that of the other offense. Id. at 134-38.

      . Md. Ann. Code art. 27, § 230A (Supp. 1978).

      . Id. § 140 (1976).


text:
    PATRICIA HOY et al. v. RALPH C. BOYD
    [No. 608,
    September Term, 1978.]

      Decided June 6, 1979.

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

      Robert B. Haldeman and Marilyn A. Koeppel for appellants.

      Edwin A. Leehowicz, with whom were Lechowicz & Loney on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

At issue in this controversy is the zoning reclassification of approximately 67 acres in the northern portion of the third assessment district of Anne Arundel County from the R2 Residential District to the R1 Residential District (a lower density); and the grant of a special exception to permit a recreational campground on the property. After a hearing pursuant to the Anne Arundel County Zoning Ordinance, the zoning hearing officer issued an Order of denial. Upon appeal by the petitioners to the County Board of Appeals, the applications were granted by a divided vote, one member dissenting. Upon appeal by the protestants, residents of adjacent Pasadena, Maryland, the Circuit Court for Anne Arundel County (Williams, J.) affirmed the action of the Board of Appeals, finding “fairly debatable” the issue of mistake in the original zoning of the property. The protestants below appeal. For the reasons stated, we reverse.

I

The 67 acres here involved are located on the south side of Knollview Drive, 1,000 feet north of Bayside Beach Road in the Alpine Beach Subdivision of Anne Arundel County, with approximately 2,000 feet of frontage on the east and west sides of Alpine Beach Road. The site is partially wooded. The portion to the west side of Alpine Beach Road, somewhat more than one-half the total acreage, contains no structural improvements. The east side has approximately 400 feet of water frontage on the Patapsco River at the point where it enters Chesapeake Bay. This section of the property was used for a number of years as a public bathing beach; and a number of vandalized structures formerly used as beach facilities repose there. The land area on the eastern boundary of the site fronts, for approximately 1,200 feet, on Boyd Pond. Beyond Boyd Pond is Bayside Beach, the nearest residential community.

The appellee, Ralph C. Boyd, became the contract purchaser of the acreage in 1970 but, because of extensive litigation, he did not acquire legal title to the property until January, 1977. Not long thereafter, these applications were filed. The zoning reclassification was essential because the property was zoned R2 and, under the Anne Arundel County Zoning Ordinance, a commercial recreational campground is permitted by special exception in only the RA and R1 districts. The appellee proposed the installation of approximately 250 campsites which would utilize about one-half of the property, in the area generally west of Alpine Beach Road. The remainder of the property would be used for recreational purposes, including bathing at Alpine Beach and boating at Boyd Pond.

The site was included in a comprehensive zoning for the northern portion of the third assessment district which commenced in 1971. Its somewhat complicated zoning history included six maps, as follows:

FIRST: A “suggested map” dated October 4,1971 formulated by the Office of Planning and Zoning, in which the entire property was designated R2.
SECOND: A map recommended by the Planning Advisory Board dated June 19, 1972, as a result of "prefiles” before the Board. Again, the site was designated R2.
THIRD: A map adopted by the Anne Arundel County Council on October 2, 1972, effective December 21, 1972. The map split the property, designating the west side of Alpine Beach Road R1 and the east side R2.
This was accomplished by Amendment No. 7 of Bill No. 136-72, a legislative enactment which was the subject of a court challenge. In the case of Anne Arundel County v. Moushabek, 269 Md. 419, 306 A. 2d 517 (1973), it was held that 83 amendments to the bill, adopted by the Council on the day of the enactment of the ordinance, were invalid because no hearing on the amendments had been held as required by Section 307 (d) of the County Charter. The court ruled, however, that the ordinance was severable from the in validly adopted amendments.
FOURTH: A “recommended map” dated May 8, 1973, preliminary to the reinstitution by the Council of the comprehensive zoning process, following the decision of the Court of Appeals in the Moushabek case. The previous R1 and R2 designations were retained for the subject property.
FIFTH: A map adopted by the County Council, as part of Bill No. 52-73, on May 8,1973, again showing the site as R1 and R2.
This was an emergency bill designed to repeal what remained of Bill No. 136-72, and to re-enact it with the provisions of the 83 amendments stricken by the Court of Appeals in the Moushabek case incorporated directly into the text of the new law.
SIXTH: “Referendum Approved” map, effective November 5,1974, in which the subject property was designated R2 in its entirety.
Emergency Bill No. 52-73 was not challenged in the courts as had been Bill No. 136-72. The opponents of the Council’s new ordinance petitioned it to Referendum and, on November 5, 1974, the voters of Anne Arundel County decisively rejected Bill No. 52-73. The combined effect of the litigation and the referendum was concisely stated by Judge Levine in Ritchmount Partnership v. Board of Supervisors of Elections for Anne Arundel County:
“As a result of our holding in Moushabek, Bill No. 136-72 in its unamended form became the operative law. It was this version of Bill No. 136-72 that the County Council attempted to repeal by emergency Bill No. 52-73 in July 1973. And consequently it was this unamended version of Bill No. 136-72 which was automatically reinstated after Bill No. 52-73 went down to defeat at the hands of the electorate in 1974.”

283 Md. 48, 65, 388 A. 2d 523 (1978).

In the proceedings below, the hearing officer found that no evidence of “change” was introduced and that the property owners’ case became “one of mistake or error alone.” On that issue, he found no evidence of mistake to support a reclassification from R2 to Rl. On appeal, the County Board of Appeals received in evidence a recommendation of the Office of Zoning and Planning in which certain “considerations” concerning “change” and “mistake” factors were set forth. These included the statement that sewer service was anticipated during the comprehensive zoning process of 1971, to be available by 1981 for the area in which the subject site is located; but that the current sewer map adopted March 7, 1977 designated the area to be served between 1989 and 1997 and, therefore, “the R2 zoning ... is based in part on misapprehension” and the revised projected date “would support a lower residential classification.” The Office concluded therefore that it “would not be adverse to the granting of this application.”

The Board’s majority opinion reviewed the testimony of Ralph C. Boyd, one of the owners of the property, Joseph L. Peeler, Jr., a consulting engineer, and Gene E. Floyd, a real estate consultant and appraiser. The testimony of 12 opposing witnesses was also summarized, as was the testimony of Larry Burkins, principal zoning analyst for the Office of Planning and Zoning of the County. In its statement of findings, the majority considered “most significant” the weight given to the availability of public water and sewer in classifying low density residential property and stated that the updating of the sewer map, projecting sewer services for the area in the period 1989 to 1997, supported reclassification of the property to Rl. The majority also wrote:

“This board finds that zoning by referendum failed in this case to take into account the unique physical characteristics of this parcel. This constitutes error sufficient to change from R2 to Rl.”

With respect to the request for a special exception, the Board found that the application met the requirements of the County Code and ordered that the special exception to permit a recreational campground be granted subject to specified conditions. The dissenting member expressed the position that the evidence of mistake was insufficient to support the reclassification. Her dissenting opinion stated in part:

“a) Although the status of sewer has changed, in effect, a possible error in the Master Plan for sewer does not constitute a mistake in zoning.
b) Public sewer is not necessary for the Ra, Rl or R2 Residential Districts, but is a requirement for R5 Residential Districts (Section 13-306).” (Emphasis added.)

The court below, in a written opinion, agreed with the protestants that there was no evidence of change in the neighborhood to justify the zoning reclassification. On the other hand, the court ruled:

“It is, however, clear from the record and particularly from those portions of the testimony quoted herein that there was testimony of mistake in the original zoning and that the Board was presented with facts that made the issue of mistake fairly debatable.” (Emphasis added.)

It is from this finding that the protestants appeal.

II

It is fundamental law in Maryland that to grant a zoning reclassification, the zoning authority must find evidence of mistake in the original zoning or comprehensive rezoning or that there has been substantial change in the character of the neighborhood. There is a strong presumption of the correctness of comprehensive rezoning. Consequently, the burden of proving mistake or change is a heavy one. Stratakis v. Beauchamp, 268 Md. 643, 652-53, 304 A. 2d 244 (1973); Boyce v. Sembly, 25 Md. App. 43, 49-50, 334 A. 2d 137 (1975). There is also a presumption of the correctness of piecemeal rezoning but it is “not so potent as the presumptions of comprehensive zoning or rezoning.” Bonnie View Country Club, Inc. v. Glass, 242 Md. 46, 52, 217 A.2d 647 (1966). The scope of appellate review of zoning reclassifications is also well defined. Simply stated, “it is not the function of the courts to zone or rezone....” Germenko v. County Board of Appeals, 257 Md. 706, 711, 264 A. 2d 825 (1970). Judicial review is limited to a determination of whether the evidence presented to the zoning authority made the question at issue “fairly debatable.” Offutt v. Board of Zoning Appeals, 204 Md. 551, 562, 105 A. 2d 219 (1954).

Another rudimentary proposition, overlooked in the proceedings below — except by the dissenting member of the Board of Appeals — and by the parties on this appeal, is that there is a vast difference between a master plan for sewer and a comprehensive zoning or rezoning. As Judge Levine stated for the Court of Appeals in Pattey v. Board of County Commissioners, “a master plan is only a guide and is not to be confused with a comprehensive zoning, zoning map, or zoning classification. [Citations omitted.] It is a ‘mistake’ in the latter, not in the master plan, which may support a rezoning.” (Emphasis added.) 271 Md. 352, 360-61, 317 A. 2d 142 (1974).

In Pattey, a large number of Worcester County residents appealed from a Circuit Court decision affirming zoning reclassifications of 1,870 acres of agricultural and conservation lañd located in the fourth election district of that County. The Circuit Court determined that the rezoning should be upheld on the basis of mistake as well as change. The Court of Appeals reversed. On the issue of mistake, the Court noted that the error on which the trial court had predicated its decision “was that made by the planning consultant in recommending that ‘too much land [be] reserved under an agricultural classification.’ ” As a result, the opinion of the Court continued, “the trial court took the planners to task rather than the county commissioners, who adopted the agricultural and conservation classifications for the subject property in 1965.” Id. at 360.

There is a clear parallel between the so-called mistake, vehemently litigated by both sides on this appeal, and the “error” which the court rejected in Pattey. Here, the mistake claimed by the appellee, as applicant for a local map amendment and a special exception, was predicated upon projections contained in the master plan for sewer for the area of Anne Arundel County in which the subject property is located. These projections, we glean from the record, originated in the Office of Planning and Zoning. During the comprehensive rezoning process which commenced in 1971, the sewer map adopted by the County Council on December 15, 1969, revised as of September 1, 1971, showed that the area in which the subject property is located was anticipated to be served by 1981. The sewer map which was current at the time of the applications below, was adopted March 7,1977 and changed the period of projected service to between 1989 and 1997. It was upon this basis that the appellee’s expert consultant and appraiser, Gene E. Floyd testified — albeit with some ambivalence — that the existing R2 zoning classification was a mistake, on the theory that R2 carried with it a presumption of sewer availability. The basis for the theory expressed by Mr. Floyd, that R2 carries with it a presumption that sewer is available, is not disclosed in the record. He said:

“[T]he utility situation, when this was made up, suggested that the utilities were to be available in a five year plan. I must add that that is incorrect....
Whether it is change, error — it is a matter of semantics. Whatever you want to call it, obviously, the Council did not, in 1972, have the insight to know that sewer was not going to be available in 1977 or 1980, and it was going to be moved back. It doesn’t meet an R-2 as set out by the Council in their normal deliberations.”

Similarly, Larry Burkins, the County’s principal zoning analyst, Office of Planning and Zoning, testified that the County Council and the Office of Planning and Zoning when “going into the comprehensive zoning process, tries (sic) to establish trends and projections of when things will occur.” In response to a question as to whether the information with respect to sewer was incorrect, or represented a change, he replied:

“Now it is a mistake in that our projections or trends were off. It is a change, in that the change
— although it is not an actual physical change, it is a change in policy or whatever determines what area will be sewered or what area is feasible to be sewered.” (Emphasis added.)

That the Board of Appeals relied substantially upon the master plans for sewer is evident from its finding that “most significant is the weight given to the availability of public water and sewer utilities in classifying low density residential property.” That the Circuit Court placed heavy reliance upon the expert opinions of Mr.' Floyd and Mr. Burkins in finding the issue of mistake “fairly debatable” is clear from the court’s opinion and the extensive quotations from their testimony contained therein.

We recognize that expert testimony, as well as a technical staff report of a planning agency, may constitute probative evidence in a hearing upon an application for a zoning reclassification which may be sufficient to make the issue of mistake or change fairly debatable. Montgomery v. Board of County Commissioners, 263 Md. 1, 8, 280 A. 2d 901 (1971); Surkovich v. Doub, 258 Md. 263, 272, 265 A. 2d 447 (1970). However, as Chief Judge Prescott stated for the Court of Appeals in Miller v. Abrahams:

“[A]n expert’s opinion is of no greater probative value than the soundness of his reasons given therefor will warrant.”

239 Md. 263, 273, 211 A. 2d 309 (1965).

In the instant case, it is quite plain that the experts based their testimony of mistake upon a false premise, failing to distinguish between a master plan for sewer, which is only a guide and subject to change, and a comprehensive zoning ordinance. See Pattey v. Board of County Commissioners, 271 Md. at 360, citing Nottingham Village v. Baltimore County, 266 Md. 339, 354-55, 292 A. 2d 680 (1972), Chapman v. Montgomery County, 259 Md. 641, 644, 271 A. 2d 156 (1970), Board of County Commissioners v. Edmonds, 240 Md. 680, 685, 215 A. 2d 209 (1965).

Furthermore, it is fundamental that the evidence before the zoning authority to support a reclassification based upon mistake must establish that the mistake was “basic and actual” and made “ ‘at the timé the property was zoned....” Pattey v. Board of County Commissioners, 271 Md. at 361. In addition, “the ‘mistake’ alleged to have occurred must relate to the specific property for which the zoning is sought, and may not consist of generalities.” Id.

Applying these standards, we find error in the proceedings below for another fundamental reason. There is no evidence in the record of “basic and actual” error at the time the property was zoned in 1972. It is presumed that the placement in 1971 of these 67 acres — as well as an undetermined amount of additional acreage — in a ten-year program, represented a reasonable, prudential judgment, at that time, on the part of the planners and the County Council.

The record does not document the reasons for the subsequent change in the master plan for sewer. We deem it a fair inference, however, that growth and development factors between 1971 and 1977 led logically to a revision of the sewer guidelines in 1977, postponing by 8 to 16 years proposed service to the area in which the 67 acres are located. This modification of sewer programming might well have motivated the Board of Appeals to deny a reclassification of the subject property to some higher density — particularly to R5 which requires sewer — had such a reclassification been sought, Montgomery County v. Pleasants, 266 Md. 462, 467, 295 A. 2d 216 (1972); but it does not substantiate a claim, in a piecemeal down-zoning proceeding, that a mistake was made at the time of comprehensive zoning when the property was zoned R2.6 Evidence sufficient to overcome the correctness of the comprehensive zoning was not adduced. See Boyce v. Sembly, 25 Md. App. at 52.

Since we find no basis for the claim of mistake and there is no contention that the zoning classification may be justified on grounds of change, the action of the lower court and of the County Board of Appeals must be reversed.

Judgment reversed; ease remanded for entry of an order reversing the decision of the County Board of Appeals for Anne Arundel County; appellee to pay the costs.

      . The record does not explain this term but it appears to refer to tentative requests for zoning classifications made by property owners prior to comprehensive zoning.

      . In Ritchmount Partnership v. Board of Supervisors of Elections for Anne Arundel County, 283 Md. 48, 388 A. 2d 523 (1978), the Court upheld the constitutionality of Article III, Section 308 of the Charter of Anne Arundel County, pursuant to which the referendum of Bill No. 52-73 was held. See also Anne Arundel County v. McDonough, 277 Md. 271, 354 A. 2d 788 (1976) in which the court held that the notice requirements of the Maryland election laws were applicable to a referendum of 41 amendments to another comprehensive zoning ordinance and that the summaries of the referendum questions on the ballot did not conform to the requirements of the election laws.
      A referendum involving piecemeal rezoning withstood constitutional challenge in Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668 (1976). That case involved the rezoning of an 8-acre parcel from industrial to multi-family high-rise use, in which the U. S. Supreme Court reversed the Ohio Supreme Court’s determination that a mandatory referendum provision in the City Charter violated federal due process guarantees. See generally Comment, Referendum Zoning: The State and Federal Issues and a Suggested Approach, 60 Marq. L. Rev. 907 (1977), reprinted in 1 Zoning Law Anthology 783 (P. Saron ed. 1978); Comment, Zoning — Adjudication by Labels: Referendum Rezoning and Due Process, 55 N.C. L.Rev. 517 (1977), reprinted in 1 Zoning Law Anthology 911 (P. Saron ed. 1978).

      . This explains why the subject property reverted entirely to R2. As previously noted, the site was originally proposed for R2 but was divided into Rl and R2 by Amendment No. 7 of Bill No. 136-72.

      . See pages 532-33, supra.

      . According to the testimony of Mr. Peeler, appellee’s consulting engineer, R2 zoning would permit two dwelling units per acre. Mr. Floyd testified that with utilities, R2 would permit a density of 2‘/2 units per acre. R1 permits one dwelling unit per acre.

      . Both appellants and appellee take the position in their briefs that the zoning was accomplished by the referendum in 1974. We think this is inaccurate in the light of the holding of the Court of Appeals in the Ritchmount case, that the 1972 “unamended version” of Bill No. 136-72 was “automatically reinstated” by the referendum of Bill No. 52-73. 283 Md. at 52.

      . As previously noted, the property was divided by the County Council into R1 and R2, west and east, respectively, of Alpine Beach Road, under the invalidated amendment to Bill No. 136-72. Under the circumstances of the successful court challenge to all the amendments, and the successful referendum of the emergency legislation incorporating the amendments, the attempted division of the tract into R1 and R2 is not relevant.

      . Although not in effect at the time of the proceedings below, we observe that the provisions of subsection (b) of Anne Arundel Council Bill No. 53-78, enacted on July 18, 1978, reflect this conclusion. That subsection, codified in Sec. 13-400, Title 13, Planning and Zoning, Subtitle 4, General Development Plan, Anne Arundel County Code (1967 Ed. and Supp.), reads as follows:
      “(b) The adoption, amendment or repeal of any documents listed in subsection (a) of this section [General Development Plan, documents to be used as a guide in the future development of land] shall not be construed to evidence or constitute mistake in the zoning map then existing or change in the character of any neighborhood.”