author: Morton, J.,

text:
    CONTINENTAL CASUALTY CO. et al. v. RUSSELL R. MIRABILE
    [No. 1523,
    September Term, 1981.]

      Decided September 7, 1982.

      The cause was argued before Morton and Moylan, JJ., and Clayton C. Carter, Associate Judge of the Second Judicial Circuit, specially assigned.

      Thomas S. Martin, with whom were John Henry Lewin, Jr., Kathleen M. Gallogly and Venable, Baetjer & Howard on the brief, for appellants.

      C. Christopher Brown, with whom was Abraham Paul Korotki on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

This appeal arises from what is, at the least, a series of petty humiliations unfortunately inflicted upon an extremely sensitive young man by his coworkers. His response, after continued abuse, was to file in the Circuit Court for Baltimore County two tort actions against his employer and several of his supervisors alleging negligence, defamation, assault, battery, intentional infliction of emotional distress and conspiracy to interfere with contractual relations. The trial judge (Haile, J.) directed verdicts in favor of defendants as to certain counts, joined separate counts, and reformulated those that remained. When the smoke cleared, the jury entered verdicts in the amount of $261,000 against several of the defendants on the only two counts left for their consideration — deceit and assault and battery.

Essentially, the appellants argue on appeal that the claims are barred by the Workmen’s Compensation Act and that even if they are not, the deceit award must be reversed and the assault and battery award must be reversed or reduced. The appellee asserts in his cross-appeal that this Court should remand for a retrial on those counts taken from the jury’s province.

The testimony at trial disclosed that Russell Mirabile, appellee and cross-appellant, had worked nearly five years as a trainee and then a claims representative at the Towson branch of Continental Casualty Company (hereinafter Continental) investigating claims, preparing reports and maintaining files. Phillip E. Klingler was the Towson office manager who directly supervised Mr. Mirabile’s work. Klinger, in turn, reported to William F. Sheehan, the claims manager of the Silver Spring regional office, and ultimately to Ronald Lewis, the general branch manager of that office.

It was Continental’s policy to conduct a uniform annual performance evaluation of all employees, rating ten areas on a scale from 1 to 10, a 5 or 6 being "competent” and a 3 or 4 reflecting a need for improvement. Klingler, as direct supervisor of Mirabile, was responsible for rating Mirabile’s performance on a standardized evaluation form and then reviewing the rating with Mirabile, who was to sign the form as an indication that although there might not be agreement, he had been advised of his rated performance status. The completed form was then to be submitted to Mr. Sheehan for final review and acceptance. Following these periodic reviews, a "competent” employee could expect a salary increase. This procedure, as enumerated in the "Performance Review Program” promulgated by Continental, was fully carried out as to Mirabile’s performance report for the review period August, 1975, to June 15, 1976, at which time Klingler’s overall rating was "needs improvement.”

Mirabile’s performance review covering the period June 15,1976, to July 8, 1977, however, was returned to Klingler by Sheehan with a memorandum dated July 18,1977, stating that after a review of Klingler’s comments and Mirabile’s light caseload, Sheehan was of the opinion that Mirabile’s overall rating was properly a "needs improvement” rather than "competent” as appraised by Klingler. It also appears that Mirabile’s performance, as appraised by Klingler, averaged an overall 3.9, just within the "needs improvement” range, although this was not noted by Sheehan. Sheehan directed Klingler "to review this with Russ Mirabile . . . .”

Rather than resubmit a new or corrected form to Mirabile for his review and signature, Klingler altered the rejected evaluation, making additional comments and changing the overall status to "needs improvement.” Sheehan approved the amended evaluation and forwarded it to Lewis, who presumably knew nothing of the alterations, with a recommendation for a five percent pay increase. The recommendation was rejected.

While it seems that Mirabile was not explicitly told that his review was being resubmitted on a "needs improvement” basis, Klingler did advise Mirabile in a memorandum dated August 22, 1977, that:

"[T]he files were discussed with the deficiencies that were anything but acceptable. The files that were reviewed showed a complete lack of proper investigation, prompt contact, and reporting to the file. This was office-wise and showed a need for improvement on all concerned.
At the time of your recent salary discussion on July 11, 1977, we discussed your areas for needs of improvement. I indicated to you at that time that even though you could answer on the file, the file itself was not responsive to the above criteria, that is prompt contact, proper investigation, and prompt reporting. Also, Russ, I discussed the use of the dictaphone in conveying your investigation in the file, inasmuch as there was some difficulty at times in reading your memos.
Russ, in order that we can be of assistance to you in your career improvement with CNA, I am outlining our plans for improving your performance, which we have already begun some three weeks ago.”

Mirabile did not learn of the revision until September or October when he realized that an expected pay raise had not been effected. He demanded that his initial "competent” rating be reinstated. When his supervisors refused, he retained in March 1978, a lawyer who filed on his behalf the initial action, case No. 97761, against Continental, Sheehan, Klingler and Lewis. The four counts charged, respectively, Klingler and Continental with what has been described by the plaintiff as "breach of duty and responsibility,” but construed by the judge as fraud or deceit; Lewis, Sheehan and Continental with the same tort; Klingler and Continental with defamation; and all four defendants with conspiracy to interfere with contractual relations.

Although Mirabile’s performance became more acceptable as reflected in the "competent” ratings for the periods from July 1 to October 1,1977; July 7 to October 7,1977; and July 8, 1977, to April 28, 1978, he contends that a pattern of workplace harassment was at this point initiated.

Mirabile testified that his desk was first moved against a blank wall; then he was assigned by Sheehan to various uncomfortable, inconvenient desks — a desk near a noisy copying machine, a sticky desk that was used as a lunch table, the "wrong side” of another adjuster’s desk. With each move his supervisors would "smirk” and "laugh.” Mirabile also noticed that he was being sent on distant assignments, files were not being delivered to him from the file room, completed work was disappearing from his case files, and his mail was not always delivered. He further testified that Klingler would often "direct his hum at me .. . hum, hum, hum, hum,” put his face rather close, raise his eyebrows, chuckle and walk away. Sheehan called him a "hyena” and on another occasion a "jackass” in the presence of coworkers.

There was also evidence that all employees had to share desks due to cramped conditions; that Mirabile himself would occasionally make bird calls, sing out loud, and make loud sarcastic remarks about the company; and an expert witness testified that Mirabile showed signs of "paranoid thinking.”

The culminating incident which prompted Mirabile to stop working and formed the basis of his assault and battery claim occurred on June 27, 1979, after more than a year of such "harassment.” The most violent version of the facts follows. On that day Sheehan, having repeatedly asked Mirabile to sit at a desk by himself rather than with Ed Hrica, whose desk he had previously been told to share, became annoyed when he saw Mirabile sitting at Hrica’s desk in the morning. He called Mirabile into his office, told him to stay away from Hrica, and at one point "swung his hand into” Mirabile. That afternoon when Sheehan saw Mirabile standing at Hrica’s desk making a phone call, Sheehan grabbed the receiver and slammed it down; stood chin to chin with Mirabile, waving his finger in his face and screaming that he had 15... 10 seconds to get out of the area; rushed at Mirabile and started tapping his nose with his finger; repeatedly pushed Mirabile; grabbed Mirabile’s arm and pulled him back, saying he was going to fire him. Mira-bile, crying "worse than a baby,” was so upset and "shocked” that it took him one-half hour to find his car in the parking lot.

He sought comfort of his priest that night and that of a psychiatrist the next day, whom he has continued to see twice a week. Having suffered what three experts agreed was a disabling psychological injury, Mirabile did not return to work and a year later he was terminated. A second tort action, case No. 102985, alleging assault, battery and intentional infliction of emotional distress against Sheehan (Counts 1, 3 and 5) and Continental (Counts 2, 4 and 6) was filed. The last count was eliminated as duplicative by defendants’ preliminary objection and the two actions were consolidated at trial.

The plaintiff moved for a directed verdict as to all counts and the defendants did likewise as to all but the assault and battery counts, stating that whether the facts supported an actionable assault and battery was a question for the jury. While it is plain from the record that the trial judge directed verdicts for defendants on the defamation and conspiracy counts, what else was done remains unclear. The judge "denie[d] the motion of defendants Phillip E. Klingler and defendant Continental Casualty for a directed verdict under the second count” of 97761 and "grant[ed] the motion of the defendant, William F. Sheehan and the defendant Ronald Lewis for directed verdict” under that count, but then responded to counsel’s inquiry of Counts 1 and 2 of 97761 that he had "already knocked them out.”

The jury was then instructed that in the first case the plaintiff claimed "he was injured and damaged by a misrepresentation of fact wilfully made and with malice” and in the second case that "he was injured and damaged by an assault and battery with malice.” After being further instructed with numerous exceptions by both counsel on the elements of assault and battery, and, with particularly strenuous exceptions by Mirabile’s counsel, on deceit, the jury returned these verdicts. In the "deceit” case, No. 97761, the verdict was $10,000 compensatory damages for Mirabile against Klingler and Continental, with $135,000 punitive damages against Continental and $1,000 punitive damages against Klingler. In the "assault and battery” case, No. 102985, the verdict was $80,000 compensatory damages for Mirabile against Sheehan and Continental, with $25,000 punitive damages against Continental and $10,000 punitive damages against Sheehan.

Defendants’ motions for a new trial and for a judgment notwithstanding the verdict were denied and final judgment was entered on the jury’s and the directed verdicts.

I. Appeal by Continental, Klingler and Sheehan

A. Motion to Dismiss and Scope of Appeal

Preliminarily, appellee’s counsel argues that the appeal should be dismissed, or limited, because appellants entered an order for appeal from the trial court’s order passed "in the above-entitled matters on July 21, 1981,” the date of the court’s order denying appellants’ motions for a new trial and for judgment notwithstanding the verdict, and directing the clerk to enter judgment absolute, rather than from the judgment absolute of July 22, 1981.

Appellants respond that appellee’s previous motion to dismiss had already been denied by order of this Court on October 26, 1981. Indeed, this Court has considered appellee’s motion on the grounds that the appeal was prematurely taken before entry of final judgment and any appeal should be limited to the trial judge’s order of July 21, 1981. While the previous dismissal could not preserve the appeal if it were not taken from the entry of a judgment absolute, we are satisfied that the appellants’ designation of the appeal as from the "order of July 21, 1981,” was superfluous language. "The order of appeal would have been effective had it merely directed the clerk to note an appeal; it would necessarily follow that it be from the final judgment.” Shipp v. Autoville Limited, 23 Md. App. 555, 559 (1974). The appeal, properly taken, is not limited to the denial of appellants’ judgment notwithstanding the verdict and new trial motions.

B. Exclusivity of Workmen’s Compensation Act

The threshold issue raised by appellants is whether the Maryland Workmen’s Compensation Act (hereinafter the Act), which requires an employer to provide compensation "for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment,” § 15, and the exclusive remedy provisions thereof, precluded Mirabile’s assault and battery action against his employer and co-employees.

The Act embodies a comprehensive scheme for compensation to employees of applicable employers for accidental job related injuries. Compensation under the Act does not require proof of fault and recovery is meant to be exclusive and to preclude tort actions against an employer. § 15. Under § 44, however, the employee may make an election as to pressing his claim under the compensation statute or in a common law tort suit against his employer where the injury is the result of an intentional tort by his employer. Continental argues that, notwithstanding this provision, employees can sue their employers for intentional torts only if the employer in person or someone acting as the "alter ego” of the employer was the actual tortfeasor. In the case of a corporate employer, the tortfeasor must, of course, be the latter. As support, Continental cites a dozen cases from other jurisdictions which have so held, including Jablonski v. Multack, 380 N.E.2d 924 (Ill.1978); Bryan v. Utah International, 533 P.2d 892 (Utah 1975); Elliot v. Brown, 569 P.2d 1323 (Alaska 1977); and Sands v. Union Camp Corp., 559 F.2d 1345 (5th Cir. 1977). This Court has recently decided to follow suit.

In Schatz v. York Steak House Sys., 51 Md. App. 494 (1982), Judge Thompson stated for the Court:

"The majority of jurisdictions that have considered the question have held that absent express authorization by the employer, the agent must be the 'alter ego’ of the employer in order for his intentional misconduct to be attributed to the employer. (Citations omitted.) The rationale of these decisions has been succinctly expressed by Professor Larson, in The Law of Workmen’s Compensation, § 68.21 (pp. 13:10-11 1976) in which he said:
'When the person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, but merely a foreman, supervisor or manager, both the legal and the moral reasons for permitting a common-law suit against the employer collapse, arid a substantial majority of modern cases bar a damage suit against the employer.
The legal reason for permitting the common-law suit for direct assault by the employer, as we have seen, is that the same person cannot commit an intentional assault and then allege it was accidental. This does not apply when the assailant and the defendant are two entirely different people. Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.’ (footnote omitted).” 51 Md. App. at 496-497.

The rationale is sound and the arguments are strong against allowing a common law tort action against an employer for the intentional torts of a supervisory employee who cannot be said to be the employer’s alter ego. To do so would mean that in all tort incidents arising between co-employees, of which there are no doubt a multitude, the plaintiff need only "show that the assailant was one notch higher on the totem-pole than the victim” in order to recover against the employer. 2A Larson, supra, § 68.21, p. 13-13. Attribution of employer liability for the actor’s conduct should be based on identification rather than agency and is appropriate only where the actual tortfeasor is of such a rank or position that he may be deemed the alter ego of the employer. Were it otherwise, there would be a subversion of the very purpose of the workmen’s compensation scheme of spreading the risk of loss for injuries arising out of and in the course of covered employment, in that an employer would be required not only to provide workmen’s compensation but also to defend tort actions of employees.

Where, however, it is neither the employer personally nor someone acting as the alter ego of the employer who commits the intentional tort, there is no justification in holding the employer liable for an employee’s intentional acts solely on the principle of respondeat superior. This is true notwithstanding the line of decisions reviewed by the Court of Appeals in Embrey v. Holly, 293 Md. 128 (1982), which appellee suggests this Court failed to appreciate in Schatz. In Embrey, at 135, the Court of Appeals characterized its prior decisions as having

"sided with those which vicariously impose punitive damages on the master for acts of the servant committed during the course of his employment without regard to whether the master authorized, participated in, or ratifíed the employee’s conduct. See Safeway Stores, Inc. v. Barrack, 210 Md. 168, 176-77, 122 A.2d 457, 461-62 (1955); Boyer & Co. v. Coxen, 92 Md. 366, 368, 48 A. 161, 162 (1901); Balt. & Yorktown Turn. v. Boone, 45 Md. 344, 354-56 (1876); B & O, R.R. Co. v. Blocher, 27 Md. 277, 286 (1867).” (Emphasis supplied.)

Neither Embrey nor the cases cited for support were for the purpose of determining employer responsibility in a workmen’s compensation context. Such general tort law principles are not applicable, we think, in the realm of workmen’s compensation law. As enunciated by us in Schatz, the employee must be the "alter ego” of the employer in order to hold the employer liable for the intentional acts of the employee.

The fact that Sheehan, the claims manager of the Silver Spring office, was Mirabile’s supervisor does not alone make him the alter ego of Continental, a Chicago based corporation. Nothing in the record indicates that Continental directed or authorized the assault or that Sheehan was of such a status in Continental’s organization as to be characterized as Continental’s alter ego. Under the facts of this case then, Mirabile’s assault and battery count against Continental is barred by the Act’s exclusivity provision.

Although counsel for Continental purports to be counsel for Sheehan as well, they do not raise the question whether Mirabile’s action against Sheehan is also barred under the Act, even though they implicitly acknowledge that there may be circumstances where an action against the supervisor or other co-employee, who is the tortfeasor, will be barred.

C. Assault and Battery Award

Sheehan next argues that there was no actionable assault and battery and, assuming there was, that a $90,000 award is unconscionable in light of his annual income and the technical nature of the assault and battery. Because we have determined that the exclusive remedy provision of the Act protects Continental from the assault and battery suit No. 102985, Sheehan is liable for the entire $80,000 in compensatory damages awarded by the jury as well as $10,000 in punitive damages.

An assault is any unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact. A battery is its consummation. See Restatement (Second) of Torts §§ 13, 21 (1965); Prosser, Law of Torts, §§ 9, 10 (4th ed. 1971).

Sheehan first asserts that the essential element of threat of a harmful or offensive contact was not present, citing as support Brown v. Stauffer Chemical Co., 539 P.2d 374 (Mont. 1975), wherein it was held that plaintiffs work place supervisor did not commit an actionable assault and battery when he called plaintiff "sweetheart” and gave him "pats on the rear.”

While it may be true that "the law disregards trifles,” Brown, 539 P.2d at 376, we think there was sufficient evidence from which this jury could have concluded that such a threat existed. Appellants’ counsel conceded at trial that the assault and battery claim, which it characterized as a "pushing and shoving incident,” was an issue of credibility to be determined by the jury. It cannot now be reviewed on appeal.

Even assuming an actionable claim was stated, nominal damages at most were appropriate, appellants continue; the battery, technical in nature, calls for a technical damage award. It is well settled, however, that the question of whether a verdict is excessive is not open on appeal. Patapsco Loan Co. v. Hobbs, 134 Md. 222, 227 (1919); Kirkpatrick v. Zimmerman, 257 Md. 215, 218 (1970). Even if it is our judgment that an award of $80,000 for compensatory damages in this case were excessive in light of the evidence, we are barred from reversing or reducing the judgment.

The case of Heinze v. Murphy, 180 Md. 423 (1942), is not to the contrary. Appellants mistakenly rely on Heinze as authority for this Court to reduce a damage award as excessive. The Court of Appeals merely found that since malice had not been established, the case did not justify punitive damages, but it affirmed the judgment for compensatory damages. They were not reducing damages as excessive but rather were throwing out a punitive damage award in toto as inappropriate. That another court has found the authority to do so, see Brown v. Stauffer Chemical Co., 539 P.2d 374 (Mont. 1975), is not persuasive. As a creature of statute, this Court has no inherent powers to reduce a damage award nor has any persuasive source of authority to do so been cited to us.

D. Deceit Award

Appellants’ grounds for appeal as to the deceit award 1) that the claim against Continental is barred by the exclusivity provision of the Workmen’s Compensation Act; 2) that the trial court erroneously refused to direct a verdict after Mirabile failed to establish the factual elements of a deceit claim; 3) that the court improperly submitted the issue of punitive damages on that claim to the jury; and 4) that the court permitted an unconscionable award to stand have become moot with Mirabile’s $146,000 concession at oral argument that there was no deceit claim and no legally sufficient evidence to establish the elements of deceit. The judgments entered against Continental and Klingler on the jury’s verdict on the deceit charge must be reversed.

II. Cross-Appeal by Mirabile

A. Directed Verdicts

Addressing now the issues Mirabile raises in his cross-appeal, appellee asserts that the trial judge should not have directed a verdict on his claims for damages resulting from appellants’ alleged defamation, interference with a contractual relationship and intentional infliction of emotional distress, and asks that we remand for a full trial on all counts.

The directed verdict standard applied in Maryland requires that we consider the evidence in a light most favorable to the nonmoving party and interpret every reasonable inference in its favor. Impala Platinum v. Impala Sales, 283 Md. 296 (1978). If there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court would be invading the province of the jury by declaring a directed verdict. Impala, supra at 328; Ralph Pritts & Sons, Inc. v. Butler, 43 Md. App. 192, 199-200 (1979).

1. Defamation Count

The Court of Appeals has held that a false and defamatory statement published by an employer concerning his employee is actionable absent a qualified privilege. Jacron Sales Co. v. Sindorf, 276 Md. 580 (1976). While appellee asserts that the defamatory statement was the knowingly false misimpression that Mirabile had seen and acknowledged his "needs improvement” rating, it is in no way defamatory. Such a "misimpression” cannot be said to have exposed Mirabile to hatred, contempt, ridicule, aversion or disgrace, or have put him to expense or inconvenience as a consequence of the language. See Cheek v. J.B.G. Properties, Inc., 28 Md. App. 29, 33 (1975). The misimpression was merely that Mirabile had acknowledged the lower performance rating when, in fact, he had not. It is true that Mirabile, as a result of the ratings, may have been denied a pay raise, but it was denied not because he was thought to have acknowledged his "needs improvement” rating but because he was officially rated "needs improvement.”

Nor can the actual rating of Mirabile as "needs improvement” be considered the defamatory statement. An otherwise defamatory statement is not defamation where true. A complete reading of the infamous evaluation form, on its face, leads us to the conclusion that an overall "needs improvement” status was initially appropriate, given the 3.9 average of the individual skill ratings. For these reasons, a directed verdict was entirely appropriate.

2. Wrongful Interference with Contractual Relationship Count

A third party who, without legal justification, intentionally interferes with the rights of a party to a contract, or induces a breach thereof, is liable in tort to the injured contracting party. Wilmington Trust Co. v. Clark, 289 Md. 313, 329 (1981). Recovery is not permitted, however, where the defendant is a party to the contract. Wilmington Trust Co., supra at 329. The tort contemplates the interference of two parties’ contractual relations by a third party. Appellee, in the same declaration in which he alleges wrongful interference with contractual relations, alleges that Klingler, Lewis and Sheehan "were acting as the agent[s], servants] and employeefs]” of Continental. Klingler, Lewis and Sheehan cannot be Continental’s agents for the purposes of the first three counts and not for the purpose of the fourth count. Because they were acting as Continental’s agents, they cannot be considered third parties and the claim must fall. The trial court acted appropriately in directing the verdict on this count.

3. Intentional Inñiction of Emotional Distress Counts

Regarding appellee’s claim that he is entitled to a retrial on his intentional infliction of emotional distress count against all appellants, we are of the opinion that in two of the three counts, the tort has not been clearly, concisely and adequately raised. Count 1 of No. 97761, directed at Klingler and Continental, alleges that the defendants intentionally and maliciously breached "an obligation and duty to fairly report” Mirabile’s performance and that they made "negligent, false and malicious statements,” and Count 2 reincorporated those allegations. It is a basic requirement of Maryland pleadings that "[sjeparate causes of action shall be contained in separately numbered counts.” Maryland Rule 340 c. Such a pasticcio of allegations falls woefully short of that requirement.

The remaining count by which appellee attempts to allege intentional infliction of emotional distress — Count 5 of No. 102985 — successfully does so, but only against Sheehan. Although Count 6 of that declaration, setting out identical allegations with respect to Continental, was eliminated by preliminary objection as duplicative of Counts 1 and 2 of No. 97761, Count 5 apparently was not. We must, therefore, determine whether a rational conclusion could have been drawn favorable to the appellant on the intentional infliction of emotional distress count, thus requiring its submission to the jury.

The newly fashioned tort of intentional infliction of emotional distress, first recognized in this State in Harris v. Jones, 35 Md. App. 556, aff'd, 281 Md. 560 (1977), requires these elements:

(1) intentional or reckless conduct;

(2) extreme and outrageous conduct;

(3) a causal connection between the wrongful conduct and the emotional distress; and

(4) emotional distress of a severe nature.

Harris v. Jones, 281 Md. at 566. We find it necessary to address only the second element, i.e., whether Sheehan’s conduct may reasonably be regarded as extreme and outrageous under the definition of the tort.

The Restatement (Second) of Torts § 46, Comment d (1965), states that

"liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous.’
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.”

It is true that conduct which is not otherwise extreme and outrageous may become so where the actor is aware that the individual to whom the conduct is directed is particularly sensitive to emotional distress, Harris v. Jones, 281 Md. at 568, and that a plaintiffs status as an employee may entitle him to a greater degree of protection from insult and outrage than if he were a mere stranger. Alcorn v. Anbro Engineering, Inc., 468 P.2d 216 (Cal. 1970), cited in Harris v. Jones, 281 Md. at 567.

Yet it is to be remembered by the courts when determining in the first instance whether a defendant’s conduct may reasonably be regarded as extreme and outrageous, that, in the words of Professor Calvert Magruder, "[n]o pressing social need requires that every abrasive outburst be converted into a tort; upon the contrary, it would be unfortunate if the law closed all the safety valves through which irascible tempers might legally blow off steam.” Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033 (1936), quoted with approval in Harris v. Jones, 281 Md. at 568. Rather, "major outrage is essential to the tort...,” § 46, Restatement, Comment f.

The facts here are not such as could lead a rational trier of fact to conclude that Sheehan’s conduct was extreme and outrageous under this test. The circumstances are not comparable to those in Alcorn v. Anbro, supra, wherein plaintiffs employer shouted at him in a rude, violent and insolent manner, "You Goddam 'niggers’ are not going to tell me about the rules. I don’t want any 'niggers’ working for me. I am getting rid of all the 'niggers’; go ... get your paycheck, you’re fired”; or in Agis v. Howard Johnson Co., 355 N.E.2d 315 (Mass. 1976), where plaintiff was summarily fired pursuant to the employer’s announced intention of firing his waitresses in alphabetical order until he could determine who was stealing from his restaurant. See also Boyle v. Wenk, 392 N.E.2d 1053 (Mass. 1979).

Various courts, on the other hand, have determined that the defendant’s conduct was not so outrageous as to support an action for the intentional infliction of emotional distress where a police officer told the plaintiff that he was as crazy as a bedbug and would be put back in an asylum and his children taken from him; and another officer puffed up his cheeks and bulged his eyes seven or eight times at the plaintiff, Pakos v. Clark, 453 P.2d 682 (1969); or where a supervisor reprimanded the plaintiff, a paraplegic, and told him that his job was created because of his handicap, Paris v. Division of State Compensation Ins. Fund, 517 P.2d 1353 (Colo. 1973).

Summarily stated, the evidence in Mirabile’s favor was that Sheehan moved him from desk to desk, yelled and screamed at him to move away from a particular desk, and may have tapped him on the nose and pushed him.

Applying the above enumerated principles of law and looking to settled cases for guidance, we are of the opinion that no rational trier of fact could conclude that Sheehan’s actions were more than rude and violent and amounted to extreme and outrageous conduct, particularly in light of what might have been equally rude provocation by Mirabile. The verdict as to this count was properly directed in appellants’ favor.

B. Evidentiary Rulings

Mirabile lastly raises two evidentiary issues: that the trial court erred in 1) refusing to permit the jury to grant damages for permanent injury and 2) admitting evidence of appellee’s receipt of disability and medical benefits in violation of the "collateral source” rule.

We note that Mirabile’s order for cross-appeal was from the final judgment "insofar as that judgment” in case No. 97761 directed verdicts in defendants’ favor as to Counts 1, 3, and 4 and was in favor of Sheehan and. Lewis as to Count 2 and "insofar as that judgment” in case No. 102985 directed verdicts in defendants’ favor as to Counts 1 and 2 and granted defendants’ motions raising preliminary objections as to Counts 5 and 6.

While we stated in Shipp v. Autoville Limited, 23 Md. App. 555 (1974), that an effective appeal is noted where the order directs a clerk to note an appeal, we did there note the caveat that "if there are two or more appealable judgments in a cause, an appellant designating one would be bound by the declaration.” 23 Md. App. at 560, n. 4. As enunciated by the Court of Appeals in Carter v. State, 286 Md. 649 (1979), limiting the breadth of the appeal in this manner opens for appellate review only the issues mentioned in the requested order. The propriety of the two rulings is not properly before us.

Judgment as to deceit award, reversed as to all defendants; judgment as to assault and battery award, reversed as to Continental Casualty Co., and affirmed as to William F. Sheehan; judgment as to all other counts entered on directed verdict, affirmed.

Costs to be divided equally between William F. Sheehan, appellant, and Russell R. Mirabile, appellee and cross-appellant.

      . While the experts agreed that there was psychological injury to Mirabile, there was disagreement as to whether the injury was permanent. It is interesting to note Mirabile’s description of the incidents as having "scared the skills” out of him.

      . Maryland Code (1957, 1979 Repl. Vol., 1980 Cum. Supp.), art. 101.

      . Although the issue was raised in a motion raising preliminary objection as to the counts in No. 102985, the issue was not raised as to the deceit or other charges of No. 97761.

      . Section 44 provides as follows:
      "If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child, children or dependents of the employee shall have the privilege whether to take under this article or have cause of action against such employer, as if this article had not been passed.”

      . The co-employee may be immune from suit where both the tortfeasor and the victim are acting in the course of their employment. See Nelson v. Harding, 480 P.2d 851 (Colo. 1980). Although such a result has been criticized for allowing a worker who commits an intentional tort to use the compensation law as a shield against liability, see Elliott v. Brown, 569 P.2d 1323 (Ala. 1977), each employee, as quid pro quo for having given up his own right to common law suits, can expect freedom from common law suits based on industrial accidents which are his fault. See Larson, supra, § 72.22 et seq. at 14-86 et seq.

      . Because Sheehan’s counsel do not raise the issue of whether punitive damages were appropriate at all, we shall not address the question of whether there was malice on the part of Sheehan such as will sustain a punitive damage award. See Carl M. Freeman Assoc., Inc. v. Murray, 18 Md. App. 419, 425-428 (1973).

      . Appellee, however, seems to think that it was. He notes an appeal from, inter alia, the "[grant of] appellants’ motion raising preliminary objection as to Counts V and VI.”

      . In fact, as noted above, it is not clear that the judge declared a directed verdict as to Count 1 of No. 97761 or Counts 1 and 2 of No. 102985, or that he granted defendants’ motion raising preliminary objection as to Count 5 of No. 102985.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    JOHN H. MEARS, JR. v. TOWN OF OXFORD
    (No. 1542,
    September Term, 1981.]

      Decided September 7, 1982.

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

      Warren K. Rich, with whom were Stephen P. Kling and Niles, Barton & Wilmer on the brief, for appellant.

      David R. Thompson and Thomas T. Alspach, with whom were Goldsborough, Franch & Collett on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, November 22, 1982.

   Moore, J.,

delivered the opinion of the Court.

This appeal tests the validity of an ordinance that established a Board of Port Wardens, pursuant to Art. 23A § 2 (23A), Md. Ann. Code (1981 Repl. Vol.), in the historic and picturesque town of Oxford, Maryland. The appellant urges error by the Circuit Court for Talbot County (Clark, J.) in:

1) failing to find that Ordinance 165, which regulates wharf construction in municipal waters, was an abuse of police power as applied to him;
2) holding that Section 3, Clause 3, unconstitutionally limited commercial marina expansion, but was severable from the rest of Ordinance 165; and
3) upholding the validity of Ordinance 165 on a motion for summary judgment.

If none of these arguments prevails, appellant contends that the ordinance still cannot properly be applied to his proposed marina expansion.

We find that Ordinance 165 is a valid exercise of legislative power by the municipal government of Oxford, that the offending clause 3 is severable, that summary judgment was proper, and that appellant’s proposed expansion is subject to the regulatory powers of the Board of Port Wardens. Accordingly, for the reasons stated herein, we shall affirm.

I

Appellant, John H. Mears, Jr., purchased the marina, called Mears Yacht Haven, in March 1978. The property is located in Town Creek at Oxford, Talbot County, and is within a "C-3 Maritime Commercial District.” The marina consisted of 80 spaces for mooring boats, known as "slips,” plus storage and parking areas. In April 1978, Mr. Mears applied to the U.S. Army Corps of Engineers for permission to build 88 additional slips. After some informal discussion with Oxford planning officials, Mr. Mears submitted a second scaled-down plan for 47 slips in October 1978. The next month, the Town Commissioners voted to oppose the revised application and sent notice of their disapproval to the Corps. Undaunted and still anxious to compromise, Mr. Mears tried again; he submitted another revised plan for 38 slips to the Corps. On April 25,1979, the Town Commissioners voted to oppose this revision. Sensing that the Commissioners would not favor any expansion, Mr. Mears amended his fourth application to 68 new slips, which was also opposed by the Commissioners.

On September 29, 1979, the Commissioners adopted an emergency moratorium on all marina expansion for 10 months. On October 14, 1979, the Commissioners adopted Ordinance 165, which tracks the language of Art. 23A § 2 (23A) (Enumeration of express powers — Port Wardens) except for clause 3; it prohibited any expansion of a commercial marina beyond a line formed by existing structures.

Mr. Mears challenged the constitutionality of this provision and Ordinance 165 in a petition for declaratory judgment, filed on March 26,1980. The town of Oxford demurred on the ground that Mr. Mears had not applied for any permit pursuant to the town’s zoning laws or Ordinance 165 and, thus, had not exhausted administrative remedies. The demurrer was overruled on June 19, 1980. Subsequently, both sides filed motions for summary judgment.

After two hearings, the court ruled on August 21, 1981, that clause 3 was "an unconstitutional exercise of the police power in that it is so vague as to violate [appellant’s] right to due process of law and is so arbitrary as to result in an invidious discrimination, all in violation of the Fourteenth Amendment to the United States Constitution.”

The court also held that clause 3 was severable, leaving Ordinance 165 intact and valid, and granted summary judgment to the town of Oxford on Counts I through VI and XI of the declaration. Only Counts I, relating to substantive due process, and II, relating to "special laws” are contested on appeal, as well as the issue of severability.

II

Neither party challenges the court’s ruling that Section 3, Clause 3, of Ordinance 165 is unconstitutional. From appellant’s point of view, however, that clause cannot be severed because it constitutes the "dominant aim of the whole statute,” Mayor of Baltimore v. A.S. Abell Co., 218 Md. 273, 290, 145 A.2d 111 (1958), in that the Commissioners would not have enacted the whole if they had known clause 3 was invalid. Board of Public Works v. Baltimore County, 288 Md. 678, 683, 421 A.2d 588 (1980). Thus, appellant urges, the whole intent of enacting Ordinance 165 was to prevent Mr. Mears from expanding his marina, not to set up a rational scheme for management of Town Creek.

The plain language of Ordinance 165 belies this factual argument. As Judge Clark pointed out in his opinion below, the Board of Port Wardens has power to "regulate the placement, erection, or construction of structures or other barriers within or on the waters of the municipality,” taking into account the effects this development may have on those waters. Through the ordinance the town would gain control over the uses of one of the town’s major assets. Thus, the board could exercise the regulatory powers delegated by the State to a municipal corporation through Art. 23A § 2 (23A).

Further, Ordinance 165 contains a severability clause, see n.8, Section 8, which creates a presumption that any portion of a statute can be invalidated without affecting the rest. Sanza v. Maryland Board of Censors, 245 Md. 319, 338, 226 A.2d 317 (1967). The purpose of such a clause is to manifest a legislative body’s intent that if any part of the enactment is declared invalid, the body would still have enacted the remainder. Casey Development Corp. v. Montgomery County, 212 Md. 138, 148, 129 A.2d 63 (1957). A severability clause should be given effect whenever the legislative intent can be carried out minus the invalid portion. Anne Arundel County v. Moushabek, 269 Md. 419, 430, 306 A.2d 517 (1973). The court must look to what would have been the intent of the legislative body if it had known that its enactment could be only partially effective. O.C. Taxpayers for Equal Rights, Inc. v. Mayor of Ocean City, 280 Md. 585, 600, 375 A.2d 541 (1977).

As the lower court observed, the fact that Mr. Mears was the only applicant for marina expansion when the ordinance was enacted indicates that his plans forcefully focused the town’s attention on the scope of potential development, with its attendant consequences, of Town Creek. Judge Clark stated:

"If the intent were solely to stop Mears, the enactment of an expansion limitation like that in Section 3, Clause 3, would have been sufficient. But the fact that the town enacted the whole ordinance and appointed a Board of Port Wardens clearly indicates a motive to give the local citizens a means to affect the uses of a local public asset.”

Even if Mr. Mears is the only riparian owner affected by the ordinance, that fact does not necessarily amount to a due process violation. In Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962), the Court rejected a due process challenge to a zoning ordinance that prohibited the further operation of a gravel pit in Hempstead, Long Island, thereby depriving the owner of the property’s most beneficial use. Even though the ordinance seemed aimed solely at the appellants who ran the only gravel pit operation in the town, the ordinance was upheld as a proper exercise of the police power. Id. at 596. The Court stated: "Indulging in the usual presumption of constitutionality, we find no indication that the prohibitory effect of [the ordinance] is sufficient to render it an unconstitutional taking....” Id. at 594. See Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138 (1980).

Appellant argues that since Section 3, Clause 3, was the only portion of Ordinance 165 not copied verbatim from Art. 23A § 2 (23A), the "unavoidable inference” is that the Town’s only purpose in creating the port wardens was to establish a mechanism to stop Mr. Mears’ expansion. Further, the Town had the right to create a Board of Port Wardens.for decades, but never did so until Mr. Mears came along. Thus, the Commissioners would not have enacted Ordinance 165 if they had known clause 3 was invalid because their "personal biases” and the absence of any supporting evidence that expansion would harm Town Creek belie any intent of harbor management, according to appellant.

However, an equally fair inference is that the Commissioners were trying to set up a "Maginot Line,” in Town Creek to prevent any channel-ward expansion and preserve the existing "open space” for the use of the public. See n.3, supra. Clause 3, although void for vagueness, is in harmony with the intent of the ordinance and does not negate "the dominant aim of the whole statute.” Abell, supra, 218 Md. at 290.

Ill

Absent the offending Clause 3, Ordinance 165 must still pass constitutional muster. Appellant argues that the ordinance is an improper exercise of police power because its enactment (1) was motivated by a plebiscite of protest, (2) was not a "rational action reasonably related to the advancement of the general welfare,” and (3) constituted impermissible and improper special legislation.

First, appellant fails to distinguish between comprehensive municipal legislation, which treats all property owners alike, and decisions that restrict or expand the property rights of specific individuals or the permitted uses of specific parcels of land. The distinction was delineated in Benner v. Tribbitt, 190 Md. 6, 20, 57 A.2d 346 (1948):

"On purely public or political questions regarding exercise of the police power, e.g., regulation or prohibition of liquor traffic or race-track betting or passage of a general building, traffic or zoning laws, legislators may follow the wishes of their constituents. Such action is not subject to judicial review. But in restricting individual rights by exercise of the police power neither a municipal corporation nor the state legislature itself can deprive an individual of property rights by a plebiscite of neighbors or for their benefit. ... there is a wide difference between exercise of the police power in accordance with a comprehensive zoning plan, which imposes mutual restrictions and confers mutual benefits on property owners, and arbitrary permission to A and prohibition to B to use their own property, at the pleasure of neighbors or at the whim of legislative or administrative agencies.” (Citations omitted.)

The phrase "plebiscite of neighbors” in the above quotation was explicated in Steuart Petroleum Co. v. Board of County-Commissioners, 276 Md. 435, 445, 347 A.2d 854 (1975):

"[A] 'plebiscite of the neighbors’ or 'of the neighborhood’ refers to instances where the action of an administrative body which effects a change in zoning and deprives an individual of a property right is predicated on the pleasure of the owners of nearby property rather than on a comprehensive plan, which imposes mutual restrictions and confers mutual benefits on all.” (Citations omitted.)

Without doubt, written and vocal opposition to Mr. Mears’ proposed expansion was widespread in the Town of Oxford. Such public sentiment cannot support the imposition of arbitrary restrictions on the property rights of individuals. Northwest Merchants Terminal, Inc. v. O’Rourke, 191 Md. 171, 60 A.2d 743 (1948); Benner, supra; Mayor of Rockville v. Cotler, 230 Md. 335, 187 A.2d 94 (1963). However, the "wishes of constituents” are a prime factor in enacting comprehensive general ordinances applicable to all property owners. Benner, supra, 190 Md. at 20. Certainly, Ordinance 165 is such a comprehensive scheme aimed at regulating all expansion in Town Creek. Therefore, the cases cited by appellant supporting his "impermissible plebiscite” theory are inapposite since all deal with arbitrary restrictions imposed upon an individual property owner in response to public clamor.

As appellee points out in his brief, appellant’s theory may have had legitimacy if he had applied to the port wardens for a permit and was turned down in response to public demand without other evidence of adverse impact. See Part IV, infra. But here, appellant cannot use the judicial authority outlawing specific arbitrary acts by governmental entities to dislodge a pervasive regulatory design for all marina expansion.

Second, appellant fails to distinguish between a municipality’s legislative enactments and its fact-finding determinations. When a municipal body adopts ordinances or promulgates regulations, it performs a legislative function. Ritchmount Partnership v. Supervisors of Elections, 283 Md. 48, 56, 388 A.2d 523 (1978). When a board or agency makes factual determinations, decides contested issues, or reviews applications, it performs a quasi-judicial function. Maryland Board of Registration v. Armacost, 286 Md. 353, 355, 407 A.2d 1148 (1979).

Upon this distinction rests the proper scope of appellate review. In reviewing the constitutionality of legislative acts, the critical question is whether the challenged legislation bears "a real and substantial relation to the public health, morals, safety, and welfare of the citizens.. ..” Bowie Inn, Inc. v. Bowie, 274 Md. 230, 236, 335 A.2d 679 (1975). Further, the ordinance is presumed constitutional; the party attacking it must show the absence of any substantial relation to the public benefit, Commission on Medical Disci pline v. Stillman, 291 Md. 390, 407, 435 A.2d 747 (1981), or to a legitimate governmental objective, Comprehensive Accounting Service Co. v. Board of Public Accountancy, 284 Md. 474, 397 A.2d 1019 (1979). The distinction has been consistently applied. Mayor of Baltimore v. Biermann, 187 Md. 514, 523, 50 A.2d 804 (1947); Department of Natural Resources v. Linchester Sand and Gravel Corp., 274 Md. 211, 224, 334 A.2d 514 (1975); Stillman, supra; and D’Anna v. Secretary of Personnel, 47 Md. App. 180, 186, 422 A.2d 50 (1980), cert. denied, 289 Md. 734 (1981).

The test of the validity of an ordinance as an exercise of police power is found in Potomac Sand and Gravel Co. v. Governor, 266 Md. 358, 293 A.2d 241 (1972), cert. denied, 409 U.S. 1040 (1972). A court must ascertain:

"(1) that the interests of the public generally, as distinguished from those of a particular class, require such interference; (2) that the means are reasonably necessary for the accomplishment of the purpose; and (3) that the means are not unduly oppressive upon individuals.” Id. at 373. (Citations omitted.)

Determining the reasonableness of the means used to accomplish the legitimate purpose may depend' on whether "there are any considerations relating to the public welfare by which it can be supported. . . .” Maryland Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103, 106, 311 A.2d 242 (1973). The ordinance will be found constitutional if any facts that would sustain its constitutionality may be reasonably conceived. Edgewood Nursing Home v. Maxwell, 282 Md. 422, 427, 384 A.2d 748 (1978).

In this case, that conception is not difficult — Town Crepk is one of Oxford’s major assets and attractions, a limited natural resource worthy of protection for the benefit of the general public. As Judge Clark stated at the hearing:

"[F]or the protection of the Creek this sort of legislation was necessary, not only because of what Mears was going to do, but because if Mears can do it, so can everybody else. And it was time to really bring a halt to unbridled expansion within Town Creek, or in the not-too-distant future you’d be able to walk across the creek without getting your feet wet, or almost do so.”

In summary, the record sustains the trial court’s conclusions that: protection of Town Creek was a legitimate exercise of the police power that would benefit the public health, safety and welfare; development of Town Creek had reached a point at which further "unbridled expansion” would be detrimental; regulation of construction and marina expansion in Town Creek was substantially related to protection of the creek; Ordinance 165 was a reasonable way of regulating construction; and the permit and license requirements for development was not unduly oppressive upon individuals.

Lastly, appellant fails to distinguish between "a special law for a special case,” Secretary of Personnel v. Bender, 44 Md. App. 714, 725, 411 A.2d 107 (1980), and "a law intended to serve a particular need, to meet some special evil, or to promote some public interest, for which the general law is inadequate,...,” Norris v. Mayor of Baltimore, 172 Md. 667, 683, 192 A. 531 (1937). Appellant asserts that Ordinance 165 violates Article III, Section 33 of the Maryland Constitution because it purports to regulate water quality, already covered under federal and state general laws, and it thwarts the expansion plans of the only marina that could expand substantially under the Oxford Zoning Ordinance. For the latter proposition, appellant relies principally on Beauchamp v. Somerset County Sanitary Commission, 256 Md. 541, 261 A.2d 461 (1970), which held that a local law exempting American Legion Post property from assessment by the county sanitary commission was invalid as a special law because its "practical effect” was to benefit one taxpayer only. Id. at 549.

In this case, Ordinance 165 applies on its face to any riparian owner who contemplates construction within municipal waters; the point is not whether these owners can or will expand but rather that all are covered should they attempt to do so. See Reyes v. Prince George’s County, 281 Md. 279, 380 A.2d 12 (1977). Thus, appellant’s reliance on Beauchamp, supra, is misplaced.

Also, there was no comprehensive town statute regulating construction in municipal waters prior to the enactment of Ordinance 165. The town’s zoning laws did not cover the water areas adequately. The remedy for this omission was provided by the Maryland General Assembly in Art. 23A § 2 (23A) to enable port towns to follow the example of Annapolis in preserving their unique and precious heritage. See Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 396 A.2d 1080 (1979).

IV

Even if Ordinance 165 is constitutional, appellant contends that it should not govern the proposed expansion of his marina, relying on Mayor of Baltimore v. Cohn, 204 Md. 523, 105 A.2d 482 (1954) for the premise that a valid ordinance’s application to a particular property may be found arbitrary and capricious. We agree that:

"A case may arise in which the application of the ordinance might be discriminatory, or arbitrary, unreasonable or capricious in a legal sense so far as applied to a particular factual situation, . ...”

Gino’s v. Mayor of Baltimore, 250 Md. 621, 638, 244 A.2d 218 (1968). However, in the present posture of this case, we have no application of the ordinance to Mr. Mears upon which the trial court could base an arbitrary and capricious finding.

In evaluating the effects of any proposed construction "on marine life, wildlife, conservation, water pollution, erosion, navigational hazards” and traffic congestion, the Board of Port Wardens will have to consider the positive evidence presented by the permit applicant, at least to the level of the "fairly debatable” standard of appeallate review. Thus, the regulatory process of Ordinance 165 will have a "practical effect,” not of stopping Mr. Mears’ marina expansion in Town Creek, but rather of controlling the amount and rate of development. Cf. Beauchamp, supra, 256 Md. at 549 (effect of legislation was to exempt only one American Legion post from sanitary assessment).

V

Finally, we consider appellant’s procedural argument that summary judgment for the Town of Oxford was not the proper vehicle in which to uphold the validity of Ordinance 165. We see no reason why not. Mr. Mears originally sought a declaratory judgment, then moved for summary judgment. In support, appellant argued below that "no facts are seriously in dispute ... which can be dispositive of this case ... I don’t think there’s any dispute of fact....” On appeal, he contends that "[c]onflicts of interest, biases and thinly disguised vendettas are factual determinations, material to the validity of the ordinance and the exercise of police power....” Appellant cannot have it both ways, arguing that he should not be granted summary judgment because there are no genuine disputes over material facts but that his opponent should not be granted summary judgment because there are genuine disputes over material facts. Salisbury Beauty Schools v. Board of Cosmetologists, 268 Md. 32, 45-6, 300 A.2d 367 (1973). Cited in Prince George’s Properties, Inc. v. Rogers, 275 Md. 582, 587, 341 A.2d 804 (1975).

Further, the Salisbury case establishes that the rational relationship between a statute and the public welfare may be found on the face of the statute alone. Salisbury, supra, 268 Md. at 56. The language of Ordinance 165 clearly indicates that its purpose is to protect a natural resource, and it is unnecessary to look beyond the wording of an ordinance "when the wording itself clearly establishes legislative intent.” Mayor of Baltimore v. Mano Swartz, Inc., 268 Md. 79, 86, 299 A.2d 828 (1973). Protection of a natural resource has been held a valid and proper objective of a legislative exercise of the police power. Potomac Sand and Gravel Co., supra, 266 Md. at 371. Since the wording plainly reflects an intent to achieve a legitimate goal of the police power, the court below correctly granted summary judgment to the Town of Oxford.

Judgment affirmed; appellant to pay the costs.

      . Annapolis, the capital of Maryland, has had a Board of Port Wardens since 1785, four years before the State Constitution was written. Originally, the wardens were to regulate wharf construction in the port-city. In 1970, the City amended its charter to allow the wardens to consider environmental effects in deciding whether to issue construction licenses. See Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 392, 396 A.2d 1080 (1979).

      . The U.S. Army Corps of Engineers issues a permit authorizing construction work in navigable waters, pursuant to the River and Harbor Act of 1899, § 10, 33 U.S.C. § 403 (1976). Among the stated conditions is that the permit does not infringe upon any federal, state, or local laws or regulations, "nor does it obviate the requirement to obtain State or local assent required by law for the activity authorized herein.”

      . The Commissioners’ opposition was based on the "channel-ward” expansion proposed by Mr. Mears, that is, his proposed piers would extend further toward the navigable channel delineated by the U.S. Army Corps of Engineers’ map than existing piers. Fletcher Hanks, elected commissioner in 1979, said in a deposition that he opposed any encroachment toward the channel from the present dockline because of potential navigational difficulties. Mr. Mears’ real problem, according to several opponents, was that silting had made many of his existing slips too shallow to accommodate larger sailboats.

      . The language of Section 3, Clause 3, sought to limit expansion to a hypothetical line, presumably across Shipyard Cove, drawn from the most channel-ward existing structure as reflected in charts by the U.S. Army Corps of Engineers. The imprecision of such a line proved the constitutional undoing of the clause, which stated:
      "3. In no case shall the Board of Port Wardens grant any permit or license construction in or of a commercial marina which would extend the area of such marina available for water based boat storage beyond the area within the lines formed by existing structures within the water of the municipality as reflected upon current U.S. Army Corps of Engineers’ charts.”

      . In his motion for summary judgment, Mr. Mears asserted that Ordinance 165 was invalid as an improper exercise of the police power and as an ultra vires act in excess of and contrary to delegated authority in addition to being void for vagueness. He also stated that the port wardens [in weighing adverse environmental impacts] were precluded from reconsidering the State’s water quality certification, and from making any determination about navigability contrary to the findings of the U.S. Corps of Engineers.

      . In his written decision, Judge Clark summarized the eleven counts in the declaration as follows:
      Count I claims that Ordinance No. 165 violates Mears’ rights to substantive due process under the Fourteenth Amendment because the ordinance was adopted solely to injure a single party and has no reasonable relation to the public health, safety or welfare.
      Count II states that the ordinance and its enabling legislation are invalid under the Maryland Constitution as special laws.
      Count III says that Oxford is pre-empted by the State from making any determination as to water quality.
      Counts IV, V, and VI assert that the U.S. Army Corps of Engineers has exclusive authority over matters of navigation and any attempt by the town of Oxford to regulate matters of navigation are void.
      Count VII argues that Section 3, Clause 3, of the ordinance is void due to vagueness because it refers to certain charts that do not exist.
      Count VIII states that in the same Clause 3, Oxford exceeded the authority granted by the State enabling legislation and [the clause is invalid as an ultra vires act.]

      Count IX asserts that Clause 3 violates the equal protection clause of the Fourteenth Amendment as it creates an arbitrary distinction between commercial and non-commercial marinas.
      In Count X Mears contends that Clause 3 denies him the procedural due process guaranteed by the Fourteenth Amendment because it does not provide for a hearing to test the limitations therein, thus creating an unreasonable irrebuttable presumption.
      Count XI asserts that the regulations promulgated pursuant to Ordinance No. 165 are invalid in that they attempt to extend the jurisdiction of the port wardens beyond the town waters, attempt to regulate the pre-empted matters of water quality and navigation, and for the reasons set forth in Counts IV through X.
      Counts VII and IX were decided in favor of Mr. Mears. The court did not consider the issue in Count VIII in view of its preceding findings. The court granted summary judgment to the town of Oxford on Counts I (by its own motion pursuant to Md. Rule 610(d)(1)) through VI and XI. Appellant abandoned Count X (procedural due process) in oral argument below.

      . In early 1979, one other application for expansion was pending but had been approved by the time the Commissioners adopted the 10-month moratorium in late September. According to the Commissioner Emory Balderson’s deposition, several other marinas in Oxford had applied for and/or been granted permission to expand in the two and a half years preceding the moratorium and ordinance. Mr. Balderson stated that the history of this expansion "had a lot to do with our decision” to impose the moratorium because "we were rapidly approaching [the limits of) moderate expansion.”

      . The ordinance, minus Section 3, Clause 3, reads as follows:
      "BE IT ENACTED BY THE COMMISSIONERS OF OXFORD, pursuant to Section 10 of the Charter of the Town of Oxford, and pursuant to Article 23A § 2 (23A), of the Annotated Code of Maryland, as follows:
      SECTION 1: There is hereby created the Board of Port Wardens for the Town of Oxford, which Board shall consist of three (3) members appointed by the Commissioners of Oxford, for terms of one (1) year each, provided however, that the initial terms of each member shall be one (1) year, two (2) years, and three (3) years, respectively, as designated by the Commission.
      SECTION 2: The Board of Port Wardens shall hold public meetings at least once every month.
      SECTION 3: The Board of Port Wardens shall have the following powers, duties, and responsibilities:
      1. To regulate the placement, erection, or construction of structures or other barriers within or on the waters of the municipality, including but not limited to the issuing of licenses to create or build wharves or piers and the issuing of permits for mooring piles, floating wharves, buoys, or anchors, taking into account the present and proposed uses, and the effect of present and proposed uses on marine life, wildlife, conservation, water pollution, erosion, navigational hazards, the effect of the proposed use on congestion within the waters, the effect on other riparian property owners, and the present and projected needs for any proposed commercial or industrial use.
      2. The port wardens shall have the power to regulate the materials and constructions for the aforesaid improvements and to make certain that any improvements in the waters within the municipality do not render the navigation too close and confined. This provision in no way intends to affect or conflict with any zoning power otherwise provided for.
      3. See n.4, supra.

      SECTION 4: No person may build any wharf or pier, or carry out any earth or other material for the purpose of building a wharf or pier, nor shall any person place or erect mooring piles, floating wharves, buoys, or anchors without a license or permit from the port wardens. If any person violates the provisions of this section, or if any person builds any wharf or pier a greater distance into the waters of the port, or in a different form, or of different materials than determined and allowed by the wardens, he is subject to a fine as hereinafter imposed.
      SECTION 5: The Board of Port Wardens may adopt such reasonable rules and regulations, including permit or license fees, as it deems necessary for the conduct of its business; provided, however, that all such rules, regulations, and fees shall be approved by the Commissioners of Oxford.
      SECTION 6: Violation of any provision of this Ordinance shall be a municipal infraction as described in Article 23A, § 3, Annotated Code of Maryland, and a fine of $100.00 shall be imposed for each conviction hereunder. Each day in violation shall be considered a separate offense and subject to separate citations. A fine of $200.00 shall be imposed for each repeat offense.
      SECTION 7: In all differences that arise between any aggrieved party and the port wardens concerning the discharge of the duties of the port wardens, an appeal may be taken to the Commissioners of Oxford.
      SECTION 8: AND BE IT FURTHER ENACTED, That if any provision of this Ordinance or the application thereof to any person or circumstance is held invalid for any reason, such invalidity shall not affect the other provisions or any other application of this Ordinance which can be given effect without the invalid provisions or application, and to this end, all the provisions of this Ordinance are hereby declared to be severable.
      SECTION 9: This Ordinance shall be effective upon its adoption by the Commissioners of Oxford.”
      It is settled beyond cavil that alleged wrongful motives or improper purposes are no basis for striking down an otherwise constitutional statute. United States v. O’Brien, 391 U.S. 367, 383-4 (1968); see Montgomery County Council v. Dist. Land Corp., 274 Md. 691, 337 A.2d 712 (1975).

       The Court of Appeals has recognized that protection of a natural resource is a valid and proper objective of legislation adopted pursuant to the police power. Potomac Sand & Gravel Co. v. Governor, 266 Md. 358, 371, 293 A.2d 241 (1972), cert. denied, 409 U.S. 1040 (1972). Further, "when improvements are made into the navigable waters by a riparian proprietor, the land utilized in their construction, which prior to completion belonged to the State, for all practical purposes becomes a part of his fast land.” Harbor Island Marina v. Bd. of County Comm’rs, 286 Md. 303, 322, 407 A.2d 738 (1979). Therefore, commercial marina expansion in effect removes from the public domain open space previously available to the public. Certainly, as.appellee notes, it is reasonable for local government to regulate such a "taking” of municipal waters.

      . Without clause 3, the ordinance no longer limits expansion only of commercial marinas. The Board of Port Wardens is required to evaluate any expansion plans,'commercial or otherwise, "taking into account... the effect of present and proposed uses on marine life, wildlife, conservation, water pollution, erosion, navigational hazards, ... congestion within the waters, ... riparian property owners, and ... present and projected needs for ... commercial or industrial use.” See n.8, supra.

      . Article III, § 33, Constitution of Maryland (1981 Repl. Vol.), reads in pertinent part:
      "And the General Assembly shall pass no special Law for any case, for which provision has been made, by an existing General Law. The General Assembly, as its first Session after the adoption of this Constitution, shall pass General Laws, providing for the cases enumerated in this section, which are not already adequately provided for, and for all other cases, where a General Law can be made applicable.”
      While the constitutional provision speaks to the power of the General Assembly, it logically applies to the legislative bodies of municipalities to which the General Assembly had delegated power. See Vermont Fed. Sav. & Loan Ass’n v. Wicomico County, 263 Md. 178, 182-3, 283 A.2d 384 (1971); Potomac Sand and Gravel Co. v. Governor, 266 Md. 358, 378-9, 293 A.2d 241 (1972), cert. denied, 409 U.S. 1040 (1972).

      . The State of Maryland has enacted a comprehensive program of water quality protection for waters within the state, including Town Creek, Md. Nat. Res. Code, § 8-1401 etseq. (1974); COMAR 10.50.01. Responsibility for that program is shared between two state agencies: the Department of Natural Resources and the Department of Health and Mental Hygiene. Id., § 8-1404 (a). Furthermore the state’s comprehensive program has qualified it for participation in the Natural Pollution Discharge Elimination System, 33 U.S.C. § 1342 (b), pursuant to which the United States Environmental Protection Agency has delegated federal authority to those state agencies.
      Under these authorities, the state has established water quality standards for each body of water in the state. COMAR 10.50.01.02 et seq.

      A marina or other comparable waterfront facility generally does not involve a direct discharge of wastewaters, which would require a state discharge permit. Nat. Res. § 8-1405; COMAR 10.50.01.08. However, whenever a facility requires a federal license and a potential impact on water resources is presented, the state must issue a "water quality certification” prior to any federal action. 33 U.S.C. § 1341. In the present case, the Corps of Engineers required such a certification from the state, which was in fact issued.

        See n.2., supra. See also Board of Appeals v. The Marina Apts., Inc., 272 Md. 691, 326 A.2d 734 (1974).

      . Article 23A § 2 (23A) (i), Md. Ann. Code (1981 Repl. Vol.) states that the provision establishing the Board of Port Wardens and delineating its powers is not intended to affect or conflict with any zoning power of a municipality. Thus, it seems clear that Art. 23A § 2 (23A) was meant to complement existing and future zoning laws.

      . Appellant argues that the public records of Oxford showing the personal biases of two commissioners support the "inescapable inference” that the enactment of Ordinance 165 was itself arbitrary and capricious, relying on the rationale of three out-of-state cases: City of Los Angeles v. Trujillo, 81 Cal.Rptr. 146 (Ct.App. 1969); McNamara v. Borough of Saddle River, 158 A.2d 722 (N.J.Super. 1960); Commercial Properties, Inc. v. Peternel, 211 A.2d 514 (Pa. 1965). Trujillo, supra, held that a court may inquire into the motives behind a legislative enactment where it shows on its face or in its results an improper purpose. 81 Cal. Rptr. at 149. No such impropriety is facially apparent in this case and we have no results of Ordinance 165’s application upon which to find any impropriety. McNamara, supra, is also distinguishable in that Ordinance 165 was not enacted in response to "vigorous personal opposition” to Mr. Mears’ expansion. 158 A.2d at 725. Commercial Properties, supra, is similarly distinguishable because the "sole purpose” of Ordinance 165 was not to prevent Mr. Mears from expanding at all but to regulate any expansion. 211 A.2d at 518.

      . At oral argument, counsel for Mr. Mears informed us in response to a question that he subsequently made application for a permit under Ordinance 165. This has been denied and an appeal is pending. In ruling below, the court noted that several state and federal agencies voiced no objections to Mr. Mears’ expansion plan; that the State Department of Natural Resources issued a water quality certificate in October 1979; and that the U.S. Army Corps of Engineers wrote a highly favorable report on Mr. Mears’ application, discounting the concerns expressed by the Town of Oxford and granting him permission to expand.

      . The three cases cited by the appellant in support of its summary judgment argument are inapposite to the proposition he asserts: that conflicts of interest, biases and vendettas are factual determinations, material to the validity of the ordinance. As pointed out in appellee’s brief, Lykins v. State, 288 Md. 71, 415 A.2d 1113 (1980), did not involve legislation, but, rather, allegations of prosecutorial misconduct stemming from the State’s Attorney’s previous representation of a criminal defendant in a matter related to the charges for which she was now being prosecuted. Beshore v. Town of Bel Air, 237 Md. 398, 206 A.2d 678 (1965), involved allegations of pecuniary conflicts of interest by a local legislator. Finally, Board of Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1962), involved a decision by a member of Montgomery County’s Board of Zoning Appeals that his prior activities and representation of one of the parties prevented him from hearing facts in a quasi-judicial capacity.


text:
    NELSON SPOTO et al. v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY et al.
    [No. 1265,
    September Term, 1981.]

      Decided September 8, 1982.

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

      James J. Bierbower for appellant Spoto. W. Barry Wraga for appellant Continental Casualty Company, with whom were William H. Clarke and Galiher, Clarke, Martell & Donnelly on the brief, for appellants.

      Warren D. Stephens, with whom were Kevin J. McCarthy and OMalley, Miles, Farrangton & McCarthy on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

The question presented here is whether the Circuit Court for Prince George’s County (Femia, J.) correctly granted summary judgment for the appellee-defendant in a personal injury suit on the ground that a federal six-month period of limitations applied, and not Maryland’s three-year statute. We find error and vacate the judgment.

I

Nelson Spoto, an architect, was injured on January 14, 1976, while working for an architectural firm on a Metro site in Prince George’s County. The employer’s insurer, Continental Casualty Company (CNA) paid him workers’ compensation benefits between February 1976 and December 1977.

On January 11, 1979, three days before the three-year statute of limitations expired, Mr. Spoto filed a negligence action against Washington Metropolitan Area Transit Authority (WMATA) and others. The suit represented the personal claims as well as the subrogated interest of CNA.

On the day of trial, the defendants moved for summary judgment contending that Spoto was barred by a six-month limitations period contained in the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. § 933 (b) (1976 ed.), which reads as follows:

"Acceptance of such [workers’] compensation under an award in a compensation order filed by the deputy commissioner or Board shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within six months after such award.” (Emphasis added.)

II

The motion of WMATA for summary judgment was made orally in open court, when the case was called for trial. Counsel for WMATA informed the court that "rather than go through lengthy introduction of exhibits” in support of the motion, he could establish his case "in two minutes through the plaintiff, Mr. Spoto.”

The only relevant facts adduced in Mr. Spoto’s very brief appearance on the witness stand were (a) that CNA paid him a total of "nine thousand some dollars,” beginning approximately one month after the accident and (b) that Mr. Spoto accepted the payments.

As we note from the simple, direct language of § 933 (b) quoted above, it was incumbent upon the defendants to show more than the payment and acceptance of workers’ compensation payments. Only acceptance of such compensation

— under an award

— in a compensation order

— filed by the Deputy Commissioner

or [Benefits Retirement] Board

triggers an assignment to the employer, unless the person entitled to compensation commences an action "within six months after such award, ” (Emphasis added.)

The record below is bereft of facts pertaining to an award. This was appellees’ burden. They failed to sustain it and were not entitled to summary judgment. The lower court erred in its conclusion that acceptance of compensation paid by CNA triggered an assignment and the operation of the short statute of limitations. The case of Rodriguez v. Compass Shipping Co., 451 U.S. 596, 101 S.Ct. 1945 (1981), upon which the defendants and the court relied, does not support such a conclusion; and it is at variance with the meaning of § 933 (b) as shown by the legislative history of the section as set out in Rodriguez.

In Rodriguez the Court assumed for the purposes of the decision that the plaintiff had "accepted compensation from his employer pursuant to an award in a compensation order.” Id. at 1948, n.3. Indeed, at n.16, id. at 1951, the House Report makes clear that there is a significant difference between "acceptance of compensation” and "acceptance of ... compensation under an award in compensation.” The Court noted that, prior to 1938, acceptance of compensation, without more, operated as an assignment. 44 Stat. 1424, 1440 (1927); but by an amendment in 1938 the employee was relieved of the risk of having a mere acceptance of compensation operate as an immediate assignment of his cause of action against a third party, 52 Stat. 1164, 1168. Id. The 1938 procedural change, the Court stated, id. at 1951, was "designed to protect the employee from the harsh consequences of an improvident election.”

We think it is clear that mere acceptance of compensation, absent an award, does not effect a statutory assignment of the injured party’s claim unless suit is filed in six months. Neither the undisputed facts nor the applicable law supported the grant of summary judgment in this case. See Theodore v. Moore McCormack Lines, Inc., 516 F.Supp. 25 (S.D.N.Y. 1981); Dunbar v. Retia Steamship Co., 484 F.Supp. 1308 (E.D. Pa. 1980).

Judgment vacated; case remanded for trial; appellees to pay the costs.

      . Mr. Spoto’s claim for compensation was brought pursuant to § 36-501, etseq., of the District of Columbia Code. By making such a claim, he became subject to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act which has been made applicable to the District of Columbia.

      . In 1959, § 933 (b) was amended to its present form, affording the employee a six-month period, after receiving a statutory compensation award, within which to sue the third party and prevent an assignment.

      . The court quotes extensively from the House Committee Report on the 1938 amendment concerning the purpose of the measure, i.e., to "remove possible cause of complaint” that mere acceptance of compensation effected an assignment to the employer. Rodriguez v. Compass Shipping Co., 451 U.S. 596, 101 S.Ct. 1945, 1951 (1981).