author: Powers, J.,

text:
    GARY LYNN WARD v. STATE OF MARYLAND
    [No. 1237,
    September Term, 1976.]

      Decided July 11, 1977.

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

      Richard D. Paugh, with whom was Thomas L. Beight on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Louis iS. Lear, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Code, Art. 27, § 737, enacted by Acts of 1975, ch. 260, gives a person charged with the commission of a crime the right, under specified circumstances, to file a petition requesting expungement of both the police records and the court records pertaining to the charge.

The circumstances, listed in § 737 (a), are that the petition may be filed if the person charged

(1) Is acquitted, or
(2) The charge is otherwise dismissed or quashed, or
(3) A judgment of probation without finding a verdict is entered, or
(4) A nolle prosequi is entered, or
(5) The proceeding is placed on the stet docket.

Subsection (c) requires a waiting period of three years after the judgment or order before the petition may be filed, except that there is no waiting period if the person is acquitted (1), or if the charge is otherwise dismissed or quashed (2).

Under subsection (d), unless the State’s Attorney files an objection, the court shall enter an order requiring the expungement.

If the State’s Attorney objects, subsection (e), the court shall conduct a hearing. If the person is entitled to expungement, the court shall order it, and if not, it shall deny the petition.

The statute seems to lodge no discretion in the court, but to mandate either granting or denying the relief, based upon statutorily defined entitlement, or the lack of it. Subsection (e) goes on to provide that if there was probation without finding a verdict (3), or a nolle prosequi (4), or placement on the stet docket (5), the person is not entitled to expungement if he has since been convicted of any crime (most vehicle and traffic laws or regulations excepted), or if he is then a defendant in a pending criminal proceeding.

Appellant, Gary Lynn Ward, was charged in five counts of an indictment returned in Montgomery County on 5 April 1973, with murder in the second degree, manslaughter, child abuse, assault and battery, and assault. On 21 June 1973 the State entered a nolle prosequi as to all charges. On 16 August 1976, after having waited more than three years, Ward filed a petition for expungement of the records. The State’s Attorney filed an objection, stating that on 4 November 1974 Ward was convicted of larceny under $100.

At a hearing in chambers on 22 October 1976 Judge Joseph M. Mathias denied Ward’s petition to expunge the records, because of the criminal conviction. Ward’s counsel, with leave of court, filed in the case a memorandum of the constitutional questions raised at the hearing. Ward took this appeal from the order denying the petition.

Before 1 July 1975 there was no general statutory authorization for expungement of arrest records, or records of criminal courts. A specific authorization in connection with certain drug abuse cases is found in Code, Art. 27, § 292. In Doe v. Comdr., Wheaton Police Dep't, 273 Md. 262, 329 A. 2d 35 (1974), the Court of Appeals held that a court of equity had subject matter jurisdiction to entertain a petition seeking expungement of arrest records in connection with a criminal charge which was terminated by entry of a nolle prosequi.

The opinion relied substantially upon the inherent power of equity to provide a remedy when necessary to preserve basic legal rights, where no other remedy exists. It said that the right of privacy is protected by the Constitution, and observed that there was then no available statutory remedy in Maryland.

In this appeal Ward both relies upon the statute, Art. 27, § 737, as the basis of his right to expungement, and at the same time asserts that the statute unconstitutionally denies him equal protection and due process. He asserts no right under inherent equity jurisdiction, and, of course, his petition attempts to invoke only the statutory power of the criminal court.

The questions raised, as appellant presents them, are:

1. Does the classification of a Nolle Prosequi contained in Article 27, Section 737 (e) of the Annotated Code of Maryland violate the Equal Protection Clause of the 14th Amendment of the United States Constitution as applied to the Appellant?
2. Is the classification of a Nolle Prosequi as opposed to an Acquittal contained in Article 27, Section 737 (e) of the Annotated Code of Maryland a discriminatory classification under the Equal Protection Clause of the United States Constitution and therefore unconstitutional?
3. Is the Appellant denied due process of law when the State enters a Nolle Prosequi as opposed to trying the case, thus denying the Appellant the possibility of obtaining an acquittal so as to be entitled to expungement immediately as opposed to the three year waiting period required under Article 27, Section 737 (c) of the Annotated Code of Maryland when a Nolle Prosequi is entered by the State?

Questions 1 and 2 seem to state the same issue in somewhat different words. In more simple words, the argument is that it is unfair and unreasonable to give the right of expungement to an acquitted defendant immediately, but to require a three year wait by one whose case ended in a nolle prosequi.

Question 3, in which appellant invokes the due process clause, is difficult to understand. Under it he argues that Art. 27, § 737 (e) (D — immediate expungement after acquittal — is unfair to him, because he could not oppose a nolle prosequi. To the extent that his question raises unfairness between the two, it is not different from the equal protection argument. To the extent that he questions the right of the State to enter a nolle prosequi, we decline to consider it, because it was not raised below. Maryland Rule 1085.

The equal protection argument — that there is no rational basis for distinguishing between acquitted defendants and nolle prossed defendants — has no merit.

Legislative classifications are not required to be perfect. They are constitutional if they have a rational basis. At the outset, they are presumed to be constitutional. The United States Supreme Court said in McGowan v. Maryland, 366 U. S. 420, 81 S. Ct. 1101, 6 L.Ed.2d 393 (1961) at 425-26:

“The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

In Adm’r, Motor Veh. Adm. v. Vogt, 267 Md. 660, 299 A. 2d 1 (1973), the Court of Appeals considered a claim that a statutory classification relating to licensing of scrap processors and wreckers of motor vehicles was arbitrary, and bore no reasonable relation to the legislation. The Court discussed the effect of the equal protection clause on State legislative classifications. It said, at 671-72:

“One of the leading cases decided by the Supreme Court on this issue is Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369 (1911), which this Court has cited with approval on more than one occasion. Referring to a contention similar to that advanced by appellees, the Court there said:
‘The rules by which this contention must be tested, as is shown by repeated decisions of this court, are these:
‘1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary.
‘2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality.
‘3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.
‘4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary, (citations omitted)’ 220 U. S. at 78-79 (all emphasis added).
While more than sixty years have passed since that decision, in the course of which many cases have been decided on the same issue, the principles enunciated there have lost none of their vitality.”

See also Matter of Trader, 272 Md. 364, 325 A. 2d 398 (1974) and Davidson v. Miller, 276 Md. 54, 344 A. 2d 422 (1975), both involving classifications on a territorial basis, but applying the same “rational basis” principle.

One charged with a crime who has been tried and found not guilty may not be charged with that crime again.

One charged with a crime but not tried, because the State (at least temporarily) has decided not to proceed, may be charged again and tried.

To state the difference is to see the difference. It is real, and it is pertinent. It is not artificial, nor is it irrelevant to the purpose of the statute. It does not discriminate on the basis of color, creed, sex, religion, race, residence, or social, economic, or educational status. It rests upon no scheme of invidious discrimination.

Appellant utterly fails to sustain the burden upon him of proving that the legislative classification does not rest on any reasonable basis. Prince George’s Co. v. McBride, 268 Md. 522, 302 A. 2d 620 (1973).

We decline to hold that Code, Art. 27, § 737, is unconstitutional as applied to the appellant. The hearing judge had no alternative but to deny appellant’s petition for expungement.

Order affirmed.

Appellant to pay costs.

      . The petition is filed in the court in which the proceeding was commenced, unless the case was transferred to another court, in which case it is filed in the court to which the proceeding was transferred.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    LARRY EDWARD LOGUE v. STATE OF MARYLAND
    [No. 1273,
    September Term, 1976.]

      Decided July 12, 1977.

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

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Alan E. D’Appolito, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Larry Edward Logue, appellant, was found guilty of felony housebreaking by a jury in the Circuit Court for Prince George’s County. The trial court imposed a sentence of three years consecutive to a sentence then being served by the appellant, and it is from this judgment that the instant appeal was noted by the appellant.

The appellant raises three issues to be determined:

1. Did the trial court err where it refused to grant a hearing de novo on a motion to suppress evidence which had been heard and denied in a previously aborted trial on the merits?
2. Did the trial judge at the original hearing on the motion to suppress err when he denied the motion?
3. Was the evidence sufficient to sustain appellant’s conviction of housebreaking?

We shall affirm.

1.

We never cease to be amazed at the eternal novelty of the law. The first issue submitted to us in this case is, so faf as we have been able to determine, a case of first impression. Prior to the beginning of trial, the appellant filed a motion to suppress certain evidence seized by the police in the course of their investigation. A two-day hearing was held before Judge James H. Taylor, and at the conclusion of the hearing the judge granted the motion as to a motorcycle seized from the side of the appellant’s house, but denied the motion as to goods seized within the house.. Several months later a second hearing was held before Judge Taylor in which the appellant again urged the court to grant his motion to suppress as to the goods seized in the house. After hearing further argument the judge again denied the motion.

Subsequently, the case was tried before a jury and another judge in the Circuit Court for Prince George’s County. The appellant was found guilty of housebreaking. A motion for a new trial was made by the appellant and after argument the trial judge granted the motion. The case then came on for trial before Judge James F. Couch, Jr. and a jury. Before the selection of a jury began, appellant’s counsel requested the court to grant a rehearing on the motion to suppress. Counsel conceded that there was no new evidence which he could offer which had not been heard and considered by Judge Taylor in the original hearing and rehearing on the motion to suppress. Judge Couch declined to grant the hearing because “two other members of the bench have heard the motion twice and declined to suppress.”

The appellant argues that the granting of a new trial “necessarily nullified all prior proceedings and required the trial judge at the second trial to go forward as if the case had not been tried before.” He cites as authority for this position dicta found in Hobbs v. State, 231 Md. 533, 535, 191 A. 2d 238, 239 (1963). There the Court of Appeals said, “On a trial de novo the court hears the case as if it were being tried for the first time, and considers the entire matters of verdict, judgment and sentence as if there had been no prior trial.” As additional authority the appellant cites 66 C.J.S., New Trial § 226, and 58 Am.Jur.2d, New Trial § 228. We have carefully reviewed the cases there cited and find none factually apposite.

The applicable Maryland Rule is 729 (g) (2) which states in pertinent part:

“If such motion [to suppress] or petition is denied prior to trial of the criminal case, the pre-trial ruling shall be binding at the trial unless the trial judge, in the exercise of his discretion grants a hearing de novo on the defendant’s renewal of his motion or objection.”

We have held that in the absence of an abuse of discretion the trial judge is entitled to rely on the pre-trial ruling of another judge as to motions which have been heard and decided prior to trial provided the ruling has been made by a court of competent jurisdiction. In McChan v. State, 9 Md. App. 317, 264 A. 2d 133 (1970), cert. denied, 258 Md. 729 (1970), this Court had before it a case in which a motion to suppress identification evidence had been made in a pending proceeding in the Criminal Court of Baltimore. That motion was heard and denied. Thereafter the case was removed to the Circuit Court for Anne Arundel County where counsel for the accused filed the same motion. The trial judge refused to grant a further hearing on the motion, and we stated that “We agree that the trial court was not obliged to hear and determine the motion to suppress the identification evidence which had already been fully heard and determined.” Id. at 322, 264 A. 2d at 137; see Walker v. State, 12 Md. App. 684, 280 A. 2d 260 (1971).

The appellant suggests that the magic of the words de novo somehow wipe out everything which has transpired before, and like the children’s games which require a player to return to “square one,” the parties must begin all over again without regard to what transpired prior to the beginning of the new trial. We do not agree. We believe that a trial de novo does require that the matters of verdict, judgment and sentence be treated as if there were no prior trial but that pre-trial proceedings are not required to be repeated unless it can be shown that some new evidence or circumstance would require the trial court to exercise its discretion and grant a further hearing on motions already heard and ruled upon. We find no abuse of the trial court’s discretion in refusing to rehear the motion to suppress in this case for a third time.

2.

The appellant next urges that his pre-trial motion to suppress the evidence seized in his home should have been granted. The evidence presented at the hearing was relatively simple. The State’s witnesses testified that a burglary of the home of one Joseph Fearson in Brandywine, Maryland, was reported on May 5, 1975. Police were dispatched to the scene and the victim informed them that he had discovered an intruder inside the house. He was described as a white male, approximately 25 years of age, with shoulder-length reddish brown hair and a beard, wearing a gray sweat shirt that zippered in front and brown pants. Mr. Fearson was shown a photographic array and identified the appellant as the man who had been surprised in his home.

The police officers then drove to the appellant’s home where they remained for approximately an hour waiting for the appellant to return. As they were about to leave the appellant’s “wife” and stepmother arrived. One of the officers advised the “wife” that they were there to arrest the appellant for a burglary which had just occurred nearby. The “wife" replied that the appellant was not at home, but that they could come in and look if they wished. Two of the officers entered the house and were escorted to the master bedroom by the “wife.” The officers saw on the bed a sweat shirt and pants matching the victim’s description of the clothes worn by the burglar. They seized the shirt and pants and found in the sweat shirt pocket a padlock afterward identified by Mr. Fearson as his property.

The appellant called his “wife” as a witness. She categorically denied having invited the police into the house. Her version of the events was that she returned home to find the police surrounding the house. Both the front and back doors were open although she had locked them both. She went to the telephone to call the appellant, and as she did so one of the police officers entered the house without her consent and went to the bedroom where he seized the pants and sweat shirt. The appellant also called his stepmother as a witness and she corroborated the wife’s version of the incident and stated that the “wife” specifically asked the police to stay out of the house. At the conclusion of the testimony Judge Taylor denied the motion to suppress.

There are two narrow issues presented — the first is that of the credibility of witnesses; the second is whether, under the totality of all the circumstances, the consent to search, if in fact it was given, was voluntary, or the product of duress or coercion, express or implied. Schneckloth v. Bustamonte, 412 U. S. 218, 93 S. Ct. 2041, 36 L.Ed.2d 854 (1973); Whitman v. State, 25 Md. App. 428, 336 A. 2d 515 (1975).

When, as in this case, a constitutionally protected right is involved, it is our duty to make an independent examination of the evidence in the record and to determine whether the trial court’s conclusion as to the factual dispute was made within the required constitutional framework. Wiebking, Holt & Wolf v. State, 19 Md. App. 226, 310 A. 2d 577 (1973); Ponds v. State, 25 Md. App. 162, 335 A. 2d 162 (1975). In doing so we allocate “an appropriate and substantial effect to [the trial court’s] resolutions of conflicts in evidence as to the occurrence or nonoccurrence of factual events and happenings.” Haynes v. Washington, 373 U. S. 503, 516, 83 S. Ct. 1336, 10 L.Ed.2d 513 (1963); Gardner v. State, 32 Md. App. 629, 632 n.1, 363 A. 2d 616 (1976); Whitman v. State, supra. We have carefully read and considered the testimony of the several witnesses produced by the State and defense on the issue of the alleged consent to the search and find no constitutional infirmity in the trial court’s conclusion that the police witnesses for the State were more credible than the witnesses for the defense.

We find no difficulty in reaching the conclusion that the consent to search was voluntary and without duress or coercion. It is interesting to note that at the hearings on the motion to suppress the defense raised no issue of coercion and offered no evidence of any alleged duress. The appellant elected to stand on the testimony of his witnesses that no permission to enter and search was given. In brief and argument the appellant indirectly suggests that the events occurred at a “chaotic scene” in the course of which the family’s pet monkey had escaped from the rear porch of the premises, and there were many police officers and police vehicles at the premises. “Chaotic,” however, is not to be equated with “coercive” in the absence of some showing that the police officers used the “chaotic” situation as a means of coercing their intrusion into the appellant’s home. Bumper v. North Carolina, 391 U. S. 543, 88 S. Ct. 1788, 20 L.Ed.2d 797 (1968); Anderson v. State, 237 Md. 45, 205 A. 2d 281 (1965); Whitman v. State, supra; Lopata v. State, 18 Md. App. 451, 307 A. 2d 721 (1973). We find no such evidence in our independent review of the record.

3.

The appellant’s third contention borders on the frivolous. He contends the evidence was insufficient to sustain his conviction for felony housebreaking. In support of this contention he points out several discrepancies in the testimony of witnesses. The weight of the evidence and the credibility of witnesses are matters for the triers of fact.

Judgment affirmed.

Costs to be paid by appellant.

      . The record in this appeal does not reflect the basis for the granting of a new trial, but we are advised by counsel that the trial judge determined that he had given an erroneous instruction as to the appellant’s right not to be compelled to testify under the Fifth Amendment to the United States Constitution.

      . Judge Couch was mistaken in his statement that two other judges had declined to suppress and was apparently confused because the original trial judge had ruled on another motion to suppress — that one dealing with a photographic identification. The record does make it clear, however, that Judge Taylor held two hearings on the motion to suppress and declined to suppress the evidence seized in appellant’s house on two occasions.

      . The “wife” was not married to the appellant but had lived with him for approximately four years and was the mother of his son.


author: Gilbert, C. J.,

text:
    CARROLL J. ANDRE et al. v. MONTGOMERY COUNTY PERSONNEL BOARD
    [No. 1295,
    September Term, 1976.]

      Decided July 12, 1977.

      The cause was argued before Gilbert, C. J., and Menchine and Melvin, JJ.

      Paul Plata, Jr., for appellants.

      Nathan J. Greenbaum, Assistant County Attorney, with whom were Richard S. McKemon, County Attorney, Richard E. Frederick, Deputy County Attorney and Martin J. Hutt, Assistant County Attorney, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

A merit system for officers and employees for Montgomery County was established pursuant to the county charter in 1948. Montgomery County Code, Ch. 33 sets out what is stylistically known as the “County Personnel Act.” That act or ordinance provides in pertinent part:

“ARTICLE II. PERSONNEL REGULATIONS GENERALLY.
Sec. 33-5. Definitions; applicability of article; employee categories.
(1) Merit system defined and general purpose. The general purpose of this chapter is to establish regulations not in conflict with the Charter of Montgomery County to implement a system of personnel administration that meets the social, economic and program needs of the people of Montgomery County based upon merit principles and facilitates the organizational and program objectives of the county government. These regulations provide for the appointment, advancement and retention of employees on the basis of merit and fitness to be ascertained in most cases by competitive examination without regard to sex, marital status, race, religion, national origin or political affiliation. Provision has been made in these regulations for appeal to the personnel board by any applicant or employee who believes that the intent of article IV of the Charter of Montgomery County or of these regulations has been violated.
Sec. 33-9. Applicants and applications.
* * *
(i) Employment policy and prohibition against discrimination. It is the employment policy of Montgomery County to provide for appointment, advancement and retention of applicants and employees on the basis of merit factors to be ascertained in most cases by competitive examination without regard to sex, marital status, race, religion, national origin or political affiliation. The discrimination in employment or discrimination in advancement of any person who is an applicant or promotional candidate for a merit system position because of sex, marital status, race, . religion, national origin or political affiliation is prohibited. Any applicant or promotional candidate for a county position who believes that the application filed for employment or promotion may have been processed in violation of the provisions of this section may. appeal to the chief administrative officer within fifteen days of receiving written notification of the decision on the application for employment or promotion. Such appeal must be accompanied by substantiating evidence. The chief administrative officer shall take appropriate and prompt action in rendering a decision on the appeal. The appellee shall be notified by the chief administrative officer of the decision and the chief administrative officer shall forward all information on the appeal to the county personnel board. Whenever an appellant does not concur in the action taken by the chief administrative officer, the appellant may appeal to the county personnel board within fifteen days of receipt of the notification of the chief administrative officer’s decision. Such appeal shall be accompanied by a statement of the reasons. In such cases, or on its own initiative, if it does not concur with the action taken by the chief administrative officer, the county personnel board shall conduct such further investigation, including a hearing, as it deems necessary to ascertain whether the provisions of the county’s employment policy against discrimination have been violated. The decision of the board shall be final and the chief administrative officer shall take all necessary actions to implement the board’s decision.”

An old and perhaps shop-worn cliche' reminds us that a chain is only as strong as its weakest link. When the weakest link is fashioned from a flimsy fabric the strength of the chain is virtually non-existent. Despite the high sounding language of the Personnel Act, and its apparent objectivity, a practice prevailed in the County’s Department of Recreation whereby at least two of its employees were denied the opportunity for advancement. The denial took the form of what seemed to be favoritism superimposed upon “cronyism.”

The case now before us arises from an order entered in the Circuit Court for Montgomery County (Frosh, J.) which affirmed action taken by the Montgomery County Personnel Board. The complaint had been brought before the Montgomery County Personnel Board (Board) by two employees of the Department of Recreation. Carroll J. Andre and Ciaron McDaniel, the employees and appellants, asserted that actions of the Department of Recreation (Department) violated the county merit system, Mont. Co. Code, Ch. 33, and thereby deprived them of advancement opportunities under the merit system.

Andre and McDaniel challenged the appointment process used in filling nine positions within the Department. McDaniel had applied for two positions — Recreation Program Coordinator (Sports) and Recreation Program Coordinator for Special Programs. Andre had applied for one — Recreation Program Coordinator- for Community Centers. After nine days of hearings, the Board made findings of fact which illustrate the extent to which the “merit system” was ignored by the Director of the Department. The Board stated:

“Both appellants are well-qualified, have satisfactorily performed their present duties and have demonstrated potential for professional growth and promotion.
The Qualifications Appraisal Boards which interviewed candidates for the nine positions were comprised solely of Department of Recreation management personnel, usually the Director and Deputy Director.
In a majority of the challenged appointments, the Director himself served as Chairman of the Qualifications Appraisal Board. Most of the appointees had either worked with him or were known to him prior to their appointments with Montgomery County.
Evaluation of applicants was based on subjective judgments and personal knowledge of the candidates.
In 1973, the Personnel Board became aware that the Personnel Office had not been adhering to closing date requirements on vacancy announcements. On September 21, 1973, the Personnel Board informed the Personnel Director that closing dates on employment opportunity announcements must be strictly adhered to as required by Section 33-9, Applicants and Applications, Subsection (c), Limited Application Acceptance Period, of the Personnel Regulations.
In each of the cited cases, appointments were made on the basis of ratings by the Qualifications Appraisal Board, without reference to the available eligible list in accordance with Section 33-10 (r), Use of Eligible Lists of the Personnel Regulations.
Several of the candidates were appointed at salaries higher than Step A without prior written approval of the Chief Administrative Officer as required by Section 33-13 (1), Within-Grade Appointments, of the Personnel Regulations. However, there is no evidence that any of these actions were disapproved and testimony indicated that oral approval had been given by the Chief Administrative Officer.”

The Board then proceeded to declare “specific findings” as to each of the nine positions that was filled under the guidance, if not instruction, of the Director, saying:

“1. Associate Director of Recreation Programs
Vacancy had been advertised on April 5, 1973, with a closing date of April 12, 1973 and was filled on July 30, 1973. Due to resignation of the incumbent in August 1973, the vacancy was readvertised on August 30, 1973, even though there was an eligible list containing four qualified candidates. Two additional names were added to the list on September 12 and 21, 1973 respectively, and one of these individuals was appointed. The candidate selected received a ‘Well-Qualified’ rating and was in the highest rated category. The Qualifications Appraisal Board consisted of the Director and Deputy Director. Neither appellant applied for this position.
2. Associate Director of Facilities and Finance
Vacancy was advertised on April 5, 1973, with a closing date of April 12, 1973. Testimony revealed that four individuals were interviewed and found qualified by the Qualifications Appraisal Board, but only one name was placed on the eligible list. That individual was appointed. Testimony revealed that this individual was a friend and former co-worker of the department head and did not apply for the position until June J), 1973. No records are available on the other applicants. The appellants did not apply for this position. It is evident that the Personnel Office failed to follow-up on the actions of the Qualifications Appraisal Board and was remiss in not placing the names of all qualified candidates on the eligible list as required by Section 33-10 (p), Eligible Lists of the Personnel Regulations.
3. Recreation Program Coordinator (Sports)
Vacancy was advertised on March 22, 1973, with a closing date of March 29, 1973. Four persons were placed on the eligible list. Mr. McDaniel was interviewed and rated ‘Qualified’ by the Qualifications Appraisal Board. Subsequently, he was found not qualified by the Personnel Office. Accordingly, Mr. McDaniel was asked by the Deputy Director of the Department of Recreation to withdraw his application, which he did. Testimony indicated he actually was qualified at the time of application. The highest rated applicant, who received an ‘Outstanding’ rating was appointed.
4. Recreation Facilities Supervisor
Vacancy was advertised on May 6,1974, with a closing date of May 17, 197U. Interviews were held on August 14 and 15, 1974 and five applicants were placed on the eligible list. The highest rated candidate received a ‘Well-Qualified’ rating and was placed on the eli gible list on August 15 while the other four candidates were not placed on the list until September 9. Prior to placing all candidates on the eligible list, the successful candidate was notified by the Director of the Department of Recreation that he was to be appointed effective September 16,1974. The record shows that the appointee submitted a resume in June 197k, which was followed by an application submitted on August 16, 197k- The appellants did not apply for this position. The Personnel Office was remiss in accepting the resume and subsequent application after the closing date of the announcement, which violated Section 33-9 (c), Limited Application Acceptance Period of the Personnel Regulations.
5. Recreation Program Coordinator (Arts)
Vacancy was advertised on March 22, 1973, with a closing date of March 29,1973. Only two persons were placed on the eligible list. The highest rated candidate, who received a rating of ‘Qualified Plus-Plus’, was selected for appointment. This candidate’s application had been submitted two weeks before the issuance of the announcement. The appellants did not apply for this position.
6. Recreation Program Coordinator (Community Centers)
Vacancy was advertised in June 1973; eight qualified applicants were placed on the eligible list on May 31, June 20 and June 21, 1973 respectively. Two applicants were rated ‘Well-Qualified’ and six were rated ‘Qualified’. Mr. Andre was among the eight qualified applicants, with a rating of ‘Qualified’. The position was never filled and the list was allowed to expire in December 1973. The position was readvertised on February 11, 1974, with a closing date of February 22, 197k. The candidate subsequently appointed submitted an application to the Department of Recreation on February 23, 197k, which was after the closing date and in violation of Section 33-9 (c), Limited Application Acceptance Period of the Personnel Regulations.
The application was not forwarded to the Personnel Office until March 11, 197k, the date of the appointment, which was after the interview had been conducted and the candidate selected. The appointee received an ‘Outstanding’ rating. The eligible list in March 197k contained only one name as none of the previous applicants had been recertified after the expiration date in December 1973.
There was no evidence that the eight qualified applicants on the original eligible list were aware that that particular eligible list had expired. When the position was reannounced, apparently none of the eight reapplied. Failure to notify them of this fact and to provide them an opportunity to reapply is a reflection on the ethics of both the Department of Recreation and the Personnel Office.
7. Recreation Program Coordinator (Roving Youth Leader)
The record shows that this position was created for a particular individual. Evidence of this fact is contained in a memorandum dated November 13, 1973 from Neil A. Ofsthun, Director, Department of Recreation to William H. Hussmann, Chief Administrative Officer. The vacancy was advertised on January 21,. 197k, with a closing date of January 25, 197k. Four names were placed on the eligible list although one of the individuals had not even applied for this position. There is a discrepancy between the eligible list furnished to the Personnel Board staff in early 1975 and the one presented at the hearing. Specifically, the list submitted at the hearing showed the same name with a rating of ‘Qualified’. The record shows that this individual was rated ‘Outstanding’ by the Qualifications Appraisal Board, but was later found to be ‘Not Qualified’ by the Personnel Office. On March 11, 197k, this applicant submitted a personal letter claiming additional experience acquired as an undergraduate student. The Personnel Office, without verification to substantiate this claim, revised the rating to ‘Qualified’and allowed the individual to be appointed effective March 11, 197k■ Establishment and use of this eligible list suggests an improper practice and abuse of the merit system. Neither appellant applied for this position.
8. Recreation Program Coordinator (Special Programs)
Vacancy was advertised on April 5, 1973, with a closing date of April 12, 1973. Mr. McDaniel was interviewed and rated ‘Qualified’ by the Qualifications Appraisal Board. However, his name does not appear on the eligible list in accordance with Section 33-10 (p) Eligible Lists of the Personnel Regulations. No clarification or evidence was offered to support his exclusion from the eligible list. The appointee, the only outside candidate, applied on April k, 1973 before the vacancy was announced. He was given the highest rating, ‘Well-Qualified Plus’. The handling of this case is further evidence of the improper and inefficient administration of the examination and eligibility certification process.
9. Program Supervisor (Aquatics)
Vacancy was advertised on April 11, 1973, with a closing date of April 18, 1973. Only one individual was placed on the eligible list. This individual applied on March 12, 1973, was interviewed and placed on the eligible list on April 3, 1973, eight days before the vacancy was announced. Testimony indicated one other person was interviewed, but there are no records to substantiate the testimony. The appellants did not apply for this position.” (Emphasis supplied).

Little, if anything, more need be said to show that the Director ignored, bent or twisted the personnel list to suit his own whim.

The Board, notwithstanding the violations of the merit system by the Director, concluded that while the appellants’ “promotional prospects were jeopardized” by the above enumerated nine appointments, “their rights as County employees under the Personnel Regulations were not violated by .. . [the director’s] acts.” The Board further opined that it could not “justify the remedies sought by the appellants.”

Aggrieved by the decision of the Board, the appellants journeyed to the circuit court. There they asked the court substantially to do the same thing that the Board had declined, namely to promote them to grade 24, retroactively from February 1974, or to promote them retroactively from February 1974 to the “first vacant Grade 24 ‘Coordinator’ position.. ..”

Judge Frosh did not see it in the same light as do the appellants. He affirmed the Board, stating:

“The case presents itself before this Court as analogous to the classic tort situation wherein a restaurant diner sups from the tainted soup, learns of its taint but suffers no damage to his health. While the soup was tainted, the diner has no damage (save for a bitter taste) upon which relief may be fashioned.
In the case at bar, the Department of Recreation and the Personnel Office have served tainted soup and for their misfeasance should be reprimanded and enjoined from future violation. However the Appellants, as with the diners, have suffered no damage because better qualified people were hired for the only positions for which they applied. The Personnel Board did not act illegally when it did all that it could do. It reprimanded the Departments for their general procedures, but found that these particular Appellants had not been harmed specifically. While the Personnel Board found the ‘prospects’ of the Appellants were jeopardized and not what they might have been had promotions been from within the Department, this Court is aware of no requirement that only ‘insiders’ be hired. The merit system offers an opportunity for County employees to be informed of the opening and allows for application, but not to the exclusion of non-County employees.”

Dissatisfied with Judge Frosh’s ruling, appellants now urge us to reverse the circuit court and thus the Board. Appellants assert:

“I. The action of the [court in affirming the] Personnel Board was arbitrary and unlawful because the conclusions it arrived at were contrary to the law, and the facts as adduced at the hearings. The Board, in its findings of fact, recognized damage to the appellants, yet still maintained that their rights as County employees were not violated.
II. The ... [Court’s] failure to grant relief was a denial of the appellants’ right to due process of law in that the Board found that the appellants do not have the promotional opportunities that they would have had but for the violative appointments within the Department of Recreation.”

I.

(a) Monetary relief

The only provision in Chapter 33 of the Montgomery County Code which specifies the authority of the Board to remedy those promotional actions which it finds inappropriate and in violation of the merit system is contained in § 33-25 (x). That section provides: “The county . personnel board may decide an appeal it has heard in any manner that it deems necessary, appropriate, and in the best interest of the county service.”

While it is true, as appellants point out, that § 33-22 (k) allows reinstatement without loss of pay once a suspended employee is exonerated, it does not follow, as appellants argue, that a comparable remedy may be applied, by implication, to the situation now before us.

The Board’s power to grant pecuniary relief in the event of suspension and subsequent reinstatement is specifically set forth in the Code. The § 33-22 (k) provision refers, however, only to those situations where pecuniary damages are easily ascertained. If an employee is wrongfully suspended without pay on June 21 but is reinstated on August 21, two months would have passed during which time the County, had it not acted wrongly in suspending the employee, would have paid the employee. The two month salary is readily determined.

In the case sub judice the requested monetary damages are conjectural. The appellants desired the Court (1) to award back pay, (2) for positions to which they might have been appointed. Thus, the appellants are asking the Court to infer their promotions because of the Department of Recreation’s violations of the merit system. Such an inference, however, is a non sequitur. For the position of Recreation Program Coordinator (Sports) there were four persons placed on the eligible list, while there were eight eligible persons for the job of Recreation Program Coordinator (Community Centers). The list for Recreation Program Coordinator (Special Programs) contained the names of four eligible persons. No court can say that the appellants or either of them would have been appointed to the position even had the proper merit selection method been followed. Just how we are supposed to determine that the appellants are to be appointed vis a vis the other eligible applicants totally eludes us.

The standard for review for agency action, as set forth in Snowden v. City of Baltimore, 224 Md. 443, 445, 168 A. 2d 390, 391 (1961) is:

“The Court will correct illegal actions and those which are arbitrary and unreasonable because they are not based on substantial evidence but it will not substitute its own independent examination of or its own judgment on the facts for those of the agency to which the carrying out of state policy has been delegated.”

See also Furnace Branch Co. v. Board of County Commissioners, 232 Md. 536, 194 A. 2d 640 (1963). Board of County Commissioners v. Oak Hill Farms, Inc. 232 Md. 274, 192 A. 2d 761 (1963); Bryant v. Department of Public Safety, 33 Md. App. 357, 365 A. 2d 764 (1976).

Applying the Snowden standard to the case at Bar, we are unable to say that the Board’s refusal to award damages was not based on substantial evidence. The potential for promotion is what was wronged, not a right to promotion. The appellants’ actual promotions are at best tenuous because, as we have seen, there were other applicants for the same positions, and those applicants also had their potential for appointment or promotion eradicated by the action of the Department.

(b) Rights of Appellants were Affected

To the extent that promotional and appointment procedures are set out in the County Code, employees and applicants alike, have the right to expect adherence to those procedures. The Board found that the appellants’ “promotional prospects were jeopardized by these appointments as they did not and do not now have the promotional opportunities they might have had. ... However, their rights as County employees under the Personnel Regulations were not violated by these acts.” The Board went on to state that it “cannot justify the remedies sought by the appellants.”

We think the Board erred in concluding that the appellants’ “rights” were not violated. On the contrary, their rights were either trod upon or ignored. It is not that the appellants’ rights were not affected that is controlling but rather that the injury in this case is without remedy. The relief sought from the Board, by the appellants, was not in the best interest of the County service. Patently the Board could not order the promotion of the appellants over the other persons who were on the eligible lists. It could not create a similar promotion for each person in the eligible list. The persons appointed to the vacancies were seemingly eligible therefor and, in any event, were not parties to the proceeding. We believe that the Board did everything that could reasonably be expected of it when it directed the Chief Administrative Officer to “develop adequate safeguards ... [and] a policy statement should be issued ... prescribing the disciplinary action ... for failure to adhere to and abide by the Personnel Regulations.” The Board action constitutes a remedy which is necessary, appropriate, and in the best interest of the County service. Mont. Co. Code § 33-25 (x).

II

Due Process

It is well established that “[t]he Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law.” Goss v. Lopez, 419 U. S. 565, 572, 95 S. Ct. 729, 735, 42 L.Ed.2d 725, 733 (1975). “[T]he range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, 408 U. S. 564, 570, 92 S. Ct. 2701, 2705, 33 L.Ed.2d 548, 556-57 (1972). As stated in Mr. Justice Powell’s concurrence in Arnett v. Kennedy, 416 U. S. 134, 164, 94 S. Ct. 1633, 1649, 40 L.Ed.2d 15, 39 (1974), “[t]he applicability of the constitutional guarantee of procedural due process depends in the first instance on the presence of a legitimate ‘property’ or ‘liberty’ interest within the meaning of the Fifth or Fourteenth Amendment.”

To determine whether Andre and McDaniel were denied their constitutional rights to due process of law, the Court must find either (1) that they had a property right to promotion with Montgomery County sufficient to warrant the protection of the 14th Amendment, or (2) that they had a property right to the County’s abiding by the merit system regulations.

The Court in Board of Regents v. Roth, supra, 408 U. S. at 577, 92 S. Ct. at 2709, 33 L.Ed.2d at 561, said that “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.” (Emphasis supplied).

With respect to the right to promotion and its accompanying back pay, Andre and McDaniel had “no more than an abstract need or desire for it.” The County Code procedure for promotion is merely procedure and not, as appellants would like, a guarantee of promotion. Koscherak v. Schmeller, 363 F. Supp. 932 (SDNY 1973), aff'd 415 U. S. 943, 94 S. Ct. 1462, 39 L.Ed.2d 560 (1974) and Cassidy v. Municipal Civil Service Commission of New Rochelle, 375 N.Y.S.2d 300 (1975).

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents v. Roth, supra, 408 U. S. at 577, 92 S. Ct. at 2709, 33 L.Ed.2d at 561.

Thus, to the extent that the Montgomery County Code sets forth procedure for promotion, the appellants are entitled to its fair and accurate application. That, they hopefully will have in the future.

As observed in Civil Service Commission of Denver v. District Court, 527 P. 2d 531, 533-34 (Colo. 1974), “[d]ue process is not selective. Each and every person on the ... promotion list had rights worthy of protection, whether in the majority or the minority,” including those persons promoted. The point in the Civil Service Commission of Denver case is that the existing property interests extended beyond the particular parties to the case. Were that Court to have remedied the parties’ situation, other people's rights to due process would have been infringed upon, including those who obtained the positions.

The action of the Montgomery County Personnel Board is apposite to the Denver case. After affording appellants a full hearing, the Board provided a prospective remedy. If the Board had done otherwise, other persons’ rights would have been adversely affected. Clearly, the most the Board could have done, if it were to “implement a system of personnel administration that meets the social, economic and program needs of the people of Montgomery County based upon merit principles . . .,” was to terminate the practices of the Department of Recreation. This it did. Appellants can expect no more.

We think Judge Frosh did not err in refusing to reverse the Board.

Ordinarily the Court assesses costs against the losing party. Here we shall make an exception. Md. Rule 1082 a. We believe the County’s neglect, in supervising its personnel so as to avoid the type of inadvisable hiring practices utilized in this case, requires that it shoulder the costs.

Order affirmed.

Costs to be paid by the appellee, Montgomery County.

      . We make clear that we are not to be construed as holding that the persons who were selected were unqualified for the positions. Indeed, we express no opinion thereon. We do, however, make manifest that the merit systems were not followed.

      . The Board decided, “that the Department of Recreation and the Personnel Office acted with complete disregard for established merit system procedures with regard to the processing of applications, recruitment, selection, establishment of eligible lists, and certification therefrom. The Board also finds record keeping was careless and inefficient. Further the Board believes the decision of a department head to hire people who had previously worked with him in another jurisdiction and offer them salaries far in excess of the County’s entrance step and their previous earnings is a suspect practice and one that should not be permitted under a merit system. We also believe the selection methods used in these cases failed to demonstrate that those appointed were indeed the best qualified. We believe it is imperative that the Chief Administrative Officer, pursuant to his responsibility in Article IV, Section 402 of the Charter of Montgomery County, Maryland, develop adequate safeguards to assure proper administration of the merit system. Further, a policy statement should be issued to all management and supervisory employees prescribing the disciplinary action to be taken against them for failure to adhere to and abide by the Personnel Regulations.
      With respect to the appellants’ claim, we find' that their promotional prospects were jeopardized by these appointments as they did not and do not now have the promotional opportunities they might have had, had promotions been made from within the Department. However, their rights as County employees under the Personnel Regulations were not violated by these acts. In view of the findings, the Board cannot justify the remedies sought by the appellants. Accordingly, their requests are denied.”

      3. Montgomery County Code Ch. 33, § 33-17 (d) does, however, permit the Chief Administrative Officer of the County to determine when competitive examinations are either impractical or not in the best interest of the county. A non-competitive qualifying promotional exam then may be given, after approval by the Board, to determine if the “promotional candidate is qualified to fill an in-service vacancy.”

      . Section 33-22 (k) also grants the Board power to award, in its discretion, back pay to an employee who is suspended for disciplinary reasons.


text:
    COLLECTION AND INVESTIGATION BUREAU OF MARYLAND, INC. v. GEORGE W. LINSLEY ET AL.
    [No. 1326,
    September Term, 1976.]

      Decided July 12, 1977.

    The cause was argued before Gilbert, C. J., and Davidson and Melvin, JJ.

      Eugene A. Friedman for appellant.

      Stephen E. Harris, with whom were Harris & Levine, P.A. on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

The English Parliament, enacted, during the reign of King Charles II, legislation entitled, “An Act for Prevention of Frauds and Perjuries.” That law, quickly became known by the stylistic name, “The Statute of Frauds.” In this, the tricentennial year of the Statute, an appellate court is called upon, for what appears to be the first time in the legal history of Maryland, to decide what is meant by the phrase “Space of one Year” as it appears in both the original and the present act.

By § IV of the Act it was provided in pertinent part:

“That from and after the said four and twentieth day of June, no Action shall be brought ... (5) .. . upon any Agreement that is not to be performed within the Space of one Year from the Making thereof; (6) unless the Agreement upon which such Action shall be brought, or some Memorandum or Note thereof shall be in Writing, and signed by the Party to be charged therewith, or some other Person thereunto by him lawfully authorized.”

When the proprietary colony of Maryland, along with other English Colonies, declared its independence on July 4, 1776, the common law of England and English statutes then existent were carried over into what is now the sovereign State of Maryland.

Other provisions of § IV of the Statute have been lifted from that act and are now codified in various articles of the Maryland Code annotated, or as in the case of suits for breach of promise barred as a cause of action, unless the plaintiff is pregnant.

The fifth proviso of § IV of 29 Car. 2, Cap. 3, is now set out as Md. Ann. Code art. 39C § 1 (3) in almost the identical wording of the 1676 statute. That section provides:

“No action may be brought:
(3) Upon any agreement that is not to be performed within the space of one year from the making thereof;
Unless the contract or agreement upon which the action is brought, or some memorandum or note of it, is in writing and signed by the party to be charged, or some other person lawfully authorized by him.”

The instant appeal asks specifically whether an oral contract of employment as a Sales Representative for a period of one (1) year, conditioned upon a promise that on termination of employment the promisor would not compete in the same capacity in a similar business for a period of two (2) years violated the provision of Md. Ann. Code art. 39C § K3).

The factual background from which this litigation arose is uncomplicated. George W. Linsley, one of the appellees, was employed by Collection and Investigation Bureau of Maryland, Inc., the appellant, in December, 1975 as a Sales Representative. According to appellant’s Bill of Complaint filed in the Circuit Court for Baltimore County, the appellant is engaged in the business of “representing hospitals, physicians, dentists, other medical professionals, medical laboratories, other providers of medical care and commercial organizations in the collection of their outstanding accounts.” Obviously desirous of protecting its investment and safeguarding its list of customers from the prying eyes of competitors it exacted from Linsley an oral agreement. The agreement was, as we have said, that Linsley was employed for one (1) year and that upon termination of his employment he would not “for a period of two (2) years immediately following the termination of employment,.. . either directly or indirectly engage in a business or become employed by a company in the collection agency field that competes with . . . [appellant].” The employment could be ended by either the employer, appellant, or the employee, Linsley, “at anytime for any reason . . . with or without notice.”

Linsley tendered his resignation to the appellant on May 3, 1976, effective that same date and promptly became a Sales Representative of Liberty Collections, Inc., (Liberty I another appellee, and a competitor of appellant.

On May 27, 1976, slightly over three (3) weeks after Linsley ended his employment with appellant and went to work for Liberty, appellant filed a bill of complaint in the circuit court against Linsley, Liberty and the third appellee, Larry Asner, who is described in the bill as “the President and one of the principals who controls and manages the business of Liberty. . . .” Appellant sought to enjoin Linsley’s employment with a competitor, Asner’s and Liberty’s employment of Linsley, and “damages for the losses sustained as well as attorney’s fees and costs.” A “Show Cause Order” was issued, and it together with the bill and process was served on the appellees. Within the time specified in the “Show Cause Order”, the appellees filed demurrers to the bill. Liberty and Asner, in a joint demurrer asserted that the agreement upon which the action was brought was violative of “the Statute of Frauds”, Md. Ann. Code art. 39C § 1 (3 ). Linsley demurred for the same reason.

Judge Walter A. Haile, after reviewing the authorities, sustained the demurrers without leave to amend.

Appellant promptly noted an appeal to this Court. Here, appellant claims that “the oral covenant not to compete for two years upon termination of employment ancillary to a one year oral personal service agreement is not within the Statute of Frauds.”

The general rule is that a negative contract for personal forbearance imposes only a personal liability on the promisor and is fully performed by his refraining from doing the act during his lifetime. When the promise is for an indefinite period such as for the life of the promisor, it is not within the ambit of the Statute of Frauds because, life being itself indefinite and uncertain, the promisor may die within the space of one year. So too, with promises based upon contingencies which may become actualities within a one year time frame. See Nickell v. Johnson, 162 Ky. 520, 172 S. W. 938 (1915); Sauser v. Kearney, 147 Iowa 335, 126 N. W. 322 (1910); Hall v. Soloman, 61 Conn. 476, 23 A. 876 (1892); Doyle v. Dixon, 97 Mass. 208, 93 Am. Dec. 80 (1867). Under such circumstances the mere fact of forbearance coupled with the promisor’s death during the year, “. . . constitutes a full performance of the contract, and any stipulations in the contract looking beyond the year depend entirely on the contingency of the promisor’s life.” 72 Am. Jur. 2d Statute of Frauds § 30.

Brantly on Contracts § 59 (2d Ed. 1912) states that, “(b) The statute does not apply if the contract can by any possibility be completed within a year, although the parties may have intended that its operation should extend through a much longer period and in fact it does so extend.” (Footnote omitted). See also Home News v. Goodman, 182 Md. 585, 35 A. 2d 442 (1944); Neal v. Parker, 98 Md. 254, 57 A. 213 (1904); Cole v. Singerly, 60 Md. 348 (1883); Ellicott v. Peterson, 4 Md. 476 (1853).

Brantly goes on to declare, “(c) The statute does not apply if the death of one party within the year would leave the contract fully performed and its purpose achieved. Therefore an agreement not to engage in a certain business for five years is not within this clause, because the death of the promisor within a year would leave the contract fully carried out.” (Footnote omitted). To the same effect see Doyle v. Dixon, supra.

The Brantly - Doyle view is not in keeping with the majority of jurisdictions nor with either Professor Williston’s, “A Treatise on the Law of Contracts, or Professor Corbin’s, “A Comprehensive Treatise on the Rules of Contract Law”.

3 Williston on Contracts § 497 (3rd Ed. 1960) is 'critical of the Brantly-Doyle non-application of the statute. Williston makes clear that the fact that the promisor might expire within the space of a year is not a fulfillment or completion of the contract but rather a determination that the contract would be performed since the promisor, after death, could not break the negative promise. In short, the promisee would know that the promisor, being dead, could not, irrespective of his lifetime intent, so act as to defeat the contract. Nevertheless, the contract would not be fully performed but would, by virtue of the death of the promisor, be terminated.

Professor Corbin puts it in a slightly different way. He suggests that the test to be applied to conditional promises, such as in the case subjudice, is: “If the promisor should die within a year, would the promised performance be wholly completed in accordance with the terms of the agreement, or would the legal duty of the promisor be terminated and the promised performance at the same time remain uncompleted?”

Appellant argues that it is illogical for courts to hold that an oral contract for life is without the statute of frauds and thus enforceable and at the same time to insist that an oral contract for thirteen months violates the statute and is unenforceable. Admittedly there is a certain superficial appeal in such a contention. It is superficial because it overlooks the working of the statute and its primary purpose. The words of the act provide that it is applicable to oral contracts that cannot be performed within one year. Its purpose was to prevent fraud upon a party by a subsequent disavowal or breaking of the faith symbolized by the hand shake. We surmise that the Parliament of 1676 believed that important agreements, those of longer than a one (1) year duration should be put in writing so as to remove, insofar as possible, the opportunity to avoid performance by denying the existence of the contract. In any event it seems to us to be obvious that a contract for life is most indefinite. Life itself does not enjoy the certainty of its counterpart, death. While actuarial tables indicate the normal life expectancy they are no more than averages. Death may come at any time to any one either by accident, self infliction or so called natural causes. Death is no respecter of averages. Because of the constant possibility of death, the courts, not possessed of divine wisdom, are unable to declare that a promisor to a contract will live for any definite period of time. For that reason oral contracts for life, being as we have said, indefinite, are not within the proscription of the statute of frauds.

On the other hand, an oral contract for a thirteen month term is definite and certain. Thirteen months cannot lapse in a one year period. So that a thirteen month contract, or as in the case before us, a two year contract is unmistakably within the scope of the statute for the reason that it cannot be performed within the space of one year.

In order to reach the result that appellant urges upon us, we would have to construe the word “performed” as used in the act to mean “terminated” or “rescinded” or “cancelled” or some other word short of performance but constituting an excusal of performance. To achieve that result we would not only have to rewrite the dictionary meaning of the word “performed” we would also have to rewrite the statute. We shall do neither.

Instead, we align ourselves with the view of the majority of our sister States that there is a distinction between termination and performance. When we apply the Corbin test to the factual situation in the instant case, it is at once apparent that had Linsley died within one year after resigning from the appellant’s employment the covenant not to compete would have been terminated as a result of that death, but the contract would not have been completed, i.e. fully performed, because one can not refrain from engaging in a competitive business for two years within one year.

Whatever period of forbearance remained would still be there. Performance would, of course, be completed by the subsequent passage of time, but the promisee, aware that death seals the lips as well as stays the heart, in the interim, could rest absolutely assured that the promisor’s faithful performance was guaranteed.

We think the covenant not to compete in the case now before us violates Md. Ann. Code art. 39C, § 1 (3), and that Judge Haile properly sustained the demurrers of the appellees.

Order sustaining demurrers icithout leave to amend affirmed.

Costs to be paid by appellant.

      . Charles II reigned from May 29,1660 to February 6,1688.

      . The citation to the statute is 29 Car. 2. Cap. 3. The abbreviation “Car.” is from the Latin for Charles, “Caroli.”

      . The act was passed in 1676 and became effective June 24, 1677. The name “Statute of Frauds” appears to be a misnomer, although Bacon, V.C. observed in Morgan v. Worthington 38 L. T. 443, 445 (1878), “That unfortunate statute, the misguided application of which has been the cause of so many frauds.”

      . Constitution of Maryland, Declaration of Rights, Article 5.

      . Md. Cts. & Jud. Proc. Code Ann. § 5-301 (a).

      . The bill recites that Linsley “failed to return all the client lists, directories and prospective client cards . . . [belonging to the appellant] and is soliciting the present and prospective clients of . .. [appellant] as well as disclosing confidential information . . . [about appellant] to his employer [Liberty].”

      . The demurrer of Liberty and Asner recited the additional grounds that no cause of action was set-out against Liberty and Asner. Inasmuch as the case turned, in the trial court, on the Statute of Frauds that issue was not reached.

      . Massion v. Mt. Sinai Cong., 40 Wyo. 297, 276 P. 930 (1929); Collas v. Brown, 211 Ala. 443, 100 So. 769 (1924); Shapiro v. Balaban, 205 N.Y.S. 208, 210 App. Div. 47 (1924); Kindervater v. Till, 155 Wis. 585, 145 N. W. 214 (1914); McGirr v. Campbell, 75 N.Y.S. 571, 71 App. Div. 83 (1902); Higgins v. Gager, 65 Ark. 604, 47 S. W. 848 (1898); Lee’s Adm’r. v. Hill, 87 Va. 497, 12 S. E. 1052 (1891); Haynes v. Mason, 30 Ill. App. 85 (1889); Mallett v. Lewis, 61 Miss. 105 (1883); Gottschalk v. Witter, 25 Oh. St. 76 (1874); Day v. N.Y. Cent. R.R. Co., 51 N. Y. 583 (1873); William Butcher Steel Works v. Atkinson, 68 Ill. 421, 18 Am. Rep. 560 (1873); Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318 (1871); Self v. Cordell, 45 Mo. 345 (1869). Accord; Restatement of Contracts, § 198 Illustration 4 (1932); Wm. L. Clark, Handbook of the Law of Contracts § 44 (4th Ed. 1931).

      . See n. 8 supra


author: Thompson, J.,

text:
    ROBERTA Z. RATRIE v. HARRY RATRIE, JR.
    [No. 1348,
    September Term, 1976.]

      Decided July 12, 1977.

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

      Z. Townsend Parks, Jr., with whom were Wright & Parks on the brief, for appellant.

      Francis N. Iglehart, with whom were Hessian & Iglehart on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This appeal concerns the meaning of the words, “annual earned income” as used in a separation agreement between the parties to determine the amount of alimony to be paid by the husband to the wife.

Both parties to these proceedings have accepted the statement of facts as stated by the trial judge, presiding in the Circuit Court of Baltimore City, with certain additions. We shall do likewise:

“Paragraph 4 of said [separation] agreement reads as follows:
‘4. The payments provided for in the first paragraph of this agreement are based on the Husband’s gross earnings for the year 1965 in the amount of Sixteen Thousand Five Hundred ($16,500.00) Dollars, as reflected in his income tax return. The Husband convenants and agrees that if there is any increase in his annual earned income above the aforesaid $16,500.00, he will pay unto the Wife as additional alimony thirty (30%) percent of any additional earned income. The aforesaid payment of 30% of any additional earned income shall begin on May 1, 1968, and shall be paid semi-monthly thereafter together with the payments established by this agreement.
‘To determine the amount of the semi-monthly increase, for example, there is subtracted the agreed base figure of $16,500.00 from the earned income for the year 1967, and then taking 30% of any excess over the base figure of $16,500.00 and dividing this figure by 24, the result shall be added to the regular semi-monthly payment, effective May 1,1968.
‘The Husband shall furnish the Wife annually, no later than April 20, verification of his earnings for the preceding year by supplying her with a copy of his Federal income tax return for the preceding year.
‘The provisions made in this agreement for alimony and support of the Wife shall be unaffected by any employment which the Wife may hereafter obtain and shall be paid to her irrespective of her earnings.’
“A subsequent Decree was entered on March 6, 1975, as a result of an open court hearing on exceptions to the Master’s report which was previously filed. In that Decree, the Court stated, ‘The Court * * * determined that the language of said agreement in paragraph 4,’ in the December 1, 1966, agreement between the parties, ‘i.e., “annual earned income, ” includes all earnings of the Defendant whether from salary, bonuses, trustees’ commissions, directors’ fees, etc., and are to be included as earned income in the calculations of alimony payments due under said agreement, but alimony does not include unearned income such as interest, dividends, etc.’ [See Exhibit No. 1]
“On September 28, 1976, the Petitioner, Roberta Z. Ratrie, filed a subsequent petition for citation for contempt, or in the alternative, for the entry of a decree in personam. The decision of this Court as to the validity of the petition before it again rests on the interpretation of paragraph 4 of the agreement of December 1,1966.
“The facts submitted to the Court are not in dispute. On or about April 17, 1975, Mr. Ratrie acquired the Russell L. Elliott Incorporation, a small, non-union paving and construction company. Prior to this date, Mr. Ratrie was President of Ratrie, Robbins & Schweizer, Inc., a union paving and construction company. Fifty percent of the corporate stock was held by him, and fifty percent was held by Mr. Robbins. Mr. Ratrie further testified that his reasons for the acquisition of the Russell L. Elliott Corporation was to enable him to bid either on union or non-union contracts. He further testified that the acquisition of the company was in hopes of increasing his earned income and not in anticipation of acquiring a tax shelter or a subsequent tax loss.
“The Elliott Corporation was operated as a Subchapter S which is a valid, legal business entity, the simplistic definition being a corporate structure which is treated like a partnership. It is true that although a Subchapter S corporation is treated like a partnership, there are various legal and tax differences.”

The appellee and Mr. Robbins transferred a Mr. Story and three other men, who had worked with Ratrie, Robbins & Schweizer, Inc. from five to fifteen years, to the staff organization of Elliott Corporation and Mr. Story was made president. Story, Robbins and the appellee were the three directors of the Elliott Corporation. The appellee’s contacts with Mr. Story in directing the operations of the Subchapter S Corporation were estimated at three to four times per week.

The principals in the parent organization decided to acquire the Elliott Corporation in order to be able to do non-union paving work. They determined that this was the only way in which they could remain competitive, particularly after a nine week strike involving the parent organization, which remained a union contractor. The survival of the parent company and the profit motive were the sole reasons for acquiring the corporation that became a Subchapter S company. The corporate return for Russell L. Elliott, Inc. shows a long-term loss on the sale of various construction equipment in the amount of $26,869. This amount, when added to depreciation of $28,490 accounts for over 50% of the net operating loss for the Subchapter S Corporation, as shown on its 1975 tax return. The corporate tax return shows that the appellee devoted no time to the business.

The trial judge found that the term “annual earned income” included any losses derived from Subchapter S Corporation and any profits which should accrue to the Subchapter S Corporation in the future. We do not agree. Initially, we point out that annual earned income does not mean adjusted gross income as used in the federal income tax return. If you examine the 1975 income tax return it shows income from “wages, salaries, tips and other employee compensation $78,731, dividends $151, interest $2,999” and under “income other than wages, dividends, and interest,” a loss of $58,548, making a total adjusted gross income of $23,333. It is apparent to us that although reference is made to the income tax return in the first sentence of paragraph 4, the use of the term “annual earned income,” which is not a term used on the tax return, shows a clear intention that investment losses should not be taken into account in determining the amount of alimony due each year. The decree of March 6, 1975, properly construed the meaning of the term when it said that “ ‘annual earned income,’ includes all earnings of the Defendant [appellee] whether from salary, bonuses, trustees’ commissions, directors’ fees, etc., and are to be included as earned income in the calculations of alimony payments due under said Agreement, but alimony [annual earned income] does not include unearned income such as interest, dividends, etc.”

We must look to other than'the income tax returns for a determination of what constitutes “earned income” under the agreement. Citing 79 A.L.R.2d 609-637, the appellee argues that the terms “earnings” or “earned income” have a more extensive meaning than wages and that the term implies some degree of management or supervision and not merely income derived from the ownership of property. With this we entirely agree. He argues, however, that the stringent provisions of the Federal labor legislation require that the appellee must separate himself from the management of the non-union corporation in order to be able to own both a union and a non-union shop citing Operating Engineers v. N.L.R.B., 518 F. 2d 1040 (1970). This, he contends should not prevent a finding of active participation for alimony determination purposes. We do not think that the appellee is in any position to argue that insofar as the National Labor Relations law is concerned, he is not involved in management, but insofar as what constitutes earned income under a separation agreement with his wife, he is involved in management. Indeed, his testimony in the instant case shows that he was not involved with management. For this reason the income or losses that are received from the Subchapter S Corporation appear no different to us than the receipt of dividends or gains or losses from the sale of stock in any other corporation.

Decree reversed.

Case remanded for passage of a decree in accordance with this opinion.

Appellee to pay the costs.

      . In Lewis v. Lewis, 256 Md. 45, 259 A. 2d 246 (1969), the Court construed a separation agreement which was “based on the preceding year's net federal income tax return filed by the husband.” It held that the figures shown on the prior year’s return controlled the alimony payments under the express language of the agreement, and thus previous alimony paid was deductible in determining that figure. In the instant case, however, the parties were careful not to tie the alimony payments to the tax return but to use the return only as a means of verifying the earnings of the husband.


author: Menchine, J.,

text:
    IN THE MATTER OF THE ESTATE OF AUGUSTUS A. KINSTENDORFF, deceased
    [No. 1208,
    September Term, 1976.]

      Decided July 13, 1977.

      The cause was argued before Morton, Menchine and Melvin, JJ.

      Richard H. James for Norman R. Mitchell, Personal Representative of the estate of Augustus A. Kinstendorff.

      Alexander I. Lewis, III, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for Orphans’ Court of Baltimore City.
   Menchine, J.,

delivered the opinion of the Court.

Norman R. Mitchell, personal representative of the estate of Augustus A. Kinstendorff, deceased, dissatisfied with the commissions allowed by the Orphans’ Court of Baltimore City, has appealed directly to this Court. His appeal has been met by a motion to dismiss upon the ground that direct appeal to this Court respecting commissions is not authorized by law.

The Motion to Dismiss

Md. Est. & Trusts Code Ann. (1974) § 7-601 relates to the compensation of personal representatives: subsection (a) concerning the right thereto; subsection (b) concerning the calculation thereof, and subsection (c) providing that there may be an appeal to the circuit court in such cases.

Subsection (c) reads as follows:

“(c) Appeal. — Within 30 days a personal representative, special -administrator, or unsuccessful exceptant may appeal the allowance to the circuit court, which shall determine the adequacy of the commissions and increase, but not in excess of the above schedule, or decrease them.” (Emphasis added.)

Md. Cts. & Jud. Proc. Code Ann. (1974) § 12-501 reads as follows:

“§ 12-501. Appeal to Court of Special Appeals.
A party may appeal to the Court of Special Appeals from a final judgment of an orphans’ court. However, if the final judgment was given or made in a summary proceeding, and on the testimony of witnesses, an appeal is not allowed under this section unless the party desiring to appeal immediately gives notice of his intention to appeal and requests that the testimony be reduced to writing. In such case the testimony shall be reduced to writing at the cost of the party requesting it.”

The motion to dismiss the appeal contends that Estates and Trusts Article, § 7-601, provides the exclusive appeal procedure in cases involving disputes concerning commissions.

The personal representative, resisting the motion, argues that appeal rights conferred by Courts and Judicial Proceedings Article, § 12-501, are in no sense lessened by § 7-601, with the latter providing merely an alternative appeal procedure, akin to the alternative right of appeal to the circuit court granted by Courts and Judicial Proceedings Article, § 12-502, that reads as follows:

“§ 12-502. Appeal to circuit court or Superior Court of Baltimore City.
(a) In general; exception in Harford and Montgomery counties. — Instead of a direct appeal to the Court of Special Appeals pursuant to § 12-501, a party may appeal to the circuit court for the county or to the Superior Court of Baltimore City from a final judgment of an orphans’ court. The appeal shall be heard de novo by the appellate court, and it shall give judgment according to the equity of the matter. This subsection does not apply to Harford County or Montgomery County.”

Appellant stresses legislative use of the word “may” in § 7-601.

We agree with the appellant. The case of Riddleberger v. Goeller, 267 Md. 64, 296 A. 2d 393 (1972), (.Riddleberger II), wherein a direct appeal was entertained in a dispute concerning commissions, is dispositive of the issue.

In an earlier appeal (Riddleberger I), the Court of Appeals had declined to review the action of an Orphans’ Court fixing commissions within a range authorized by law. Reversing in part and affirming in part in Riddleberger I, the Court of Appeals remanded the cause for further proceedings.

Upon remand in Riddleberger I, the Orphans’ Court of Baltimore County had increased substantially the commissions awarded to the personal representative. In the second appeal, the Court of Appeals, after describing the Orphans’ Court’s action as “an apparent attempt to nullify the effect of our decision [in Riddleberger I],” 267 Md. at 66, 296 A. 2d at 395, reversed the Orphans’ Court order. In doing so, the Court of Appeals declared at 71 [397]:

“We must assume in evaluating this case that the orphans’ court in its earlier order fixing commissions considered all of the criteria that should have been considered by that court in fixing commissions. There is nothing in the record to show that it did not. The prior order had reached the state of finality where it was the subject of an appeal to this Court. As we indicated in our prior opinion, the intent of the law is not to compensate an executor or administrator ‘in effect for the honor of serving as personal representative,’ but to compensate him for the duties such a personal representative is expected to perform, even though he may hire an attorney at his expense to perform a part of those services. We made plain that counsel should not ‘be paid from estates for the routine work of executors or administrators, such as opening bank accounts, procuring appraisals, and corresponding with creditors.’ For the Orphans’ Court of Baltimore County to now come along and allow a higher rate of commission to the personal representative for the same work which that court previously evaluated as worth a lesser amount of dollars we hold to be an arbitrary abuse of the discretion lodged in that court.” (Emphasis added.)

The Court of Appeals in Riddleberger II, supra, stressed that its decision “Must be decided under the law as it existed prior to January 1, 1970,” 267 Md. at 65, 296 A. 2d at 394. At that point in time the statute, now codified as Estates and Trusts Article, § 7-601, was codified as Article 81 § 146 and contained a provision authorizing an appeal to the circuit court. Nonetheless, the Court of Appeals in Riddleberger II entertained the direct appeal to that Court under the applicable predecessor to Courts and Judicial Proceedings Article, § 12-501, suprq.

It is true that the Court of Appeals consistently has declared that it will not entertain an appeal respecting the allowance of commissions when it appears that the Orphans’ Court has acted within the discretionary limits authorized by law. Wilson v. Wilson, 3 G & J 20, 23 (1832); Newton v. Johnson, 173 Md. 166, 195 A. 312 (1937); Riddleberger I, supra, at 51 (1971). A clear caveat to universal application of that rule of law, however, appears in the decided cases and quite clearly is stated in Newton, supra, as follows:

“In other words, it has been uniformly held that it is not within our province to control, or review on appeal, commissions that have been fixed by orphans’ courts within the limitations prescribed by law. In re Estate of Baxley, 47 Md. 555; Handy v. Collins, 60 Md. 229; Renshaw v. Williams, 75 Md. 498, 23 A. 905; In re Estate of Watts, 108 Md. 696, 71 A. 316, 319; St. Mary's Orphans Asylum v. Hankey, 137 Md. 569, 113 A. 100; Brown v. Tydings, 149 Md. 22, 130 A. 337; McCrea v. Roberts, 89 Md. 238, 43 A. 39; Dalrymple v. Gamble, 68 Md. 156, 11 A. 718. On the other hand, however, it has been uniformly held by our predecessors that this court has the power to review on appeal a decision of the orphans’ court that transcends the restricted power of the latter. Renshaw v. Williams, supra, and St. Mary's Orphan Asylum v. Hankey, supra.” 173 Md. at 169, 195 A. at 313-314.

Has the latter principle — that a final order of the Orphans’ Court is subject to appellate review when that tribunal transcends its restricted powers — been altered by passage of the special right of appeal to the Circuit Court conferred by § 7-601 (c), supra? We think not.

None of the various legislative acts down to the current effective language of § 7-601 (c) contained specific provisions repealing or amending the general right of appeal from final orders of Orphans’ Courts. Nor do we find any implied repeal or amendment of the general right of appeal.

In Harden v. Mass Transit Adm., 277 Md. 399, 354 A. 2d 817 (1976), it was said at 407 [821]:

“. . . another cardinal rule of statutory construction is that repeals not express will not be found unless demanded by irreconcilability or repugnancy.”

We find no irreconcilability or repugnancy between § 7-601 (c), supra, and § 12-501. On the contrary, we think that the passage of § 7-601 (c) manifestly was intended only to permit an executor to have an option to have the Circuit Court rather than the Orphans’ Court be the tribunal for the final exercise of discretion respecting the amount of commissions properly allowable under the statute. Otherwise stated, we find no indication whatever that the passage of Ch. 561 of the Acts of 1965 and the subsequent amendments thereto were intended to change existing law governing appellate review of final orders of the Orphans’ Courts when the latter have acted contrary to law.

Appellee also contends that the Riddleberger cases, supra, are distinguishable because they dealt only with appeals by others than personal representatives. We think this circumstance does not diminish the impact of those decisions in the subject case.

We recognize that Riddleberger II, supra, dealt with an appeal involving alleged abuse of discretion by an Orphans’ Court. We hold that the same right of direct appeal under § 12-501, supra, exists where, as here, it is contended that the Orphans’ Court acted contrary to law. Cf. Radman v. Harold, 279 Md. 167, 173, 367 A. 2d 472, 476 (1977).

The Substantive Issue

Estates and Trusts Article, § 7-601 (d) reads as follows:

“(d) Commission on sale of real property. — (1) In the event of a sale of real property by the personal representative, the court, upon petition filed in reasonable detail, may allow a commission on the proceeds of the sale as it shall consider appropriate but which shall not exceed 10 percent. (2) If the personal representative retains the services of a licensed real estate broker to aid in the sale of real property, the commissions paid to the real estate broker are an expense of administration and may not be deducted from the commissions allowed by the court to the personal representative in accordance with subsection (a).”

In the subject case the record shows that the personal representative had retained the services of a licensed real estate broker to effect the sale of real estate forming part of the estate. It shows as well that the Orphans’ Court allowed the personal representative a commission of 3% upon the sale of the real property.

Its allowance of that commission was, however, based upon an erroneous interpretation of § 7-601 (d). In a letter to counsel for the personal representative, the Chief Judge of the Court declared:

“The Court has always construed Section 7-601 (d) of the Estates & Trusts to mean that it should not allow more than 10% commissions on the sale of real property. When a broker sells the property, the Court has always deducted the amount paid to the real estate broker from the 10%. If the personal representative satisfies the Court that he should be paid the difference, then that amount will be approved by the Court to be paid to the personal representative.”

Such a course is in direct conflict with the plain language of subsection (d) (2), supra.

Determination by the Orphans’ Court of the amount of commissions, if any, that it may allow to a personal representative in the event of a sale of real property, should be made on the basis of the personal representative’s entitlement to reasonable compensation for his services (§ 7-601 (a)); within the limits fixed by law (§ 7-601 (d) (1)); and without consideration of commissions paid to a licensed real estate broker (§ 7-601 (d) (2)). We express no opinion with respect to the amount of commissions, if any, that properly may be awarded to the personal representative by the Orphans’ Court when such a determination is made in accordance with the law. This is an issue committed to the discretion of the Orphans’ Court. Riddleberger I, supra, at 51 [105],

Order fixing commissions vacated and cause remanded for reconsideration of commissions allowable.

Costs to be paid by the estate.

      . Riddleberger v. Goeller, 263 Md. 44, 52, 282 A. 2d 101, 105 (1971).

      . The special right of appeal by an executor relative to the allowance of commissions by an Orphans’ Court was initiated by Ch. 561 of the Laws of 1965, codified as Section 146 of Article 81 of the Annotated Code of Maryland, and read as follows:
      “In the event an executor is dissatisfied with the amount of commissions fixed by the orphans’ court he may, within thirty days of the date the commissions are determined by said court, take an appeal to the circuit court of the county (Supreme Bench of Baltimore City) which court shall determine the adequacy of the commissions and increase or decrease them as the case may be; provided that in no event shall the amount of commissions fixed exceed that maximum amount allowed in Section 6 of Article 93 of the Code as amended from time to time.”
      In the general revision of the law relating to decedents’ estates effected by Ch. 3 of the Laws of 1969, the special right of appeal was recodified as Article 93, § 7-601 (b) and read in appropriate part as follows:
      “A personal representative or special administrator may, within thirty '(30) days, appeal such allowance to the Circuit Court, which shall determine the adequacy of the commissions and increase (but not in excess of the above schedule) or decrease them, as the case may be.”
      By Ch. 11 of the Laws of 1974, the Legislature, in its adoption of a new Estates and Trusts Article, repealed Article 93 and recodified this special right of appeal as § 7-601 (c) so that the same reads as follows:
      “Within 30 days a personal representative, special administrator, or unsuccessful exceptant may appeal the allowance to the Circuit Court, which shall determine the adequacy of the commissions and increase, but not in excess of the above schedule, or decrease them.”
      The latter is the language of the currently effective law.

      . Of Md. Est. & Trusts Code Ann. 1974.

      . Of Md. Cts. & Jud. Proc. Code Ann. 1974.

      . Later extended to “personal representative, special administrator or unsuccessful exceptant.” See footnote 2, supra.


text:
    MARY E. McKIRGAN and FIRST NATIONAL BANK OF MARYLAND, Personal Representatives of the Estate of Clarence M. Plitt v. AMERICAN HOSPITAL SUPPLY CORPORATION
    [No. 1351,
    September Term, 1976.1

      Decided July 13, 1977.

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

      Walter I. Seif, Jr., with whom were Seif & Cagan on the brief, for appellants.

      Francis B. Burch, Jr., with whom was Joseph G. Finnerty, Jr., on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Clarence M. Plitt, since deceased, filed suit in the Circuit Court for Baltimore County against the American Hospital Supply Corporation alleging that the latter on August 10, 1972, issued its check No. 712080, in the amount of Eight Thousand Five Hundred Thirty-Five Dollars and Sixty-One Cents ($8,535.61), to the order of Haemo-Sol, Inc., which, after endorsing the check in blank, delivered same to the plaintiff. The plaintiff accepted the check for value and in good faith without notice of any defense and duly presented the check for payment, but the defendant dishonored the check by stopping payment thereon.

In its answer, the American Hospital Supply Corporation alleged that the payment of the check was stopped by the defendant at the request of the payee thereof, Haemo-Sol, Inc. who advised that the check in question had been stolen from its mail. Subsequently, a second check in the same amount was forwarded to Haemo-Sol, Inc. and said check was paid shortly thereafter. Haemo-Sol, Inc. further advised the defendant that the endorsement purporting to be that of Haemo-Sol, Inc. on the back of the check was a forgery.

The principal evidence offered at trial was the deposition of the late Clarence M. Plitt in which he stated that a Mr. Banks, who was known by Plitt to be the sole owner of Haemo-Sol, Inc., endorsed to him a check payable to Haemo-Sol, Inc. and issued by American Hospital Supply Corporation, in payment of a personal debt. The dishonored check was not placed into evidence. The trial judge found that Plitt was not a holder in due course and found for the appellee. The appellant alleges error in this finding.

The initial step in an action to enforce an obligation of a purported signer of an instrument is to establish the existence of the instrument and signature. Md. Code, Commercial Law Article § 3-307 provides:

“(1) Unless specifically denied in the pleadings each signature on an instrument is admitted. When the effectiveness of a signature is put in issue
“(a) The burden of establishing it is on the party claiming under the signature; but
“(b) The signature is presumed to be genuine or authorized except where the action is to enforce the obligation of a purported signer who has died or become incompetent before proof is required.
“(2) When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.
“(3) After it is shown that a defense exists a person claiming the rights of a holder in due course has the burden of establishing that he or some person under whom he claims is in all respects a holder in due course.”

The appellee specifically raised the issue of the effectiveness of the signatures. Under § 3-307 (1) the burden of establishing that the signature was genuine or authorized was then on the appellant, but he is aided by the presumption that it is genuine. The deposition of the deceased, Mr. Plitt, raised the presumption that the signature was genuine and that burden was met in the absence of evidence to the contrary. See Wolfe v. Madison National Bank, 30 Md. App. 525, 529-530, 352 A. 2d 914 (1976).

Under § 3-307 (2) a holder is entitled to recover upon production of the instrument once the signatures are admitted or established in the absence of a defense. By-definition a holder is a person who is in possession of an instrument issued or endorsed to him or his order or to bearer or in blank. Commercial Law Art. § 1-201 (2). The production of the instrument establishes possession. Inasmuch as the signatures on the instrument were established, it appears the appellant would have been entitled to a verdict in its favor, if it had produced the instrument. The failure to produce it, or satisfactorily explain its absence prevents recovery. Chaviers v. Simmons, 256 Ark. 731, 510 S.W.2d 301 (1974); First State Bank of Chico v. Smith, 488 S.W.2d 837 (Tex. Civ. App. 1972) and Ferris v. Nichols, 245 So. 2d 660 (Fla. App. 1971). The basis for this rule is that it protects a defendant against the negotiation of the instrument.

The trial judge, overlooking the provisions of Commercial Law Art. § 3-307 (2) and (3) requiring the production of the instrument and the establishment of a defense, found:

“From the totality of the evidence presented, this Court is persuaded that the requirement of subsection (c) of Section 3-302 of the Commercial Law Article precludes Mr. Plitt from claiming the rights and status of a Holder in Due Course. Article 3-304 (2), which is titled “Notice to Purchaser”, defines notice of a claim as knowledge that a corporate fiduciary has negotiated a check made payable to the corporation in payment of a personal debt. The check that was given to Plitt was a corporate check in payment of a personal debt and was endorsed by Mr. Banks only. This fact the Court deduces from the Plaintiffs deposition. (The check itself was never placed in evidence.) Since Mr. Plitt is not a Holder in Due Course, he is therefore subject to the limitations of Section 3-306. In short, viewing this transaction on the evidence presented to this Court, it is obvious that Plitt cannot be a Holder in Due Course because he took a corporate check from a fiduciary of the corporation and the check was endorsed to him to pay-off a personal loan.”

Although we agree with this finding, we affirm the judgment for the reasons we have given above. In the exercise of our discretion, we decline to remand for further proceedings as the summary judgment proceedings in the record leave little doubt that the drawer of the check has a good defense.

Judgment affirmed.

Appellants to pay the costs.