text:
    CHAMPION FORD SALES, INC. et al. v. ROBERT J. LEVINE et ux.
    [No. 1407,
    September Term, 1980.]

      Decided September 3, 1981.

      The cause was argued before Morton, Thompson and Weant, JJ.

      Dorothy A. Beatty, with whom was Donald E. Sharpe on the brief, for appellants.

      Steven J. Fox, with whom were Andrea Nager Chasen and Talkin & Abramson on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

This case involves an appeal and a cross-appeal from a judgment entered in favor of Mr. and Mrs. Robert J. Levine, appellees and cross-appellants, (buyers) against Champion Ford Sales, Inc. and Ford Motor Company, appellants and cross-appellees (sellers) in the Circuit Court for Baltimore County. The principal issues presented in the sellers’ appeal are: (1) whether under the circumstances described below, the buyers justifiably revoked their acceptance, under Md. Com. Law Code Ann. § 2-608, of an automobile which had been purchased from Champion and manufactured by Ford; and (2) if revocation was justified, whether the damages awarded the buyers were proper. The only significant question presented in the buyers’ cross-appeal is whether the trial judge erred in ruling that the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq., was not applicable in the instant case and that the buyers were therefore not entitled to recover attorneys’ fees under its provisions. For the reasons set forth below, we shall hold that the buyers’ revocation of acceptance was justified, that the judgment entered included damages which were improperly awarded, and that the trial judge erred in holding that the federal statute had no applicability.

On December 20, 1977, the buyers took delivery from Champion of a new 1978 Ford Granada. They had selected the Granada, which they intended to use for normal family transportation purposes, after considerable comparison shopping. With the car came a limited warranty under which the manufacturer promised that "the Selling Dealer will repair, replace, or adjust free any parts, except tires, found to be defective in factory materials or workmanship within the earlier of twelve months or 12,000 miles.” The buyers paid the purchase price of $5,446.35 in cash. Six days after delivery, when the car had been driven 109 miles, the engine became inoperable. After the car was towed to the dealer’s service facility, an inspection revealed that a defective engine valve had broken and had fallen into a cylinder, destroying or damaging the engine block, the cylinder head, two pistons, a connecting rod, rings, and a number of gaskets. The defect had existed when the car was sold but could not have been discovered by any reasonable inspection. After the cause and extent of the damage was ascertained, the dealer informed the buyers that it would repair the engine and provided them with a "loaner” car. The buyers accepted the loaner vehicle, but after viewing their car while it was dismantled in the dealer’s shop indicated that they did not want the engine repaired but rather desired replacement of either the engine or the car. It was their view that a vehicle with a shop-rebuilt engine was not comparable to one with a factory assembled engine. Both the buyers and the dealer’s mechanic testified that certain equipment which Ford used in assembling engines in the factory and which it advertised as contributing to the quality of its engines was not available in the dealer’s shop. A series of meetings with representatives of the dealer and the manufacturer followed, at which the buyers’ requests for a new engine or car were refused. Following these refusals, on January 13, 1978 the buyers advised the dealer that they were revoking their acceptance of the car and demanded the return of the money they had paid. The dealer refused to refund the purchase price and proceeded to repair the car’s engine. The repairs were performed by qualified mechanics at the dealer’s service facility, at a cost of $889.69. The repairs were completed on February 10,1978, at which time the car was test-driven by Champion personnel and found to operate satisfactorily. The buyers were then informed that their car was ready to be picked up. The buyers again advised the dealer that they had revoked their acceptance and declined to either inspect or accept the repaired car. On February 13, the buyers returned the loaner vehicle provided by the dealer. On April 10, 1978, when their money had not been refunded, they filed suit. In August 1978, the buyers purchased a replacement for the Granada, a used 1974 Ford Pinto, for which they paid $1,200.00.

On July 10, 1980, the buyers’ action came to trial. Their amended declaration was in four counts: Count I sought return of the purchase price paid for the Granada, on the grounds that the buyers had revoked their acceptance; Count II set forth a claim for breach of the implied warranty or merchantability; Count III claimed violation of the Magnuson-Moss Act and breach of express warranties; and Count IV alleged wrongful breach of a guaranty in violation of Md. Com. Law Code Ann. § 14-401(k). In each count, the buyers sought interest, costs, and attorneys’ fees. At the close of the buyers’ case, the trial judge directed a verdict for the sellers as to Counts III and IV. Counts I and II were submitted to the jury, which returned a verdict in favor of the buyers on each. The jury awarded damages in the amount of the purchase price of the Granada plus interest from the date acceptance was revoked; it also awarded an additional $1200, representing the purchase price of the used Pinto bought to replace the Granada. The judge held that the Magnuson-Moss Act was not applicable and refused to award the buyers attorneys’ fees. Appeals to this Court followed.

Md. Com. Law Code Ann. § 2-608 sets forth the circumstances under which a buyer may revoke his acceptance:

"(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”

See Lynx, Inc. v. Ordnance Products, 273 Md. 1, 14-17, 327 A.2d 502 (1974). At trial in the instant case, it was undisputed that the buyers accepted the car without knowledge of its defect, as the result of the practical impossibility of discovering the defect; that they revoked their acceptance within a reasonable time after discovery of the defect and before any substantial change in its condition, not the result of its own defect; and, that they gave adequate notice, within a reasonable time, to sellers: the only issue was whether, at the time they revoked acceptance, there existed a nonconformity which substantially impaired the value of the car to the buyers.

On this appeal, the sellers argue that the evidence was insufficient to permit the jury to find that such a nonconformity existed and that the buyers’ revocation was justified. They contend that, although there was obviously a defect in the Granada when it was delivered, they had a right under § 2-608 to cure that defect and that the only competent evidence adduced showed that they did cure the defect; that the nonconformity which existed was eliminated by the repairs which were carried out and that the repaired vehicle "was like new.” They further contend that, even if a nonconformity existed after the car was repaired, the evidence was insufficient to permit the jury to find that it substantially impaired the value of the car.

Under the Uniform Commercial Code, a seller is not expressly granted the right to cure when a buyer revokes acceptance, cf., § 2-508 (conferring the right to cure where a buyer rejects goods as nonconforming), although it may be inferred that such a right exists where the buyer accepts nonconforming goods with the expectation that the nonconformity will be remedied. See § 2-608 (1) (a). Whether a general right to cure, applicable where a buyer accepts without knowledge of a nonconformity and thus without the expectation that it will be cured, is also to be inferred, has been the subject of considerable dispute and the decisions are in conflict. See e.g., Conte v. Dwan Lincoln-Mercury, Inc., 374 A.2d 144, 149 (Conn. 1976) (a seller has a right to cure, citing § 2-508 as authority); Werner v. Montana, 378 A.2d 1130, 1136 (N.H. 1977) (no right to cure in revocation of acceptance situation). We find it unnecessary to decide the issue. Even if we were to recognize that a seller has a right to cure where the buyer revokes acceptance, in order to be effective to bar revocation in a particular case, the seller plainly would be required to make a full and complete cure. See Asciolla v. Manter Oldsmobile-Pontiac, Inc., 370 A.2d 270, 274 (N.H. 1977); Moulden & Sons, Inc. v. Osaka Landscaping, 584 P.2d 968, 970 (Wash. App. 1978). In the instant case, the jury was instructed to determine whether the Granada, as repaired, contained a nonconformity which substantially impaired its value to the buyers; the jury in effect found that it did. Thus, the jury made an inferential finding that the sellers’ repairs did not result in a fully conforming tender and did not constitute a cure. The only real issue is whether the evidence was sufficient to support that finding.

A nonconformity exists when the goods are not in accordance with the obligations under the contract. See Md. Com. Law Code Ann. § 2-106 (2). The substantiality requirement bars revocation for defects which are trivial or easily corrected, Rozmus v. Thompson’s Lincoln-Mercury Co., 224 A.2d 782, 784 (Pa. Super. 1966), or for those which merely make the tender somewhat less than perfect, Rutland Music Service v. Ford Motor Co., 422 A.2d 248, 249 (Vt. 1980). Whether a nonconformity substantially impairs the product’s value to the buyer necessarily involves consideration of subjective factors, i. e., the particular needs and circumstances of the individual buyer, yet proof of substantial impairment requires more than the buyer’s subjective assertion that the value of the product to him was impaired; it requires evidence from which the trier of fact, applying objective standards, can infer that the needs of the buyer were not met because of the nonconformity. It is clear that the question of whether there exists a nonconformity which substantially impairs the value to the buyer is one of fact, to be decided by the jury on the facts and circumstances of each individual case. See Tiger Motor Co. v. McMurtry, 224 So. 2d 638, 645-46 (Ala. 1969); Conte v. Dwan Lincoln-Mercury, Inc., 374 A.2d 144 at 148; Welch v. Fitzgerald-Hicks Dodge, Inc., 430 A.2d 144, 148 (N.H. 1981); Asciolla v. Manter Oldsmobile-Pontiac, Inc., 370 A.2d at 273; Jorgensen v. Pressnal, 545 P.2d 1382, 1384-85 (Or. 1976).

In determining whether the evidence was sufficient to sustain the finding of the jury in the case at bar, we are aided by the decisions of several other courts which have dealt with similar situations. Particularly instructive is the decision of the New Hampshire Supreme Court in Asciolla v. Manter Oldsmobile-Pontiac, Inc., supra. There, a new car purchased by the buyer became inoperable less than one month after delivery. An inspection revealed pieces of ice in the transmission, as well as other evidence that the car had been flooded or submerged prior to sale. The buyer demanded that the car be replaced. The seller denied that the car had ever been submerged and offered to repair or replace the transmission. The buyer refused the offer and sought to revoke his acceptance. A master held that the buyer had no right to revoke his acceptance, finding that there was no satisfactory evidence that the car had been flooded and that the repairs offered by the seller " 'would in normal circumstances and to a reasonable person adequately serve to correct the defect’ in the transmission.” 370 A.2d at 272. The New Hampshire Supreme Court reversed, stating:

"In determining that the plaintiff was not entitled to revoke his acceptance, the master ... utilized, an objective standard, finding that a 'reasonable person’ would have been satisfied with the repaired car. Without addressing the validity of that conclusion, we find from the record that the value of the subject automobile to Mr. Asciolla was substantially impaired. In purchasing a new car the plaintiff was making a major investment. Few items which are considered necessities occupy such a significant portion of an individual consumer’s income as does a new automobile. Few purchases are made with more care and deliberation. The record indicates that the plaintiff was a particularly prudent and painstaking car buyer .... Within three weeks of the purchase of the car at issue in this case he found it to be totally inoperable. He was informed by franchised representatives of the manufacturer that the car had been flooded or submerged. While the master found that the evidence presented at the hearing did not support such a conclusion, no satisfactory reason was ever presented to the plaintiff to otherwise explain the presence of ice in his transmission. Nor was Mr. Asciolla offered any guarantees concerning other deficiencies, caused by the same mysterious condition, which he very reasonably apprehended might arise in the future.
"Under these facts, we think it clear that the plaintiffs confidence in the reliability and integrity of his new automobile was severely undermined. He had bargained for a new car, expecting to receive a vehicle upon whose dependability and safety he could comfortably rely. Instead he received a product which he understandably feared was what is known in popular parlance as 'a lemon.’ The plaintiff is correct in this assertion that a new automobile is more than the sum of its various components. It is the integrity of the vehicle as a whole which is the essence of the consumer’s bargain. As the Superior Court of New Jersey said in a markedly similar case concerning a new car with a defective transmission, '[the buyer] assumed what every new car buyer has a right to assume and, indeed, has been led to assume by the high powered advertising techniques of the auto industry — that his new car, with the exception of very minor adjustments, would be mechanically new and factory-furnished, operate perfectly, and be free of substantial defects.’ Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. 441, 452, 240 A.2d 195, 201-02 (1968). The plaintiffs situation cannot be accurately compared to cases cited by the defendants such as Rozmus v. Thompson’s Lincoln-Mercury Co., 209 Pa. Super. 120, 224 A.2d 782 (1966) and Grucella v. General Motors Corporation, 10 Pa. D. & C. 2d 65 (195.6), in which the cars presented defects which were trivial and readily repaired. The new car in the instant case was rendered wholly inoperable by a defective condition which permeated one of its most essential systems. Under such circumstances, his revocation of acceptance is justified. . . .
"The defendants contend that they are entitled to cure the nonconformity in the tendered goods. * * * For the reasons set forth above, any cure other than replacement of the autmobile with a new one would, under the facts of this case, be insufficient to accomplish a conforming tender.” Id. at 273-74.

In the New Jersey case referred to by the Asciolla court, Zabriskie Chevrolet, Inc. v. Smith, supra, in which the buyers’ new car became inoperable, due to a transmission defect, as it was being driven home from the seller’s showroom, the court upheld the buyer’s right to reject the car, notwithstanding that the seller immediately replaced the transmission with one from another vehicle in its showroom, stating:

"The 'cure’ intended under the cited section of the Code [§ 2-508] does not, in the court’s opinion, contemplate the tender of a new vehicle with a substituted transmission, not from the factory and of unknown lineage from another vehicle in plaintiffs possession. It was not the intention of the Legislature that the right to 'cure’ is a limitless one to be controlled only by the will of the seller. A 'cure’ which endeavors by substitution to tender a chattel not within the agreement or contemplation of the parties is invalid.
"For a majority of people the purchase of a new car is a major investment, rationalized by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes, but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension. The attempted cure in the present case was ineffective.” 240 A.2d at 205.

In Welch v. Fitzgerald-Hicks Dodge, Inc., supra, in which a car buyer revoked acceptance because of a persistent "shimmy” in the car’s front end, the court rejected the sellers’ argument that the evidence was insufficient to permit the jury to find that the defects substantially impaired its value. The court held that the buyers’ testimony that the persistent problem had undermined their confidence in the vehicle and destroyed its value to them as a family car could not be ignored; the court also held that the jury would have been free to conclude that other defects, even though they had been repaired by the seller, had destroyed the buyers’ confidence in the integrity of the car and justified revocation. See also, Conte v. Dwan Lincoln-Mercury, Inc., supra; Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn. 1977); Werner v. Montana, supra.

A different result was reached by the Court in Pratt v. Winnebago Industries, Inc., 463 F. Supp. 709 (W.D. Pa. 1979). There the buyer of a new, $16,000 mobile home discovered a number of defects, including a defect in the transmission which made the home inoperable, shortly after delivery. The seller undertook repairs. While the transmission was being repaired, the buyer demanded that the vehicle either be replaced or that the purchase price be returned. The seller refused and the buyer declined to permit the seller to repair the other defects. On buyer’s suit for revocation, the Court, following a non-jury trial, found that the vehicle’s nonconformities did not substantially impair the value. It based its decision upon the seller’s willingness to fully remedy the defects, all of which were easily correctable. Id. at 715.

Turning to the case before us, we are of the opinion that the evidence amply supported the jury’s finding that the repaired Granada contained nonconformities which substantially impaired its value to these buyers and we therefore hold that the sellers failed to make a complete cure. The buyers purchased a new car with a new, factory-built and installed engine. They indicated that they chose that particular model, after careful comparison, because it was one in which they felt they could have confidence. What the sellers tendered was a repaired car with a shop-rebuilt engine. The members 'of the jury evidently perceived a difference between the two and they were completely justified in so doing; the goods tendered clearly did not conform to the contract. Nor was the evidence of substantial impairment any less compelling; the defect here was plainly neither trivial nor easily corrected, as the repairs required nearly four weeks and the replacement of a sizable number of engine components, at a cost of nearly $900. The buyers testified that because the car had undergone major repairs its value to them was substantially impaired. Certainly any consumer would consider the car the buyers contracted for to be considerably more valuable than that which they received, both monetarily and in terms of degree of confidence with which it could be operated.

The sellers also contend that the instructions to the jury concerning the buyers’ revocation of acceptance were improper, in that they allowed the jury to apply a subjective standard and to consider incompetent evidence. The jury was instructed as follows:

"On the first issue the Plaintiffs have claimed a right to revoke their acceptance of the 1978 Ford Granada, which, of course, is the subject of this case. In order to prove such a right, the Plaintiffs must prove four things, and I will instruct you in a moment what these four items are, but I will tell you that in this case they have proved three of them and there is really one that remains, but for clarification I will give you all of the elements to prove a right to revoke acceptance, but first the Plaintiff has the burden of proving by a preponderance of the evidence that there existed in the vehicle a nonconformity or what I for simplification refer to as a deformity. 2. That any such nonconformity or defect substantially impairs the value of the vehicle to the Plaintiffs. 3. That revocation was made within a reasonable time after discovery of the defect and before any substantial change in the condition of the vehicle, and 4. that the Plaintiffs gave notice to the Defendants.
"Now, I instruct you that as a matter of law you need only concern yourself with the second item, and that is whether or not there was such a defect that substantially impaired the value of the automobile to the Plaintiffs.
"In addition, whether the defect was sufficient to give rise to a substantial impairment of the value of the vehicle. You must consider whether the defect would cause such a substantial impairment to the average buyer.
"In making this determination you may also consider the particular needs, circumstances and expectations of Mr. & Mrs. Levine, the Plaintiffs.
"The Defendants in the case offered to repair the automobile engine. The Plaintiffs have testified that that repair would not be sufficient, but that the repaired engine would still be such a nonconformity or defect that it would still substantially impair the value of the vehicle to them. The Plaintiffs ask that the engine be replaced or that the automobile be replaced. Therefore, you must weigh all of the evidence to determine if the repaired engine would substantially impair the automobile’s value, or if the Defendant would be permitted to replace the engine — excuse me. I want to change that. I am sorry. Let me just repeat that one second. Therefore, you the Jury must weigh all of the evidence to determine if the repaired engine would substantially impair the automobile’s value or if the Defendant would be required to replace the engine or indeed the entire automobile.
"If after considering all of the evidence you are conviced by preponderance of the evidence that the defective engine in the automobile purchased by Mr. and Mrs. Levine substantially impaired the automobile’s value to them, then you must find they properly revoked acceptance of the automobile.”

The sellers requested that the jury be instructed that they were to determine whether any nonconformity found would substantially impair the value of the vehicle to an "average” buyer. The trial court properly declined to give the requested instruction. Section 2-608 (1) clearly indicates that whether revocation of acceptance is justified is to be determined by judging the impairment of value to the particular buyer involved, not an average buyer. See Tiger Motor Co. v. McMurtry, 224 So. 2d at 646; Jorgensen v. Pressnall, 545 P.2d at 1384.

The sellers object to the trial court’s failure to instruct the jury that the sellers had a right to cure. The argument is without merit. Our review of the instructions given discloses that the judge consistently instructed the jury that they were to determine whether the engine, as repaired, impaired the value of the car. By so instructing the jury, the court presupposed a right to cure and the instructions were, if anything, more favorable to the sellers than they might have been.

The sellers also argue that the judge’s instructions improperly suggested to the jury that they could consider as evidence of nonconformity the buyers’ subjective statements. The instructions made no reference whatsoever to the buyers’ testimony; furthermore, as we have indicated above, the buyers’ testimony, along with the other evidence adduced at trial, was sufficient to show a nonconformity which substantially impaired the car’s value. We reject the argument.

The sellers’ next contention is that the trial court erred in failing to direct a verdict in their favor on Count II of the buyers’ declaration, which alleged breach of implied warranties, and in instructing the jury as a matter of law that the damages it was to assign for any breach of warranty found was the price of the car. As we affirm the judgment for the purchase price of the car on the grounds that the buyers justifiably revoked acceptance, we need not address this contention.

The sellers’ final contention is that the trial judge erred in permitting the jury to award as damages the purchase price of the used Pinto bought to replace the Granada. We agree.

The buyers assert that the price of the Pinto was properly recoverable, under § 2-714 (3), as consequential damages resulting from the sellers’ breach of warranty. Clearly it was not. The buyers were not damaged by their purchase of the Pinto; rather, they paid $1200 for a car worth $1200, thus converting assets from one form to another. That they would not have purchased the Pinto had the Granada been satisfactory is immaterial; had the Granada been satisfactory, they would not have been permitted to recover the purchase price. To allow the buyers to recover the purchase price of another car is to permit a double recovery and to place the buyers in a better position than that which they would have occupied had there been no breach. That portion of the award which represents the costs of the Pinto must therefore be reversed.

On their cross-appeal, the buyers contend that the trial judge erred in ruling that the Magnuson-Moss Warranty Act, 15 U. S. C. § 2301 et seq. had no applicability and that they were not entitled to recover attorneys’ fees incurred in prosecuting their action against the sellers. We agree.

Section 2310(d) of the Act provides:

"(1) Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief —
"(A) in any court of competent jurisdiction in any State ...
"(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys’ fees would be inappropriate.”

Section 2310 (e) provides:

"No action ... may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty ... unless the person obligated under the warranty ... is afforded a reasonable opportunity to cure such failure to comply.”

The Act thus permits recovery of attorneys’ fees by a consumer who prevails in an action against the seller for breach of an implied warranty under state law provided the seller is afforded an opportunity to cure. In the instant case, the buyers prevailed in their action against the sellers for revocation of acceptance, which was based upon a nonconformity which breached the implied warranty of merchantability. As we have indicated above, the buyers, prior to instituting their action, afforded the sellers an opportunity to satisfactorily cure the nonconformity, i.e., to replace the engine or the car. They therefore satisfied the requirements of the Act and were entitled to recover attorneys’ fees, unless determined by the court to be inappropriate. See Welch v. Fitzgerald-Hicks Dodge, Inc., 430 A.2d at 149; Ventura v. Ford Motor Corp., 414 A.2d 611, 613 (N.J. Super. 1980). We shall remand the case to the trial court for determination as to the amount of the buyers’ attorneys’ fees and for an award thereof, unless the court below, in its discretion, determines that such an award is inappropriate.

Judgment affírmed in part and reversed in part.

Case remanded to the Circuit Court for Baltimore County for further proceedings consistent with this opinion.

Costs to be paid by the appellants.

      . The sellers have not argued that the express warranty in any way limited the remedies available to the buyers. See Md. Com. Law Code Ann. § 2-719 (1) (a).

      . Section 14-401(k) is part of the Maryland Consumer Products Guaranty Act, Md. Com. Law Code Ann. § 14-401 et seq. (1975, 1980 Cum. Supp.). The Act contains provisions similar to those found in the Magnuson-Moss Act.

      . Section 2-606(1) defines "acceptance”:
      "(1) Acceptance of goods occurs when the buyer
      (a) After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
      (b) Pails to make an effective rejection (subsection (1) of § 2-602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
      (c) Does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.”

      . In the only Maryland decision to date which discusses § 2-608, Lynx, Inc. v. Ordnance Products, 273 Md. at 15, the Court stated, in dicta, that "the buyer cannot revoke his acceptance ... if following acceptance the seller in fact seasonably cured the nonconformity”; however it is unclear from the statement whether the cure, to be seasonable, must occur prior to the buyer’s revocation. J. White and R. Summers, Uniform Commerpial Code §8-1 (2d. ed. 1980), states: "The right to cure does not, however, limit revocation of acceptance”; the accompanying footnote reads in pertinent part: "Once a buyer has rightfully revoked acceptance many courts hold that the seller has no right to cure under 2-508.”

      . Consequential damages may also be recovered where the buyer revokes acceptance. Md. Com. Law Code Ann. § 2-711(1); § 2-712(2).


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    COLIE J. SPARROW v. LOUIS DREYFUS CORPORATION et al.
    [No. 1478,
    September Term, 1980.]

      Decided September 3, 1981.

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

      W. Michel Pierson, with whom were Brennan & Brennan on the brief, for appellant.

      R. Roger Drechsler, with whom was Nevin E. Leese on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Colie J. Sparrow, challenges a judgment of the Court of Common Pleas of Baltimore City which affirmed an order of the Workmen’s Compensation Commission denying his claim for an injury sustained while returning to work from lunch. For the reasons stated, we reverse.

I

The facts are largely undisputed. Appellant was employed as a millwright by the Louis Dreyfus Corporation ("Dreyfus”) at its export grain elevator on Pier 2, Port Covington. On April 19, 1979, at approximately 12:50 p.m., he was returning from lunch with three other Dreyfus employees. During the lunch hour, which began at noon, they had gone off the employer’s premises to a nearby restaurant. They rode in a pickup truck which was owned and driven by one of the employees, Raymond Brown. Dreyfus personnel were permitted to have lunch away from the plant and many did so. Because there was room in the cab of the pickup for only three passengers, the appellant rode in the back of the open truck.

Testimony elicited before the Commission and the trial court revealed that the Dreyfus facility could be reached by either of two roads owned by the "Chessie” Railroad System which branched off from a common road. The "front” road was paved and in good condition. It led to the front of the Dreyfus facility where there was a parking lot. A Dreyfus manager testified that the "bulk” of the employees used the front road. The "back” road was gravel (not paved) and was described by Raymond Brown as "deplorable.” It was used, according to the manager, by about 10% of Dreyfus employees. There was also a parking area in the back of the grain elevator.

The back road was also used by several other companies in the vicinity. Both roads, however, at the time of appellant’s injury, were posted "No Trespassing” and were policed by the railroad. Brown also testified that "[a]ny car with no business there is basically not allowed.” (After the accident, Dreyfus repaired the road though it was Chessie System property.)

Returning to work after lunch at 12:50 p.m., Raymond Brown took the back road because the front road, which he had used on the way to the restaurant, was blocked by a freight train and they would have been delayed about forty-five minutes. The truck, travelling at a speed of "between ten and twenty” miles per hour, hit a large pothole which caused the claimant to be tossed about in the truck, sustaining a back injury.

The Commission, by Order dated July 17,1979, found that the appellant did not sustain an accidental injury arising out of and in the course of his employment. The trial court affirmed, holding that appellant did not come within the "proximity” or "special hazard” exception to the "going and coming” rule.

II

As a general proposition, an injury sustained by an employee going to or returning from his place of employment is not an injury arising out of and in the course of employment and therefore is not compensable under the Workmen’s Compensation Act. This is the "going and coming” rule. One exception to the rule is the "proximity” or "special hazard” rule which permits recovery for an injury which, although sustained off the employer’s premises, is viewed as within the "range of dangers peculiarly associated with the employment.” Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 208, 373 A.2d 613, 617 (1977), affirming 30 Md. App. 87 (1976). Writing for the Court of Appeals in Wiley, Judge Levine pointed out that this exception has two "vital components,” quoting from 1 Larson, Law on Workmen’s Compensation § 15.13:

"The first is the presence of a special hazard at the particular off-premises point. The second is the close association of the access route with the premises, so far as going and coming are concerned.”

Wiley, supra, 280 Md. at 208, 373 A.2d at 617.

The Court went on to define "special hazard” as

"peculiar and abnormal exposure to a common peril beyond that to which the general public [is] subjected.”

Id. at 215,373 A.2d at 621. We think the proximity exception is applicable here. The crater-like pothole, jokingly described in the testimony as "a lake” when it rained, was a hazard to employees using it beyond that to which the general public was exposed. This was a private road, located on private property of the railroad, policed by the railroad, from which the public was excluded. Its use by employees was permitted. On April 19, 1979 at 12:50 p.m. it was the only means of entrance to the place of employment without substantial delay because the front road was blocked by a train. As Brown, the driver, testified, "[i]f one [road] is blocked you have to use the other one, or be late”; and as a result, their pay would be "docked.”

In our judgment, there is a striking parallel between the instant case and the case of Rambo v. International Dry Wall Co., Inc., 44 Md. App. 693, 410 A.2d 627, cert. denied, 287 Md. 751, 753 (1980), involving a claimant injured while on his way to lunch as a passenger in an automobile operated by a co-worker. The car struck a manhole cover which protruded 4 to 6 inches above the partially paved surface of a road under construction. Applying the analysis explicated by Judge Levine in Wiley, Judge Thompson concluded for this Court:

"An employee who is required to go to work over the unfinished road is subjected to a special hazard which members of the general public are not required to subject themselves, except for the relatively few who happen to have particular business on the undedicated street.
"We hold, therefore, that the proximity rule does apply here as an exception to the going and coming rule and that the injuries sustained by the employee rose out of and in the course of his employment.”

Rambo, supra, at 698, 410 A.2d at 630.

We observe that the lower court in the instant case, in its careful consideration of the "proximity” rule, applied the four elements of the exception found in 8 Schneider’s Workmen’s Compensation § 1724 (3d ed. 1951), which were quoted by the Court of Appeals in Maryland Paper Products Co. v. Judson, 215 Md. 577, 585, 139 A.2d 219, 223 (1958), and by this Court in Stoskin v. Board of Education of Montgomery County, 11 Md. App. 355, 357, 274 A.2d 397, 399 (1971), and in our opinion in Wiley Manufacturing Co. v. Wilson, 30 Md. App. 87, 91, 351 A.2d 487, 490-91 (1976).

According to Schneider, an employee may recover under the "proximity” exception to the "going and coming” rule if he is

(1) In close proximity to the premises,
(2) proceeding diligently at an appropriate time by reasonable means,
(3) using the natural, practical, customary, convenient and recognized way of ingress or egress,
(4) either on land under the control of the employer, or on adjacent property with the express or implied consent of the employer.

The lower court found all the elements present except the second. On that point, the court said:

"... I have some pause whether they were proceeding appropriately and diligently by reasonable means on their way to [sic] lunch. At best, it can be said to be risky to ride in the back of an open pickup truck, and that is especially true where that pickup truck is going to be driven over unpaved road, well known to not only the claimant, but to his companions on that day.” (Emphasis added.)

The court concluded that satisfaction of the second element was "debatable” and affirmed the Commission, finding its order presumptively correct.

We think a necessary implication of the opinion of the Court of Appeals in Wiley is that the two "vital components” of the "special hazard” exception stated in Professor Larson’s work are controlling in the generality of special hazard cases. At all events, when the facts of the particular case call for consideration of Schneider’s second element ("proceeding diligently at an appropriate time by. reasonable means”), there is the danger that contributory negligence may play a part in determining whether or not an injury is compensable. That, of course, is impermissible under the law of workmen’s compensation. Md. Ann. Code art. 101, § 15. As the Court of Appeals stated in Dayton v. Davis, 218 Md. 614, 618, 147 A.2d 699, 701 (1959):

"There are very few unavoidable accidents; negligence produces most of them and an employee’s non-wilful negligence — his lapse from care — does not keep an injury-producing occurrence from being an accident nor bar his right to compensation.”

The appellee in this case, although maintaining that the lower court reached the correct result, concedes that the court "may have placed undue emphasis on the appellant’s choosing to ride in the rear of an open pickup truck over an unpaved road.” We believe this did occur, and that error intruded.

It is our conclusion that the proximity exception was applicable and that the finding to the contrary was an erroneous interpretation of the law. The injury sustained by appellant arose out of and in the course of his employment and is compensable under the Workmen’s Compensation Act.

Judgment reversed; case remanded to the Court of Common Pleas for further remand to the Workmen’s Compensation Commission; appellees to pay the costs.

      . The testimony of Brown revealed that when the front road was blocked by a train other employees of Dreyfus would also traverse the back road to avoid being late.

      . By judicial decision, there are several well-established exceptions to the "going and coming” rule. See generally Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 373 A.2d 613 (1977).

      . The unfinished street had not yet been accepted for maintenance by the county. The residents of the few finished private homes along the road used it, as well as the construction workers. This road was the only access to and from the construction site.

      . In Wiley, no reference is made to Schneider’s treatise.


text:
    GARY EUGENE HURST v. V & M OF VIRGINIA, INC. et al.
    [No. 1528,
    September Term, 1980.]

      Decided September 3, 1981.

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

      Terrell N. Roberts, III, for appellant.

      William Francis Xavier Becker for appellees.
   Moore, J.,

delivered the opinion of the Court.

Appellant’s effort to establish and enforce a mechanic’s lien against appellees’ interest as tenants in a local shopping center met with defeat when the trial court sustained appellees’ demurrer without leave to amend. The narrow question on appeal is whether the court correctly interpreted the term, "building,” in the mechanics’ lien law, Md. Real Prop. Code Ann. § 9-102 (a) and § 9-103 (c) (2). We find that it did.

I

The facts as set forth in appellant’s Amended Petition to Establish and Enforce Mechanic’s Lien, and exhibits attached thereto, are as follows: The appellees, V & M of Virginia, Inc. and Vincent Arosemena, are tenants for years of approximately 4,100 square feet of basement area in the Bethesda Square Shopping Mall. Appellant, Gary Hurst, contracted with the appellees to furnish labor and materials "to build and construct a restaurant-disco, and to furnish and install all mechanical components for the operation of the restaurant-disco, including but not limited to, electrical, plumbing, heating, air-conditioning and ventilation components.”

Work commenced on or about September 19, 1979 and continued until about March 24, 1980. It was alleged that the appellant improved the appellees’ property to the extent of $160,323.03 of which $48,823.03 was due and owing. A lien was sought against the appellees’ property, improvements and fixtures.

The appellees demurred and argued, inter alia, that the appellant’s petition failed to state that he had improved the (entire) building to the extent of 25 percent of its value within the meaning of § 9-102 (a) of the Real Property Article but merely alleged that the appellees’ property (within the building) was improved to the extent of 25 percent of its value. When the matter came on for a hearing in the Circuit Court for Montgomery County, it was conceded by appellant’s counsel that "[w]e cannot make any allegations that it is more than 25 percent of the value of the Bethesda Square Shopping Mall.” In sustaining the demurrer without leave to amend the court stated:

"My conclusion is that to establish a lien on this property you have got to establish that the building wherein the work was done was subject to improvement to the extent of 25 percent of the value of the entire building. That has not been done and for that reason, I will sustain the demurrer in this case.” (Emphasis added.)

The sole issue, in our view, is whether the word "building” as used in the Real Property Article, § 9-102 (a) and § 9-103 (c) (2) means the entire building, or may also encompass a leased portion of a building, as in this case.

II

Maryland Real Property Code Ann. § 9-102 (a) (1980 Cum.Supp.) provides:

"§ 9-102. Property subject to lien.
(a) Buildings. — Every building erected and every building repaired, rebuilt, or improved to the extent of 25 percent of its value is subject to establishment of a lien in accordance with this subtitle for the payment of all debts, without regard to the amount, contracted for work done for or about the building and for materials furnished for or about the building, including the drilling and installation of wells to supply water, the construction or installation of any swimming pool, the sodding, seeding or planting in or about the premises of any shrubs, trees, plants, flowers or nursery products, and the grading, filling, landscaping, and paving of the premises.” (Emphasis added.)

Section 9-103 (c) (2) provides:

"If a building is erected, or repaired, rebuilt or improved to the extent of 25 percent of its value, by a tenant for life or years or by a person employed by the tenant, any lien established in accordance with this subtitle applies only to the extent of the tenant’s interest.” (Emphasis added.)

We note, initially, that the mechanics’ lien law is remedial and is to be construed in the most liberal and comprehensive manner in favor of mechanics and materialmen. Freeform Pools, Inc. v. Strawbridge Home For Boys, Inc., 228 Md. 297, 301, 179 A.2d 683, 684 (1962); Reisterstown Lumber Co. v. Reeder, 224 Md. 499, 507, 168 A.2d 385, 389 (1961). However, courts have no power to extend it to cases beyond the obvious designs and plain requirements of the statute, and a mechanic’s lien is obtainable only if the requirements of the statute are complied with. Freeform Pools, supra at 301, 179 A.2d at 685.

There is no definition of "building” in the lien law and that term has been discussed in only one prior Maryland case on the subject. In Freeform Pools, supra, a swimming pool was held not to constitute a "building” and, therefore, a mechanic’s lien could not be obtained for the costs of its construction. The Court there quoted dictionary definitions of "building,” not here apposite, and went on to state that, "the word 'building’ can not be said to include every type of structure on land” and further observed that the mechanics’ lien law in Maryland "[had] been repeatedly amended to include specific lienable structures” and that the Legislature "never intended that the law be stretched to include within its scope structures which were not clearly within the definition of the items included” such as swimming pools. Id. at 301-02, 179 A.2d at 685.

No Maryland case has heretofore addressed the question whether the word "building” includes a leased portion of a building or, as in this case, a unit in a shopping mall. The appellant argues that the 25 percent requirement can also refer to a portion of a building and that their leased premises constitutes a "building” under § 9-102 (a) and § 9-103 (c) (2). We disagree.

The word "building” in § 9-102 (a) and § 9-103 (c) (2) is nowhere qualified by appropriate language so as to include a part of a building, e.g., a store in a shopping mall or one or more floors in an office building. In this respect, we find instructive the following observation by the Court of Appeals in Board of Zoning Appeals v. McKinney, 174 Md. 551, 199 A. 540 (1938):

"[W]hen one speaks of a building, ordinarily he means the entire building and if he means to refer to but a part of it he indicates by some qualifying words that he refers to less than the whole. * * * And yet if 'building’ means anything less than a whole building, there is no standard to guide the Board in determining how much or how little must be so used as to bring it within the scope of the ordinance.” (Emphasis added.)

Id. at 567, 199 A. at 547, cited in 12 C.J.S. Building at 722, n.54 (1980). See Akers v. Mayor and City Council of Baltimore, 179 Md. 448, 451-52, 20 A.2d 181, 183 (1941); cf. Ambrose & Co. v. Hutchison, 356 S.W.2d 215 (Tex.Civ.App. 1962) (pier was a "building” within mechanics’ lien statute). If the General Assembly intended to include a part of a building in the lien law, the words, "building or any part thereof,” could have been employed. They were not.

Nor can we read into § 9-103 (c) (2) an interpretation of the word "building” which is at variance with its plain and common usage in § 9-102 (a). Although § 9-103 (c) (2) states that, "any lien established in accordance with this subtitle applies only to the extent of the tenant’s interest” (emphasis added), the application of that section is subject to a condition precedent (also found in § 9-102 (a)), viz., that a building be repaired, rebuilt or improved to the extent of 25 percent of its value.

The order of Judge Cahoon sustaining appellees’ demurrer without leave to amend was proper. We find no error in his interpretation of the statute.

Order affirmed; costs to be paid by-appellant.

      . E.G., Shacks v. Ford, 128 Md. 287, 97 A. 511 (1916) (bill which sought to establish mechanic’s lien for installation of hot-water heating plant failed to allege that the repair or improvement to building was to the extent of one-fourth of its value); Stebbins v. Culbreth, 86 Md. 656, 39 A. 321 (1898) (plaintiff not entitled to mechanic’s lien because it was not shown that repair of a hotel’s steam-heating apparatus amounted to one-fourth of the hotel’s value).

      . For a history and discussion of Maryland’s mechanics’ lien law, see generally Frank and McManus, Balancing Almost Two Hundred Years of Economic Policy Against Contemporary Due Process Standards — Mechanics’ Liens in Maryland After Barry Properties, 36 Md.L.Rev. 733 (1977); Cutler and Shapiro, The Maryland Mechanics’Lien Law — Its Scope and Effect, 28 Md.L.Rev. 225 (1968); Recent Legislation, 6 U.Balt.L.Rev. 181 (1976).

      . The statute (§ 9-102 (a)) was thereafter amended to include "the construction or installation of any swimming pool....”

        . The recent case of Noone Electric Co. v. Frederick Mall Associates, 278 Md. 54, 359 A.2d 91 (1976), though involving work performed and materials supplied to stores situated within shopping centers, did not address the question presented here. That case did make it abundantly clear, however, that a lien can attach only to whatever interest or estate is held by the person liable for the costs of construction or improvement and that a lien against a tenant’s interest does not reach the reversionary interest of the lessor-owner. See Caplan Bros. v. The Village of Cross Keys, Inc., 277 Md. 41, 353 A.2d 237 (1976).

      . We note that under the Horizontal Property Act, Real Prop. Art., § 11-115, it is specifically provided that mechanics’ and materialmen’s liens for repairs or improvements of a condominium unit by a unit owner are liens only against the unit.


author: Wilner, J.,

text:
    GEORGIA A. SARGENT v. BOARD OF EDUCATION OF BALTIMORE COUNTY et al.
    [No. 1605,
    September Term, 1980.]

      Decided September 3, 1981.

    The cause was argued before Moyi.an, Melvin  and Wilner, JJ.

      Joseph F. Lentz, Jr., with whom were Richard B. Jacobs and Lentz, Hooper, Jacobs & Blevins, P.A. on the brief, for appellant.

      R. Roger Drechsler, with whom were Lord, Whip, Coughlan & Green, P.A. on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

The Workmen’s Compensation Commission determined that appellant, a custodial employee of the Baltimore County Board of Education, was entitled to compensation by reason of an accidental injury arising out of and in the course of her employment. The Circuit Court for Baltimore County, on appeal by the Board, reversed that determination. We think that the commission was correct and that the court was wrong.

In 1972, appellant became employed by the Board as a Custodian II. That was a classification reserved exclusively for females, whose duties were limited to "light work” such as sweeping classrooms and cleaning restrooms. Male custodians were designated as Custodian I, which carried a higher rate of pay; they were responsible for the heavier tasks of maintenance, including cleaning the school boilers. In 1976, in response to the passage of the Federal Equal Pay Act, the classification distinction between male and female custodians was eliminated and all custodians, regardless of sex, became classified as Custodian I.

The duties of a Custodian I, according to the chief custodian, included "cleaning, cleaning floors, light maintenance, and ... boiler cleaning.” (Emphasis added.)*

The boilers were cleaned once every other year, with the even-numbered boilers being cleaned in the even-numbered years and the odd-numbered boilers being cleaned in the odd-numbered years. Thus, from the custodian’s perspective, it was an annual event. From the record, it is apparent that this task was not a pleasant one; the inside of the boiler was dark, illuminated by one hanging light, and very sooty. The boiler was large enough to accommodate three people, with each person entering the boiler through a small opening by lying horizontally on a board which slid through the opening. When cleaning the boiler, the custodians wore masks as a precaution against hazardous breathing conditions. Once inside, the custodians would clean the soot off the interior walls of the boiler with a wire brush.

Appellant’s first encounter with boiler cleaning came in 1978. She attempted to enter the boiler but fainted, thereby preventing her participation in the annual event. Immediately thereafter, she was examined by a Health Services doctor who diagnosed her reaction as a manifestation of a "mild and subclinical form of claustrophobia,” or, as appellant defined it, her fear of "being confined in a small space.” The doctor recommended that appellant "be delegated to other or equivalent duties . .. but if required to perform the boiler cleaning operation for a period of three to four hours, I can find no absolute contraindication to her performing this task.” The record is unclear as to whether appellant’s supervisors were aware of that report.

On March 16, 1979, appellant was again scheduled to clean the boiler. Under protest, she agreed to enter the boiler and complete her assignment, believing that her refusal would result in the termination of her employment. Another female custodian and appellant’s supervisor entered the boiler before appellant. Upon entering the boiler, appellant screamed, "I can’t breathe” and immediately blacked out, awakening several hours later in the Shock Trauma Unit of University Hospital.

As a result of this incident, appellant filed a workmen’s compensation claim, requesting recompense for the time she missed as a consequence of her experience. Except for two days, appellant was unable to work from March 17 through April 2 due to her nervous condition, for which a doctor prescribed medication. After a hearing, the Workmen’s Compensation Commission awarded temporary total disability for March 17 to April 1, taking into account the intervening two days of work. The award was affirmed on rehearing, at which time appellee appealed to the Circuit Court for Baltimore County. On October 20,1980, the Court reversed the Commission’s finding, holding that appellant’s injury was not accidental and therefore not compensable.

Appellant has appealed to this Court where she asks whether she "sustained] an accidental injury arising out of, and in the course of her employment within the meaning of Article 101, § 15.” We find that appellant did sustain such an injury and, accordingly, we reverse the holding of the Circuit Court for Baltimore County and reinstate the award granted by the Workmen’s Compensation Commission.

Article 101, § 15 states that "[ejvery employer ... shall pay or provide ... compensation .. . for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury. . . .” (Emphasis added.) Whether an injury sustained on the job is an "accidental” one, within the meaning of § 15 has, of course, been the subject of numerous commentaries (see IB Larson’s Workmen’s Compensation Law § 37-60.60 (1980); 18 Md. L. Rev. 131 (1958)) and a plethora of court decisions. While the majority of jurisdictions consider an injury to be accidental if it was the unexpected result of the routine performance of the employee’s duties, the Maryland Court of Appeals has chosen to adhere to a much narrower view. Under this more restrictive view, in order for an injury sustained during the course of his employment to be "accidental,” and thus compensable, it must result "from some unusual strain, exertion or condition in the employment.” (Emphasis added.) Stancliff v. H. B. Davis Co., 208 Md. 191, 198, 117 A.2d 577, 581 (1955). See Geipe, Inc. v. Collett, 172 Md. 165, 190 A. 836 (1937); Schemmel v. Gatch & Sons, 164 Md. 671, 166 A. 39 (1933); State Roads Commission v. Reynolds, 164 Md. 539, 165 A. 475 (1933); City of Salisbury v. McCoy, 47 Md. App. 488, 424 A.2d 164 (1981); Holbrook v. General Motors Assembly Division, 15 Md. App. 425, 291 A.2d 171 (1972); Yellow Cab Co. v. Bisasky, 11 Md. App. 491, 275 A.2d 193 (1971); Whiting-Turner v. McLaughlin, 11 Md. App. 360, 274 A.2d 390 (1971). See also Courtney v. Board of Trustees of the Maryland State Retirement System, 285 Md. 356, 402 A.2d 885 (1979). We, of course, are not at liberty to depart from that restrictive view, which was established by the Court of Appeals.

There have been no generic definitions of what constitutes an unusual condition of employment or an unusual strain or exertion; those criteria have been defined more or less on a case-by-case basis, with the court, in each instance looking to the nature of the employee’s routine duties, the normal conditions of employment, and the usual mental and physical demands placed upon the employee at work.

The common denominator, if there is one, is whether, in the course of the activity leading to the accident the employee had departed from the normal routine of his job or whether the job conditions being performed departed from the normality to which the employee was accustomed on a daily basis. In this regard, the Court has made clear that an injury is not accidental, and thus not compensable, if "the injury results from a 'normal incident’ of an employee’s work.” City of Salisbury v. McCoy, supra, 47 Md. App. at 493, 424 A.2d at 166. In other words, if an injury is sustained while the employee is performing daily, routine duties, the injury has not resulted from an unusual condition of employment or an unusual strain or exertion and is, therefore, not accidental. See Rieger v. Washington Suburban Sanitary Commission, 211 Md. 214, 126 A.2d 598 (1956); Kelly-Springfíeld Co. v. Daniels, 199 Md. 156, 85 A.2d 795 (1952). See also note 3, supra.

In the instant case, the Board maintains that appellant’s injury was not accidental since the cleaning of the boilers was within the job description of a Custodian I, and thus amounted to a routine duty which she was under contract to perform. Appellant, on the other hand, contends that, despite her obligation to clean the boilers once a year, that duty was not among those chores she routinely performed. Her normal duties, except for once a year, involved sweeping classrooms and cleaning lavatories, and it is her position that her "re-classification [to Custodian I] ... had, in essence, no direct bearing on her job duties [of light cleaning and sweeping].” Therefore, she concludes, her injury, arising from the cleaning of the boilers, was not a normal incident of her work.

We agree with appellant. In judging whether a particular task is a "normal incident” of the employee’s work (or, conversely, whether an injury resulted from an "unusual condition” or "unusual strain or exertion”), we must consider two factors: (1) the nature of the particular task in comparison to the other duties required of the employee, and (2) the relative frequency with which the particular task is required to be performed in comparison to the other incidents of the job. Here, both factors militate against a finding that cleaning the boilers was a "normal incident” of appellant’s job or that her injury arose from other than an "unusual” condition or strain.

The cleaning of the boiler was an extreme departure from appellant’s routine duties and required much more physical and mental exertion than that to which she was accustomed on a daily basis. The task was considered so onerous, in fact, that the supervisors required all ten custodians to split the shift so that no one person would be inside the boiler for more than a few hours. The taxing nature of the duty is evidenced by appellant’s immediate supervisor’s statement that he entered the boiler with appellant and the other female custodian in order to prevent them from "panicking.” Moreover, the fact that the task was performed for only two to three hours once a year clearly places it outside any characterization of routine or normal work.

The mere inclusion of the boiler cleaning duty within appellant’s overall job description is not determinative of whether an injury sustained is compensable. The relevant criterion, as we have noted, is whether the duty is routinely performed or performed with enough frequency so as not to constitute unusual work. This Court would be setting dangerous precedent if we were to hold that any duty included within a job description is routine and usual, regardless of its nature or frequency of performance. That would be an open invitation to subversion of the Workmen’s Compensation Law, which is to be liberally construed; and we decline to extend such an invitation.

The instant case is similar to the fact pattern in State Roads Commission v. Reynolds, supra. There, on an extremely hot day, an employee of the State Roads Commission, whose normal duties consisted of light work, namely, "trimming the roadside grass, patching small holes ... keeping dirt from the shoulders . . .,” 164 Md. at 542, 165 A. at 476, was ordered to load 15-30 lb cobblestones in a truck. As a result of the heat and the heavy physical exertion, the employee died of heat stroke. In finding that his death was accidental and therefore compensable, the Court recognized that the employee, in loading the cobblestones, was engaged in a task more laborious than that to which he was accustomed. The Court stated that,

"[i]t may be inferred that he was qualified to do his regular work with no unusual strain or risk, but that he was not qualified to do the work of the 'extra job’ under the extreme weather conditions, and as to him that was an unusual and extraordinary incident of his employment.” 164 Md. at 548, 165 A. at 479.

Comparing State Roads Commission v. Reynolds, supra, to the case at bar, appellant’s mental infirmity, claustrophobia, did not interfere with her daily work routine but was aggravated by a change in her routine — the cleaning of the boiler — which she obviously was not able to handle, despite the fact that other female custodians were capable of working inside the boiler without experiencing deleterious side effects.

To address one further issue, appellee contends that the Commission did not have the authority to award compensation to appellant since the injury arose from the mental condition of claustrophobia and was not accompanied by any physical change. See Courtney v. Board of Trustees, supra; Geipe, Inc. v. Collett, supra. The Commission made implicit in its decision that appellant did suffer a physical change in response to her claustrophobic reaction to entering the boiler when it found that appellant "was temporarily totally disabled from March 17, 1979 to April 1, 1979 ... subject to a credit for days on which ... [she] worked and received wages.” On appeal, however, the circuit court did not address this issue since it held that appellant’s injury was not accidental. Nonetheless, on review of the record from the Commission’s hearing, we conclude that there was sufficient evidence to support appellant’s contention that she suffered a physiological injury.

Appellee overlooks the fact that appellant did have a physical reaction to her claustrophobia. She blacked out for several hours, which is clearly a physiological reaction, and afterwards, was temporarily unable to maintain the composure necessary to continue her work. She was placed on medication to calm her nerves and stabilize her blood pressure. The record is clear that the nervous shock sustained by appellant by her attempt to enter the confines of the boiler caused her blackout, "a physiological injury ... sufficient to qualify as an accidental personal injury under § 15.” Geipe, Inc. v. Collett, supra, 172 Md. at 171, 190 A. at 840.

Judgment of the Circuit Court for Baltimore County reversed; costs to be paid by Board of Education of Baltimore County.

      . The actual "job specification” for a Custodian I is not especially enlightening, in terms of the work actually done. Under one category, "Initiative and Ingenuity,” it states: "Work is of a repetitive nature but requires limited judgment when effecting simple repairs or deviating from schedule due to emergency.” Next, under the heading "Physical Demand,” the job "[rjequires frequent intervals of considerable physical effort to lift and empty containers of trash, move furniture and unload and store supplies.” The following specification, "Mental or Visual Demand” states: "Requires normal mental and visual attention to operate power equipment.” As to "Responsibility for Equipment and Material,” the Custodian I is "[rjequired to assist in the operations and maintenance of boiler plant and auxiliary equipment where careless practice could result in damage in excess of two hundred and fifty dollars ($250.00).” "Working Conditions” are described as "[sjomewhat disagreeable ... when exposed to garbage fumes or when required to clean shop areas where equipment and surroundings might be greasy or dirty.” The remaining job specifications were described as "Responsibility for Safety of Others — Requires reasonable care while operating power equipment to prevent minor injury to others”; "Responsibility for Work of Others — Responsible for assigned work only”; and "Unavoidable Hazards — Failure to exercise due care while climbing or moving heavy items could result in serious injury.”

      . Appellant did raise one other issue on appeal, namely, "[w]as it error for the trial court to allow into evidence a transcript of the re-hearing of July 31,1979, which included a colloquy between counsel and the Commissioner.” Due to our holding as stated above, we find it unnecessary to address this issue.

      . A sampling of Maryland cases where the court found the injury to be caused by an unusual condition of employment or an unusual strain or exertion and therefore compensable as an accidental injury is as follows: Schemmel v. Gatch & Sons, supra (cerebral hemorrhage caused by extreme heat); State Roads Commission v. Reynolds, supra (employee’s death caused by heat stroke, precipitated by extreme heat and the performance of heavy labor); City of Salisbury v. McCoy, supra, (back injury caused by malfunction of dump truck’s tailgate lever); Holbrook v. General Motors Assembly Division, supra (knee injury caused by use of knee pads where employee had routinely used a stool); Yellow Cab Co. v. Bisasky, supra (cerebral vascular incident precipitated by armed robbery).
      An example of those cases which held that the injury was not accidental and therefore not compensable is as follows: Mize v. Beauchamp Associates, 245 Md. 583, 227 A.2d 5 (1967) (during normal routine of work, employee injures back); Stancliff v. H. B. Davis Co., supra (while working under normal working conditions, employee dies as result of the inhalation of varnish fumes); Whiting-Turner v. McLaughlin, supra (employee becomes partially paralyzed after argument with another employee).

      . As appellant made no complaint in this appeal with respect to the amount of the award or the number of days of disability for which compensation was awarded, we have no occasion to consider that issue. See, however, Md. Code, Art. 101, § 48.


author: Weant, J.,

text:
    DUNCAN LEE LATIMER v. STATE OF MARYLAND
    [No. 1650,
    September Term, 1980.]

      Decided September 4, 1981.

    The cause was submitted on briefs to Gilbert, C. J., and Moore and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Adriana V. Klich, Assistant Attorney General, and John R. Salvatore, State’s Attorney for Washington County, for appellee.
   Weant, J.,

delivered the opinion of the Court.

In the case at bar, Duncan Lee Latimer is appealing from the judgment of the Circuit Court for Washington County whereby he was convicted of five counts of uttering a forged check and sentenced to serve consecutive five year terms of imprisonment for each of said convictions. In so doing he asks this Court to consider the following arguments:

I. The lower court erred in admitting the confessions allegedly made by [him],
II. The lower court erred in refusing to dismiss the charges against [him] because the Intrastate Detainer Act had been violated.
III. The lower court erred in sentencing [him] to five consecutive five year sentences on the five uttering a forged check charges.

For the reasons set forth herein, we shall affirm the Washington County Circuit Court judgment.

I.

The brief facts to this issue are these. Duncan Lee Latimer was arrested in April 1980 in Frederick County, Maryland. He was taken to the lockup of the Hagerstown City Police Department where it became the intention that he be questioned by Detective Steven L. Bussard of that department. Before this questioning began Latimer was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); as a result he declined to sign a waiver of these rights. Hence no questions were asked. The appellant made no request for an attorney.

Thereafter, the appellant was transported to the Maryland House of Correction, some eighty-five miles away. The appellant was there approached by Sergeant Scott V. B. English of the Maryland State Police and Detective Bussard armed with an order of court authorizing the obtention of handwriting exemplars from him. Again he was advised of his Miranda rights. This time he signed two waivers of these rights, and, after having been told of their contents and having been requested to read same, Latimer decided to talk. In so doing he made several statements which he later unsuccessfully attempted to suppress.

It is now argued that the trial court erred under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and Miranda v. Arizona, supra, in admitting the statements complained of after the appellant had availed himself of the right to remain silent. It is maintained that the right to remain silent and the right to have an attorney present both require overtures from the defendant before either of these tenets can be waived. Latimer here claims that he did not pursue the questioning, that there was no waiver of the Miranda right to remain silent, and that the officers instituted the examination at the House of Correction in violation of this right.

We think it clear that Edwards is concerned specifically with a valid waiver of the right to counsel and does not encompass the specific request to remain silent. In our view, the situation is entirely different when an individual chooses to remain silent of his own accord without invoking his right to counsel. After the expression by a defendant of the desire for an attorney, the police may approach counsel after such has been provided. However, in the situation where the defendant has chosen to remain silent without more, he has not necessarily indicated a belief that he is unable to speak for himself and is in need of an attorney. Instead, he has chosen to remain silent for the present; that choice should not, in our opinion, destroy all lines of communication nor make a prelude by the defendant absolutely necessary before further questioning. But cf. Bryant v. State, 49 Md. App. 272, 431 A.2d 714 (1981). In that case, where the defendant had asserted the right to counsel and such had not yet been provided, we held that a prelude by the defendant was necessary before he could be questioned further.

In the case of Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the circumstances leading up to the defendant’s confession are strikingly similar to those of the instant case. In both cases the right to cut off questioning was fully respected at the time of the initial interrogation. Thereafter, both defendants were advised of their Miranda rights and both indicated their desire to discuss the matter in question; in neither case was an attorney requested. Here, as in the Mosley case, there was an interval of more than two hours before the defendant was questioned by another police officer at another location. In Mosley, while the initial questioning concerned some robberies, the second questioning covered an unrelated holdup murder. The defendant was again given a full and complete Miranda warning, after which he made an inculpatory statement resulting in his conviction for murder. In our case the appellant was also advised a second time of his rights under Miranda; afterwards he signed two waivers of these rights, telling the officers that "he would talk to us and he understood [the Miranda rights].” Although the questioning that resulted apparently included the same subject matter as was attempted at the first interrogation, the initial purpose of the second inquiry was for the extraction of handwriting exemplars.

In arriving at its conclusion that Mosley’s incriminating statement did not dilate the principles of Miranda v. Arizona, supra, the Supreme Court considered the argument posed by the dissent, i.e., that Miranda established the tenet that once a person expresses a desire to remain silent questioning may be resumed only when counsel is present. 423 U.S. at 105 n. 10, 96 S.Ct. at 326 n. 10, 46 L.Ed.2d at 321 n. 10. In so doing the Court went on to state as follows:

But clearly the Court in Miranda imposed no such requirement, for it distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that "interrogation must cease until an attorney is present” only "[i]f the individual states that he wants an attorney.” [Id. (emphasis added) (quoting Miranda v. Arizona, 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723)].

However, there can be no question that this is so under Edwards v. Arizona, supra. In that case the Supreme Court said at 451 U.S. 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 386:

We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

The Court went on to point out in Edwards that "[i]n Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Court noted that Miranda had distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and had required that interrogation cease until an attorney was present only if the individual stated that he wanted counsel.” 451 U.S. at 485, 101 S.Ct. at 1885, 68 L.Ed.2d at 386.

There are innumerable cases which hold that Miranda does not create a per se proscription of all further interrogation once the person being interrogated has invoked his desire to remain silent. Hill v. Whealon, 490 F.2d 629 (6th Cir. 1974); United States v. Collins, 462 F.2d 792 (2d Cir.) (en banc), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972); Jennings v. United States, 391 F.2d 512 (5th Cir.), cert. denied, 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 136 (1968); United States v. Choice, 392 F.Supp. 460 (E.D. Pa. 1975); People v. Naranjo, 181 Colo. 273, 509 P.2d 1235 (1973) (en banc); People v. Pittman, 55 Ill.2d 39, 302 N.W.2d 7 (1973); State v. McClelland, 164 N.W.2d 189 (Iowa 1969); State v. Law, 214 Kan. 643, 522 P.2d 320 (1974); Fellows v. State, 13 Md. App. 206, 283 A.2d 1 (1971), cert. denied, 264 Md. 747 (1972); Gardner v. State, 10 Md. App. 233, 269 A.2d 186 (1970), cert. denied, 404 U.S. 937, 92 S.Ct. 279, 30 L.Ed.2d 250 (1971); Conway v. State, 7 Md. App. 400, 256 A.2d 178 (1969); State v. Godfrey, 182 Neb. 451, 155 N.W. 2d 438, cert. denied, 392 U.S. 937, 88 S.Ct. 2309, 20 L.Ed.2d 1396 (1968); People v. Gary, 31 N.Y.2d 68, 286 N.E.2d 263, 334 N.Y.S. 883 (1972); State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968); Commonwealth v. Grandison, 449 Pa. 231, 296 A.2d 730 (1972); State v. Robinson, 87 S.D. 375, 209 N.W.2d 374 (1973); Hill v. State, 429 S.W.2d 481 (Tex. Crim. App.), cert. denied, 393 U.S. 955, 89 S.Ct. 384, 21 L.Ed.2d 367 (1968); State v. Estrada, 63 Wis.2d 476, 217 N.W.2d 359, cert. denied, 419 U.S. 1093, 95 S.Ct. 687, 42 L.Ed.2d 686 (1974). The reasoning in these cases seems to be that once the right to silence has been expressed the police must at that time cease their interrogation. This serves to notify the defendant that all he needs to do to foreclose or halt questioning is to give a negative response when asked if he will submit thereto. In order to communicate this message it is imperative that the interrogation stop for some period of time. By this stoppage the defendant is made aware that he need answer no further questions either then or later unless he so desires. It seems then that the action that is condemned in Miranda is police refusal to take a defendant’s "no” for an answer, that is, situations wherein the police continue to question and thereby harass and coerce the defendant so as to overcome his asseveration of his constitutional right to remain silent.

We think this situation entirely different from that with which we are confronted here; namely, when an individual chooses to remain silent on his own and not to seek the right of counsel. As stated previously, we do not believe that the defendant’s choice to remain silent for the present should destroy all lines of communication. Such a situation could lead only to a stalemate.

In the instant case, after Latimer had invoked his right to silence no questions were asked. Instead, he was transported from Hagerstown to the House of Correction at Jessup. There he was approached by officers who bore an order of court to get some handwriting exemplars. According to the testimony of Officer Bussard no promises or threats were made to the appellant; that same officer also testified that, after giving the handwriting exemplars, Latimer made certain inculpatory statements. Conversely, the appellant denies that these incriminating statements were voluntary and that his signing of the waiver forms was voluntary; instead he claims that he executed the waivers and made the statements in question after the officers threatened to hold him in contempt for failure to obey the court’s order to give the handwriting samples. He alleges that he thought he was giving these samples when he in fact was signing the waivers. However, an examination of the forms which he signed clearly belies this pretext. Whereas the waivers that he executed were entitled "Waiver,” the forms containing the handwriting specimens were each entitled "Handwriting Specimen Form” and carried a repetition of certain items in Latimer’s handwriting.

In denying the appellant’s motion to suppress the inculpatory statements, the trial court commented that "this Court does not believe [Latimer’s] testimony . ...” The court further said that it was "satisfied that any statement ... given was given after a full and fair understanding of his Miranda rights and a waiver thereto.”

Accordingly, we find that there was no violation in the case at bar of Miranda as explicated by Edwards v. Arizona, supra. Moreover, as was the case in Jackson v. State, 13 Md. App. 31, 280 A.2d 914 (1971), we recognize that where there is conflict in the respective testimonies of the appellant and the police as to whether or not any promises or threats were made to induce a confession, such presents an issue of fact for the trial court’s determination. Here we think that issue was resolved properly.

II.

The record of the instant case reveals that Latimer’s request for disposition under the Intrastate Detainer Act was filed in the circuit court on 26 June 1980, twenty-nine days after his initial appearance in that court. Thereafter, on the scheduled trial date of 1 July 1980, the defense, in seeking a continuance, had this to say:

Your Honor, I would like to move on behalf of Mr. Latimer and I am sure that we could consider this as a joint motion from defense and State for a continuance of this case; the reason being that when Mr. Latimer was up here for first appearance some weeks ago, there was some preliminary plea negotiations with the State and I’m sure Mr. Salvatore, as well as myself, we were both under the distinct impression that the case would be pled out this morning or today. However, there has been a change in circumstances and a change in Mr. Latimer’s feelings and the State thinking that the case was going to be pled, I’m sure it doesn’t have its witnesses here nor does defense have any of its witnesses here if there be any in the future nor are we prepared to try the case. Mr. Latimer indicates he eventually wants trial by Jury and certainly defense nor STate [sic] is ready to do so at this time. So therefore, your Honor, I would respectfully move that the case be continued to a later date.

The court acceded to Latimer’s wish by rescheduling the trial for 25 August 1980.

On two subsequent occasions the trial of the appellant was postponed; the first time at the State’s request because of the absence of a necessary witness and the second time because of the lack of an available courtroom and a jury. When his case did come on for trial on 24 November 1980, one hundred and fifty-one days after his disposition request had been filed, Latimer moved that the indictments filed against him be dismissed because section 616S of article 27 of the Annotated Code of Maryland had been violated. Subsection (b) of that statute provides that "the prisoner shall be brought to trial within 120 days after he has delivered (1) to the State’s attorney ... of the county in which the indictment ... is pending and, (2) to the appropriate court, his written request for a final disposition to be made of the indictment. . . .” That subsection also provides that for good cause shown in open court any necessary or reasonable continuance may be granted. Where the 120 day provision has been breached, dismissal of the untried indictment without prejudice is the appropriate sanction according to subsection (e) of that same statute.

Unlike the appellant we can find no violation of section 616S. Clearly the delay from July 1st until August 25th, a delay of fifty-six days, is attributable to good cause since it was occasioned by the unpreparedness of both the prosecution and the defense to proceed to trial. Further, the appellant did not object to the postponement of trial, most probably because it was his unwillingness to follow through with previous plea negotiations that sparked the delay in the first instance. Obviously then good cause to grant a continuance existed and there has been no violation of section 616S’s 120 day provision.

III.

This very issue was addressed by the Court of Appeals in its decision of Kaylor v. State, 285 Md. 66, 400 A.2d 419 (1979); we therefore adopt that Court’s conclusion that "a judge may, in the exercise of his discretion, impose consecutive sentences for distinct violations of the law, thus preventing duly convicted offenders from escaping punishment for the commission of their criminal acts.” Id. at 71, 400 A.2d at 423.

Judgment affirmed.

Costs to be paid by the appellant.

      . The record would appear to indicate that the appellant was being returned to the Maryland House of Correction because he had escaped therefrom.