text:
    MONTGOMERY WARD & CO., INCORPORATED v. HERMAN CHARLES BELL
    [No. 1264,
    September Term, 1979.]

      Decided June 16, 1980.

    The cause was argued before Moylan, Lowe and Wilner, JJ.

      Alfred M. Porth, with whom were Theodore B. Cornblatt, S. Woods Bennett and Smith, Somerville & Case on the brief, for appellant.

      Thomas V. Friedman, with whom were Joyce Seunarine and Rosen, Esterson & Friedman on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

On April" 23, 1975, appellee suffered an accidental injury during the course of his employment with appellant. He filed a claim with the Workmen’s Compensation Commission which, on September 23, 1977, conducted an evidentiary hearing to consider the nature and extent of appellee’s disability. Following the hearing, the Commission referred appellee to its medical examiner (who, in turn, referred him to a neurosurgeon) for an evaluation of appellee’s permanent disability. On February 16, 1978, the Commission awarded appellee permanent disability benefits for a 60% industrial loss of use of his body as the result of his accidental injury.

Appellant — the employer — appealed this decision to the Circuit Court for Baltimore County, submitting the case for decision by the court (without a jury) on the record made before the Commission. No new or additional evidence was offered in the judicial proceeding. After reviewing the administrative record, the court, on August 1, 1979, affirmed the Commission’s award. In its Memorandum Opinion, the court said:

"In reviewing this ruling, the court is 'guided by the general statutory command that the decision(s) of the Commission (are) entitled to prima facie correctness ... a Court, therefore, may reverse a Commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts’ [sic], Frank v. Baltimore County, 284 Md. 655, 658, [399] A.2d [250] (1979), Md. Ann. Code of 1957, Art. 101, Sec. 56 (A).
"After reading the transcript and considering the film viewed in open Court, the Court does not find that the Commission was erroneous in its interpretation and finding of fact or in the application of the law to the facts, and, therefore, the Court finds that the Commission had before it evidence legally sufficient to support its decision.”

Dissatisfied, appellant moved for a new trial. Quoting now from a stipulation entered into by the parties pursuant to Maryland Rule 1026 (e):

"In its memorandum in support of this [new trial] motion, the employer and self-insurer argued that Judge Hormes had applied the incorrect standard of review in considering the appeal from the Commission’s decision. It was argued that the court’s reliance on Frank v. Baltimore County, 284 Md. 655, 399 A.2d 250 (1979), was misplaced because the Court of Appeals had misapplied Article 101, Section 56 of the Annotated Code of Maryland in reaching its decision in Frank. The employer and self-insurer contended that Frank, which involved a workmen’s compensation claim for an accidental injury, had incorrectly been grounded on the Court of Appeals’ prior decision in Maryland Bureau of Mines v. Power, 258 Md. 379, 265 A.2d 860 (1970), which had involved a workmen’s compensation claim for an occupational disease. It was the contention of the employer and self-insurer that Article 101, Section 56 provides for a broader standard of appellate review in accidental injury cases than is allowed in occupational disease cases and that Section 56 permits the appellate court to reassess and evaluate the facts of a claim for accidental injury and render its own opinion based on the facts rather than being bound by the Commission’s findings of fact as the appellate court is in an occupational disease claim.
"The lower court denied this motion for a new trial on October 4,1979. The court stated that it had not misapplied the law 'and that the facts were sufficient to uphold the ruling of the Workmen’s Compensation Commission.’ ”

Appellant presses its claim in this Court that the trial court applied an incorrect standard of review in affirming the Commission’s award. This is based upon the proposition, inferred from the wording of the Memorandum Opinion, that the court viewed its role as being limited to a determination of whether the evidence before the Commission was sufficient to support its conclusion and not as encompassing the broader scope of review set forth in Md. Ann. Code art. 101, § 56 (a).

We agree with appellant as to what the proper scope of review is in an accidental injury case. As to whether the trial court applied that test, the record, unfortunately, is not as clear as it could be; however, for the reasons we shall hereafter explain, we cannot say that the court applied an incorrect standard of review.

The standard, and scope, of judicial review of Workmen’s Compensation Commission decisions is set forth primarily in sections 56 (a) and (c) of art. 101. Section 56 (c) provides, in relevant part, that "[i]n all court proceedings under or pursuant to this article, the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same.” There is little dispute about the meaning or applicability of that provision.

Section 56 (a) is quite lengthy and encompasses a number of matters pertaining to appeals from the Commission. The relevant parts, in terms of this proceeding, are as follows:

"Any employer .. . feeling aggrieved by any decision of the Commission affecting his interests under this article, may have the same reviewed by a proceeding in the nature of an appeal.. . and the court shall determine whether the Commission has justly considered all the facts concerning the injury, whether it has exceeded the powers granted it by the article, and whether it has misconstrued the law and facts applicable in the case decided.... If the court shall determine that the Commission has acted within its powers and has correctly construed the law and facts, the decision of the Commission shall be confirmed. ... Upon the hearing of such an appeal the court shall, upon motion of either party ... submit to a jury any question of fact involved in such case provided, however, that in all appeals in which occupational diseases are involved, the findings of fact by the Commission shall be final and not subject to review or modification by the court or be submitted to a jury.”

As the Court of Appeals noted in Md. Bureau of Mines v. Powers, 258 Md. 379 (1970), § 56 (a), coupled with a provision in § 29 of art. 101, distinguishes between appeals involving occupational diseases and all other appeals (i.e., those involving accidental injuries) in terms of the scope of judicial review. In appeals involving accidental injuries, the reviewing court has very broad authority, notwithstanding the prima facie correctness of the administrative decision. This review, said the Court at p. 382, "extends both to findings of fact and applicable law” and "provides for a trial which is essentially de novo.” See also Dent v. Cahill, 18 Md. App. 117 (1973).

Where the appeal concerns an occupational disease, however, the General Assembly intended that Commission determinations be cloaked with a more pervasive degree of finality, necessarily restricting the revisionary authority of the court. At p. 383 (omitting citations):

"We have recognized that a finding of the Commission may be reversed when it is based on an erroneous conception of the applicable law. . . . Utilizing this principle our decisions have extended the power of review to the factual field because we have held '[notwithstanding the finality which these statutes seek to confer upon such findings of the Commission, they are subject to review if not supported by substantial or legally sufficient evidence (both terms being found in the cases), and the existence of such evidence is a question of law.’ ”

Looking at § 56 (a) in light of Powers, the standards to be applied in reviewing Commission decisions are these:

(1) Where the case involves an accidental injury, the court must determine three things: (i) did the Commission justly consider all the facts concerning the injury; (ii) did the Commission exceed its statutory authority; and (iii) did the Commission misconstrue the facts or the law applicable to the case?

(2) Where the case involves an occupational disease, the court looks only to whether the Commission misconstrued the applicable law. Included within that inquiry, however, is whether there was substantial (or legally sufficient) evidence to support the Commission’s factual conclusions, that being, in essence, an issue of law rather than of fact. See Burdock v. Kaiser Aluminum, 22 Md. App. 631, cert. den. 272 Md. 738 (1974), and compare ABC Day Care Center v. Browne, 17 Md. App. 470 (1973).

The apparent source of confusion in this case is a brief passage in Frank v. Baltimore County, 284 Md. 655 (1979). That case happened to involve an accidental injury, but the only issue before the Court was a purely legal one — whether the "offset” provision of §§ 33 (c) and (d) of art. 101 applied to a pension benefit received by the injured employee from a contributory pension plan. There was no argument, in the Court of Appeals, over the nature and extent of the injury or its basic compensability under the Act. In that context, the Court observed, at p. 658:

"In reviewing ... [the Commission’s ruling on this issue] we, as was the circuit court, are to be guided by the general statutory command that 'the decision[s] of the Commission [are] entitled to prima facie correctness.’ Md. Bureau of Mines v. Powers, 258 Md. 379, 382, 265 A.2d 860, 862 (1970) (applying Md. Code (1957, 1964 Repl. Vol.), Art. 101, § 56 (c)). A court, therefore, may reverse a commission ruling only upon a fínding that its action was based upon an erroneous construction of the law or facts, id. at 383 [862]; Md. Code (1957, 1979 Repl. Vol.), Art. 101, § 56(c), the former being the sole issue presented for judicial determination in this case.” (Emphasis supplied.)

The second (italicized) sentence of this passage, we deign to suggest, does appear to be a bit misleading. It purports to apply a test discussed in Powers in connection with an occupational disease case to an accidental injury situation, but then does not state that test in quite the same way as it was expressed in Powers. The Court in Powers sanctioned reversal in an occupational disease case only upon a finding of an "erroneous conception of the applicable law,” by the Commission and not upon a finding of an "erroneous construction of facts.” As noted earlier, the only ground of reversal on the facts, in such a case, is where there is a legal insufficiency of evidence to support the Commission’s factual conclusions. This has to do with the quantum of evidence before the Commission, however, not with the Commission’s "construction” of that evidence. Conversely, it would seem clear from Powers (and a long line of cases preceding it) that, in an accidental injury case, the scope of judicial review is broader than merely determining "an erroneous construction of the law or facts,” unless included within that phrase, implicitly, is the issue of whether the Commission "justly considered] all the facts concerning the injury.”

Given the issue actually before the Court in Frank, we do not believe that the Court intended by this language to mark any change in the principles so clearly enunciated by the same author in Powers. We think, rather, that it was merely intended to refer the reader back to Powers, and to continue unchanged and undiminished the dual criteria as expressed therein. In other words, we construe the language in Frank as expressing, in a somewhat truncated fashion, the same concepts and standards set forth in Powers. This, then, would include, in an accidental injury case, whether the Commission justly considered all the facts concerning the injury.

We think further that the trial court considered Frank, which it cited and quoted in its Memorandum Opinion, in the same way. It said that, after review of all the evidence before the Commission, it could not find that the Commission erred either in its "interpretation and finding of fact” (emphasis supplied) or in its application of the law to the facts; and, for that reason, believed that the evidence was legally sufficient to support the Commission’s decision. This was supplemented by the later finding that "the facts were sufficient to uphold” the Commission’s ruling.

There was apparently no claim here that the Commission exceeded its statutory authority, and the court’s finding clearly embodied conclusions that (1) the Commission did not err in its construction or application of the law or in its interpretation (construction) of the facts, and (2) the evidence was legally sufficient to support the Commission’s factual conclusions. The only reviewable issue stated in Powers not explicitly articulated by the trial court was whether the Commission justly considered all the facts concerning the injury. Aside from the incorporation of this criterion in the more general Frank language, we think it was implicitly considered and determined when the court found no error in either the Commission’s interpretation or fínding of fact. Certainly, there is nothing in the record to require a contrary conclusion by this Court.

It would no doubt be less confusing if, in articulating the standards employed in reviewing Commission decisions, the courts would revert to the language of Powers and more carefully differentiate between the standards applicable to accidental injury cases and those that govern occupational disease cases. For the reasons noted, we see no reversible error here, however.

Judgment afGrmed; appellant to pay the costs.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    STATE OF MARYLAND COMMISSION ON HUMAN RELATIONS v. BALTIMORE COUNTY et al.
    [No. 1270,
    September Term, 1979.]

      Decided June 16, 1980.

      The cause was argued before Moylan, Lowe and Wilner, JJ.

      Louis A. Young, Assistant General Counsel, with whom was Risselle Rosenthal Fleisher, General Counsel, on the brief, for appellant.

      Phyllis C. Friedman, Deputy County Solicitor, with whom was Leonard S. Jacobson, County Solicitor, on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

—background—

So awesome was the power of the subpoena looked upon at common law that the English courts were only able to obtain it by subterfuge. It was "invented” by John Waltham, bishop of Salisbury and chancellor to King Richard II, by a strained interpretation of the statute of Westminster 2. This dangerous "novelty devised by the subtlety of Chancellor Waltham, against the form of the common law” caused "the commons [to be] repeatedly urgent to have the writ of subpoena entirely suppressed” throughout the reigns of both Henry IV and V.

Despite its illegitimate birth and legislatively precarious early life, it has over the centuries been accepted as so commonplace that in Maryland it is entrusted not only to the courts, but to over forty administrative agencies ranging alphabetically from the Aviation Commission to the Workmen’s Compensation Commission, and in scope from cosmetologists to county commissioners — for enforcement of dog license requirements. Ironically, however, the Legislature has withheld the power not only from the Governor of Maryland but its Attorney General as well.

The utility of the compulsion process as an investigatory device was acknowledged by Blackstone and is as broad in scope as its user’s imagination. Its careful use and seldom abuse, up to now, whether ad testificandum (to give evidence), or duces tecum (to produce books or records), has substantially diminished the original public fear of any abuse of this power by government officials.

Such complacent acceptance is seen most pronouncedly during the last half century in the attitude of courts in enforcing administrative investigatory subpoenas. Equitable Trust Company v. State of Maryland Commission on Human Relations, 287 Md. 80, 89-100 (1980). Between 1924 and 1950 the Supreme Court has moved from the limited enforcement view expressed by Mr. Justice Holmes in Federal Trade Com. v. American Tobacco Co., 264 U.S. 298, 306 (1924),

"The right of access given by the statute is to documentary evidence, — not to all documents, but to such documents as are evidence. The analogies of the law do not allow the party wanting evidence to call for all documents in order to see if they do not contain it. Some ground must be shown for supposing that the documents called for do contain it.”,

to the language of Mr. Justice Jackson in United States v. Morton Salt Co., 338 U.S. 632, 652 (1950):

"Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.”

The ephemeral fears of our forefathers appeared more substantial when this Court pointed out in Equitable Tr. v. State of Md. Comm’n, 42 Md. App. 53 (1979), that data subpoenaed from 63,000 accounts which would entail 9,600 work hours to supply, at a cost conservatively of $96,000, would have to be produced because:

" 'If the information or records sought is relevant or material to the charge under investigation and the [agency] proceeds as authorized by the statute, then any inconvenience or difficulty (which is actually inherent in any compulsory process proceeding) must be considered as a 'part of the social burden of living under government.’ ’ ” Id. at 71, quoting EEOC v. U.S. F. & G. Co., 414 F. Supp. 227 (D. Md. 1976) which, in turn, quoted from H. Kessler & Co. v. EEOC, 53 F.R.D. 330 (N.D. Ga. 1971).

Fortunately for Equitable, the Court of Appeals reversed as (Equitable Trust Company v. State of Maryland Commission on Human Relations, 287 Md. 80 (1980)); but unfortunately for others who may be encumbered by this "social burden of living under government”, the Court of Appeals was compelled to acknowledge only limited means of relieving the oppressiveness of an agency subpoena.

—the facts—

On January 12, 1976, James H. Whye, a black male employee of nine years with the Baltimore County Department of Highways (the Department), filed with the Maryland Commission on Human Relations (the Commission) a sworn complaint pursuant to Md. Code, Art. 49B, § 9 (a), describing how the Department was maintaining racially segregated facilities for its employees to his detriment. He added a sentence expressing a "feeling” that the Department was discriminating against blacks in hiring practices. On April 22, 1976, he amended his complaint that he "further believe[d]” that the discrimination extended to promotion practices. The amended complaint was as follows:

"I have worked for the Department of Highways for 9 years as a chauffeur laborer. In the work area there are 2 buildings used by the men as assembling areas. One building is old & used by the Black workers. The other building, which is new & has more facilities is used by the White workers. I believe the Department of Highways is discriminating against me and other Blacks by maintaining segregated facilities. I further believe the Department is discriminating against Blacks as a class in the areas of hiring & promotion.”

In its brief, appellant, State of Maryland Commission on Human Relations, states that both complaints "were duly authorized for investigation ... by then Executive Director of the Commission”, presumably referring to the procedure described in Md. Code, Art. 49B, § 10 (a) which states:

"After the filing of any complaint the executive director shall consider the complaint and shall refer it to the Commission’s staff for prompt investigation and ascertainment of the facts. The results of the investigation shall be made as written findings. A copy of the findings shall be furnished to the complainant and to the person, firm, association, partnership or corporation (hereinafter referred to as the 'respondent’), against whom or which the complaint is made.”

The Commission’s staff then pursued the investigation. What then transpired is described by the appellant Commission in its brief.

"During the early stages of the investigation, the Commission, after interviews with both black and white employees of Respondent, made a preliminary determination that the Baltimore County Department of Highways was not maintaining segregated facilities — i.e., that there was no probable cause to believe that the law was in that respect being violated. In order to complete its investigation and to make a determination as to the remaining allegations of the complaint, the Commission’s investigator requested from Appellee specific and detailed information regarding appellee employment practices. Appellee, while supplying the Commission with a small portion of the information sought, continually and steadfastly refused to comply with the substantial portion of the Commission’s request.
As a result of Appellee’s refusal to comply with the Commission’s requests for documents and information, the Commission issued, in accordance with Sec. 11 (d) of Article 49B, a subpoena duces tecum on August 26, 1976, requesting that the County produce for the Commission’s inspection specific documents concerning certain employment practices for the period June 1, 1975 to June 30, 1976.”

The substance of the subpoena was as follows:

"In accordance with the authority contained in Article 49B, Section 14 (d) of the Annotated Code of Maryland (1968 Replacement Volume), you are hereby directed to appear before the Maryland Commission on Human Relations, Suite 300, Metro Plaza, Mondawmin Mall, Baltimore, Maryland 21215 at 10:00 a.m. on Friday, September 17, 1976 in the matter entitled James Whye vs. Baltimore County Department of Highways and deliver to Frederick J. Dalton, Intergroup Relations Representative the following documents. The documents are described on the attached 2 pages, on each of which the Executive Director’s signature appears.
ALL QUESTIONS REFER TO THE BALTIMORE COUNTY BUREAU OF HIGHWAYS FOR THE PERIOD OF JUNE 1, 1975 THROUGH JUNE 30, 1976.
1. Application of all persons who applied for any jobs with the Bureau.
2. Applications of all persons who were hired for any and all jobs with the Bureau.
3. Applications of all persons whose applications were rejected, with indications of reasons for rejection.
4. Any and all documents, memoranda and other writings or copies thereof describing the duties and qualifications for all vacancies which occurred, indicating how much weight is assigned to each qualification.
5. Any and all written tests or copies thereof, indicating for which vacancies administered.
6. The validation study or copy thereof for any of the tests listed in response to question #5 above.
7. Any and all applications and other writings or copies thereof of persons applying for promotions, indicating names, race and dates of application. If rejected, indicate reason and name and race of the decision maker(s). If selected, indicate dates of promotion and name and race of decision maker.
8. Any and all documents, memoranda and other writings or copies thereof describing the duties and qualifications for all promotional openings which occurred, indicating how much weight is assigned to each qualification.
9. Any and all written tests or copies thereof, indicating for which vacancies administered.
10. The validation study or copy thereof for any of the tests listed in response to question #9 above.
11. All records of or lists of employees as of June, 1976 by job category showing name, race, sex, date of hire, initial job classification and date present job classification became effective.”

Upon the refusal of the County to respond, a second subpoena of like import was issued. The County’s refusal to comply this time was met with a petition to enforce filed pursuant to Art. 49B, § 11 (d) in the Circuit Court for Baltimore County. After an evidentiary hearing and argument, the trial judge denied the petition because he found that:

1. The petitioner was not a person aggrieved by either hiring or promotion practices within the contemplation of Art. 49B, § 9 (a).
2. That neither the complaint nor evidence showed an occurrence of discrimination in hiring or promotion injurious to the complainant.
3. That the subpoena requisitions were neither " 'relevant’ ” nor " 'necessary’ ” to the investigation as required by Art. 49B, § 11 (d).

The Commission has appealed that denial, contending that:

"Where the Commission sought an Order to Compel Production of Documents pursuant to a validly issued Commission Subpoena Duces Tecum and produced evidence at the Circuit Court that the subpoenaed information was relevant and necessary for the Commission’s proceedings, the Circuit Court Order denying the Commission’s Petition for an Order Compelling Production of Documents was clearly erroneous”.

The Commission argues that the court below "was without jurisdiction to rule upon the sufficiency of the allegations made in Mr. Whye’s complaint” because that prerogative was solely the executive director’s as indicated in Art. 49B, § 10 (a) above. It contends that the court was limited to applying the threefold test in Banach v. St. Comm’n on Human Rel., 277 Md. 502 (1976), for determining the validity of a subpoena:

1. Whether the inquiry is authorized by statute.
2. Whether the information sought is relevant to the inquiry.
3. Whether the demand is too indefinite or overbroad.

Despite appellant’s contention to the contrary, the court applied that threefold test. The Commission overlooks that in order for the court to decide whether an inquiry is authorized by statute, or the information sought is relevant, it necessarily must review the scope of the complaint. It also overlooks the fact that § 10 (a) does not provide the executive director a discretionary prerequisite; it mandates that he "shall” consider and "shall” refer "any” complaint for a preliminary investigation.

In this case, as pointed out by appellant itself, there has been full and satisfactory compliance and a conclusion to the segregated facilities charges in Mr. Whye’s complaint. That which is at issue is the single sentence wherein Mr. Whye stated:

"I further believe the Department is discriminating against Blacks as a class in the areas of hiring & promoting.”

In order to determine whether the statute authorized the inquiry, Banach, supra at 506, the complaint must comply with statutory prerequisites, one of which in this case is § 9 (a) elliptically providing that:

"The complaint shall state . . . the act of discrimination together with the particulars thereof. ...”

The discriminatory act complained of in regard to segregated facilities was set forth along with the particulars thereof, and the Department admittedly cooperated with the investigation of that complaint. The Commission also admits that the subpoena is not relevant (Banach, supra) to that particularized portion of the complaint relating to segregated facilities. The trial judge must therefore look for "the act of discrimination” and "particulars thereof’ regarding hiring and promotion practices to see whether the inquiry, which is the subject matter of the subpoena, is authorized by statute. There was obviously no "particular” or specific "act” of discrimination relating to Mr. Whye’s hiring or promotion set forth in the complaint and it follows that the complaint, reflecting only the complainant’s "belief’ or "feeling”, is not a sufficient statutory compliance to authorize an inquiry.

In our version of Equitable Tr. v. State of Md. Comm’n, supra, we pointed out that the Court of Appeals in Banach addressed the "particulars” requirement of what is now § 9 (a), holding that the failure to particularize the complaints there did not preclude the Commission’s power to issue subpoenas while conducting a § 9 (b) preliminary investigation. At first blush that conclusion would seem to support the Commission’s contention that Banach and its companion case, Soley v. St. Comm’n on Human Rel., 277 Md. 521 (1976), hold that the lack of particulars will not render unenforceable a validly issued investigatory subpoena. But there is a distinction in § 9 (referred to in those cases as § 12) glossed over in appellant’s brief, that was obscured in Banach and Soley because it was not at issue in either.

Section 9 deals with two distinct types of complaints. Section 9 (a) authorizes and addresses an individual complaint, i.e., by "[a]ny person claiming to be aggrieved”, which complaint, the statute says, must be particularized. Section 9 (b) authorizes a complaint issued by the Commission itself which it may do simply upon receiving "reliable information” and it is its own judge of reliability. Banach, supra. As previously noted, § 10 mandates a preliminary investigation by the Commission’s staff after the filing of either type of complaint but § 9 (b) authorizes such an investigation before the Commission complaint upon the authorization of the chairman or vice-chairman after receipt of such "reliable information.”

Originally, the complaints in Banach were by four individuals under § 9 (a) and a staff investigation was begun pursuant to § 10 (a). When the Commission’s requests for information were objected to by Banach on the ground that these complaints lacked "the particulars” required by § 9 (a), the Commission chairman authorized in writing a "preliminary investigation” under § 9 (b) anticipatory to a Commission complaint thereunder, citing receipt of "reliable information” of discrimination, which recitation presumably referred to the § 9 (a) individual complaints.

The Court of Appeals, in noting that § 9 (b) requires a preliminary investigation before it may issue a Commission complaint, held that the Commission possessed statutory authority to issue a subpoena duces tecum "in connection with [such] a preliminary investigation under Art. 49B, § 12 (b) [now 9 (b)].” Id. at 512-513. It then addressed the question whether the Commission was empowered to issue the subpoenas for a preliminary investigation pursuant to a § 9 (b) Commission complaint where the four individual § 9 (a) complaints comprising the "reliable information” required by § 9 (b), lacked the particulars required by § 9 (a). It held that so formal a complaint, capable of meeting the individual complaint particulars test, was not a prerequisite to the commencement of a § 9 (b) administrative complaint preliminary investigation. Id. at 514.

But that is not the posture of the case before us. Here the Commission is simply conducting a preliminary staff investigation as required in § 10 (a) upon an individual § 9 (a) complaint. The chairman or vice-chairman of the Commission has not authorized a preliminary investigation under § 9 (b) and consequently there is present neither the § 9 (a) nor the § 9 (b) safeguards from harassment, i.e., the prerequisite for some particularization of at least a single act of (hiring or promotional) discrimination as required by § 9 (a) or the alternate safeguard, i.e., invoking the Commission chairman’s or vice-chairman’s discretion by calling upon him to certify that the Commission has received what it determined to be "reliable information” sufficient upon which the chairperson has authorized a preliminary investigation under § 9 (b). The faith reposed by the Legislature in a chairman’s judgment of what information is sufficiently reliable to warrant a preliminary investigation anticipating a Commission complaint was not reposed in "[a]ny person” whose complaint under § 9 (a) will also trigger a preliminary staff investigation under § 10 (a). To separate valid individual complaints from those of overzealous malcontents, the Legislature required individuals to set forth the act of discrimination against them and "the particulars thereof’.

It is also apparent that the discussion in Banach dealing with the term "particulars” addressed its restrictions upon that term as if it were a legalism defining the juridical sophistication of detailing a claim, see, e.g., Black’s Law Dictionary 1275 (4th ed. rev.), as opposed to discussing the prerequisite statutory necessity of an individual complaint setting forth a particular or specific act of discrimination. Banach reasoned that complaints are often filed by "individuals unschooled in the legalistic complexities of the pleading process”, id. at 514, but nowhere indicated that a complainant need not have been "aggrieved” by some particular act of discrimination prerequisite to invoking the Commission’s investigatory powers on his behalf under § 10. It should also be noted that we do not address the question of "reliability” of information which would under § 9 (b) justify the Commission to authorize a preliminary investigation, no § 9 (b) investigation having been authorized here as it had been in Banach. Id. at 505. It is enough to note that such reliability was not attested by a chairperson’s investigatory authorization.

The investigation here was that required of the Commission staff under § 10, when referred to it by the executive director. Significantly, the scope of investigation is limited to determining whether

"there is probable cause for believing a discriminatory act has been or is being committed ....”§ 10 (b) (emphasis added);

it is not the broader § 9 (b) investigation to determine whether "any person has been engaged or is engaged in any discriminatory practice within the scope of this article.” That broader, more general responsibility to ferret out discriminatory practices is confined to the chairman or vice-chairman whose judgment is subject to the Commission in which administrative faith has been reposed. It may not be invoked by an individual complainant whose recourse requires recitation of a specific act. Certainly an intuitive feeling or a vague belief that discrimination may exist is not enough under § 9 (a) and would hardly be "reliable information” even if communicated to the Commission pursuant to § 9 (b).

On the complaint form, in bold print at the top, the Commission itself recognized the § 9 (a) distinction. Its instructions to individuals presuppose that a § 9 (a) complaint must allege an act of discrimination by instructing the complainant that,

”The Act of Discrimination must be based on Race, Color, Religion, Sex, Marital Status, National Origin, Age, Physical Hardship, Mental Handicap”. (Emphasis added.)

One of the considerations of statutory interpretation of legislative intent is how an agency has interpreted its own statutory procedures. Public Serv. Comm’n v. Howard Res., 271 Md. 141, 152 (1974). We agree with that implicit interpretation by the Commission.

We feel compelled to note that even if the subpoena in this case were relevant to a statutorily authorized inquiry into an alleged discriminatory hiring practice somehow affecting Mr. Whye, it could hardly have been subject to inquiry under § 10 since he had been employed for 9 years. While it is hard to see how he could be discriminated against by having been hired, even so assuming, a complaint must be filed within six months of the act of discrimination.

Beyond that, had the aborted inquiry also related to an act of promotional discrimination, the Commission’s testimony at the hearing admitted that although Mr. Whye’s personnel file "probably” would have been determinative of the promotional issue, it was never sought by request or subpoena. The investigator explained that she

"was hoping that his application would be included in the applications that I requested throughout the period of time.”

In other words, instead of asking for one likely determinative file, the Commission subpoenaed documents that would have brought the personnel division of the Department to a standstill for three weeks.

It appears that appellant has interpreted the "social burden of living under government” language we quoted in Equitable, supra, as permitting it to be indifferent to the inconvenience, cost or difficulties of complying with the requisition clause of its subpoena. If not indifferent, then the statute is being interpreted to expand the role of the staff if not the Commission and in light of the onerous burdens so lightly imposed by the awesome power of subpoena, either borders upon an abuse of that process. The trial judge observed:

"I personally think this, and I feel very strongly about this, Mr. Young [of counsel for appellant], because I don’t think anybody ought to be discriminated against. It’s a wonderful country and should be for all of us. But at the same time, sir, I think when you take the law, and here you are taking the law and making a sword out of it, not for the purposes of determining this gentleman’s rights and what discriminations are against him, but rather against a complete county, I think that is oppressive and if you have the right to do this, you can bring this entire sub-division to its knees and bring it to a stand still, both financially and through work records, to get all of this information which has nothing to do with Mr. Whye at all.”

We were admonished to adhere to the findings of the trial judge by the Court of Appeals when it reversed us in Equitable, supra.

"Trial judges generally are vested with a wide range of discretion. This is no less so in their determination of the relevance or oppressiveness of agency subpoenas. Because they are on the scene and intimately acquainted with the details at the time, they are in a better position than are appellate judges to evaluate such an issue as oppressiveness or burdensomeness . .. .” Equitable Trust, 287 Md. at 97.

We adhere to that admonition with alacrity.

Judgment affirmed.

Costs to be paid by appellant.

APPENDIX:

List of Agencies with subpoena power.

Transp. Art., § 5-209 State Aviation Commission

Art. 2B, § 193 Power to summons for Comptroller, board of license commissioners for any county or Baltimore City, or State Appeal Board

Cts. & Jud. Proc. Art., § 3-217 Arbitrators

Art. 11, § 8 Bank Commissioner and Deputy

Art. 23, § 161F Department of Buildings, Savings & Loan Associations, any board created

Art. IV, § 4B of Md. Const. Judicial Disabilities Commission

Art. 25, § 105 Clerk of Board of County Commissioners summon defendant landowners who have not signed petition

Art. 27, § 106 State’s Attorneys; support for destitute parents

Corps. & Assoc’s. Art., § 11-701 Securities Commissioner

Art. 33, § 3-10 Art. 38A, § 5 Local Election Boards State Fire Prevention Commission

Art. 38A, § 8 (h) State Fire Marshal

Art. 40, § 30 Legislative Policy Committee

Art. 40, § 40A Committee on Legislative Review

Art. 40, § 61C Legislative Auditor

Art. 40, § 79 Legislative Investigative Committees

Art. 41, § 188A Sundry Claims Board

Art. 41, § 205E Board of Appeal of State Department of Employment and Social Services (only for appeals filed on or before July, 1978)

Art. 41, § 206B Board of Review of Department of Health and Mental Hygiene

Transp. Art., § 2-506 Board of Review of Department of Transportation

Nat. Res. Art., § 1-107 Board of Review of Department of Natural Resources

Art. 41, § 257G Board of Review of Department of Economic and Community Development (only for appeals filed on or before July, 1978)

Transp. Art., § 10-203 Washington Metropolitan Area Transit Commission

Art. 43, § 3 Secretary of Health and Mental Hygiene

Agrie. Art., § 2-304 State Board of Veterinary Medical Examiners

Agrie. Art., § 4-222 State Board of Agriculture

Art. 43, § 518 (g) (2) Maryland Architectual Registration Board

Art. 43, § 545 (a) State Board of Cosmetologists

Art. 43, § 636 (d) State Board of Examiners of Psychologists

Art. 43, § 698 (d) Department of Health and Mental Hygiene; Air Quality Control

Art. 43, § 568M Health Services Cost Review Commission

Art. 43B, § 5 (o) Maryland Drug Abuse Administration

Art. 44A, § 8 (g) Local Housing Authorities

Art. 48A, § 27 (1) Insurance Commissioner

Agrie. Art.,§ 7-206 State Tobacco Authority

Art. 49B, § 11 (d) Human Relations Commission

Art. 26, § 148 (a) District Court Judges, power to summons

Real Prop. Art., § 8-401; § 8-402 Landlord-Tenant; District Court to issue summons

Real Prop. Art., § 13-103 Archivist (Hall of Records) power to summons including summons duces tecum

Art. 56, § 194 County Commissioners: to issue summons via sheriff to enforce dog licenses requirements

Art. 56, § 225 Real Estate Commission and Real Estate Board have power to subpoena persons

Art. 56, § 260 Maryland Home Improvement Commission; Power to subpoena persons and documents

Cts. & Jud. Proc. Art., § 9-201 Judges

Art. 59, § 27A Department of Mental Hygiene; empowered to issue compulsory process for attendance of witnesses and production of papers

Transp., Art., § 7-210 Maryland Transportation Authority; power to subpoena witnesses, papers, records and documents

Art. 66, § 54 Bank Commissioner of Maryland; power to subpoena witnesses, documents, papers, books and other evidence

Transp. Art., § 12-108 Motor Vehicle Administration — summon witnesses, books, papers or records

Nat. Res. Art., § 6-109 Maryland Geological Survey of the Department of Natural Resources — power to summon witnesses, records, books and documents

Art. 78, §§ 63 & 80 Public Service Commission; subpoena duces tecum

Art. 78B, § 11 Maryland Racing Commission

Art. 81, § 41 (See § 106) (a) State Department of Assessments & Taxation and all local supervisors of assessments (b) Sections 229,231 — Maryland Tax Court (c) Section 304 — State Comptroller (d) Section 179 — An arbitration board in certain cases called by the Comptroller

Art. 75V2, § 8 County surveyors (See Cts. & Jud. Proc. Art., § 9-202)

Art. 95A, § 12 Executive Director or Board of Appeals of Department of Employment Security

Art. 101, § 8 Workmen’s Compensation Commission

      . II Cooley’s Blackstone (4th ed.) at 893.

      . See Appendix.

      . The original complaint was similar to its amended counterpart. It read:
      "I have worked for the Department of Highways for 9 years as a chauffeur laborer. In the work area, there is a shed where men go to rest. Previously, there had been only one shed and the Black employees used that one. White employees merely stayed in their trucks or offices. The Department built another shed with more facilities. Now the white employees use the better shed, and the Black employees use the older shed. I believe the Department of Highways is discriminating against me and other Blacks by maintaining segregated facilities because of our race. I further feel that the Department of Highways is discriminating against Blacks as a class because of their race in the area of hiring.”

        . The subsection reads:
      "Any person claiming to be aggrieved by an alleged discrimination prohibited by any section of this article may make, sign and file with the Human Relations Commission (hereinafter referred to as the 'Commission’) a complaint in writing under oath. The complaint shall state the name and address of the person, firm, association, partnership, corporation, state agency, department or board alleged to have committed the act of discrimination together with the particulars thereof; and the complaint also shall contain such other information as may be required from time to time by the Commission. A complaint must be filed within six months from the date of the occurrence alleged to be a violation of this article. A complaint filed with the federal or with a local human relations commission within six months from the date of occurrence shall be deemed to have complied with the provisions of this section.”

      . See note 3 supra.


author: Wilner, J.,

text:
    C. W. JACKSON & ASSOCIATES, INC. v. DAVID L. BROOKS et al.
    [No. 1271,
    September Term, 1979.1

      Decided June 16, 1980.

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

      Richard W. Kiefer and Dorothy M. Beaman for appellant.

      James E. Carbine, with whom were David M. Blum, Kevin G. Gralley and Weinberg & Green on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

Appellant requested the Circuit Court for Baltimore County to modify certain provisions of an arbitration award, and the court did so. The modification made was not what appellant had in mind, or desired, however, and so it now claims that the court had no power to make the modification. We agree.

The controversy arises out of a construction contract dated October 6, 1972, under which appellant, the contractor, agreed to build a sales and service facility for appellee, an automobile dealer. A host of complaints arose from the contract — charges and counter-charges involving appellant, one or more of its subcontractors, appellee, and appellee’s architect and engineer. Pursuant to the architect’s and construction contracts, and interim court rulings not especially relevant here, the disputes were submitted to arbitration in two stages. Stage I — that with which we are concerned in this proceeding — involved the claims and counterclaims between appellant and appellee; disputes involving the architect were reserved for Stage II.

The arbitration proceeding was protracted and lengthy. Hearings commenced in April, 1976, and, after a substantial hiatus, were concluded on October 15, 1977 — a year and a half later. The initial award was rendered on November 15, 1977, and was delivered to the parties within a day or two thereafter.

The arbitrator took as a starting point the unpaid contract price of $177,292.79, against which he considered the credits claimed by appellee for various errors and deficiencies on the part of appellant, and the amounts claimed by appellant for interest and extra work done. One of the claims made by appellee — the one that forms the basis of this proceeding — was that the ductwork on or about the roof of the building was improperly installed and, as installed, did not meet specifications. The arbitrator agreed that this was so, concluding that appellant "clearly failed to fully meet the specifications in regard to this work.”

There were three complicating features with respect to this claim. First, the engineer employed by appellee’s architect — Henry Adams, Inc. — had approved the installation, notwithstanding the deficiencies; second, appellee had obtained widely varying estimates as to the cost of correcting the problem, ranging from $750 to $15,400; and, third, the corrective measures had to be coordinated with other repairs and improvements required to be made to the roof. On the other hand, the subcontractor that was generally responsible for installation of the ductwork — Mills & Sons, Inc. — conceded that the installation was improper and agreed in writing to make all -necessary repairs to the satisfaction of Adams at its own expense.

The arbitrator considered Mills’ offer as "a fair manner in which to resolve the problem” provided that the work was done expeditiously — within 120 days — and was certified by Adams, and he adopted that remedy. Taking account of the complicating features noted above, he also provided (in relevant part):

"It will be necessary for Mills to coordinate its work with that of the roofer employed by Brooks and should it fail to do so, its work shall not be deemed satisfactory. Allowance has been made to Brooks for the cost of roofing work in Item A.l.b. infra, and, in order to obtain a fully satisfactory result, Brooks will have to arrange with Adams or Mills to have whatever roofing work needs to be done in conjunction with Mills’ work carried out concurrently with it.
"Brooks shall be entitled to withhold $16,000 from the amount otherwise due Jackson under this Award until either (1) Mills declines to do the work as specified herein, in which case it shall.so notify Brooks in writing within fifteen days of the date of this Award and Brooks shall be entitled to retain the $16,000 or (2) Mills performs the work within the time specified herein and Adams certifies that it is satisfactory in writing, at which time said amount shall be paid over to Jackson. Should Mills perform the work within the time allowed, but Adams fail or refuse to certify that it is satisfactory, Jackson shall have the right to apply either to the Circuit Court for Baltimore County or to this arbitrator for determination of whether Adams’ certification was unreasonably withheld. Should the court or arbitrator find that such certification was unreasonably withheld, Jackson shall be entitled to receive from Brooks not only the principal sum of $16,000 but also interest thereon at the rate of 8% per annum, from the date of this Award plus his costs and attorneys’ fees attendant upon the collection of such money.” (Emphasis supplied.)

The arbitrator also ruled, of course, on the other matters in controversy; the problems with the ductwork and the roof were not the only issues attempted to be resolved in the award.

Appellee was the first to express dissatisfaction with the award; on December 14, 1977 (60 days after rendition of the award), it filed a petition in the Circuit Court for Baltimore County claiming that the arbitrator erred in failing to award damages to appellee and in awarding an amount to appellant for extended supervision costs. Appellee made no complaint about that part of the award dealing with the roof or the ductwork; its petition was silent as to those matters. On January 4,1978, appellant filed an answer to the petition in which it denied the substantive allegations and asked that the award be confirmed. It made no reference in its answer to the ductwork or roofing repairs or to those parts of the award concerning them.

Five months later, appellant reversed field. On June 14, 1978, it filed a petition, in the same proceeding, to modify the award with respect to the $16,000 withheld in order to secure the ductwork repairs. Appellant recited that (1) under the award, the subcontractor Mills was to coordinate its repair work with the work to be done by appellee’s roofer, Bollinger; (2) the ductwork was to be completed by June 15, 1978; and (3) Mills and appellant had been prevented from coordinating (and thus doing) the ductwork because of appellee’s failure to advise them with respect to the roof repairs. As a result, appellant asked that the court modify the award by requiring appellee to pay the $16,000 withheld from appellant and discharging appellant and Mills from any further responsibility in connection with the ductwork.

By the time these petitions came on for hearing in May, 1979, Mills was no longer in business. It ceased operation in December, 1978. Appellee defended against appellant’s request for payment of the $16,000 on the basis that, because neither Mills nor Adams were parties to the arbitration proceeding, the arbitrator had exceeded his authority in assigning them duties with respect to the ductwork. That part of the award, therefore, was alleged to be in error. Appellee asked that it be allowed to keep the $16,000 or, in the alternative, that appellant be ordered to make the ductwork repairs.

Evidence produced at the hearing established that, pursuant to the arbitration award, a meeting was held at appellee’s office on January 4,1978, in order to discuss plans for the coordinated repair of the roof and the ductwork. Present, among others, were representatives of the parties, Mills, Bollinger, and Adams. According to Mr. Robert Ford, then vice-president of Mills, it was understood that Bollinger would be doing the roof repairs, that Mills was to coordinate its work with Bollinger, that there appeared to be no problem in effecting such coordination, and that it was agreed to delay the work until the end of the spring rains. None of this was contradicted.

Ford said that he heard nothing more until April, 1978, when Bollinger called to arrange a meeting to discuss coordination of the work. Such a meeting was held in May, but Mills never heard from Bollinger thereafter. Ford said that Mills was ready and able to perform the work until it ceased operations in December, 1978 — five years after the building was completed, two years after the arbitration award.

Appellee’s explanation for the delay, also uncontradicted, was that, after April, 1978, Bollinger lost interest in doing the roofing work on other than a "time and materials” basis, and appellee was unable to obtain another roofer to do the job at a price it was willing to pay.

Upon this evidence, the court concluded, in relevant part:

"Clearly, the arbitrator, in fashioning his award in this manner, allowed Jackson the opportunity to have the ductwork contractor perform the necessary repairs at no cost, and upon the failure to correct such defects, provided for damages to Brooks in the amount of $16,000.00. It is uncontroverted that the repair work has not been completed and that Mills is no longer available to perform the necessary repairs. The Court finds, therefore, that the Award shall be modified to allow Brooks to retain the $16,000.00 as damages resulting from the defective ductwork. Having found the Arbitrator’s award to be in the alternative, repair or damages, the Court’s action in this regard is clearly mandated under Courts and Judicial Proceedings Article, Section 3-223(3), as not affecting the merits of the controversy. In so ruling, the Court specifically finds that any delay on the part of Brooks in failing to provide a roofing contractor was not of such magnitude as to defeat Brooks’ entitlement to damages for the defective ductwork.”

In this appeal, appellant contends, alternatively, that (1) the court’s modification of the award affected the merits of the controversy, and was therefore precluded by Courts article, § 3-223 (b) (3), and (2) in any event, by its own inaction, appellee has forfeited its right to the $16,000. Appellee denies both of these assertions, but raises no other matter in defense of the court’s action.

We agree that the court erred in making the modification, but for a much more fundamental reason than those asserted by appellant. Neither its petition nor the matter of repairs to the ductwork or roof was properly before the court.

The authority of a court to correct or modify an arbitration award is carefully spelled out, and limited, in Courts article, § 3-223. Subsection (a) thereof states: "A petition to modify or correct the award shall be filed within 90 days after delivery of a copy of the award to the applicant.” Unless a party files an application to vacate, modify, or correct the award "within the time provided in §§ 3-222 and 3-223,” the court "shall confirm the award.” See § 3-227.

The 90-day time limit specified in § 3-223 (a) is not merely a helpful guideline. It is a mandatory requirement, a statute of limitations; and if the petition for modification is not filed within the 90 days, the court has no authority to consider it or the matters affirmatively presented by it. See Nick-George Ltd. v. Ames-Ennis, Inc., 279 Md. 385 (1977), construing analogous time limits in § 3-222 (application to the arbitrator for modification) and § 3-224 (petition to court to vacate award) as mandatory; also Bd. of Ed. of Charles Co. v. Ed. Ass’n, 286 Md. 358, 366 (1979), reaffirming the mandatory character of those time limits. We see nothing in the statute that would warrant any different interpretation being given to the time limitation in § 3-223. See Trustees of Boston & M. Corp. v. Massachusetts B.T.A., 294 N.E.2d 340 (Mass. 1973); Emporium Area J.S.A. v. Anundson Const. & Bldg. Sup. Co., 166 A.2d 269 (Pa. 1960); and cf. Witt v. Reinholdt & Gardner, 587 F.2d 383 (8th Cir. 1978).

Appellant’s petition was not filed within 90 days of delivery of the award; nor, as noted, was the issue presented in it raised in defense to appellee’s petition or otherwise before the court. The only cognizable response to appellee’s petition to modify was appellant’s request that the award be confirmed. The court, therefore, had no authority to act upon appellant’s untimely petition to modify, or upon the matter of the ductwork.

Judgment pertaining to $16,000 damages for defective ductwork reversed; case remanded to Circuit Court for Baltimore County for entry of order dismissing appellant’s petition for modification; costs to be divided equally between appellant and appellees.

      . There are two appellees — David L. Brooks and Brooks Buick, Inc. Their interests in this proceeding appear to be identical, and, for purposes of clarity, we shall, except in the mandate, refer to them collectively in the singular, as appellee.

      . The initial award required that the work be completed within 120 days (i.e., by March 15, 1978). This was subsequently extended by an agreed modification to the award until June 15, 1978.

      . This would not, of course, exclude a party from properly raising matters after the expiration of 90 days, in defense to a petition to confirm, vacate, or modify that was itself timely filed. See, for example, Riko Enterprises, Inc. v. Seattle Supersonics Corp., 357 F. Supp. 521, 523 (S.D.N.Y. 1973), and cases cited therein, construing the Federal Arbitration Act, in particular 9 U.S.C. § 12; also Milwaukee Police Ass’n v. City of Milwaukee, 285 N.W.2d 119 (Wis. 1979).

      . This produces a potential dilemma for parties to an arbitration proceeding. The time limits prescribed in 88 3-222 — 3-224 all date from delivery of a copy of the award, and do not account for the contingency that an award, clear and complete on its face, may become ambiguous and incomplete because of subsequent events. This, of course, is what happened here; it was not until after the expiration of 90 days that the problem arose.
      In this case, appellant had a remedy. It could, at some point between April and November, 1978 — i.e., when it became clear that appellee was dragging its corporate feet in terms of securing a roofer and before the demise of Mills — have petitioned the court to confirm and enforce that part of the award implicitly directing appellee “to have whatever roofing work needs to be done in conjunction with Mills’ work carried out concurrently with it.” There is no time limit specified in 8 3-227 with respect to a petition to confirm an award, and it seems to us that such a petition would have properly presented the matter to the court and permitted judgment to be entered thereon. See § 3-228.
      We recognize, of course, that, subject to some other remedy found by appellant (upon which we shall not comment), the effect of our conclusion is to leave the parties precisely where the circuit court left them.


author: MacDaniel, J.,

text:
    LANCE V. AMBROSE v. HOWARD GERSH
    [No. 1276,
    September Term, 1979.1

      Decided June 16, 1980.

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

      Barry C. Steel and Glen M. Fallin for appellant.

      Glenn W. Bell, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

On November 1, 1978, appellant Lance V. Ambrose filed a Declaration in the Superior Court of Baltimore City against Howard Gersh, appellee, requesting damages as a result of alleged slanderous and defamatory statements made by Gersh against appellant. A demurrer to the Declaration was sustained, with leave to amend. Thereafter, on May 3, 1979, appellant filed an Amended Declaration. Appellee once again demurred, and the trial court sustained the demurrer without leave to amend, ruling as follows:

"Upon a review of the Court file, including the testimony before the Community Relations Commission, and consideration of argument of counsel, the Court is of the opinion that the Defendant in giving his testimony before the Commission was acting within the scope of his employment as an Assistant State’s Attorney for the City of Baltimore and therefore is immune from suit. It seems clear from the transcript of the testimony that he was speaking on the part of the State’s Attorney’s Office and that his testimony lacks any suggestion of malice against the Plaintiff.
It is also clear that he was testifying as a witness before a duly authorized governmental agency. He was duty bound under the circumstances to relate the occurrence in question to the Commission.
The Court need not reach the issue raised, whether the statement, 'At that point, very frankly and very honestly, we are very close to an indictable offense for obstruction of justice,’ is defamatory in nature. See Foster v. Pearcy, 387 N.E.2d 446 (1979).
Consequently, the Defendant’s Demurrer to the Amended Declaration is hereby SUSTAINED without leave to Amend. Judgment in favor of the Defendant.”

In this appeal appellant alleges error to the trial court’s decision to sustain the demurrer and dismiss his suit. We agree with appellant, and based upon this procedural error we shall reverse and remand for further proceedings.

Appellant was an employee of the City of Baltimore — more specifically, a member of the city’s Community Relations Commission (CRC). Appellee was an Assistant State’s Attorney for Baltimore City. On or about October 20, 1978, the CRC conducted a public hearing, at which time appellee gave testimony allegedly containing the slanderous and defamatory statements.

Maryland Rule of Procedure 301, governing the form and contents of pleadings, provides in part, in subsection b:

"A pleading shall be brief and concise and contain only such statements of fact as may be necessary to constitute a cause of action or ground of defense, except as may otherwise be necessary for purposes of demurrers and motions. . . . The contents of a pleading or of an exhibit attached thereto, or any part thereof, may be adopted by reference in a different part of the same pleading or in another pleading or in any motion.”

And, in subsection c:

"Any pleading which contains a clear statement of the facts necessary to constitute a cause of action or ground of defense shall be sufficient without reference to mere form, and it shall not be necessary to state time or place in a pleading except where time or place forms a part of the cause of action or ground of defense.”

Maryland Rule 345 governs proceedings and rulings on demurrers. We enunciated the test of a demurrer under this rule in Gallant v. Bd. of County Comm’rs, 28 Md. App. 324 (1975), at 329:

"When hearing a demurrer to a bill of complaint, the chancellor should assume as true, for the purposes of demurrer, all of the well pleaded facts in the bill of complaint and attached exhibits, as well as the inferences which may be drawn from those well pleaded facts. Parish v. Md. and Va. Milk Producers Ass’n, Inc., 250 Md. 24, 71. In its determination, the court may not assume facts not pleaded ..., Petroli v. Baltimore, 166 Md. 431, 436, nor may additional facts relied on by a party be supplied. Nohowel v. Hall, 218 Md. 160, 164. The ruling is limited to a consideration of the pleading demurred to, and instruments or documents which do not form a part of the pleading may not be considered. Pullman Co. v. Ray, 201 Md. 268.”

And see Beach v. Mueller, 32 Md. App. 219 (1976). Furthermore, in Hooke v. Equitable Credit Corp., 42 Md. App. 610, 616 (1979), we wrote: "To withstand a demurrer a party need only allege facts which, if proven, would entitle, him to relief.”

A review of appellant’s Amended Declaration and the partial transcript of testimony from the October 20, 1978 CRC hearing (attached to and incorporated in the Amended Declaration as Exhibit 1) discloses the following allegations.

1. Appellant was a trusted and respected employee in governmental service, and a staff member of the Community Relations Commission of Baltimore City.
2. Appellee appeared at the October 20, 1978, meeting of the CRC as a private citizen and not within the scope of his employment as an Assistant State’s Attorney.
3. Appellee volunteered to appear before the CRC; he was neither subpoenaed by the CRC nor requested to testify.
4. Appellee maliciously, recklessly and negligently did falsely and slanderously accuse appellant of having committed the criminal offenses of obstruction of justice and subornation of perjury.
5. The slanderous statements were broadcast to persons at the meeting, and to those listening to radio transmissions of the meeting.
6. Appellee’s accusations were calculated to and did hold appellant up to public scorn, hatred and ridicule and were calculated to and did injure and prejudice appellant in his employment and profession by hindering his ability to effectively discharge his duties as a staff member of the CRC. The statements injured his good name and reputation generally.

As we view the law in this State on the subject of defamation there are two possible bases upon which the slanderous statements allegedly made by appellee could be immunized: prosecutorial immunity and witness immunity. However, in view of the allegations contained in appellant’s Amended Declaration, neither of these bases was sufficient to nonsuit him.

To begin with, prosecutorial immunity could not possibly have been a proper basis upon which to sustain a demurrer in this case. Notwithstanding the question whether the specific privilege has ever been recognized by courts in this State, appellant specifically alleged that appellee appeared before the CRC unbidden, not under subpoena, as a private citizen and not in his capacity as an Assistant State’s Attorney. Appellee asserts that "there is no question” that he did indeed appear before the CRC in his official capacity, and that the transcript of his testimony attached to the Amended Declaration as Exhibit 1 demonstrates this. We disagree; it appears that the transcript supports appellant’s allegations. At the very least, the testimony sufficiently raises a question on the point. Nevertheless, the trial court ruled that appellee was immune from suit because, in giving testimony, he was performing his duties as an Assistant State’s Attorney. We have no doubt that in so ruling the court must have relied upon facts not appearing on the face of the pleadings. This was error.

Witness immunity was an equally unsuitable basis for sustaining the demurrer. The privilege of a witness while testifying in a judicial proceeding was recently discussed in Adams v. Peck, 43 Md. App. 168 (1979) and Korb v. Kowaleviocz, 285 Md. 699 (1979). In Korb the Court of Appeals held that, following the so-called "English” rule, defamatory statements made by a witness while testifying in a judicial proceeding are unconditionally privileged. In Adams this Court held that the Korb-type privilege extends to communications made by a witness to counsel prior to trial, provided the communication relates in some way to the pending litigation. But we are aware of no Maryland case in which such a privilege has been extended to defamatory statements made by a witness at an administrative, or "quasi-judicial” hearing. Furthermore, we find little or nothing on the face of appellant’s pleading to suggest whether the CRC hearing was a "quasi-judicial” proceeding in the first place. Under these circumstances, therefore, the trial court erred in ruling that because appellee was testifying before a "duly authorized governmental agency,” appellee was therefore immune.

Although holding as we do that appellant’s Amended Declaration sufficiently stated a cause of action to overcome appellee’s demurrer, we wish to emphasize that we venture no opinion on the merits of his suit. Whether appellant can prove the allegations which he has made is a question separate and distinct from the one we here address. It may be that, after further proceedings upon proper motions and after presentation of additional facts upon the record, short of a trial on the merits, appellee will sufficiently demonstrate a basis for prosecutorial immunity, or witness immunity, or both. We suggest that under proper circumstances the Court of Appeals might extend Korb, supra, to "quasi-judicial” proceedings. But the question whether the CRC hearing was such a proceeding cannot be answered without further findings of fact.

Judgment reversed.

Case remanded for further proceedings consistent with the views stated in this opinion.

Appellee to pay the costs.

      . Appellee argues that "although the issue of prosecutorial immunity has not come directly before the Maryland Courts of Appeal, it appears in dicta that the absolute immunity of prosecutors is recognized,” citing Carr v. Watkins, 227 Md. 578, 583 (1962) and Eliason v. Funk, 233 Md. 351, 356 (1964), which in turn cite Yaselli v. Goff, 12 F.2d 396 (2nd Cir. 1926), aff'd per curiam, 275 U.S. 503, wherein a Special Assistant to the Attorney General of the United States was held absolutely immune from civil liability for statements made while performing his duties.


author: Gilbert, C. J.,

text:
    MARILYN SMITH t/a Smith Furniture Company et al. v. ATTORNEY GENERAL OF MARYLAND
    [No. 1284,
    September Term, 1979.]

      Decided June 17, 1980.

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

      A. Dwight Pettit, with whom was Jerome Shuman on the brief, for appellants.

      Jonathan Acton, II, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and William Leibovici, Assistant Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal would never have arisen in the days of yore, when caveat emptor ruled supreme. Those days, it seems, are gone forever, and if not, are at least passe at this time. Caveat emptor has been replaced by caveat venditor. The instant ctfse is concerned with the Maryland General Assembly’s effort to afford greater protection to the consumer in the form of Consumer Protection Laws (CPL), Maryland Commercial Law Code Ann. (1975) §§ 13-301 — 501.

The matter reaches us because the appellants, Marilyn Smith, Jack Smith, Smith Furniture Co., and Smith Furniture Discount, Inc. were assessed civil penalties of $300 in each of 100 alleged violations of the CPL, a total of $30,000. In addition to the civil penalty, the court appointed a receiver to take charge of and operate the furniture business of the appellants.

This litigation was commenced when the Attorney General of Maryland filed a suit in the Circuit Court for Washington County against the appellants for alleged violations of the consumer protection laws. At the conclusion of the trial, the circuit court, in addition to the civil penalties to which we have made reference, 1) awarded costs against the appellants; 2) ordered that the appellants jointly and severally pay the sum of $2,075.06 to six named former customers of the appellants; 3) directed the Washington County Sheriff to take custody "immediately” of the property and assets of Smith Furniture Discount, Inc.; and 4) appointed co-receivers of the property and assets of Smith Furniture Co.

Vastly upset by what they view as defects in both the trial procedure and the relief granted, the appellants raise an octad of issues for our review, namely:

"I.
Whether one who in good faith makes a promise to perform in a certain manner and is later unable to perform because of intervening conditions is guilty of an unfair or deceptive trade practice?
II.
Whether under the Maryland Consumer Protection Act a Court may find a defendant guilty of violations soley [sic] on the basis of the number of complaints made against and where the complaints are unsupported by the testimony of the complaining parties as witnesses at the trial or other credible evidence?
III.
May Jack Smith be found guilty of a violation of the Consumer Protection Act when there is no testimony, evidence, or allegation that he was a participant in any of the alleged conduct, or that he had knowledge of the existence of the alleged conduct?
IV.
Whether it is a denial of due process of law for the State to fail to follow the Mandatory Conciliatory provision set forth in its own Code?
V.
Whether the general allegations in the 'Seven Day Notice of Injunctive Relief filed by the State were so lacking in specificity that the Appellants were not accorded a fair opportunity to defend and were thereby deprived of due process of law?
VI.
Whether the Appellants were deprived of their Constitutional right to a jury trial?
VII.
Whether the Appellants were deprived of their property without due process of law when the Court ordered the Sheriff immediately after the trial to take possession and control of all of the property and assets of Smith Furniture Discount, Inc., Smith Furniture Company and any and all assets related to the conduct of that business and to maintain control over these assets until such time as a receiver was appointed?
VIII.
Whether the charges against the Appellants in this case were so totally devoid of evidentiary support as to render the judgment against them unconstitutional under the Due Process Clause of the Fourteenth Amendment?”

We have set out below the skeletal facts of the case in order for the reader to have a better understanding of why the appellants appear in this true-to-life drama, cast in two roles, depending upon through whose eyes one sees the play. The Attorney General depicted appellants as conniving merchants concerned solely with lining their own pockets at the expense of their mistreated and abused customers. The appellants, however, see themselves as harassed small business people who have done their utmost to satisfy and service their customers, but whose efforts have been frustrated by matters beyond their control.

Marilyn and Jack Smith own and operate the Smith Furniture Co., located exclusively in Hagerstown, Maryland, and which, as its name suggests, is a retail furniture store. The business is characterized in the record as "a typical mom and pop operation.” The Smiths’ son, Morris, owns a truck. He is employed by the company to make pickups of furniture from a variety of manufacturers and to deliver furniture to customers. In both instances he uses his own truck. Frequently, another employee of the furniture store helps him. Mr. Smith, because of declining health, has become relatively inactive in the business with the result that Mrs. Smith presently operates it almost single-handedly, save for the signing of checks, which power allegedly still remains exclusively in her husband.

During 1975 and 1976, but prior to November 10, 1976, the Consumer Protection Division (Division), at its Hagerstown office, received approximately twenty written complaints from customers of the Smith Furniture Co. The complaints were with regard to the business practices of the Smiths which led to customer dissatisfaction with the way the furniture company was servicing orders for furniture.

According to Mr. Larry E. Munson, a consumer protection investigator, who testified as an expert at trial, the complaints prior to November 10, 1976, fell into three categories: eleven concerned missed and rescheduled delivery dates; three were about the receipt of wrong furniture; and six resulted from the failure to receive any furniture at all.

Because the Division thought it had reasonable grounds to believe the practices about which complaints were made may have been unfair and deceptive and thus prohibited under Commercial Law § 13-301, it attempted to remedy the situation by way of conciliation. Smith Furniture and the Division, on November 10, 1976, entered into a written "Assurance of Discontinuance” pursuant to section 13-402 (a).

The agreement was signed by Jack I. Smith in his individual capacity and T/A Smith Furniture Co. In the agreement, Smith covenanted, without admitting the truth of the Attorney General’s allegations, that the company would henceforth deliver furniture on agreed dates and refrain from delivering different or damaged goods. The Attorney General, in return, contracted to withhold further action so long as "Jack I. Smith, T/A Smith Furniture Company” did not breach the Assurance.

Subsequent to entering into the Assurance, the Division continued to receive complaints in increasing numbers against Smith Furniture. The number of complaints filed in each of the three categories to which Munson testified, were 65, 13, and 18, respectively. It was stipulated between counsel that since 1975, the Division had received a total of at least 100 complaints against the appellants.

Inasmuch as the "Assurance of Discontinuance” had no deterrent effect on the Smith Furniture Company, the Attorney General took the next step allowed by the Consumer Protection Act. He instituted an action against the appellants under section 13-406 (a) of the Act so as to obtain an injunction and other appropriate relief. Before doing so, however, and in compliance with section 13-406 (b) of the Act, the Attorney General served a notice of the general relief sought seven days in advance of the filing of the Bill. An offer of conciliation was served with the notice which read in pertinent part:

"The .. . [Division] hereby offers ... [Jack Smith, T/A Smith Furniture Company and Jack Smith, individually] an opportunity to conciliate the alleged violations of the Maryland Consumer Protection Act. If you intend to conciliate these matters please contact... [the Division] in writing no later than seven (7) days from the date this Notice and Offer of Conciliation are received.”

The Attorney General apparently received no reply to his offer.

A Bill of Complaint filed by the Attorney General alleged that the appellants had committed unfair or deceptive trade practices as defined in section 13-301 (1) and (9) iii and a violation of section 13-303 (1) and (2). The Bill in part reads as follows:

.. [The appellants have] engaged in the following unfair or deceptive trade practices as defined in Section 13-301 of the Maryland Consumer Protection Act:
A. false, misleading, oral and written statements, other representation, of her ability to procure and deliver furniture and other consumer goods to consumers, which have the capacity, tendency and effect of deceiving and misleading consumers, under ... (1);
B. deception, fraud, false premise, misrepresentation and knowing concealment, suppression and omission in the subsequent performance of an agreement of sale concerning her failure to procure and deliver furniture as promised, with the intent that consumers rely on the same, under Paragraph (iii) of... (9), and
C. deception, fraud, false premise, misrepresentation and knowing concealment, suppression and omission in the subsequent performance of an agreement of sale by the willful delivery of unordered merchandise different from and instead of that merchandise purchased by consumers, with the intent that consumers rely on the same, under Paragraph 8 (iii) of ... (9) [and]
6. The unfair or deceptive trade practices described above are in violation of Section 13-303, ... (1) and (2) of the Maryland Consumer Protection Act.
7. The Attorney General further alleges that the above unfair or deceptive trade practices by the Respondent, in her capacity as agent for Smith Furniture Company and Jack I. Smith, owner of said business, are in violation of the provisions of an Assurance of Discontinuance, a copy of which is attached hereto and made a part hereof as Exhibit A, agreed to and entered into by Jack I. Smith with the Attorney General on November 10, 1976, pursuant to Section 13-402 (b) of the Maryland Consumer Protection Act.
8. Violation of the Assurance of Discontinuance as described, is a violation of Section 13-303, ... (1) and (2), of the Maryland Consumer Protection Act as provided by Sections 13-402 (c) and 13-301 . . . (10).”

A Special Examiner was appointed, pursuant to Maryland Rule 580 a, for the purpose of taking testimony. Twenty complainants appeared before the examiner. Mrs. Smith was present with counsel at each of the hearings held by the examiner. Transcripts of the testimony, exhibits, documents, and his own summary report were filed by the examiner with the circuit court. Ten days later, no sufficient cause to the contrary having been shown, the evidence was adopted by the court. Md. Rule 580 p.

The Special Examiner’s summary of the testimony, in pertinent part, was as follows:

"The witnesses heard by the Special Examiner were customers of Smith Furniture Co., a long established retail furniture business located ... in Hagerstown. All of the witnesses had direct dealings with Mrs. Marilyn Smith. . . . Mr. Jack I. Smith was not present due to illness.
"The bulk of the testimony by far related to delays in delivery or non-delivery of merchandise. Each witness who testified did not receive his merchandise when promised by Mrs. Smith. Nearly every witness testified that Mrs. Smith, in explaining delays in delivery, told them that her truck had broken down. . . . [T]he testimony was very similar in most of the cases.
The customer would see an advertisement of Smith Furniture Co. and would go to the store to see the furniture. The customer would then buy some furniture and Mrs. Smith would set up a delivery date. In most cases, no delivery date would be set up until the furniture had been paid for in full. When the time came for delivery, none would be made. Either the customer would then call Mrs. Smith or much more infrequently, Mrs. Smith would call the customer, to arrange a new date for delivery. The pattern of non-delivery and arrangement of a new date then repeats, often as many as eight to ten times or more until the customer would demand a refund. ... [S ]ome of the customers went so far as to file District Court cases against Smith Furniture. In all cases, the customers filed complaints with the . .. [Division].
As to the credibility of the witnesses, there are a few observations of which the Court .. . should be made aware. None of the witnesses impressed the Examiner as being particuarly adept or shrewd in business dealings. .. . Your examiner found the witnesses, on the whole, to be honest, truthful and believeable.”

A trial was had on August 8 to 10, 1979, in the circuit court. Eight persons, including Mrs. Smith, gave testimony. The witnesses included two former employees and a former furniture supplier of Smith Furniture’s. From the totality of the evidence, that is, the Special Examiner’s hearings and the trial testimony, the chancellor found that "in the period of time covered there have occurred at least 100 separate and distinct violations.” Consequently, the trial judge entered an order appointing a receiver for Smith Furniture Co. (section 13-406 (c) (3)), assessed civil penalties in the amount of $30,000 (section 13-410 (a)), payment of costs by the Smiths (section 13-409), and restitution of $2,075.06 (section 13-406 (c) (2)).

I.

GOOD FAITH PROMISES —

The appellants argue that the evidence was insufficient to support a finding of an unfair or deceptive practice as defined by section 13-301 (9). That section establishes a prohibited practice as "[deception, fraud, false pretense, false premise, misrepresentation, or knowing concealment, suppression, or omission of any material fact with the intent that a consumer rely on the same. ...”

There was evidence that the appellants took orders for furniture that was supposedly in the "warehouse” and promised prompt delivery. There was also evidence that no warehouse existed, and while some of the furniture was specially ordered, much of it was not. Delivery dates were not met. The appellants seek to excuse themselves on the ground that weather and mechanical failure (a broken-down truck) precluded timely delivery. Perhaps, had the situation been one of an isolated incident the trier of fact may have believed appellants. As it is, however, the trier of fact simply did not believe the representations made to him by Mrs. Smith. The repeated excuses of the delivery truck’s breaking down, or difficulty at the furniture factory reached the same point as the youth in the fable about "crying wolf’ too often. Moreover, the chancellor was entitled to infer from the evidence that at the time the furniture was sold, the appellants knew or should have known that they could not meet the promised delivery date. Notwithstanding that knowledge, the appellants, nevertheless, made the promise of delivery in order to effect the sale and with it, obtain the profit. We think the pattern of behavior of the appellants was such as to show deceit, fraud, and misrepresentation. There was no error on the part of the chancellor in so finding.

II.

— 100 VIOLATIONS —

The appellants contend that there was insufficient evidence for the trial judge to find "at least one hundred separate and distinct violations” of the Consumer Protection Act. Our perusal of the records leads us to agree that with respect to 80 of the violations, the evidence was legally insufficient. There was, however, ample evidence to support the circuit court’s finding as to the remaining 20 violations.

There were, indeed, 100 complaints filed with the Division. Testimony, as we have seen, was taken before a master as to 20 of the 100. The only thing offered in support of the other 80 were, in most cases, the unsworn complaints themselves. The complaints were offered into evidence for the purpose of showing they were made. The fact that these complaints were made and received by the Division was stipulated to by the appellants in a pretrial order of July 20, 1979.

The trial testimony consisted in part of the disbelieved affirmations of Mrs. Smith. The trial judge stated:

"At the beginning ... of Mrs. Smith’s testimony, this Court was of the opinion that Mrs. Smith may very well have been a victim of circumstances and/or a victim of numerous unfortunate events. But as the testimony unfolded, it became clear to this Court that Mrs. Smith is a very skillful and a very shrewd businesswoman, and the Court recognizes that being a skillful and shrewd businesswoman is not in of itself a violation of the statute under which this proceeding is brought. But 1 further have become persuaded that Mrs. Smith is also a very deceptive person and she is a devious person who would say or do anything and represent anything to anyone to further her own ends.”

The 80 violations were based on nothing more than the unverified complaints filed with the Division. Those complaints, of course, were not subject to examination or cross-examination. We are at a loss to understand why the Division chose not to subpoena the 80 complainants to testify before either the Special Examiner or the court. Absent that evidence, we must conclude that the record does not support the chancellor’s finding of "at least 100 violations.” The conclusion by the trial judge is based on little more than conjecture and surmise. That sworn testimony supported twenty complaints does not mean that the other 80 unverified complaints are ipso facto true. Furthermore, the acceptance of those unsworn, unproven complaints as true, without any opportunity on the part of the appellants to inquire by way of cross-examination, seems to us to transgress due process and fundamental fairness.

If we were sure that each of the 100 offenses stood on its own, we would vacate 80 of them leaving a penalty of $6,000, but because we are unable to say that with the number of violations being substantially reduced that the chancellor will still impose a fine of $300 on each of the remaining 20 cases, we decline to so modify the penalty. That is the trial judge’s decision to make, and we are not to be understood as attempting to make it for him or suggesting that he impose a lesser penalty in each case.

III.

—LIABILITY OF JACK SMITH —

The appellants aver that the evidence was insufficient to support a finding that Jack Smith violated the Consumer Protection Act. They reason that Jack Smith never actively participated in the business; he had no relationship with Smith Furniture Discount, Inc., the successor to the Smith Furniture Co.; and his signing of the "Assurance of Discontinuance” is no basis for a finding of a violation of the Act on his part. The appellant’s three-pronged argument apparently stems from the finding of the trial court that, save for the signing of checks, Marilyn Smith operated the business and made, inter alia, the fraudulent representations. We observe, as did the chancellor, that Jack Smith signed the "Assurance of Discontinuance” both individually and trading as Smith Furniture Co. The breach of that agreement was the catalyst for the instant proceedings.

Section 13-402 (c) (1) provides that a breach of "a written assurance of discontinuance” is, itself, a violation of the Consumer Protection Act. There is no question but that the Assurance was breached. Indeed, from the record one could justifiably infer that the agreement was breached more than it was honored. The breach of the agreement signed by Mr. Smith on any one occasion violated section 13-402 (c) (1). When Jack Smith subscribed his name to the Assurance Agreement, he made himself liable for its breach. He will not now be heard to disclaim responsibility for the very thing for which he, by signing the Assurance of Discontinuance, assumed responsibility.

Moreover, the trial judge found as a fact that "Jack I. Smith, Marilyn Smith, Smith Furniture Company, and Smith Furniture Discount, Inc. are all one and the same.” We think the record supports that conclusion. Hence, a violation by one of the four was a violation by each of the remaining three.

IV.

—MANDATORY CONCILIATION —

Appellants next argue that section 13-402 of the Consumer Protection Act requires that the Attorney General must seek conciliation as a prerequisite to seeking other remedies against the alleged violator.

Such an argument obviously does not take cognizance of the statute that was in effect when the assurance was signed or when the suit was brought. The General Assembly, by Laws 1976, ch. 255, restructured section 13-402. See n. 2, supra. Paragraph (2) of subsection (a) of section 13-402 provides:

"If the Division determines that violations are occurring which are causing immediate, substantial and irreparable injury, the Attorney General may seek an ex parte or interlocutory injunction pursuant to § 13-406, without first attempting conciliation.” (Emphasis supplied.)

Patently, the statute confers upon the Attorney General the right to proceed in the manner in which he did. The argument to the contrary is meritless.

V.

SEVEN (7) DAY NOTICE OF INJUNCTIVE RELIEF —

Proceeding with their multi-faceted assault on the judgment of the circuit court, the appellants asseverate that the State failed to comply with section 13-406 (b) of the Consumer Protection Act. That section provides that "[t]he Attorney General shall serve notice of the general relief sought on the alleged violator at least seven days before the action for an injunction is fíled.” (Emphasis supplied.)

The Attorney General sent to the appellants a paper writing entitled: "SEVEN (7) DAY NOTICE OF INJUNCTIVE RELIEF TO BE SOUGHT ”

In the "notice” it was stated that:

"NOTICE IS HEREBY GIVEN, in accordance with the provisions of the Annotated Code of Maryland, Commercial Law Article, Title 13, Subtitle 4, Section 13-406 (b) (1975 Volume, 1977 Cumulative Supplement), said Title hereinafter cited as the Maryland Consumer Protection Act pursuant to Section 13-501 of Subtitle 5, that seven (7) days following the date of service of this Notice, the Attorney General for the State of Maryland intends to seek an Injunction and other relief in the Circuit Court of Washington County against the named Respondent... to prevent further violations and to seek restitution, penalties and other relief for past violations of the Maryland Consumer Protection Act by Respondent, her agents, servants and employees.
The Attorney General will allege specifically, but not by way of limitation, that the Responent [sic], her agents, servants and employees in the course and conduct of business activities in the State of Maryland have engaged and continue to engage in unfair or deceptive trade practices in violation of Subsections (1) and (9) of Section 13-301 and Subsections (1) and (2) of Section 13-303 of the Maryland Consumer Protection Act and are subject to the enforcement and penalty provisions of Sections 13-406, 13-409, and 13-410 of the Maryland Consumer Protection Act.
WHEREFORE, the Attorney General for the State of Maryland will seek the following relief by Order of Court:
(a) That the Court, pursuant to Section 13-406 (c) Subsection (1), of the Maryland Consumer Protection Act, permanently enjoin the Respondent, her agents, servants and employees from engaging in unfair or deceptive trade practices;
(b) That the Court, pursuant to Section 13-406 (c), Subsection (2), order the Respondent to restore to all persons any money acquired from them by means of any prohibited practices;
(c) That the Court, pursuant to Section 13-406 (c), Subsection (3), appoint a receiver in the event that the Court determines that there has been a willful violation of the Maryland Consumer Protection Act;
(d) That the Court, pursuant to Section 13-409 of the Maryland Consumer Protection Act, award to the Attorney General from the Respondent the costs of this action for the use of the State;
(e) That the Court, pursuant to Sections 13-410 (a) and (c) of the Maryland Consumer Protection Act, impose a civil penalty in the amount of Three Hundred Dollars ($300.00) for each violation of the Maryland Consumer Protection Act found to have been committed by the Respondent, her agents, servants and employees....” (Emphasis in original.)

The appellants argue that "[a] complaint must state facts sufficient to constitute a cause of action.” We certainly have no quarrel with such a statement, but it is inapplicable here. The "notice” is not the "complaint,” nor is it likened to an information, warrant, or indictment. It is what it says it is — a notice of "general” relief to be sought by way of injunction. The notice is not required to contain allegations and facts with specificity. The notice in the instant case satisfied the statute.

VI.

RIGHT TO TRIAL BY JURY —

Appellants contend that because civil penalties are assessable under the Consumer Protection Act, the federal constitution guarantees to them the right to a trial by jury. As interesting as the question may be, we do not consider it inasmuch as it is not properly before us. No request for a jury trial was ever made at the trial level. It may not be raised for the first time on appeal. Md. Rule 1085; Zellinger v. CRC Development Corp., 281 Md. 614, 380 A.2d 1064 (1977) (construing Md. Rule 885 which is the same as Rule 1085 except the former applies to the Court of Appeals, the latter to this Court); Rose v. State, 37 Md. App. 388, 377 A.2d 588 (1977); C.S. Bowen Co., Inc. v. Maryland National Bank, 36 Md. App. 26, 373 A.2d 30 (1977).

VII.

—SHERIFF’S INTERIM POSSESSION OF PROPERTY —

Appellants argue that their due process rights were violated when the trial court directed the Sheriff of Washington County to take immediate possession and control of all the assets of Smith Furniture Co., pending appointment of a receiver.

Section 13-406 (c) 3 authorizes the appointment of receivers in those cases of wilfull violation of the Consumer Protection Act. The chancellor found the requisite intent necessary to utilize the remedy of a receivership for the appellant’s property. The judge stated:

"Now, with regard to the request for the appointment of a receiver ... or in the alternative an injunction this Court is satisfied that the conduct of this business in the manner which has been testified to in this Court has been willful and deliberate.
Therefore, ... it is Ordered that the Sheriffs Department of Washington County take immediate custody of all the property and assets of.. . Smith Furniture Company, ... and to keep that facility safe and to discharge it only to a duly appointed receiver who this Court will name at the earliest possible date. . . .”

According to the docket entries, the order directing the Sheriff to take custody of appellants’ property and assets is dated August 10, 1979. Included in that very same order is the appointment of Richard W. Lauricella and Gayle L. Crawford, Jr., as co-receivers for the appellants’ business. Even if the judge was in error in directing the Sheriff to take custody of appellants’ property, the error is absolutely harmless because the co-receivers were appointed in the same order. Inferentially, they qualified promptly. The court’s order to the sheriff did no more than assure that the property, books, and records of the business were available to the co-receivers.

VIII.

—DUE PROCESS —

Appellants’ final contention is that they were deprived of due process of law when they were found guilty of violations of the Consumer Protection Act on a record devoid of evidentiary support. The contention is groundless. We have already noted above that the evidence adduced by the appellee is sufficient to sustain the findings of the trial court.

Judgment affirmed in part and reversed in part.

Case remanded for further proceedings consistent herewith.

Costs to be divided between the parties.

      . The latter company, Smith Furniture Discount, Inc. was incorporated on June 5, 1978, subsequent to the filing of the instant suit. On petition by the appellees, the incorporated successor to Smith Furniture Co., was added as a party defendant.

      . We note in passing that no injunctive relief was granted.

      . Comm. Law § 13-402 provides:
      "(a) Division to seek conciliation; exception. — (1) If the Division determines that there are reasonable grounds to believe that a violation has occurred, it shall, except as provided in paragraph (2), attempt to conciliate the matter by methods of conference and persuasion with all interested parties and any representatives which they may choose to assist them.
      (2) If the Division determines that violations are occurring which are causing immediate, substantial and irreparable injury, the Attorney General may seek an ex parte or interlocutory injunction pursuant to § .13-406, without first attempting conciliation.
      (3) The terms of any conciliation agreed to by the parties may be made part of a written assurance of discontinuance or settlement agreement to be signed by the Division and each party. The assurance or agreement is for conciliation purposes only and does not constitute an admission by any party that the law has been violated.” (1979 Cum. Supp.)

      . See n. 3, supra.

      . The joint record extract submitted is woefully inadequate. Had not the Attorney General in his brief supplied most of the missing documents, pleadings, and the like, we would have dismissed the appeal for failure to comply with Md. Rule 1028. Oddly, neither side bothered to put in the extract the Bill of Complaint, the very thing that is under attack. The answer to the Bill was printed by the appellee.

      . Reference to section 13-301 (10) is in error. 1976 Md. Laws, ch. 507, effective July 1,1976, added new paragraphs (10) and (11) and renumbered old (10) to be (12).