text:
    JACK B. RAMBO v. INTERNATIONAL DRY WALL CO., INC. et al.
    [No. 595,
    September Term, 1979.]

      Decided February 8, 1980.

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

      Kurt Berlin, with whom was Jeffrey Lee Greenspan on the brief, for appellant.

      Raymond A. Richards for appellees.
   Thompson, J.,

delivered the opinion of the Court.

This is an appeal from a judgment of the Circuit Court for Montgomery County denying Jack B. Rambo, appellant, compensation for injuries received as an employee of International Dry Wall Co., Inc., appellee. The Workmen’s Compensation Commission had awarded compensation.

The facts were the subject of a stipulation. On March 23, 1977, the appellant was injured while on his way to lunch as a passenger in an automobile operated by a co-worker. The car struck a manhole cover which protruded approximately 4 to 6 inches above the partially paved surface of the road. Appellant was leaving his work site, which was located about 400 feet from the manhole cover, on the only road to and from the work site. The developer of the subdivision, Columbia Credit Company, Inc. (Columbia), allowed use of portions of the road by residents and construction workers, and had offered it for dedication, but that portion of the road where the accident occurred had not been accepted by Montgomery County, presumably because it was still under construction. The road was bordered by several houses, some of which were finished and occupied, and others which were in various stages of construction. The appellee, the appellant’s employer, was a subcontractor of Columbia.

The Workmen’s Compensation Act, Md. Code, Art. 101, § 15 provides in part:

"Every employer . . . shall pay or provide . . . compensation . . . for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment. . .”

Yet the established rule is that injuries sustained while an employee is going to or coming from his place of work are not covered under the Act. Wiley Mfg. Co. v. Wilson, 280 Md. 200, 206, 373 A.2d 613, 616 (1977). There are, however, exceptions to the going and coming rule and we think the proximity exception applies here. In Wiley, supra, the Court of Appeals said:

"Succinctly stated, the proximity rule is identified with those cases involving accidents which occur at a point where the employee is within range of dangers peculiarly associated with the employment. 1 Larson, [Law of Workmen’s Compensation] at § 15.00. This rule, therefore, has two vital components. 'The first is the presence of a special hazard at the particular off-premises point. The second is the close association of the access route with the premises, so far as going and coming are concerned.’ Id. at § 15.13.” Id. at 208.

The appellee argues that as the road where the accident occurred was open to the members of the general public who might visit the homes on the street, the manhole cover in the road was a hazard to which the general public was subjected, and therefore was not a special hazard related to the job. It cites two out of state cases to show that "open to the public” can include private property. The cases are not compensation cases and we fail to see their relevance. Earlier Maryland cases rejecting the application of the proximity rule were probably not cited because of the excellent analysis by the Court of Appeals in Wiley, supra:

"Unquestionably, this case is readily distinguishable from those prior Maryland cases in which application of the proximity rule was rejected. As we indicated earlier, in Md. Paper Products Co. v. Judson, 215 Md. 577, the employee was struck while crossing the street; in Salomon v. Springfield Hospital, 250 Md. 150, the employee’s car was struck while crossing a public highway; in Pariser Bakery v. Koontz, 239 Md 586, the employee was struck by a careening automobile on a public sidewalk; and in Stoskin v. Bd. of Educ. Mont. Co., 11 Md. App. 355; the employee was injured as she alighted from an automobile on a public street. As we have indicated, the proximity rule contains two elements: the presence of a special hazard at the particular off-premises point and the close association of the access route with the premises in respect to the 'going and coming.’ What was lacking in the prior Maryland cases, rejecting application of the proximity rule, was the 'special hazard’ component. In none of those cases was there peculiar and abnormal exposure to a common peril beyond that to which the general public was subjected.” 280 Md. at 215.

We do not think in the instant case that the general public was exposed to the same perils as the appellant because: (1) the road was the only means of entrance and exit to the place at which the employees of the appellee were working; (2) the construction of the road was not completed and thus the only persons likely to be using the road were the residents, the construction workers and those who had some special business or social engagements with the residents; and (3) the dedication of the roadway had not been accepted by the public authority.

We call particular attention to 1 Larson, Workmen’s Compensation § 15.21 (1979) in which it was stated:

"A controversy that has troubled some courts in the past is whether a distinction should be drawn between those off-premises injuries which occur on private property, such as railway rights-of-way or short-cuts across neighboring lots, and those which occur on public streets and sidewalks. The difficulty dissolves when the question is asked whether the extension of course of employment to off-premises injuries is based on any principle to which the public-private distinction is relevant. Plainly it is not.
"Idaho provides a good illustration of a jurisdiction which struggled with and ultimately cut through this distinction. In a 1929 case, the public-private distinction was held decisive against compensability.... In 1954, however, the court was confronted with another case that was so thoroughly 'on all fours’ with the 1929 case that the defendant was the successor company to the earlier defendant and the railroad crossing was the identical crossing involved in the earlier case. The court expressly rejected the public-private distinction this time, saying:
'These risks (those associated with the employment) may or may not be on the premises of the employer and for this reason there is no justification to distinguish between extended risks on public highways and private pathways. In fact it is at most a distinction without a difference.’
"This holding is symptomatic of the fact that the public-private distinction, in jurisdictions that accept the off-premises special hazard rule, has largely lost its importance, and more often than not is not even mentioned in current cases.”

In making his decision, the trial judge relied on Salomon v. Springfield Hospital, 250 Md. 150, 154-55, 242 A.2d 126 (1968), which held that a new public highway, having been opened on hospital grounds, did not create any special hazard because:

"We have held in the past that traveling upon and crossing busy streets and highways, while it does entail some degree of danger, does not subject an employee traveling to and from work, to a greater degree of danger than he would.be exposed to as a member of the general public.”

The trial judge also relied on Saylor v. Black and Decker Mfg. Co., 258 Md. 605, 267 A.2d 81 (1970), a case involving a premises exception rather than a special hazard exception. The Court stated in dicta, however, that it approved the trial judge’s findings that a large,stone on a private road did not constitute a special hazard. We do not think that either of the cases are apposite. One case involved an injury which may have occurred on any public highway and the other involved a stone, a temporary obstruction, which might well occur oh any highway, public or private. In the instant case we are concerned with a road which is undergoing construction and the raised manhole cover was a portion of that work with which the appellant’s employment was indirectly connected. An employee who is required to go to work over the unfinished road is subjected to a special hazard which members of the general public are not required to subject themselves, except for the relatively few who happen to have particular business on the undedicated street.

We hold, therefore, that the proximity rule does apply here as an exception to the going and coming rule and that the injuries sustained by the employee rose out of and in the course of his employment.

Judgment reversed.

Appellees to pay the costs.

      . Although Wiley, supra, gives an excellent discussion of the law involved in our case, its facts are not parallel. The Court held injuries sustained by two co-workers while taking a shortcut along a railroad right of way to a company parking lot, located some 790 feet from the entrance of their place of employment, to be compensable. See also, Pappas v. Modern Manufacturing Company, 14 Md App. 529, 287 A.2d 798, cert. denied, 265 Md. 741 (1972).

      "61 State ex rel. Gallet v. Clearwater Timber Co., 47 Idaho 295, 274 P. 802 (1929).

      "62 Jaynes v. Potlatch Forest, Inc., [75 Idaho 297, 271 P.2d 1016 (1954).]

      "63 271 P.2d 1016 at p. 1019.

      "64 Cf., e g ; current New York rule in Brienza v. Lechase Constr. Co., [17 A.D.2d 83, 320 N.Y.S.2d 362 (1962)], with the earlier case of Harris v. Henry Cheney Hammer Corp., 221 App. Div. 199, 223 N.Y. Supp. 738 (1927).”


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    ALBAN TRACTOR COMPANY, INC. v. MARLENE BOLLACK, Personal Representative of the Estate of Frank Siejack
    [No. 596,
    September Term, 1979.]

      Decided February 11, 1980.

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

      Charles Calm, II, with whom was Joel C. Richmond on the brief, for appellant.
    No appearance for appellee.
   Liss, J.,

delivered the opinion of the Court.

Alban Tractor Company, Inc., appellant, (hereinafter, Alban) sued Marlene Bollack, personal representative of the estate of Frank Siejack, appellee (hereinafter, Bollack), in the Circuit Court for Howard County. The action commenced on February 26,1979 by the filing of a declaration, a motion for summary judgment, an affidavit and exhibits by Alban against Bollack in her capacity as personal representative of Siejack, deceased. The declaration was predicated upon a claim for monies due Alban for services provided and merchandise sold to the decedent.

Bollack, in response to the declaration filed a motion raising preliminary objection pursuant to Maryland Rule 323 a 6. Alban filed a reply in opposition to Bollack’s motion and a hearing was held. Following argument by counsel the hearing judge granted Bollack’s motion and ordered a judgment of non pros in favor of the defendant. A timely appeal was noted by Alban.

The following issues are presented by this appeal:

1. Whether the filing of a claim in a decedent’s estate is an action as defined in the Maryland Rules, and therefore is a bar to the commencement of a suit against the estate.

2. Whether a personal representative may be sued in the county where he resides when the estate is opened in a different county.

1.

Appellant, in its declaration, alleged that in the period between June 30, 1978 and August 17, 1978, it provided services and sold merchandise on open account to Frank Siejack doing business as Siejack Construction Co. Siejack died on August 25,1978. Appellant contends that on that date the balance due it was $14,303.68. An estate was opened on behalf of Siejack in the Orphans’ Court of Queen Anne’s County on September 6, 1978, and Bollack was named as personal representative of the deceased. Bollack is a resident of Howard County. On October 19, 1978, appellant filed a claim against the decedent’s estate by notifying the Register of Wills of Queen Anne’s County. On December 5, 1978, a copy of the appellant’s claim was mailed to the personal representative. On March 5, 1979, appellant entered suit against Bollack in the Circuit Court for Howard County seeking judgment for the amount alleged to be in the Orphans’ Court claim. Appellee’s motion raising preliminary objection was based on the ground that there was a similar action involving the same parties and the same cause pending before the Queen Anne’s Orphans’ Court. Although the appellee’s motion did not raise the issue of venue, Bollack argued that there was improper venue because the suit was not filed in Queen Anne’s County. At the conclusion of the motions hearing the judge ruled that Alban was barred from bringing its suit in Howard County because it had filed a claim in the Orphans’ Court for Queen Anne’s County.

Md. Code (1974), Estates and Trusts Article, Section 8-104 provides three alternative methods by which creditors may present their claims against an estate. Subsection (b) allows a claimant to deliver or mail to the personal representative a verified written statement indicating the basis of the claim, the name and address of the claimant and the amount claimed. The claimant may also file a written statement of his claim, in the form prescribed by Subsection (c), with the Register of Wills and deliver or mail a copy of the claim to the personal representative. Or the claimant may commence an action against the estate provided the action is instituted within the time limit for the filing of claims.

Rule 5 a defines "action” as including all of the steps by which a party seeks to enforce any right in a court of law or equity. The Orphans’ Court in this state is a court of special limited jurisdiction and does not sit in equity or at law. Code (1974), Estates and Trusts Article, Section 2-102; Crandall v. Crandall, 218 Md. 598, 147 A.2d 754 (1959).

While there are no decisions by our Court of Appeals which are dispositive of the issue as to whether the filing of a claim in a decedent’s estate is an action which bars other suit against the estate, a perusal of the Uniform Probate Code (1969) from which Section 8-104 of our Estates and Trusts Article was drawn, discloses the following comment to Section 3-804 of the Uniform Probate Code:

The filing of a claim with the probate court. . . does not serve to initiate a proceeding concerning the claim. Rather, it serves merely to protect the claimant who may anticipate some need for evidence to show that his claim is not barred. The probate court acts simply as a depository of the statement of claim. . ..

It is clear, then, in view of Sections 8-104 and 2-102 of the Estates and Trusts Article read in conjunction with Section 3-804 of the Uniform Probate Code that a claim presented in the Orphans’ Court is not an action as contemplated by Rule 5 a or Rule 323 a 6.

2.

The trial court after holding that a claim filed in a decedent’s estate is not an action as defined by Rule 5 a next considered the question of venue. Appellant urges that the issue of venue was not before the court because appellee failed to raise that issue in her motion raising preliminary objection. The defense of improper venue must be filed before any other pleading is filed and unless so filed is deemed to have been waived. Rule 323 b. Rule 321 provides that a motion shall be in writing and state concisely the question the court is called upon to determine. Our examination of the motion raising preliminary objection convinces us that appellee failed to raise the issue of venue. While appellee moved in her motion raising preliminary objection for a judgment of non pros pursuant to Rule 323 a 6, the only ground given by her under that portion of the Rule "is that there is another action by the same parties for the same cause pending before the Orphans’ Court for Queen Anne’s County.” This language is obviously insufficient to have raised the issue of venue which was submitted to the trial judge for the first time at argument.

Even if, arguendo, we consider that venue was not waived by the failure to raise the issue properly by the appellee, we still conclude that the trial judge was incorrect in holding that venue was vested exclusively in the county where the estate of the deceased was being administered. In Turk v. Grossman, 176 Md. 644, 673, 6 A.2d 639 (1939), the Court of Appeals, deriving its authority from then valid Article 75, Section 158 of the Annotated Code of Maryland (1939), held that an executor or administrator "may be sued either in the county where he resides or where he obtained administration.” See also Hopper v. Brodie, 130 Md. 443, 444, 100 A. 644 (1917).

In Leonard v. Wharton, 268 P. Supp. 715 (1967), the United States District Court of Maryland had before it a wrongful death action involving a South Carolina resident who was the administrator for the deceased. The court stated that for venue purposes the residence of an executor or administrator is his personal residence. See Doyle v. Loring, 107 F.2d 337 (6th Cir. 1939); Tiernan v. Westext Transport, Inc., 243 F. Supp. 566 (S.D.N.Y. 1965).

Article 75, Section 158 has since been superseded by the general venue provisions now codified in Code (1974), Courts and Judicial Proceedings Article, Section 6-201, which provides in pertinent part that: "Subject to the provisions of Sections 6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides.. . .” Section 6-201 applies to a civil action brought against a personal representative or executor who resides in a county other than the county where the estate is being administered. We express no opinion as to whether, alternatively, the same action could be brought in the jurisdiction where the estate is being administered as this issue is not presently before us. We conclude the trial judge was clearly erroneous in dismissing the action filed where the administrator resided. Rule 1086.

Judgment reversed, costs to be paid by appellee.


author: Lowe, J.,

text:
    JOSEPH HOWARD BURRIS, JR. v. STATE OF MARYLAND
    [No. 600,
    September Term, 1979.]

      Decided February 11, 1980.

    The cause was submitted on briefs to Moylan, Lowe and Liss, JJ.
    Submitted by James J. Fabian, Assigned Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney. General, Kathleen M. Sweeney, Assistant Attorney General, William R. Hymes, State’s Attorney for Howard County, and Bernard A. Raum, Assistant State’s Attorney for Howard County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The appellant in this case initially questions the sufficiency of the evidence from which he was convicted by Judge James Macgill in the Circuit Court for Howard County of receiving stolen goods of the value of $100 or more. Our review of the record indicates that the evidence was sufficient. Judge Mac-gill’s careful and meticulous summary of reasons for so holding sets forth in detail sufficient factual findings which our review substantiates. He was not in error, Md. Rule 1086, nor will it enhance this opinion to repeat what he stated in the record.

Appellant’s second issue falls under the weight of his own contention. He complains that the court committed error by having permitted the State to elicit a statement from a witness in an attempt to demonstrate an admission by silence. See Ewell v. State, 228 Md. 615, 618 (1962). He argues that:

"Here, it was established that appellant was present when Jones made the statement [] to Davidson, but it was never demonstrated that appellant failed to interpose a denial! In fact, the witness could not remember whether appellant responded to the statement: 'He might have, I don’t know.’ ”

Therein lies the defect in appellant’s argument. Because it was never established whether or not appellant commented, there was no admission by silence. The judge, as factfinder, so indicated by his own lengthy questioning of the witness which concluded with the court asking:

"Do you recall whether or not Mr. Burris made any answer to that when he made that statement?
A. No, I do not.
THE COURT: You don’t recall him saying anything.
A. No.
THE COURT: He could have or could not have.
Is that right?
A. True.
THE COURT: All right. I think I have no further questions unless counsel has.”

Appellant correctly contends that a necessary element of groundwork toward the admission of such evidence includes establishing that the accused failed to deny the assertions.

"If an admission by silence is to be received against the silent party, it must be found (1) that the statement was actually made; (2) that the reaction of silence or evasion took place as claimed; (3) that the party heard and understood the statement; and (4) that under all the circumstances the party’s conduct makes it probable that he believed the statement to be true.” Zink v. Zink, 215 Md. 197, 202 (1957).

See Ewell, supra at 618. We presume that the judge knew the law. Hebb v. State, 31 Md. App. 493, 499 (1976). We must also assume that he was perfectly capable of perceiving the problem and distinguishing whether or not the Zink criteria were met.

"It is true that judges, being flesh and blood, are subject to the same emotions and human frailties as affect other members of the specie; however, by his legal training, traditional approach to problems, and the very state of the art of his profession, he must early learn to perceive, distinguish and interpret the nuances of the law which are its 'warp and woof.’ ” State v. Hutchinson, 260 Md. 227, 233 (1970).

The very fact that the judge so meticulously sought to establish whether a "reaction of silence or evasion took place as claimed”, Zink, supra, indicates that he had discerned the problem and had resolved it properly. The fact that the evidence was elicited, if error at all, was harmless error especially in light of this case being nonjury. State v. Babb, 258 Md. 547, 550 (1970). In Babb, the Court of Appeals pointed out that which fortified this conclusion:

"The assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence, lies at the very core of our judicial system. Such an assumption would be completely unwarranted with regard to a jury of laymen and the impact which evidence may have upon their deliberative powers.” Id. at 550-551.

These legal presumptions of judicial omniscience (Williamson v. State, 25 Md. App. 338, 341 (1975), cert. denied, 275 Md. 758 (1975)), lead us to the selfsame conclusion that we inferred from the record. The factfinder did not consider an admission by silence adverse to appellant after exploring to determine whether the necessary criteria existed for that purpose.

The final contention, that appellant was denied due process of law because the court permitted the State to pursue a claim of surprise, is equally without merit. Appellant sets out the issue as follows:

"During the testimony of Charlotte Davidson, the State at one point claimed surprise. His continued colliquy [sic] thereafter presented to the trial court a theory that this witness had given a prior statement which was contradictory to her in-court testimony. The Court quite properly ruled that the introduction of the prior statements was not to be considered substantive evidence in the case. Once the situation had been clarified, the Assistant State’s Attorney refused to drop the matter, taking the apparent attitude that the prior statements were indeed substantive evidence. Moreover, on redirect examination he persisted in attempting to impeach the witness. Following a series of questions by the Court, he once again began asking questions attempting to impeach his own witness by referring to prior statements.
Although no new evidence was gleaned, the State had the opportunity to elicit the substance of her alleged prior statements to Detective Dayhoff and before Judge Kane incorporating same into his questions! Finally, in closing argument, he referred at length to his attempts to impeach his witness, and also specifically referred to 'non-evidence’ of previous statements given to a Detective Dayhoff.
The Appellant would respectfully submit that the tactics and strategy of the State was not fundamentally fair to the Appellant herein, and thus he was denied due process of law under the Fifth and Fourteenth Amendments to the Constitution. The State, is obliged to do justice and 'play fairly’ every bit as much as are Courts and defendants. Campbell vs. State, 37 Md. App. 89, 376 A.2d 866. See also, McDowell vs. State, 31 Md. App. 652, 358 A.2d 624, at 628-629, citing concurring opinion, Dutton vs. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213; Vandergrift vs. State, 13 Md. App. 277, 282 A.2d 528, footnote 5.”

Again, appellant undercuts his own contention by admitting that which we judicially perceive, i.e., that the trial judge was aware of the law and its nuances, knew what he was doing and was not misled by a zealous prosecutor. Beyond that, the trial court has complete discretión of the issue which obviously was not abused. Green v. State, 243 Md. 154, 157 (1966); Baldwin v. State, 5 Md. App. 22, 28-29 (1968), cert. denied, 252 Md. 729 (1969). Finally, and most significantly, the issue was not preserved for our review by an appropriate motion which the trial judge established as a standard in this circumstance. When the issue was raised by the prosecutor who said,

"I am prepared to go forward and establish that a prior statement was made on Friday which is inconsistent with her testimony. It may well be that she has an explanation for that inconsistency. But I think that at this point in time the State is entitled to the truth from this witness.”,

The trial judge responded:

"All right. I will permit you to examine her with regard to that, subject to a motion to strike; which I am sure [defense counsel] will bear in mind and may make.”

No motion was offered thereafter pursuant to the court’s admonition, presumably because the appellant perceived at the time that which we recognized above — that the court knew the law and followed it. The judge obviously was not misled to appellant’s detriment, and the appellant obviously did not then see an issue to preserve which he felt should have been decided below. Md. Rule 1085.

Judgment affirmed.

Costs to be paid by appellant.

      . The witness (Davidson) was permitted to testify, in appellant’s presence, that:
      "David Jones said that him and Joe Burris [appellant] went in the house.”


text:
    KENNETH OLIVER MASON a/k/a Samuel Brown v. STATE OF MARYLAND
    [No. 645,
    September Term, 1979.]

      Decided February 11, 1980.

    The cause was submitted on briefs to Gilbert, C. J., and Thompson and Lowe, JJ.
    Submitted by Harold Buchman, Assigned Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Stephen B. Caplis, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Lawrence Rosenberg, Assistant State’s Attorney for Baltimore City, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Prior to our holding in Akonom [and Gregg] v. State, 40 Md. App. 676 (1978), cert. denied, 284 Md. 741 (1979), that the results of a polygraph examination are not sufficiently reliable to be used ás evidence even when so stipulated prior to trial, the appellant here entered into such a stipulation. The evidence was admitted pursuant to the stipulation and no objection was ever raised. Judge Dorf in the Criminal Court of Baltimore propitiously cautioned the jury, however, that such tests were by law not to be considered as a concrete or reliable means of ascertaining the truth, and that the only reason the evidence was even before the jury was by virtue of the stipulation. Appellant now argues that two responses indicating deception were prejudicial to judge and jury and that Akonom compels reversal and remand for retrial without such evidence.

Appellant would both eat his cake at trial and have it yet upon appeal. That, we have said, he may not do. Md. Rule 1085. In Akonom the objection to the stipulated result’s admissibility was raised prior to trial by suppression motion, and at trial by timely objection. The stipulation agreeing to the use of the polygraph results was signed by a codefendant (Gregg) without counsel, prior to taking the examination. Appellants Akonom and Gregg propitiously sought to avoid the stipulation and keep the evidence out. Here, however, no such preliminary attempt to suppress was made nor was objection raised at trial, the inference being that despite the indication of deception in answering the two questions, appellants expected some value from the evidence being disclosed to the jury. The issue was not preserved by objection in accordance with Md. Rule 522 and as has been indicated by Md. Rule 1085.

"This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been . . . decided by the lower court”.

Since the preliminary thrust of appellant’s contention is an evidentiary one, our discretion to recognize or reject it is presumably unbridled; however, we see nothing to persuade us to deviate from that which the Court of Appeals indicates by rule should be our ordinary course.

Appellant points out that we have in the past exercised our discretion in reversing issues on appeal, despite a failure to object below. Presumably because of the cautionary instruction (to which no objection was made either, pursuant to Md. Rule 757 f), he replies that this is a case of "plain error” under Md. Rule 757 b.

"The court may, and at the request of any party shall, give those advisory instructions to the jury as correctly state the applicable law. The court may give its instructions orally or, with the consent of the parties, in writing. The court need not grant any requested instruction if the matter is fairly covered by the instructions actually given. In every case in which instructions are given to the jury the court shall instruct the jury that they are the judges of the law and that the court’s instructions are advisory only.”

He alludes particularly to the flood of cases we took on the ■ issue of the implied malice instruction following Mullaney v. Wilbur, 421 U.S. 684 (1975) pursuant to that rule.

"The situation here is not unlike the one created by the effect of Mullaney v. Willaim [sic Wilbur], 421 U.S. 684, 95 S. Ct. 1881. In Teves v. State, 33 Md. App. 195, 364 A.2d 593 (1976), and in State v. Evans, 278 Md. 197, 362 A.2d 629 (1976), the new application of the burden of proof rule required by a post trial decision of the Supreme Court was not barred by either Rule 1085 or Rule 756(g) (now 757 (h)) nor need the error be of constitutional demensions [sic] to rise to the level of 'plain error’. Evans at p. 637.”

This unfortunate choice of analogy militates against appellant. In Squire v. State, 280 Md. 132, 135 (1977), the Court of Appeals addressed the issue of when we might overlook a failure to object. They made it clear that the usual practice is not to consider claims of error not tried and decided below, but that we could do so, in our discretion, in an exceptional case. Indeed, the language of that case makes it even less likely that we will exercise our discretion to review in the future, since the opinion indicates that we are barred from doing so absent "compelling circumstances”.

"Therefore, absent the existence of compelling circumstances, the failure of a defendant to register an objection to a jury instruction pursuant to Rule 756 f bars our consideration of the matter.” Id. at 135.

We find no such compelling circumstances here. Rather, it appears that appellant sought to advantage himself of our Akonom decision which coincided with his motion for a new trial, filed the day before Akonom was decided. Even if we assume that the appeal here was from the failure to grant a new trial, rather than the admission of the stipulated evidence, we find no abuse of the judge’s discretion in failing to grant a new trial.

Finally, we should point out, that Akonom did not hold that unreliable evidence could never be admitted. The cases are profuse wherein we have declined to hear appeals wherein hearsay was prevalent but admitted without objection. Affirmatively to agree to admissibility is even more reason for not upsetting a trial infused with such evidence. We held only that a stipulation to use unreliable evidence, signed without the aid of counsel, as a quid pro quo for the privilege of taking a lie detector test would not prevail over an objection timely made, under the circumstances of that case.

Judgment affirmed.

Costs to be paid by appellant.


text:
    SECRETARY, MARYLAND DEPARTMENT OF PERSONNEL et al. v. PAUL G. BENDER et al.
    [No. 658,
    September Term, 1979.]

      Decided February 11, 1980.

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

      Scott Livingston, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William M. Huddles, Assistant Attorney General, James F. Truitt, Jr., Assistant Attorney General, and Robert B. Harrison, III, Assistant Attorney General, on the brief, for appellants.

      James E. Carbine, with whom were J. Edward Davis and Weinberg & Green on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the -Court.

Over five years ago appellees filed this suit under the Declaratory Judgment Act challenging the legality of more than 350 positions in the Department of Transportation. Under Maryland statutory law, Md. Code, Art. 64A, § 1, unless specifically excepted, all positions of government employment are deemed to be in the classified service, considered as the merit system, under which each position is given a classification. One of its purposes is to provide standards of employment and advancement through testing, etc., intending to avoid problems inherent in political spoils systems such as nepotism and related abuses. It follows that any position created within the State service which is not governed by the merit system is illegal, unless there can be found some statutory authority to create an exception justifying the position created.

The thrust of this case, brought by appellees in the Circuit Court for Baltimore City, was that the merit system statute had been illegally avoided by an improper interpretation of the Secretary of Transportation’s statutory authority to create unclassified positions. In this appeal three statutory exceptions which interpretatively authorize creation of unclassified positions are involved. The "Staff Assistant Exception” in Md. Code, Trans. Art., § 2-102 (d); the "Expert Training Exception” in Art. 64A, § 3 and the "Key Personnel Exception” in Trans. Art., § 6-204 (n).

— standing to sue —

The two appellees in this case are classified employees of Maryland working in the Department of Transportation and are officers and members of the Maryland Classified Employees Association. While it is apparent, and was implicitly admitted at oral argument, that the association is behind the suit, it was apparently necessary to sue in the names of the appellees in order to obtain the "citizen standing” necessary to obtain the desired declaratory judgment. Md. Code, Art. 64A, § 43 authorizes

"[a]ny citizen of the State [to] maintain an action in any court of competent jurisdiction to recover, for the use of the State, any sums paid contrary to the provisions of this article or of the rules of the Secretary from the person or persons authorizing or making such payment to enjoin such person or persons from making such authorization, or to enjoin the Secretary from attaching his certificate to a payroll, if a certificate is provided for by rule, in violation of the provisions of this article.”

They asked for a declaratory decree (under the Cts. & Jud. Proc. Art. of the Md. Code, Title 3, Subtitle 4 Declaratory Judgments) that the defendants had unlawfully created certain unclassified positions; that they had systematically and purposely abolished classified positions; that they be mandatorily enjoined to abolish all unclassified positions unlawfully created and enjoined from creating others; and that appellant Bosz be enjoined from certifying payment to employees holding unclassified positions found to have been unlawfully created.

The Circuit Court of Baltimore City ruled that some 321 positions excluded from classified service had been created improperly,

"and, no legal authority thus existing for the creation of same outside the said 'classified service’, each of the following designated positions is hereby deemed to be established as a 'classified position’ within the said 'classified service’ as of the date of this Decree.”

— necessary parties —

Despite no claim having been made by the citizens to recover from the Secretaries the sums alleged to have been illegally paid in the past, the trial judge was concerned that the employees holding the contested positions had not been made parties to the suit. This concern was heightened when a preliminary motion by appellants Bosz and Hughes, raised the necessary party question.

The trial judge held that under the Declaratory Judgment Act, Cts. & Jud. Proc. Art., § 3-405 (a),

" 'a person who has or claims any interest which would be affected by the declaration, shall be made a party.’ ”

He noted that

" 'the general rule, in equity, is that all persons should be made parties who are legally or beneficially interested in the suit.’ Reddick v. State, 213 Md. 18, 29 (1957) [cert. denied, 355 U.S. 832 (1957)]”,

and that he had the alternative of dismissing the suit or joining the defendants sua sponte, Trupp v. Wolff, 24 Md. App. 588, 593 (1975), cert. denied, 275 Md. 757 (1975). Relying on Reddick, supra, however, he selected a different course in light of the extraordinary number of employees concerned. He directed the parties to fashion a notice of the pending suit to apprise the employees of the litigation, its consequences, and their right to intervene under Md. Rule 208.

This was a practical application of the underlying purppse of the necessary party provision of the Declaratory Judgment Act in Cts. & Jud. Proc. Art., § 3-405, since the purposes of that section would have been adhered to; i.e., to fully determine an action before the court and to provide interested parties their day in court, and to avoid a multiplicity of suits. See Martin v. United Slate Wkrs. Ass’n, 189 Md. 383, 387 (1947); U. Slate Wkrs. v. Carpenters, Etc., 185 Md. 32 (1945). This practical compromise procedure, i.e., notifying the employees of the litigation and of their right to intervene, has the apparent sanction of the Court of Appeals.

"There is a well established principle of law that a person who has full knowledge of pending litigation and that it affects, and will determine, his rights, and, who is entitled to appear, but who makes no effort to intervene as a party, and permits a conclusion thereof without objection, such party is concluded by the proceedings as effectually as if he were named on the record.” Reddick, supra at 30.

— the special law —

While efforts were being made to fashion an adequate notice to the employees, the Maryland General Assembly convened for its 1978 session. There was pending in the Senate, Senate Bill 216 which had been introduced by Senator James Clark (now President of the Senate), then Chairman of the Senate Finance Committee, at the behest of John F. X. O’Brien, Assistant Secretary of the Department of Personnel. In its original form, the bill, as described by Mr. O’Brien, contained certain "boiler plate” language for standardizing a procedure when transferring local or municipal government employees into State service — a recurring problem that had been unresolved "over the years”. The language of the original bill is presently codified as Md. Code, Art. 64A, § 51A. It was enacted as "SECTION 1” of Chapter 440 of the Laws of Maryland, 1978:

"SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, That section(s) of the Annotated Code of Maryland be repealed, amended, or enacted to read as follows: Article 64A — Merit System 56.[51A],
(A) AN EMPLOYEE WHO IS TRANSFERRED TO THE STATE MERIT SYSTEM ACCORDING TO THIS SECTION, UNLESS OTHERWISE SPECIFIED IN THE ENABLING LEGISLATION TRANSFERRING SUCH EMPLOYEE TO THE STATE MERIT SYSTEM. SHALL BE APPOINTED WITHOUT FURTHER EXAMINATION OR QUALIFICATION. THE EMPLOYEE SHALL BE PLACED IN THE STATE CLASSIFICATION THAT IS COMPARABLE IN DUTIES AND RESPONSIBILITIES TO THE EMPLOYEE’S FORMER POSITION.
(B) THE EMPLOYEE MAY NOT SUFFER A DIMINUTION OF SALARY OR WAGES, ACCRUED LEAVE, WHETHER EARNED OR GRANTED, OR SENIORITY RIGHTS. ANY INCREASE IN SALARY OR WAGES GRANTED SUBSEQUENT TO PASSAGE OF THE LEGISLATION ENABLING THE TRANSFER, MAY BE RETAINED ON APPOINTMENT TO THE CLASSIFIED SERVICE ONLY IF THE SECRETARY APPROVES. THE SECRETARY SHALL CONSIDER THE MONETARY VALUE OF ANY AND ALL OTHER BENEFITS, ENTITLEMENTS, SERVICES OR PREROGATIVES AND, AT HIS DISCRETION AND IN CONSIDERATION OF THE BEST INTERESTS OF THE CLASSIFIED SERVICE, MAY CONSIDER THESE VALUES OR A PORTION OF THEM WHEN ESTABLISHING THE RATE OF SALARY ON APPOINTMENT. AFTER APPOINTMENT, THE EMPLOYEE IS ENTITLED TO THE SAME BENEFITS PROVIDED TO CLASSIFIED EMPLOYEES ESTABLISHED BY THIS ARTICLE.”

While the original bill was progressing through the legislative process, the employees whose jobs were jeopardized by the then pending litigation appear to have seen that bill as a conveyance for protecting themselves from the appellee’s assault on their positions. Thence came an epistolary deluge upon the House Committee on Appropriations. Itfound a procedural parliamentary solution for the employees, a procedural device little known beyond those hallowed halls, which permitted the new language to be added to the law carrying all of the force and effect of law, but not codified. It amended the Senate Bill by adding a "SECTION 2”, which read:

"SECTION 2. AND BE IT FURTHER ENACTED That the Secretary of Personnel shall transfer to the State merit system any key or unclassified employee of the Department of Transportation whose position is judicially determined in any action filed in any court of competent jurisdiction prior to January 1, 1978 to have been created unlawfully or otherwise be unlawful.”

Only the original language appearing as SECTION 1 of the original bill would be printed in the Annotated Code of Maryland.

When this device is used by one attempting to enact a self-interest "special law”, contrary to Md. Const., Art. Ill, § 33, it is in legislative jargon known as a "snake” or a "bell ringer”; but when properly used (e.g., to implement legislation requiring transitory provisions), it has the benefit of effecting a necessary purpose without cluttering legal codes already far too encumbered by unnecessary enactments. Even one who is aware of such legislation must seek these uncodified enactments either in the Session Laws of Maryland or in the journals. The one in question appended to Senate Bill 216 appears with its more apparent benefactor (§ 51A) in Chapter 440, 1978 Laws of Md.

We are compelled to digress a moment to discuss this law which was enacted as Chapter 440, Laws of Maryland 1978, effective July 1,1978. One is hard pressed to determine what was effected by its enactment. By researching the records and files of the General Assembly and its committees, we were able to discern that the original purpose of the original bill appeared to be to standardize a procedure as described in the original title which explained that it was:

"FOR the purpose of providing for the appointment, salary or wages, leave, and seniority of employees transferred into the State merit system;”.

The body of the bill (original and as enacted) did not provide for that broad purpose. It restricted its protections in the very first sentence to

"AN EMPLOYEE WHO IS TRANSFERRED TO THE STATE MERIT SYSTEM ACCORDING TO THIS SECTION____” (Emphasis added).

In its original form, the protections would have applied to no one since that section in the law did not provide for any transferring employees directly or by reference. If enacted in its original form, the law would make no sense at all. Compare Md. Code, Art. 64A, §§ 2, 5 and 7-9Q which designated clearly the positions to be transferred to the classified service from time to time.

When the Legislature added the aforementioned SECTION 2 which was never codified, it amended the title of the bill by adding new language presumably to describe that which the amendment encompassed. What was added to the title, however, appears to have changed the original purpose of the bill from establishing a general standard for an enigmatic source of transferees to apply as amended only to "certain” employees described so carefully as to be all but named. Using italics to indicate the title’s new language amended as descriptive of the effect of adding the "SECTION 2” to the body of the bill, the title of the bill as enacted reflects the accuracy of this observation:

"FOR the purpose of providing for the appointment, salary or wages, leave, and seniority of certain employees transferred into the State merit system; and providing that the Secretary of Personnel shall transfer to the State merit system certain employees whose positions are judicially determined in any action filed prior to January 1, 1978 to have been created unlawfully or to otherwise be unlawful.”

As amended the bill makes some sense, since it tells us who are the particular employees to which the law will now restrictively apply, i.e., those described in the "SECTION 2” uncodified amendment. We are not called upon to decide the constitutionality of the legislation in question, nor was the trial judge; however, as so read, the facial validity of the bill as it appears finally enacted as Ch. 440, gives us pause, to say the least.

Md. Const., Art. Ill, § 33 says, among other things,

"[ajnd the General Assembly shall pass no special Law, for any case, for which provision has been made, by an existing General Law.”

A special law is defined as a special law for a special case. Potomac Sand & Gravel v. Governor, 266 Md. 358 (1972), cert. denied, 409 U.S. 1040 (1972); Beauchamp v. Somerset County, 256 Md. 541 (1970); Jones v. House of Reformation, 176 Md. 43 (1939). A special law is also defined as one that relates to particular persons or things of a class as distinguished from a general law which applies to all persons or things of a class. Prince George’s Co. v. B. & O. R. Co., 113 Md. 179 (1910). The amendment adding the uncodified SECTION 2 gives the entire Act all of the appearances of a special law passed for a special case relating to particular persons within a class of State employees. The amendment in question and the entire law as described by the title (which Md. Const., Art. Ill, § 29 requires) so clearly addresses this problem then pending in this case, that it all but names the parties and the employees it intended to affect. While the constitutionality of the Act is not before us, we cannot disregard its questionable appearance in light of the "necessary party” question we must address.

Following the July 1, 1978 effective date of the job saving statute, presumably, the parties lost little time in prevailing upon the judge for a reprieve from the requirement of notifying the employees. The record extract contains the following:

"STIPULATION OF THE PARTIES

At a court conference held in chambers on July 13, 1978, the court below determined that because of the

enactment into law of Chapter 440, Acts of 1978, the notice to affected employees called for by the Intervention Order of Court, dated December 19, 1977, was no longer necessary and that the case should proceed without the necessity of the sending of the notice required in said Order. Through inadvertence, this determination does not appear on the record of the case.”

The job saving statute appears to have lulled the judge into a false sense of security that the employees no longer had "any interest which would be affected by the declaration”.

— "any” interest —

The necessary party provision (§ 3-405 (a)) of the Declaratory Judgment Act provides that (1)

"[i]f declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party.”

It. reemphasizes the importance of doing so by suggesting an alternative test by establishing the sanction that (2)

"[ejxcept in a class action, the declaration may not prejudice the rights of any person not a party to the proceeding.”

The Court of Appeals has interpreted what is now § 3-405 (a) of the Declaratory Judgment Act on "many occasions” as holding that "all persons interested in the declaration are necessary parties”. It has further held that

"the presence of necessary parties is jurisdictional, and this is a matter which the parties present cannot waive.” Williams, supra at 185.

The preliminary question on appeal, therefore, is whether the employees of the positions sought to be declared to have been illegally created had "any interest which would be affected by the declaration” remaining, despite the enactment of the codified § 51A and its SECTION 2 statutory ghost. Despite the enactment of the "saving statute” appended to Senate Bill 216, the obvious answer is in the affirmative.

Although we are not able to find a precise definition of what constitutes the interest necessary to raise a nonparty to a necessary (as contrasted with proper) party, it is significant that Cts. Art., § 3-406, immediately following the necessary parties section, sets forth, as a proper party:

"Any person interested .. . whose rights, status, or other legal relations are affected by a statute ... may have determined any question of construction or validity ... and obtain a declaration of rights, status, or other legal relation under it.”

Since the very heart of the case is statutory constructions which would vitally affect the status, if not the rights and other legal relations of the employees holding positions under the statutes, these employees would have been "proper” parties as "person[s] interested” under § 3-406 providing standing to bring an action for declaratory judgment. How can we say then that these people are not necessary as having "any interest which would be affected” (emphasis added) under § 3-405 (a) (1), or the rights of whom would not be prejudiced under (a) (2)?

The employees’ "interests” are'of real concern seriously prejudicing their rights (§ 3-405 (b)) even if the special amendment added to Senate Bill 216 to protect them is valid. There are three very apparent areas of interest prejudiced by the adverse declaration: .

1. The interest in the job geographically. The saving statute provides transferees "comparable” duties, responsibilities, wages, benefits, entitlements, etc. It does not require that the comparable position be in the same geographic area wherein the transferee is presently located. Thus, if an employee in Baltimore City was given a comparable position in Oakland or Pocomoke, the Secretary of Personnel would have complied with the saving statute. To avoid such uprooting of one’s domicile indeed amounts to "any interest. . . affected by the declaration”.

2. Their interest in preserving the job status outside the classified service. It is obviously difficult to argue to some that the benefits of a tenured type merit system do not outweigh the dangers of an untenured position sustained at the will of the employer and based entirely upon the employee’s satisfactory performance as judged by his superiors. Yet there are those who retain that self-satisfying spirit of professionalism that employment may be retained by one’s abilities and productivity, rather than by legislative fiat, or rule of law or contract. Furthermore, an unclassified employee is not subject to the procedural strictures of the merit system in advancing himself financially or otherwise, and may be singled out for advancement for exceptionally good performance, as well as plucked out for exceptionally bad performance. For many there is also a grievance procedure established by executive order comparable to that provided in the classified system. See Md. Code, Vol. 9A p. 612, et seq. For others that inclusion — at the will of the Chief Executive — is a likelihood. The right to reject security for independence is itself an interest one may well wish to protect.

3. Their interest of avoiding the potential jeopardy of having to repay past earnings in the event their jobs are declared illegal. The statute under which the "citizens” claimed standing provided not only for enjoining future payments for illegal positions but also permitted recovery from the offending Secretaries, for the use of the State, any sums illegally paid. Art. 64A, § 43. Despite the citizen-appellees not having sought that remedy, once a declaration of illegality is had, other "citizens” may well be spurred on to recover from the offending Secretaries, those payments illegally made, to replenish the State coffers. The Secretaries, if so jeopardized, would wish to have available, in the event of judgment, the availability of the proceeds illegally paid out, to ameliorate their personal responsibility to repay those funds. More likely than not the employees would be subject to joinder as third party defendants for purposes of indemnification or contribution. Who would prevail in such event is neither for us to predict, nor is it relevant to the issue here. It will suffice for the purposes of this case that the employees’ jeopardy provides adequate concern to establish the interest prerequisite to their having been made necessary parties or notified of their jeopardy and right to intervene.

If such case arose, one can also imagine the legal turmoil when a Secretary having been a party to the declaratory judgment action would apparently be estopped from using the defense of legality of the payments, and third party employees demanding the right to readjudicate the question because they were not parties to the action and their rights under § 3-405 (b) could not be prejudiced by the declaration. The declaration here, if left to stand, would not prevent a multiplicity of suits which is its primary purpose, Williams v. Moore, supra. It would adjudicate the rights of persons who have not had their day in court, and obviously could not, without the affected employees, be a complete determination of the matters in dispute in one case. Reddick, supra.

We find inapposite appellees’ argument, citing Bishop v. Wood, 426 U.S. 341 (1976), that in order to be necessary parties, employees must have a constitutionally recognized property interest in their employment. The issue here is not a question of deprivation of due process as in Bishop which required a constitutionally protected interest to obtain necessary party standing. We are concerned here only if there is "any interest which would be affected by the declaration” (emphasis added), which is the statutory test in § 3-405 (a). The trial judge cogently addressed that question in his opinion of November 17, 1977 initially declaring that the employees were necessary parties, but that notice of the right to intervene was a satisfactory substitute for dismissing the case.

"While it is true that the unclassified employees can be terminated at the unbridled discretion of the Secretary, the Secretary has the power to decide whether or not to exercise this discretion. However, if Plaintiffs are successful on the merits, then the Secretary will be compelled to terminate these positions, and the affected employees will not only lose their jobs as unclassified employees but will be required to take competitive examinations for the ensuing classified positions, and there is no assurance that they will be successful in being rehired in the merit system positions. Success by Plaintiffs in this litigation will, therefore, eliminate the discretionary employment that these employees now enjoy and may well eliminate their future employment with the State in similar capacities. It is clear that this litigation could substantially affect the employment interest of some or all of the members of this group.”

His error was in not completing his original purpose.

We will, therefore, reverse the judgment of the trial court and return the case to square two, the Motion Raising Preliminary Objection, which raised the necessary party question and prayed dismissal of the case with prejudice. That extreme sanction, however, goes too far. To the extent the motion addressed the want of necessary parties, it was in the nature of a demurrer — a demurrer that should have been sustained but with leave to amend. The trial judge, as we here hold, was initially correct in following the Reddick alternative,

"Requiring Plaintiffs to add to their suit some 300 employees as additional defendants would be a time-consuming and expensive undertaking, both to Plaintiffs themselves as well as to those employees who are not desirous of engaging legal counsel separate from those now representing the two Secretaries. The efficient administration of justice would be more expeditiously served by giving those employees who are desirous of doing so the opportunity to intervene in the case and thereby protect their interests. Those employees who are apprised of the litigation and make no effort to intervene will be bound by the eventual decision in this case to the same extent as if they had been made parties to the suit. Reddick v. State, supra, 213 Md. at 30.
Therefore, the Court will direct the present parties to formulate a procedure for notifying all of the affected employees of the present litigation and their right to intervene as additional defendants if they desire to do so. Such notification can be by registered or certified mail or hand delivery. The proposed procedures will be submitted to the Court for prior approval. After such notification is made and replies thereto are received, a trial date on the merits will be scheduled”,

but erred by not compelling completion of that compromise when lulled into false security by the saving statute. Upon reversing, we will, therefore, remand the case and direct the trial judge to compel compliance with his November 17,1977 Memorandum and Order on Preliminary Matters. Because the responsibility for failure to include the necessary parties was appellees, their case should be dismissed with prejudice if they have failed either to join the necessary parties or to comply with the November 17, 1977 order, within a reasonable time set forth by the trial judge. Anticipating retrial, we think it fitting to point out two areas of concern which seem to have escaped the attention of the parties and the trial judge.

Perhaps the reason the Legislature has been reluctant in the past to provide a proliferation of citizen standing statutes to adjudicate matters of governmental concern, derives from the singular interests of those who have the zeal to litigate such questions. So intent does one become upon one’s goal, that the administrative erosion peripherally caused in the wake of the judicial storm is obscured to the litigant who is not educated to foresee the dangers, until it is too late to bulkhead the damaged shoreline.

Here, for example, both litigants and court were so involved in whether the positions at issue were classified or unclassified, it never occurred that the court had the authority only to declare the positions legal or illegal — and nothing more. That portion of the final decree following the declaration of illegality of the positions, which declared that,

"each of the.. . positions is deemed to be'established as a 'classified position’ within the said 'classified service’ as of the date of this Decree,”

would have to have been vacated even if there had been no reversible error in the case.

Not only did such judicial reclassification go beyond what the citizens sought in their original petition, it exceeded the bounds of judicial authority as well. There is to our knowledge no authority for a judicial branch of government to create positions in the executive branch of government. This authority is solely within the realm of the legislative and executive branches acting within their respective roles. Even the statute (intended to protect the employees) strives to do so, not by reestablishing or authorizing the judicial reestablishment of the positions "judicially determined.. .to have been created unlawfully”, but by directing the Secretary of Personnel to transfer the "employee” to a "comparable” position. Keeping in mind that the original purpose of the original portion of Senate Bill 216, codified in Section 51A (a), was intended to apply to employees from other governments or branches thereof who were taken into State service, the express language makes it clear:

"The [transferring] employee shall be placed in the State classification that is comparable in duties and responsibilities to the employee’s former position.” (Emphasis added).

That is the extent of relief legislatively granted, i.e., to provide a comparable job, not a revitalization or recreation of the positions. The extent of the relief judicially available, then, is to determine the legality or illegality of the contested positions.

If the trial judge again declares that the positions were illegally created, the State is left without 321 positions that were, arguably at least, filled by "key personnel, staff assistants or trained experts”. As noted, 285 were with the Port Authority, and included port police. While the employees formerly holding these positions might be eligible to be placed elsewhere in comparable positions, the authority to reassign them to their identical former roles is questionable. It may be necessary administratively or legislatively to create comparable classified positions to carry out the duties left open by any declaration of illegality. That problem is one for the Legislature or, if left solely under the suspect saving statute, for the Secretary of Personnel and the Secretary of Transportation. Since the case must be retried following joinder (or notification) of the necessary parties, both the Legislature and Personnel Secretary are herewith forewarned of the ominous cloud and likely result of litigation looming. It is they who are authorized to create classified positions in places of illegally created unclassified ones, not the courts. We may rule only upon the legality of that which exists; we may not create that which speculatively ought to exist.

Finally, we assume those employees who will intervene or be joined will raise the question of constitutionality of their "saving statute” authoritatively found only as SECTION 2 of Chapter 440 of the Laws of Maryland 1978. Judicial reliance upon the specially enacted statute with a determination of constitutionality, even as a job protection for the employees would be and was a precarious judgment at best. We have indicated, without holding, the special enactment has the initial appearance of a "special law” which is a question of vital concern to the new necessary parties. Unless decided with this case, "citizens” seeking to protect the State coffers may very, well bring a subsequent action under Art. 64A, § 43, for another declaratory judgment of unconstitutionality if the Secretary of Personnel carries out the legislative mandate of the uncodified SECTION 2 of Senate Bill 216 in the likely event the positions are again declared illegal.

Judgment reversed.

Case remanded to the Circuit Court o; of Baltimore City for retrial pursuant to this opinion.

Costs to be paid by the appellees.

        . "Appointment, removal, and salary of assistants, consultants, and other personnel. — The Secretary may have in the Department the staff assistants, professional consultants, and employees provided in the State budget. Each staff assistant in charge of an area of responsibility and each professional consultant shall be appointed by and serves at the pleasure of the Secretary. Unless otherwise provided by law, the Secretary shall appoint and remove all other personnel in accordance with the provisions of the State Merit System Law. The Secretary may delegate his authority to appoint and remove personnel of any unit to the head of that unit.”

      . "The following positions shall not be included in the classified service, namely: ... all positions in State offices, boards, commissions, departments and institutions, which the Secretary may determine, with the approval of the Governor, require medical, engineering, scientific, educational or expert training and qualifications; ....”

      . "Agents and employees. — (1) Subject to paragraph (2) of this subsection, the Administration may employ:
      (i) Consulting engineers, accountants, construction and financial experts, superintendents, traveling representatives, managers, clerks, stenographers, and laborers; and
      (ii) Any other agents and employees that it considers necessary.
      (2) Except for those traveling representatives and other key personnel who the Administration determines require engineering, scientific, or expert training and qualifications, the employment, compensation, and tenure of all full-time employees are subject generally to the State Merit System Law. These full-time employees, including traveling representatives and other key personnel, are subject to the rights and benefits of Article 73B of the Code on pensions.”

      . Although the motion also questions appellees’ standing to sue, appellants have now conceded that appellees have standing in light of Art. 64A, § 43.

      . Md. Rule 208:
      "a. Of Right.

      Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (b) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.
      b. Permissive.
      1. Person.
      Upon timely application a person may be permitted to intervene in an action when his claim or defense has a question of law or fact in common with the action.
      2. Federal Government, State or Political Subdivision.
      Upon timely application the federal government, the State, a political subdivision of the State, or any officer or agency of any of them may be permitted to intervene in an action when the validity of a constitutional provision, charter provision, statute, ordinance, regulation, executive order, requirement or agreement is drawn in question in the action or when a party to an action relies for ground of claim or defense on such constitutional provision, charter provision, statute, ordinance, regulation, executive order, requirement or agreement. This subsection shall not limit the rights provided by § 3-405 of the Courts Article.”

      . "The object of the rule that requires all necessary parties to be joined is to be sure that no one’s rights are adjudicated unless he has had his 'day in Court’; and that there will be a complete determination of the matters in dispute in one suit (this latter being subject to certain exceptions not here pertinent).” Reddick v. State, 213 Md. at 30.

      . "One of the primary reasons for the above quoted part of section 11 was to make any decree rendered by the Court a final and complete determination of the subject matter in dispute, and thereby prevent a multiplicity of suits.” Williams v. Moore, 215 Md. 181, 185 (1957).
      The "section 11” referred to is essentially that which is contained in Cts. Art., § 3-405 (a) quoted by the judge.

      . This information was obtained from the records of the House Appropriations Committee.

      . The original bill proposed to add a new "Section 56” to Article 64A. Another bill was enacted in the same 1978 Session proposing to add a new "Section 56” dealing with an entirely different subject matter, i.e., the "Defense of Sovereign Immunity”. Chapter 523, Laws of Md. 1978. Presumably, the codifier took upon himself to designate Chapter 440 as adding "Section 51 A”. Although the change in this instance did not affect the law despite the bill’s subjective reference "ACCORDING TO THIS SECTION”, such arbitrary redesignations could seriously affect the entire purpose and intent of a law.

      . § 2. Employees of penal institutions.
      § 5. Police at State colleges.
      § 7. Comptroller’s office; Veterans’ Commission; Board of Cosmetologists.
      8 8. Assistant State auditors.
      8 8A. Assistant Secretary of State.
      § 9. Toll collector or superintendent of Washington and Berkeley Bridge.
      § 9A. Contractual employees of Department of Public Improvements.
      8 9B. Positions in State Civil Defense and Disaster Preparedness Agency.
      8 9C. Positions in State Department of Legislative Reference and Department of Fiscal Services.
      § 9D. Temporary inspectors in Baltimore City taxicab driver licensing program.
      § 9E. Employees of Sheriffs office in Baltimore City.
      8 9F. Contractual employees of bookshop of Towson State College.
      § 9G. Employees of boards of supervisors of elections.
      § 9H. Right-of-way agents in Interstate Division of Baltimore City.
      § 9-1. Certain employees of Prince George’s County and Baltimore City transferred to State Division of Parole and Probation.
      8 9-J. Certain employees of Harford County transferred to State Division of Parole and Probation.
      § 9J-1. Certain employees of Baltimore County transferred to State Division of Parole and Probation.
      § 9K. Terminal operators and proofreaders in Department of Legislative Reference.

        § 9L. Contractual employees of bookstore and snack bar of Salisbury State College.
      § 9M. Employees of University of Baltimore.
      § 9N. Employees of Chesapeake Park, Inc., assigned to work at Glenn L. Martin State Airport.
      §■ 9-0. Employees of Hall of Records Commission.
      § 9P. Clerical and administrative employees of soil conservation districts.
      § 9Q. Somerset County employees operating state-owned equipment used in mosquito control.

      . Our raising the possibility of the constitutional infirmity of Chapter 440, in light of Md. Const., Art. Ill, § 33, may indicate that we have decided that question or that we are indicating how we believe it should bo decided upon remand. No such inference should be drawn therefrom, nor should one infer that there are no other sections of the constitution which may cast similar shadows upon the Act. E.g., see Md. Const., § 29. The purpose of pointing to the possible constitutional jeopardy of the Act is to emphasize the inadvisability of viewing special legislation as a substitute for judicial procedural prerequisites.

      . Appellants alleged, among other contentions, that:
      "The Circuit Court Erred in Its Interpretation of Section 2-102 (d) of the Transportation Article (1977).
      The Circuit Court Erred in Its Interpretation of Article 64 A, Section 3, Ann. Code of Md., (1978 Cum. Supp.).
      The Circuit Court Erred in Its Interpretation of Section 207C(e), Article 41.
      Section 207C(e) Confirmed the Lawfulness of Key Status for Certain Positions.
      The Circuit Court Erred in Disregarding the Significance of Section 207C(e),
      The Circuit Court’s Definition of 'Expert Training and Qualifications’ is Erroneous.”

      . It also questioned appellees’ standing to sue, see n. 4 op cit.


author:
Thompson, J.,
      Moylan, J.,

text:
    BRIAN DALE PRIET v. STATE OF MARYLAND
    [No. 469,
    September Term, 1979.]

      Decided February 13, 1980.

    The cause was submitted on briefs to Gilbert, C. J., and Thompson and Moylan, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Patricia A. Logan, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Paul T. Cuzmanes, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and C. William Clark, Assistant State’s Attorney for Baltimore County, for appellee.
   Thompson, J.,

delivered the opinion of the Court. Moylan, J., filed a concurring opinion at page 6 infra.

Brian Dale Priet, the appellant, was convicted on a guilty plea in the Circuit Court for Baltimore County, of robbery with a deadly weapon. He was sentenced to a term of ten years. Appellant contends that:

1. the trial court erred by improperly accepting his guilty plea;
2. the trial court erred by not dismissing his case because he was not brought to trial within 120 days; and
3. he did not receive competent representation by his trial counsel.

At about 2:30 a.m. on Sunday, August 27, 1978, two men entered a Seven-Eleven store in Baltimore County. When the men approached the cashier, one of them produced a bayonet and the other scooped the cash out of the open cash register. The two then fled and the police were called. Twenty minutes later, the police stopped two men answering the description of the robbers. From them they recovered the money taken from the store as well as the bayonet. One of the men was the appellant and the other George Fields. At the trial the appellant agreed to the facts given by the state except to maintain that the person holding the bayonet was Fields.

The appellant initially contends that the court failed to comply with Md. Rule 731 c because the judge did not explain on the record the charges to which he pled guilty. The rule provides in pertinent part:

"The court may not accept a plea of guilty without first questioning the defendant on the record to determine that the plea is made voluntarily, with understanding of the nature of the charge and the consequences of the plea. . . .”

The following colloquy took place between the judge and the appellant:

"The Court: Have you discussed your guilty plea fully with your attorney?
The Defendant: Yes, sir.
The Court: Have you discussed all of the relevant facts and possible defenses about this case with Mr. Brennan?
The Defendant: Yes, sir.”

Although we have not quoted the complete colloquy, the record shows no discussion with the appellant as to the nature of the charge.

In the recent case of Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979), the Court of Appeals interpreted Rule 735, which directs the procedures to be followed when a defendant waives a jury trial and elects a court trial. The court stated:

"The inquiry upon which the court determines that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and has knowingly and voluntarily waived the right, must be 'of the defendant on the record.’ It is clear that the inquiry required for the determination must be addressed to the defendant in open court and recorded. The inquiry need not be conducted by the judge; it may be made by defense counsel or even by the prosecutor, but the responses must come from the defendant himself. The Rule does not envision that counsel simply report to the court that he has inquired of the defendant and given him the information necessary for an effective election. In order to assess properly the validity of an election under Rule 735 the court must not only know what was told the defendant but be in a position to evaluate the responses of the defendant to the information imparted. The information given, the questions asked of the defendant and by the defendant and the answers and comments made must be on the record so as to be available for appellate review if the election is questioned.” Id. at 454. (emphasis added).

The Court recognized that this procedure "goes far beyond what is necessary for a waiver of a jury trial to be constitutionally effective; the Supreme Court has certainly not enunciated such a test.” We believe that the recent interpretation of the Rules in Countess requires reversal here, because the judge did not inquire on the record of the defendant whether he understood the charges to which he pled guilty. There is no reason to require a less strict rule when the issue is the acceptance of a guilty plea than when the issue is the waiver of a jury trial. More constitutional rights are waived by a guilty plea than just the right to a jury trial. A defendant who pleads guilty waives his right to any trial as well as several other constitutional rights. In addition, the pertinent portion of Md. Rule 735 d is similar to the pertinent portion of Md. Rule 731 c:

"If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. . . .”

This reasoning is supported by cases interpreting Rule 11 c of the Federal Rules of Criminal Procedure 18 U.S.C. App. (1976) which is similar to Md. Rule 735. This Rule provides:

"Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
"(1) the nature of the charge to which the plea is offered, . . .”

In McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), the trial judge did not determine that the plea was made "voluntarily with the understanding of the nature of the charges.” The Supreme Court reversed, holding that the trial court failed to comply with the procedural dictates of the rule. The Court stated that the purpose of Rule 11 was first, to assist the trial judge in making a constitutionally required determination that a defendant’s guilty plea was truly voluntary, and secondly, to produce a complete record at the time the plea was entered, of the factors relevant to the voluntariness determination. Thus, post conviction attacks on the constitutional validity of guilty pleas would be discouraged. Federal cases interpreting McCarthy and Federal Rule 11 c have stated that the trial judge must personally determine whether the defendant understands the nature of the charges. See, e.g., United States v. Wetterlin, 583 F.2d 346 (7th Cir. 1978), cert. denied, 439 U.S. 1127, 99 S. Ct. 1044 (1979); Horsley v. United States, 583 F.2d 670 (3rd Cir. 1978); United States v. Adams, 566 F.2d 962 (5th Cir. 1978); United States v. Saft, 558 F.2d 1073 (2d Cir. 1977); Phillips v. United States, 519 F.2d 483 (6th Cir. 1975). See also, United States v. Bambulas, 571 F.2d 525 (10th Cir. 1978); United States v. Coronado, 554 F.2d 166 (5th Cir.), cert. denied, 434 U.S. 870, 98 S. Ct. 214 (1977), American Bar Association Project on Minimum Standards for Criminal Justice Standards Relating to Pleas of Guilty § 1.4 (approved draft 1968).

We note that the due process constitutional standards relating to voluntariness of a guilty plea set forth in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), and interpreted by Maryland Courts in Davis v. State, 278 Md. 103, 361 A.2d 113 (1976) and Miller v. State, 32 Md. App. 482, 361 A.2d 152, cert. denied, 278 Md. 728 (1976), cert. denied, 430 U.S. 966 (1977) would probably be satisfied by the proceedings below, however, under Countess v. State, supra, we are constrained to hold that the trial judge did not comply with Rule 731 c of the Rules of Procedure in the present case.

Although we are reversing the case, we are remanding it for a new trial and thus we need to discuss briefly one other question raised by the appellant. The appellant contends that the court erred in not dismissing the charges against him because he was not tried within the period required by Maryland Rule 746 a which states:

"Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.”

We note that the docket entries indicate the appellant’s trial counsel entered his appearance on October 10,1978; that the trial was postponed at the appellant’s request on November 30,1978; and that he was tried on January 9,1979. This was 91 days after his trial counsel entered his appearance, and thus the trial was in compliance with the rule.

Judgment reversed.

Case remanded for a new trial.

Costs not reallocated pursuant to Maryland Rule 1082 f.

Moylan, J.,

concurring:

Reluctantly, I concur. I cannot fault the logic of the majority opinion as it proceeds to its conclusion from the premise of Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979). I do question, however, the wisdom of that premise.

I agree with the majority that the approach to Md. Rule 735 mandated by Countess v. State cannot be reconciled with the approach to Md. Rule 731 c mandated by Davis v. State, 278 Md. 103, 361 A.2d 113 (1976). For my part, I far prefer the more sensible approach of Davis v. State, so well articulated there by Judge Digges.

What we have done here (or rather what the rule has done under the Countess approach to rule interpretation) is to exalt form over substance. In this case, it is clear to any rational beholder that the appellant voluntarily entered a plea of guilty. That should end the inquiry. To send this case back for a retrial mocks the business of judicial review. It is one further illustration of why the public perceives the judicial system as frequently operating in an ivory tower. At a time when resources are finite and caseloads are staggering, sound policy calls for concentrating the limited judicial, prosecutorial and defense resources that are available upon issues of real substance rather than upon the abracadabra of reciting a litany. We are fiddling while Rome burns.


text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. THEODORE E. JAKELSKI
    [No. 662,
    September Term, 1979.]

      Decided February 13, 1980.

    The cause was argued before Gilbert, C. J., and Thompson and Lowe, JJ.
    L. William Gawlik, Assistant Solicitor for Baltimore City, with whom were Benjamin L. Brown, City Solicitor, William Hughes, Associate Solicitor, and Sheldon H. Press, Chief Assistant Solicitor, on the brief, for appellant.

      Irving Schwartzman for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Baltimore City Police Officer Theodore Jakelski was scheduled to appear in traffic court once each month to testify in regard to traffic citations previously issued. On July 15, 1976, he was scheduled to appear at 2:00 p.m. and, following his appearance, was to report for roll call at 3:30 p.m. assigned to the Northeast District. The officer was compensated by the hour for his courtroom appearances and while usually credited with a minimum of two hours, actual time was recorded by "punching” a clock provided at the traffic court.

While en route to the court from his home on July 15,1976, Officer Jakelski was involved in an accident which caused disabling injuries. He filed for workmen’s compensation benefits (Md. Code, Art. 101), but was denied his claim by the Workmen’s Compensation Commission. Indicating that this case gave rise to

"[s]trictly a legal question; something to be stipulated and go up on a very inexpensive appeal, to have some Court rule on this decision, so we’ll have some sort of direction,”

the Commissioner presiding decided that the accident was not compensable, having' occurred before the officer was on duty.

"I find, however, there is not an accidental injury arising out of and in the course of the employment, because of the fact that the Claimant is to be paid from the time he punches in; and the time I assume when you punch out.”

The officer took the Commissioner’s advice and appealed to the Baltimore City Court which decided the case on the record.

Presumably because testifying in traffic court was a routine part of the officer’s duties, the trial judge found that

"he [Jakelski] was on duty and that this accident happened in the course of his duty,”

thereby reversing the Commission. The court did not, however, address the factual concern that the officer’s accident occurred while in his private vehicle before he arrived at traffic court. This becomes crucial in light of what is euphemistically referred to as the "going and coming” rule. That rule provides generally that an employee is not covered by the Workmen’s Compensation Statute if his injuries are received on public streets while going to or from work. Md. Paper Products Co. v. Judson, 215 Md. 577, 583-584 (1958). This is so because such an injury evolves from a peril which is " 'common to all mankind, or to which the public at large is exposed.’ ” Ibid.

Several modifications of that rule have arisen in the form of exceptions and it is among these that appellee Jakelski must seek surcease from the rule’s effect if we are to be convinced that the trial judge was correct. The rule does not apply, for example, where the employer provides transportation, Harrison v. Central Con. Co., 135 Md. 170 (1919), or where an employee is in such immediate proximity to his employment that he is considered to be in the course of that employment. Judson, supra. Indeed, the Court of Appeals indicates that each modification case must be dealt with upon its own facts, id. at 584, and that seems the only justification for some of the exceptions which have been considered. In Weston-Dodson Co. v. Carl, 156 Md. 535 (1929), a salesman, having completed his calls, was returning home to make business-related telephone calls. When he was injured en route, it was held compensable. In Coats & Clark’s Sales v. Stewart, 39 Md. App. 10 (1978), an employee injured while grocery shopping for a baby-sitter, necessary to enable him to attend a company party, was compensated because he was on a "special errand or mission”. The special errand or mission exception gives rise to another euphemism known as the "special errand (or mission) rule”, although strictly speaking it is itself an exception to the- "going and coming” rule. Professor Larsen’s Workmen’s Compensation Law, § 16.10 at 4-123, best expresses that exception which was first recognized in Maryland in Reisinger-Siehler Co. v. Perry, 165 Md. 191 (1933).

"The special errand rule may be stated as follows: When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.” (Footnote omitted).

Two cases dealing with death or disability benefits for injuries arising out of employment were preoccupied with that exception in the factual context of Baltimore City police officers.

In Dir. of Finance v. Alford, 270 Md. 355 (1973), the officer-employee was called to come to work early during an emergency period when all policemen on the force had been alerted " 'to keep themselves available’ to be called back 'on emergency status’ ”. On his way to the station, he was involved in an automobile accident which resulted in his disability. The Court held that the facts fell within the "special mission” rule, and that the accident was compensable, even though the employee was on his way to work. The elements emphasized in implementing this "rule” were the existence of a state of emergency during which he was on a constant alert basis, that reporting was obligatory and that he was obliged to put in a full shift plus the time added by the early arrival.

The officer-employee in Police Comm’r v. King, 219 Md. 127 (1959), had not yet begun his journey to work, nor was there a declared emergency in being. He was dressing for work and received an accidental, though fatal, gunshot wound from his own service revolver. The Court held that since the police officer was off duty at the time of the accident, his beneficiaries were not entitled to the payment from either of two statutory special funds for deceased members of the force killed "while in the actual performance of duty” or in consequence of injuries received "while in the discharge of duty.”

Neither case provides Officer Jakelski a route by which he may circumvent the "going and coming” rule. King offers him naught by way of fact, law or result. Alford, on the other hand, seems at first blush to offer hope, but when carefully read is authority to the contrary. The emphasis placed upon the emergency conditions, stand by orders and obligatory recall indicate that a duty-related trip made regularly in the course of duty is not a "special errand”. We do not find an officer whose duties indicate a monthly court attendance to be on a "special errand” because he must report to a courthouse rather than to a station house to commence his duties.

Alford’s emphasis upon the emergency, and the immediacy of the obligatory recall, provided the route to the "special errand” exception in that case; however, as pointed out,

"[fjuture cases quite likely will present a variety of factual situations which will make difficult the determination of the precise time the employee actually had embarked upon the special mission. Obviously they will have to be dealt with on a case by case basis.” Id. at 364.

See also Judson, supra, at 584. In this case it is clear that Jakelski never embarked upon a special errand or mission; he was en route to a regularly repetitive performance of one of his many duties. This regular course of monthly conduct also distinguishes this case from Coats, supra, upon which appellant also heavily relies. As appellant points out in his brief, both Coats and Alford involved journeys that were irregular or unusual. The trial judge here factually found that court appearances by the officer were a part of Jakelski’s regular duties:

"Well, gentlemen, I don’t have any difficulty with this matter. I don’t think Officer Jakelski can be compared to an average citizen going to testify in Traffic Court of the Traffic Division of the District Court. Ordinary citizens, the average citizens, don’t handle accident cases. It is not their duty to investigate accident cases. They issue summonses for accident cases, it is the officer’s duty to do that and in furtherance of that duty, it is his duty also in the opinion of the Court, obviously, that he has to appear as a witness in either the Traffic Division of the District Court or in answer to a summons if there should be civil litigation thereafter pertianing [sic] to that accident. You can just imagine what would happen if it was not considered part of his duty. Then Officers could say, well, they don’t have to go to Traffic Court and testify to cases they have handled. It is not their obligation to. Of course, they can’t do that. It is their obligation and responsibility to testify in court. They are not in Traffic Court in response to a summons issued by any of the parties. The officer is the one who inspires the proceeding that brought about the Traffic Court appearance in the first place by issuance of summons to parties who were involved in the accident that he believes should be summonsed for the Traffic Court Judge to determine who, if either or not both, were guilty of violation of the Motor Vehicle Laws. It is as simple as that. I find very clearly he was on duty and that this accident happened in the course of his duty. Therefore, the decision of the Workmen’s Compensation Commission is reversed.”

But that factual finding contradicts his legal conclusion. We are concerned more with appellee in transit than his status upon arrival. Thus, if the court appearance had been an isolated obligation, the journey to testify might well have been a special errand or mission; however, since such appearances were a regular duty, periodically to be performed, the journey from home to place of employment is not a special errand. Officer Jakelski was "going to” work when he was injured. Like most of us, his employment commenced only after he arrived, not while he was on his way there.

Alford, supra, also teaches negatively another lesson which responds to appellee’s alternative argument, i.e., that

"[t]he Appellee was on twenty-four hour duty, and subject to call to official duty whenever the need for official action arose.”

If police officers are considered to be on duty and in the course of their employment twenty-four hours a day simply by nature of their position, there would have been no need for the emphasized distinguishing factors in Alford of emergency conditions, stand-by alert and obligation to invoke the special mission exception. Beyond that, were such the intent of the Court of Appeals, King could not have lost his case — whenever he was killed — so long as the death was accidental. We must reverse the trial court which reversed the commission.

It is apparent then that the court’s conclusion,

"I find very clearly he was on duty and that this accident happened in the course of his duty”,

is clearly erroneous. Md. Rule 1086. The parties conceded that he was in transit to the courthouse where he was regularly compelled to attend on a monthly basis and had not arrived. What is more he made no claim either that transportation was provided, Harrison, supra, or that he was in the immediate proximity of his employment, Judson, supra.

Judgment reversed.

Costs to be paid by appellee.

      . Although neither case involves workmen’s compensation, the issues involved were identical, i.e., whether injury or death occurred "out of and in the course of the actual performance of duty.” The compensation sought was in the form of special disability retirement benefits and death benefits if death or injury occurred while in discharge of duty.

      . Appellant testified unequivocally in that regard:
      "I’m assigned to a Traffic Court schedule once a month, 2 p.m., Courtroom 3 at the time, the accident occurred approximately 1:30, 1:35. Due to living in Harford County, I usually leave early and get to Traffic Court as soon as I can. Formerly, I arrive twenty-five of and quarter of before the hour.”