text:
    JUDITH A. KATSIANOS v. MARYLAND EMPLOYMENT SECURITY ADMINISTRATION
    [No. 1236,
    September Term, 1978.]

      Decided June 12, 1979.

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

      Charles Lee Nutt and Stuart Levine, with whom were Francomano, Clements, Radding & Nutt on the brief, for appellant.

      Margaret E. Rawle, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Joel J. Rabin, Assistant Attorney General, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Sir Isaac Newton, in 1686, expounded his Laws of Motion, the third of which has been simplified as follows: Every action has an equal and opposite reaction. In this case we are called upon to decide whether the Court of Appeals decision in Waters v. Maryland Unemployment Insurance Fund, 220 Md. 337, 152 A. 2d 811 (1959) (hereinafter cited as Waters) prompted the Maryland Legislature to enact Section 17(d) of Article 95A in 1960. Appellant, Mrs. Katsianos, contends initially that there was no legislative reaction to Waters and, in the alternative, the new legislation does not affect the Court of Appeals’ holding in that case. Appellee, the Maryland Employment Security Administration (ESA), naturally contends otherwise.

The specific issue raised is whether ESA may recoup unemployment insurance benefits paid when a claimant is later awarded back pay by the National Labor Relations Board.

Judith A. Katsianos, formerly an employee of the Federal Yeast Corporation of Baltimore City, was terminated from her employment on October 1,1975. She subsequently applied for and received unemployment insurance benefits of $89 per week for the period beginning November 8, 1975 and ending December 18, 1976. The amount of benefits received by appellant totaled $4,094.

Following her discharge appellant filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against her former employer, which resulted in a stipulated settlement. The NLRB issued a formal order embodying the terms of settlement. The order awarded appellant $9,520.60 in “back pay”, a letter of recommendation from Federal and a letter offering her reinstatement. Additionally, Federal was required to post a notice concerning its labor activities. The order required of appellant that she reject Federal’s offer of reinstatement, withdraw all other actions she had pending against Federal, and elicited from her a promise to desist from any future actions against the company.

The record discloses that the monetary award was the exact amount of wages appellant would have earned from the company were it not for the termination, plus interest. In her request for withdrawal of a charge of discrimination filed with the Equal Employment Opportunity Commission, appellant specifically stated she had drawn $9,767.67, which represented back pay and interest; this sum was paid in January, 1977. In April, 1977, Federal notified the Employment Security Administration of this “back pay” settlement and felt that its account should be credited following appellant’s repayment of the benefits she had received. This notice then triggered action by the Administration in the form of a “non-monetary determination” that appellant was ineligible to receive benefits because she was not unemployed and therefore resulted in an overpayment of $4,094. Appellant promptly noted an appeal. The appeal was heard by a hearing officer in June, 1977, who reversed the decision of the claims examiner. Federal thereupon noted an appeal to the Board of Appeals and a hearing was held in November, 1977. The Appeals Board reversed the decision of the hearing officer (Appeals Referee), basing its determination upon its finding that appellant was not unemployed during the period she received benefits and thus was disqualified from receiving them. Appellant then appealed to the Superior Court of Baltimore City. That court, after a hearing, agreed with the decision of the Board of-Appeals, and this appeal followed.

Appellant argues appellee was not entitled to recoup the unemployment benefits she had received because (1) she was eligible for the benefits when she received them, and (2) the “back pay” award did not constitute wages within the terms of the Maryland Unemployment Security law. We have little difficulty in affirming the conclusion reached by the Superior Court and the Board of Appeals with regard to the second reason. The record clearly demonstrates that the amount of the award was identical to the wages appellant would have received had she not been terminated; the NLRB compliance officer’s letter to Federal referred to the award as “back pay”. She herself referred to it as “back pay” in her Equal Employment Opportunity Commission withdrawal notice, and we find no evidence that she complained when Federal, in payment of the award, deducted Federal and State withholding taxes and FICA taxes. We recognize that appellant testified that the award was merely a settlement of a larger claim against her employer. Nevertheless, we believe there was ample evidence before the Board, as indicated above, to support its conclusion that the award of $9,520.60 represented back pay.

We have more difficulty with the first ground set forth by appellant but, nevertheless, conclude that we can afford her no relief. Appellant’s argument here reduces itself to this: since, in actuality, she was terminated and unemployed when she received the unemployment benefits, she was an eligible person and, by implication at least, the fact of receiving the back pay would not change her eligibility. We think this argument ignores the clear import of the 1960 legislative action which we also believe to have been a reaction to the 1959 Waters decision.

In Waters, an employee was discharged and drew unemployment benefits but only after his claim therefor, which was resisted by his employer, had been approved by the Department of Employment Security (the Department). As a result of an arbitration proceeding pursuant to a collective bargaining agreement between his employer and his union, the arbitrator “directed that Waters be ... made whole for the time lost by reason of his discharge.” This award included back pay. Upon learning this the Department made a redetermination and found that the benefits paid to Waters constituted an overpayment and sought to recover the amount so paid under Section 16 (d) of the Act, Md. Code Ann. art. 95A, § 17 (d) (1957), which reads as follows:

“Any person who, by reason of the non-disclosure or misrepresentation by him or by another of a material fact (irrespective of whether such non-disclosure or misrepresentation was known or fraudulent) has received any sum as benefits under this Article while any conditions for the receipt of benefits imposed by this Article were not fulfilled in his case, or while he was disqualified from receiving benefits, shall, in the discretion of the Board, either be liable to have such sum deducted from any future benefits payable to him under this Article or shall be liable to repay to the Board for the unemployment compensation fund, a sum equal to the amount so received by him, and such sum shall be collectible in the manner provided in Section 14 (f) of this Article for the collection of past-due contributions.”

The Court of Appeals posed three questions it felt had to be addressed under the 1957 statute:

“[Wjhether the claimant was ‘unemployed’ within the meaning of the Act during the period for which unemployment benefits were paid out of the Fund; second, whether the payment of such benefits was the result of any non-disclosure or misrepresentation of a material fact; and third, whether recovery can be had on behalf of the Fund on a theory of unjust enrichment, even though neither non-disclosure nor misrepresentation of a material fact be shown.”

It then concluded that Waters indeed had been unemployed at the time he received unemployment benefits and thus was an eligible person, specifically rejecting the State’s argument on this point that the arbitrator’s award constituted back wages thus disqualifying him since he was not unemployed. The Court also concluded that:

“[I]t would be an unwarranted construction of the words ‘wages payable’ as used in Section 19 (1) of the Act in defining ‘unemployed’ as meaning not ‘wages currently payable’, but ‘wages legally due and payable upon a contingency’...” Waters, supra at 348.

The Court further concluded that since Waters indeed was unemployed when he made his claim for benefits based on his unemployed status, there was no misrepresentation of an existing fact and thus no basis for recovery from him of those benefits he received under the authority of Section 16 (d). As to the third question posed, the Court resolved it quickly by concluding that Section 16 (d) was the only authority for recoupment against an employee and it required a showing of either a non-disclosure or misrepresentation which were not present so no recovery could be allowed. The Court of Appeals then made this statement: “Doubtless, the General Assembly could have conferred a broader right of recovery in favor of the fund if it had seen fit to do so.” Id. at 352.

The following legislative session, the Maryland Legislature saw fit to broaden the right of recovery in the Fund by enacting Chapter 91 of the Laws of I960. This, we conclude, can only be regarded as a direct reaction to the Waters decision. The General Assembly in enacting legislation is presumed to be fully aware of prior and existing judicial decision concerning such law. Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 498, 331 A. 2d 55 (1975) and cases cited therein. By this Act the Legislature, in part, repealed § 16 (d) of the Act (§ 17 (d) of the Md. Code) which was captioned “Receipt of benefits by reason of nondisclosure or misrepresentation of material fact” and enacted a new Section 17 (d) captioned “Recoupment of benefits paid”, the law governing this case, which reads as follows:

“Recoupment of benefits paid. — When any person has received any sum for benefits for which he is found by the Executive Director to have been ineligible, the amount thereof may be recovered from benefits payable to him or which may be payable to him in the future, or in the manner provided in Section 15 (f) of this article for the collection of past-due contributions. Such sums maybe recouped by either of these methods provided that whenever the Executive Director decides that any sum received by the claimant shall be recouped, either because he has received or has been retroactively awarded wages, was not unemployed as that term is defined in this article, or was disqualified or otherwise ineligible for such benefits, he shall promptly notify the claimant of his decision and the reasons therefor. The decision and the notice shall state the amount to be recovered, the weeks, with respect to which such sum was received by or paid to the claimant, and the provision of the law under which it is found that the claimant was ineligible. The Executive Director may reconsider his decision at any time within one year after the date when it was made. Such decision or reconsidered decision may be appealed within the time limits and under the procedure prescribed in Section 7 of this article for appeal from a determination, but on appeal the issue shall be limited to whether or not the claimant was ineligible during the weeks in question.” Md. Ann. Code art. 95A, § 17 (d) (Repl. Vol. 1979). (Emphasis added.)

One of the fundamental rules of statutory construction is that in ascertaining legislative intent, a statute should be read so that no word, clause, sentence or phrase is rendered superfluous, meaningless or insignificant. Krol v. York Terrace Building, Inc., 35 Md. App. 321, 329, 370 A. 2d 589 (1977). We believe it is clear that by this new legislation the Legislature was expressing its intention to provide for recoupment of benefits where the recipient has been awarded back pay, as occurred in Waters and this case, otherwise the phrase “or has been retroactively awarded wages” would be rendered meaningless.

Accordingly, we find no error and shall affirm.

Order affirmed.

Costs to be paid by appellant.

      . 3 The Harper Encyclopedia of Science 822 (1963).

      . Mrs. Katsianos was actually employed by Bakery Products, Inc., a wholly owned subsidiary of Federal Yeast Corporation.

      . Now codified as Md. Ann. Code art. 95A, § 17 (d), (Repl. Vol. 1979).


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    SUPERVISOR OF ASSESSMENTS OF PRINCE GEORGE’S COUNTY et al. v. WASHINGTON NATIONAL ARENA LIMITED PARTNERSHIP
    [No. 1248,
    September Term, 1978.]

      Decided June 12, 1979.

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

      Peter W. Taliaferro, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant Supervisor of Assessments of Prince George’s County. David S. Bliden, Associate County Attorney for Prince George’s County, with whom was Robert B. Ostrom, County Attorney, on the brief, for other appellant.

      Glenn T. Harrell, Jr., with whom were Peter F. O'Malley and O’Malley, Miles, Farrington & McCarthy on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

“This is the Fourth ...,” not of July, but time that a variation of this matter has been before the appellate courts of this State. Hopefully, it is the last time.

The issue presented by this appeal is whether the leasehold interest of the appellee, Washington National Arena Limited Partnership (WNA), in the land and improvements on the property of Maryland-National Capital Park and Planning Commission (MNCPPC) is exempt from county and State real property taxation under Md. Ann. Code art. 81, § 8 (7) (e) as a “concession for occupancy of a public park.” Underlying, but close to the surface, is a secondary question of what is a “public park.” ***

The facts giving rise to this case are uncontroverted. On November 21, 1966, the Maryland State Roads Commission and the Board of Public Works conveyed to MNCPPC the “Kuenne Tract,” a 75.31 acre parcel of land in Prince George’s County. At the time of the conveyance, the land was in its natural state.

Reacting to a county policy of development of cultural centers, MNCPPC, in 1971, began to formulate plans to improve the “Kuenne Tract.” In furtherance of those plans, the Prince George’s County Planning Board authorized MNCPPC to enter into a lease with Potomac Sports Ltd. (Potomac) for construction and operation of a sports and recreation complex on the “Kuenne Tract.”

A lease was executed between MNCPPC and Potomac in August 1971. Under the terms of the lease, Potomac agreed to lease 50 acres of the Kuenne parcel and to make certain improvements which would be used by Potomac, but owned by MNCPPC. The lease was operative for a 20 year base term, with two successive options of renewal for 10 year periods.

Subsequently, Potomac opted not to undertake performance and, with the consent of MNCPPC, assigned the lease to WNA. Later, MNCPPC and WNA entered into a “Shared Park-Arena Area Agreement” by which MNCPPC leased an additional 10 acres of the remaining 25.31 acres to WNA for parking facilities adjacent to the proposed “sports and recreation” complex. As part of the agreement, MNCPPC was entitled to designate “play areas,” which “areas” were not to interfere with WNA’s right to park vehicles during the time the sports arena was in use.

The County issued a building permit on September 13,1972, and work commenced on the project. When completed, the WNA facility, known as the Capital Centre, and its adjacent parking lots covered 60 acres of the “Kuenne Tract.” Fifteen acres remain in their natural state. Since its opening on December 2,1973, the public has had an opportunity to view, within the arena, professional sporting events, circuses, shows, exhibitions, fairs, and concerts. Admission to most of the events is by payment of a fee, but some admissions are gratuitous.

On January 9, 1974, the Supervisor of Assessments of Prince George’s County, dispatched a Notice of Assessment to MNCPPC based upon the value of the 50 acre parcel subject to the lease, and the 10 acre tract covered by the “Shared Park-Arena Area Agreement.” By so doing, the Supervisor began this litigation. Within a matter of days, WNA protested the assessment. Less than a month later, February 22, 1974, a “Notice of Proposed Assessment” was sent by the Supervisor to MNCPPC. A final notice was sent in November 1974 to MNCPPC. No change was made in the assessment from that which was proposed in February. WNA appealed to the County Board of Property Tax Assessment Appeals. The Board, in reversing the Supervisor’s determination on the taxability of the property said:

“1) Neither the land nor improvements that are the subject matter of this proceeding are owned by the State of Maryland.
2) That even if the said land and improvements were owned by the State of Maryland, the property would be exempt from taxation under Article 81, Section 8, Subsection 7 (e) which exempts property ‘used by way of a concession for occupancy of a park.’ ”

The Supervisor appeals to the Tax Court. He fared no better before that body then he did with the Board. The Tax Court, however, found that a park is “an area set aside for public recreation” and that under that definition WNA’s Capital Centre was exempt from taxation pursuant to Md. Ann. Code art. 81, § 8 (7) (e).

Chagrined at the decision of the Tax Court, the Supervisor appealed to the Circuit Court for Prince George’s County. While that appeal was pending, the Court of Appeals held, in Maryland-National Capital Park and Planning Commission v. Washington National Arena, supra, that WNA was precluded by terms of the lease from contesting an assessment of the improvements on the 50 acre tract. Thus, that assessment is adjudicated and we are faced only with the assessments of the 50 acres of land under the lease, plus the 10 acres of land under the Shared Park Agreement, and the improvements located on that 10 acres.

The circuit court affirmed the holding of the Tax Court. The Supervisor refused to accept defeat and noted an appeal to this Court.

Judicial review of Tax Court decisions is severely limited. Fairchild Hiller Corp. v. Supervisor of Assessments, 267 Md. 519, 521, 298 A. 2d 148, 149 (1973); Comptroller of the Treasury v. Machiz, 42 Md. App. 218, 399 A. 2d 946 (1979).

Md. Ann. Code art. 81, § 229 (o) provides:

“In any case, the circuit court for the county or the Baltimore City Court shall determine the matter upon the record made in the Maryland Tax Court. The circuit court or Baltimore City Court shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record. In other cases, the circuit court or Baltimore City Court may affirm, reverse, remand, or modify the order appealed from.”

Unless the ruling of the Tax Court is “erroneous as a matter of law,” it will be affirmed, provided that “it is supported by substantial evidence ... in the record.” Comptroller of the Treasury v. Mandel Re-Election Committee, 280 Md. 575, 578, 374 A. 2d 1130, 1131-32 (1977); Supervisor of Assessments v. Southgate Harbor, 279 Md. 586, 595-96, 369 A. 2d 1053, 1058 (1977); Comptroller of the Treasury v. Diebold, Inc., 279 Md. 401, 407, 369 A. 2d 77, 81 (1977); Comptroller of the Treasury v. Machiz, supra.

Just as the Court, in Comptroller of the Treasury v. Mandel Re-Election Committee, supra, saw that case as “essentially one of statutory construction and a question as to whether the presentation of the music ... constituted, as a matter of law, a performance ...” (thus requiring payment of an admission tax) so, too, do we perceive the issue in the matter subjudice to be “one of statutory construction and a question as to whether” the 10 acres of land and improvements thereon, together with the original 50 acres of land, are a “park” within the meaning of Md. Ann. Code art. 81, § 8 (7) (e).

Maryland law is firmly established that statutory exemptions to tax provisions are to be construed strictly in favor of the taxing authority. Should there be real doubt as to the appropriateness of an exemption, the uncertainty “must be resolved in favor of the State.” Perdue, Inc. v. State Department of Assessments & Taxation, 264 Md. 228, 233, 286 A. 2d 165, 167 (1972); Pittman v. Housing Authority, 180 Md. 457, 460, 25 A. 2d 466, 468 (1942). See also Suburban Propane Gas Corp. v. Tawes, 205 Md. 83, 87, 106 A. 2d 119, 121 (1954); Clarke v. Union Trust Co., 192 Md. 127, 137, 63 A. 2d 635, 640 (1949). “To doubt an exemption is to deny it.” Perdue, Inc. v. State Department of Assessments & Taxation, supra, 264 Md. at 233, 286 A. 2d at 167; Macke Co. v. State Department of Assessments & Taxation, 264 Md. 121, 133, 285 A. 2d 593, 599 (1972); Pan American Sulphur Co. v. State Department of Assessments & Taxation, 251 Md. 620, 629, 248 A. 2d 354, 359 (1968); Suburban Propane Gas Corp. v. Tawes, supra, 205 Md. at 87, 106 A. 2d at 121; Sindall v. Baltimore City, 93 Md. 526, 530, 49 A. 645, 646 (1901). Moreover, the Legislature, itself, has directed that all exemptions from taxation are to be construed strictly. Md. Ann. Code art. 81, § 9 (a). As was said by Judge Digges in Perdue, Inc. v. State Department of Assessments & Taxation, supra, “[T]he State’s taxing prerogative is never presumed to be relinquished and the abandonment... [of that awesome power] must be proved by the party asserting the exemption.” 264 Md. at 233, 286 A. 2d at 168. Before an exemption will be allowed, the claimant thereto must affirmatively demonstrate that the sought exemption is clearly permitted by law. Pittman v. Housing Authority, supra, 180 Md. at 460, 25 A. 2d at 468. In the words of Judge Delaplaine in Pittman, “[Ain exemption claim cannot be sustained unless it is shown to be within the spirit as well as the letter of the exemption law.” 180 Md. at 461, 25 A. 2d at 468.

The sum and substance of what we have herein said is that in order to benefit from the exemption contained in art. 81, § 8 (7) (e), it was incumbent upon WNA to demonstrate that its leasehold interest amounted to “a concession for occupancy of a public park.” To do so it is patent that WNA must have also shown that its complex is a “park.”

The noun “park,” as used in Md. Ann. Code art. 81, § 8 (7) (e), has not been the subject of interpretation by the appellate courts of this State. The Court of Appeals skirted defining “park” in Mayor v. Peabody Institute, 175 Md. 186, 200 A. 375 (1938), wherein the City of Baltimore was devised certain properties, which it was directed to sell. The proceeds of the sale were to be invested in a “public park.” The City proposed instead to purchase several playgrounds and sought a declaration as to the propriety of such action. The Court of Appeals stated:

“We have not undertaken to define a public park.
A city, with a park system such as Baltimore has, needs no instruction or definition from us as to what constitutes a public park. What we do say is that a lot of neighborhood playgrounds is not a public park....” 175 Md. at 193, 200 A. at 378.

Courts in other jurisdictions have not been so reticent when faced with defining the word “park.” In Bernstein v. Pittsburgh, 366 Pa. 200, 77 A. 2d 452 (1951), two taxpayers filed a bill in equity to prevent the City from erecting an open-air auditorium upon a portion of ground devised to Pittsburgh as a “public park.” The Pennsylvania Supreme Court permitted the construction and defined a public park as “a tract of ground kept more or less in its natural state, or embellished by the planting of additional trees and flowers, and devoted to the purposes of pleasure, recreation and amusement____In modern times the principal purpose of a park, namely, public recreation, is not limited to physical recreation but includes aesthetic recreation and mental and cultural entertainment as well.” 366 Pa; at 206, 77 A. 2d at 455. The Court further opined that the erection of improvements upon park land was permissible but “the entire park acreage or any substantial part of it cannot, of course, be built upon so as unduly to destroy the enjoyment of fresh air, sunshine, and exercise....” 366 Pa. 207, 77 A. 2d at 455.

A similar viewpoint may be found in McLauthlin v. The City and County of Denver, 131 Colo. 222, 228, 280 P. 2d 1103, 1106 (1955), where the Colorado Supreme Court penned:

“In this jurisdiction we have adopted the modern concept for a dedicated public park. That while an entire area of a park may not be converted to playground or recreational uses; nevertheless, when, considering the size and location of the park, its environments, density of adjacent population and their public needs, it is proper and legitimate that a reasonable portion of a park area be set aside and used for playground and recreational purposes. These uses would include tennis courts, playground and dancing facilities, skating, a swimming pool and bathhouse, horseshoe pitching, walking, horseback riding, athletic sports and other outdoor exercises, as may be needed, and if conditions are conducive therefor, golfing and baseball with the necessary equipment therefor, and with car parking facilities for the use and convenience of patrons and the public; provided always that a substantial portion of the park area remains in grass, trees, shrubs and flowers, with seats and tables for picnicking, for the use by, and enjoyment of, the public.”

10 McQuillin, The Law of Municipal Corporations, (3rd ed.) § 28.50, is in accord. That author defines a “public park” as “an open expanse of land, having some resemblance to land in its natural, unimproved condition, although an area may be no less a park because there are within its boundaries buildings, structures, and other improvements, and roads and streets, although a park is not merely a street, nor a mere playground or athletic field, notwithstanding such facilities commonly are included within a park.” (Footnotes omitted.)

We think a public park may be defined as a tract of land generally maintained in its natural state, although it may have within its geographical confines buildings, monuments, or improvements in the form of stadiums, ball fields, and swimming pools, which items may not occupy a substantial portion of the park property, and they are and remain subordinate to the primary purpose of park land: the availability to the citizenry of open space for recreation and the enjoyment of sunshine and air. In sum, a public park is no longer a park when the structures or improvements so circumscribe the potential use of the greater portion of the property to the detriment of the enjoyment of open space in its natural state.

WNA has endeavored to equate its sports arena to a park because it is available to the general public, upon payment of an admission charge, and the lease, as assigned, “stated the sports arena would be a ‘public park or recreational area' ” and the “Shared Park-Arena Area Agreement” provided the 10 acres leased thereunder would be a “play area” when not in use as parking in conjunction with activities at the arena. Every facility for public recreation, however, is not a public park. Mayor and City Council v. Peabody Institute, supra. Moreover, availability to the public does not make the sports arena a park any more than is a theatre or parking lot, which is also available to the public, upon payment of an admission fee. Furthermore, the fact that the lease and shared plans refer to the facility and the remaining portion of the original “Kuenne Tract” as a park does not make it a park any more than a similar reference would make kittens born in an oven biscuits.

As matters stand, the WNA occupies 79.67% of the 75.31 acre tract. The balance or 20.33% is all that remains in any condition approaching the “natural state.” Patently, the sports complex has become dominant. The arena and adjacent parking lot can hardly be said to enhance the purpose of a park, that is, the providing of natural open space; rather they enhance the commercial interest of WNA.

We doubt that the Capital Arena Complex and adjacent parking lot can be considered as a park. Under the decisions of the Court of Appeals in Perdue, Inc. v. State Department of Assessments & Taxation, supra; Macke Co. v. State Department of Assessments & Taxation, supra; Pan American Sulphur Co. v. State Department of Assessments & Taxation, supra; Suburban Propane Gas Corp. v. Tawes, supra; Sindall v. Baltimore City, supra, “to doubt an exemption is to deny it.” Consequently, our doubt translates into a denial of the exemption.

We believe the Tax Court erred as a matter of law in construing Md. Ann. Code art. 81, § 8 (7) (e) as providing an exemption from taxation to WNA on the ground that the leased property is a park.

In view of our holding, we do not reach the issue of whether the lease is a concession because if the property in question is not a park, the concession issue is irrelevant.

One final matter need be addressed. WNA points out that Md. Ann. Code art. 66D, § 5-109 exempts land acquired by MNCPPC from “State, county, and municipal taxes,” and the land in the matter sub judice was so acquired. The matter was not, however, raised and decided before the circuit court. It is not before us. Md. Rule 1085, but see Firestone Tire & Rubber Co. v. Supervisor of Assessments, 275 Md. 349, 340 A. 2d 221 (1975).

We believe the circuit court erred in affirming the Tax Court’s holding.

Judgments reversed.

Costs to be paid by appellee.

      . Thomas Jefferson, 1743-1826, Last Words, July 4, 1826.

      . See Maryland-National Capital Park and Planning Commission v. Washington National Arena, 282 Md. 588, 386 A. 2d 1216 (1978); Maryland-National Capital Park and Planning Commission v. Washington National Arena, 37 Md. App. 346, 377 A. 2d 545 (1977) rev’d 282 Md. 588, 386 A. 2d 1216 (1978); Maryland-National Capital Park and Planning Commission v. Washington National Arena, 30 Md. App. 712, 354 A. 2d 459 (1976).

      . Md. Ann. Code art. 81, § 8 (7) (e) provides in pertinent part:
      “§ 8. Enumeration of taxable property.
      The following property, except as in §§ 9, 9A, 9B, and 10 provided, shall be subject to assessment to the owner (except shares of stock which shall be subject to assessment to the issuing corporation) and taxation for ordinary taxes in this State and the county and/or city specified below:
      (7) Leaseholds and other limited interests in real or personal property. — No leasehold or other limited interest in real or tangible personal property shall be subject to taxation except the following which shall be subject to taxation in the same amount and the same extent as though the person in possession or the user thereof were the owner of such property.
      (e) The interest or privilege of any lessee, bailee, pledgee, agent or other person in possession of or using any real or personal property which is owned by the federal or State governments, and which is leased, loaned, or otherwise made available to any person, firm, corporation, association, or other legal entity, with the privilege to use or possess such property in connection with a business conducted for profit, except where the use is by way of concession for occupancy of a public airport, park, market, or fairground, which is available to the use of the general public, shall be subject to taxation in the same amount and to the same extent as though the lessee or user were the owner of such property, provided, that the foregoing shall not apply to federal or State Eroperty for which negotiated payments are made in lieu of taxes y any of the aforesaid owners ....” (Emphasis supplied.)

      . There appear to be many definitions of a “park.” Some lexicographers disagree as to its meaning, and clarity has not been aided by judicial definitions of- the word. Indeed, the meaning of the word “park” seems to fall somewhere near Mr. Justice Stewart’s remark relative to pornography. “I shall not today attempt to further to define fitl... [b’]ut I know it when I see it . . . .” Jacobellis v. Ohio, 378 U. S. 184, 197, 84 S. Ct. 1676, 1683, 12 L. Ed. 2d 793, 803-04 (1964).

      . Mr. Abe Pollin, the sole general partner and a limited partner in WNA testified before the Tax Court:
      “Well, we’ve had things like concerts that are for the public that we haven’t charged for.
      Each of the events even though they are admission events, we feel a responsibility to the community, so we have people that come to our events, every event, that do not pay; and these are people — orphanages, veterans, elderly. We’ve had hundreds of those people come to the events at the Capital Centre.”

      . In the interim a battle was raging on a second front, see n. 2, supra. WNA was asserting, ultimately unsuccessfully, that its contractual agreement not to contest assessments on the improvements made on the 50 acre land was void as against public policy.

      . An antithetical construction is placed upon taxing statutes when there is doubt as to the breadth of those statutes. Comptroller v. Md. Specialty Wire, Inc., 37 Md. App. 528, 534, 378 A. 2d 183, 186 (1977), aff’d, 282 Md. 538, 385 A. 2d 214 (1978). Such a statute is “construed most strongly ... against the taxing authority.” Ibid.

      . See Salem v. Attorney General, 344 Mass. 626, 183 N.E.2d 859 (1962).


author: Melvin, J.,

text:
    JOHN W. SCHINDELE v. NU-CAR CARRIERS, INC. ET AL.
    [No. 796,
    September Term, 1978.]

      Decided July 6, 1979.

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

      Martin E. Gerel, with whom were Ashcraft, Gerel & Koonz on the brief, for appellant.

      Robert J. Lynott, with whom was Eugene A. Edgett, Jr., on the brief, for appellees.
   Melvin, J.,

delivered the opinion of the Court.

The appellant, John W. Schindele, on May 3,1973, sustained an accidental injury arising out of and in the course of his employment with one of the appellees, Nu-Car Carriers, Inc. By its order dated December 20, 1974, the Workmen’s Compensation Commission directed the appellees, Nu-Car Carriers, Inc. and its insurer, to pay the appellant “compensation for permanent partial disability at the rate of $35.00, payable weekly, beginning May 18,1974 (the day after termination of temporary total disability previously awarded), not to exceed the sum of $6,125.00 allowable under ‘Other Cases’ ...” The award thus amounted to $35.00 per week for 175 weeks.

Approximately one year later, on December 9, 1975, a hearing was held on appellant’s petition to reopen, filed a short time prior thereto, to determine the extent, if any, of his increased disability. As a result of the hearing, the Commission, on March 23, 1976, passed an order granting a “Supplemental Award of Compensation”. At the time of the supplemental award, the original award of 175 weeks of compensation at $35.00 per week had been paid in full, including a partial lump sum payment of $2,200.00 made on January 16, 1976 at appellant’s request and with the Commission’s approval.

The March 23,1976 supplemental award was for a “serious disability” under Md. Ann. Code Art. 101, § 36 (4a), which then provided (1957 ed., 1964 repl. vol., 1972 cum. supp.):

“(4a) Same — Serious disability. — A person who, from one accident, receives an award of compensation for a period of two hundred and fifty (250) weeks or more under subsections (3) or (4) or a combination of both, is thereby considered to have a serious disability; except any award for disfigurement or mutilation under subsection (3) (f) of this section shall not be considered in the determination of a serious disability. The weeks for such award shall be increased by one third (computed to the nearest whole number); and the compensation shall be for sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed sixty-five dollars ($65.00) per week and not less than a minimum of twenty-five dollars per week unless the employee’s established weekly wages are less than twenty-five dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages. This subsection, to the extent of any inconsistency, prevails over subsection [subsections] (3) and (4); but otherwise subsections (3) and (4) apply to persons covered by this subsection, provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and actually paid. ” (Emphasis added.)

The Commission’s order of March 23,1976 reads as follows:

“Hearing was held in the above claim at Hyattsville, Maryland on December 9, 1975 on the claimant’s Petition to Reopen on the following issue:
Worsening of condition
The Commission, having granted the claimant’s Petition to Reopen, finds that as a result of his accidental injury on May 3, 1973 the claimant was again temporarily totally disabled from November 30,1974 to April 18,1975 inclusive; and finds on the issue presented that the claimant now has a permanent partial disability under ‘Other Cases’ amounting to 50% industrial loss of use of his body as a result of the injury to his lumbosacral area and neuropsychiatric disability. The Commission finds that the claimant now has a serious disability pursuant to the provisions of Section 36, Sub-section (4a) of Article 101 and is entitled to 333 weeks less the prior award of 175 weeks at $35.00 per week making a new total of 158 weeks at $65.00per week not to exceed the sum of $10,270.00 due under this Award, which is in addition to the Order of this Commission dated December 20, 1974.
It is, therefore, this 23 day of March, 1976, by the Workmen’s Compensation Commission ORDERED that Nu-Car Carriers, Inc., employer and Liberty Mutual Insurance Company, insurer, pay unto John W.. Schindele, claimant, compensation for additional temporary total disability at the rate of $96.80, payable weekly, beginning November 30, 1974 and ending April 18, 1975 inclusive; and pay compensation for permanent partial disability at the rate of $65.00, payable weekly, beginning April 19, 1975 not to exceed the sum of $10,270.00 allowable under ‘Other Cases’ which is in addition to the Order of this Commission dated December 20,1974; subject to the provisions of the Workmen’s Compensation Law of Maryland.
It is further ORDERED that statement of compensation paid be filed with this Commission in due time.” (Emphasis added.)

The Commission thus found that the appellant’s permanent partial disability had increased to 50% industrial loss of use of his body (compared to the 35% loss cited in the original award of December 20,1974) and that he was entitled to 333 weeks of compensation at $65.00 per week for the “serious disability”, beginning on April 19, 1975. To comply with the limiting proviso at the end of § 36 (4a), the Commission then deducted 175 weeks from the 333 weeks that the appellant would have otherwise received $65.00, resulting in a supplemental award of 158 weeks at $65.00 per week, or $10,270.00.

The appellant appealed to the Circuit Court for Prince George’s County. The case was transferred to the Circuit Court for Howard County and by its opinion and order filed July 12, 1978, the court granted the appellees’ motion for summary judgment affirming the Commission’s order. We affirm the judgment of the circuit court.

The appellant contends that the Commission in applying the limiting proviso contained at the end of § 36 (4a) incorrectly calculated the “amount of compensation previously awarded and actually paid”. He argues that because the Commission’s supplemental award of March 23, 1976 provided that the weekly payments were to begin as of April 19, 1975, it was error to limit the 333 weeks of compensation by more than 28 weeks. As of April 19th, the appellant had been “actually paid” only $980.00, or 28 weeks of compensation at $35.00 per week under the original award. Appellant concedes that it was proper to deduct this number of weeks (28) from the 333 weeks — but no more. As we have said, the Commission deducted 175 weeks from the 333 weeks, leaving 158 weeks of additional compensation at $65.00 per week to be paid under the supplemental award. The Commission deducted all 175 weeks because at the time of the supplemental award (March 23, 1976), the full “amount of compensation previously awarded” had been “actually paid”. We think the Commission was correct. Not to have reduced the 333 weeks of “serious disability” compensation by 175 weeks would have resulted in an increase in the aggregate “amount of compensation previously awarded and actually paid” — a result proscribed by the limiting proviso of § 36 (4a).

As written, we think the proviso requires that the date of the second award be the date on which the calculation be made as to what amount of a previous award has been “actually paid”. As we said in Gordon v. Baltimore Spice Co., 17 Md. App. 300, 301 A. 2d 41 (1973): “As a result of the proviso at the end of the section, he [claimantl must suffer a penalty by reason of the fact that his ultimate disability was not established until after his first award was paid.” Id. at 304. In the case at bar, the appellant’s “ultimate disability” was not established until the passage of the Order of March 23, 1976, at which time the full amount of compensation previously awarded had been fully and “actually paid”.

In Maizel v. Maizel & Shapiro Enterprises, Inc., 25 Md. App. 1, 332 A. 2d 261 (1975), we held, at 25 Md. App. 6, that:

“... [T]he language of § 36 (4a) is clear, definite, unambiguous and susceptible of only one rational interpretation and that is that when a claimant is granted the right to reopen his claim on the basis that his condition has worsened, the employer-insurer, the employer-self insurer or the Uninsured Employers’ Fund, as the case may be, is entitled to a credit for compensation previously paid. The present law does not provide for a re-adjustment of compensation previously paid.” (Emphasis added.)

Citing Maizel, supra, the appellant alternatively argues that the cut-off date for calculating compensation “previously awarded and actually paid” should be the date of the hearing, equating that date to “when a claimant is granted the right to reopen his claim”. Under that interpretation, only the weeks of compensation paid prior to the hearing date would be deducted from the new award regardless of when the new award was actually made. The phrase in Maizel relied upon by the appellant does not support appellant’s position. The phrase does not establish a particular date by which to measure compensation previously paid. Rather, taken in context, it is a general reference to the availability of “credit” in a situation where as a result of a petition to reopen additional compensation for permanent partial disability is awarded.

We must take .the statute as we find it and if inequities result from its clear and unambiguous meaning, requests for relief therefrom should be addressed to the legislature, not the courts.

Judgment affirmed.

Costs to be paid by the appellant.


author: Moylan, J.,

text:
    IRA G. STEINBERG et ux. v. MARSHALL J. ARNOLD and ALBERT ZEVIN, Individually, and t/a A & Z MANAGEMENT CO.
    [No. 871,
    September Term, 1978.]

      Decided July 6, 1979.

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

      Edward H. Kerman for appellants.

      Kelley Litteral for appellees.
   Moylan, J.,

delivered the opinion of the Court.

This case, involving at the surface level the construction of a contract, involves at a deeper level a question of judicial function that transcends mere contract law. When a judge sits as a fact finder, he wears two hats. He is first and foremost the judge — the legal referee — responsible for making rulings of law, including such questions as the admissibility of evidence and whether the evidence is legally sufficient to go to the fact finder. Then, as fact finder, he has the usual jury prerogatives of whether to believe or disbelieve witnesses, how much weight to give testimony and ultimately whether to be persuaded or not to be persuaded. The immediate question before us is whether the judge can cure an error of law by making a speculative or academic finding of fact so as to render the legal error harmless. The trial judge refused to admit certain evidence relating to the construction of the contract. He construed the contract in favor of the defendant-appellees. He then attempted to negate any error in his evidentiary ruling and in his interpretation of the contract by stating that even if he had ruled for the plaintiff-appellants and the issue of damages were before him, he would have found no damages. To reduce it to a nutshell, may a judge rule evidence inadmissible but then reinforce his ruling by adding, “Even if the ruling be erroneous, the error is harmless because, as fact finder, I would not have believed your other evidence as to damages in any event”? We hereby hold that he may not.

The appellants, Mr. and Mrs. Ira Steinberg, entered into a lease agreement with the appellees, Marshall J. Arnold and Albert Zevin of the A & Z Management Company on November 26, 1975, in order to obtain office space for a real estate brokerage business. The term was originally to begin on January 1, 1976. The lease, however, was subsequently modified by the parties. At issue specifically in this case is that modifying provision:

“Landlord agrees to give possession to tenant within 7 days after current tenant moves out for fixturing purposes for no additional rent, but in no case will said date of possession be later than 12/24/75.”

On January 24, 1976, the appellants were advised by the appellees that possession would not be forthcoming. Thereafter, the appellants filed suit in the Circuit Court for Montgomery County for breach of contract with respect to the appellees’ (landlords’) failure to deliver possession of the leased premises. The trial court held that a tenant of non-residential premises cannot maintain an action against a lessor for any damages he has incurred by being denied possession. Of this ruling and of the evidence that was and was not admitted bearing upon it, we will have more to say in a moment. The court went further, however, and ruled that even if it was in error on the basic question of liability, the court would find no damages. This alternative reasoning hinged not upon the predicate that evidence of damages was insufficient, as a matter of law, but rather upon anticipatory and speculative fact-finding to the effect that the court, as the fact finder, was simply not persuaded:

“I would be obliged, therefore, to hold if you reached this point that the Plaintiffs have failed to prove by a fair preponderance of the evidence that there was any difference and if so what that difference was between the rental value and the agreed rent.”

The primary impediment to the appellants’ possession of the premises was a holdover tenant, whom the appellees were in the process of evicting for failure to pay rent. As an apparent result of the appellees’ difficulty in obtaining possession of the premises from the former tenant, the first draft of the lease agreement between the appellants and the appellees contained a disclaimer of liability in the event that the appellees should fail to obtain possession of the premises.

This express disclaimer of liability was, to be sure, legally redundant. In the absence of express language, liability on the part of the landlord would not be assumed. Sigmund v. Howard Bank, 29 Md. 324 (1863). The disclaimer, however, takes on significance in terms of throwing light upon the intention of the contracting parties when we see what they did with that disclaimer.

The appellant-lessees rejected the disclaimer of liability as one of the provisions of the lease, and both parties entered into further negotiations in an attempt to reach an agreement with regard to possession. Subsequently, the parties agreed to strike the provision disclaiming liability for failure to deliver possession to appellants and, in its place, inserted the provision now in question.

The lease as originally prepared contained the following provision disclaiming liability for failure to deliver possession, which provision was crossed out:

“The Tenant covenants and agrees that he is aware that said property is presently under lease to others; that he has been informed by the Landlord that the present Tenant is in violation of the covenants of his lease with the Landlord; that the Landlord has commenced proceedings to evict said Tenant; that the Landlord will need a period of at least thirty (30) days within which to repair and restore the premises prior to possession by the Tenant; that for these reasons the parties covenant and agree with each other that this Lease Agreement is contingent upon the Landlord being able to properly place the Tenant in possession by the beginning date of this lease; and, should Landlord be unable to do so, the Tenant shall have an option to extend the time for taking of possession for not more than thirty (30) days and thereafter, should the Landlord still be unable to put the Tenant in possession, this agreement shall terminate and become null and void with no further force and effect. In the event the thirty (30) days option period for taking of possession is used, all dates mentioned hereinabove relating to beginning and ending of the term or any renewal thereof shall be extended for said thirty (30) day period, and provide further, that the Landlord shall have no liability whatsoever for damages that may accrue as a result of the Landlord’s inability to place the Tenant in possession as hereinabove provided.”

In place of this excised provision (previously quoted), the following provision was handwritten in:

“Landlord agrees to give possession to tenant within 7 days after current tenant moves out for fixturing purposes for no additional rent, but in no case will said date of possession be later than 12/24/75.”

As the circumstances unfolded, December 24 came and went with the appellees’ attempts to regain possession from the holdover tenant unsuccessful. Upon being notified that a delay of some months was expected, the appellants obtained other office space. The appellants contend that the appellees breached an express covenant to grant possession of the premises under the lease agreement and thus should be liable to the appellees for compensatory damages.

The trial court relied on Sigmund v. Howard Bank, supra, for the proposition that, “[t]he defendant has not covenanted against the wrongful acts of another, and he cannot be held responsible for them unless he has fully and expressly so contracted.” Id. at 328. In Sigmund, the court was confronted with a fact pattern somewhat similar to the present case. The defendant in Sigmundhad leased certain premises to the first tenant. Pending this tenancy, the defendant leased the same premises to the plaintiff whose tenancy was to begin upon the expiration of the first tenant’s lease. Because the first tenant held over, plaintiff was unable to obtain possession of the premises. The Sigmund court held that the plaintiff has his right of action against the holdover tenant and is not entitled to maintain an action against the defendant lessor. The court reasoned:

“While the law implies an undertaking on the part of the lessor that the lessee shall have the undisturbed possession of the premises during the term for which they are demised, and the lessor is as fully bound as if there were an express covenant to that effect, such undertaking only imports that the lessor has such a title as enables him to make a valid and unencumbered lease, and that the possession and enjoyment of the premises will not be interrupted or interfered with by the lessor or by anyone rightfully claiming under him; — it is not a warranty against strangers or wrongdoers.” Id. at 327.

The other case relied on by the trial court, Rice v. Biltmore Apartments Co., 141 Md. 507, 119 A. 364 (1922), is similar to Sigmund in that the lessee was prevented from obtaining possession by reason of a wrongful holding over by a former tenant. The court held that a lessor who does not covenant to guarantee possession is not responsible to the tenant for a third party’s wrongful acts.

What both Sigmund and Rice have in common is the fact that they were solely concerned with implied covenant; a situation where no provision regarding possession could be found in the lease. In Rice, the court pointed out that “it does not appear that he covenanted to put Baer in possession.” Similarly, in Sigmund, the court observed that, “[t]he defendant had not covenanted against the wrongful acts of another, and he cannot be held responsible for them, unless he has fully and expressly so contracted.”

What is at issue in this case, however, is not the arguable breach of an implied covenant but rather the arguable breach of an express covenant to guarantee possession. More precisely, the issue is not whether there was a breach but whether there was an express covenant guaranteeing possession. That there was an express covenant concerning possession is clear. The question is whether that covenant guaranteed possession. In this regard, it is to be noted from looking at the lease as a whole that an earlier and unambiguous portion of the lease spells out the time of the lease, “for the term of five (5) years commencing on the 1st day of January, 1976, and ending on the 31st day of December, 1980.” This earlier spelling out of the time of the lease adds some weight to the argument that the later provision whereby the “[l]andlord agrees to give possession to Tenant” and whereby “in no case will said date of possession be later than 12/24/75” connotes something more than the mere beginning date of the term of the lease.

It is well settled that the cardinal rule for construing ambiguities in contracts is to ascertain and give effect to the intention of the parties. Garfinkle v. Schwartzman, 253 Md. 710, 254 A. 2d 667 (1969); Mascaro v. Snelling & Snelling, 250 Md. 215, 243 A. 2d 1 (1968); DWS Holdings, Inc. v. Hyde Park Associates, Inc., 33 Md. App. 667, 365 A. 2d 554 (1976). This rule is applicable whenever a contract contains an ambiguity, which is an expression capable of more than one meaning or of doubtful meaning. Allen v. Steinberg, 244 Md. 119, 127, 223 A. 2d 240 (1966).

Not only do we feel that the provision now in question was sufficiently ambiguous to permit the interpretation that it was a covenant guaranteeing possession or to permit a contrary interpretation, but the trial judge must have entertained doubts in this regard himself. Whatever his words may have been about the meaning of the provision, it is clear that he permitted the introduction of parol evidence, particularly from one of the appellees, Marshall J. Arnold, as to the circumstances surrounding and explaining the addition of this provision. We look, therefore, to the law involving the resolving of ambiguous terms. We note initially that principle of law that an ambiguous provision in a lease should be construed against the draftsman. Burroughs Corporation v. Chesapeake Petroleum & Supply Co., Inc., 282 Md. 406, 411, 384 A. 2d 734 (1978); Schuman v. Gordon Investment Corp., 247 Md. 265, 271, 232 A. 2d 256 (1967). In this case, the lease was prepared by the appellees.

Another rule long recognized by the courts in Maryland is to admit extrinsic evidence of the negotiations leading up to the formulation of a contract, of the circumstances of the parties at the time of entering into the contract and of the parties’ own construction of the contract in order to discern their intention. Canaras v. Lift Truck Services, 272 Md. 337, 352, 322 A. 2d 866 (1974); Mascaro v. Snelling & Snelling, supra; DWS Holdings, Inc. v. Hyatt Park Associates, Inc., supra.

The appellants repeatedly urged upon the trial court the consideration of the provision that had been excised from the contract disclaiming liability for the inability to deliver possession. They urged that the fact that the disclaimer of liability was removed at their insistence is strong evidence of the fact that the substitute provision was intended by the parties to provide just such liability. They urged that the excision would have been meaningless unless this was the intent of the parties. The trial judge nonetheless declined to consider the drafting history in this regard as throwing any light on the meaning of the final draft of the lease. He ruled that evidence as to provisions which had been excised from the lease was irrelevant on the question of the intent of the parties. We hold that he committed error in refusing to receive and to consider such evidence.'

We think the better approach was that taken by DWS Holdings v. Hyde Park Associates, supra, which held that, “in case of doubt as to the meaning of the written contract, preliminary negotiations and agreements ought to be considered in construing the written contract.” Decisions of other jurisdictions have been even more specific with respect to the consideration of deletions made by parties to a contract. In Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662 (Tex. Supp. 1964), the court held that “The deletions made by the parties ... may be considered by this court in order to arrive at the true meaning and intention of the parties.” The New Jersey Appellate Court in Vandenberg v. John Hancock Mutual Life Ins. Co., 48 N.J.Super. 1, 136 A. 2d 661 (1957), ruled that “where the language of a contract is ambiguous and the excision of specific verbiage therefrom before execution is a logical aid towards ascertainment of intent, that fact may be given such weight in its construction as it rationally deserves.” See also Stockham v. Stockham, 32 Md. 196 (1870).

It is clear that the court felt doubt concerning the provision for it chose to admit parol evidence as to what the parties intended. Accordingly, the court should have looked beyond the parol evidence offered, to the evidence inherent in the deleted disclaimer provision which states that, “the landlord shall have no liability whatever for damages that may accrue as a result of the landlord’s inability to place the tenant in possession as hereinabove provided.” With the benefit of all the relevant evidence before it, the court might well have concluded that the appellants were unwilling to allow the appellees to escape all liability for whatever damages might accrue as a result of the appellants being denied possession of the leased premises. The court might well have been able to read this intent into the fact that in place of the deleted disclaimer provision, the appellants had inserted an expressed covenant providing that the appellees put the appellants in possession by a specific date.

The erroneous exclusion of highly relevant evidence on the key point in controversy will cause a reversal of the judgment in this case, notwithstanding the trial court’s gratuitous and somewhat speculative findings as to damages under circumstances where the question of damages was not actually before the court. Were the appellants to prevail only on the issue of liability, they would in any event be entitled to costs. We think it more proper, moreover, for a trial court which decides against a plaintiff on the question of liability to forebear speculating as to what its findings as to damages might have been if the issue of liability had been decided in the other direction. This is a different situation than when there is no prima facie evidence as to damages as a matter of law. Merely academic fact-finding is subject to too many subconscious pressures to buttress the resolution made on the liability question.

Judgment reversed; case remanded for a new trial; costs to be paid by appellees.


text:
    JOSHUA McFADDEN v. STATE OF MARYLAND
    [No. 1079,
    September Term, 1978.]

      Decided July 9, 1979.

    The cause was submitted on briefs to Morton, Thompson and Moylan, JJ.
    Submitted by David W. Skeen, Assigned Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Paul T. Cuzmanes, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Leslie Stein, Assistant State’s Attorney for Baltimore City, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Joshua McFadden, was convicted in the Criminal Court of Baltimore by a jury, presided over by Judge Robert L. Karwacki, of rape. Upon this appeal, he raises two contentions:

1) That the judge erred in refusing to ask two questions requested by the appellant on the voir dire examination of the jury;
2) That the judge erred in refusing to disqualify himself.

The victim in this case, Lillie Robinson, was a 65 year old woman who was raped at knife-point at approximately 2 PM, on October 22,1977. A medical examination showed evidence of genital trauma. The appellant took the stand in his own defense and admitted sexual intercourse. He claimed, however, that the act was consensual. Credibility was thus very much in issue.

In full context, that phase of the voir dire examination now in issue went as follows:

“The Court: There may be certain testimony in this case from Baltimore City Police Officers or Baltimore City Police Department Police. Would anyone on this jury panel tend to give more or less weight to that testimony than you would from any other citizen? Show a negative response.
As I have already told you, the charge in this case is one of Rape. The complaining witness is a 65 year old female and the Defendant is a 47 year old male. Is there anything about this age difference which would cause any member on this jury panel or any member of this jury panel to give more weight to the testimony of the complaining witness than you would to the testimony of the Defendant? Indicate a negative response.
Is there any member of the jury panel who would be inclined to believe that a female would not say she was raped unless it was true? Indicate a negative response.
Is there any reason about which I have not specifically inquired why any member of this jury panel feels that you cannot sit with impartiality as a juror in this case and return a verdict solely upon the evidence presented? Show a negative response.
Counsel, any further voir dire examination?
Mr. Reddick: One moment, Your Honor.
Mr. Stein: None, Your Honor, on behalf of the State.
(Whereupon, there was a brief pause in the proceedings.)
Mr. Reddick: Your Honor, my number 14 and 15.
The Court: I have not given that and I don’t think that’s an appropriate voir dire examination, but I’ll hear from you as to why you believe it is.
Mr. Reddick: Well, number 14, I ask the Court to ask the jury, “If the complainant should cry while she is testifying would you think her testimony is more credible than if she did not cry while testifying?” I think if they were to give an affirmative answer to that and the prosecuting witness does cry, I think it might elicit sympathy. Therefore, sympathy might take over or influence reasoning and the decision, and if they were to answer yes then I would move that they be stricken.
In number 15 I ask the Court to ask the jury, “If the complaining witness should testify she is a missionary or Christian lady would you be more likely to believe her than believe the Defendant merely because the Defendant does not claim to be a missionary or a Christian man?” If they answer affirmative to that, if the Judge would ask the question, I think it would be grounds for disqualification. Even if the Court did not strike them for cause, then I certainly would then have an opportunity to use my peremptory challenges.
The Court: Okay.
Mr. Reddick: I think they are proper questions.
Mr. Stein: Your Honor, I think they are fishing expeditions. I don’t think they are proper questions, particularly question 14 which I think is totally improper.
The Court: I don’t believe that they are intended to really elicit challenges for cause but rather to in fact argue in advance through the vehicle of voir dire questions the positions of counsel. I decline to give those two requests. Any other requests, Mr. Reddick?
Mr. Reddick: None.

In Maryland, the extent of voir dire examination rests in the sound discretion of the trial judge. Phenious v. State, 11 Md. App. 385, 389. In this case, Judge Karwacki thoughtfully and thoroughly explored the jury’s pre-disposition to believe or disbelieve. The complaining witness was not a professional religious worker. As a follow-up question to the questions he did ask, question number 15 about believing “a missionary or Christian lady” could well have gone either way. In full context, however, we cannot say that Judge Karwacki abused that discretion which is wisely vested in him.

We are not unmindful of Casey v. Roman Catholic Archbishop, 217 Md. 595, or Langley v. State, 281 Md. 337, urged upon us by the appellant, but find them readily distinguishable. Unlike the present case, which dealt not with a professional religious worker but only with the vague characterization of the witness as “a missionary or Christian lady,” Casey v. Roman Catholic Archbishop, supra, was replete with stark denominational loyalties. The defendant, albeit in his corporate capacity, was the Roman Catholic Archbishop for the Archdiocese of Baltimore. The plaintiff, also a member of the faith, had slipped on a waxed floor inside the church itself as she made her way from the confessional booth to the altar to complete her prayers. There was genuine concern over whether a juror who was a staunch Roman Catholic could return a verdict against his church or his Archbishop. The voir dire questions which were not asked and were there in issue were:

“(1) Does any member of the jury panel have any preconceived objections to, or any preconceived opinions in favor of, or any bias or prejudice in favor of or against, a suit in which Roman Catholic Archbishop of Baltimore, a corporation sole of the State of Maryland, is sought to be held liable in damages for injuries claimed to have resulted to a person, a member of the Parish of the Roman Catholic Church in which such person claims to have been injured, that would prevent you from fairly and impartially deciding such a case?”
“(2) If, in your opinion, the evidence in the case warrants a verdict for the plaintiff, Miss Casey, against Roman Catholic Archbishop of Baltimore, a corporation sole of the State of Maryland, the defendant, is there any member of the jury panel who could not fairly and impartially assess damages in the case in the same manner as if the defendant were a regular corporation or a natural person?”

The Court of Appeals made it very clear that a mere generalized question about a “religious corporation” would not survive to ferret out a strong denominational loyalty that might render a juror incapable of returning an unbiased verdict. It said at 217 Md. 606-607:

“To ask the jurors whether they would be prevented from rendering a fair and impartial verdict by the fact that a party was a ‘religious corporation’ — which they might not even realize meant a church — without informing them of the church involved or the position of the religious corporation in the suit would defeat the whole purpose of questioning jurors on their voir dire. We think there is no doubt that the court should have informed the prospective jurors that the action was a suit by Harriet M. Casey against Roman Catholic Archbishop of Baltimore, a corporation sole, for personal injuries allegedly arising out of an accident which occurred in St. Patrick’s Church at Havre de Grace on October 2, 1954; that the suit was against the corporation only, as the holder of the legal title to the church building; and that it was not a suit against the Archbishop of Baltimore personally nor against him in his ecclesiastical capacity as such Archbishop. Then, the court should have propounded a question inquiring if there was any reason why any juror could not arrive at a fair and impartial verdict based on the evidence to be produced and the law applicable to the case to be set forth in the instructions of the court, or words to that effect. If the court had deemed it necessary, it could have continued to examine the jurors, or any one of them, in the manner suggested in Bryant v. State, supra. By so doing, the nature of the answer, if it disclosed cause for disqualification, would not necessarily have revealed the religious affiliation of the juror who made answer, and whether the juror was favorably or unfavorably disposed toward the Roman Catholic Church or toward an adherent to its religious faith.”

Its holding was very clear that what was involved was the possible “existence of bias or prejudice” resulting directly from “the religious affiliation of a juror,” the Court saying at 607:

“[T]he law is clear that, if the religious affiliation of a juror might reasonably prevent him from arriving at a fair and impartial verdict in a particular case because of the nature of the case, the parties are entitled to ferret out, or preferably have the court discover for them, the existence of bias or prejudice resulting from such affiliation.”

Casey reiterated the established law of Maryland that “the scope of the questions propounded to jurors on their voir dire is largely in the discretion of the trial court” and that “the only purpose of the inquiry is to ascertain the existence of cause for disqualification.” p. 605. Involved in this case was the speculative possibility that a juror might believe “a Christian lady” more than an ordinary witness. Involved in Casey was nothing less than the ability of “the faithful” to return a verdict against the Mother Church. In this case, we are probing at most a possible factor in evaluating the credibility of a witness; in that case, the probing was for a strong institutional bias for or against a very party to the lawsuit. Indeed, the authorities cited by Casey highlight the strong and immediate impact of direct and unambiguous bias:

“And see Miles v. United States, 103 U. S. 304 (1881), [jurors asked if they believed in the truth of Mormon teachings]; People v. Reyes, 5 Cal. 347 (1855), [conviction of Mexican Roman Catholic reversed because trial court refused to inquire if prospective jurors were members of the Know Nothing Party and had taken a secret obligation under which they could not possibly have given a Roman Catholic a fair and impartial trial]; Smith v. Smith, 7 Cal.App.2d 271, 46 P. 2d 232 (1935), [jurors asked if their religious belief in regard to divorce and remarriage might affect the verdict].” p. 607.

Nor do we find the case of Langley v. State, supra, to be dispositive of the issue now before us. In Langley, to be sure, what was involved was the impact of bias on the credibility of a witness and not the impact of a bias for or against a party to the suit. To this extent, Langley is closer to our present problem than is Casey. Notwithstanding this similarity, we find the difference between the Langley situation and the one before us to be critical. A key witness for the State in the Langley case was a Prince George’s County policeman. The prospective voir dire question, requested but refused, was:

“Is there anyone here who would give more credit to the testimony of a police officer over that of a civilian, merely because of his status as a police officer?”

The exhaustive analysis of Judge Smith for the Court of Appeals, as well as the cases relied upon in that analysis, makes it clear that the special, official, governmental status of a policeman is the quality that has to be probed. Langley and the cases it relies upon are dealing not with individual human attributes that make one witness more believable (or less believable) than another but with the special status of being an official agent of government and with the aura which that status generates. Looming large in the Court of Appeals’ analysis were two cases from the United States Court of Appeals for the District of Columbia — Sellers v. United States, 271 F. 2d 475 (1959), and Brown v. United States, 338 F. 2d 543 (1964). In the Brown case, Judge Burger (now Chief Justice of the United States) summarized the holding of Sellers as he moved toward a similar holding in Brown, saying at 338 F. 2d 545:

“We construe that case as establishing that when important testimony is anticipated from certain categories of witnesses, whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination is not only appropriate but should be given if requested. Failure to make appropriate inquiry, when requested, does not necessarily require reversal; the issue turns on the degree of impact which the testimony in question would be likely to have had on the jury and what part such testimony played in the case as a whole.” (Emphasis supplied)

The Court of Appeals in Langley also looked approvingly to the Pennsylvania decision of Commonwealth v. Futch, 469 Pa. 422, 366 A. 2d 246 (1976). Futch was dealing with prison guards rather than policemen but the principle it articulated was the same. The Supreme Court of Pennsylvania there said, at 366 A. 2d 249-50:

“The rationale underlying Brown v. United States, supra, is that although it is likely that jurors might believe testimony of law enforcement officials solely by virtue of the group’s official status, it is unreasonable for them to do so because official status is no guarantee of trustworthiness.” (Emphasis supplied)

After a thorough analysis of the case law from other jurisdictions in this regard, Langley articulated its own conclusion, at 281 Md. 348:

“A juror who states on voir dire that he would give more credit to the testimony of police officers than to other persons has prejudged an issue of credibility in the case. Regardless of his efforts to be impartial, a part of his method for resolving controverted issues will be to give greater weight to the version of the prosecution, largely because of the official status of the witness. The argument by the State that police officers are entitled to greater credibility because they have less interest in the outcome of the case is not sufficient to overcome such an objection. ” (Emphasis supplied)

Notwithstanding the two very special and very extreme situations dealt with in Casey and in Langley, the general rule remains (and, as a practical matter, almost has to remain) that the matter should be entrusted to the sound discretion of the trial judge. Langley itself well expressed this point, at 281 Md. 337:

“This Court has observed on a number of occasions that there is no statute in Maryland prescribing the objects of inquiry in determining the eligibility of jurors, and the subject is not covered by rigid rules, but is committed largely to the sound discretion of the trial court in each case.”

Langley itself looked approvingly to the words of Judge Hammond in this regard in McGee v. State, 219 Md. 53, 58-59, 146 A. 2d 194 (1959):

“It is settled in Maryland that in examination of jurors on their voir dire, the court may frame its own questions and not permit cross-examination by counsel, that the extent of the examination rests in the sound discretion of the court, and that the purpose of the inquiry is to ascertain ‘the existence of cause for disqualification and for no other purpose.’ . . . Questions not directed to a specific ground for disqualification but which are speculative, inquisitorial, catechising or ‘fishing’, asked in aid of deciding on peremptory challenges, may be refused in the discretion of the court, even though it would not have been error to have asked them.”

Measured against that general standard, we can find no clear abuse of discretion by Judge Karwacki in the case now before us. With respect to the prosecuting witness in question, there was not involved any occupational or even official denominational status, but only a general attribute of character. Judge Karwacki did probe the jury specifically as to whether the age difference between a 65-year-old female and a 47-year-old male would “cause any member on this jury panel ... to give more weight to the testimony of the complaining witness than you would give to the testimony of the defendant?” He probed further as to whether any member of the panel “would be inclined to believe that a female would not say she was raped unless it was true?” After a significant exploration of the jury’s possible attitude toward this rape victim, Judge Karwacki declined to carry it further, offering the opinion that the further questions were not “intended to really elicit challenges for cause but rather to in fact argue in advance through the vehicle of voir dire questions, the positions of counsel.” We do not believe a per se rule is called for under the circumstances of this case. Absent such a per se rule, we cannot say that there was an abuse of discretion here.

The appellant’s second contention is that Judge Karwacki committed error when he refused to disqualify himself. There had been an earlier mistrial (because of a hung jury) over which Judge Karwacki had presided. Pointing out that the present trial was to be a jury trial and not a court trial, Judge Karwacki declined to disqualify himself. He was absolutely correct in so doing. He was not the fact finder and was not, therefore, in a position to be influenced by any testimony which he had heard on an earlier occasion. His rulings of law, moreover, are fully subject to appropriate appellate review. The contention is utterly devoid of merit. Laws and Doorman v. State, 7 Md. App. 84, 87.

Judgment affirmed; costs to be paid by appellant.