989 A.2d 1239 (Md.App. 2010), 2260, Benway v. Maryland Port Administration

Docket Nº:2260.
Citation:989 A.2d 1239, 191 Md.App. 22
Opinion Judge:DAVIS, J.
Party Name:Linda BENWAY, Individually Etc. v. MARYLAND PORT ADMINISTRATION et al.
Attorney:Linda Benway, pro se appellant, Baltimore. Peter Engel, Towson, for appellee.
Judge Panel:Panel: DAVIS, ZARNOCH, J. FREDERICK SHARER, (Retired, Specially Assigned), JJ.
Case Date:March 01, 2010
Court:Court of Special Appeals of Maryland
 
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Page 1239

989 A.2d 1239 (Md.App. 2010)

191 Md.App. 22

Linda BENWAY, Individually Etc.

v.

MARYLAND PORT ADMINISTRATION et al.

No. 2260.

Court of Special Appeals of Maryland.

March 1, 2010

Linda Benway, pro se appellant, Baltimore.

Page 1240

Peter Engel, Towson, for appellee.

Panel: DAVIS, ZARNOCH, J. FREDERICK SHARER, (Retired, Specially Assigned), JJ.

DAVIS, J.

[191 Md.App. 24] Linda Benway, appellant, filed a claim with the Workers' Compensation Commission of Maryland (Commission) seeking death benefits from appellees, the Maryland Port Administration and the Injured Workers' Insurance Fund, as a result of the death of her husband, Robert L. Benway, Jr. A hearing on appellant's claim was held on March 6, 2008. The Commission disallowed her claim on March 21, 2008. Appellant, acting pro se, filed a Petition for Judicial Review of the Commission's decision in the Circuit Court for Baltimore City on April 14, 2008. On April 29, 2008, a Pre-Trial Scheduling Order was issued which required, inter alia, that " [a]ny motion for summary judgment shall be filed no later than 5 months from the date of this order-09/28/08." Trial was set for December 2, 2008. Over a month after the deadline for dispositive motions, on October 31, 2008, appellees filed a Motion for Summary Judgment. Appellant filed a response on November 19, 2008. The court granted summary judgment in appellees' favor on November 25, 2008. Appellant filed a Motion for Reconsideration on December 1, 2008 and, while the court's disposition of that Motion was pending, appellant filed a Notice of Appeal. Ultimately, the circuit court denied appellant's Motion for Reconsideration.

Appellant presents three questions 1 for our review, which we have rephrased and consolidated into the following two questions:

I. Did the circuit court err in considering a summary judgment motion filed after the scheduling order deadline?

[191 Md.App. 25] II. Did the circuit court err in granting summary judgment in favor of appellees?

For the reasons that follow, we answer both of appellant's questions in the negative. Accordingly, we affirm the decision of the Circuit Court for Baltimore City.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's husband, Robert L. Benway, Jr. (Benway), was employed by appellee, the Maryland Port Administration, as a Facility Maintenance Supervisor. As a Facility Maintenance Supervisor, he was responsible for all underground utilities, in addition to general maintenance duties. Benway supervised several employees, including Patrick Woods and Keith Capps.

On the morning of June 26, 2006, Benway, Woods and Capps were at a Maryland Port Administration property located at South Clinton Street (the Property) in Baltimore, Maryland. At some point around 10:00 a.m., while ascending or descending a ladder, Benway's legs became entangled, causing the ladder to slip and Benway to fall eight to twelve feet. His head struck the cement and he sustained severe injuries. Woods immediately took

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Benway to Johns Hopkins Bay View Hospital, where he died on July 1, 2006, as a result of his injuries.

On October 26, 2006, appellant filed a death benefits claim with the Workers' Compensation Commission. She asserted that Benway was killed in a work-related accident when he " fell from a ladder, struck [his] head and died from said injuries." Appellees contested the claim based, in part, on their assertion that Benway's death resulted from injuries sustained while he was deviating from his employment. Specifically, appellees claimed that, at the time of his injuries, Benway, with the help of Woods and Capps, was attempting to steal copper wiring from the ceiling of the Property to sell for scrap metal. 2 On March 6, 2008, the Commission held a [191 Md.App. 26] hearing on the matter.3

Prior to offering testimony, appellant's attorney objected to any testimony based on out of court statements that Patrick Woods and Keith Capps made to police regarding the incident, arguing that such statements were inadmissible hearsay. Appellees' attorney responded that the police reports would be admissible under the public records exception to the hearsay rule, see Rule 8-503(b)(8), and that any statements from Woods or Capps in that report would be admissible as statements against interest of an unavailable declarant under Rule 5-804(b)(3), as Woods had been subpoenaed but failed to appear and Capps planned to invoke his Fifth Amendment privilege. The Commissioner sustained the objections, pending whether Capps, in fact, invoked his Fifth Amendment privilege. Thereafter, appellant's counsel indicated that they had no witnesses to testify and appellees called their first witness.

Richard E. Rehberger, on behalf of appellees, was the first witness called. Rehberger was the General Manager of Facility Maintenance for the Maryland Port Administration at the time of Benway's accident. He testified that Benway was a Facility Maintenance Supervisor, whose direct supervisor was Joseph Nickoles. Woods was under the supervision of Benway, he explained, and Capps was under the supervision of Woods. Rehberger stated that he was made aware of the fall shortly after it occurred and that it transpired on Administration property. He further testified, however, that the Property was in " inactive" status at the time of Benway's injuries and there was no reason for Benway to be there. Appellant's counsel declined to cross-examine Rehberger.

Appellees then called Joseph Nickoles, Assistant General Manager of Facility Maintenance, to the stand. He likewise [191 Md.App. 27] testified that, at the time of Benway's injuries, he was Benway's supervisor and the property where Benway was injured was on inactive status. He stated that there was no work order, nor any work scheduled, which would require Benway to be at the Property with Woods and Capps. He said that he was unaware of any legitimate business reason for them to be there. Again, appellant's counsel declined to cross-examine the witness.

Appellees called Keith Capps to testify next. Capps was present at the hearing with his own attorney, who advised him to assert his Fifth Amendment privilege.

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Appellees argued that, because Capps had already pleaded guilty to crimes relating to the incident, he could not invoke this privilege. Capps' attorney explained that, due to appellant's insinuations to the police and newspapers of other wrongdoing by Capps, arising out of Benway's fall, he advised his client not to answer any questions regarding the incident. As a result, when appellees' attorney asked Capps any questions, he responded, " I respectfully reserve [sic] to answer to the ground that it may tend to incriminate me."

Having found that Capps' assertion of his Fifth Amendment privilege rendered him unavailable as a witness, see Rule 5-804(a)(1), the court permitted appellees to call to the stand to testify regarding Capps' statements to police Nicholas A. Mize, a former detective for the Maryland Transportation Authority Police Department who investigated Benway's accident. Detective Mize testified that he was assigned to investigate Benway's death and, in the course of that investigation, he spoke to both Woods and Capps on several occasions. Appellant objected on the grounds of hearsay and the commissioner overruled his objection with respect to Capps' statements.

Mize recounted that, in his interviews with Woods and Capps, he attempted " to determine the exact cause, manner or circumstances surrounding the death of Mr. Robert Benway." He related that, at a certain point during his investigation, he suspected that Woods and Capps were involved in the theft of [191 Md.App. 28] property from the facility. He stated that Capps initially told him that he and Woods stopped at Royal Farms for a Gatorade and a coffee on the morning of June 26, 2008, then proceeded to the Property to scavenge for parts in the valve house to be used for a compressor at a site that is currently active. Capps told Mize that, while he was attempting to remove the parts, Benway stopped by to check on their progress. Capps continued, recalling to Mize that, as Benway was descending the ladder after a brief conversation with Capps, he fell and struck his head on the cement floor.

Mize explained that, after his initial interview, he questioned Capps again, this time after reading him Miranda rights. During the second interview, Capps' version of the events was identical to the initial interview. The third time they spoke, however, Capps related a very different story.

Mize testified that, during the third interview, he once again advised Capps of his Miranda rights. Confronted with pictures of copper wires in the ceiling which had been cut, Capps told Mize that he, Woods and Benway were attempting to take the copper wiring from the Property to sell as scrap metal for extra money. Mize recalled that Capps described how they placed a ladder into the conduit box and how Benway stood atop the ladder, cut the wires and attempted to pull them free. At some point, Benway's legs became entangled in the ladder, it fell and Benway's head struck the floor. When Woods took Benway to the hospital, Capps told Mize, he remained behind to stage the scene as if they were scavenging for parts by moving a ladder to the valve house and partly dissembling a compressor unit. Mize testified that Capps told him he initially lied because they were " trying to protect Benway's good name." The Commissioner did not allow appellees' counsel to question Mize with regard to Woods' statements because Woods was not an unavailable witness. Once again, appellant did not undertake any cross-examination.

On March 21, 2008, the Commission issued a brief...

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