Ehrlich v. Board of Ed. of Baltimore County

• Decision Date: 06 April 1970
• Docket Number: No. 324,324
• Citation: 257 Md. 542,263 A.2d 853
• Parties: Gerd W. EHRLICH v. BOARD OF EDUCATION OF BALTIMORE COUNTY et al.
• Court: Maryland Court of Appeals

Page 542

257 Md. 542

263 A.2d 853

Gerd W. EHRLICH v. BOARD OF EDUCATION OF BALTIMORE COUNTY et al.

No. 324.

Court of Appeals of Maryland.

April 6, 1970.

John C. Evelius, Baltimore (John H. Doud, III, and Gallagher, Evelius & Finnerty, Baltimore, on the brief), for appellant.

B. Marvin Potler, Asst. County Solicitor (R. Bruce Alderman, County Solicitor and Harry S. Shapiro, Asst. County Solicitor, Towson, on the brief), for appellees.

Before HAMMOND, C. J., and

BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

This case is before us on appeal from a judgment of the Circuit Court for Baltimore County in favor of the Board of Education of Baltimore County and the Board of Trustees of the Essex Community College, plaintiffs-appellees. From 1957-1964, the defendant-appellant, Mr. Ehrlich, was employed as a professor at the Essex Community College. In an effort to better prepare himself for the expanded needs of the college, he applied for a sabbatical leave for the academic year 1964-1965. He was granted the sabbatical and a letter outlining the conditions of the grant was prepared by Dr. Moses Koch, president of the college. Among the more important terms of the grant were the following: 'Any person to whom sabbatical leave is granted shall be required * * * to agree to return to the service of the Essex Community College for at least one year following the expiration of his leave. Should the teacher not return, he will be required to refund the money granted for sabbatical leave.' In a letter dated April 1, 1964, Mr. Ehrlich stated he thought the terms were fair and agreed to accept them.

While on leave, Dr. Koch appointed a formal chairman of the Social Science Department. This upset the appellant because it was his understanding that he was to return to Essex as acting head of the Social Science Department. He was also upset because the expertise of the new chairman was in political science and this was the area in which the appellant expected to do most of his teaching upon return to the college. While on sabbatical, he took graduate courses in political science at the Johns Hopkins University. When the sabbatical was over, he took a further leave of absence without pay for the following academic year, 1965-66. In March, 1966, he informed Dr. Koch that he would not be returning to Essex. Dr. Koch responded that he could still return to the same position which he had when he left, which Dr. Koch held to be Associate Professor of Social Science.

When Mr. Ehrlich refused to accept, the Board of Education of Baltimore County on July 19, 1966, filed suit to collect $4750.00, the sum which he had been paid during his sabbatical. Accompanying the declaration was a motion for summary judgment. The appellant responded by filing a counterclaim against the Board of Education and by asserting the technical deficiency of plaintiff's affidavit which was filed along with the motion for summary judgment.

The case lay dormant until March 3, 1969, when the Board of Education filed an amended affidavit. To this maneuver the defendant countered with a motion ne recipiatur or in the alternative a motion to strike. On June 19, 1969, the appellant moved for summary judgment alleging that any contract to which he may have been obligated was not with the Board of Education but was with the Board of Trustees of the Essex Community College. Thus on July 25, 1969, the Board of Education moved to add as party plaintiff the Board of Trustees.

Judge Turnbull allowed the party plaintiff to be added and granted their motion for summary judgment as he found that the defendant had wilfully violated his contract by refusing to return to Essex.

The appellant raises the following issues on appeal:

(1) Should the trial court have accepted the Board of Education's amended affidavit and denied appellant's motion ne recipiatur or in the alternative motion to strike.

(2) Should the trial court have granted the Board's Motion to Add Party Plaintiff.

(3) Did the trial court err in granting plaintiffs a summary judgment because there was a dispute as to material facts.

(4) Did the trial court err in denying appellant's motion for summary judgment without a hearing and in denying his motion for a new trial.

Appellant's first contention is that appellees' original affidavit which accompanied the motion for summary judgment was ineffective. This is correct as the original affidavit was not made upon the personal knowledge of the affiant and failed to assert his competency as to the matters alluded to. Maryland Rule 610 b. The issue then is whether the amended affidavit which was filed three years later can be effective. Appellant urges that the affidavit to be effective had to accompany the motion for summary judgment since it was filed with the appellees' declaration. Maryland Rule 610 a 3. However this is a too technical construction of the Maryland Rules. The Court has said with respect to the purpose of the summary judgment rules: 'In general the effect of the changes in Maryland was not to restrict or narrow, but to broaden, the federal rule. Moreover, the Summary Judgment Rules, unlike the former Speedy Judgment Acts, do not preclude amendments in such proceedings.' Fletcher v. Flournoy, 198 Md. 53, 57, 81 A.2d 232, 233 (1951). See also Frush v. Brooks, 204 Md. 315, 104 A.2d 624 (1954), wherein Judge Hammond, now Chief Judge, speaking for the Court stated: 'The court had jurisdiction of the parties and the subject matter and if it had granted a summary judgment of its own motion, this alone would not affect an otherwise valid judgment. Hamburger v. Standard Lime & Stone Co., 198 Md. 336, 84 A.2d 74.' Id. at 322, 104 A.2d at 627.

There is no contention that the allowance of such amended affidavit prejudiced the appellant. The technicality of the objection can best be understood when one realizes that a summary judgment motion can be filed at any time without an affidavit once a responsive pleading has been lodged. Thus the effect of filing the amended affidavit in 1969 was the equivalent of filing a new motion for summary judgment. We think the trial court properly denied the motion ne recipiatur and the motion to strike, especially in light of the general purposes of the summary judgment procedures.

Appellant's second contention is that the trial court erroneously granted the motion to add party plaintiff. He argues that since the contract which he is alleged to have violated was with the Board of Trustees, the Board of Education which was the original plaintiff, had no cause of action against him. The primary objection from appellant's vantage of allowing the new party is that limitations would have run had the Board of Trustees attempted to file a new suit against him at this time. It is not so much the addition of the Board of Trustees as party plaintiff but the refusal of the trial court to allow the plea of limitations against this party to which appellant objects. It was the position of the trial court that the two plaintiffs were essentially identical in that the members of the Board of Education are also the duly constituted members of the Board of Trustees. In this connection it should be noted that at the time of original employment the appellant was employed by the Board of Education. However, at the time of the negotiations concerning his sabbatical his employer was technically the Board of Trustees, although as we have previously stated, the same individuals served on both boards. The reason for the change from the Board of Education to the Board of Trustees, insofar as the administration of the College was concerned, came about by virtue of Chapter 134 of the Acts of 1961, which provided that for the 'purpose of administration over these colleges the board of education shall constitute a board of trustees and governmental corporation vested with the following Powers * * *' In the instant case we do not believe that there was a change in the real party in interest. We think the addition of the 'Board of Trustees' as a party was no more a change of substance than was the addition of the County as a party defendant in Glens Falls Ins. Co. v. Baltimore County et al., 230 Md. 524, 187 A.2d 875 (1962). In that case the plaintiff, a supplier of materials to a contractor, sued Glens Falls as the indemnitor on the performance bond when the contractor failed to pay. The contractor had a contract with Baltimore County for road construction and when the supplier filed suit, he sued Glens Falls and failed to join the County, with whom the contractor actually had the contract. In upholding the lower court's action permitting an amendment to the declaration by interlineation whereby the County was joined as a party defendant, after the conclusion of the...