Hensley v. Bethesda Sheet Metal Co.

• Decision Date: 06 February 1963
• Docket Number: No. 163,163
• Citation: 230 Md. 556,188 A.2d 290
• Parties: Clyde W. HENSLEY, v BETHESDA SHEET METAL COMPANY and Aetna Casualty & Surety Co.
• Court: Maryland Court of Appeals

Page 556

230 Md. 556

188 A.2d 290

Clyde W. HENSLEY, v BETHESDA SHEET METAL COMPANY and Aetna Casualty & Surety Co.

No. 163

Court of Appeals of Maryland.

Feb. 6, 1963.

Martin E. Gerel, Washington, D.C., for appellant.

H. Algire McFaul, Rockville (Simpson & Simpson, Vivian V. Simpson and Joseph B. Simpson, Jr., Rockville, on the brief), for appellees.

Before BRUNE, C.J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.

HAMMOND, Judge.

The Constitution of Maryland, in Sec. 18A of Art. IV, authorizes and directs the Court of Appeals from time to time to "make rules and regulations to regulate and revise the practice and procedure in that Court and in other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law." The present appeal is concerned with the interplay of the rule making power of this Court and that of the Legislature conferred by the phrase in the quoted language of the Constitution "or otherwise by law"; that is, whether the manner of taking an appeal in a workmen's compensation case was controlled by a rule of this Court or a statute. The trial court held that the rule rather than the statute was applicable.

The appellant, asserting he had been injured while at work, filed a claim for workmen's compensation on April 3, 1961. The Workmen's Compensation disallowed the claim on December 19, 1961. On December 26, 1961, appellant filed a notice of appeal with the Commission pursuant to the provisions of Sec. 55 of Ch. 800 of the Laws of 1914, (Code (1957), Art. 101, Sec. 56(a)):

"Any * * * employee * * * feeling aggrieved by any decision of the Commission * * * may have the same reviewed by a proceeding in the nature of an appeal and initiated in the circuit court of the county or in the common law courts of Baltimore City having jurisdiction over the place where the accident occurred or over the person appealing from such decision * * *. No such appeal shall be entertained unless notice of appeal shall have been served personally upon some member of the Commission [or the secretary of the Commission] within thirty days following the rendition of the decision appealed from." ¹

He did not note an appeal in any court until months later, after the appellee had moved the circuit court to dismiss the appeal because it had not been filed with the court pursuant to the Maryland Rules.

In 1933 in Monumental Printing Co. v. Edell, 163 Md. 551, 164 A. 171, this Court held that the language of Sec. 56(a) (then Code (1929 Supp.) Art. 101, Sec. 56) quoted above did not contemplate nor require the filing of papers or the docketing of suit in the court to which an appeal is taken as a preliminary to the required notice to a member of the Commission, and that the appeal provided by the statute was to be taken by filing notice thereof on a member of the Commission.

The Court of Appeals, pursuant to the constitutional grant of power, promulgated Rules 1101a to ll (now Rules B1 to B12) to govern the method, manner and mechanics of appeals from administrative agencies. Rule 1101 b 1 provided that an appeal should be taken by filing with the clerk of the proper court an order for appeal; and Rule 1101 b 5 directed the appellant to file with the clerk of the court, within ten days after filing the order for appeal, a petition setting forth the action appealed from, the error committed, and the relief sought, and to serve a copy on the agency involved. These Rules, which took effect January 1, 1959 (see preface to the 1961 Edition of the Maryland Rules of Procedure), clearly applied to appeals from the Workmen's Compensation Commission as the definition of b) and the specific reference to appeals from the Commission in Rule 1101 f (B6 b) demonstrated.

At the 1960 Session the General Assembly, by Ch. 34 of the Laws of that year, repealed and reenacted with amendments Sec. 56(a) of Art. 101 of the Code to provide that an appeal should not be a stay of any order of the Commission directing payment of compensation or the furnishing of medical treatment. The provision of the section, as it had stood since its enactment in 1914, that no appeal would be entertained unless notice thereof was served on the Commission within thirty days, was included in the statute as it was reenacted, effective June 1, 1960.

The Court of Appeals promulgated the rules as to appeals from administrative agencies as Rules B 1 to B 12 (a part of Ch. 1100), effective January 1, 1962; and the Legislature, in recognition of the fact that these rules controlled such appeals from and after January 1, 1962, repealed and reenacted Sec. 56(a) of Art. 101 of the Code by Ch. 36 of the Laws of 1962, so as to delete the requirement that an appeal is to be taken by service of a notice of appeal upon the Commission. ²

Judge Anderson held that Maryland Rules B2 and B4 (formerly 1101 b and 1101 d) had not been complied with and, therefore, there had been no timely or effective appeal. He found no basis for exercising the power given by Rule B5 (former Rule 1101 e) to waive the dismissal of the appeal directed by that rule for failure timely to appeal or, thereafter, to file the petition of appeal.

In Maryland, the repeal and reenactment of a statute is regarded as an uninterrupted continuation of the law as it existed prior to the reenactment insofar as the original provisions are repeated in the reenactment without change. Ireland v. Shipley, 165 Md. 90, 98, 166 A. 593; Board of Dental Examiners v. Lazzell, 172 Md. 314, 319, 191 A. 240; State v. Clifton, 177 Md. 572, 575, 10 A.2d 703. It is generally held that an...