Molony v. Shalom Et Benedictus, 1318

• Decision Date: 17 June 1980
• Docket Number: No. 1318,1318
• Parties: Donald Plummer MOLONY v. SHALOM ET BENEDICTUS et al.
• Court: Court of Special Appeals of Maryland

Page 96

46 Md.App. 96

415 A.2d 648

Donald Plummer MOLONY v. SHALOM ET BENEDICTUS et al.

No. 1318.

Court of Special Appeals of Maryland.

June 17, 1980.

Herbert J. Arnold and Gail R. Smith, Baltimore, with whom were Arnold, Beauchemin & Tingle, P. A., Baltimore, on the brief, for appellant.

Thomas J. Michels, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Charles R. Goldsborouth, Jr., Asst. Atty. Gen., on the brief, for appellees.

Argued before THOMPSON, MELVIN and WILNER, JJ.

WILNER, Judge.

Md.Ann.Code art. 101, § 39(a) provides that the failure of an employee to file his claim for workmen's compensation benefits within two years from the date of the compensable accident "shall constitute a complete bar to any claim under (the Workmen's Compensation law)." Appellant missed the deadline by 17 days; the accident occurred February 10, 1971, but his claim was not filed until February 27, 1973. Thus, the Workmen's Compensation Commission and, on appeal, the Circuit Court for Montgomery County, rejected his claim.

Appellant seeks relief from this "complete bar" by interposing the provisions of § 38 of art. 101. Subsection (b) thereof requires the employer to report an accident (causing three or more days of disability) to the Workmen's Compensation Commission within 10 days after receiving notice of it. Subsection (c) then states that where an employer has been given such notice (or otherwise has knowledge of the accident) and "fails, neglects or refuses" to file the required report, "the limitations prescribed by this article shall not begin to run against the claimant . . . until such report shall have been furnished . . .." The employer in this case did not file the required report until the very day of the hearing on appellant's claim, May 7, 1977. Thus, appellant contends that by reason of the employer's dereliction the § 39(a) statute of limitations never began to run against his claim, and that the Commission and the Court erred in concluding otherwise.

The wrinkle in the case is that appellant's employer (appellee) is a corporate entity and at all relevant times appellant was its president and chief executive officer. It is for that reason that the lower tribunals refused to apply § 38(c); they concluded that it was appellant's responsibility as president and chief executive officer to see that the notice was properly and timely filed, and they declined to award him the benefit of his own failing. The basic question that we must decide is whether the court was wrong in drawing that conclusion ; and, in considering that question, we are guided by the limitations of Maryland Rule 1086. ¹

The record is somewhat sketchy with respect to the employer and the precise nature of appellant's relationship with it. The employer, Shalom et Benedictus, is a non-profit charitable corporation chartered in Virginia. None of the basic corporate documents charter, by-laws, trustees' minutes are in evidence, and our knowledge of how it operated comes primarily from the testimony of appellant given at the hearing before the Commission and in an earlier proceeding before the United States District Court. ²

Appellant was a social worker, a counselor who worked with difficult children referred by the juvenile court. At the request of some judges and ministers, he "formed" Shalom et Benedictus in February, 1970, although its actual incorporation took place later that summer. He was, he said "the director of the whole operation, and specifically the welfare of the children, caring for the children and counseling them." After incorporation, there was a four-member Board of Trustees, but its duties were never explained. Appellant, as noted, was the president and also served as one of the trustees.

At some point, appellee purchased, for $333,000, a 1200-acre fruit farm in Western Maryland, and moved its operation there from Virginia. This, of course, added a new dimension to appellee's operation. The farm consisted of some 23,000 fruit trees, and required the efforts of 12 tenant families and up to 200 employees to manage. This was in addition to what was involved in dealing with the children referred by the courts.

Prior to appellee's acquisition of this property, the farm operation had been managed by one Jarreda Close, and the Board of Trustees opted to retain him as general manager of the farm. Mr. Close thus became an employee of appellee, at an annual salary of $10,400. Subsequently, he was elected a vice-president of appellee, but that did not occur until after appellant's accident.

Although the record is not as clear and precise as it could be, it appears from appellant's testimony that Close's responsibility was to operate the farm and handle all administrative matters pertaining to that operation, whereas his (appellant's) function was to superintend the juvenile center and attend to all matters relating to it. He described his duties as follows:

"My job was taking care of the youngsters; accompany them to Court. Testifying in the various corporation proceedings. Finding the right psychiatrist or psychologist to work with the youngster, as that was indicated that they had proper medical care. Housing, shelter. Trying to raise money to keep going."

and Close's job, by way of contrast:

"Everything concerning the farm, families, with the exception of the children Close handled everything. He handled the tenant families. The migrant workers, the temporary workers that came in. The ordering of orchard supplies . . .. With the exception of the children, he handled all personnel."

Appellant lived at the center and was available all the time, seven days a week. For this, he received free room and board and a salary of $400 a month. Close, on the other hand, worked only on weekdays and lived elsewhere.

There were some administrative or clerical matters of a business nature that were not handled by Close indeed that for a time were apparently not handled by anyone. On February 8, 1971 (two days before the accident), a secretary Mrs. Hutchinson was hired by appellant. One of her duties was to keep a daily log "of every incident that took place on the property that concerned the children in any way whatsoever." This log actually a standard desk calendar became one of the chief records of the corporation, in which both Mrs. Hutchinson and appellant recorded significant events. Some evidence of the state of affairs, in terms of handling routine business matters, appears from the entry made by appellant on February 11, 1971 (the day after the accident): "Happy day a bookkeeper all we have is paper bags full of bills, receipts and checks."

Although appellant had some contact with the State Accident Fund on behalf of appellee, to the extent of requesting forms and notifying it of a change of address, he said that Close was supposed to prepare the forms for appellee, and "the only time I saw any forms, they were in Mr. Close's office over at the warehouse which was about two or three miles from the main house."

An overall summary of appellant's function appears from this colloquy with the Commission:

"THE COMMISSION: Can I assume for purposes of this here, that as of the date...