Ambrose v. Gersh

MacDaniel, J., delivered the opinion of the Court. On November 1, 1978, appellant Lance V. Ambrose filed a Declaration in the Superior Court of Baltimore City against Howard Gersh, appellee, requesting damages as a result of alleged slanderous and defamatory statements made by Gersh against appellant. A demurrer to the Declaration was sustained, with leave to amend. Thereafter, on May 3, 1979, appellant filed an Amended Declaration.

Appellee once again demurred, and the trial court sustained the demurrer without leave to amend, ruling as follows: "Upon a review of the Court file, including the testimony before the Community Relations Commission, and consideration of argument of counsel, the Court is of the opinion that the Defendant in giving his testimony before the Commission was acting within the scope of his employment as an Assistant State’s Attorney for the City of Baltimore and therefore is immune from suit. It seems clear from the transcript of the testimony that he was speaking on the part of the State’s Attorney’s Office and that his testimony lacks any suggestion of malice against the Plaintiff. It is also clear that he was testifying as a witness before a duly authorized governmental agency. He was duty bound under the circumstances to relate the occurrence in question to the Commission.

The Court need not reach the issue raised, whether the statement, 'At that point, very frankly and very honestly, we are very close to an indictable offense for obstruction of justice,’ is defamatory in nature. See Foster v. Pearcy, 387 N.E.2d 446 (1979). Consequently, the Defendant’s Demurrer to the Amended Declaration is hereby SUSTAINED ⁷³ without leave to Amend. Judgment in favor of the Defendant.” In this appeal appellant alleges error to the trial court’s decision to sustain the demurrer and dismiss his suit.

We agree with appellant, and based upon this procedural error we shall reverse and remand for further proceedings. Appellant was an employee of the City of Baltimore — more specifically, a member of the city’s Community Relations Commission (CRC). Appellee was an Assistant State’s Attorney for Baltimore City. On or about October 20, 1978, the CRC conducted a public hearing, at which time appellee gave testimony allegedly containing the slanderous and defamatory statements.

Maryland Rule of Procedure 301, governing the form and contents of pleadings, provides in part, in subsection b: "A pleading shall be brief and concise and contain only such statements of fact as may be necessary to constitute a cause of action or ground of defense, except as may otherwise be necessary for purposes of demurrers and motions. . . . The contents of a pleading or of an exhibit attached thereto, or any part thereof, may be adopted by reference in a different part of the same pleading or in another pleading or in any motion.” And, in subsection c: "Any pleading which contains a clear statement of the facts necessary to constitute a cause of action or ground of defense shall be sufficient without reference to mere form, and it shall not be necessary to state time or place in a pleading except where time or place forms a part of the cause of action or ground of defense.” Maryland Rule 345 governs proceedings and rulings on demurrers. We enunciated the test of a demurrer under this ⁷⁴ rule in Gallant v. Bd. of County Comm’rs, 28 Md. App. 324 (1975), at 329: "When hearing a demurrer to a bill of complaint, the chancellor should assume as true, for the purposes of demurrer, all of the well pleaded facts in the bill of complaint and attached exhibits, as well as the inferences which may be drawn from those well pleaded facts. Parish v. Md. and Va.

Milk Producers Ass’n, Inc., 250 Md. 24, 71 . In its determination, the court may not assume facts not pleaded ..., Petroli v. Baltimore, 166 Md. 431, 436 , nor may additional facts relied on by a party be supplied. Nohowel v. Hall, 218 Md. 160, 164 . The ruling is limited to a consideration of the pleading demurred to, and instruments or documents which do not form a part of the pleading may not be considered.

Pullman Co. v. Ray, 201 Md. 268 .” And see Beach v. Mueller, 32 Md. App. 219 (1976). Furthermore, in Hooke v. Equitable Credit Corp., 42 Md. App. 610, 616 (1979), we wrote: "To withstand a demurrer a party need only allege facts which, if proven, would entitle, him to relief.” A review of appellant’s Amended Declaration and the partial transcript of testimony from the October 20, 1978 CRC hearing (attached to and incorporated in the Amended Declaration as Exhibit 1) discloses the following allegations. 1. Appellant was a trusted and respected employee in governmental service, and a staff member of the Community Relations Commission of Baltimore City. 2. Appellee appeared at the October 20, 1978, meeting of the CRC as a private citizen and not within the scope of his employment as an Assistant State’s Attorney. 3.

Appellee