Francois v. Alberti Van & Storage Co.

Cole, J., delivered the opinion of the Court. The success of Wilson W. Francois’ challenge to the dismissal of his appeal from a denial of workmen’s compensation by the Circuit Court for Montgomery County depends upon whether he complied with the temporal commands of the Maryland rules governing appeals from administrative agencies. Rule B4 provides that an order for appeal shall be filed within thirty days of the date of the action appealed from. Rule B2 e requires that an appellant join with his order for appeal or file within ten days thereafter a petition setting forth the agency action appealed from, the error committed, and the relief sought.

Maryland Code (1957, 1964 Repl. Vol.), Article 101, § 56 (e) provides that a motion for rehearing may be filed within seven days of the date of the Workmen’s Compensation Commission’s (Commission) decision, and that if a motion for rehearing is so filed, the time within which an appeal can be taken from the decision shall commence from the time of the Commission’s ruling on the motion. Francois was accidentally injured at work on September 25, ⁶⁶⁵ 1972. Since that time a number of hearings have been held and orders issued by the Commission for payment to him.

However, on Noyember 18, 1977, the Commission denied Francois’ claim for temporary total disability. Francois then moved for a rehearing on December 15,1977. He filed two orders for appeal, the first on December 22,1977 and the second on February 2, 1978 after the Commission denied his motion for a rehearing on February 1, 1978. On April 5, 1978, Francois filed a' petition setting forth the grounds for his appeal and the relief sought.

The Circuit Court for Montgomery County dismissed his appeal as untimely on July 6, 1978. Francois appealed to the Court of Special Appeals and we granted certiorari prior to that court’s consideration of the matter. It is obvious from the above chronology that since the Commission’s order denying Francois’ compensation was issued November 18th that he had until November 25th to file for a rehearing; he filed on December 15th. He had until December 18th to appeal and both appeals were filed beyond that date on December 22nd and February 2nd.

He had until December 28th, (if he had filed his appeal on the last day of the thirty day period) to submit his petition stating the grounds of his appeal. Francois filed his petition on April 5, 1978. Francois presents several contentions to this Court. First, he argues that Maryland Rule B2 e does not apply to an appeal from a denial of benefits by the Workmen’s Compensation Commission.

Second, Francois asserts that his motion for rehearing, filed after the statutory period for such motions, extended the time in which he could appeal. Third, Francois says that the circuit court erred in dismissing his appeal because he had shown sufficient “cause” under Maryland Rule B5 to excuse any late filing of his order for appeal and his petition setting forth agency error. The employer, Alberti Van and Storage Company, Inc., and the insurer, Twin City Fire Insurance Co., both hereafter referred to as Alberti, contend that Rule B2 e does apply to appeals from decisions of the Commission. Alberti also asserts that a motion for rehearing of a Commission’s ⁶⁶⁶ decision, admittedly made late; and subsequently denied by the Commission, does not extend the thirty day appeal period set forth in Rule B4 a.

Lastly, Alberti insists that dismissal was proper because the petition under Rule B2 e and the notice of appeal under Rule B4 a were filed late and because Francois did not meet his burden of showing “cause to the contrary” under Rule B5. 1 The primary questions to be answered in this case are whether a motion for rehearing filed after the permissible statutory period extends the time for appeal and whether the circuit court erred in dismissing Francois’ appeal under the standard set forth in Maryland Rule B5. It is settled law that Rule B2 e applies to an appeal from a denial of benefits by the Commission. Our predecessors in Richardson v. Home Mutual 235 Md. 252 , 201 A. 2d 340 (1964), made it clear that chapter 1100 of the Maryland Rules of Procedure, repromulgated as Rules B1 to B12, effective January 1, 1962, governs the procedural aspects of appeals from Commission decisions. See Hensley v. Bethesda Metal Co., 230 Md. 556 , 188 A. 2d 290 (1963).

Rule B2 e provides that: The appellant shall join with his order for appeal, or shall file with the clerk of the court, within ten days after filing the order, a petition setting forth the action appealed from, the error committed by the agency in taking such action, and the relief sought, and shall serve a copy thereof on the agency. [Maryland Code (1957, 1977 Repl. Vol.)]. ⁶⁶⁷ Francois concedes that he did not file a petition until April 5, 1978, which was more than ten days after the date of filing his first order of appeal, December 22, 1977. However, he argues that the fact that he had forwarded a notice to the Commission on February 2, 1978 constituted substantial compliance with Rule B2 e and satisfied its “real purpose.” We find this argument unpersuasive. This Court has allowed an appeal to proceed on the ground that there had been substantial, if not literal, compliance with Rule B2 e on two occasions, where there were minor technical irregularities in the petition or the manner of its filing.

In Town of Somerset v. Board, 245 Md. 52 , 225 A. 2d 294 (1966), a timely petition failed to state that the appellants were “persons aggrieved” by an administrative order but did recite that the appeal was filed pursuant to Rules B1 through B12. Allowing the appeal to be maintained, the Court stated ( 245 Md. at 61 ): Where there is compliance with the substance of the requirements of statutes or rules and the other parties have not been prejudiced, technical irregularities cannot be made the basis for depriving persons of the opportunity to assert their legal rights____[W]e think that the appellants’ failure to allege expressly in the petition of appeal that they were aggrieved parties whose property interests are or will be adversely affected by the Board’s order was, at most, such a technical irregularity. In Border v. Grooms, 267 Md. 100 , 297 A. 2d 81 (1972), this Court also held that there had been substantial compliance with Rule B2 e where a timely petition was served on counsel for the zoning board rather than on a board member. Compare Salisbury Bd. v. Bounds, 240 Md. 547 , 214 A. 2d 810 (1965), where the Court ruled that an appeal should have been dismissed by the trial court because appellants had made a substantial omission by failing to set forth in their petition the error committed by the agency.

We find the present case distinguishable from Town of Somerset, supra, because here no petition was filed until long after the ten day period in Rule ⁶⁶⁸ B2 e had expired. Border v. Grooms, supra, is inapposite because it concerned the delivery of a timely petition. This case is more akin to Volk v. Pugatch, 262 Md. 80 , 277 A. 2d 17 (1971), in which this Court held that failure to file the petition required by Rule B2 e merited dismissal of an appeal. Our prior decisions indicate that “substantial compliance,” given its most liberal construction, denotes at least the timely filing of the document particularly required by Rule B2 e.

For example, in Board of Co. Comm’rs v. Kines, 239 Md. 119 , 210 A. 2d 367 (1965), this Court allowed an appeal to be maintained even though no copy of the order of appeal was delivered to the agency prior to the filing of the order with the clerk of the circuit court. The Court noted that well within the time for an appeal the aggrieved parties had filed a petition stating the alleged agency error with the circuit court and had delivered the petition on the agency several days before the expiration of the time for appeal. This Court held that these actions amounted to “substantial compliance with the appeal procedures.” Id. at 125 . In the present case the question of substantial compliance is an illusory one simply because Francois did not even file a petition within the time required by Rule B2 e.

Procedural rules are issued by this Court to construct a uniform and orderly flow of judicial business. We cannot countenance a party’s substituting methods of his choice for established rules for perfecting appeals. Accordingly, we hold that Francois failed to comply with the requirements of Rule B2 e. With regard to the second question, whether a motion for rehearing in a compensation case filed after the permissible statutory period extends the time for appeal, there is a dearth of case law.

However, generally, in instances where motions for rehearing, motions to set aside or modify a decree or motions to vacate or reconsider a decree have been filed, we have held consistently that such motions do not extend the time for filing an appeal. Thomason v. Bucher, 266 Md. 1 , 291 A. 2d 437 (1972); S. & G. Realty v. Woodmor Realty, 255 Md. 684 , 259 A. 2d 281 (1969); Lancaster v. Gardiner, 225 Md. 260, 170 A. 2d 181 , cert. denied, 368 U. S. 836 (1961), 82 S. Ct. ⁶⁶⁹ 63, 7 L.Ed.2d 37 ; Monumental Eng. v. Simon, 221 Md. 548 , 158 A. 2d 471 (1960). In the instant Case, we agree with the circuit court’s finding that the critical order for appeal is the first one, filed by Francois on December