Hoffer v. Anthony De Crenzo, Inc.

Gilbert, J., delivered the opinion of the Court. The appellant, Connie M. Hoffer, brought suit in the Superior Court of Baltimore City on January 13, 1969 against the appellee, Anthony De Crenzo, Incorporated. The suit alleged that because of the negligent construction and ⁶⁵⁶ installation of a “gondola”, 1 the appellant was severely injured on January 14,1966 when the gondola “collapsed and fell on top of the body of the” appellant. We were advised on oral argument that appellant had been determined by the Workmen’s Compensation Commission to be disabled totally and permanently.

After the litigation had been commenced in the Superior Court, the appellee filed its plea on February 3, 1969, and the case was entered on the consolidated trial docket on February 6, 1969. The case was not tried during the succeeding three years. The docket entries under date of July 13, 1972 reveal, “Notice sent in accordance with Supreme Bench Rule 528 L.” Section (1) of that rule provides: “(1) Each year within not less than thirty days and not more than sixty days prior to the beginning of the September Term of Court, the Assignment Commissioner shall return to the Clerk of the Court where the same was instituted all cases which have been on the Consolidated Trial Docket for a period of two years or more. Immediately upon receipt thereof the Clerk of the Court shall notify all counsel of record at their respective addresses, as shown on the pleadings, served in the manner provided by Maryland Rule 306, that an order of dismissal for lack of prosecution will be entered after the expiration of thirty days unless, prior to the expiration of such period, a motion is filed pursuant to subsection (3); in the event counsel has died or his appearance has been stricken pursuant to Maryland Rule 125 and the party represented is not represented by another attorney of record, or is proceeding in proper person, the Clerk shall send the notification required by this Section to such party at the address shown on the pleadings.” Following notice being sent to counsel, the appellant ⁶⁵⁷ moved to restore the case to the trial docket, and an order of court dated September 1, 1972, in which the case was set for trial on December 4, 1972, was filed.

We observed that the date fixed for trial was within the first term of court after the restoration of the case to the trial docket. 2 The issue was not tried on December 4, 1972, instead a series of petitions and orders thereon rescheduling the trial date was commenced. 3 The case was carried forward from term to term until November 13, 1974 when appellee moved to dismiss pursuant to Rule 528 L. The motion was resisted and a hearing was held before Judge James W. Murphy who determined that the case had to be dismissed. Accordingly, Judge Murphy granted the appellee’s motion. This is the second time within the year that we have been called upon to construe Supreme Bench Rule 528 L. The rule provides that any case that has been on the trial docket for two 4 years or more shall be entered as dismissed after thirty days unless, prior to the expiration of that time, a motion is filed to restore the case to the trial docket. Subsections (4) and (6) of Supreme Bench Rule 528 L provide: “(4) Any order issued by the Assignment Judge of the Supreme Bench restoring a case to the Consolidated Trial Docket pursuant to subsection (3) of this Rule shall therein set a right-of-way date ⁶⁵⁸ for the trial of said case, which date shall not extend beyond the expiration of the next Term of Court; except that where the Assignment Judge is satisfied that it has been impossible to try said case on the date assigned, or a day subsequent thereto within that Term, because of the pendency of other cases on the Consolidated Trial Docket, he may assign a trial date not beyond the next subsequent Term of Court.

(6) Any case not tried or otherwise finally disposed of within the term of Court following the date of issuance of an order replacing a case on the consolidated trial docket pursuant to subsections (3) and (4) of this rule shall under no conditions be ordered reinstated by any order of Court or otherwise and shall be returned by the Assignment Commissioner to the Clerk of the Court in which the case was instituted and shall be forthwith marked dismissed by the Clerk.” (Emphasis supplied). This Court in Chase v.