Lucke v. Commissioner of Personnel

Per Curiam. The appellant, Joseph F. Lucke, was suspended from his position in the Clerk’s Office of the Municipal Court of Baltimore City on July 17, 1964, pending a hearing on formal charges filed with the Commissioner of Personnel under the Merit System Law, Code (1957), Article 64A. The Commissioner, in a written decision, found that Lucke had written and sent various anonymous communications to the Chief Judge of the Municipal Court, and that their nature warranted the appellant’s dismissal from State service. The appellant appealed to the Balti ⁷⁰⁸ more City Court pursuant to the Administrative Procedure Act, Code (1965 Repl.

Vol.), Art. 41, sec. 255. The court (Cullen, J.) remanded the case for further hearing because the appellant’s new counsel was unfamiliar with the facts and the appellant himself was not present to testify. The Commissioner of Personnel entered a “Supplemental Order” on June 29, 1965, again finding that Euclce was the •author of the anonymous communications referred to in the •charges and directing that his services be terminated effective •on the date of his suspension. A second appeal to the Baltimore City Court followed from this order of the Commissioner.

After full argument, the court (Poster, J.) on March 29, 1966, filed a memorandum opinion carefully considering and rejecting each of the appellant’s contentions. The opinion concluded: “The appellant, having failed to convince the Court that there was any prejudicial error in the proceedings before the Commissioner of Personnel, or that any of appellant’s .rights had been violated, and there admittedly being substantial evidence before the Commissioner on which to base his decision, the Commissioner of Personnel is hereby affirmed. /s/ Dulany Foster, Judge March 29, 1966” (Emphasis supplied). Counsel for the appellant admitted, before this Court, that, diaving represented the appellant in his second appeal to the "Baltimore City Court, a copy of the lower court’s memorandum -and order was received by him. The appeal to this Court was ■entered on May 2, 1966, more them 30 days after the date of the March 29, 1966, order of the Baltimore City Court.

We agree with the appellee that the appeal must be dismissed because it was filed beyond the period permitted by Maryland Rule 812. See also Code (1957), Art. 41, sec. 256. There could be no doubt that the appeal was filed too late, "but for the docket entries made by the clerk of the Baltimore 'City Court : “3/29/66, The decision of The Commissioner of Personnel is hereby affirmed. Memorandum Opinion and ⁷⁰⁹ Order of The Court (Judge Dulaney [sic] Foster) filed. “3/29/66, Judgment nisi in favor of appellees (defendants). “4/1/66, Judgment made absolute in favor of the appellees (defendant), for costs of suit.” The appellant claims that he had a right to rely on these docket entries, and it is true that were “4/1/66” taken as the date of the judgment appealed from, the appeal to this Court was timely filed. 1 We hold, however, that the entry of a judgment nisi in favor of the appellees was erroneous, and under the circumstances presented here, the appellant was not privileged to rely on the erroneous state of the docket.

(1) The principal purpose of the entry of a judgment nisi is to enable an aggrieved party to file a motion for a new trial in cases tried on the facts by the court. Merlands Club, Inc. v. Messall, 238 Md. 359 , 208 A. 2d 687 (1965). Proceedings under the Administrative Procedure Act, however, do not include-provision for a new trial. Instead, the reviewing