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Posted by Stephen Sandberg - January 30, 2013 at 5:15 am
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
12‑P‑931 Appeals Court
COMMONWEALTH vs. DAVID J. SAULNIER.
Middlesex. September 23, 2013. ‑ December 6, 2013.
Present: Meade, Milkey, & Hanlon, JJ.
Motor Vehicle, Operating under the influence. Intoxication. Evidence, Intoxication, Opinion. Witness, Police officer. Practice, Criminal, Witness, Waiver of trial by jury, Bifurcated trial. Waiver.
Complaint received and sworn to in the Waltham Division of the District Court Department on August 24, 2010.
The case was heard by Tobin N. Harvey, J.
Thomas J. Chirokas for the defendant.
Moire V. Dobransky, Assistant District Attorney, for the Commonwealth.
HANLON, J. After a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, fourth offense. On appeal, he argues that the trial judge permitted a police officer to give improper opinion testimony on the ultimate issue, and that his conviction should be vacated because he did not waive his right to a jury trial on the subsequent offense portion of the trial. For the reasons that follow, we affirm.
Background. The judge heard the following facts. On August 23, 2010, at approximately 7 P.M., the defendant was involved in a motor vehicle accident on Main Street in Waltham. A witness testified that she saw the defendant drive a vehicle away from Gordon’s Liquor Store and then travel diagonally across two lanes of traffic and into her lane, where it “smashed into the driver’s side headlight area of [her] car.” Afterwards, her car was inoperable. The witness’s boyfriend, who had been driving her car, called the police; the witness saw the defendant “rocking back and forth,” saying, “I’m so fucked, I’m so fucked.”
Waltham police Officer Anthony Scichilone responded to the scene and observed the witness’s motor vehicle stopped in traffic. He spoke with the defendant, who told him that the witness’s car had struck him; however, according to the officer, the witness’s car was in the proper lane. During the conversation, the officer noticed that the defendant had “a moderate odor of alcohol coming from his breath, his eyes were bloodshot and glassy, he had slurred speech, and to me he looked impaired. . . . He was unsteady on his feet and when he approached the sidewalk he stumbled off the sidewalk.” Believing that the defendant was “impaired and intoxicated,” Scichilone placed him under arrest. Thomas Moran, a Waltham police sergeant who booked the defendant, essentially corroborated Scichilone’s testimony regarding the defendant’s sobriety.
Improper opinion testimony. The defendant first argues that Sergeant Moran erroneously was permitted to testify to his opinion that the defendant’s ability to operate a motor vehicle safely had been impaired due to the consumption of alcohol. Moran first testified that the defendant had trouble spelling his own name, was confused about whether or not he lived in an apartment, misspelled his mother’s name, and incorrectly stated his zip code. A series of questions from the prosecutor followed:
The prosecutor: “And after those observations that you made about his physical appearance, the smell, and the statements, did you come to any conclusions about his level of sobriety?”
The witness: “I did.”
The prosecutor: “And what conclusion did you come to?”
The witness: “I –”
Defense counsel: “Objection, Your Honor.”
The court: “I’ll sustain it to the form of the question as opposed to a conclusion . . . .”
The prosecutor: “What opinion did you form?”
The witness: “I formed the opinion that he was intoxicated and that his ability to safely operate a motor vehicle had been impaired due to the consumption of an alcoholic beverage.”
Defense counsel: “Objection, Your Honor.”
The court: “Well, [even to] the rendering of the opinion, right, noted and overruled.”
Counsel did not clarify the objection, and the trial proceeded.
The prosecutor’s question was proper: the officer’s opinion about the defendant’s level of sobriety was admissible. The officer’s additional response, including his opinion about the defendant’s ability to drive safely, and the cause of any impairment, was not admissible, because, in so responding, the officer spoke directly to one of the ultimate issues in the case. See Commonwealth v. Jones, 464 Mass. 16, 17 n.1 (2012) (“In a prosecution for operating a motor vehicle while under the influence of alcohol, lay witnesses, including police officers, may not opine as to the ultimate question whether the defendant was operating while under the influence, but they may testify to his apparent intoxication”); Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (“[A] lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant’s level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle under the influence of alcohol or whether the defendant’s consumption of alcohol diminished his ability to operate a motor vehicle safely”). See also Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 842 n.10 (2012) (“Opinion testimony may ‘touch’ on an ultimate issue in the case, Commonwealth v. Cruz, 413 Mass. 686, 690 ; Commonwealth v. Cyr, 425 Mass. 89, 96 , if couched in appropriate language, but an expert cannot directly speak to, or express a point-of-view about, the issue of the defendant’s guilt or innocence. Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 579 . Commonwealth v. Grisset, 66 Mass. App. Ct. 454, 457-458 “).
In this case, however, defense counsel did not explain to the judge the basis for her objection, and looking at the context, it is clear that the judge understood the objection to go to the form of the question and to the fact that the officer’s answer was harmful to the defendant. If, in fact, counsel intended to raise the issue of the officer’s testimony addressing one of the ultimate issues, she should have brought that issue to the judge’s attention in order to have it addressed at the time. See Commonwealth v. Marshall, 434 Mass. 358, 365 (2001). “As a general matter, timely objection at trial is required to preserve a claim of error in the admission of evidence.” Commonwealth v. Lenane, 80 Mass. App. Ct. 14, 19 (2011). “The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the [fact finder's] consideration evidence which has no place in the trial.” Ibid., quoting from Abraham v. Woburn, 383 Mass. 724, 726 n.1 (1981). Nor did counsel move to strike the improper portion of the answer. Cf. Commonwealth v. Stewart, 450 Mass. 25, 36 (2007).
“Generally, we do not consider issues which were not preserved at trial.” Commonwealth v. Young, 401 Mass. 390, 404 (1987), citing Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982). Unpreserved claims of error are reviewed only to determine if they created a “substantial risk of miscarriage of justice.” Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). See Commonwealth v. Lennon, 399 Mass. 443, 448 n.6 (1987); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We are persuaded that there was no substantial risk of a miscarriage of justice here. The impermissible portion of the officer’s testimony was very brief, and the Commonwealth’s case was very strong. In our view, it is highly unlikely that the booking sergeant’s opinion on the ultimate was a decisive factor in the judge’s finding. “A trial judge sitting without a jury is presumed, absent contrary indication, to have correctly instructed himself as to the manner in which evidence is to be considered in his role as a factfinder.” Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002). See Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 580 (1998).
Jury Waiver. a. Background. The defendant next argues that the judge’s failure to conduct a second jury waiver colloquy or to procure a second written waiver from the defendant for the subsequent offense phase of the trial constitutes reversible error. Before the trial on the underlying offense began, the judge conducted a thorough colloquy with the defendant, explaining to him his right to have his case tried by a jury. In the colloquy, the judge began with the words, “I understand you wish to give up your absolute right to have a jury trial in this case” (emphasis added). The defendant submitted a written waiver, giving up his right to a jury trial. The waiver carried the docket number of the complaint. The complaint itself listed only one criminal charge along with two civil motor vehicle infractions.
Later that same day, after the judge found the defendant guilty of the underlying offense, the judge said to defense counsel, “And how are we going to proceed next?” Counsel responded, “We’re going to do a bifurcated trial.” The judge then inquired “[a]nd satisfied with the prior waiver with the gentleman?” and counsel answered “yes.” What followed, the evidentiary portion of the subsequent offense phase of the trial, occupies six pages of transcript. The arresting officer was recalled to the witness stand and asked to identify the defendant. The prosecutor then offered five exhibits, including a certified copy of a prior conviction record, asking to have it marked as an exhibit with a number. The judge, stressing that this part of the trial was a “separate proceeding” from the trial on the underlying offense, explained that the document would be marked as an exhibit with a letter, rather than a number. There was no objection. The next exhibit, consisting of “certified records from the Registry of Motor Vehicles,” was admitted after a brief argument on its admissibility on the ground that it violated the defendant’s right of confrontation under the Sixth Amendment to the United States Constitution. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Two more exhibits, certified copies of convictions under seal, from the Framingham and Waltham District Courts respectively, were admitted over the same objection. The final exhibit, a certified copy of a conviction from Florida was also admitted over objection, along with a copy of the Florida statute governing operating under the influence.
The judge then offered to take a recess so that defense counsel could consult with her client. After a time, when defense counsel stated that she was ready, both the prosecutor and defense counsel gave closing arguments. Defense counsel reiterated her Sixth Amendment objections and also noted what she alleged were various infirmities in the authentication of the documents offered. The judge responded with questions, and considerable exchange took place among both counsel and the judge, most of it relating to the admissibility of the documents. The judge then stated that he was satisfied that the Commonwealth had proven “beyond a reasonable doubt three prior admissions to or convictions for operating under the influence of alcohol or comparable offenses.”
b. Discussion. “Under G. L. c. 278, § 11A, a defendant ‘charged with a crime for which more severe punishment is provided for second and subsequent offenses’ who pleads guilty or is found guilty after trial, ‘shall be further inquired of for a plea of guilty or not guilty to that portion of the complaint . . . alleging that the crime charged is a second or subsequent offense’ before sentence is imposed. If the defendant pleads not guilty, he is ‘entitled to a trial by jury of the issue of conviction of a prior offense . . .[or] may waive trial by jury.’” Commonwealth v. Pelletier, 449 Mass. 392, 396 (2007). The statute states specifically that the trial on the issue of conviction of a prior offense is “subject to all the provisions of law governing criminal trials.” See Commonwealth v. Kulesa, 455 Mass. 447, 457 (2009). “The statute, in other words, requires a defendant to be tried in a two-step, bifurcated procedure: ‘first, on the underlying substantive crime and, then, in a separate proceeding, on that component of the charge referring to the crime as a second or subsequent offense.’” Commonwealth v. Pelletier, 449 Mass. 392, 396 (2007), quoting from Commonwealth v. Miranda, 441 Mass. 783, 788 (2004). The same, bifurcated proceeding takes place “when a defendant pleads guilty to the underlying offense, the difference being that the first step is a plea hearing, rather than a trial.” Commonwealth v. Pelletier, supra.
The issue here is what is required of the judge when the defendant wishes a trial in both phases of the bifurcated proceeding, but waives his right to a jury. There are no reported cases directly on point. We are guided, however, by the reasoning of the Supreme Judicial Court in Commonwealth v. Pelletier, supra, and by our own analysis in Commonwealth v. Hernandez, 42 Mass. App. Ct. 780 (1997). In Commonwealth v. Pelletier, supra at 397-398, the court stated, “Where a defendant is pleading guilty, we do not read the statute as requiring that a judge conduct an entirely new plea colloquy during the second step of the bifurcated proceeding. The preliminary questioning conducted at the outset of the plea hearing on the underlying offense need not be repeated, so long as the judge makes clear, and the defendant understands, that the preliminary questioning applies equally to the plea on the subsequent offense portion of the charge as well.”
In Commonwealth v. Hernandez, supra, there were in fact two separate trials, on two separate complaints, where each complaint charged the defendant with possession with intent to distribute a Class A substance and with distribution of a Class A substance within 1,000 feet of a school. See id. at 781. Under all of the circumstances of that case, we were satisfied that one colloquy at the outset was adequate to preserve the defendant’s rights. Id. at 786 (“It is clear from this record that the colloquy between the judge and the defendant referred to the jury waivers in both trials”). As we observed in Hernandez, to require a colloquy and written waiver prior to each proceeding “would elevate form over substance.” Ibid. In the present case, there was one trial and one charge, split into two components only because the prior offenses related solely to the penalty phase of the trial.
We also have in mind that the initial colloquy was complete and the defendant does not challenge it. At the end of the first phase of the trial, the judge inquired about the second phase and the jury waiver. In response, counsel explicitly waived the jury for that second part of the trial. We are satisfied that this procedure was adequate to safeguard the defendant’s rights in this case.
Moreover, the defendant here did not file a motion for a new trial and presented nothing, in affidavit form or otherwise, to indicate that he did not understand that he had a right to a jury trial on the subsequent offense portion of the charge, or that he would have chosen such a trial, or what he might have hoped to accomplish in such a trial. It is difficult to see that a jury trial might have made a difference for him. The nature of the subsequent offense portion of the trial that took place, which was largely a legal argument about the rules of evidence and the defendant’s Sixth Amendment right to confrontation, would not have lent itself to credibility or other arguments one would expect to make to a jury. Therefore, even if there was error, we are persuaded that it was harmless beyond a reasonable doubt. See Commonwealth v. Nwachukwu, 65 Mass. App. Ct. 112, 118-119 (2005).
The published cases cited by the defendant do not help him. In Commonwealth v. Dussault, 71 Mass. App. Ct. 542, 543 (2008), in the initial phase of the trial, a jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor. Thereafter, the judge failed to conduct a jury waiver colloquy or to procure a written waiver from the defendant for the subsequent offense portion of the trial, which was to be jury-waived. Id. at 547. In Commonwealth v. Zuzick, 45 Mass. App. Ct. 71, 73 (1998), we determined that there was “no trial, either before a jury or the judge on [the subsequent offense] portion of the complaint.” Neither Ciummei v. Commonwealth, 378 Mass. 504, 504-505 (1979), nor Commonwealth v. Pavao, 423 Mass. 798, 801-802 (1996), is applicable to the facts of this case, as neither involved a so-called bifurcated trial, and in neither case was there any colloquy at all.
 The Commonwealth moved to amend the complaint to reduce the fifth offense charge to a fourth offense, and the motion was allowed.
Defense counsel had objected earlier when Scichilone was asked to give an opinion about the defendant’s sobriety.
None of the exhibits is included in the record before this court, and the defendant raises no issue as to any of them.
In the future, the better practice would be to require an explicit acknowledgment on the record from the defendant that he understands that he has a right to a trial by jury in each part of the bifurcated trial, and that he understands that he is waiving that jury trial right for both parts.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
BRIAN MICHAEL OLMSTEAD vs. DEPARTMENT OF TELECOMMUNICATIONS AND CABLE & others.
Suffolk. September 9, 2013. ‑ December 4, 2013.
Present: Ireland, C.J., Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
Supreme Judicial Court, Appeal from order of single justice. Telecommunications. Public Utilities, Telecommunications, Judicial review. Administrative Law, Judicial review, Agency’s interpretation of statute. Due Process of Law, Appeal. Statute, Construction. Practice, Civil, Dismissal of appeal, Moot case.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 15, 2011.
A motion to dismiss was considered by Spina, J., and a motion for reconsideration was considered by him.
Brian Michael Olmstead, pro se.
Suleyken D. Walker, Assistant Attorney General, for the Department of Telecommunications and Cable.
Alexander W. Moore, for Verizon New England, Inc., & another, was present but did not argue.
CORDY, J. In this case, we are asked to decide if the single justice erred, first, in concluding that G. L. c. 25, § 5, governs judicial review of a final order by the Department of Telecommunications and Cable regarding a consumer telephone service complaint and, second, in dismissing the plaintiff’s complaint because it failed to comply with the timely filing requirements of G. L. c. 25, § 5. We affirm the single justice’s ruling that G. L. c. 25, § 5, applies to such appeals. However, because the plaintiff was afforded a renewed opportunity to pursue an appropriate and timely appeal under G. L. c. 25, § 5, and has chosen to do so, we dismiss this case as moot.
1. Background. a. The plaintiff’s initial claims. This case arises from a consumer dispute regarding billing practices and quality of telephone, cable television, and Internet service provided by Verizon New England, Inc., to the plaintiff, a residential customer. In December, 2009, the plaintiff filed an appeal and a claim for an adjudicatory hearing with the department, alleging that Verizon New England had violated the department’s Rules and Practices Relating to Telephone Service to Residential Customers, and had otherwise engaged in unfair and deceptive business practices. The matter was assigned to a hearing officer, and after a tortuous procedural history, the claim was dismissed as moot because, in the course of the proceedings, the plaintiff’s customer relationship with Verizon New England had been terminated due to continuous nonpayment. The plaintiff appealed the hearing officer’s decision to the Commissioner of the department, pursuant to 220 Code Mass. Regs. § 1.06(6)(d)(3) (2008). On August 15, 2011, the Commissioner affirmed the ruling, on the ground that no relief remained available to the plaintiff once he ceased being a Verizon New England customer, and issued a final order denying the plaintiff’s appeal.
b. Appellate proceedings. Following the Commissioner’s final order, the plaintiff filed a complaint for judicial review of final agency action and for other relief with a single justice of the county court, articulating as the basis for jurisdiction our certiorari statute, G. L. c. 249, § 4. The department argued that the county court lacked jurisdiction and that the complaint should be dismissed because the plaintiff’s appeal was governed by G. L. c. 25, § 5, and the plaintiff had failed to comply with its terms. The single justice concluded that the appeal was governed by G. L. c. 30A, § 14, and ordered the case transferred to Superior Court. However, on the department’s motion for reconsideration, the single justice held that the appeal is properly governed by G. L. c. 25, § 5, and within the jurisdiction of the county court, and vacated the order of transfer to the Superior Court. The single justice then dismissed the plaintiff’s complaint, concluding that his failure to file the appeal within twenty days of service of the department’s final order, in violation of the requirements of G. L. c. 25, § 5, constituted a jurisdictional defect. The plaintiff appealed to the full court, pursuant to G. L. c. 231, § 114.
The department’s regulations require that it provide notice that an appeal from a final order or decision is governed by G. L. c. 25, § 5. See 220 Code Mass. Regs. § 1.13 (2008). During oral argument before this court, it became clear that the department had not included such notice in the final order it issued to the plaintiff. The department reissued the August 15, 2011, final order, dating it September 18, 2013, and including the previously omitted notice of a right to appeal pursuant to G. L. c. 25, § 5. Two days later, the department filed in this court a motion to stay appellate proceedings, on the ground that it had given the plaintiff a renewed opportunity to pursue an appeal pursuant to G. L. c. 25, § 5. We granted the motion to stay to enable the plaintiff to file a timely appeal of the September 18, 2013, order pursuant to G. L. c. 25, § 5, without waiving his arguments in this case, and subsequently denied the plaintiff’s motion for reconsideration of the order staying the proceedings. We now lift the stay and proceed to decide the central procedural issue in the case.
2. Discussion. On appeal, the plaintiff argues that the single justice’s decision to dismiss his complaint on the ground that he failed to comply with the timely filing requirements of G. L. c. 25, § 5, was error because his appeal is governed by G. L. c. 30A, § 14, and therefore requires a transfer to the Superior Court for proceedings on the merits, or alternatively, due process requires that he be afforded the opportunity to pursue a proper appeal pursuant to G. L. c. 25, § 5, because the department initially failed to notify him of his right to appeal under this statute. The department argues that the single justice did not err in concluding that G. L. c. 25, § 5, governs, and asks that we affirm the single justice’s dismissal of the plaintiff’s complaint. We agree with the department that G. L. c. 25, § 5, is the applicable judicial review provision, and conclude that the plaintiff’s complaint here is rendered moot by his subsequent timely filing of a proper appeal.
a. Applicable statute. We first address whether G. L. c. 25, § 5, or G. L. c. 30A, § 14, applies. This question is significant because appeals pursuant to G. L. c. 25, § 5, are entered with the single justice of the Supreme Judicial Court, whereas appeals pursuant to G. L. c. 30A, § 14, are filed in Superior Court.
We begin by analyzing the impact on the statutory scheme governing the department of a reorganization statute (act) enacted in 2007. See St. 2007, c. 19, §§ 21-50. The act divided the responsibilities of the former Department of Telecommunications and Energy into the reformed Department of Public Utilities and a new Department of Telecommunications and Cable. See id. It accomplished this by revising the definition of “department” in numerous chapters, including chapters 160, 161, and 166, to refer to either the Department of Public Utilities or the Department of Telecommunications and Cable. See id. at §§ 32, 33, 43. Further, the Act inserted chapter 25C to create the Department of Telecommunications and Cable and to task it with “the general supervision of telephone and telegraph companies subject to chapter 166 and community antenna television systems as defined in section 1 of chapter 166A.” G. L. c. 25C, § 1, inserted by St. 2007, c. 19, § 29. The Act also brought two divisions under the Department of Telecommunications and Cable: a new division of telecommunications, provided for in G. L. c. 25C, §6, and the existing division of community antenna television, provided for in G. L. c. 166A, § 2. St. 2007, c. 19, §§ 29, 50. Therefore, the Department of Public Utilities and the Department of Telecommunications and Cable, including its two divisions, now fulfil the responsibilities previously held by the Department of Telecommunications and Energy.
General Laws c. 25C, the enabling statute for the Department of Telecommunications and Cable, does not contain a provision for judicial review of final department orders. As a result, we turn to the other chapters in the statutory scheme. The department argues that G. L. c. 166A, § 2, expressly states that appeals from all department orders are governed by G. L. c. 25, § 5. The plaintiff contends that G. L. c. 166 (relating to the regulation of telephone companies) does not contain a similar provision and, further, that because the department’s enabling statute (G. L. c. 25C) does not contain a provision for judicial review, the Administrative Procedures Act, G. L. c. 30A, § 14, applies as the default. In support of his argument, he argues, in essence, that G. L. c. 25C should be read to mean that the provisions of G. L. c. 166A apply only to community antenna television systems. Were we to follow his line of reasoning, appeals from final orders relating to telephone and telegraph services would be governed by G. L. c. 30A, § 14, as G. L. c. 166 contains no judicial review provision, whereas appeals from final orders relating to cable services would be governed by G. L. c. 25, § 5, as dictated by G. L. c. 166A, § 2.
We are not persuaded, however, that in drafting G. L. c. 25C, § 1, the Legislature intended such parsing of appellate routes based on the type of service. Rather, the plain meaning of the revised statutes, the historical statutory scheme, and the department’s own interpretation of the statutes suggest that appeals from all final department orders are governed by G. L. c. 25, § 5, at the direction of G. L. c. 166A, § 2.
i. Plain meaning. “A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Sullivan v. Brookline, 435 Mass. 353, 360 (2001). Thus, we give effect to a statute’s “plain and ordinary meaning” where the statute’s words are clear. Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637, 640 (2000).
The 2007 Act altered the definition of “department” in G. L. c. 166A, § 1, from “department of telecommunications and energy established pursuant to chapter 25″ to “department of telecommunications and cable established by chapter 25C.” G. L. c. 166A, § 1, as amended by St. 2007, c. 19, § 49. By redefining “department” in this way for the purposes of G. L. c. 166A, the Legislature created a clear link between the new G. L. c. 25C and the existing G. L. c. 166A.
Since 1997, G. L. c. 166A, § 2, has employed the term “department” in defining a process for judicial review. See G. L. c. 166A, § 2, as amended by St. 1997, c. 164, § 273. The section currently provides: “Except as otherwise provided in this chapter, appeals taken from the orders of the department shall be taken in the same manner and according to the same procedure for the department of public utilities established in section 5 of chapter 25″ (emphasis added). G. L. c. 166A, § 2.
It is only logical to employ the definition of “department” provided in G. L. c. 166A, § 1, to the term where it is used elsewhere in the chapter. See Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 339 (2007) (“We construe the provisions of the Act in connection with the purpose of its enactment and as a harmonious whole”); Opinion of the Justices, 313 Mass. 779, 782 (1943), quoting G. L. (Ter. Ed.) c. 4, § 6, Third (“technical words and phrases . . . as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning”).
Accordingly, the word “department” in the judicial review provision of G. L. c. 166A, § 2, must refer to the entire Department of Telecommunications and Cable. Although the placement of this judicial review provision may be confusing, its meaning is nonetheless clear: the provisions of G. L. c. 166A, § 2, pertaining to judicial review extend to all final department orders.
This interpretation is further supported by what the Legislature did not change in its recent amendments to G. L. c. 166A, §§ 1 and 2. We find it significant that the Legislature modified G. L. c. 166A, § 2, in 2007 and again in 2008 without replacing the word “department” with a more narrow term. See St. 2007, c. 19, § 50 (replacing first paragraph of G. L. c. 166A, § 2, but preserving word “department”); St. 2008, c. 522, § 22 (same). See also St. 2008, c. 522, § 21 (removing definition of “commission” from G. L. c. 166A, § 1, but preserving 2007 definitions of “division” and “department”). Had the Legislature meant to limit the reach of this provision, it could have employed the word “division” or another more restrictive term.
ii. Historical statutory scheme. Our interpretation is consistent with the previous versions of the statute. See Commonwealth v. Welosky, 276 Mass. 398, 401 (1931), cert. denied, 284 U.S. 684 (1932) (“Statutes are to be interpreted . . . in connection with their development . . .”). Prior to the 2007 revisions, G. L. c. 25 applied to the Department of Telecommunications and Energy as a whole. See St. 2007, c. 19, § 21 (changing “telecommunications and energy” in c. 25, § 1, to “public utilities”). General Laws c. 25, § 5, which sets forth a detailed procedure for appealing a final department decision or order, remained unchanged by the 2007 revisions. Thus, prior to 2007, all appeals from the former Department of Telecommunications and Energy were governed by G. L. c. 25, § 5. Although the 2007 revisions divided the responsibilities of the Department of Telecommunications and Energy into two departments, the indication in G. L. c. 166A, § 2, that appeals should “be taken in the same manner . . . as set forth with respect to the department of public utilities” suggests a legislative intent to retain some uniformity across the two new departments. See Hallett v. Contributory Retirement Appeal Bd., 431 Mass. 66, 69 (2000). Parsing appeals by division within the Department of Telecommunications and Cable would frustrate such an intent.
We therefore discern no clear indication in the 2007 or 2008 revisions that the Legislature intended to exclude only those appeals relating to telecommunications from the appeals procedures employed by the former Department of Telecommunications and Energy. Cf. Springfield v. Department of Telecomm. & Cable, 457 Mass. 562, 563 & n.3 (2010) (recognizing that G. L. c. 166A, § 2, governs “appeals seeking judicial review of decisions of the Department of Telecommunications and Cable” in context of appeal by cable television service provider from cable rate decision).
iii. The department’s interpretation. In addition, the department’s regulations are consistent with this reading of the statutory scheme. See 220 Code Mass. Regs. 1.13 (“Department shall notify all parties of their right to appeal a final decision of the Department pursuant to [G. L.] c. 25, § 5, and of the time limits on their rights to appeal”). Thus, the department has properly given effect to the Legislature’s expressed intent. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 & n.9 (1984) (Chevron). Even if the intent of the Legislature were not so clear, we give deference to a reasonable interpretation by the agency implementing the statute, and would find the agency’s reading of the statutory scheme to be reasonable here. See id. at 843-844 & n.11; Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 228-229 (2012); Goldberg v. Board of Health of Granby, 444 Mass. 627, 633-634 (2005). Cf. Briggs v. Commonwealth, 429 Mass. 241, 252-253 (1999), citing Chevron, supra at 842 (deferring to reasonable interpretation by agency interpreting ambiguous statutory scheme).
Accordingly, we conclude that the single justice did not err in concluding that G. L. c. 25, § 5, governs appeals of final orders issued by the Department of Telecommunications and Cable to consumers.
b. The single justice’s dismissal of complaint. We next address whether the plaintiff is entitled to reinstatement of his complaint and relief on the merits. When this case initially came before us, the department had failed to include in its final order clear notice to the plaintiff of his right to appeal pursuant to G. L. c. 25, § 5. Such notice is required by the department’s regulations. See 220 Code Mass. Regs. § 1.13. However, by reissuing its final order with notice of the proper procedure for appeal, the department provided the plaintiff with precisely the relief he sought before the full court: an opportunity to pursue his appeal.
In response, the plaintiff has filed a new petition for judicial review within the time period required by G. L. c. 25, § 5. As a result, there is no longer a controversy before us. See Caputo v. Board of Appeals of Somerville, 330 Mass. 107, 111 (1953), quoting Tennessee v. Condon, 189 U.S. 64, 71 (1903). See also Lockhart v. Attorney Gen., 390 Mass. 780, 782-783 (1984). His complaint here is properly dismissed as moot, and he now may proceed with his new petition through the proper channels. Cf. Moe v. Sex Offender Registry Bd., 444 Mass. 1009, 1009-1010 (2005) (appeal from dismissal of untimely request for judicial review was dismissed as moot because plaintiff was offered new opportunity to file timely and proper appeal); Matter of Sturtz, 410 Mass. 58, 58-59 (1991) (appeal of guardianship appointment was dismissed as moot because guardianship had been discharged by lower court after appeal was filed).
3. Conclusion. We affirm the ruling of the single justice that G. L. c. 25, § 5, governs appeals from final orders issued by the Department of Telecommunications and Cable. Because the plaintiff has filed a new appeal pursuant to G. L. c. 25, § 5, which the department concedes is timely following the reissuance of its final order, the remainder of the matter before us has become moot. The case is remanded to the county court for an entry of judgment dismissing the complaint as moot. The plaintiff is free to proceed with his new petition.
 Verizon New England, Inc., and Verizon Communications, Inc.
 Except as otherwise indicated, we shall refer to the Department of Telecommunications and Cable as “the department.”
 The Rules and Practices Relating to Telephone Service to Residential Customers (rules) are template rules regarding billing practices and account termination promulgated by the department that Verizon New England has acknowledged are binding on its provision of telephone services. See Department of Telecommunications and Cable, General Filing Information (rev. May 2010); D.P.U. 18448 (1977; rev. July 11, 2000). These rules have not been revised since the 2007 reorganization of the regulation of telecommunications; therefore, references in the rules to the “Department of Public Utilities” likely refer to what became known as the Department of Telecommunications and
Energy in 1997 and was replaced by the Department of Public Utilities and the Department of Telecommunications and Cable in 2007. See infra at  n.8, and accompanying text.
 General Laws c. 249, § 4, states in pertinent part: “A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court . . . .”
 We recognize that it was within the department’s authority to correct its error by reissuing the final order. “In the absence of statutory limitations, administrative agencies generally retain inherent authority to reconsider their decisions.” Moe v. Sex Offender Registry Bd., 444 Mass. 1009, 1009 (2005), citing Stowe v. Bologna, 32 Mass. App. Ct. 612, 615
(1992), S.C., 415 Mass. 20 (1993). In the future, every final order should be accompanied by proper notice of the right to appeal and the governing statute. This not only complies with the agency’s own regulations but also ensures that consumers, many of whom may be unrepresented by counsel, have appropriate notice of the appeals process. See 220 Code Mass. Regs. § 1.13 (2008).
 General Laws c. 25, § 5, provides, in pertinent part:
“An appeal as to matters of law from any final decision, order or ruling of the commission may be taken to the supreme judicial court [sitting in Suffolk county] by an aggrieved party in interest by the filing of a written petition praying that the order of the commission be modified or set aside in whole or in part.”
General Laws c. 25, § 2, defines the commission as “the commonwealth utilities commission,” which supervises the Department of Public Utilities. General Laws c. 25, § 5 has employed the same language regarding judicial review since 1953. See G. L. c. 25, § 5, inserted by St. 1953, c. 575, § 1.
 General Laws c. 30A, § 14, provides a default judicial review provision: “Where no statutory form of judicial review or appeal is provided, judicial review shall be obtained by means of a civil action . . . . (1) Proceedings for judicial review of an agency decision shall be instituted in the superior court . . . .”
 Prior to 1997, the Department of Telecommunications and Energy was called the Department of Public Utilities. See Providence & Worcester R.R. Co. v. Energy Facilities Siting Bd., 453 Mass. 135, 136 n.3 (2009), citing St. 1997, c. 164, § 201, amending G. L. c. 164, § 69G.
 General Laws c. 25C, § 6, provides: “The division [of telecommunications] . . . shall perform functions that the commissioner [of the Department of Telecommunications and Cable] may determine in relation to the administration, implementation, and enforcement of the department’s authority over the telecommunications industry, including, but not limited to, the authority granted by chapters 25, 30A, 159 and 166.”
 A dedicated community antenna television unit has existed in some form since 1971. When the Legislature inserted G. L. c. 166A in 1971, with the purpose of providing for the regulation of television, it established a community antenna television
commission within the Executive Office of Consumer Affairs. See G. L. c. 166A, § 2, inserted by St. 1971, c. 1103, § 1. This commission was authorized “to call on the staff of the department of public utilities or any other state or federal agency for administrative and investigatory services and technical advice.” Id. In 1979, the Legislature removed the authorization for the commission to work with other agencies. See G. L. c. 166A, § 2, as amended by St. 1979, c. 670, § 2. In 1997, the commission became a division of community antenna television in the Department of Public Utilities. See G. L. c. 166A, § 2, as amended by St. 1997, c. 43, § 111. Later that year, a subsequent amendment placed the division under the Department of Telecommunications and Energy, presumably as part of the renaming of the Department of Public Utilities. See G. L. c. 166A, § 2, as amended by St. 1997, c. 164, § 273. The 2007 amendment placed the division under the purview of the new Department of Telecommunications and Cable. See G. L. c. 166A, § 2, as amended by St. 2007, c. 19, § 50.
 The language introduced by the Legislature in 1997 stated in pertinent part: “Except as otherwise provided in this chapter, appeals taken from orders of the department shall be governed by section 5 of chapter 25.” G. L. c. 166A, § 2, as amended by St. 1997, c. 164, § 273. This wording was preserved in a 2002 amendment to the section. See G. L. c. 166A, § 2, as amended by St. 2002, c. 45, § 4. The 2007 Act retained this directive, but modified the last phrase to indicate explicitly that the Department of Telecommunications and Cable (as defined in G. L. c. 166A, § 1, by the 2007 Act) and the Department of Public Utilities should share a judicial review process. See G. L. c. 166A, § 2, as amended by St. 2007, c. 19, § 50. The modified language provided that appeals “shall be taken in the same manner and according to the same procedure as set forth with respect to the department of public utilities in section 5 of chapter 25.” See id. A 2008 amendment further modified this language by removing “as set forth with respect to” so that the end of the sentence now states: “according to the same procedure for the department of public utilities established in section 5 of chapter 25.” See G. L. c. 166A, § 2, as amended by St. 2008, c. 522, § 22.
 We recognize that the titles of the provisions at issue lend some confusion to this analysis. General Laws c. 166A is titled “community antenna television systems”; G. L. c. 166A, § 2, is titled “division of community antenna television”; and even G. L. c. 25C, § 1, makes reference to G. L. c. 166A in the context of community antenna television systems. Although we have recognized that the title of an act or statutory provision may be helpful in clarifying ambiguity, see Baldiga v. Board of Appeals of Uxbridge, 395 Mass. 829, 835 (1985), or identifying the act’s “proper limitations,” Commonwealth v. Graham, 388 Mass. 115, 120 (1983), the title may not replace or limit otherwise clear language in the act itself. American Family Life Assur. Co. v. Commissioner of Ins., 388 Mass. 468, 474, cert. denied, 464 U.S. 850 (1983), and cases cited (“the title of an act cannot control the plain provisions of the act”).
 An exception to this overarching application of G. L. c. 25, § 5, was to appeals from orders regarding cable rates. Prior to 2008, such appeals were required to be filed in the Suffolk County Superior Court. G. L. c. 166A, § 15, inserted by St. 1971, c. 1103, § 1 (“Any person or company aggrieved by any action, order, finding or decision of the commission under this section may, within ninety days from the filing of such memorandum thereof with the commission, file a petition in the superior court for the county of Suffolk for a review of such action, order, finding or decision”). In 2008, however, the Legislature amended the statute to remove this exception. G. L. c. 166A, § 15, as amended by St. 2008, c. 522, §§ 33, 34 (removing fourth paragraph of § 15 and replacing “division” with “department”). As a result, appeals from final cable rate orders are now governed by G. L. c. 25, § 5. See Springfield v. Department of Telecomm. & Cable, 457 Mass. 562, 563 n.3 (2010). See also G. L. c. 166A, § 15 (providing Superior Court only with equity jurisdiction to enforce department’s orders).
 The plaintiff asserts that the department has failed to provide notice to any consumers regarding the right to appeal pursuant to G. L. c. 25, § 5, since the 2007 amendment. In support of this claim, he offers numerous examples of final orders and decisions from the department. Some of these contain a general notice of the right to appeal that states: “Appeals of any final decision, order or ruling of the Department of Telecommunications and Cable may be brought pursuant to applicable state and federal laws.” At least one, however, contains the specific language of and reference to G. L. c. 25, § 5. We agree with the plaintiff that it is imperative that the department provide explicit and accurate notice of the right to appeal and the governing provisions; however, we do not agree that these inconsistencies demonstrate that the department has never provided appropriate notice to consumers in the plaintiff’s situation.
 We are aware that this reading of the statutory scheme may result in an influx of consumer complaints appealed from the department to the single justice, and then appealable to the full court. We urge the Legislature to assess whether this was its true intention with respect to residential consumer complaints. Cf. Commonwealth v. Florence F., 429 Mass. 523, 523, 527 (1999) (encouraging Legislature to revisit statute that limited Juvenile Court’s enforcement powers by prohibiting court from charging minor with criminal contempt). We note also that G. L. c. 211, § 4A, permits this court to “transfer for partial or final disposition in any appropriate lower court any cause or matter which might otherwise be disposed of by a single justice.” We read this provision to mean that a single justice may, in his or her discretion, transfer a complaint filed pursuant to G. L. c. 25, § 5, for resolution by the lower courts. See Callahan v. Board of Bar Overseers, 417 Mass. 516, 519-520 (1994); Empire Apartments, Inc. v. Gray, 353 Mass. 333,334-335 (1967).
 Under G. L. c. 25, § 5, an aggrieved party must file a petition for appeal within twenty days of the date of service of the final decision, order, or ruling. Within ten days after so filing, the appealing party must “enter the appeal in the supreme judicial court sitting in Suffolk county.” Id. The plaintiff filed his petition for appeal with the department on October 22, 2013, and entered his appeal with the single justice on October 29, 2013.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
12‑P‑478 Appeals Court
Suffolk. October 10, 2012. ‑ December 4, 2013.
Present: Kafker, Cohen, & Trainor, JJ.
Agency, Agent’s contract, Scope of authority or employment. Contract, Settlement agreement, Construction of contract, Contract clause, Merger. Escrow.
Civil action commenced in the Superior Court Department on January 13, 2009.
A motion for approval of a settlement agreement was heard by Judith Fabricant, J., and entry of a separate and final judgment was ordered by her.
Steven M. Cowley for the plaintiff.
Harvey E. Bines for CID Equity Capital VIII, LP, & others.
Richard D. Batchelder, Jr., for Astra Tech, Inc.
TRAINOR, J. Douglas G. Bailey, as shareholders’ agent (shareholders’ agent) of the shareholders of Atlantis Components, Inc. (Atlantis), appeals from a judgment of the Superior Court that (1) approved the settlement between Astra Tech, Inc. (Astra Tech), and a group of former shareholders of Atlantis (settling shareholders), and (2) ordered distribution of the settling shareholders’ proportional share of an escrow fund. The only issue before us is whether the settling shareholders had the power to negotiate this settlement with Astra Tech. Claiming that they do not have this authority, the shareholders’ agent makes three arguments: first, that there is no procedural mechanism that allows the settling shareholders to settle with Astra Tech; second, that under the merger agreement, he has the exclusive right to negotiate with Astra Tech; and third, that his agency is irrevocable because he has a power coupled with an interest. We reject these arguments and affirm the judgment of the Superior Court.
Background. In October of 2007, Astra Tech acquired Atlantis by a stock purchase merger for $ 71 million. As is common, the parties placed a portion ($ 6.3 million) of the purchase price into an escrow fund, which would be disbursed to the former Atlantis shareholders on a pro rata basis on December 31, 2008, the release date. The escrow fund’s purpose was to indemnify Astra Tech if it paid any claims asserted against Atlantis after the closing date but before the release date. The merger agreement designated a shareholders’ agent to serve as the representative of the former Atlantis shareholders. It was the shareholders’ agent’s duty either to approve Astra Tech’s indemnification claim on the escrow fund or to challenge it. The merger agreement also created a $ 100,000 representative’s fund, from which the shareholders’ agent would be reimbursed for fees, expenses, and costs incurred while performing his duties as shareholders’ agent.
In a letter to Atlantis dated August 23, 2007 (about one month before execution of the merger agreement), Atlantis’s competitor, Nobel Biocare USA, LLC (Nobel), alleged that Atlantis was infringing on Nobel’s patents. In a letter dated six days later, Atlantis denied Nobel’s allegations, and on September 6, 2007, Astra Tech was informed of the Nobel claim. In a letter to Atlantis dated September 12, 2007, Nobel reiterated its patent infringement claim and attempted to refute Atlantis’s defenses. Robert G. Stockard, Atlantis’s chief executive officer, never disclosed this second letter, and Astra Tech did not learn of it until October 19, 2007. Alleging fraudulent and intentional misrepresentation against Atlantis for failing to disclose the September 12 letter, Astra Tech made an indemnification claim on the escrow fund for $ 417,992.33., After an initial rebuff by the shareholders’ agent, Astra Tech provided a formal demand for payment in a letter dated December 30, 2008, one day before the release date of the escrow fund. Because Astra Tech did not yet know the cost of defending the Nobel claim, Astra Tech demanded payment of the entire $ 6.3 million in the escrow fund. Stockard, the then-shareholders’ agent, submitted a notice of contention to Astra Tech’s claim, and subsequently filed suit against Astra Tech seeking a declaration that no indemnification was due Astra Tech from the escrow fund. Astra Tech counterclaimed — and brought in numerous third-party defendants, including the settling shareholders — seeking a declaratory judgment that it was entitled to the funds. Also, alleging fraud, breach of contract, and violation of G. L. c. 93A, Astra Tech sought damages, not limited to the former Atlantis shareholders’ proportional share of the escrow funds, directly from the third-party defendants.
As the lawsuit progressed and discovery ensued, Astra Tech’s legal expenses, which were compensable from the escrow fund, ballooned to nearly $ 2.5 million by October of 2010. Faced with potentially high out-of-pocket damages and a rapidly dwindling escrow fund, the settling shareholders opted to settle directly with Astra Tech, using their pro rata share of the escrow fund as payment. After reaching an agreement, the settling shareholders and Astra Tech moved in Superior Court for approval of their settlement. The shareholders’ agent opposed the settlement, on the basis that neither the merger agreement nor the escrow agreement permitted the settling shareholders to seek disbursement absent the consent of the shareholders’ agent. A judge approved the settlement agreement between Astra Tech and the settling shareholders.
The final settlement agreement, as approved by the judge, required that $ 2,453,850, i.e., 38.95 percent (the settling shareholders’ proportional interest in the escrow fund) be released from the escrow fund. Astra Tech would then release its claims against the settling shareholders for $ 973,305.18 of the released funds. In return, the settling shareholders would receive the remaining $ 1,480,544.82, to be distributed according to each settling shareholder’s pro rata share. The judge then ordered judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), and dismissed the third-party claims against the settling shareholders. The shareholders’ agent appeals.
Discussion. The facts here are not in dispute, and the issues generally will be determined by our interpretation of the terms of several agreements. “Because the interpretation of the terms of a contract or agreement is a pure question of law, we exercise de novo review over this issue.” Buchanan v. Contributory Retirement Appeal Bd., 65 Mass. App. Ct. 244, 247 n.5 (2005).
Resolution of this case requires the interpretation and interplay of three contracts between the parties: (1) the escrow agreement between Astra Tech, Atlantis, the shareholders’ agent, and the escrow agent; (2) the merger agreement between Astra Tech, Atlantis, and the shareholders’ agent; and (3) the settlement agreement between Astra Tech and the settling shareholders. In interpreting these agreements, we are guided by the familiar tenets of contract interpretation. “The object of the court is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose.” USM Corp. v. Arthur D. Little Sys. Inc., 28 Mass. App. Ct. 108, 116 (1989). “We must interpret the words in a contract according to their plain meaning.” Dickson v. Riverside Iron Works, Inc., 6 Mass. App. Ct. 53, 55 (1978). In addition, “[w]e must put ourselves in the place of the parties to the instrument and give its words their plain and ordinary meaning in the light of the circumstances and in view of the subject matter.” Polito v. School Comm. of Peabody, 69 Mass. App. Ct. 393, 396 (2007), quoting from deFreitas v. Cote, 342 Mass. 474, 477 (1961).
Escrow agreement. The shareholders’ agent first claims that no procedural mechanism exists to allow the settling shareholders to seek court approval of their settlement. We disagree because the escrow agreement itself provides such a mechanism. The relevant portion of § 3(c)(iii) reads:
“Any Disputed Claim and any other dispute which may arise under this Escrow Agreement with respect to the rights of [Astra Tech] or any other Indemnified Party and the Shareholders’ Agent or the Company Securityholders to the Escrow Fund shall be settled by mutual agreement of [Astra Tech] and the Shareholders’ Agent (evidenced by joint written instructions signed by [Astra Tech] and the Shareholders’ Agent and delivered to the Escrow Agent); provided, however, that upon receipt of a copy of a final and nonappealable order of a court of competent jurisdiction with respect to payment of all or any portion of the Escrow Fund, . . . the Escrow Agent shall deliver the portion of the Escrow Fund specified in such award or order to [Astra Tech] or other Indemnified Party and/or the Shareholders’ Agent for the benefit of the Company Securityholders as directed in such award or order.”
The shareholders’ agent contends that this section authorizes only him and Astra Tech to settle disputed claims, and that the court order referenced after the semicolon simply provides the manner of dispute resolution should they fail to settle. That interpretation ignores the plain meaning of the agreement. “The word ‘provided’ in common speech naturally expresses a qualification, limitation, condition, or an exception respecting the scope and operation of words previously used.” Sears v. Childs, 309 Mass. 337, 345-346 (1941). In conjunction with the word “however,” it is clear that the proviso following the semicolon created an exception to the claim resolution procedure outlined prior to the semicolon. This exception to the settlement provisions permits a court of competent jurisdiction to issue an order to disburse funds, and the court’s power is not limited to resolving a claim dispute where the shareholders’ agent and Astra Tech have failed to settle. Therefore, the escrow agreement provides a mechanism for disbursing the escrow funds in addition to providing a settlement between Astra Tech and the shareholders’ agent.
Merger agreement. Next, the shareholders’ agent contends that under § 8.6(a) and (e) of the merger agreement, he has the exclusive right to negotiate with Astra Tech. Section 8.6(a) provides, in pertinent part:
“[T]he Shareholders’ Agent shall be, and hereby is, appointed and constituted in respect of each Company Securityholder, as his, her or its agent, to act in his, her or its name, place and stead, as such Company Securityholder’s attorney-in-fact, as more fully set forth in this Section 8.6. Without limiting the generality of the foregoing, the Shareholders’ Agent shall be constituted and appointed as agent for and on behalf of the Company shareholders to give and receive notices and communications, to authorize delivery to [Astra Tech] of the monies from the Escrow Fund in satisfaction of claims by [Astra Tech] Indemnified Persons against the Escrow Fund, to object to such deliveries, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Shareholders’ Agent for the accomplishment of the foregoing.”
Section 8.6(e) further delineates the actions that may be taken by the shareholders’ agent:
“A decision, act, consent or instruction of the Shareholders’ Agent shall constitute a decision of all Company shareholders . . . and shall be final, binding and conclusive upon each such Company shareholder, and the Escrow Agent and [Astra Tech] may rely upon any decision, act, consent or instruction of the Shareholders’ Agent as being the decision, act, consent or instruction of each and every such Company shareholder.”
Read together, these sections clearly entrust the shareholders’ agent with broad powers to negotiate and to make decisions for the settling shareholders. The question before us, however, is whether the merger agreement grants the shareholders’ agent not just broad powers, but also the exclusive right to negotiate, which would bar the settling shareholders from negotiating for themselves. This distinction is significant because, “[u]nless the agent was given an exclusive agency, the principal is free to compete with the agent.” Gregory, The Law of Agency and Partnership § 83 (3d ed. 2001).
The shareholders’ agent argues that his rights are exclusive because his decisions and acts “constitute a decision of all Company shareholders” and are “final, binding and conclusive upon each such Company Shareholder.” Any other construction, according to the shareholders’ agent, would render meaningless the words “final” and “conclusive.” We disagree with this interpretation. While the use of those words makes actions taken by the shareholders’ agent binding on the settling shareholders, the words do not grant him the exclusive right to negotiate. “Conclusive” is defined as “decisive; settling the question.” Webster’s New Universal Unabridged Dictionary 377 (2d ed. 1983). Likewise, “final” is defined as “decisive; determinative.” Id. at 687. “Exclusive,” on the other hand, is defined as “having the tendency or power to exclude all others.” Id. at 638. There is no basis in the definitions of “conclusive” or “final” that would lead us to define them as a substitute for “exclusive.”
To create an exclusive agency, “the parties must expressly and unambiguously indicate such an intent in the contract.” Bump v. Robbins, 24 Mass. App. Ct. 296, 304 (1987). If the parties had wished to give the shareholders’ agent the sole or exclusive authority to negotiate on behalf of the settling shareholders, they could have done so. See, e.g., Hayes v. Gessner, 315 Mass. 366, 369 (1944) (“By the terms of the policy the defendant had conferred ‘the sole right of settlement and defense’ upon his insurance company”). See also Aveta Inc. v. Cavallieri, 23 A.3d 157, 165 (Del. Ch. 2010) (“the Principal Shareholders and each of the other Shareholders signing this Agreement hereby irrevocably designate Roberto L. Bengoa . . . as their representative,” quoting from purchase agreement). We will not contort the plain language of the merger agreement to interpret “final, binding and conclusive” as synonymous with “irrevocable” or “exclusive.” We conclude that the merger agreement gives the shareholders’ agent an express right to negotiate with Astra Tech and to bind the settling shareholders, but not a contractually exclusive right to do so.
Power coupled with interest. The shareholders’ agent contends that his agency is irrevocable because he has a power coupled with an interest. As we have discussed, under general principles of agency law, the principal may revoke the agent’s authority at any time, even if the agreement expressly states that the principal may not revoke. See Restatement (Third) of Agency § 3.10 comment b (2006). But “[i]t is perfectly possible to create by contract an agency power so coupled with an interest that the creator can neither revoke nor control the exercise of the power.” Hayes, supra at 370. When this occurs, the agent is said to have a power coupled with an interest.
A power coupled with an interest is not technically an agency relationship because “it is neither given for, nor exercised for, the benefit of the person who creates it.” Restatement (Third) of Agency, supra at § 3.12 comment b. In an agency relationship, granting authority to the agent is solely for the benefit of the principal. Ibid. When a power is coupled with an interest, the donee holds that power for his own benefit (or for the benefit of a third party), but not for the benefit of the donor. Gregory, supra at § 10. Additionally, when a power is coupled with an interest, the agent (donee of the power) must have a present interest in the property upon which the power is to operate. Id. at § 47. It is generally accepted that the “interest” must be ownership of the property itself and it is “this ownership which makes the power irrevocable.” Ibid. With this relationship in mind, we must determine whether the shareholders’ agent here has a power coupled with an interest.
We first consider whether the shareholders’ agent has a power in the escrow fund. As discussed supra, the shareholders’ agent has broad powers under the merger agreement, but he does not have an exclusive or irrevocable power. Under the escrow agreement, his powers are more limited. The escrow agreement makes clear that the escrow agent only may release funds upon agreement by the shareholders’ agent and Astra Tech. Thus, this case is unlike other cases where courts have found a power coupled with an interest, as those cases described a donee with unilateral power to affect the property. See, e.g., Hayes, supra at 369 (policy providing sole right to agent irrevocable); MacDonald v. Gough, 326 Mass. 93, 97-98 (1950) (agent appointed by brothers had power coupled with interest). Here, the shareholders’ agent does not have unilateral power to control disposition of the escrow fund. Rather, he must reach an agreement with Astra Tech before the escrow agent could be compelled to release the funds. Accordingly, the shareholders’ agent does not have sufficient power in the escrow fund to be deemed the donee of a power coupled with an interest.
Nor does the shareholders’ agent have an interest in the escrow fund sufficient to create a power coupled with an interest. The common thread running through our cases, going back to Chief Justice Marshall’s opinion in Hunt v. Rousmanier, 21 U.S. (8 Wheat.) 174, 203 (1823), which equated interest with title, is that the agent must have an interest “in the property itself” and “not merely an interest in the proceeds of the property.” Varnum v. Meserve, 8 Allen 158, 159 (1864), citing Hunt, supra. “[T]here has been general acceptance of the distinguishing feature of the ‘interest’ which operates to make the power irrevocable, i.e. ownership. . . . [T]he basic question is whether the holder of the power has such an interest in the subject matter as to enable him to exercise the rights of an owner or part owner.” Gregory, supra at § 10. Likewise, our cases have required incidents of ownership before concluding that there was a power coupled with an interest. See Varnum, supra (“a mortgage vests the whole legal estate in the mortgagee. . . . The power is to be executed out of the estate conveyed, and is not merely collateral to it”); Dickinson v. Central Natl. Bank, 129 Mass. 279, 282-283 (1880) (stock certificate issued to owner of shares, with execution of power of attorney, “conferred a power coupled with an interest”); Mulloney v. Black, 244 Mass. 391, 394 (1923) (“The defendant had a property interest in the money in his hands with a power to dispose of it under the contract”); MacDonald, supra (“The purpose of the contract was to protect the interests of the three brothers as heirs at law and next of kin in the estate of their deceased brother”).
Here, the shareholders’ agent serves two roles. The shareholders elected him to serve as their agent. In addition to representing the interests of all shareholders in the escrow fund, he also, in an individual capacity, is the principal (majority) shareholder in the escrow fund. He certainly has a property interest in the escrow fund in his individual capacity to the extent of his majority interest, but he does not have a property interest in the entire fund in his capacity as shareholders’ agent. The critical distinction between an agent and the donee of a power coupled with an interest lies in who receives the benefit of the relationship. In a principal-agent relationship, the principal receives the benefit; for a power coupled with an interest, the benefit inures to the donee himself (or to a third party), but not to the donor. See Gregory, supra at § 10. Ultimately, in his capacity as shareholders’ agent, he serves for the benefit of the shareholders, and not for his own benefit. That he is also, in his individual capacity, a shareholder does not transform his role under the escrow agreement from an agent to a donee of a power coupled with an interest in the entire escrow fund.
Even if we were to assume that the shareholders’ agent had a power coupled with an interest in his own shares, the settlement between the settling shareholders and Astra Tech does not affect the rights of any nonsettling shareholders, including the shareholders’ agent in his individual capacity. The settlement consists of the 38.95 percent of the escrow fund that would have been distributed to the settling shareholders on the release date. It does not affect the remaining 61.05 percent, which includes the shareholders’ agent’s individual proportional share. Moreover, in the event of damages in excess of the escrow amount, § 8.2(d) of the merger agreement and paragraph 5 of the settlement agreement expressly prevent Astra Tech from seeking damages from the remaining shareholders (the 61.05 percent) to cover the percentage loss of the settling shareholders. The maximum liability of each shareholder is limited to his pro rata share in any award of damages. Because the shareholders’ agent suffers no economic prejudice due to the settlement, he does not have an interest in the 38.95-percent portion of the escrow fund representing the settling shareholders’ proportional share. Contrast MacDonald, 326 Mass. at 97-98 (contract made by brothers who were heirs of decedent provided sufficient interest to create “power coupled with an interest”). With no interest in the settling shareholders’ divisible portion, the shareholders’ agent cannot have a power coupled with an interest in the whole escrow fund, and his agency is neither irrevocable nor exclusive.
Settling shareholders’ rights. Having concluded that the shareholders’ agent has neither the exclusive right to negotiate under the merger agreement nor a power coupled with an interest in the entire escrow fund, we must determine whether the settling shareholders had the right to settle with Astra Tech. In the absence of an agreement, the settling shareholders retain their common-law rights as principals. “Notwithstanding any agreement between principal and agent, an agent’s actual authority terminates . . . if the principal revokes the agent’s actual authority by a manifestation to the agent.” Restatement (Third) of Agency, supra at § 3.10. The principal may manifest a revocation of all or part of the agent’s authority through implicit conduct. Id. at comments b, c. See Gagnon v. Coombs, 39 Mass. App. Ct. 144, 151 (1995). Because a principal may revoke part of the agent’s authority, it follows that a principal may, in the absence of an agreement to the contrary, negotiate on his own behalf without infringing on the agent’s ability to perform his duties. “Unless otherwise agreed, a principal is not subject to a general duty to refrain from competition with the agent that does not interfere with the agent’s ability to achieve standards set by contract.” Restatement (Third) of Agency, supra at § 8.13 comment b. As discussed supra, nothing in the agreements between the parties abrogated these common-law rights because nothing vested an exclusive or irrevocable right in the shareholders’ agent. Therefore, the settling shareholders had the power to negotiate a settlement agreement with Astra Tech.
Judgment entered August 19, 2011, affirmed.
 As shareholders’ agent of the shareholders of Atlantis Components, Inc.
 Foley & Lardner LLP and Charles R. Dougherty.
 Individually & as securityholder of Atlantis Components, Inc.
 ABV Holding Company 3 LLC; ABV Holding Company 4 LLC; ABV Holding Company 5 LLC; ABV Holding Company 8 LLC; ABV Holding Company 11 LLC; Douglas Bailey; Gerald Bloom; Brookwood Partners; John D. Chambliss; CID Equity Capital VIII LP; Keith Cooper; Heron Capital Venture Fund 1 LP; Ironwood Equity Fund LP; Peter Laimins; Life Sciences Opportunities (Institutional) Fund II, LP; Life Sciences Opportunities Fund II, LP; Richard E. Mastromatteo; H. Robert Moorehead; Richard H. Oedel; William O’Neill; Orlene Shimberg; Steven Shimberg; Tolkoff Family LP II; VIMAC AC LP; VIMAC AC2 LP; VIMAC AC3 LP; VIMAC Early Stage Fund LP; VIMAC ESF Annex Fund LP; and Arnold Watkin.
 The merger agreement was executed on September 26, 2007, and the deal was consummated on October 9, 2007.
 Douglas G. Bailey became the shareholders’ agent in March, 2009. He replaced Robert G. Stockard, the original shareholders’ agent and former chief executive officer of Atlantis.
 Around the same time, Atlantis also became involved in a trademark dispute with Dabi Atlante.
 Of that total, Astra Tech submitted an invoice for $ 373,261.04 in legal expenses from litigating the Nobel claim. Astra Tech also demanded $ 10,000, its estimated legal fees in a second dispute, the Dabi Atlante trademark issue, see note 6, supra. And finally, Astra Tech demanded $ 34,731.29 for fees and expenses arising out of the merger itself.
 The merger agreement provided that only claims in excess of $ 500,000 could be made; but the $ 500,000 requirement did not apply to so-called “material claims.” Because Astra Tech alleged that Atlantis fraudulently and intentionally misrepresented its position, Astra Tech alleged it was a “material claim” not subject to the $ 500,000 threshold.
 This figure represents 38.95 percent of Astra Tech’s accrued legal fees.
 Section 3 establishes a system for disbursement from the escrow fund: Astra Tech first is to submit a written demand for payment. The shareholders’ agent then has fifteen business days to dispute the claim. In addition to providing a procedural mechanism for disbursement, the escrow agreement also governs claims disputed by the shareholders’ agent.
 This alternative procedure for distribution of escrow funds also anticipates the power of a principal to act on his own behalf even while in a relationship with an agent.
 Section 8.6(a) also provides the method for electing a new shareholders’ agent.
 The concept of agency, as defined by the common law, acknowledges a consensual relationship between parties, in which one party acts as a representative or on behalf of the other party with power to effect the legal rights and duties of that other party. See generally Restatement (Third) of Agency § 1.01 comment c (2006). Every agency expects the agent to exercise power, the extent of which is usually determined by the circumstances of the agency. Ibid. Even an agent holding broad powers, however, holds and exercises those powers as a result of
a voluntary conferral by the principal. Ibid. We have used the Restatement (Third) of Agency’s description of agency principals to develop our agency case law. See, e.g., MacDonald v. Gough, 326 Mass. 93, 97-98 (1950) (using Restatement to support explanation of power coupled with interest); Kirkpatrick v. Boston Mut. Life Ins. Co., 393 Mass. 640, 645 (1985) (using Restatement definition of agency relationship); Haufler v. Zotos, 446 Mass. 489, 498 (2006) (using Restatement explanation of agent’s power).
 However, even when an agency relationship is stated to be “irrevocable” or “exclusive,” the statement does not make it so. “The principal may still revoke, . . . while incurring liability for the breach. It must be remembered that, authority as commonly conceived in an agency setting may always be revoked. . . . It is believed that it should always be within the power of the principal . . . to reassume the control over his own business which he has but delegated to his agent.” Gregory, supra at § 47.
 The shareholders’ agent also points to Ballenger vs. Applied Digital Solutions, Inc., Del. Chancery Ct., No. 19399, slip op. at 10 (April 24, 2002), where the court held that the stockholders’ representatives had “the authority to determine how far to press a dispute over an Earnout issue.” But there, the stockholders’ representatives and the stockholders were on the same side of the dispute against the acquiring company. Id. at 1. Here, the settling shareholders are opposed to the shareholders’ agent’s position and have directly settled a dispute with the acquiring company.
 As previously stated, even if an agreement creates an agency that is irrevocable or exclusive, the principal still maintains the power to revoke the agreement at any time. Restatement (Third) of Agency § 3.10 & comment b (2006). But such revocation could render the principal liable for breach of contract. Gregory, supra at § 47.
 The ordinary incidents of agency — such as payment of a commission or a fee — do not constitute a sufficient interest to create a power coupled with an interest. Restatement (Third) of Agency, supra at § 3.12 comment b.
 Although he is entitled to fees from the representative fund, that is an interest arising from his role as agent. Restatement (Third) of Agency, supra at § 3.12 comment b (ordinary incidents of agency — such as payment of a commission or a fee — do not constitute a sufficient interest to create a power coupled with an interest).
 “In no event shall a Company Securityholder be liable for any amounts in excess of Merger Consideration actually paid to him, her or it.”
 “Astra Tech . . . will not seek to recover the Settling Shareholders’ pro rata share of the Astra Tech Excess Damages from any other person or entity.”
12‑P‑1764 Appeals Court
GARY BOLDUC’S CASE.
Suffolk. September 17, 2013. ‑ December 4, 2013.
Present: Hanlon, Brown, & Sullivan, JJ.
Workers’ Compensation Act, Previous work‑related injury, Subsequent injury, What insurer liable.
Appeal from a decision of the Industrial Accident Reviewing Board.
John J. Canniff for Travelers Insurance Co.
Margo A. Sutton for Liberty Mutual Insurance Co.
SULLIVAN, J. This is a dispute between two workers’ compensation insurers as to which of them is liable for payment of compensation benefits to an employee whose entitlement to benefits is no longer in question. Travelers Insurance Co. (Travelers) appeals from the decision of the board of review of the Department of Industrial Accidents (board), holding Travelers liable for compensation payments. Travelers contends that the board’s decision is contrary to law and exceeded the board’s authority. See G. L. c. 30A, § 14; G. L. c. 152, § 12(2). We affirm.
Background. Gary Bolduc suffered a back injury in November of 2002 which resulted in a prolonged absence from work and a claim for compensation. The employer’s workers’ compensation insurer at that time, Liberty Mutual Insurance Co. (Liberty Mutual), paid the claim. Bolduc returned to work for the same employer. On or about May 27, 2008, Bolduc injured his back at work once again. He stopped working on June 5, 2008. Travelers was the insurer on the risk at the time of the 2008 injury.
The employer notified Liberty Mutual of the May 27, 2008, injury, but did not notify Travelers at that time. Treating the claim as a recurrence of the 2002 injury, Liberty Mutual resumed payment of benefits retroactive to June 6, 2008, and continued to pay benefits through the filing and resolution of Bolduc’s claim for an increased average weekly compensation rate. See G. L. c. 152, §§ 34, 35B. On October 17, 2008, the employee filed another claim for the same injury against Liberty Mutual seeking surgical benefits, as well as an initial claim against Travelers for medical and weekly payments. After a conference held on December 23, 2008, an administrative judge ordered Liberty Mutual to continue paying benefits, and denied the claim as to Travelers. Liberty Mutual appealed, and the administrative judge set the matter for a de novo hearing among all three parties.
After the hearing, the administrative judge found that the 2008 injury was a new injury, not a recurrence of the 2002 injury, and that the employee was therefore entitled to compensation. Liberty Mutual maintained that the successive insurer rule rendered Travelers responsible, as Travelers was on the risk in 2008. See Pilon’s Case, 69 Mass. App. Ct. 167, 169 (2007), and cases cited. The administrative judge determined that Liberty Mutual had “accepted liability for the case as a recurrence . . . attributable to the November 2002 injury” because of its history of payment. The board reversed, concluding as a matter of law that the successive insurer rule governed. The board ordered Travelers to assume payments going forward and to reimburse Liberty Mutual.
Discussion. 1. Successive insurer rule. The board’s decision may be set aside only if it is arbitrary or capricious, an abuse of discretion, or erroneous as a matter of law. See G. L. c. 152, § 12(2). See also G. L. c. 30A, § 14(7)(a)-(d), (f), and (g); Haslam’s Case, 451 Mass. 101, 106 (2008); Wadsworth’s Case, 461 Mass. 675, 679 (2012). The parties are in agreement that there are no factual issues before us. Instead, the appeal presents a pure question of law, namely whether the successive insurer rule governs, rendering Travelers responsible for the payment of benefits. The board is entitled to substantial deference to its reasonable interpretation of a statute which it administers, although “the duty of statutory interpretation ultimately is for the courts.” Spaniol’s Case, 466 Mass. 102, 106 (2013). The board concluded that the statute is clear, and that the insurer on the risk at the time of a new injury is the responsible party. We agree.
“The successive insurer rule provides that the insurer covering the risk at the time of the most recent injury that bears causal relation to the disability claimed must pay the entire compensation,” Pilon’s Case, supra, so long as the most recent injury contributes to the incapacity to the “slightest extent.“ Ibid., quoting from Rock’s Case, 323 Mass. 428, 429 (1948). See DeFilippo’s Case, 284 Mass. 531, 533 (1933); Crowley’s Case, 287 Mass. 367, 373 (1934); Anderson’s Case, 288 Mass. 96, 100 (1934); Donahue’s Case, 290 Mass. 239, 240-241 (1935) (construing prior version of G. L. c. 152, § 26); Donahue’s Case, 292 Mass. 329, 331 (1935); Evans’s Case, 299 Mass. 435, 436-437 (1938); Falcione’s Case, 305 Mass. 433, 435 (1940); Blanco’s Case, 308 Mass. 574, 577-578 (1941); Mizrahi’s Case, 320 Mass. 733, 736 (1947); Morin’s Case, 321 Mass. 310, 312 (1947). “An insurer takes the employee in the condition in which it finds him, and becomes bound to compensate him according to the provisions of the act for incapacity resulting from any compensable personal injury received during the period covered by the policy.” Evans’s Case, supra at 436. By placing the responsibility for compensation on the policy of the carrier at the time of a new injury, the successive insurer rule streamlines and expedites the provision of benefits to the injured employee and avoids the complexity of assessing causation among multiple injuries and apportioning liability across multiple carriers. See id. at 436-437. We defer to the agency’s longstanding application of the rule.
Travelers maintains that the rule is inapplicable for two interrelated reasons: (1) that the successive insurer rule does not apply because Liberty Mutual accepted the claim by voluntarily paying Bolduc from June, 2008, until the conference in December, 2008, and (2) that Liberty Mutual and the employee agreed that Liberty Mutual was responsible by virtue of its payment of the claim before conference.
That Liberty Mutual initially evaluated the claim as a recurrence claim and paid benefits subject to the limitations on cessation of payment set forth in G. L. c. 152, § 8(2), does not alter the liability of Travelers for the claim under the statute, once Bolduc’s injury was adjudicated a new injury. The purpose of G. L. c. 152, §§ 7 and 8, is to regulate the relationship between the insurer and the employee. These provisions do not speak to the relationship between insurers. Once Liberty Mutual paid the claim as a recurrence claim, it would not have been permitted to suspend its payments without further order of the board, or one of the other statutory justifications. See G. L. c. 152, § 8(2). This aspect of the statutory scheme is “intended to reduce the delay in payment of benefits to employees.” Hepner’s Case, 29 Mass. App. Ct. 208, 211 (1990). Liberty Mutual’s assumption of payment did not purport to constitute a waiver of its right to contest coverage with respect to another insurer. The board has previously held that payment by an insurer cannot be used to create or enlarge coverage under an insurance contract, and that an insurer does not waive its right to contest coverage when it pays a claim for which another insurer may be responsible. See Lincoln v. Fairside Trucking, 8 Mass. Workers’ Comp. Rep. 218, 225 (1994), citing Merrimack Mut. Fire Ins. Co. v. Nonaka, 414 Mass. 187, 189, 191 (1993). The board’s construction of its own statute is reasonable, and we defer to it. See Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 515-516 (1975).
Nor did Liberty Mutual’s decision to pay compensation during the time between the initial claim and the December, 2008, conference (when further payment was ordered) constitute a binding agreement between Liberty Mutual and Bolduc that Liberty Mutual was responsible for the injury. For the reasons stated above, Liberty Mutual did not waive its claims and defenses under its policy by conduct. Nor can the employee and an insurer agree to vary the terms of the statute. One purpose of the successive insurer rule is to forestall the adverse consequences of a unilateral assignment of liability as a result of the initial presentation of a claim by an injured employee. “Where incapacity results from the combined effect of several distinct personal injuries, received during the successive periods of coverage of different insurers, the result is not . . . responsibility on the part of either or any insurer at the election of the employee.” Evans’s Case, 299 Mass. at 437. If the employee’s election of carrier (whether deliberate or erroneous) presumptively governed, no carrier would take the risk of payment on a recurrence claim when coverage by a second insurer for a new injury was in dispute. Any other construction of the successive insurer rule would undermine the ameliorative purpose of the statute, which is to ensure that “the worker is more quickly compensated for the subject injury,” Baker’s Case, 55 Mass. App. Ct. 628, 633 (2002), by ensuring that the employee is not adversely affected by a dispute between carriers as to coverage. See generally G. L. c. 152, § 15A; The St. Paul Cos. v. TIG Premier Ins. Co., 58 Mass. App. Ct. 650, 656 (2003).
2. Equitable powers of the board. Travelers points out that the procedure under G. L. c. 152, § 15A, for adjudicating disputes between carriers as to liability was not invoked here. From that fact, Travelers argues that the board acted in excess of its powers in crafting an equitable order compelling Travelers to pay. The argument is inapposite in two respects. First, the board did not expressly decide whether the procedures available under § 15A were applicable to these proceedings, and we do not reach that issue. Even if the § 15A provision for expedited hearings in disputed claims between insurers were applicable here, procedural missteps by the parties do not bind the board. The failure to invoke the § 15A expedited hearing procedure did not deprive the board of jurisdiction to adjudicate the claim that came before it, or to interpret the statute it is charged with administering.
Second, the equitable powers of the board are deeply rooted. “The board is not bound by strict legal precedent or legal technicalities, but, rather, governed by the practice in equity . . . The term ‘in equity’ is consonant with the liberal construction to be given to c. 152 and has been ‘applied to supply a remedy [even] when there [may be] a gap in the statute.’” Utica Mut. Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 267 (1985) (Utica), quoting from Locke, Workmen’s Compensation § 29, at 34 (2d ed. 1981). To the extent, if any, that the absence of a § 15A proceeding in this case left a gap in the relief explicitly enumerated under the statute, the relief granted by the board was “necessary and incidental to the full exercise of the [board's] powers.” Levangie’s Case, 228 Mass. 213, 217 (1917). Contrast Taylor’s Case, 44 Mass. App. Ct. 495, 497-498 (1998). The board was empowered to fill that gap in order to “dispose completely of the claim.” Utica, supra.
Decision of reviewing
 The factual finding that the 2008 injury was a new, compensable injury is supported by the evidence, as is the board’s finding that Travelers suffered no prejudice as a result of the initial handling of the case by Liberty Mutual for the first seven months the case was pending. Neither of these conclusions is contested on appeal.
 “Where an employee suffers two or more compensable injuries that are causally related to a resulting incapacity, only one insurer is chargeable for the payment of compensation for the same disability.” Pilon’s Case, 69 Mass. App. Ct. at 169. Here, the administrative judge found that Bolduc’s current incapacity was causally related to both the 2002 and 2008 industrial injuries.
 In this case, where causation was at issue, the final determination whether the injury was new or recurring awaited expert testimony and a determination by an administrative judge after hearing. See Carpenter’s Case, 456 Mass. 436, 441 (2010) (where a “causal relation is a matter beyond the common knowledge and experience of the ordinary layman, the proof must rest upon expert medical testimony”), quoting from Buck’s Case, 342 Mass. 766, 769 (1961).
 The administrative judge relied on the fact that Liberty Mutual paid benefits for in excess of 200 days before being ordered to do so. The board ruled that the 180-day pay without prejudice period set forth in G. L. c. 152, § 8(1), does not apply to a recurrence claim, and that the 180-day pay without prejudice period expired in 2003 with the initial claim. The board concluded that Liberty Mutual was obligated either to pay on the recurrence claim or proffer a reasoned basis for failing to do so, but it did not waive its defenses by virtue of payment.
 Travelers has not cited, and we have not found, any authority for the proposition that the statutory scheme may be altered by the conduct of the parties in the absence of factors (not present here) such as laches, estoppel, fraud, unclean hands, or some other claim or defense grounded in prejudice. See generally Utica Mut. Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 265 (1985).
 Travelers was notified in October, 2008, of Bolduc’s claim against it, and both insurers appeared at the December conference, but neither invoked § 15A. Section 15A was raised for the first time in October, 2010, at the outset of the de novo hearing in which both insurers denied liability and contested causation.
 General Laws c. 152, § 15A, provides for an expedited hearing when the employee’s entitlement to benefits as well as the responsibility of two or more insurers are in dispute. See The St. Paul Cos. v. TIG Premier Ins. Co., 58 Mass. App. Ct. at 656.
COMMONWEALTH vs. HUMBERTO H., a juvenile.
Suffolk. September 9, 2013. ‑ November 26, 2013.
Present: Ireland, C.J., Spina, Cordy, Gants, Duffly, & Lenk, JJ.
Controlled Substances. Probable Cause. Juvenile Court, Delinquent child. Supreme Judicial Court, Jurisdiction. Evidence, Juvenile delinquency, Intent. Intent. Practice, Criminal, Juvenile delinquency proceeding, Complaint, Dismissal, Arraignment, Judicial discretion.
Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on January 24, 2011.
A motion to dismiss was heard by Leslie E. Harris, J.
The Supreme Judicial Court granted an application for direct appellate review.
Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.
Emily A. Cardy, Committee for Public Counsel Services, for the juvenile.
Robert E. McDonnell, Deana K. El-Mallawany, & Nathaniel P. Bruhn, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief.
GANTS, J. A Juvenile Court judge allowed the juvenile’s motion to dismiss a delinquency complaint charging one count of possession of a class D substance (marijuana) with intent to distribute after concluding that the complaint was not supported by probable cause that the juvenile intended to distribute the marijuana in his possession. The judge declared that, where a complaint is to be dismissed, he believed it “offensive to arraign a child . . . just to put it on the child’s record,” but concluded that he was obliged to arraign the juvenile before dismissing the complaint. The Commonwealth appealed the dismissal of the complaint. We affirm the judge’s dismissal of the delinquency complaint, concluding that the information in the complaint application fell short of probable cause to believe that the juvenile intended to distribute the marijuana in his possession. We also declare that a Juvenile Court judge, in his or her discretion, may allow a motion to dismiss before the arraignment of a juvenile where the judge concludes that prearraignment dismissal is in both the best interests of the child and the interests of justice.,
Background. We describe the facts as set forth in the police incident report filed in support of the application for the complaint. On January 24, 2011, a Boston school police officer and the dean of discipline (dean) of a Boston high school were posted at the back door of the high school’s cafeteria, monitoring students who were arriving late to school. When the juvenile, a fifteen year old student at the high school, entered the school building at approximately 9:35 A.M., the dean noticed a strong odor of marijuana coming from the juvenile. When the dean spoke to the juvenile, the juvenile became “very defensive and agitated.” An administrative search of the juvenile’s person was conducted in the school nurse’s office, which resulted in the recovery of “[five] plastic bags of . . . what appeared to be marijuana” that was located inside the right pocket of “a second pair of shorts under his pants.” The juvenile was then arrested for possession of a Class D substance (marijuana) with intent to distribute, in violation of G. L. c. 94C, § 32C. Later that day, a delinquency complaint issued.
At the initial appearance, the juvenile was released to the custody of his mother with special conditions of pretrial probation, and counsel was appointed to represent him. The judge continued the scheduled arraignment until February 23, 2011, according to the Commonwealth, “in order to determine whether the complaint was issued based on probable cause.” The Commonwealth filed a petition under G. L. c. 211, § 3, asking a single justice of this court to vacate the order of continuance. On February 9, the juvenile filed a motion to dismiss the complaint for lack of probable cause, and asked that the complaint be dismissed before the arraignment. On February 17, the single justice denied the petition, concluding that “the mere continuance of an arraignment from one date to a later one, by itself, certainly does not present an occasion to grant extraordinary relief.” The single justice, however, declared in dictum that the Commonwealth “is correct” that, because the complaint had issued, “the judge is without power to decline to arraign him on the charge.” Citing Commonwealth v. McCarthy, 385 Mass. 160, 161 (1982), the single justice added that, once arraigned, the juvenile could move to dismiss the complaint for lack of probable cause. At the subsequent hearing on the juvenile’s motion to dismiss, the judge stated his understanding that judges “take control of the case after arraignment,” and that if the Commonwealth chose to proceed with the arraignment, he would be required to arraign the juvenile. When the prosecutor declared her intent to go forward with the arraignment, the judge ordered that the juvenile be arraigned but declared that he would dismiss the case “as soon as it’s arraigned.” After arraignment, he heard argument on the motion to dismiss and allowed the motion, finding that there was probable cause that the juvenile possessed marijuana but not probable cause to establish that he possessed it with intent to distribute. The Commonwealth appealed, and we granted direct appellate review.
Discussion. 1. Dismissal of the complaint. After a delinquency complaint issues, a juvenile may move to dismiss the complaint for lack of probable cause. See Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). Just as a motion to dismiss an indictment for lack of probable cause is decided based on the grand jury minutes, see Commonwealth v. McCarthy, 385 Mass. at 163, a motion to dismiss a complaint “is decided from the four corners of the complaint application, without evidentiary hearing.” Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111 (2013), quoting Commonwealth v. Bell, 83 Mass. App. Ct. 61, 62 (2013). The judicial determination is essentially the same for both types of motions. See DiBennadetto, supra, citing McCarthy, supra. In reviewing a motion to dismiss a complaint, the judge must decide whether the complaint application contains “sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him.” McCarthy, supra, quoting Connor v. Commonwealth, 363 Mass. 572, 574 (1973), and Lataille v. District Court of E. Hampden, 366 Mass. 525, 531 (1974).
To establish probable cause, the complaint application must set forth “reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.” Commonwealth v. Roman, 414 Mass. 642, 643 (1993). See Commonwealth v. Hanright, 466 Mass. 303, 311-312 (2013), quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972). Probable cause is considerably less than proof beyond a reasonable doubt, so evidence that is insufficient to support a guilty verdict might be more than sufficient to establish probable cause. Roman, supra at 647. See Commonwealth v. O’Dell, 392 Mass. 445, 451 (1984), quoting K.B. Smith, Criminal Practice and Procedure § 104 (1983) (“Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction”). But probable cause is “more than mere suspicion.” Roman, supra at 643, quoting Commonwealth v. Hason, 387 Mass. 169, 174 (1982).
The complaint application must include information to support probable cause as to each essential element of the offense. See Commonwealth v. Hanright, 466 Mass. at 312, citing Commonwealth v. Moran, 453 Mass. 880, 884 (2009). Here, there is no dispute that the information in the complaint application is more than sufficient to establish probable cause that the juvenile possessed marijuana; the issue is whether it is sufficient to establish probable cause that the juvenile intended to distribute the marijuana in his possession. Because it is a question of law, “we review the motion judge’s probable cause determination de novo.” Commonwealth v. Long, 454 Mass. 542, 555 (2009).
Probable cause that a juvenile intended to distribute a controlled substance may be demonstrated through circumstantial evidence, Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999), viewed in the totality of the circumstances. See Commonwealth v. Hernandez, 448 Mass. 711, 715 (2007). “In dealing with probable cause . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 (1949).
The Commonwealth argues that the juvenile’s possession of five plastic bags of what appeared to be marijuana, the absence of smoking paraphernalia, and the juvenile’s “defensive and agitated” demeanor when he was questioned by the dean establish probable cause of his intent to distribute. We consider each of these factors, recognizing that probable cause must be determined based on the totality of the evidence.
No reasonable inference may be made from the juvenile’s demeanor when confronted by the dean in the presence of the school police officer that the juvenile intended to distribute the marijuana in his possession. The prospect of being caught with marijuana alone was more than sufficient to make a fifteen year old high school student “defensive and agitated.” Even with the enactment of St. 2008, c. 387, § 2, which decriminalized the simple possession of one ounce or less of marijuana, a juvenile found in possession of a small quantity of marijuana is subject to a civil penalty of one hundred dollars and forfeiture of the marijuana, and must complete a drug awareness program and community service. G. L. c. 94C, § 32L. In addition, if a juvenile were to fail to complete both a drug awareness program and the required community service, the civil penalty may be increased to $ 1,000, and both the juvenile and his parents would be jointly and severally liable to pay that amount. Perhaps more important, a juvenile found in possession of marijuana on school premises may be subject to expulsion or suspension from school by the principal. G. L. c. 71, § 37H.
The application in support of the complaint noted that the administrative search of the juvenile’s person revealed five plastic bags of what appeared to be marijuana, but made no mention of smoking paraphernalia. Because one would expect a police officer to have mentioned such paraphernalia if it were found, we infer that the absence of any reference to such paraphernalia in the application suggests that none was found on the juvenile’s person during the search. But, applying that same inference, we conclude that the search also did not uncover a scale, a cellular telephone or pager, or empty plastic bags, each of which would be consistent with dealing drugs. Nor, applying that inference, was any cash found in his possession, which suggests both that he had not sold any marijuana on his way to school and that he was not concerned with the need to make change if he did make a sale. The absence of drug paraphernalia may be consistent with an intent to distribute marijuana, see Commonwealth v. Wilson, 441 Mass. 390, 401 (2004), but considering the totality of what was not found on his person, no reasonable inference can be made that the juvenile intended to distribute the marijuana in his possession, especially where the smell of marijuana coming from the juvenile’s person suggests that he had just smoked marijuana.
If there is probable cause to believe that the juvenile intended to distribute the marijuana in his possession, it must rest almost entirely on the juvenile’s possession of five plastic bags of what appeared to be (and for the purpose of determining probable cause, we assume to be) marijuana. Possession of a substantial quantity of marijuana would be sufficient alone to support a finding of probable cause of an intent to distribute. See Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 841 (2012) (amount of drugs “alone may raise an inference of intent to distribute”). But there is no information in the complaint application that suggests that the quantity of marijuana found on the juvenile’s person was large enough to permit any inference of an intent to distribute. The application does not estimate the weight of the marijuana or otherwise describe the amount seized. We know from the application only that the amount was small enough that it fit in one pocket of a pair of shorts that the juvenile wore under his pants. The “value” of the marijuana stated in the complaint application was “$ 0.00,” which suggests that the quantity was so small that it had little to no street value. In Commonwealth v. Roman, 414 Mass. at 645, 647-648, where there was no evidence of intent to distribute apart from the amount of the drugs seized, we concluded that there was probable cause to believe that “the defendant, who possessed 25.6 grams of cocaine in a motor vehicle on a State highway, did so with the intent to distribute,” but we noted that “the question is a close one.” Based on quantity alone, the question here is not close.
The Commonwealth argues that the division of the marijuana into five plastic bags suggests an intent to distribute, but the weight of any suggestion is considerably diminished by the assertion in the application that the marijuana had no street value. In Commonwealth v. Wilson, 441 Mass. at 393 & 400-402, we noted that the manner in which one-half ounce of marijuana was packaged was consistent with an intent to distribute, but in that case there were twenty separate packages and they were described as “dime” bags, which reflected that the marijuana in each had street value and had been deliberately separated into packages roughly equal in quantity. Moreover, in each of the cases cited by the Commonwealth where an inference of an intent to distribute was warranted, at least in part, by the packaging of the drugs, the number of packages was far greater than the five packages found on the juvenile’s person. See Wilson, supra at 400-402; Commonwealth v. Clermy, 421 Mass. 325, 327, 331 (1995) (twenty-five “individually wrapped pieces” of crack cocaine); Commonwealth v. Sauer, 50 Mass. App. Ct. 299, 302 (2000) (“The presence of one bank envelope with a pill identical to the other thirty-one is more than sufficient to support an inference that the defendant intended to place the rest of the pills in the [twenty-three] remaining bank envelopes for distribution”); Commonwealth v. Martin, 48 Mass. App. Ct. at 392 (1999) (eighteen packages of “rock” cocaine “packaged for sale as ‘dime bags,’ at a street price of $ 10 per bag”). See also Commonwealth v. Acosta, 81 Mass. App. Ct. at 840, 841 (inference of intent to distribute not warranted where defendant possessed 3.16 grams of cocaine in “five twist bags”).
We conclude that the evidence in the application for the complaint, viewed in its totality, does not support a finding of probable cause that the juvenile intended to distribute the marijuana in his possession. The judge therefore did not err in dismissing the complaint. At best, the application supports mere suspicion of such an intent. We note that the dismissal is without prejudice and that nothing bars the Commonwealth, should it uncover evidence that the juvenile intended to distribute the marijuana in his possession, from filing a new delinquency complaint supported by probable cause. Cf. A Juvenile v. Commonwealth, 375 Mass. 104, 107 (1978) (where delinquency charge is dismissed for lack of probable cause at transfer hearing, there is “no reason not to allow a second transfer hearing when additional evidence concerning probable cause is available”); Burke v. Commonwealth, 373 Mass. 157, 161 (1977) (where no probable cause is found after probable cause hearing, “[n]othing . . . precludes a prosecutor from seeking other probable cause hearings based on additional evidence”).
We add an additional observation. Judicial vigilance is always important to protect individuals from criminal and delinquency complaints that are not supported by probable cause. If a complaint cannot meet the probable cause standard, “it would be a waste of judicial resources” and, more importantly, “an unnecessary burden on the individual for the case to move any further in the process.” Reporter’s Notes to Rule 3 (g) (2) (2004), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1345 (LexisNexis 2012-2013). But judicial vigilance is especially important when a complaint charges an individual with possession of marijuana with intent to distribute where the amount of marijuana that is possessed is below the one-ounce threshold that would make its mere possession a crime. When Massachusetts citizens voted in favor of the 2008 ballot initiative and thereby changed the possession of one ounce or less of marijuana from a criminal to a civil offense, “the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes.” Commonwealth v. Cruz, 459 Mass. 459, 471 (2011). Possession of one ounce or less of marijuana with intent to distribute continues to be a crime, and the Commonwealth may prosecute it as such, but only where an intent to distribute is supported by probable cause. Commonwealth v. Keefner, 461 Mass. 507, 514, 518 (2012). Where it is not, criminal prosecution defeats the public’s purpose in voting for decriminalization because it not only treats simple possession of one ounce or less of marijuana as if it were “a serious infraction worthy of criminal sanction,” Cruz, supra, but it also treats a drug user as a drug dealer. See Commonwealth v. Pacheco, 464 Mass. 768, 772 (2013) (suspicion that individuals had been sharing marijuana did not give police officer probable cause to conduct automobile search); Commonwealth v. Jackson, 464 Mass. 758, 764-765 (2013) (warrantless search improper where observation of social sharing of marijuana did not give rise to probable cause for possession with intent to distribute); Commonwealth v. Daniel, 464 Mass. 746, 751-752 (2013) (two small bags of marijuana insufficient to give police officer probable cause to search vehicle). Accordingly, where judicial officers evaluate probable cause in such cases, they must be mindful of the risk that police officers or prosecutors might allege an intent to distribute based on the mere suspicion of such an intent for the purpose of charging the offender as a criminal or delinquent rather than as a civil violator. Prosecutors are entitled to exercise their discretion differently than they did before decriminalization and seek criminal or delinquency charges in cases where they earlier would have prosecuted the offender for mere possession of marijuana, but they may do so only where an intent to distribute is supported by probable cause.
2. Judicial authority to decide a motion to dismiss before arraignment. The juvenile contends that the judge erred in concluding that he lacked the discretion to rule on the motion to dismiss before arraignment. The Commonwealth argues that we should not reach this issue and lack jurisdiction to do so, because the juvenile did not file a notice of appeal challenging the judge’s ruling that he could not dismiss the case before arraignment. The juvenile concedes that no cross appeal was filed but argues that the question of the judge’s authority to dismiss the case before arraignment falls “under the umbrella of the government’s appeal.” Commonwealth v. LeBlanc, 407 Mass. 70, 73 n.5 (1990), quoting Commonwealth v. Mottola, 10 Mass. App. Ct. 775, 782 (1980).
“As a general rule, an appellate court considers only questions of law raised by a party who has appealed; it does not address issues argued by a non-appealing party seeking to have the lower court’s decision revised.” H.J. Alperin, Summary of Basic Law § 4.29, at 574 (4th ed. 2006) (Alperin). However, “[w]hile the general rule states that an appellee . . . may not secure modification of a judgment unless she has filed a cross appeal, this is a rule of practice, and is not jurisdictional.” Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 287-88 (1991). See O’Connor v. City Manager of Medford, 7 Mass. App. Ct. 615, 617-618 (1979); McLaughlin v. Amirsaleh, 65 Mass. App. Ct. 873, 885 n.18 (2006). We have the discretion to consider issues raised by a party who fails to cross-appeal and, where “circumstances compel it,” to take appropriate action. Id. See O’Connor, supra at 618 (“this case presents the compelling circumstances in which an appellate court can and should correct an erroneous judgment in the absence of a cross appeal”). See generally Alperin, supra at § 4.29, at 575 (appellate court “retains power to disregard the rule when the judgment is erroneous, has potentially wide impact, and relates to a matter of public concern”).
We exercise our discretion to consider whether a Juvenile Court judge may rule on a motion to dismiss before arraignment for three reasons. First, the issue is of substantial public concern. As the parties and the motion judge recognized, in Juvenile Court a juvenile’s name and charge is first placed in the court activity record information (CARI) database at arraignment. See Quirion & Thurau, Sealing Juvenile Records, in Massachusetts Criminal Offender Record Information (CORI) Law § 8.3, at 8-5 (Mass. Cont. Legal Educ. 2012), citing Blitzman & Zanini, Dispositions and Admissions, in 1 Massachusetts Juvenile Court Bench Book § 9.3, at 9-5 (Mass. Cont. Legal Educ. 2011) (“If a case is dismissed before arraignment, the juvenile will have no juvenile record for the case” [emphasis in original]). After arraignment, the juvenile’s name and delinquency charge become part of the juvenile’s permanent CARI record, and may not be expunged, even where the charge is immediately dismissed for lack of probable cause. See Commonwealth v. Gavin G., 437 Mass. 470, 471 (2002) (“Juvenile Court judges lack the authority to order the expungement of probation records”). A juvenile’s CARI is not a public record, but it “shall be accessible to the justices and probation officers of the courts, to the police commissioner for the city of Boston, to all chiefs of police and city marshals, and to such departments of the state and local governments as the commissioner [of probation] may determine.” G. L. c. 276, § 100. A juvenile may request the Commissioner of Probation to seal the juvenile’s delinquency record, but must wait three years after the termination of “any court appearance or disposition” to make such a request. G. L. c. 276, § 100B, first par. Even where the delinquency record is sealed, it may still be made available to a judge “for the purpose of consideration in imposing sentence” where the juvenile is adjudicated a delinquent or found guilty of a crime after the sealing of the record. G. L. c. 276, § 100B, fourth par. Consequently, the creation of a CARI record may adversely affect a juvenile, if only because “[p]rior records or lack thereof may be significant in the initial decision” whether to charge a juvenile with a crime. Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 656 n.10 (1978).
Second, if we do not decide the issue here, trial judges may view the issue as already decided based on dictum in other appellate decisions. The judge here appeared to rely on dictum in the single justice’s decision in concluding that he was obligated to arraign the juvenile before ruling on the motion to dismiss. Subsequently, the Appeals Court, also in dictum, declared that a defendant’s remedy for the issuance of a complaint without probable cause is “a postarraignment motion to dismiss.” Huggins, 84 Mass. App. Ct. at 111. Here, the parties were given notice that this court may reach this issue by the solicitation of amicus briefs, and the issue has been fully briefed by the parties. It makes more sense for this court directly to decide the issue after full briefing rather than defer and allow the issue to continue to be apparently decided based on dictum.
Third, for all practical purposes, the issue is moot, because the only reason the juvenile is aggrieved by the judge’s refusal to rule on his motion to dismiss before arraignment is that it resulted in the creation of a CARI record, and we are without authority to expunge a CARI record even if we were to find that the judge erred in thinking he did not have the discretion to decide the motion before arraignment. However, “we have on occasion answered questions in moot cases where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot.” Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984). See Commonwealth v. Dotson, 462 Mass. 96, 98-99 (2012). This case satisfies each of these criteria.
Having decided to reach the issue, we now address it. When a juvenile is arrested without a warrant, the police complainant must apply to a clerk-magistrate or judge for a delinquency complaint, based on information that is either reduced to writing or recorded. Mass. R. Crim. P. 3 (g) (1), as appearing in 442 Mass. 1502 (2004). Reporters’ Notes to Rule 3 (g) (1) (2004), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1343-1344 (LexisNexis 2012-2013). Where a judicial officer issues a complaint, the juvenile may not appeal its issuance but may move to dismiss the complaint. DiBennadetto, 436 Mass. at 313. There is nothing in our rules that prohibits a motion to dismiss from being filed or ruled upon before arraignment. Rule 13 (d) (2) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1516 (2004), which governs the filing of nondiscovery pretrial motions, including motions to dismiss, states only that a “pretrial motion which does not seek discovery shall be filed before the assignment of a trial date pursuant to Rule 11 (b) or (c) or within 21 days thereafter, unless the court permits later filing for good cause shown.”
At the time of the arraignment in this case, Mass. R. Crim. P. 7 (a) (1), as appearing in 442 Mass. 1506 (2004), provided that after a juvenile’s arrest, the juvenile shall be brought before the court for an initial appearance, where counsel may be assigned and conditions of release determined, and “[t]he judge or special magistrate shall then arraign the defendant or shall set a time for arraignment,” where the juvenile will enter a plea to the delinquency charges. The reporters’ notes to the rule recognized that the initial appearance and arraignment “need not be separate events,” but stated that “[t]he preferred practice . . . is to postpone arraignment until such time as the defendant has had a meaningful opportunity to consult with counsel.” Reporters’ Notes to Mass. R. Crim. P. 7 (a) (1) (2004), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1389 (LexisNexis 2012-2013). Although an initial appearance must promptly follow an arrest, see Mass. R. Crim. P. 7 (a) (1) (“defendant who has been arrested shall be brought before a court if then in session, and, if not, at its next session”), the decision whether to continue an arraignment following an initial appearance and, if so, for how long, rests in the sound discretion of the judge. Commonwealth v. Haas, 398 Mass. 806, 814 (1986), quoting Commonwealth v. Cavanaugh, 371 Mass. 46, 50-51 (1976) (“Ordinarily, the granting of a continuance rests in the sound discretion of the trial judge”).
Where, as here, a juvenile files a motion to dismiss a complaint before arraignment based on the absence of probable cause, and where a judge, after reviewing the “four corners” of the complaint application, concludes that there is a substantial likelihood that the motion is meritorious, a judge does not abuse his discretion in deciding to hear and rule on that motion before arraignment to protect the child from the potential adverse consequences of a CARI record. Because G. L. c. 119, § 53, mandates that juveniles “as far as practicable . . . shall be treated, not as criminals, but as children in need of aid, encouragement and guidance,” we recognize that the juvenile justice system “is primarily rehabilitative, cognizant of the inherent differences between juvenile and adult offenders, and geared toward ‘the correction and redemption to society of delinquent children.’” Commonwealth v. Magnus M., 461 Mass. 459, 461 (2012), quoting Metcalf v. Commonwealth, 338 Mass. 648, 651 (1959). See generally, R.L. Ireland, Juvenile Law § 1.3, at 18 (2d ed. 2006). We therefore recognize the importance of giving Juvenile Court judges broad discretion to protect the best interests of children consistent with the interests of justice. See, e.g., Magnus M., supra at 465-467 (allowing Juvenile Court judges to continue juvenile case without finding after conviction at trial); Commonwealth v. Balboni, 419 Mass. 42, 46 (1994), citing Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. at 666-667 (Juvenile Court “judge has very broad discretion . . . to further the child’s best interests”). Protecting a child from the stigma of being perceived to be a criminal and from the collateral consequences of a delinquency charge is important even where the complaint is supported by the evidence. See Magnus M., supra at 467, citing Commonwealth v. Connor C., 432 Mass. 635, 642 (2000); Balboni, supra. It is even more important where the charge is not supported by probable cause. Although a Juvenile Court judge is powerless to expunge a CARI record where a delinquency charge is brought without probable cause, the judge is not powerless to act before arraignment to prevent the creation of a CARI record where the charge was issued without probable cause, and where doing so would serve both the best interests of the child and the interests of justice.
Having declared that the judge here had the discretion to rule on the motion to dismiss before arraignment, we decline to provide the unusual remedial relief sought by the juvenile of expunging the juvenile’s CARI record. As we have noted, we do not have the authority to expunge a juvenile’s CARI record. See Gavin G., 437 Mass. at 471.
SPINA, J. (dissenting, with whom Cordy, J., joins in part). I do not agree that a judge may rule on a motion to dismiss before arraignment. Rule 11 (a) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1509 (2004), states that “[a]t arraignment . . . the court shall order the prosecuting attorney and defense counsel to attend a pretrial conference on a date certain to consider such matters as will promote a fair and expeditious disposition of the case” (emphasis added). Rule 11 (a) (1) outlines the agenda for the pretrial conference, and rule 11 (a) (1) (A) identifies the following items among those to be discussed at the pretrial conference:
“Discovery and all other matters which, absent agreement of the parties, must be raised by pretrial motions. All motions which cannot be agreed upon shall be filed pursuant to [Mass. R. Crim. P. 13 (d), as appearing in 442 Mass. 1516 (2004)]” (emphasis added).
Rule 11 (b) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1509 (2004), states that, “[a]t arraignment,” in addition to scheduling a pretrial conference, the judge “shall order the prosecuting attorney and defense counsel to appear before the court on a date certain for a pretrial hearing” (emphasis added). Rule 11 (b) (2) (ii) provides that at the pretrial hearing,
“the court shall hear all discovery motions pending at the time of the pretrial hearing. Other pending pretrial motions may be heard at the pretrial hearing, continued to a specific date for a hearing, or transmitted for hearing by the trial session” (emphasis added).
Rule 13 (c) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1516 (2004), is concerned with pretrial motions, including motions to dismiss. Rule 13 (d), as previously mentioned, addresses the filing of motions as to matters on which the parties could not reach agreement at the pretrial conference. The earliest date for hearing pretrial motions is the pretrial hearing date. The point here is that the rules of criminal procedure contemplate a motion practice that does not become engaged until the arraignment and which unfolds after arraignment. The reasoning of the court for hearing a motion to dismiss before arraignment is contrary to the procedure set forth in the rules for hearing motions.
Allowing a motion to dismiss to be heard prior to arraignment runs contrary to three other principles. First, we have said that there is no authorization under G. L. c. 218, § 35A, for a rehearing of a clerk-magistrate’s finding of probable cause, except by way of a motion to dismiss. See Commonwealth v. DiBennadetto, 436 Mass. 310, 312-314 (2002). By authorizing the use of a motion to dismiss before arraignment, the court has manufactured a means to avoid both the effect of the statute and our decision.
Second, the court has interjected a dispositional theory, namely, the best interests of the child, into the manner in which the rules of criminal procedure are applied. We have been careful to reserve “best interests” analysis for the disposition stage of a case, separate and apart from principles related to adjudication and procedural aspects of a case. See Commonwealth v. Magnus M., 461 Mass. 459, 466-467 (2012); Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 666-667 (1978). See also In re Winship, 397 U.S. 358, 366 (1970); In re Gault, 387 U.S. 1, 30-31 (1967). Modern jurisprudence has viewed the wisdom of mixing the two as questionable.
Third, in Commonwealth v. Gavin G., 437 Mass. 470 (2002), we traced the legislative history of the court activity record information (CARI) database and said:
“When addressing the precise predicament of a wrongfully accused adult unfairly acquiring a criminal record, the Legislature still opted for sealing, not destruction of expungement of records. As to both juveniles and adults, the Legislature is apparently satisfied with provisions for confidentiality and sealing of records to address the precise problem posed by such wrongful or mistaken accusations of criminal conduct.” (Footnote omitted.)
Id. at 482-483. The Legislature, presumed to know of our decision in Gavin G., see Commonwealth v. Vega, 449 Mass. 227, 231-232 (2007), and fully aware of the concept of “best interests of the child,” nevertheless apparently remains satisfied with its enactments in this area. It has not amended the statute to produce the result that the court today has reached to avoid the creation of a CARI record. The intent of the Legislature should be controlling. For these reasons I would hold that a motion to dismiss may not be decided before arraignment.
I also do not agree that the complaint did not issue upon probable cause. I believe that the court has stated the law correctly with regard to review of a determination of probable cause. In particular, I agree that the element of intent to distribute a controlled substance may be satisfied by circumstantial evidence, Commonwealth v. Martin, 48 Mass. App. Ct. 391, 392-393 (1999), that probable cause must be determined from the totality of the circumstances, Commonwealth v. Hernandez, 448 Mass. 711, 715 (2007), and that probable cause is a concept that is guided by “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 (1949). However, I believe the court abandoned the totality of the circumstances analysis when it embarked on a consideration of the evidentiary factors individually. As a result, the synergistic effect of the parts on each other was lost, and the whole was deprived of being more than the sum of its parts. See Phillips v. Chase, 201 Mass. 444, 448 (1909) (“When circumstantial evidence is largely relied upon to establish an issue, it is inevitable that many matters should be introduced which by themselves alone would be immaterial, although in connection with other evidence they may be helpful in discovering the truth”); Commonwealth v. Ahart, 63 Mass. App. Ct. 413, 416 (2005) (“The defendant’s attempt to isolate each piece of the Commonwealth’s evidence as insufficient is unavailing”).
The juvenile was wearing a pair of pants over a pair of shorts, and inside one pocket of the shorts were five plastic baggies of marijuana. He recently had smoked enough marijuana to have reeked of it, so the absence of smoking paraphernalia suggested he had something else in mind for the five baggies, most probably distribution. See Commonwealth v. Ahart, supra at 414. Granted, he did not have a scale, a pager, or a cellular telephone, but he was entering a closed environment, a school, that had many sets of vigilant eyes protective of the best interests of other children in the school. He could not carry the usual items needed to set up shop. See id. Instead, he carried a small amount for distribution — just enough for the brief periods between classes when he could conduct his business without calling undue attention to himself. See id. In all likelihood, given the school environment, he could deal only with people he knew and trusted. The manner in which he concealed the marijuana suggests he might access his supply in a restroom or outdoors during a break — after satisfying himself that no authority figures were in the vicinity. Having been discovered, he became “very defensive and agitated.” The totality of these circumstances paints a picture from which a reasonable person could infer that the juvenile intended to distribute the paltry amount of marijuana secreted on his person. The amount of marijuana is not determinative. Commonwealth v. Ahart, supra at 415. The packaging is significant. See id.; Commonwealth v. Martin, supra at 392. Also significant is the manner in which he concealed the contraband, and the context in which the juvenile was engaged — a closely watched schoolhouse. See Commonwealth v. Ahart, supra at 414.
Although it may well be a matter of scientific fact that the juvenile brain is undeveloped in a way that makes it more prone to poor judgment and therefore less culpable than an adult’s, experience tells us that the juvenile brain is not short on creativity for mischief. See Miller v. Alabama, 132 S. Ct. 2455, 2464-2465 (2012); Graham v. Florida, 130 S. Ct. 2011, 2026 (2010). I am concerned that the court has given juveniles willing to distribute marijuana in school a blueprint for minimizing accountability: keep it at one ounce or less, and keep the number of baggies under six, and at most you are looking at simple possession, a civil infraction. See G. L. c. 94C, § 32L.
I respectfully dissent.
CORDY, J. (concurring in part and dissenting in part). I join Justice Spina’s dissent on the question whether our rules of criminal procedure permit a judge to act on a motion to dismiss a delinquency complaint before arraignment, where a clerk-magistrate has issued the complaint based on the clerk-magistrate’s assessment that probable cause has been shown.
I concur with the court in its conclusion that the judge did not err in dismissing the complaint, after arraignment, on the ground that the application fell short of probable cause.
 When we refer to a Juvenile Court judge in this opinion, we intend to include any judge who sits in a Juvenile Court or a juvenile session of a District Court.
 We acknowledge the amicus brief filed by the American Civil Liberties Union of Massachusetts, Children’s Law Center of Massachusetts, Citizens for Juvenile Justice, and the Criminal Justice Institute at Harvard Law School.
 Under Mass. R. Crim. P. 3 (g), as appearing in 442 Mass. 1502 (2004), the applicant for the complaint, under oath, “shall convey to the court the facts constituting the basis for the complaint,” and “the complainant’s account shall be either reduced to writing or recorded.”
 General Laws c. 94C, § 32L, states, in pertinent part:
“Notwithstanding any general or special law to the contrary, possession of one ounce or less of marihuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marihuana, but not to any other form of criminal or civil punishment or disqualification. An offender under the age of eighteen shall be subject to the same forfeiture and civil penalty provisions, provided he or she completes a drug awareness program . . . . If an offender under the age of eighteen fails within one year of the offense to complete both a drug awareness program and the required community service, the civil penalty may be increased . . . to one thousand dollars and the offender and his or her parents shall be jointly and severally liable to pay that amount.”
 We also note the absence of other evidence in the application suggestive of an intent to distribute: there was no evidence that the juvenile had approached another student in a suspicious manner or that the juvenile had any history of drug dealing.
 We need not consider in this case whether there are exceptions to the general rule that “failure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below” (emphasis in original). Hartford Ins. Co. v. Hertz Co., 410 Mass. 279, 288 (1991), quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n.5 (1977). Our decision does not result in a judgment more favorable to the juvenile than the judgment entered below. See infra at 22.
 Court activity record information (CARI) records are compiled by the Department of Probation and include an individual’s criminal offender record information (CORI) and all court appearances related to juvenile delinquency and civil protective order proceedings. See Commonwealth v. Boe, 456 Mass. 337, 341 n.8 (2010); Standing Order 1-11 of the Probate and Family Court, Mass. Ann. Laws Court Rules, at 1450 (LexisNexis 2012-2013).
 We note that the juvenile in this case had no prior juvenile record.
 The announcement soliciting amicus briefs in this case declared in relevant part:
“The Justices are soliciting amicus briefs. The issue is whether a juvenile court judge has discretion prior to an arraignment under the authority of Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002), to allow a motion to dismiss a juvenile complaint for possession of marijuana with intent to distribute; in the circumstances, the judge dismissed the complaint upon motion for lack of probable cause immediately after arraignment.”
 Because the purpose of such an exercise of discretion would be to protect a juvenile from the adverse consequences of a CARI record where the complaint was issued without probable cause, our holding is limited to juvenile adjudications. We do
not address whether it would be an abuse of discretion for a judge to rule on a motion to dismiss filed by an adult defendant before arraignment.
We also note that Mass. R. Crim. P. 7 (a) was amended in 2012 to eliminate the separate event of an initial appearance and include within the arraignment the appointment of counsel and the setting of conditions of release. Mass. R. Crim. P. 7 (a), as appearing in 461 Mass. 1501 (2012). The reason for the amendment was that “[t]he widespread availability of counsel to represent defendants at arraignment made this separate event [the initial appearance] unnecessary.” Reporters’ Notes to Rule 7 (a) (1) (2012), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1392 (LexisNexis 2012-2013). We do not address whether or how the merger of the initial appearance with the arraignment under the amended rule would affect a Juvenile Court judge’s exercise of discretion in deciding whether to resolve a motion to dismiss before arraignment.
12‑P‑1586 Appeals Court
FRANCIS BEATTY’S CASE
(and four companion cases).
Suffolk. May 10, 2013. ‑ November 26, 2013.
Present: Cohen, Graham, & Fecteau, JJ.
Workers’ Compensation Act, Reimbursement of insurer, Cost of living allowance. Limitations, Statute of. Practice, Civil, Statute of limitations. Statute, Construction. Administrative Law, Regulations. Regulation.
Appeal from a decision of the Industrial Accident Reviewing Board.
Kirk G. Hanson, Assistant Attorney General, for Workers’ Compensation Trust Fund.
John J. Canniff for the employer.
GRAHAM, J. At issue is whether a two-year limitations period, established by a regulation of the Department of Industrial Accidents (department), see 452 Code Mass. Regs. § 3.03(3) (1999), should be applied to bar certain claims of Harvard University (Harvard), a self-insurer, for reimbursement of cost of living adjustments (COLA) from the Workers’ Compensation Trust Fund (Fund), pursuant to G. L. c. 152, § 34B, as amended by St. 1991, c. 398, § 61. The Fund appeals from a decision of the department’s reviewing board (board), declining to enforce the regulation. We reverse the board’s decision.
Background. General Laws c. 152, § 34B, provides that any person receiving workers’ compensation benefits under G. L. c. 152, § 31 or § 34A, also receive an additional benefit in an amount intended to protect the employee from the effects of inflation. See Sliski’s Case, 424 Mass. 126, 135 (1997). The statute requires that insurers pay these COLA supplemental benefits (COLA benefits) concurrently with the employee’s base benefits. Relevant here, insurers paying COLA benefits to employees whose injuries occurred on or before October 1, 1986, are entitled to be reimbursed for those amounts from the Fund, so long as the insured employer participates in the assessment provisions that supply the revenues for the Fund, pursuant to
c. 152, § 65.
On July 22, 2010, Harvard filed claims seeking reimbursement from the Fund for COLA benefits it paid to five employees, Francis Beatty, Maria Carvalho, Adolphus Gordon, Helena Raposo, and Francis Yebba, from July 1, 2005, through June 30, 2010. The Fund denied Harvard’s claims for reimbursement for COLA benefits Harvard paid from July 1, 2005, through July 21, 2008, as those payments were made more than two years before Harvard filed its claims for reimbursement. A department regulation, 452 Code Mass. Regs. § 3.03(3) (regulation), provided for reimbursement only for petitions made within two years of the date the payment of COLA benefits was due. The Fund did reimburse Harvard for COLA benefits paid from July 21, 2008, through June 30, 2010, as they fell within the two-year limitations period.
Harvard appealed, and an administrative judge sided with the Fund, finding that the two-year limitations period had a rational purpose — to ensure timely payments of COLA benefits and to protect the integrity of the Fund and its budget process from stale claims. The board reversed, ruling that the Fund was not charged with policing the prompt payment of COLA benefits, that the Fund has not consistently applied the two-year limitations period, and that the only entity that benefited from the regulation was the Fund itself. The Fund and Harvard filed cross appeals for judicial review, pursuant to G. L. c. 152, § 12(2).
Discussion. Harvard, as the party challenging a properly promulgated regulation, bears the heavy burden of showing “that the regulation has no rational relationship to the goals or policies of the agency’s enabling statute.” Miller v. Labor Relations Commn., 33 Mass. App. Ct. 404, 407 (1992). However, “[t]he board, as the agency charged with administering the workers’ compensation law, is entitled to substantial deference in its reasonable interpretation of the statute.” Sikorski’s Case, 455 Mass. 477, 480 (2009). While “[w]e will not substitute our judgment for that of [the board] if its interpretation of a statute is reasonable,” Alves’s Case, 451 Mass. 171, 177 (2008), “this principle is one of deference, not abdication.” Leopoldstadt, Inc. v. Commissioner of the Div. of Health Care Fin. & Policy, 436 Mass. 80, 91 (2002), quoting from Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997).
The question, then, is whether the board was reasonable in its determination that the regulation’s two-year limitations period “serves no rational purpose within the ambit of [G. L.
c. 152, § 34B].” Our analysis “employ[s] a two-part test to assess the validity of an administrative agency’s properly promulgated regulation.” Massachusetts Teachers’ Retirement Sys. v. Contributory Retirement Appeal Bd., 466 Mass. 292, 297 (2013). First, we consider whether the statute is unambiguous, and if it is, “we give effect to the Legislature’s intent.” Ibid., quoting from Goldberg v. Board of Health of Granby, 444 Mass. 627, 632-633 (2005). “Second, if the Legislature has not addressed directly the pertinent issue, we determine whether the agency’s resolution of that issue may ‘be reconciled with the governing legislation.’” Ibid.
We begin with the language of the statute. General Laws
c. 152, § 34B, requires that death and disability benefits be supplemented with a COLA benefit, to be paid concurrently and without the need for application by the recipient. Section 34B(c) sets out the insurer’s right to reimbursement for COLA benefits and contains no time limit for the insurer to file a claim for COLA reimbursement. Where the statute makes no reference to a limitations period, we consider “whether there is anything in the statute or its legislative history that indicates an express or implied legislative intent that such [actions] are not time limited.” State Bd. of Retirement v. Woodward, 446 Mass. 698, 707 (2006). See Nantucket v. Beinecke, 379 Mass. 345, 348 (1979) (if Legislature had intended that actions not be time-limited, it would be natural for such intent to be expressed in statute).
Harvard maintains that use of the word “shall” in § 34B(c), providing that “[i]nsurers shall be entitled to quarterly reimbursements for supplemental benefits,” evinces a legislative intent that insurers are to receive COLA reimbursements without time limits. The phrases “in no event” and “under no circumstances” have been so construed. See State Bd. of Retirement v. Woodward, 446 Mass. at 708. But we are not persuaded that “shall,” in this context, signifies an unqualified right to reimbursement. Compare Taylor’s Case, 44 Mass. App. Ct. 495, 499 (1998). Section § 34B(c) goes on to narrow the right to reimbursement by the date of injury and by the employer’s participation in the Fund. In addition, § 34B(c) specifically links the insurer’s entitlement to reimbursement to G. L. c. 152, § 65, inserted by St. 1991, c. 398, § 85, which sets out the funding mechanism for such reimbursements and imposes further requirements and restrictions on employers seeking to avail themselves of the Fund. See E.I. Dupont de Nemours & Co. v. Commonwealth, 65 Mass. App. Ct. 350, 352 (2005). We therefore do not construe the express language of § 34B, in and of itself, as prohibiting the department from imposing time restrictions on COLA reimbursement claims. See Goldberg v. Board of Health of Granby, 444 Mass. at 633, quoting from Berrios v. Department of Pub. Welfare, 411 Mass. 587, 595-596 (1992) (agency “‘has considerable leeway in interpreting a statute it is charged with enforcing’ unless a statute unambiguously bars the agency’s approach”).
We next consider whether the two-year limitations period can be reconciled with the statute’s underlying purpose. See Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 646 (2000); Goldberg v. Board of Health of Granby, 444 Mass. at 633. As noted, c. 152, § 34B, calls for COLA benefits to be paid without application by the recipient and concurrently with the recipient’s base benefits. It also entitles insurers to quarterly COLA reimbursements. Prompt payment and reimbursement of COLA benefits is plainly contemplated. Moreover, since the insurer’s right to reimbursement in § 34B(c) is explicitly tied to c. 152, § 65, we read them together. See E.I. Dupont de Nemours & Co. v. Commonwealth, 65 Mass. App. Ct. at 353-354 (interpretation of when entitlement to reimbursement ends was supported by manner in which Fund is financed).
Chapter 152, § 65, delineates, among other things, the process by which the Fund is to assess amounts to be paid into the Fund by participating employers. In particular, § 65 requires the department to establish the Fund’s budget based on the department’s annual estimates, made on or before July 1 of each year, of “the total amount of funds required to make payments during the following twelve months for the compensation payable pursuant to subsection (2) of this section.” G. L.
c. 152, § 65(4)(b). It is the employer assessments that provide the Fund’s revenue, and these are calculated annually, based on the losses paid by the participating employers in the preceding year, as reported to the department by May 1 of each year. G. L. c. 152, § 65(2) & (3). As a consequence, an employer who chooses not to participate in the Fund must give its notice of nonparticipation by March 1, so that it will not be included in the assessments for the next year’s funding. See E.I. Dupont de Nemours & Co. v. Commonwealth, 65 Mass. App. Ct. at 354. This method of annual budgetary estimate based on anticipated reimbursements is the reason we have described the Fund as a “pay-as-you-go” system. Id. at 355.
The department’s stated reasons for promulgating the two-year limitations period in 452 Code Mass. Regs. § 3.03 were to avoid claims for COLA reimbursements more than two years from the date the COLA benefits were due, “and to avoid prejudice to employers in the application of their assessments for reimbursement of claims.” Hence, eliminating older reimbursement claims was intended to further the statutory goal of maintaining the Fund’s pay-as-you-go design, or, as the administrative judge put it, of protecting the integrity of the Fund and its budget process from stale claims and the risk of a shortfall. We think c. 152, §§ 34B & 65, taken together, evince a clear legislative intent that the department is charged with administering the Fund and providing COLA reimbursements in a manner that promotes prompt payment, accuracy, and fairness in the budgetary and assessment process. See, e.g., ibid. (employer’s election not to participate in Fund is irrevocable, thereby precluding reengagement in reimbursement mechanism).
This statutory purpose is to be contrasted with G. L. c. 152, § 37, addressed in Alves’s Case, 451 Mass. 171, on which Harvard relies. Section 37 provides for reimbursement for portions of workers’ compensation benefits paid to reinjured employees and, as of 1991, imposes a two-year statute of limitations on reimbursement claims for injuries occurring after 1991. In Alves’s Case, the Supreme Judicial Court declined to apply the two-year statute of limitations to the pre-1991 version of § 37 to bar the self-insurer’s claim for reimbursement for benefits paid to an employee injured before 1991. Id. at 173-180. The court relied principally on express statutory language that the 1991 amendments were to apply prospectively. Id. at 172, 178-179. But also deemed significant was the purpose of § 37, which was to encourage employers to rehire injured workers, and the court reasoned that barring older reimbursement claims would undercut the incentive intended by the statute. Id. at 179. The case has limited application here, as § 34B mandates timely payment and reporting of COLA benefits, with the plain purpose of protecting benefit recipients against inflation and the pay-as-you-go design of the Fund’s budgetary and assessment process. Wholly absent is the need to provide incentive to employers to participate by allowing stale COLA reimbursement claims to linger.
Harvard suggests, as did the board, that a procedure exists for funding older COLA reimbursement claims that were not included in the Fund’s annual budget estimate and that result in a budget shortfall. Chapter 152, § 65(4)(c), permits the department to levy additional assessments against employers in order to raise revenues where claims exceed budget estimates within a given year. Harvard points to this option as eliminating the justification for imposing a time limit on filing COLA reimbursement claims.
In our view, levying additional assessments to fund stale COLA reimbursement claims places an unintended and wholly unnecessary burden on participating employers. It poses uncertainty and inconvenience on employers required to pay unanticipated assessments, over and above those levied annually. It also imposes needless administrative costs associated with developing supplemental budgets and obtaining supplemental funding, costs that may be borne by the participating employers that provide the Fund’s revenues. G. L. c. 152, § 65(2). Indeed, the board’s observation that only the Fund benefits from the two-year limitations period appears to overlook the fact that it is the participating employers that in fact derive the benefit, as they are the source of the Fund’s revenues and administrative costs.
In light of the Fund’s statutory framework, we think it an appropriate function of the department to ensure that participating employers are assessed accurately and fairly, on an annual basis, in furtherance of the pay-as-you-go system intended by the Legislature, and to avoid uncertainty and needless administrative costs associated with supplementing the budget and levying additional assessments to pay stale claims in the event of a shortfall. A two-year limitations period strikes a reasonable balance between the insurer’s entitlement to COLA reimbursement and the department’s responsibility to estimate the Fund’s budget on an annual basis and to levy assessments and administer benefits promptly and accurately. See, e.g., Doe v. Harbor Schs., Inc., 446 Mass. 245, 256 (2006) (statutes of limitations “represent society’s considered, although often far from perfect, compromise between” plaintiffs’ rights and society’s need for finality). In accordance with G. L. c. 152, § 5, which instructs that the Commissioner of the department “shall promulgate rules and regulations consistent with this chapter for carrying out the functions of the department,” we believe the two-year limitations period serves as a considered compromise to further the intent of the statute and its funding mechanism, and presents “a reasonable resolution of the [statute's] silence.” Massachusetts Teachers’ Retirement Sys. v. Contributory Retirement Appeal Bd., 466 Mass. at 302.
The legislative history concerning the two-year limitations period confirms our view. In 1988, the department promulgated a regulation, 452 Code Mass. Regs. § 3.06 (1988), that imposed a two-year limitations period for COLA reimbursement claims. The 1988 version differed from the current regulation only in that the two years accrued from the date the COLA benefit was paid, rather than the date the benefit was due. The current form of the regulation, 452 Code Mass. Regs. § 3.03(3), became effective in 1999. In the interim, the Legislature amended the workers’ compensation statute in 1991, see Sliski’s Case, 424 Mass. at 129-130, but did so without addressing the earlier regulation’s two-year limitations period for COLA reimbursement claims. We may imply legislative intent from the fact that a two-year limitations period was in effect when the Legislature revisited § 34B, and took no steps to prohibit its application. See Harborview Residents’ Comm., Inc. v. Quincy Hous. Authy., 368 Mass. 425, 432 (1975); Falmouth v. Civil Serv. Commn., 447 Mass. 814, 820 n.8 (2006); Pavian, Inc. v. Hickey, 452 Mass. 490, 494 (2008).
Based on the foregoing, we determine that the two-year limitations period set forth in 452 Code Mass. Regs. § 3.03(3) is rationally related to the purpose of G. L. c. 152, § 34B, and should be applied to the COLA reimbursement claims in this case. While we understand the board’s motivation to resolve the otherwise meritorious claims on essentially equitable principles, we conclude that its decision is inconsistent with the statute and regulation, and that the analysis of the administrative judge was essentially correct. Accordingly, the decision of the board is reversed.
 The employees in the companion cases are Maria Carvalho, Adolphus Gordon, Helena Raposo, and Francis Yebba.
 We note that “shall” is also used in G. L. c. 152, § 5, regarding the duty of the Commissioner of the department to promulgate rules and regulations consistent with carrying out the department’s functions, and also appears throughout c. 152, § 65, regarding the department’s duty to estimate the Fund’s budget and determine annual assessments.
 The Fund, pursuant to § 65(2), provides for payments and reimbursements for seven categories of benefits, including “reimbursement of adjustments to weekly compensation pursuant to section thirty-four B.” Also included are payment of benefits for claims against uninsured employers, payment for certain vocational rehabilitation benefits, and reimbursement for benefits paid for second injuries.
 To this end, c. 152, § 65(12), also provides: “The commissioner shall supervise, monitor and establish procedures for all aspects of the assessment of insured and self-insured employers and self-insurance groups including but not limited to the proper reporting of base amounts; the determination of proper assessment rates; the calculation, billing and collection of assessment payments; proper accounting; reporting and transmittal by insurers of assessment payments by insured employers; and all other matters necessary to assure proper compliance with this section; and may issue regulations and conduct hearings for this purpose. He also shall establish procedures for the review and adjudication of grievances by employers with respect to the propriety and accuracy of assessed payment.”
 Chapter 152, § 65(4)(c), provides, in relevant part: “Additional assessments may be levied by the commissioner, subject to the approval of the director of labor and workforce development, if he finds such assessments necessary in order to make disbursements for any expenses or compensation payments in the fiscal year which exceed the revenue generated by the assessments for the fiscal year levied pursuant to subsection (5). Any additional assessment proposed by the commissioner shall be reviewed by the advisory council. Upon an affirmative vote of at least seven voting members, the advisory council may submit its estimate of the necessary additional assessment to the director of labor and workforce development.”
 Chapter 152, § 65(2), provides, in relevant part: “The reasonable and necessary costs of administering and representing the Workers’ Compensation Trust Fund may be paid out, without appropriation, of said trust fund.”
 The board’s additional rationale, that the Fund has not been consistent in its application of the two-year limitations period, was supported only by reference to the department’s circulation letters since enactment of 452 Code Mass. Regs. § 3.03, which make no mention of the limitations period. Even assuming that this argument is relevant, nothing in the record indicates that the Fund has paid stale COLA reimbursement claims.
 The board, rather than the Fund, raised the significance of the date of the regulation’s enactment at the hearing. At the board’s request, the Fund submitted copies of all versions of the regulation, from 1986 to the present, and noted in particular that the two-year limitations period was in effect, in slightly different form, prior to the 1991 amendment to c. 152, § 34B.
The board did not address the point in its decision, and denied the Fund’s motion for reconsideration, citing lack of jurisdiction.
12‑P‑1380 Appeals Court
COMMONWEALTH vs. SHAWN P. JOYCE.
Essex. September 17, 2013. ‑ November 26, 2013.
Present: Kafker, Trainor, & Maldonado, JJ.
Arrest. Resisting Arrest. Evidence, Intent. Intent. Wilful, Wanton, or Reckless Conduct. Fire Fighter.
Complaint received and sworn to in the Newburyport Division of the District Court Department on April 13, 2011.
The case was heard by Michael A. Uhlarik, J.
Leslie B. Salter for the defendant.
Paul C. Wagoner, Assistant District Attorney, for the Commonwealth.
KAFKER, J. After shouting obscenities at the fire chief and police officers responding to a fire at his home, ignoring their orders, and wrestling with them inside the burning building, the defendant, Shawn P. Joyce, was convicted of wilfully interfering with a fire fighter in the performance of his duty, see G. L. c. 268, § 32A, and resisting arrest, see G. L. c. 268, § 32B. He argues on appeal that there was insufficient evidence for the judge to find him guilty of either offense. We affirm.
Background. The evidence at the bench trial was as follows. At about 8:00 P.M. on April 12, 2011, neighbors discovered a fire at 69 Pearson Drive in the Byfield section of Newbury, where the defendant lived with his mother, his dog, and several “feral” cats. The blaze already had engulfed at least one side of the home, and flames were rising fifty feet high. After telephoning 911, two neighbors, one of whom was a nurse, ran to the house, calling out to determine whether the defendant and his mother were safe. These neighbors found the defendant and his mother outside the house and witnessed him cursing and pounding the trunk of his car. When the neighbors managed to attract the defendant’s attention, he shouted threats and profanity at them and chased them off the property.
Shortly thereafter, Newbury police Officer Stephen Smith arrived at the burning home. As Smith walked up the driveway, the defendant briskly approached him and began swearing at him and blaming him for a number of misfortunes, including the likely death of family pets in the fire. Observing that the defendant was out of control, Smith ordered him to stay back. The defendant responded by continuing to shout obscenities and by walking back toward the house. Despite the officer’s repeated warnings to keep away from the burning building, the defendant declared he was going to get more animals and went inside, as did his mother.
Newbury fire Chief William Pearson (fire chief or Pearson) arrived at the scene in his private vehicle at 8:14 P.M., just before the defendant’s reentry into the house. Pearson’s first task normally would have been to assess the condition of the building and the extent of the fire in order to develop a strategy to fight it. However, he was immediately concerned for the safety of the defendant and his mother as Pearson had been told that they were in the house. The fire chief wanted to avoid risking the lives of other fire fighters who later might need to go inside the building to rescue them. In addition, the available methods of fighting the fire would be reduced if anyone were in the building. Already dressed in his fire fighting gear, Pearson entered the house. He found the defendant standing near a washing machine and dryer in a basement-type room. Smoke already was filling the upper half of the room, and burning embers were coming through the floor above them.
Pearson promptly ordered the defendant to leave the building. The defendant responded by putting up his finger and saying, “F-U, I am not leaving this building. I should have called the water department first; they would have got here faster.” The defendant ignored further orders to depart and continued swearing at the fire chief. Pearson eventually grabbed him and attempted to push him out the door. The defendant struggled with the fire chief, pushed him back, and twisted away from him. Officer Smith, who was still outside, saw that the two men might end up on the floor wrestling each other, so he entered the room, placed the defendant in a modified headlock, and dragged him outside. The fire chief and the defendant’s mother followed. In total, Pearson spent about four minutes in the home with the defendant.
Once outside, Smith ordered the defendant to wait beside a vehicle in the driveway while the officer stood nearby attending to other duties. With the building clear of people, Pearson resumed assessing the fire situation and began directing the fire crews, who had just arrived.
Several minutes later, the fire chief confronted the defendant about what had happened inside, and the defendant began a new eruption of obscenities and threatening behavior. By that time, Newbury police Officer Michael Croteau had reached the scene. He directed the fire chief away and several times ordered the defendant to stop. When the defendant did not relent, Croteau placed the defendant’s right arm behind his back in an armlock and told him to put his hands behind his back because he was under arrest. The defendant still did not stop shouting and instead struggled to pull his arms forward and maintain a fighting stance with the fire chief. Smith had to help Croteau turn the defendant toward an adjacent vehicle, turn his face away from them, and bring his left hand back far enough to place him in handcuffs — a process that required about thirty seconds. Because the defendant still was tensing his arms, the officers had to use two sets of handcuffs to bridge the gap between his wrists. As the officers escorted the defendant to a cruiser parked along the street, he continued to work against them, refusing to move his feet, pushing backwards, and straining to turn in order to shout threats and insults at bystanders.
Discussion. The defendant argues that the evidence presented at trial was insufficient to support findings of guilt of either wilfully interfering with a fire fighting operation or resisting arrest. When reviewing a challenge to the sufficiency of the evidence, we “consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). We review questions of law de novo. Commonwealth v. George W. Prescott Publishing Co., LLC, 463 Mass. 258, 264 n.9 (2012).
1. Wilful interference with fire fighting operation. According to G. L. c. 268, § 32A, as appearing in St. 1968, c. 82:
“Whoever willfully obstructs, interferes with or hinders a fire fighter in the lawful performance of his duty, or whoever willfully obstructs, interferes with or hinders a fire fighting force in the lawful performance of its duty, shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in a jail or house of correction for not less than thirty days nor more than two and one half years or by imprisonment in the state prison for not more than five years, or by both such fine and imprisonment in a jail or house of correction.”
We turn directly to the plain language of the statute to determine its meaning. We note further that there is no appellate case law interpreting it. Compare Commonwealth v. Perella, 464 Mass. 274, 276 (2013). The statute penalizes a defendant who wilfully obstructs, interferes with, or hinders a fire firefighter in the lawful performance of his duties. The term “‘wilful’ means intentional and by design in contrast to that which is thoughtless or accidental.” Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983). See Commonwealth v. Armand, 411 Mass. 167, 170 (1991). In addition, wilfulness requires “a showing that the defendant intended both the conduct and its harmful consequences” (emphasis supplied). Ibid. In the statute, the word “wilfully” modifies the words “obstructs, interferes with or hinders.” Thus, by its plain terms, the statute punishes the intentional interference, obstruction, or hindrance of a fire fighter in the lawful performance of his duties. We interpret this language to mean that the defendant must intend not just his conduct, but the harmful consequences of the conduct — that is, the interference with, obstruction, or hindrance of the fire fighter. See Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990). See also Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 121-122 (1987) (similar language in G. L. c. 265, § 37, required intent to cause prohibited consequences of one’s acts). Indeed, the express language and the design of the statute make clear that it is the interference, obstruction, or hindrance itself that must be intended.
In the instant case, we have no difficulty concluding that a rational trier of fact could have found beyond a reasonable doubt that the defendant wilfully interfered with, obstructed, or hindered the fire chief in the lawful performance of his duties. There is no dispute that the fire chief was engaged in the lawful performance of his duties. There also is overwhelming evidence of the actual interference, obstruction, or hindrance. The struggle to remove the defendant from the building delayed the performance of Pearson’s duty to make an initial assessment of the fire and his duty to secure the scene. Moreover, even if the fire chief had elected to fully assess the situation before bringing the defendant out of the house, as the defendant suggests he could have, the presence of persons inside would have injected substantial uncertainty into Pearson’s planning, and would have limited his methods of fighting the fire. Finally, the defendant’s physical resistance to removal hindered the fire chief’s important duty to ensure the safety of everyone involved, including the defendant himself.
There also was more than sufficient evidence in the trial record to establish beyond a reasonable doubt that the interference, obstruction, or hindrance was wilful. The defendant’s words and deeds clearly demonstrate such intention. See Commonwealth v. Lauzier, 53 Mass. App. Ct. 626, 629 (2002) (intent may be inferred “from the circumstances attending the act, and from the conduct and declarations of the defendant”), quoting from Commonwealth v. Perron, 11 Mass. App. Ct. 915, 917 (1981). See also Parreira v. Commonwealth, 462 Mass. 667, 673 (2012) (fact finder entitled to rely on objective circumstances surrounding defendant’s acts to determine intent). When the fire chief ordered the defendant to leave the burning building, the defendant said, “F-U, I am not leaving this building.” He ignored further orders to leave the building, while continuing to swear at the fire chief, and then wrestled with the fire chief when he tried to remove the defendant as the fire burned around them. The defendant was so determined to fight removal that he and the fire chief were close to falling to the floor. It was only through Officer Smith’s intervention that the defendant eventually was brought out of the building.
The defendant argues nonetheless that when he reentered the home and refused to leave, he merely intended to save his pets and did not wilfully interfere with the ongoing firefighting operation. The simple answer to this contention is that on appeal we must consider the evidence in the light most favorable to the Commonwealth, and the defendant’s intention is a question for the fact finder. As emphasized by the trial judge at sentencing, the defendant had opportunities to search for his pets before emergency workers arrived. Instead, he spent those precious minutes shouting profanity and threats outside the home. Only after a police officer ordered him to stay away from the house did the defendant reenter. When the fire chief ordered the defendant to come out, he defiantly stated that he was not going to leave the building. He did not suggest that he needed more time, and there was no evidence that he frantically was trying to save his pets. His statements and actions support findings of deliberate defiance rather than frantic preoccupation with saving his animals.
Moreover, multiple or mixed motives make no difference in this context. The statutory requirements are satisfied if a defendant intends to interfere, obstruct, or hinder a fire fighter in the lawful performance of his duties, even if the defendant has other intentions as well. See Commonwealth v. Guisti, 434 Mass. 245, 248-249 (2001) (in brandishing knife, “defendant may have intended to commit suicide and at the same time intended to harm the victim or engender fear in the victim that he would harm her”); Commonwealth v. Lauzier, 53 Mass. App. Ct. at 630 (evidence of “dual intent” did not compel fact finder to accept defendant’s noncriminal purpose and ignore his felonious purpose). See also Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 643 (2013) (although defendant may have threatened witness as a result of longstanding animosity, this would not preclude inference that defendant also intended to intimidate witness through his acts). In the light most favorable to the Commonwealth, there was undoubtedly sufficient evidence to allow the judge to find beyond a reasonable doubt that the defendant acted with the intent to interfere with the fire chief’s performance of his duties, not just with the intent to save the defendant’s pets.
2. Resisting arrest. “A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor . . . by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” G. L. c. 268, § 32B, inserted by St. 1995, c. 276. “[T]he crime is committed, if at all, at the time of the ‘effecting’ of an arrest.” Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). An arrest occurs when there is (1) “an actual or constructive seizure or detention of the person,” (2) “performed with the intent to effect an arrest,” and (3) is “so understood by the person detained.” Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008). “The standard for determining whether a defendant understood that he was being arrested is objective — whether a reasonable person in the defendant’s circumstances would have so understood.” Ibid.
In the instant case, Officer Croteau told the defendant multiple times to back off from his confrontation with the fire chief. When the defendant refused, the officer placed the defendant’s right arm behind his back and told him he was under arrest. The defendant continued to resist thereafter, shouting and struggling to pull his arms forward to maintain a fighting stance with the fire chief. As the officers tried to escort him to the cruiser, he refused to move his feet, pushing backwards and straining to turn so that he could shout at bystanders. The evidence was sufficient to allow a finding beyond a reasonable doubt that the defendant used physical force against Officers Croteau and Smith to attempt to prevent them from effecting the arrest. See Commonwealth v. Grandison, 433 Mass. at 144–145; Commonwealth v. Katykhin, 59 Mass. App. Ct. 261, 262-263 (2003); Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 468-469 (2006).
Nonetheless, the defendant argues that even if he struggled against police officers’ efforts to place him in custody, he did not knowingly resist arrest. During the arrest, Croteau ordered the defendant to put his hands behind his back, took hold of and immobilized his right arm, and told him that he was under arrest. The trial judge could have found that a reasonable person in the defendant’s circumstances would have known he was being arrested. See Commonwealth v. Grandison, 433 Mass. at 146.
 Smith left his cruiser’s emergency lights on and was wearing his full regulation uniform.
 Smith was using one hand to turn the defendant’s head to ensure the defendant would be unable to spit on them.
 The defendant did not move for required findings of not guilty at trial.
 We stress this distinction to emphasize that G. L. c. 268, § 32A, does not criminalize all intentional acts that result in interference with a fire fighting operation regardless of whether the actor intends that result. Undoubtedly, fire-related emergencies often will be tense situations that stoke heightened emotions and reactions. The discovery that one’s home is burning may incite those involved to act without thinking through the consequences. In these situations, a person’s desperate, intentional conduct might unintentionally interfere with the work of professionals trained and equipped to extinguish the blaze. For example, an anguished parent might run into her home to attempt to rescue a child without even contemplating that her
actions hinder fire fighters’ performance of their duties, much less intend that interference. In that situation, the statute would not apply because it condemns only those acts for which interference, obstruction, or hindrance actually is intended.
 The defendant relies on cases interpreting G. L. c. 272, § 53, which makes being a disorderly person a criminal offense. There, the absence of legitimate purpose is deemed an express requirement by the Model Penal Code and is necessary to avoid First Amendment problems. See Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989). No such express requirement is present or required here.
12‑P‑864 Appeals Court
Diamond Group, Inc. vs. Selective Distribution International, Inc.
Middlesex. January 8, 2013. ‑ November 25, 2013.
Present: Graham, Grainger, & Sikora, JJ.
Jurisdiction, Personal, Long‑arm statute, Forum non conveniens. Constitutional Law. Due Process of Law.
Civil action commenced in the Superior Court Department on October 19, 2009.
A motion to dismiss was heard by Daniel M. Wrenn, J.
Scott P. Fink for the plaintiff.
Leonard M. Singer for the defendant.
SIKORA, J. This appeal presents a question of the jurisdiction of the Massachusetts courts over a business corporation located exclusively in New York State. The plaintiff, Diamond Group, Inc. (Diamond), is a wholesale distributor of perfume products; its sole business location lies in Newton, Massachusetts. The defendant, Selective Distribution International, Inc. (Selective), is a distributor of fragrances, cosmetics, and beauty aids and accessories to retailers; its sole location lies in Jericho (Long Island), New York. Diamond brought suit against Selective in Superior Court for nonpayment for goods sold and delivered. It alleged that, over a period of twenty-one months, it had sold perfume products to Selective of a value of $ 995,692.35, but that Selective had failed to pay a balance due of $ 529,689.70. Diamond pleaded claims of breach of contract, quantum meruit entitlement, and unfair or deceptive conduct within the meaning of G. L. c. 93A, §§ 2 and 11. If proven, the wrongful nonpayment for more than half a million dollars worth of perfume would constitute conduct in fragrante delicto.
However, this appeal does not require a decision of that ultimate question. It requires instead the determination whether the Massachusetts courts have jurisdiction to entertain the claim. In response to Diamond’s complaint, Selective moved under Mass.R.Civ.P. 12(b)(2), 365 Mass. 754 (1974), to dismiss for lack of personal jurisdiction or, alternatively, forum non conveniens. After supplementation of the allegations of the verified complaint by affidavits and appended exhibits by both parties, and after submission of extensive memoranda of law, a judge of the Superior Court concluded that Massachusetts courts lacked personal jurisdiction over Selective and entered judgment of dismissal. For the following reasons, we now reverse.
Background. These undisputed facts emerge from the verified complaint, the parties’ affidavits, and their attached exhibits. Each of the corporate parties in this case is primarily a one-man enterprise. Diamond’s president, chief executive officer, and sole shareholder is Jeffrey Parker. Selective’s president and director is Dennis J. Schnur. Parker and Schnur had known each other since approximately 1993. Their current businesses had engaged in the purchase and sale of products since 2000.
During the twenty-one month period of July, 2006, through April, 2008, Selective purchased perfumes and colognes from Diamond. Diamond issued to Selective seventy-nine invoices containing total charges of $ 995,692.35 for various itemized perfume products. The invoices recited the identities of the products delivered, the unit price of each, and the quantity of each. Selective paid the amounts stated on thirty-four of the invoices, but did not pay the amounts on forty-five other invoices. The forty-five unpaid invoices account for 35,693 individual units of perfume and the sum of $ 529,689.70.
Selective communicated all orders to Diamond’s Newton office by electronic mail (e-mail), telephone, or facsimile (collectively, electronic orders). In response to each electronic order, Diamond prepared an appropriate invoice and assigned the request a purchase order number. Therefore, the seventy-nine invoices issued by Diamond during the twenty-one month period in question represented Selective’s orders for seventy-nine purchases. Physical delivery of the products occurred from sites outside of Massachusetts to Selective’s premises in Jericho, New York or to an alternate site in New Jersey.
From the verified complaint, affidavits, and attached exhibits, the motion judge concluded as follows:
“In the present action as established by the affidavit of Dennis Sch[n]ur . . ., the defendant, Selective, does no business in Massachusetts, maintains its only office in Jericho, New York, has no office, business location or representative in Massachusetts, and has a total of two employees, none of whom lives or works in Massachusetts. In addition, Selective does not own, lease, or utilize any real property in Massachusetts, has no bank accounts in Massachusetts, does not maintain any business or corporate records in Massachusetts, pays no taxes in this state, and is not registered to do business in Massachusetts. Further, Selective has not availed itself of the Massachusetts courts in any way, and all services provided by Selective are performed in the State of New York. While Selective does purchase products from companies outside of New York, including products from the plaintiff through its Massachusetts office, those products are delivered by those companies, like the plaintiff, to Selective, outside of Massachusetts. Indeed, the invoices in this case note that the products in question are delivered to Jericho, New York.
. . .
“[T]he defendant does not have sufficient contact with the State of Massachusetts so as to afford personal jurisdiction; that is, the defendant is not transacting business in this Commonwealth sufficient to give rise to personal jurisdiction. Further, the contacts between the plaintiff and defendant are not sufficient to satisfy the requirements in order to exercise jurisdiction consistent with basic due process requirements as mandated by the United States Constitution.”
Analysis. 1. Procedural and evidentiary matters. On a motion to dismiss for lack of personal jurisdiction pursuant to rule 12(b)(2), “the plaintiff bear[s] the burden of establishing sufficient facts on which to predicate jurisdiction over the defendant.” Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 3 (1979). See Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 (1978). For purposes of reviewing the ruling on the motion to dismiss, we accept as true assertions in the plaintiff’s affidavit, including any which controvert assertions in the defendant’s affidavit. See id. at 151 & n.2. In this instance, as noted, the material jurisdictional facts established by the affidavits are undisputed. The parties contest only their legal significance.
2. Personal jurisdiction over the defendant. The exercise of personal jurisdiction over a nonresident defendant requires compliance with both (a) the standards of the forum State’s long-arm statute, and (b) the standards of the due process clause of the Fourteenth Amendment to the United States Constitution. See Tatro v. Manor Care, Inc., 416 Mass. 763, 767 (1994) (Tatro). a. Long-arm statutory standard of G. L. c. 223A, § 3(a). Pursuant to G. L. c. 223A, § 3, as amended by St. 1969, c. 623,
“A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s
“(a) transacting any business in this commonwealth.”
Section 3(a) of the long-arm statute imposes two requirements: “the defendant must have transacted business in Massachusetts, and the plaintiff’s claim must have arisen from the transaction of business by the defendant.” Tatro, 416 Mass. at 767.
Our courts have interpreted the “transacting any business” clause of § 3(a) liberally, Tatro, supra at 767, and cases cited, and “to the limits” permitted by the United States Constitution. Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. at 6, citing “Automatic” Sprinkler Corp. of America v. Seneca Foods Corp., 361 Mass. 441, 443 (1972). Broad interpretation accords with the letter of the statute. It is axiomatic that every word will receive some effect; no word is redundant or ineffectual. See Negron v. Gordon, 373 Mass. 199, 205 (1977); Sperounes v. Farese, 449 Mass. 800, 807 (2007). The section uses the word “any” before the word “business.” We interpret that term to be expansive, or to mean that the volume of business need not be substantial but merely definite and perceptible. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 848 F. Supp. 271, 276 (D. Mass. 1994) (any conduct beyond the “most incidental commercial contact” is sufficient). The test is whether the defendant engaged in the intentional or purposeful conduct of business activity in the Commonwealth. See Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. at 6, 11; Tatro, 416 Mass. at 767-768; United Elec., Radio & Mach. Wkrs. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1087 (1st Cir. 1992) (noting that courts look to “whether the defendant attempted to participate in the commonwealth’s economic life”).
Here, Selective has transacted business within the meaning of § 3(a). Over a period of years, the company engaged in an intentional course of ordering large amounts of inventory from a supplier in Massachusetts. Its activity was voluminous, repetitive, and long running. See Sonesta Intl. Hotels Corp. v. Central Fla. Invs., Inc., 47 Mass. App. Ct. 154, 161 (1999) (defendant transacted business under § 3[a] where “there were numerous telephone and written communications sent from the defendant in Florida to the plaintiff in Massachusetts over the course of time”); Fairview Mach. & Tool Co. v. Oakbrook Intl., Inc., 56 F. Supp. 2d 134, 138 (D. Mass. 1999) (defendants transacted business under § 3[a] where they “sent substantial correspondence, including approximately $ 1,500,000, into the Commonwealth” in connection with an agreement to purchase machinery from a Massachusetts corporation). The defendant’s activity certainly cannot qualify as “an isolated (and minor) transaction with a Massachusetts resident.” Tatro, 416 Mass. at 767.
The parties’ course of dealing met also the second statutory requirement of § 3(a). The “arising from” clause of G. L. c. 223A, § 3, poses a “but for” test. Tatro, supra at 770-771. Here, “but for” Selective’s purchase of inventory from Diamond and its breach of the integral duty of payment, Diamond would not have suffered injury.
A third consideration strengthens the reach of the statute. In Carlson Corp. v. University of Vt., 380 Mass. 102 (1980), the court reasoned that “where a contract is made in this State and a cause of action arises out of such contract, the consummation of the contract in [the forum State] constitutes the transaction of business or the minimum contacts necessary to invoke personal jurisdiction.” Id. at 106, quoting from Iroquois Gas Corp. v. Collins, 42 Misc. 2d 632, 634-635 (N.Y. Sup. Ct. 1964).
As an arrangement for the purchase and sale of goods, the agreements here fell within the scope of art. 2 of the Uniform Commercial Code (UCC). See G. L. c. 106, § 2-102 (“[T]his Article applies to transactions in goods”). Pursuant to G. L. c. 106, § 2-206(1)(b), “an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt response to ship or by the prompt or current shipment of conforming or non-conforming goods.” Diamond routinely accepted Selective’s offers to buy by transmittal of an invoice acknowledging Selective’s offer to purchase and effectively promising to ship. See Roto-Lith, Ltd. v. F.P. Bartlett & Co., 297 F.2d 497, 499 (1st Cir. 1962) (noting that under § 2-206 of the UCC, “mailing the acknowledgment would clearly have completed the contract in Massachusetts by acceptance had the acknowledgment not sought to introduce new terms”).
Two weaknesses undermine the motion judge’s analysis and conclusion that Selective’s activity did not fall within the grasp of the long-arm statute. First, it focuses almost solely upon the facts demonstrating Selective’s absence from Massachusetts and omits any reference to its positive business connection with the Commonwealth. It makes no mention of the seventy-nine purchase orders placed with Diamond in Massachusetts by electronic communication, the $ 995,692.35 value of the products delivered, or the payment of approximately $ 466,000 to Diamond for goods received. In short, it omits the undisputed fact that Selective regularly ordered substantial amounts of inventory from a Massachusetts supplier.
The second flaw is the concentration on the lack of Selective’s physical contacts with the Commonwealth. While Selective may not have entered the Commonwealth physically, it maintained an ongoing pattern of electronic contact with the Commonwealth by placing numerous telephone, facsimile, and e-mail orders for large quantities of products. As the Supreme Judicial Court observed almost thirty-five years ago, “Modern technology has taken us far beyond the point where two [persons] must stand in each other’s physical presence to transact business. Widespread use of the telephone and the mails make[s] actual physical presence unnecessary in many cases.” Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. at 11 (citation omitted). This statement applies all the more forcefully today as commercial activity proceeds far more dominantly by electronic communication.
b. Due process. For determination whether an exercise of personal jurisdiction satisfies due process, “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). This analysis requires the plaintiff to demonstrate (1) purposeful availment of commercial activity in the forum State by the defendant; (2) the relation of the claim to the defendant’s forum contacts; and (3) the compliance of the exercise of jurisdiction with “traditional notions of fair play and substantial justice.” Bulldog Investors Gen. Partnership v. Secretary of the Commonwealth, 457 Mass. 210, 217 (2010), cert. denied, 132 S. Ct. 2377 (2012), and cases cited. See Tatro, 416 Mass. at 772-773, and cases cited. The third element is essentially a test of fairness measuring (a) the burden upon the defendant of appearance in the forum State litigation; (b) the interest of the plaintiff in the availability of accessible adjudication of a grievance; and (c) the interest of the forum State in the provision of legal process to its residents. Bulldog Investors Gen. Partnership v. Secretary of the Commonwealth, supra at 218, citing Burger King Corp. v. Rudzewicz, supra at 467-477. See Tatro, 416 Mass. at 773.
First, Selective has satisfied the “purposeful availment” requirement. For twenty-one months it continuously purchased substantial amounts of inventory from a supplier located in Massachusetts and assumed the concomitant obligation to pay for the inventory. It directed numerous electronic communications into the Commonwealth to specify the material terms of orders for more than $ 995,000 worth of products, and sent payments to Diamond in the amount of more than $ 466,000. See Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. at 11 (finding purposeful availment where defendant sent appraisal reports and initiated numerous telephone calls to the plaintiffs at their headquarters in Massachusetts); Sonesta Intl. Hotels Corp. v. Central Fla. Invs., Inc., 47 Mass. App. Ct. at 160-162 (purposeful availment where the defendant placed telephone calls and purchase orders with the plaintiffs in Massachusetts and sent payments and periodic reports); Buctouche Fish Mkt., Ltd. v. City Sea Foods, Inc., 735 F. Supp. 441, 443 (D. Mass. 1990) (upholding jurisdiction where out-of-State defendant purchased large quantities of lobsters from Massachusetts suppliers); Fairview Mach. & Tool Co. v. Oakbrook Intl., Inc., 56 F. Supp. 2d at 139-140 (purposeful availment where, pursuant to an agreement to purchase approximately two million dollars worth of machinery from the plaintiff, the defendants “exchanged multiple telephone calls, faxes and letters” with the plaintiff in Massachusetts). As the Supreme Court has stated, “[W]here the defendant ‘deliberately’ has . . . created ‘continuing obligations’ between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by ‘the benefits and protections’ of the forum’s laws it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.” Burger King Corp. v. Rudzewicz, 471 U.S. at 475-476 (citations omitted).
With respect to the second requirement, as discussed above in the statutory analysis, Diamond’s claim arose directly from Selective’s contacts with Massachusetts.
Finally, the exercise of jurisdiction over Selective does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation omitted). First, the burden on Selective of appearance in court in an adjacent State from which it has acquired inventory and in which it has acquired a substantial debt is neither onerous nor surprising. Second, as a Massachusetts resident, Diamond is entitled to accessible legal process in the Commonwealth for assertion of its claim. Third, the Commonwealth has a “manifest interest” in providing a convenient forum to residents asserting good faith and objectively reasonable claims for relief. See Tatro, 416 Mass. at 773, citing Burger King Corp. v. Rudzewicz, supra at 473. In sum, the exercise of jurisdiction over Selective is neither unfair nor unreasonable. It complies with the requirements of G. L. c. 223A, § 3(a), and due process.
c. Vendor vs. purchaser distinction. Several cases express the concern that the exposure of nonresident purchasers to Massachusetts long-arm jurisdiction might operate oppressively and discourage out-of-State buyers from business activity with Commonwealth entities. See, e.g., Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. at 9 n.14; New Hampshire Ins. Guar. Assn. v. Markem Corp., 424 Mass. 344, 349-350 (1997); Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1085 (1st Cir. 1973). However, the exercise or rejection of jurisdiction on long-arm and due process grounds has depended not narrowly on the role of purchaser or vendor, but instead broadly on an evaluation of the nonresident’s quantity and quality of contacts with the Commonwealth. The evaluation is intensely circumstantial. Good Hope Indus., Inc. v. Ryder Scott Co., supra at 2; Windsor v. Windsor, 45 Mass. App. Ct. 650, 652 (1998).
The cases typifying the rejection of jurisdiction have involved isolated or incidental purchases by a nonresident defendant. See, e.g., “Automatic” Sprinkler Corp. of America v. Seneca Foods Corp., 361 Mass. at 441 (purchase of a single machine from the plaintiff in Massachusetts); New Hampshire Ins. Guar. Assn. v. Markem Corp., 424 Mass. at 348-349 (purchase of insurance policies in defendant’s home State from a company headquartered in Massachusetts); Moelis v. Berkshire Life Ins. Co., 451 Mass. 483, 488 (2008) (purchase of a single insurance policy from a Massachusetts company through agents in the nonresident’s home State); Nichols Assocs. v. Starr, 4 Mass. App. Ct. 91, 96-97 (1976) (contact “limited to the defendant’s acceptance of services which the plaintiff simply chose to perform in Massachusetts”).
Decisions sustaining jurisdiction have assessed the volume and value of the nonresident purchaser’s transactions or dealings. See Carlson Corp. v. University of Vt., 380 Mass. at 106-107 (single transaction of large value); Sonesta Intl. Hotels Corp. v. Central Fla. Invs., Inc., 47 Mass. App. Ct. at 160-163 (Massachusetts plaintiffs provided various marketing services to the defendant from Boston); Buctouche Fish Mkt., Ltd. v. City Sea Foods, Inc., 735 F. Supp. at 443 (nonresident defendant purchased large quantities of lobster from plaintiff); Fairview Mach. & Tool Co. v. Oakbrook Intl., Inc., 56 F. Supp. 2d at 136-137 (defendants contracted to purchase almost two million dollars worth of machinery from plaintiff).
In sum, under both statutory and constitutional standards, the duration, volume, and value of Selective’s dealings negate the characterization of it as an “archetypal passive purchaser” unfairly hauled into the distant courts of the Commonwealth (dissent, post at , ), and therefore likely to be discouraged from further engagement with Massachusetts suppliers (id. at ). Seventy-nine purchase orders and resulting shipments establish Selective as an extraordinarily deliberate, regular, and active “passive purchaser.” No precedent goes so far as to say that such a sustained course of transactions falls short of the quality and quantity of business activity required by the long-arm statute and due process. The continuous contractual purchase of essential inventory from a vendor in the forum State amounts to the purposeful availment of business activity and of the applicable law of that State. Long-arm statutes frequently have reached nonresident vendors sending goods and services into the forum State. However, no formal or principled distinction separates purchasers from vendors under the statute. The controlling standard is the neutral test of “transacting any business.” The purchase of necessary inventory is the transaction of such business. Finally, while physical presence may deepen the basis of jurisdiction, the transactions remain its critical source.
3. Forum non conveniens issue. As a third, independent ground for dismissal, Selective argued below that a preexisting Federal lawsuit in the Southern District of New York constituted the convenient forum for decision of this dispute. Selective’s argument is that the existing claims between the two parties in that case would necessarily resolve the dispute over payment asserted in the Massachusetts case.
Under G. L. c. 223A, § 5, “[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.” The motion judge never reached the forum non conveniens issue because he decided the dismissal motion on the basis of jurisdiction.
Neither party has fully briefed the forum non conveniens issue for this appeal. Consequently, we do not reach it. The forum non conveniens argument remains available in the case as now remanded to the Superior Court.
Conclusion. Selective is properly subject to personal jurisdiction in Massachusetts. Accordingly, we reverse the judgment of dismissal and remand to the Superior Court for further proceedings consistent with this opinion.
GRAINGER, J. (dissenting). This defendant presents all the characteristics of an archetypal passive purchaser, and none to the contrary. In my view the judge was correct in his determination that we cannot properly assert personal jurisdiction over the defendant in Massachusetts.
Factual background. A buyer in New York (Selective) entered into an agreement with a seller incorporated in Nevada (Diamond) whose principal (Jeffrey Parker) worked and resided in Massachusetts to have perfume, located in a warehouse in New Jersey, delivered within New Jersey and to New York. Of the States connected, however tangentially, to this commercial arrangement, two can easily be determined to have personal jurisdiction over the defendant: (1) New York, where the defendant was located and accepted shipments, and (2) New Jersey, where the goods were stored and the defendant also accepted shipments. Massachusetts, by contrast, the State in which the seller chose to reside and conduct a long-distance brokerage business, was irrelevant to any of the business activity at issue. On this record I cannot conclude that the defendant transacted business here, much less that it “purposefully avail[ed]” itself of the “benefits and protections” of Massachusetts law. Tatro v. Manor Care, Inc., 416 Mass. 763, 772 (1994).
Our consideration should begin with the fact that no goods transferred between the parties ever entered the Commonwealth pursuant to any dealings between them. The plaintiff’s attempts to trace some of the perfumes through interstate commerce to eventual retail destinations at a later date only emphasizes that fact.1
The parties made a straightforward agreement for the delivery of products to the defendant’s places of business. The agreement was neither negotiated in Massachusetts nor subjected to any change or renegotiation after formation, here or elsewhere. The plaintiff does not dispute that the parties’ only contact in Massachusetts was on a social basis between the principals, Diamond’s chief executive officer, Parker, and Selective’s president, Dennis J. Schnur, on one or two occasions, and not until some five or six years after their commercial relationship was established.2
It is worth repeating the judge’s findings, already set forth in the majority opinion, as they have full support in the record:
“In the present action as established by the affidavit of Dennis Sch[n]ur . . ., the defendant, Selective, does no business in Massachusetts, maintains its only office in Jericho, New York, has no office, business location or representative in Massachusetts, and has a total of two employees, none of whom lives or works in Massachusetts. In addition, Selective does not own, lease, or utilize any real property in Massachusetts, has no bank accounts in Massachusetts, does not maintain any business or corporate records in Massachusetts, pays no taxes in this state, and is not registered to do business in Massachusetts. Further, Selective has not availed itself of the Massachusetts courts in any way, and all services provided by Selective are performed in the State of New York. While Selective does purchase products from companies outside of New York, including products from the plaintiff through its Massachusetts office, those products are delivered by those companies, like the plaintiff, to Selective, outside of Massachusetts. Indeed, the invoices in this case note that the products in question are delivered to Jericho, New York.”
Discussion. Long-arm jurisdiction. As stated,I am dubious that the defendant can accurately be said to have “done business” in the Commonwealth by simply engaging in a long-distance commercial relationship with a Massachusetts resident. But, even if one were to accept that characterization, the judge’s decision below was clearly correct in my view because the Fourteenth Amendment due process requirements elaborated by the United States Supreme Court are lacking in this case.3
Due process. In order for the assertion of Massachusetts jurisdiction to survive a due process challenge, the plaintiff must demonstrate that the defendant purposely participated in commercial activity within the borders of Massachusetts so that the defendant can be said to have taken advantage of the “benefits and protections” of its presence here. See International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). The established jurisdictional test of “traditional notions of fair play and substantial justice” is based on a principle of reciprocity between benefits and obligations. See Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995) (citation omitted) (“the defendant’s in-state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state’s laws”).
In the vast majority of cases, including this one, a vendor can decide whether to introduce products or services into a particular jurisdiction. As this case also illustrates, a purchaser normally selects a particular product or service, and then receives it from whatever jurisdiction the vendor has chosen as a place of business. For this reason, our law recognizes that the vendor/purchaser distinction is crucial to a due process “availment of benefits” analysis. Here, the plaintiff’s storage of goods in New Jersey, and its transfer of goods both within New Jersey and to New York, is in stark contrast with the location from which it has chosen, as a broker, to manage these transfers and generate invoices. The defendant obviously participated in the commercial activity taking place in New York and New Jersey, but had no role and no interest in the fact that the plaintiff directed its own activities from Massachusetts.
A review of the cases cited by the majority that have imposed personal jurisdiction in Massachusetts over a non-resident purchaser is instructive. In each case the purchaser’s physical presence in Massachusetts by choice was the due process linchpin on which the proper exercise of jurisdiction turned.4 See Whittaker Corp. v. United Aircraft Corp., 482 F.2d 1079, 1082-1085 (1st Cir. 1973) (contrasting passive and active purchasers where jurisdiction imposed over defendant that came to Massachusetts to supervise the plaintiff’s work — while jurisdiction simultaneously adjudged lacking over defendants who did not come to Massachusetts during contract formation and whose later contacts deemed “ancillary” to placement of orders). See also Carlson Corp. v. University of Vt., 380 Mass. 102, 105-106 (1980) (defendant came to Massachusetts to execute contract); Buctouche Fish Mkt., Ltd. v. City Sea Foods, Inc., 735 F. Supp. 441, 442-443 (D. Mass. 1990) (one defendant was more than simply a purchaser, as it both bought and resold seafood in Massachusetts; the other defendant, a purchaser only, sent representatives to Massachusetts to meet with suppliers); Fairview Mach. & Tool Co. v. Oakbrook Intl., Inc., 56 F. Supp. 2d 134, 139 (D. Mass. 1999) (defendants’ representatives visited Massachusetts on at least two occasions during construction to inspect progress of ordered machinery). Finally, in Sonesta Intl. Hotels Corp. v. Central Fla. Invs., Inc., 47 Mass. App. Ct. 154, 160-162 (1999), it was undisputed that the plaintiff would perform the services contemplated under the parties’ contract in Boston. In that case we found it important that the defendant initiated a relationship that, by its nature, would require multiple future contacts in Massachusetts with the plaintiff.5 The contrast between these cases and the instant one need not be belabored. Other than placing orders and remitting payment to Diamond — activities that have always been found to be indicative of the “passive purchaser” under our case law — Selective had no contact with Massachusetts. Indeed, it was of no consequence to either party’s rights or obligations under the contract that the plaintiff’s principal, Parker, resided in Massachusetts (but was not registered to do business here) while his company, Diamond, remained incorporated in Nevada for the entire period at issue.6 In short, this case fails the elementary due process test best enunciated by the First Circuit: “[T]he claim underlying the litigation must directly arise out of, or relate to, the defendant’s forum-state activities.” Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994), cert. denied, 514 U.S. 1108 (1995), quoting from United Elec., Radio & Mach. Wkrs. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992).7
Finally, I cannot agree with the relevance assigned by the plaintiff to the number of invoices, which simply accompanied transfers within New Jersey or shipments from New Jersey to New York, during the contract period. Case law has rejected, correctly in my view, the assignment of significance to a purely quantitative argument in a due process analysis. See L & P Converters, Inc. v. H.M.S. Direct Mail Serv., Inc., 634 F. Supp. 365, 366 (D. Mass. 1986) (lack of jurisdiction over a foreign defendant where a four-year commercial relationship with in-State plaintiff involving approximately forty separate transactions failed to satisfy due process). As stated, the significance placed on the frequency of such activity must depend, first and foremost, on the jurisdictional relevance of any one instance.8 The assertion that the defendant availed itself of the “benefits and protections” of Massachusetts by receiving seventy-nine invoices mailed from the Commonwealth at the plaintiff’s sole election and paying those that were uncontested does not withstand scrutiny.
The crucial due process defect in the plaintiff’s claim of jurisdiction is that it has not shown that the defendant benefitted in any way from the protections of Massachusetts law. “Even if a defendant’s contacts with the forum are deemed voluntary, the purposeful availment prong of the jurisdictional test investigates whether the defendant benefitted from those contacts.” Phillips Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 292 (1st Cir. 1999) (concluding that purposeful availment was lacking where the defendant’s only pertinent contacts with the forum were remittance of annual payments to the plaintiff “and there [was] not so much as a hint that the [defendant] benefitted in any way from the protections of [forum State] law in making these payments”).
Policy considerations. It should be noted as well that assertion of jurisdiction under these circumstances, while ostensibly favorable to this particular Massachusetts plaintiff, is contrary to established legislative policy underlying our long-arm statute. See New Hampshire Ins. Guar. Assn. v. Markem Corp., 424 Mass. 344, 350 (1997) (“Potential buyers would be discouraged from dealing with our suppliers, if the kinds of contacts [the plaintiff] relies on here were sufficient to allow such purchasers to be hauled by Massachusetts vendors into Massachusetts courts”). See also Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 9 n.14 (1979) (interpreting § 3[a] of the long-arm statute to permit jurisdiction over all nonresident purchasers “would have promoted the unw`anted result of discouraging foreign purchasers from dealing with resident sellers for fear of having to engage in litigation in distant courts”); Whittaker Corp. v. United Aircraft Corp., 482 F.2d at 1085 (“[T]he interest of the forum in not discouraging foreign purchasers from dealing with resident sellers for fear of having to engage in litigation in distant courts undercuts” an interpretation of the long-arm statute permitting jurisdiction over everyone who enters into a manufacturing agreement with a resident of the forum); L & P Converters, Inc. v. H.M.S. Direct Mail Serv., Inc., 634 F. Supp. at 366 (defendant was a “classic passive purchaser” where it “ha[d] done nothing to participate in the Massachusetts economy beyond placing . . . phone orders from New York”).
For these reasons I consider the characterization of this defendant as having had a presence in Massachusetts that satisfies due process fairness requirements to be incorrect, and altogether inconsistent with commercial reality. I respectfully dissent, and conclude the judgment below should be summarily affirmed.
 The record belowindicates that the parties’ respective locations remained Newton, Massachusetts, and Jericho, New York, throughout their relationship. It contains no evidence about the location of the negotiation of an underlying requirements or supply contract. Parker’s affidavit contains the following uncontradicted description of the history of the parties’ dealings.
“From 2000 through early 2008, Diamond and Selective engaged in literally hundreds of transactions. During that period Diamond sometimes purchased products from Selective while other times Selective purchased product[s] from Diamond. Orders were usually placed by telephone, facsimile, or by e-mail.”
 Selective’s orders spanned an array of branded fragrant sprays: Cool Water, Echo, Still by J-Lo, Glow by J.Lo, Joop, Burberry Brit, Alfred Sung, Opium, and Polo Green.
 We cannot credit Selective’s argument that it was unaware that Diamond was located in Massachusetts. While Diamond was not registered as a Massachusetts corporation during the parties’ dealings, the invoices sent to Selective from Diamond indicated that Diamond was located in Newton, Massachusetts; Selective made payments to Diamond in Massachusetts; the parties had a course of dealing from at least 2000, during which Diamond’s principal place of business remained constant; and Selective’s president and director, Dennis Schnur, admitted that he had met Diamond’s president, Jeffrey Parker, in Massachusetts for dinner on a few occasions. Selective clearly knew that it was dealing with a Massachusetts business. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480-481 (1985).
 Even an isolated transaction, while likely insufficient under due process standards, may satisfy the purely statutory “transacting any business” requirement. See Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. at 8 n.13; Bond Leather Co. v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 932 (1st Cir. 1985).
 Section 2-207 of the UCC further supports the transmittal of the invoice as the acceptance of an offer. Under that provision, also known as the “battle of the forms” section, “(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.” See Commerce & Indus. Ins. Co. v. Bayer Corp., 433 Mass. 388, 392-393 (2001). In our case, the contract between the parties materialized upon the dispatch by Diamond of the invoices confirming without change the acceptance of Selective’s respective purchase orders.
 For this reason, the emphasis of our dissenting colleague upon physical presence in the Commonwealth (post at ) fails to push through the undertow of outmoded precedent.
 Massachusetts jurisdiction would afford Selective countervailing benefits, as well. If Diamond were to breach an
agreement for sale and delivery of goods, Selective could employ the Commonwealth’s courts to sue for damages or specific performance and for pre- and postjudgment remedies against the property of Diamond, such as attachments, injunctions, and liens.
 See also Whittaker Corp. v. United Aircraft Corp., 482 F.2d at 1084-1085 (“passive purchaser” who merely places an order and awaits delivery should not be subject to jurisdiction; concern about discouragement of nonresident engagement in transactions with resident entities); L & P Converters, Inc. v. H.M.S. Direct Mail Serv., Inc., 634 F. Supp. 365, 365-367 (D. Mass. 1986) (defendant “passive[ly]” purchased paper from plaintiff in approximately forty separate transactions of total value of approximately $ 220,000; adequate long-arm contact; inadequate due process contact).
 No case invoked by the dissent involves such an ongoing train of dealing.
 In any event, after inspecting the verified copies of certain Federal court pleadings included in the Superior Court affidavits, we are not satisfied that the excerpts from the pleadings in the Federal litigation provide a description of its status sufficiently full or current to enable us to conclude that the Federal lawsuit would be a preferable alternative forum for presentation of Diamond’s claim for damages.
 In the Federal litigation, Zino Davidoff SA vs. Selective Distribution International, Inc., Diamond Group, Inc., J&H Cosmetics, Ltd., and Helene Schmeltzer & Gerald Schmeltzer, individually and doing business as J&S Merchandising and jerryboy57, U.S. Dist. Ct. No. 07 Civ. 10326 (S.D.N.Y.),
the plaintiff, Zino Davidoff SA, as the alleged creator of valuable trademarked fragrances, has charged the defendants, including Selective and Diamond, with the distribution and sale of counterfeit fragrances under the Davidoff trademark in violation of multiple Federal statutory and common-law standards. Selective, in turn, has brought a third-party complaint charging Diamond with the sale to Selective of such counterfeit products, and Diamond has brought a third-party complaint against the other defendants. The lawsuit originated in 2007. Selective argues here that, if in the Federal suit it establishes Diamond’s liability for supply of counterfeit products, its recovery against Diamond will more than set off any liability claimed by Diamond for unpaid deliveries asserted in the present Massachusetts litigation.
Two considerations prevent our acceptance of that position. The first is the uncertain status of the Federal litigation at this moment. The second is the fact visible in our record that the Davidoff product (Cool Water) was only one of six sold by
Diamond to Selective in the shipments disputed in the Massachusetts litigation. The unpaid invoices included in our record show the dollar value of the Davidoff product to approximate only thirty-eight percent of the value of the aggregate unpaid products. Selective’s assertion that resolution of the Federal case could or would resolve the dispute over liability and damages in the Massachusetts case remains speculative on the present record. If that circumstance changes, the parties remain free to bring it to the attention of the Superior Court. That court remains free to exercise its discretion under G. L. c. 223A, § 5.
1 In seeking to bolster its jurisdictional claim, the plaintiff claimed that the defendant resold some of the products it purchased from the plaintiff to CVS and that CVS, in turn, placed some of those products in its stores, including in Massachusetts. The judge found that allegation to be unsupported and, in any event, irrelevant to the jurisdictional issue.
2 The plaintiff characterizes the dealings between the parties as consisting of seventy-nine wholly separate contracts, while the defendant argues that there was only a single “forecast order” from which all of the invoices were generated. The defendant further notes that the prices for each item remained the same throughout the period encompassed by the plaintiff’s complaint. While I view the plaintiff’s argument as unrealistic and self-serving, it is to be considered true for purposes of deciding the motion to dismiss. Portraying each invoice as a separate contract, however, is irrelevant to determining whether the defendant availed itself of the benefit of “doing business” in Massachusetts. See infra.
3 Elements of a transaction that satisfy long-arm jurisdiction do not consequentially support the separate requirements of due process. Innumerable cases have found that a commercial relationship met conditions for the former but failed to satisfy the latter. See, e.g., REMF Corp. v. Miranda, 60 Mass. App. Ct. 905, 906-907 (2004); Bond Leather Co. v. Q.T. Shoe Mfg. Co., 764 F.2d 928, 933-935 (1st Cir. 1985); L & P Converters, Inc. v. H.M.S. Direct Mail Serv., Inc., 634 F. Supp. 365, 366 (D. Mass. 1986); Litchfield Financial Corp. v. Buyers Source Real Estate Group, 389 F. Supp. 2d 80, 88-89 (D. Mass.
Several of these decisions address the volume and financial value of business dealings in the context of our long-arm statute where the defendant was present in the State, but do not consider those factors with respect to due process. See, e.g., Carlson Corp. v. University of Vt., 380 Mass. 102, 105 (1980) (contract signing in Massachusetts “culmination of months of negotiations”); Fairview Mach. & Tool Co. v. Oakbrook Intl., Inc., 56 F. Supp. 2d 134 (D. Mass. 1999).
5The importance of a defendant’s intent is well expressed inUnited Elec., Radio & Mach. Wkrs. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1087 (1st Cir. 1992) (recognizing that the test is “whether the defendant attempted to participate in the commonwealth’s economic life”) (emphasis added). See Telco Communications, Inc. v. New Jersey State Firemen’s Mut. Benefit Assn., 41 Mass. App. Ct. 225, 230-231 (1996) (where controversy centered in out-of-State activities, defendant did not avail itself of privilege of conducting business in Massachusetts).
6 Indeed, Diamond registered to do business in Massachusetts only after initiating this litigation. Even then, it registered only as a foreign corporation, which can explain the defendant’s assertion (irrelevant in any event to the question of availment) that, despite the return address on the plaintiff’s invoices, Schnur did not believe he was purchasing perfume from a Massachusetts business.
7 The assertion that technological advances of the past several decades require an expanding concept of “forum State activities” is misdirected here. Technology has rendered physical presence, previously an important factor to determine whether a party has entered the jurisdiction for long-arm analysis, less central to the definition of “doing business.” But this falls far short of a justification to dilute the due process protection of the Fourteenth Amendment where availment is wholly lacking. In any event, there is no claim in this case that the defendant utilized technology as a substitute for physical presence as, for example, maintaining a website accessible to Massachusetts residents. The purpose of the interstate communications, initiated not by the defendant but by the plaintiff, was simply billing and payment.
8 It is not disputed that the defendant merely responded to the plaintiff’s election to send invoices from Parker’s home and office in Newton rather than billing the defendant FOB or COD New Jersey, or COD New York. In order to satisfy due process requirements, the defendant’s contacts with the forum State must be voluntary — that is, not based on the “unilateral activity of another party or a third person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985), quoting from Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417 (1984).
Likewise, the plaintiff could decide whether to bill monthly, sporadically, or on each occasion that goods were delivered. Frequent billing of an out-of-State party does not create jurisdiction any more than quarterly or sporadic billing necessarily defeats it.
COMMONWEALTH vs. ZACHARY D. BRADLEY.
Berkshire. October 7, 2013. ‑ November 21, 2013.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
“School Zone” Statute. Statute, Emergency law, Retroactive application, Amendment. Due Process, Retroactive application of statute.
Complaints received and sworn to in the Northern Berkshire Division of the District Court Department on December 30, 2010.
A question of law was reported to the Appeals Court by Paul M. Vrabel, J.
The Supreme Judicial Court granted an application for direct appellate review.
Stephen N. Pagnotta for the defendant.
John P. Bosse, Assistant District Attorney, for the Commonwealth.
GANTS, J. On November 8, 2010, Williamstown police officers executed a search warrant at the defendant’s dormitory room and seized a quantity of marijuana. The dormitory room was approximately 700 feet from the Williams College Children’s Center, an accredited preschool facility. The defendant was charged by criminal complaint in the District Court with possession of a class D substance (marijuana) with intent to distribute, in violation of G. L. c. 94C, § 32C (a), committing this violation within 1,000 feet of a preschool facility, in violation of G. L. c. 94C, § 32J, commonly known as a “school zone” violation.
On August 2, 2012, the Governor signed into law St. 2012, c. 192, entitled “An Act relative to sentencing and improving law enforcement tools” (Crime Bill), which contained an emergency preamble that made it effective on enactment. Section 30 of the Crime Bill amended G. L. c. 94C, § 32J, by reducing the radius of the school zone from 1,000 feet to 300 feet. The defendant moved to dismiss the school zone violation, claiming that § 30 of the Crime Bill applies to all cases alleging a school zone violation that had not been adjudicated before August 2, 2012, and that his alleged violation occurred outside the amended school zone. The judge reported without decision the following question to the Appeals Court:
“Whether [St. 2012, c. 192, § 30], which reduces the radius of the Drug-Free School Zone from 1,000 feet to 300 feet, should be applied retroactively to an offense that occurred prior to the effective date of the amendment, but for which the Defendant had been charged but not adjudicated on the effective date of the amendment?”
We allowed the defendant’s application for direct appellate review. We answer “yes” to the reported question and hold that St. 2012, c. 192, § 30, applies to all cases alleging a school zone violation for which a guilty plea had not been accepted or conviction entered as of August 2, 2012, regardless of whether the alleged violation was committed before August 2, 2012.
Discussion. The temporal application of a penal statute is governed by the rule of statutory construction in G. L. c. 4, § 6, Second, which provides in pertinent part that the “repeal of a statute shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, prosecution or proceeding pending at the time of the repeal for an offence committed.” See Commonwealth v. Dotson, 462 Mass. 96, 99 (2012). Because we interpret an amendment of a penal statute to constitute an implicit repeal where “amended sections of a statute are inconsistent with the earlier provisions,” id. at 100, citing Nassar v. Commonwealth, 341 Mass. 584, 589 (1961), and deem a “punishment, penalty or forfeiture” to be “‘incurred,’ within the meaning of [G. L. c. 4,] § 6, Second, at the time the offence for which punishment is imposed is committed,” Dotson, supra, quoting Patrick v. Commissioner of Correction, 352 Mass. 666, 669 (1967), “a newly enacted [penal] statute is presumptively prospective.” Commonwealth v. Galvin, ante 286, 290 (2013). The consequence of this presumption is to “preserve, even after legislative change of a statute, the liability of an offender to punishment for an earlier act or omission made criminal by the statute repealed in whole or in part.” Dotson, supra at 99-100, quoting Nassar, supra.
This presumption of prospective application, however, is not absolute because the preamble to G. L. c. 4, § 6, declares, “In construing statutes the following rules shall be observed, unless their observance would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute . . . .” The question then is whether the prospective application of § 30 would be “inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute” (emphasis added). We note that, by separating these exceptions to the general presumption of prospective application with the word “or,” the Legislature intended that there be two exceptions, perhaps often related in fact, but separate and distinct in meaning. See Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123, 129, (2009) (fundamental to statutory construction that word “or” is disjunctive unless context and main purpose of all words require otherwise), citing Bleich v. Maimonides Sch., 447 Mass. 38, 46-47 (2006), and Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Auth., 350 Mass. 340, 343 (1966). See also Casa Loma, Inc. v. Alcoholic Beverages Control Comm’n, 377 Mass. 231, 234 (1979) (“It is a common tenet of statutory construction that, wherever possible, no provision of a legislative enactment should be treated as superfluous”). We have not before distinguished the different meanings of these two exceptions. We do so here.
1. “Inconsistent with the manifest intent of the law-making body.” The presumption of prospective application is “inconsistent with the manifest intent of the law-making body” where there is “a clearly expressed intention” of the Legislature that the new statute apply retroactively. Nassar, 341 Mass. at 590. “In ascertaining the intent of the Legislature, we look to “all [the statutory] words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished to the end that the purpose of its framers may be effectuated.” Galvin, supra at 290-291, quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934). To overcome the presumption of prospective application through this first exception, inferring that the Legislature probably intended retroactive application is not enough; that intent must be “clearly expressed.” See Dotson, 462 Mass. at 101 (“we see no clearly expressed intention by the Legislature to have the 2009 amendment to G. L. c. 272, § 53, applied retroactively”).
The Legislature may clearly express its intent through the words used in a statute or the inclusion of other retroactive provisions in the statute that would make prospective application of the provision at issue “anomalous, if not absurd.” Galvin, supra at 291. Thus, in Galvin, supra at 286-287, we concluded that the reduction in a mandatory minimum sentence required by § 14 of the Crime Bill for violations of G. L. c. 94C, § 32A (d), applied retroactively to a defendant who committed an offense prior to the effective date of the statute but whose conviction and sentencing did not occur until after that effective date. We noted that § 48 of the Crime Bill provided that those persons already serving a mandatory minimum sentence under § 32A (d) would be eligible for parole, probation, work release, and deductions in sentence for good conduct. Id. at 287. We concluded that the Legislature’s intent to make the reductions in mandatory minimum sentences retroactive under § 14 was manifest because, otherwise, the opportunity for a reduction in sentence under the Crime Bill would be provided to those who had already been sentenced for violations of § 32A (d), but not to “the limited class of persons who committed offenses before the amendments but were not convicted and sentenced until after the amendments’ effective date.” Id. at 291.
Here, the Legislature did not clearly express an intention that § 30 apply retroactively. There is nothing in the language of § 30 to reflect an intent that the reduced school zone radius apply either retroactively or prospectively; the section is silent as to its temporal application. Nor, in contrast with the Galvin case, are there other provisions in the Crime Bill, such as provisions applying the reduced school zone radius to those already sentenced for a school zone violation, that would make prospective application of § 30 “anomalous, if not absurd.” We also are not persuaded by the defendant’s argument that the inclusion of a preamble declaring the Crime Bill “an emergency law” whose “deferred operation . . . would tend to defeat its purpose,” suggests a clearly expressed intent that § 30 be applied retroactively. “The inclusion of an emergency preamble demonstrates only that the Legislature intended the statute to take effect without regard for the ninety-day waiting period otherwise provided by art. 48 of the Amendments to the Massachusetts Constitution.” Smith v. Massachusetts Bay Transp. Auth., 462 Mass. 370, 377 (2012). It does not suggest an intent to apply the Crime Bill retroactively. See Federal Nat’l Mtge. Ass’n v. Nunez, 460 Mass. 511, 521 (2011) (“While it is plain that the Legislature wished the new statute to take effect immediately to protect tenants in foreclosed properties from eviction, neither the emergency preamble nor the statutory text demonstrates a clear intent to apply the statute to properties already foreclosed on”).
2. “Repugnant to the context of the same statute.”
Our case law has yet to elaborate on the meaning of the phrase “repugnant to the context of the same statute,” but we can discern its meaning from the words themselves. Black’s Law Dictionary 1419 (9th ed. 2009), defines “repugnant” as “[i]nconsistent or irreconcilable with; contrary or contradictory to,” and “repugnancy” as “[a]n inconsistency or contradiction between two or more parts of a legal instrument (such as a . . . statute).” Therefore, the presumption of prospective application is “repugnant to the context of the same statute” where it would be contrary to the purpose of the statute to delay the accomplishment of that purpose. While the phrase does not refer to the intent of the Legislature, and certainly does not require that the intent of the Legislature be made “manifest,” it does compel us to discern the legislative purpose of the statute at issue and determine whether prospective application would be inconsistent with that purpose.
Although framed as a separate crime, a school zone violation under G. L. c. 94C, § 32J, is effectively a sentencing enhancement for those who commit drug crimes involving more than mere possession within a school zone, because it requires imposition of a mandatory minimum term of imprisonment of two years to begin on the expiration of the sentence for the underlying drug crime. The sentencing enhancement does not require any additional wrongdoing by the defendant; it is enough that the drug violation occurred within a school zone, regardless of whether the defendant knew he was within a school zone. See Commonwealth v. Roucoulet, 413 Mass. 647, 650-651 (1992), quoting State v. Ivory, 124 N.J. 582, 593 (1991) (“After the elements of [the predicate] offense have been established, one need only take out the tape measure to see if [the school zone provision of § 32J] has been violated”).
The legislative purpose of § 32J when it was first enacted in 1989 was to protect school children from drug dealers by creating drug-free school zones. Roucoulet, supra at 652. But since its enactment, various studies have shown that the 1,000-foot radius was overbroad, and that its overbreadth has had an unfair impact on those living in urban communities. As one study summarized:
“Though the statute aims to protect children, its patterns of conviction indicate that it has more effectively created a two-tiered system of drug sentencing in Massachusetts. Because schools are more numerous in dense urban areas, most urban residents — including most of the state’s Black and Latino residents — face longer mandatory minimum sentences for drug offenses than the state’s rural residents, who are predominantly White.”
A Kajstura, P. Wagner, & W. Goldberg, The Geography of Punishment: How Huge Sentencing Enhancement Zones Harm Communities, Fail to Protect Children (2008). A study of Hampden County “found that residents of urban cities and towns are five times as likely to live in a sentencing enhancement zone as rural residents.” Id. Because African-Americans and Latinos comprised most of Hampden County’s urban population, they were more likely to live in school zones. Id. (finding majority — fifty-two per cent — of African-American and Latino residents in Hampden County lived in school zones compared to only twenty-nine per cent of white residents). At least in part because of the greater likelihood that African-American and Latino residents live in school zones, in 2011, seventy-three per cent of those convicted of school zone offenses in Massachusetts were racial or ethnic minorities even though they comprise less than one quarter of the Massachusetts population and do not have a higher rate of illicit drug use. See Massachusetts Sentencing Commission, Survey of Sentencing Practices: FY 2011, at 85 (May 2012); United States Census Bureau, 2012 State & County QuickFacts, Massachusetts; Massachusetts Department of Public Health, Alcohol Use, Illicit Drug Use, and Gambling in Massachusetts, 2002, at 35-36 (July 2005). See generally J. Greene, K. Pranis, & J. Ziedenberg, Disparity by Design: How Drug-Free Zone Laws Impact Racial Disparity -– and Fail to Protect Youth (2006). Moreover, because of the overbreadth of the 1,000-foot school zone radius, few school zone cases involved the sale or distribution of drugs to minors or minors’ participation in drug-dealing activities. A study of drug-dealing in three cities in Massachusetts — Fall River, New Bedford, and Springfield — found that seventy-one per cent of drug-dealing incidents within school zones occurred when school was not in session. W.N. Brownsberger, S.E. Aromaa, C.N. Brownsberger, & S.C. Brownsberger, An Empirical Study of the School Zone Anti-Drug Law in Three Cities in Massachusetts, Journal of Drug Issues, at 936 (2004). Of the 340 drug-dealing incidents that occurred within a school zone, no more than four cases “involved charges of dealing to minors or using minors in sales.” Id. at 945 (Table 8) & 946.
The legislative history of § 30 demonstrates that the Legislature was aware of the school zone’s overbreadth and the disparate impact that resulted. The chair of the House Judiciary Committee, Representative Eugene O’Flaherty, told the House chamber when it considered the conference committee report that included § 30:
“I hope you will understand what some of the urban districts have been dealing with. In Charlestown and Chelsea, you can’t stand anywhere in my district and not be in a school zone. If you are in Worthington, you can stand in Worthington and you are probably not going to be in a school zone. . . . In urban areas all the individuals have this minimum mandatory sentence hanging over their head. . . . It has resulted in disparate sentencing.”
State House News Service, July 18, 2012, at 10-11. Similar arguments were made in the State Senate. During a debate regarding the radius of the school zone, Senator James Eldridge noted that the existing school zone law punished city dwellers more harshly. State House News Service, Nov. 10, 2011, at 8. Senator Stephen Brewer claimed that the entire city of Boston is a school zone. Id. at 9. Senator Daniel Wolf argued that the existing school zone law fostered the discriminatory incarceration of the urban population and of minorities. Id. Perhaps because the existing G. L. c. 94C, § 32J, was recognized to be overbroad, the focus of the debate on § 30 was not whether, but by how much, the school zone radius was to be narrowed. The Senate bill proposed that the radius be reduced to 500 feet, id. at 3, and the Governor proposed 100 feet. State House News Service, Nov. 2, 2011, at 1. The conference committee settled on 300 feet.
Where the radius of the school zone was reduced from 1,000 feet to 300 feet at least in part because the broader radius was recognized to create an unfair disparate impact on those residing in urban areas and, consequently, on minority residents, and where the broader radius did not better protect school children from drug dealers, we conclude that it would be “repugnant to the context of [that] statute” to apply the § 30 amendment to § 32J prospectively and prolong the unfair disparate impact that the preamendment § 32J was having on urban and minority residents. We recognize that, generally, when the Legislature narrows the statutory definition of a crime or reduces the possible sentence for a crime, prospective application “may be, in the defendant’s view, an unfair consequence of G. L. c. 4, § 6, Second, but it does not rise to the level of repugnancy.” Dotson, 462 Mass. at 101. What distinguishes this amendment is that it was enacted to diminish the unfair disparate impact of the prior statute on urban and minority residents. Prospective application, therefore, affects more than the individuals charged with school zone violations; it affects all urban communities by subjecting their residents to a greater likelihood of a school zone sentencing enhancement than residents in suburban and rural communities.
In that regard, this case is similar to Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012), where the United States Supreme Court held that a provision in the Fair Sentencing Act, 124 Stat. 2372 (2010) (act), that reduced the “crack-to-powder cocaine disparity [in minimum mandatory drug sentences] from 100-to-1 to 18-to-1,” applied to offenders who committed a crack cocaine crime before the effective date of the statute but had not yet been sentenced. Title 1 U.S.C. § 109 (2012), the Federal counterpart to G. L. c. 4, § 6, Second, provides that the “repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide.” The Court noted that the United States Sentencing Commission had criticized Congress’s decision to set the crack-to-powder cocaine mandatory minimum ratio at 100-to-1, “because sentences embodying that ratio could not achieve the [Federal] Sentencing Reform Act’s ‘uniformity’ goal of treating like offenders alike, because they could not achieve the ‘proportionality’ goal of treating different offenders (e.g., major drug traffickers and low-level dealers) differently, and because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differences.” Dorsey, supra at 2328. The Court declared that the more lenient penalties in the act may be applied retroactively even if Congress did not expressly say so because Congress expressed its intention of retroactive application by “fair implication.” Id. at 2331-2332. The Court concluded that Congress intended the more lenient penalties for crack cocaine crimes to be applied retroactively because the Sentencing Reform Act, 98 Stat. 1987 (1984), requires sentencing courts to apply the guidelines in effect on the date the defendant is sentenced, provided they do not call for higher penalties, and applying the act’s more lenient mandatory minimum sentences prospectively “would create disparities of a kind that Congress enacted the Sentencing Reform Act and the Fair Sentencing Act to prevent.” Dorsey, supra at 2332-2333. Although the Federal interpretative statute differs from G. L. c. 4, § 6, Second, and the Supreme Court discerned the “fair implication” of congressional intent in the context of Federal statutes governing sentencing guidelines that have no Massachusetts counterpart, the result reached by the Supreme Court in the Dorsey case and by us in this case is essentially the same: where the Legislature chose to amend a sentencing statute at least in part to diminish its unfair disparate impact on a subset of our population, we will not prolong the unfairness by prospective application.
We recognize, as did the Supreme Court, that retroactive application will create its own set of disparities. See Dorsey, 132 S. Ct. at 2335 (“We also recognize that application of the new minimums to pre-[a]ct offenders sentenced after [the effective date of the statute] will create a new set of disparities”). With retroactive application, a person who committed a school zone violation before August 2, 2012, and pleaded guilty to that violation before that date will have his case adjudicated under the preamendment G. L. c. 94C, § 32J, while another person who committed the same school zone violation on the same date but whose case was still pending on August 2, 2012, will have his case adjudicated under the amended § 32J. We acknowledge this unfortunate disparity, but, if the price of avoiding it is to prolong the unfair disparate impact on urban communities in matters of sentencing by declining to apply § 30 retroactively, we think the price is too high.
Conclusion. We answer “yes” to the reported question and hold that St. 2012, c. 192, § 30, applies to all cases alleging a school zone violation for which a guilty plea had not been accepted or conviction entered as of August 2, 2012, regardless of whether the alleged violation was committed before August 2, 2012. The case is remanded to the District Court for further proceedings consistent with this opinion.
 The defendant was also charged in a separate complaint with possession of a class B substance (cocaine), in violation of G. L. c. 94C, § 34, but this complaint is not at issue on appeal.
 With some exceptions, a person sentenced to a mandatory minimum sentence at a house of correction for a school zone violation is eligible for parole after serving one-half of the maximum term of the sentence. See G. L. c. 94C, § 32J.
 In addition to narrowing the radius of school zones, St. 2012, c. 192 (Crime Bill) limited the time period to which the violation applied. Before passage of the Crime Bill, a designated narcotics crime within a school zone constituted a school zone violation regardless of the time of day in which it occurred. Under § 31 of the Crime Bill, a designated narcotics crime within a school zone constitutes a school zone violation only between the hours of 5:00 A.M. and midnight. St. 2012, c. 192, § 31.
COMMONWEALTH vs. NOEL PAGAN.
November 21, 2013.
“School Zone” Statute. Statute, Emergency law, Retroactive application, Amendment. Due Process, Retroactive application of statute.
On August 19, 2009, Marlborough police officers executed a search warrant at the defendant’s residence and discovered a quantity of cocaine and drug-dealing paraphernalia. The defendant’s residence was located approximately 700 feet from an accredited preschool facility. The next day, the defendant was charged by criminal complaint in the District Court with possession of a class B substance (cocaine) with intent to distribute, in violation of G. L. c. 94C, § 32A (a); and committing this violation of § 32A (a) within 1,000 feet of a preschool facility, in violation of G. L. c. 94C, § 32J, commonly known as a “school zone” violation.
On August 2, 2012, the Governor signed into law St. 2012, c. 192, entitled “An Act relative to sentencing and improving law enforcement tools” (Crime Bill), which contained an emergency preamble that made it effective immediately on enactment. Section 30 of the Crime Bill amended G. L. c. 94C, § 32J, by reducing the radius of the school zone from 1,000 feet to 300 feet. On September 13, 2012, the defendant moved to dismiss the school zone violation, claiming that § 30 of the Crime Bill applies to all cases alleging a school zone violation that had not been adjudicated before August 2, 2012, and that his alleged violation occurred outside the amended school zone. The judge initially allowed the defendant’s motion to dismiss but reconsidered his decision on motion of the Commonwealth and issued a new order denying the motion to dismiss. The judge later reported the following question to the Appeals Court:
“Are violations of G. L. c. 94C[, § 32J,] that occur prior to August 2, 2012, the effective date of the Crime Bill, governed by the element of the cause in effect at the time of the offense or at the time of trial”?
We allowed the defendant’s application for direct appellate review. The reported question is effectively the same as that asked in the case of Commonwealth v. Bradley, ante (2013), which we paired for oral argument with this case, and our answer is the same.
Section 30 of St. 2012, c. 192, applies to all cases alleging a school zone violation for which a guilty plea had not been accepted or conviction entered as of August 2, 2012, regardless whether the alleged violation was committed before August 2, 2012. Commonwealth v. Bradley, supra. The judge’s order denying the defendant’s motion to dismiss is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.
Jennifer A. Sunderland, Committee for Public Counsel Services, for the defendant.
Brook S. Lane, Assistant District Attorney, for the Commonwealth.
Barbara J. Dougan, for Families Against Mandatory Minimums, amicus curiae, submitted a brief.
 The record does not reflect the reason the case had remained pending for so long.