Commonwealth v. Ortiz (Lawyers Weekly No. 10-189-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11426 COMMONWEALTH vs. LUIS ORTIZ. Middlesex. October 10, 2014. – November 26, 2014. Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ. Homicide. Firearms. Practice, Criminal, Capital case. Self-Defense. Indictments found and returned in the Superior Court Department on June 24, 2010. The cases were tried before Richard T. Tucker, J. Dana Alan Curhan for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. LENK, J. The defendant appeals from his conviction of murder in the first degree, on a theory of deliberate premeditation, in the shooting death of Philip Meltzer. Although the defendant concedes that the evidence was sufficient to support the jury’s verdict, and does not suggest that any error occurred at trial, he contends that the verdict was against the weight of the evidence. The defendant asks that we exercise our power under G. L. c. 278, § 33E, to order a new trial or to reduce his conviction to a lesser degree of guilt. Having reviewed the entire record, we decline to do so, and affirm the defendant’s conviction. Because the defendant maintains that the verdict was against the weight of the evidence, we summarize that evidence without drawing all inferences favorable to the Commonwealth. See Commonwealth v. Franklin, 465 Mass. 895, 896 (2013). On May 29, 2010, the defendant’s sister, Angelie Ortiz,[1] was kidnapped by her former boy friend, Gilberto Cartagena. Cartagena trapped Angelie and their two year old son in a van and drove to the Lowell home of his acquaintance, Timothy Brown. Brown got into the van with Angelie and Cartagena and drove them to Lawrence. Brown had given Cartagena a gun, and on the way to Lawrence, Cartagena pointed the gun at different parts of Angelie’s body, including her genitals, and threatened to kill her. At some point, Angelie inadvertently dialed her brother’s telephone number. A resulting message on the defendant’s telephone’s voicemail recorded Angelie crying and screaming for several minutes. In Lawrence, Angelie escaped with her son. She arranged for the defendant to meet them, and the defendant drove them to Angelie’s aunt’s home. Angelie told the defendant that Cartagena had kidnapped her and her son and had threatened her with a gun. In the early hours of May 30, 2010, the defendant picked up Angelie and their cousin, Luis Fontanez.[2] […]
Commonwealth v. Liebenow (Lawyers Weekly No. 10-188-14)
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 SJC-11593 COMMONWEALTH vs. CARL B. LIEBENOW, JR. Berkshire. September 2, 2014. – November 25, 2014. Present: Gants, C.J., Cordy, Botsford, Duffly, & Lenk, JJ. Larceny. Intent. Mistake. Practice, Criminal, Affirmative defense. Complaint received and sworn to in the Pittsfield Division of the District Court Department on August 12, 2010. The case was heard by Fredric D. Rutberg, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Elizabeth Caddick for the defendant. John Bossé, Assistant District Attorney, for the Commonwealth. DUFFLY, J. The defendant, who was in the business of collecting and selling scrap metal, was charged with larceny under $ 250, G. L. c. 266, § 30 (1), in connection with his removal of two lengths of steel pipe from a construction site located on private property in Pittsfield. He was convicted of that charge following a jury-waived trial in the District Court. The conviction was affirmed by the Appeals Court in a divided opinion, see Commonwealth v. Liebenow, 84 Mass. App. Ct. 387, 398 (2013), and we granted the defendant’s petition for further appellate review. The defendant claimed as an affirmative defense at trial that he lacked the requisite specific intent to steal because he honestly, albeit mistakenly, believed that the property he removed from the site was abandoned. The judge, however, erroneously viewed the affirmative defense as requiring proof that the defendant’s belief was objectively reasonable. This misperception appears to have arisen from the conflation of two distinct concepts that have appeared over time in our jurisprudence: the concept of good faith belief, which is subjective, and the concept of reasonable belief, which is objective.[1] We take this opportunity to resolve the resulting confusion. As the dissent in the Appeals Court correctly stated: “[W]ith respect to specific intent crimes such as larceny, . . . [t]he question for the fact finder is not whether the defendant has behaved reasonably but instead whether he actually possessed the requisite mental state. “. . . “[W]here a defendant puts at issue his belief that the property he took had been abandoned, . . . the Commonwealth must prove that the defendant ‘knew that he had no right to the property taken,’ . . . not merely that a reasonable person in the defendant’s position would have known” […]
Byron V. Hartunian, M.D., P.C. v. Pilgrim Insurance Company (Lawyers Weekly No. 11-152-14)
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 14-P-8 Appeals Court BYRON V. HARTUNIAN, M.D., P.C. vs. PILGRIM INSURANCE COMPANY. No. 14-P-8. Middlesex. September 9, 2014. – November 24, 2014. Present: Kantrowitz, Grainger, & Hanlon, JJ. Insurance, Motor vehicle personal injury protection benefits, Settlement of claim, Unfair act or practice. Consumer Protection Act, Insurance, Unfair or deceptive act. Motor Vehicle, Insurance. Civil action commenced in the Cambridge Division of the District Court Department on November 7, 2008. The case was heard by Severlin B. Singleton, III, J. Joseph R. Ciollo for the defendant. Francis A. Gaimari for the plaintiff. GRAINGER J. A $ 990 dispute, reduced shortly before a bench trial in the District Court to a claim for $ 188.10, has resulted in an award totaling $ 25,343.53 against Pilgrim Insurance Company (Pilgrim).[1] Pilgrim now appeals from the decision and order of the Appellate Division of the District Court affirming the District Court judgment in favor of Byron Hartunian, M.D., P.C. (Hartunian), on his claim that Pilgrim unfairly delayed payment for orthopedic treatment rendered by Hartunian to the claimant under Pilgrim’s policy. We affirm. This case arises out of an April 4, 2007, automobile accident in which a passenger was injured, resulting in her need for medical treatment. The automobile in which she was a passenger was covered by a standard Massachusetts automobile insurance policy (auto policy) issued by Pilgrim. A personal injury protection (PIP) benefits application was received by Pilgrim approximately ninety days after the accident. Some ninety additional days thereafter Pilgrim received treatment records and bills from Hartunian for five different dates of treatment.[2] Pilgrim initially paid $ 515 to Hartunian, constituting payment for the first two treatment dates of May 15 and June 20, 2007. Thereafter, Pilgrim paid Hartunian an additional $ 495 for the remaining three treatment dates of July 19, August 14, and October 2, 2007. Although these two payments were intentionally $ 990 less than the total of Hartunian’s billings, Pilgrim did not notify Hartunian or his patient of its intention not to pay the $ 990 within ten days of the submission of the bills. Pilgrim based its nonpayment on its determination that the charges exceeded an amount that was reasonable in comparison to other medical providers in the same geographic area. After approximately twelvemonths of demanding payment to […]
Commonwealth v. Burgos (Lawyers Weekly No. 10-187-14)
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 SJC-11005 COMMONWEALTH vs. JOHN BURGOS. Bristol. September 5, 2014. – November 21, 2014. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Electronic Surveillance. Evidence, Wiretap, Corroborative evidence, Telephone conversation. Homicide. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Telephone. Practice, Criminal, Capital case, Motion to suppress, New trial, Assistance of counsel. Indictment found and returned in the Superior Court Department on June 24, 2009. A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J.; the case was tried before Gary A. Nickerson, J., and a motion for a new trial, filed on March 1, 2013, was considered by him. Janet Heatherwick Pumphrey for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. The defendant appeals from his conviction of murder in the first degree. His primary argument on appeal is that his motion to suppress a secretly recorded conversation between him and an informant working with the police was erroneously denied, that evidence of the conversation should have been excluded at trial, and that his conviction must be reversed as a result.[1] We agree and reverse the defendant’s conviction. Background. 1. Electronically recorded conversation. Dana Haywood was shot and killed on July 4, 2005, in the Monte Park neighborhood of New Bedford. Over three years later, in February of 2009, an assistant district attorney in the Bristol district received a letter from Rico Almeida, who was then sharing a cell with the defendant in the Bristol County house of correction. Almeida wrote that the defendant had been one of the participants in the shooting death of Haywood on July 4, 2005, that the defendant had told Almeida “how they did it, where, and when,” and that Almeida would be able to arrange for the defendant to repeat this admission to the shooting of the victim. Almeida offered to wear a concealed recording device and record the proposed conversation. In response to the letter, the Commonwealth submitted an affidavit of Trooper Anthony Spencer of the State police to a judge in the Superior Court, and obtained a search warrant authorizing the electronic recording of conversations between the cooperating witness (i.e., Almeida) and the defendant.[2] In an affidavit dated March 2, 2009, Spencer begins by reciting the […]
Fernandes v. Attleboro Housing Authority (Lawyers Weekly No. 10-186-14)
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 SJC-11580 DAVID FERNANDES vs. ATTLEBORO HOUSING AUTHORITY. Bristol. September 4, 2014. – November 19, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Labor, Wages. Superior Court, Jurisdiction. Jurisdiction, Primary jurisdiction, Superior Court, Civil Service Commission. Public Employment, Termination, Reinstatement of personnel. Civil Service, Applicability of provisions, Termination of employment, Reinstatement of personnel. Employment, Termination, Retaliation. Damages, Additur. Practice, Civil, Additur, Attorney’s fees. Housing Authority. Municipal Corporations, Housing authority. Civil action commenced in the Superior Court Department on November 13, 2009. The case was heard by Robert J. Kane, J., and motions for judgment notwithstanding the verdict, for reinstatement, and for a new trial or for additur were heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maria M. Scott for the plaintiff. David D. Dowd for the defendant. SPINA, J. David Fernandes was employed by the Attleboro Housing Authority (AHA) as a maintenance mechanic II from January 16, 2001, until his termination on May 29, 2009. Approximately six months later, he commenced an action in the Superior Court against the AHA for alleged violations of the Wage Act, G. L. c. 149, §§ 148 and 148A. Fernandes claimed that the AHA violated § 148 by intentionally misclassifying his position as maintenance mechanic II, instead of maintenance mechanic I, and thereby failing to pay him the wages to which he was entitled. Fernandes also alleged that the AHA violated § 148A by terminating him in retaliation for complaining about nonpayment of earned wages and filing a complaint with the Attorney General’s office.[1] Following a trial in January, 2012, a jury, in response to special questions, found in favor of Fernandes on both claims. The jury awarded damages against the AHA in the amount of $ 2,300 for unpaid wages due to misclassification, and $ 130,000 for lost wages due to retaliation. The parties then filed numerous posttrial motions. Of relevance to the present appeal, the AHA filed a motion for judgment notwithstanding the verdict, contending that the Superior Court lacked subject matter jurisdiction over Fernandes’s wage and retaliation claims because, as a housing authority employee, Fernandes was required to bring such claims before the Civil Service Commission (commission) for resolution. Fernandes filed a motion for reinstatement to the position of maintenance mechanic […]
Commonwealth v. Ford (Lawyers Weekly No. 11-151-14)
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 13-P-1327 Appeals Court COMMONWEALTH vs. KENNETH FORD. No. 13-P-1327. November 18, 2014. Dangerous Weapon. Evidence, Knife. Arrest. Practice, Criminal, Instructions to jury. Following a two-day jury trial in the Roxbury Division of the Boston Municipal Court Department, the defendant was convicted of carrying a dangerous weapon, a knife, in violation of G. L. c. 269, § 10(b).[1] He appeals, claiming the judge erred by: (1) failing to enter a required finding of not guilty, as the evidence was insufficient to submit to the jury, and (2) instructing the jury that the knife was per se dangerous. We reverse. 1. Sufficiency of the evidence. In the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the jury could have found the following facts. Sometime after 10:00 P.M. on November 1, 2011, Jose Romero reported to police that, when walking home after work on Blue Hill Avenue, two men in a van offered him a ride, which he accepted. One man was reported to have a knife, the other a gun. Romero said that the men threatened him with the weapons and robbed him of his cash. After taking this report, the police agreed to drive Romero home. Just prior to arriving at Romero’s home, a radio transmission was broadcast that the suspects in the robbery had been stopped. The officers brought Romero to the location and he identified both individuals, including the defendant. The defendant was arrested and transported to the police station for booking. Police had searched the defendant at the time of the initial stop and no weapon was located. During booking, a second search of the defendant revealed a knife in his pocket. At some point, the police learned the defendant had active warrants. In order to prove the defendant guilty of carrying a dangerous weapon in violation of G. L. c. 269, § 10(b), the Commonwealth was required to show that he was either carrying one of the weapons enumerated in the statute or that, “when arrested upon a warrant for an alleged crime, or when arrested while committing a breach or disturbance of the public peace,” he had on his person “a billy or other dangerous weapon other than those herein mentioned.” G. L. c. 269, § 10(b), as amended by St. 1986, c. 581, § 1. On appeal, the parties agree that the […]
Kelley, et al. v. Boston Fire Department, et al. (Lawyers Weekly No. 11-150-14)
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 13-P-1701 Appeals Court JOSEPH KELLEY & others[1] vs. BOSTON FIRE DEPARTMENT & another.[2] No. 13-P-1701. November 18, 2014. Fire Fighter, Appointment. Municipal Corporations, Fire department. Boston. Civil Service, Appointment. Practice, Civil, Review of interlocutory action. Four fire lieutenants employed by the city of Boston (city) fire department filed an appeal with the Civil Service Commission (commission) pursuant to G. L. c. 31, § 2(b) and (c), claiming to be aggrieved by the practice of appointing out-of-grade acting captains without following the provisions of the civil service laws. The commission found that the city violated G. L. c. 31, § 31, by appointing acting captains on an emergency basis without initially notifying the Division of Human Resources (HRD), and without obtaining the consent of HRD to extend the emergency appointments after the initial thirty days. The commission ordered the city to cease appointing acting captains in this manner, and the city ended the practice effective July 1, 2009.[3] However, the commission ultimately dismissed the plaintiffs’ appeal, concluding that compliance with § 31 procedures was “ministerial,” and that the plaintiffs had failed to demonstrate that the appointments did not meet the statutory criteria set forth in G. L. c. 31, § 31.[4] The lieutenants appealed the commission’s decision pursuant to G. L. c. 30A, § 14. A judge of the Superior Court vacated the commission’s decision, concluding as a matter of law that the statutory notice and consent requirements were not ministerial, and that the burden of proving that the § 31 criteria were met rested with the city, not the plaintiffs. The matter was remanded to the commission for a new evidentiary hearing to allow the plaintiffs to offer proof of the specific appointments made in violation of § 31 that “they should have received because of their position on the promotion list.” The city has appealed. No appeal was filed by the commission. “As a general rule, an aggrieved litigant cannnot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it.” Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673-674 (2008). This general rule applies with equal force to appeals by litigants who appear before administrative agencies. “[A]n order of remand to an administrative agency is interlocutory and may not be appealed from by the parties to the underlying action.” Chief Justice for Admin. & Mgmt. of […]
Commonwealth v. Reade (Lawyers Weekly No. 10-185-14)
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 SJC-11655 COMMONWEALTH vs. DEVIN R. READE. November 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. Notice, Timeliness. Practice, Criminal, Interlocutory appeal, Assistance of counsel. The petitioner, Devin R. Reade, appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. In his petition, Reade sought relief from a District Court judge’s decision not to appoint counsel for him in an underlying criminal case in which he is charged with two misdemeanors. See G. L. c. 211D, § 2B. This appeal is governed by S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Rule 2:21 (1) requires that any notice of appeal be filed with the clerk of the county court within seven days of the entry of the single justice judgment, unless the court otherwise permits. The judgment in this case was entered on December 23, 2013, but the notice of appeal was not filed until March 18, 2014, eighty-five days later. Because the appeal is clearly untimely, we shall dismiss it. Even if we were to consider his claims on the merits, Reade would not be entitled to relief. The District Court judge’s decision not to appoint counsel was an interlocutory determination that can adequately be reviewed in a direct appeal in the event Reade is convicted. “Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process . . . .” Votta v. Police Dep’t of Billerica, 444 Mass. 1001, 1001 (2005). The single justice did not err or abuse her discretion in concluding that extraordinary superintendence relief under G. L. c. 211, § 3, was not necessary.[1] Appeal dismissed. The case was submitted on the papers filed, accompanied by a memorandum of law. Devin R. Reade, pro se. Cynthia M. Von Flatern, Assistant District Attorney, for the Commonwealth. [1] General Laws c. 211D, § 2B, provides that “[a] person charged with a misdemeanor . . . shall not be appointed counsel if the judge, at arraignment, informs such person on the record that, if the person is convicted of such offense, the person’s sentence shall not include any period of incarceration.” Here, counsel was initially appointed for Devin R. Reade. Counsel subsequently moved to […]
Downey, et al. v. Chutehall Construction Co., Inc., et al. v. The Follett Company, Inc. (Lawyers Weekly No. 11-149-14)
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 13-P-819 Appeals Court CHRISTOPHER DOWNEY & another[1] vs. CHUTEHALL CONSTRUCTION CO., LTD.; THE FOLLETT COMPANY, INC., third-party defendant. No. 13-P-819. Suffolk. September 15, 2014. – November 13, 2014. Present: Berry, Kafker, & Carhart, JJ. Libel and Slander. Consumer Protection Act, Unfair or deceptive act. Privileged Communication. Evidence, Opinion, Privileged communication. Practice, Civil, Summary judgment, Entry of judgment. Civil action commenced in the Superior Court Department on July 2, 2010. A motion for partial summary judgment was heard by Judith Fabricant, J., and entry of final and separate judgment was ordered by her. John D. Fitzpatrick for Chutehall Construction Co., Ltd. Heather Gamache for The Follett Company, Inc. KAFKER, J. Homeowners Christopher and Mairead Downey (the Downeys) hired a contractor, The Follett Company, Inc. (Follett), to investigate the cause of their leaky roof. Follett reported that the roof had been installed a number of years earlier over fiberboard roof insulation that was soaking wet, thereby causing the later leakage. The Downeys then sued the installer of the roof, Chutehall Construction Co., Ltd. (Chutehall), for substandard workmanship, and Chutehall brought third-party defamation and G. L. c. 93A claims against Follett, asserting that the statement about installing the roof over the soaking wet fiberboard insulation was false and defamatory. A Superior Court judge granted Follett’s motion for summary judgment on Chutehall’s claims against Follett. Follett then filed a motion for the entry of a separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), which Chutehall opposed. The judge allowed Follett’s motion, judgment entered, and this appeal followed. On appeal, Chutehall argues that the judge erred in deciding as a matter of law (1) that Follett’s report about the roof constituted a statement of opinion not fact, (2) that Follett was not negligent in making the statement, and (3) that the statement was protected by a conditional privilege. Chutehall also argues that the judge erred in allowing the motion for entry of separate and final judgment. We conclude that the statement by Follett was protected by a conditional privilege that was not abused, and therefore, summary judgment was properly allowed on the defamation claim. As the c. 93A claim depends on the merits of the defamation claim, summary judgment was properly allowed on this claim as well. There was no error in the […]
Subcontracting Concepts, Inc. v. Commissioner of the Division of Unemployment Assistance, et al. (Lawyers Weekly No. 11-147-14)
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 13-P-269 Appeals Court SUBCONTRACTING CONCEPTS, INC. vs. COMMISSIONER OF THE DIVISION OF UNEMPLOYMENT ASSISTANCE & another.[1] No. 13-P-269. Middlesex. October 8, 2013. – November 12, 2014. Present: Rubin, Milkey, & Agnes, JJ. Employment Security, Employment relationship, Burden of proof. Civil action commenced in the Ayer Division of the District Court Department on August 23, 2011. The case was heard by Michael J. Brooks, J. Jack K. Merrill for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for Commissioner of Unemployment Assistance. AGNES, J. This case concerns the liability of the plaintiff, Subcontracting Concepts, Inc. (SCI), a New York corporation, for contributions to the Massachusetts unemployment compensation fund (fund) pursuant to G. L. c. 151A, §§ 13 & 14. The Division of Unemployment Assistance (DUA) determined that the defendant Kenneth Flynn was an “employee,” who performed “employment” services for SCI, who was his “employer.” SCI contends that Flynn was an independent contractor (and not an employee) under a statutory exemption set forth in G. L. c. 151A, § 2. For the reasons that follow, we conclude that the board of review (board) of the DUA ruled correctly that Flynn was an employee who performed services for SCI, and thus we affirm the judgment of the District Court which reached the same result. 1. Procedural background.[2] This appeal arose out of a claim for unemployment compensation filed by Flynn in September, 2009. Flynn worked from April 4, 2009, to August 12, 2009, when he was terminated. Flynn named Ace Expediters of Alabama, Inc. (Ace), as his employer. Flynn did not work for anyone else during this period.[3] 2. Factual background. The examiner made the following findings of fact which are amply supported by the evidence presented at the hearing. On March 21, 2009, Flynn entered into a written contract with SCI to provide services to “SCI and its customers.”[4] The examiner found that SCI “is engaged in providing drivers and vehicles to client courier services to perform their necessary delivery work. They also provide a payroll service, paying the drivers, who are always hired as independent contractors.” Flynn did not sign a contract with SCI’s courier client for whom he made the deliveries, in this case Ace. Flynn’s agreement with SCI states that “no employer/employee relationship is created under this agreement or otherwise.” No taxes were deducted from Flynn’s pay […]
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