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13‑P‑799                                        Appeals Court

LORING TOWERS ASSOCIATES^[1]  vs.  MELVIN FURTICK; BOSTON HOUSING AUTHORITY, third-party defendant.

No. 13‑P‑799.

Essex.     December 3, 2013.  ‑  March 27, 2014.

Present:  Grainger, Brown, & Carhart, JJ.

Summary Process.  Practice, Civil, Summary process, Complaint, Parties.  Boston Housing Authority.  Due Process of Law, Housing.

Summary process.  Complaint filed in the Salem Division of the District Court Department on April 23, 2012.

Following transfer to the Northeast Division of the Housing Court Department, a motion to dismiss a third‑party complaint was heard by David D. Kerman, J.

Michael J. Louis & Angela Marcolina for Boston Housing Authority.

Laura Gallant (James Breslauer with her) for Melvin Furtick.

BROWN, J.  Melvin Furtick, a physically disabled and mentally ill senior citizen, has been a participant in the Federal Housing Choice Voucher Program, better known as “section 8,” for over thirty years.^[2]  The Boston Housing Authority (BHA) terminated Furtick’s housing assistance benefits, a protected property interest, in violation of his due process rights.  Such a result cannot be countenanced by any court of law.  Accordingly, we affirm the judgment of the Housing Court in this summary process litigation restoring Furtick’s housing benefits retroactively to the date of the unlawful termination.

Facts.  Except where noted, the following facts are undisputed.  On January 17, 2012, the leased housing division of the BHA sent a letter addressed to Furtick at his subsidized apartment in Salem, notifying him of the proposed termination of his housing assistance benefits based upon his failure to attend two section 8 voucher recertification meetings scheduled for November 28, 2011, and December 22, 2011.  See § 13.6.2 of the BHA Administrative Plan for Section 8 Programs (revised December 6, 2011) (BHA administrative plan).  The BHA letter informed Furtick that he had the right to an informal hearing regarding the proposed termination before the BHA’s department of grievances and appeals as long as he requested a hearing within twenty days.  See id. at § 13.6.3.  When Furtick failed to respond within the twenty-day appeal period, the BHA, by letter dated February 7, 2012, and mailed to his apartment, terminated Furtick’s subsidy effective March 31, 2012.  As Furtick was in jail during that time, he had no actual knowledge of any of this.^[3]  Upon his release, Furtick returned to his apartment and discovered that not only had the landlord changed the lock, but the BHA had terminated his benefits.^[4]

On April 10, 2012, he personally traveled to the BHA’s department of grievances and appeals and attempted to appeal the termination decision, explaining the reasons for his nonattendance at the recertification meetings as well as for his failure to request a timely hearing.  The BHA representative informed him that a decision whether to grant a late hearing would be issued within ninety days, a fact reflected on the receipt provided to Furtick.  Furtick indicated that he was temporarily living at the Lynn Emergency Shelter and asked that the BHA notice of the decision be sent there.  After gaining access to his apartment again within a few days, he called the BHA, updating his address.  At that time, the BHA did not inform him that on the very day of his visit, the BHA had mailed out notice of an adverse decision to him at the Lynn Emergency Shelter.^[5]

Meanwhile, also in April of 2012, Furtick’s landlord, prompted by the cessation of the BHA’s payment of its share of the rent, commenced a summary process action against him.  Furtick defended in part by lodging a third-party complaint against the BHA, in which he sought reinstatement of his section 8 voucher.  The BHA moved to dismiss on grounds that it could not properly be impleaded in the summary process case and that Furtick’s complaint was time-barred.  After two days of hearings, a judge of the Northeast Division of the Housing Court Department, acting on the undisputed facts, declined to allow the BHA’s motion and instead ordered the reinstatement of Furtick’s section 8 benefits retroactively to the date of their termination.  Before us now is the BHA’s appeal from the resulting judgment on the third-party complaint.

Discussion.  Third-party claim.  There was no error in the allowance of Furtick’s motion to file a third-party complaint against the BHA.  Rule 14(a) of the Massachusetts Rules of Civil Procedure, as amended, 385 Mass. 1216 (1982), permits a defendant to bring in a third party “who is or may be liable to him for all or part of the plaintiff’s claim against him.”  In the underlying summary process action here, the landlord sought rent arrearage from Furtick.  BHA was potentially liable for contribution, and thus a proper candidate for impleader.  See Gabbidon v. King, 414 Mass. 685, 686-687 (1993).

Although the Uniform Summary Process (USP) Rules govern procedure in summary process cases, no USP rule specifically addresses third-party practice.  In this situation, the Massachusetts Rules of Civil Procedure apply unless “inconsistent with [the USP] rules, with applicable statutory law or with the jurisdiction of the particular court [here, the Housing Court].”  Rule 1 of the Uniform Summary Process Rules (1980).  See Deutsche Bank Natl. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 571 n.17 (2012).  We find no such inconsistency here. Nothing in G. L. c. 239, the summary process statute, can be read to limit a section 8 participant’s right to bring a third-party complaint against a public housing authority or plan administrator.  Contrast Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 515 (2003) (concluding that counterclaim could not be brought in commercial eviction cases where G. L. c. 239, § 8A, expressly limited that right to actions “to recover possession of any premises rented or leased for dwelling purposes“).^[6]

The case of Cummings Properties, LLC v. Cepoint Networks, LLC, 78 Mass. App. Ct. 287 (2010), is inapposite.  In Cummings, this court held that a private guarantor of a commercial lease, who lacked a possessory interest in the leasehold, was not a proper defendant in a summary process action.  In reaching this holding, we construed the language of G. L. c. 239, §§ 1 and 2, to require a defendant to be in possession of the property.  Id. at 288-289.  A contrary holding would have been inconsistent with the plain language of the statute.  Id. at 290.  Here, in contrast, the statute is silent on third-party practice.  There is no requirement under our jurisprudence that a third-party defendant be in possession of the property.

Express legislative intent, moreover, to permit third-party practice appears in G. L. c. 185C, § 19 (requiring clerks of the Housing Court to impose a fee of $ 120 for the filing of a third-party complaint or a motion to intervene as a plaintiff).^[7]  Compare Bank of America, N.A. v. Rosa, 466 Mass. 613, 625 n.11 (2013) (noting that a G. L. c. 93A, § 9, claim can be brought in the Housing Court, as provided in G. L. c. 185C, § 3, by way of a third-party action).  Rule 14(a) applied here and authorized the filing of a third-party claim.^[8]

The judge did not err by denying the BHA’s motion to dismiss based on the asserted untimeliness of Furtick’s third-party claim.  The BHA was not entitled to pigeonhole Furtick’s claim as one brought under the certiorari statute with its short limitations period of sixty days.  See G. L. c. 249, § 4.  As the Housing Court judge noted, the substance of Furtick’s third-party complaint challenged the propriety of the procedure employed by the BHA in his case, the essence of a Federal civil rights claim.^[9]  See Carter v. Lynn Hous. Authy., 450 Mass. 626, 633 (2008) (“[J]udicial review of the decision to terminate [a housing benefit] ‘has long been framed as a claim for deprivation of a vested property interest without due process of law’”), quoting from Wojcik v. Lynn Hous. Authy., 66 Mass. App. Ct. 103, 105 n.4 (2006); Costa v. Fall River Hous. Authy., 71 Mass. App. Ct. 269, 274 & n.5 (2008) (concluding that Housing Court properly exercised jurisdiction over tenant’s 42 U.S.C. § 1983 claims in complaint alleging housing authority did not afford due process in terminating tenant’s section 8 benefits), S.C., 453 Mass. 614 (2009).^[10]

Unfair process.  Furtick’s sole source of income is his Social Security disability insurance benefits, an amount clearly insufficient to cover market-rate rent.  According to his doctors, given his serious medical problems, the absence of decent, sanitary housing would place Furtick’s health at serious risk.^[11]  Before terminating Furtick’s critical housing assistance, the BHA was required to provide him with a fair process.  See Carter v. Lynn Hous. Authy., 450 Mass. at 637-638.  Nothing of the sort was provided here.

First, the February 7, 2012, section 8 benefits termination notice from the BHA’s leased housing division was defective.  It incorrectly stated that “this decision is final and there is no further right to appeal this decision of the BHA.”  In fact, under the BHA administrative plan’s termination procedure, a participant may obtain an administrative appeal hearing on the decision through a late request upon a showing of compelling circumstances.^[12],[13]  No BHA representative informed Furtick of the compelling circumstances policy, or explained how to meet its requirements.

In her brief decision dated April 10, 2012, the BHA grievances and appeals administrator denied Furtick’s request for a late hearing, and upheld the termination decision, based upon Furtick’s failure to request a hearing within the initial twenty-day period (a factual impossibility) and his failure to provide evidence of compelling circumstances (a requirement about which he was not told).  The BHA official signed the decision as an administrator.  No compelling circumstances evaluation was made here by a hearing officer as required by the BHA administrative plan.  See note 12, supra.  Indeed, it is entirely unclear whether the administrator was even aware of Furtick’s individual circumstances.  The BHA’s failure to follow its own policy set forth in the BHA administrative plan was a violation of HUD regulations.^[14]  See 24 C.F.R. § 982.54(c) (2012).  The administrative decision resting upon such a flawed process was invalid and cannot stand.  See Wojcik v. Lynn Hous. Authy., 66 Mass. App. Ct. at 115.  The finding of compelling circumstances as matter of law by the Housing Court judge was not shown to be incorrect.  In the unique circumstances of the case and all that Furtick has endured, we decline to disturb the judge’s ruling reinstating the housing assistance benefits.