Posts tagged "Appeal"

Public Employee Retirement Administration Commission v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-027-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12331   PUBLIC EMPLOYEE RETIREMENT ADMINISTRATION COMMISSION  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]       Suffolk.     November 6, 2017. – February 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Public Employee Retirement Administration Commission.  Contributory Retirement Appeal Board.  Retirement.  Public Employment, Retirement, Sick leave benefits, Vacation pay, Worker’s compensation.  Words, “Regular compensation.”       Civil action commenced in the Superior Court Department on May 14, 2015.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Judith A. Corrigan, Special Assistant Attorney General, for the plaintiff. Michael Sacco for retirement board of Swampscott.          CYPHER, J.  The plaintiff, the Public Employee Retirement Administration Commission (PERAC), appeals from a Superior Court judge’s decision affirming a determination by the Contributory Retirement Appeal Board (CRAB) that sick or vacation payments, when used to supplement workers’ compensation payments, are not “regular compensation” as defined in G. L. c. 32, § 1.  PERAC argues that CRAB’s decision is incorrect as a matter of law.  We disagree, and for the following reasons we affirm the decision of the Superior Court judge. Background.  The relevant facts are not in dispute.  From September 30, 1985, to July 7, 2012, Robert Vernava worked for the town of Swampscott’s department of public works.  On June 13, 2010, Vernava sustained injuries while performing job-related duties.  He began receiving workers’ compensation benefits the same day.  In addition to the workers’ compensation benefits, under G. L. c. 152, § 69, Vernava also received two hours per week of sick or vacation pay (supplemental pay) in order to maintain his union membership and life insurance.[2] Pursuant to G. L. c. 32, § 7, on February 1, 2012, the town of Swampscott filed an application seeking to retire Vernava involuntarily for accidental disability.  On June 28, 2012, the retirement board of Swampscott (board) approved the application and voted to involuntarily retire Vernava due to accidental disability.  Vernava received his workers’ compensation benefits and supplemental pay until July 7, 2012. Under G. L. c. 32, § 7 (2), the effective date of an employee’s accidental disability retirement is the latest of the following:  (1) “the date the injury was sustained;” (2) “the date […]

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Posted by Massachusetts Legal Resources - February 13, 2018 at 9:00 pm

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Worcester Regional Retirement Board v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-147-17)

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   17-P-66                                         Appeals Court   WORCESTER REGIONAL RETIREMENT BOARD  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1]     No. 17-P-66.   Worcester.     October 11, 2017. – November 29, 2017.   Present:  Milkey, Massing, & Ditkoff, JJ.     Contributory Retirement Appeal Board.  County, Retirement board. Municipal Corporations, Retirement board, Pensions.  Public Employment, Retirement, Retirement benefits.  Retirement.  Pension.     Civil action commenced in the Superior Court Department on September 15, 2015.   The case was heard by Shannon Frison, J., on motions for judgment on the pleadings.     Michael Sacco for the plaintiff. Thomas F. Gibson for Middlesex County Retirement Board.     MASSING, J.  The Worcester Regional Retirement Board (WRRB) appeals from a judgment of the Superior Court, which affirmed a decision of the Contributory Retirement Appeal Board (CRAB) requiring the WRRB to permit a former member to purchase nine additional months of creditable service.[2]  At issue is whether the WRRB is responsible for not having enrolled the employee, Brian Pierce, as of the day he became eligible for membership, or whether Pierce had an affirmative obligation to ensure that he had been enrolled as of his start date.  CRAB determined that the responsibility lay with the WRRB, not the employee; that the retirement system records should be corrected to reflect Pierce’s nine months of uncredited membership; and that Pierce should be permitted to buy back the time of which he had erroneously been deprived.  Discerning no legal error or abuse of discretion on CRAB’s part, we affirm. Background.  Pierce began permanent, full-time employment as a third-class lineman for the Princeton Municipal Light Department, which is a member unit of the Worcester Regional Retirement System (WRRS), on December 6, 1982.  On October 24, 1983, Pierce completed a new entrant enrollment form “[i]n order that [he] may be properly enrolled” in the WRRS.[3]  The WRRB stamped the form as received on November 18, 1983.  The form correctly indicated that Pierce’s full-time permanent employment had begun on December 6, 1982.  The WRRB enrolled Pierce as a member as of September 1, 1983, crediting him with service prior to its receipt of his enrollment form, but not for the first nine months of his employment starting on December 6, 1982. Pierce’s service with the town of Princeton ended on May 1, 1986, when he took a similar position with the Middleborough Light Department. […]

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Posted by Massachusetts Legal Resources - November 29, 2017 at 4:44 pm

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Retirement Board of Stoneham v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 10-189-16)

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-12098   Retirement Board OF STONEHAM  vs.  Contributory Retirement Appeal Board & another.[1]       Middlesex.     October 5, 2016. – December 22, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Retirement.  Municipal Corporations, Retirement board.  Public Employment, Retirement.  Contributory Retirement Appeal Board.       Civil action commenced in the Superior Court Department on February 6, 2014.   The case was heard by Robert L. Ullmann, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Douglas S. Martland, Assistant Attorney General, for Contributory Retirement Appeal Board. Thomas F. Gibson for Christine DeFelice. Michael Sacco for the plaintiff.     LOWY, J.  This case requires us to answer two questions:  (1) whether a municipal retirement board possesses absolute discretion to terminate a part-time employee’s membership in a retirement system to which that board has granted the employee membership; and (2) even if such a board does not have the power to terminate a part-time employee’s membership, whether a “separation from [an employee’s] service” under G. L. c. 32, § 3 (1) (a) (i), occurs when a part-time employee working two jobs for the same municipal employer ceases to work only one of those jobs.  We answer both questions in the negative and reverse the judgment of the Superior Court. Background.  Christine DeFelice began working on a part-time basis for the Stoneham school department (department) in November, 2000.  In April, 2001, she took on a second part-time job with the department to fill a temporary vacancy, increasing her weekly workload from nineteen and one-half hours per week to over thirty hours per week for the ensuing nine weeks.  At the end of the nine-week period, DeFelice continued to work for the department on a part-time basis until at least June, 2009, only occasionally working more than nineteen and one-half hours per week.[2] In 2009, DeFelice sought retroactive membership in the Stoneham retirement system as an employee of the department, based on the nine-week period in 2001 during which she worked over thirty hours per week.  Under the membership eligibility criteria for part-time employees established by the Stoneham retirement board (board) that were in effect during 2001, Stoneham employees were eligible for membership in the retirement system if they were […]

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Posted by Massachusetts Legal Resources - December 23, 2016 at 12:28 am

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Callahan v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-122-16)

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   15-P-475                                        Appeals Court   ELEANOR CALLAHAN  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1]     No. 15-P-475.   Suffolk.     February 1, 2016. – September 12, 2016.   Present:  Cohen, Carhart, & Kinder, JJ.     Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide.  Registrar of Motor Vehicles, Revocation of license to operate.  License.  Administrative Law, Decision.       Civil actions commenced in the Superior Court Department on March 31, 2011, and January 21, 2014.   After consolidation, the case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion to dismiss was also heard by him.     Martin P. Desmery for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for the defendants.     COHEN, J.  The plaintiff sought judicial review of a decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) denying her application for reinstatement of her driver’s license.  On cross motions for judgment on the pleadings, a judge of the Superior Court ruled in favor of the board, and the plaintiff appealed to this court.  The plaintiff argues that the board erred in determining that her 1989 conviction of “driving while ability is impaired,” in violation of the New York State Vehicle Traffic Law (VTL), is “substantially similar” to a Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), thereby subjecting her to lifetime revocation of her driver’s license as a result of her subsequent conviction of motor vehicle homicide while OUI.  The plaintiff also argues that the board lacked the authority to reconsider an earlier decision granting her a restricted, hardship license.  For the reasons that follow, we affirm. Background.  The relevant facts are drawn from the administrative record and are not disputed.  On October 30, 1988, the plaintiff was charged in Lewisboro, New York, with driving while intoxicated per se, pursuant to VTL § 1192.2; driving while intoxicated, pursuant to VTL § 1192.3; and driving left of the pavement marking, pursuant to VTL § 1126a.  These charges were resolved on January 23, 1989, when the plaintiff pleaded guilty to the lesser charge of “driving while ability is […]

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Posted by Massachusetts Legal Resources - September 12, 2016 at 7:09 pm

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Burke v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, et al. (Lawyers Weekly No. 11-121-16)

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   15-P-117                                        Appeals Court   JOSEPH L. BURKE  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1]     No. 15-P-117.   Suffolk.     March 16, 2016. – September 12, 2016.   Present:  Cohen, Katzmann, & Blake, JJ.     Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide.  License.  Registrar of Motor Vehicles, Revocation of license to operate.  Administrative Law, Agency’s interpretation of statute.  Statute, Construction, Retroactive application.       Civil action commenced in the Superior Court Department on December 9, 2013.   The case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by him.     Brian K. Wells for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants.     KATZMANN, J.  In this appeal, we are again asked to consider whether a lifetime suspension is appropriate for a driver who, after having committed an operating under the influence (OUI) offense, causes a fatality in the course of a second OUI offense.  Plaintiff Joseph Burke appeals from a judgment of the Superior Court upholding a decision of the defendant Board of Appeal on Motor Vehicle Liability Policies and Bonds (Board) that affirmed the denial by the Registrar of Motor Vehicles (registrar) of Burke’s application for reinstatement of his driver’s license pursuant to G. L. c. 90, § 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well as the registrar’s permanent revocation of that license, on the basis that Burke’s second drunk driving offense resulted in a fatality.[2]  We affirm. Background.  On February 27, 2000, Burke, was arrested for OUI after a motor vehicle accident in Rehoboth.  On May 1, 2000, Burke admitted to sufficient facts for a finding of guilty of OUI in connection with the February incident but received the benefit of a continuance without a finding of guilty (CWOF) for one year until May 1, 2001, during which time he was placed on probation.  The terms of his probation included a 180-day loss of license and an assignment to an alcohol education program. On August 6, 2000, while still on probation with his license suspended as a result of the incident the previous February, Burke drove a […]

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Posted by Massachusetts Legal Resources - September 12, 2016 at 3:34 pm

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311 West Broadway LLC v. Zoning Board of Appeal of Boston, et al. (Lawyers Weekly No. 11-106-16)

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   15-P-1227                                       Appeals Court     311 WEST BROADWAY LLC  vs. ZONING BOARD OF APPEAL OF BOSTON & others.[1]       No. 15-P-1227.   Suffolk.     May 13, 2016. – August 23, 2016.   Present:  Katzmann, Carhart, & Sullivan, JJ.     Zoning, Variance, Appeal, Jurisdiction.  Jurisdiction, Superior Court, Zoning.  Superior Court, Jurisdiction.       Civil action commenced in the Superior Court Department on June 13, 2013.   A motion to dismiss was heard by Brian A. Davis, J., and a motion to file an amended complaint was also heard by him.   Edward J. Lonergan for 311 West Broadway LLC. Kate Moran Carter for Bromfield Development LLC. Adam Cederbaum for zoning board of appeal of Boston.     KATZMANN, J.  The plaintiff, 311 West Broadway, LLC (311 West Broadway), appeals from a judgment of the Superior Court dismissing its pending appeal pursuant to the Boston zoning enabling act, St. 1956, c. 665, § 11, as amended through St. 1993, c. 461, § 5 (zoning act), from a decision of the defendant zoning board of appeal of Boston (board) in favor of the defendant Bromfield Development, LLC (Bromfield), in the wake of a new decision issued by the board after an assented-to, judicially-ordered remand.  The Superior Court had gained jurisdiction when an appeal was filed from the initial decision of the board, the parties agreed after the filing of that appeal to a judicial remand, the order of remand created no scheduling deadlines for the parties, and the parties provided status reports to a judge regarding the proceedings before the board and the further Superior Court litigation that they contemplated following the board’s new decision.  311 West Broadway did not file an appeal from the new decision of the board, and the question is whether the court was deprived of jurisdiction because a new appeal was required.  We conclude that, in the circumstances here, a new appeal was not required and the court was not divested of jurisdiction.  We reverse. Background.[2]  311 West Broadway owns property at 311-313 West Broadway in the South Boston section of Boston that abuts property owned by Bromfield at 315-319 West Broadway.  Starting in 2012, Bromfield sought approval to change the occupancy of its property from a fitness center and private club to a fitness center, offices, and residential units, and to build a new four-story vertical addition over its […]

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Posted by Massachusetts Legal Resources - August 23, 2016 at 7:44 pm

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Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (and two companion cases) (Lawyers Weekly No. 10-130-15)

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-11818   ALFREDO TIRADO  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS (and two consolidated cases[1]). Norfolk.  Worcester.  Suffolk.     May 5, 2015. – July 28, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Motor Vehicle, License to operate.  License.  Registrar of Motor Vehicles, Revocation of license to operate.  Carrier, License.  Practice, Criminal, Conviction, Admission to sufficient facts to warrant finding, Continuance without a finding.       Civil action commenced in the Superior Court Department on January 3, 2013.   The case was heard by Kenneth J. Fishman, J., on a motion for judgment on the pleadings.   Civil action commenced in the Superior Court Department on February 28, 2013.   The case was heard by Robert B. Gordon, J., on a motion for judgment on the pleadings.   Civil action commenced in the Superior Court Department on March 28, 2013.   The case was heard by Judith Fabricant, J., on a motion for judgment on the pleadings.   After consolidation of the cases in the Appeals Court, the Supreme Judicial Court granted an application for direct appellate review.   David R. Marks, Assistant Attorney General, for the defendants. Dana Alan Curhan for Scott Channing. Ryan E. Alekman, for Alfredo Tirado, was present but did not argue. Cornelius J. Madera, III, for John J. Kelly, was present but did not argue. William A. Quade, for United States Department of Transportation Federal Motor Carrier Safety Administration, amicus curiae, submitted a brief.     SPINA, J.  In these consolidated appeals, we are asked to determine if a defendant’s admission to sufficient facts to warrant a finding of guilty and a judge’s continuance of the case without a finding (CWOF) constitute a “conviction” as that term is defined in G. L. c. 90F, § 1,[2] governing the licensure of commercial drivers.  Judges in the Superior Court determined that it did not and vacated the decisions of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) upholding the suspension of the commercial drivers’ licenses (CDLs) at issue by the registrar of motor vehicles (registrar).  The board and the registrar appealed.  The Appeals Court consolidated the three appeals, and we granted the parties’ joint application for direct appellate review.  As we explain, we […]

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Posted by Massachusetts Legal Resources - July 28, 2015 at 6:11 pm

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Ouellette v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-125-14)

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-291                                        Appeals Court   JACQUELINE OUELLETTE  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1] No. 13-P-291. Suffolk.     December 9, 2013. – September 30, 2014.   Present:  Grainger, Brown, & Carhart, JJ. Public Employment, Accidental disability retirement, Retirement, Retirement benefits.  Public Employee Retirement Administration Commission.  Contributory Retirement Appeal Board.  Retirement.  Administrative Law, Agency’s interpretation of statute.  Words, “Member in service.”       Civil action commenced in the Superior Court Department on December 3, 2009.   The case was heard by Bonnie H. MacLeod, J., on a motion for judgment on the pleadings.     John M. Becker for the plaintiff. Kirk G. Hanson, Assistant Attorney General, for Contributory Retirement Appeal Board & another.      BROWN, J.  At issue in this appeal is whether the Contributory Retirement Appeal Board (CRAB) properly concluded that the accidental disability retirement allowance of Jacqueline Ouellette was subject to the statutory cap set forth in G. L. c. 32, § 7(2)(a)(ii). Background.  Ouellette worked for the city of Haverhill as a police officer from January, 1981, until December 5, 2003.  On March 3, 2004, the Public Employee Retirement Administration Commission (PERAC) approved Ouellette’s application, submitted through the Haverhill retirement board (board), for a voluntary superannuation (regular) retirement, effective December 31, 2003.  See G. L. c. 32, § 5. On August 14, 2005, the plaintiff applied for an accidental disability retirement allowance, claiming posttraumatic stress disorder stemming from two incidents that occurred in November, 2003.  After two medical panel reviews, PERAC unanimously certified that Ouellette satisfied all the statutory criteria for accidental disability retirement.[2]  See G. L. c. 32, § 7(1). On February 27, 2008, upon granting Ouellette’s request  for accidental disability retirement, effective February 14, 2005, PERAC imposed, pursuant to G. L. c. 32, § 7(2)(a)(ii), a seventy-five percent cap on her disability retirement allowance.  General Laws c. 32, § 7(2)(a)(ii), as appearing in St. 1987,    c. 697, § 33, provides in pertinent part that “for any employee who was not a member in service on or before January [1, 1988,] or who has not been continuously a member in service since that date, the total yearly amount . . . as determined in accordance with the provisions of clause (i) shall not exceed seventy-five percent of the annual rate of regular compensation as determined in this paragraph . . . . “  PERAC reasoned that the plaintiff was not a member in service continuously until […]

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Posted by Massachusetts Legal Resources - September 30, 2014 at 10:13 pm

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Hull Retirement Board v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-116-14)

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-1825                                       Appeals Court   HULL RETIREMENT BOARD  vs.  CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1] No. 13-P-1825.     September 16, 2014.     Contributory Retirement Appeal Board.  Municipal Corporations, Retirement board, Police.  Police, Retirement.  Public Employment, Paid leave, Accidental disability retirement, Retirement.  Retirement.     The Hull retirement board (board) appeals from a Superior Court judgment affirming a decision of the contributory retirement appeal board (CRAB) upholding a division of administrative law appeals (DALA) magistrate’s determination requiring the board to amend the effective retirement date of defendant David Leary.  We affirm.   1.  Background.  Leary was a police officer in the town of Hull (town).  On November 19, 2001, he sustained an injury on the job and was placed on accidental injury leave with full pay.  See G. L. c. 41, § 111F, as amended through St. 1990, c. 313.  Leary remained on § 111F leave until April 15, 2003, when the chief of police (chief) removed him from paid injury leave status and placed him on an unpaid leave of absence.  Leary believed the chief’s action did not comply with the law, and sought to have the town reinstate his § 111F benefits.  In the meantime, in July, 2003, Leary applied for accidental disability retirement under G. L. c. 32, § 7.  The board approved Leary’s application on January 30, 2004.  His disability retirement allowance became effective as of April 15, 2003, the last day that Leary received compensation in the form of his § 111F benefits.   Notwithstanding his application for retirement and the subsequent approval of that application, Leary continued to seek payment of § 111F benefits from the town, specifically for the period between April 15, 2003, and January 30, 2004.  An agreement for payment initially was reached but unraveled when, on the advice of defendant public employee retirement administration commission (PERAC), the board refused to change Leary’s effective retirement date from April 15, 2003, to January 30, 2004.  In 2006, Leary filed suit, seeking enforcement of his agreement with the town.   In March, 2008, Leary and the town entered into a settlement agreement, later reduced to a judgment, whereby the town would pay Leary $ 44,424.47 in additional § 111F benefits to cover the period from April 15, 2003, to January 30, 2004.  Pursuant to the agreement, the funds were placed in an escrow account, with release to Leary “pending the outcome of Leary’s efforts to get the […]

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Posted by Massachusetts Legal Resources - September 16, 2014 at 6:22 pm

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Scheffler v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-113-13)

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‑1616                                       Appeals Court   THOMAS SCHEFFLER  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS.     No. 12‑P‑1616.      September 16, 2013.   Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Registrar of Motor Vehicles.  Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence.       The plaintiff, Thomas Scheffler, appeals from a decision by a judge of the Superior Court allowing the motion of the defendant, the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board), for judgment on the pleadings.  The board’s decision affirmed the Registrar of Motor Vehicles’ (registrar) determination that the plaintiff’s assignment, in Connecticut, to a pretrial alcohol education program following his arrest in that State on what amounts to operating under the influence of intoxicating liquor (OUI) was a “like offense” within the meaning of G. L. c. 90, § 24, and that the Connecticut offense should be added to the plaintiff’s driving history.[1]     1.  Background.  On April 24, 2009, the plaintiff was arrested and charged with operating under the influence of liquor, in violation of Conn. Gen. Stat. § 14-227a (2013).[2]  Following the plaintiff’s successful completion of a pretrial alcohol education diversion program, see Conn. Gen. Stat. § 54-56g (2013), the Connecticut charge was dismissed.  However, Connecticut suspended the plaintiff’s license for six months as a result of his refusal to comply with a breathalyzer test.   On June 18, 2009, the plaintiff received notification from the registrar that his license would be suspended, beginning July 18, 2009, for one year based on the Connecticut OUI charge.  Later, the registrar learned that the plaintiff’s license was suspended in Connecticut for the breathalyzer refusal and not OUI.  However, the plaintiff’s Massachusetts driving record reflects the Connecticut incident for both the breathalyzer refusal and the OUI dismissal, as well as his successful completion of the alcohol education program.  The plaintiff appealed to the board, and on December 28, 2010, the board upheld the registrar’s decision to add the Connecticut incident to the plaintiff’s driving history.   A Superior Court judge affirmed the board’s decision, concluding that the registrar’s actions were proper.   2.  Discussion.  Our review does not “extend to examining the weight of the evidence to determine whether the Superior Court’s decision — either upon its own findings of […]

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Posted by Massachusetts Legal Resources - September 17, 2013 at 5:24 pm

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