Posts tagged "massachusetts"

Dental Service of Massachusetts, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 10-059-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12346   DENTAL SERVICE OF MASSACHUSETTS, INC.  vs. COMMISSIONER OF REVENUE.       Suffolk.     December 5, 2017. – April 13, 2018.   Present:  Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.     Taxation, Abatement, Insurance company, Excise.  Practice, Civil, Abatement.  Insurance, Health and accident, Group, Coverage.  Statute, Construction.  Words, “Covered persons.”       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court granted an application for direct appellate review.     David C. Kravitz, Assistant State Solicitor, for Commissioner of Revenue. Daniel P. Ryan (David J. Nagle also present) for the taxpayer. James Roosevelt, Jr., & Rachel M. Wertheimer, for Massachusetts Association of Health Plans, amicus curiae, submitted a brief.          BUDD, J.  The taxpayer, Dental Service of Massachusetts, Inc.,[1] is an insurer that provides dental coverage through preferred provider arrangements (PPAs).[2]  Pursuant to G. L. c. 176I, § 11, insurers operating PPAs are obligated to pay annually an excise tax equal to a specified percentage “of the gross premiums received during the preceding calendar year for coverage of covered persons residing in this [C]ommonwealth” (emphasis added).  The term “[c]overed person” is defined in the statute as “any policy holder or other person on whose behalf the organization is obligated to pay for or provide health care services.”  G. L. c. 176I, § 1. The taxpayer and the Commissioner of Revenue (commissioner) disagree regarding whether “covered persons” may sometimes refer to the employer-organizations that contract with insurers, or instead refers only to the individuals receiving health care services (in this case, dental care).[3]  That is, when an employer purchases group insurance on behalf of its employees, does the insurer owe tax on premiums paid by or on behalf of only those individuals who live in Massachusetts, as the taxpayer contends, or does the insurer owe tax on all premiums received from the Massachusetts-based employer regardless of where its individual employees reside, as the commissioner contends.  We agree with the Appellate Tax Board (board), and conclude that “covered persons” as used in G. L. c. 176I, § 11, refers solely to natural persons who, as employees, receive insurance coverage for health care services under a group insurance plan, rather than employer entities.[4] Background.  The statute governing PPAs, G. L. c. 176I, was enacted in 1988.  St. 1988, c. 23, § 65.  Chapter 176I includes an assessment provision that requires “[e]very organization . . . […]

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Posted by Massachusetts Legal Resources - April 14, 2018 at 1:21 am

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Committee for Public Counsel Services, et al. v. Attorney General of Massachusetts, et al. (Lawyers Weekly No. 10-051-18)

SUFFOLK, ss. COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY No. SJ-2017-347 COMMITTEE FOR PUBLIC COUNSEL SERVICES, HAMPDEN COUNTY LAWYERS FOR JUSTICE, INC., HERSCHELLE REAVES, and NICOLE WESTCOTT vs. ATTORNEY GENERAL of MASSACHUSETTS, DISTRICT ATTORNEY for BERKSHIRE COUNTY, DISTRICT ATTORNEY for BRISTOL COUNTY, DISTRICT ATTORNEY for the CAPE and ISLANDS, DISTRICT ATTORNEY for ESSEX COUNTY, DISTRICT ATTORNEY for HAMPDEN COUNTY, DISTRICT ATTORNEY for MIDDLESEX COUNTY, DISTRICT ATTORNEY for NORFOLK COUNTY, DISTRICT ATTORNEY for the NORTHWESTERN DISTRICT, DISTRICT ATTORNEY for PLYMOUTH COUNTY, DISTRICT ATTORNEY for SUFFOLK COUNTY, and DISTRICT ATTORNEY for WORCESTER COUNTY DECLARATORY JUDGMENT This matter came before the court, Gaziano, J., on a petition pursuant to G L. c. 211, § 3, seeking relief for defendants affected by the misconduct of state chemist Sonja Farak. As an initial matter, the respondents — the Attorney General and the offices of the Massachusetts District Attorneys — have agreed to vacate certain convictions obtained using drug certificates signed by Sonja Farak. The respondents have filed with the court, and served on the petitioners, formatted interim lists identifying the defendants and their convictions, delinquency or youthful offender adjudications, or other adverse dispositions that the respondents agree should be vacated and dismissed with prejudice. The convictions, adjudications, or other dispositions of those cases are addressed in this orcler. Final lists are to be provided by the respondents and filed with this court no later than April 30, 2018. Those lists may result in additional dismissals. Accordingly, it is ORDERED that the convictions of drug offenses under G. L. 94C that have been so identified by the respondents in the interim lists filed with this court on or before March 30,2018, shall be and are hereby VACATED AND DISMISSED WITH PREJUDICE, and any outstanding warrants associated with those convictions are recalled. The clerk shall provide copies of the formatted lists to the Judicial Information Services Department of the trial comi fmihwith in order to effectuate the dismissals. Entered: April 5, 2018 ~ Comi (Gaz.·ia./n.o, J.), fiJ1{y- , ‘\ (‘ – . f;} – /8 r. ;/ . I !f~{A /1 2~U lriaura S. Doy~~re~J I /~ ‘4 Full-text Opinions

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Posted by Massachusetts Legal Resources - April 6, 2018 at 12:09 am

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Vinnie v. Superintendent, Massachusetts Correctional Facility, Norfolk (Lawyers Weekly No. 10-044-18)

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-12299   RAYMOND P. VINNIE  vs.  SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTE, NORFOLK.     March 21, 2018.     Supreme Judicial Court, Superintendence of inferior courts.     In 1993, Raymond P. Vinnie was convicted of murder in the first degree.  After plenary review, we affirmed the conviction and the denial of his motion for a new trial.  Commonwealth v. Vinnie, 428 Mass. 161, cert. denied, 525 U.S. 1007 (1998), overruled on another ground by Commonwealth v. Paulding, 438 Mass. 1 (2002).  In 2016, Vinnie filed a petition for a writ of habeas corpus pursuant to G. L. c. 248, § 1, in the county court, arguing that he was unlawfully imprisoned pursuant to a void mittimus.  A single justice of this court transferred the petition to the Superior Court.  A judge in that court denied relief.  Vinnie then filed a motion in the county court, seeking to reinstate his petition on the ground that the Superior Court judge made various procedural and substantive errors.  The same single justice denied the motion without a hearing.  Vinnie appeals from that ruling.   The single justice properly denied Vinnie’s motion to reinstate the petition.  The Superior Court judge’s decision denying habeas relief was reviewable in the ordinary appellate process.  After habeas relief was denied in the Superior Court, Vinnie “could have obtained review by this court only if he was granted leave by a single justice pursuant to the gatekeeper provision of G. L. c. 278, § 33E.  He cannot circumvent the gatekeeper provision by filing his petition in the county court in the first instance.”  Tyree v. Commonwealth, 449 Mass. 1034, 1034 (2007), cert. denied, 554 U.S. 926 (2008).  There was no basis to “reinstate” the petition in the county court.   Judgment affirmed.     Raymond P. Vinnie, pro se. Eric A. Haskell, Assistant Attorney General, for the respondent. Full-text Opinions

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Posted by Massachusetts Legal Resources - March 21, 2018 at 3:39 pm

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Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-017-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR PRELIMINARY INJUNCTION This lawsuit arises from the imminent expiration of a 15-year license agreement under which Clear Channel Outdoor, Inc., has been operating billboards on property owned by the Massachusetts Bay Transportation Authority. The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards after the current license expires. The MBTA received bids from Outfront Media LLC, which agreed to enter into a six-month license, and Clear Channel, which refused to accept a term that short. The MBTA disqualified Clear Channel. It then awarded a six-month license to Outfront Media. The MBTA brought this suit seeking declarations that its request for responses was lawful, Clear Channel is not entitled to enforce its right of first refusal, and Clear Channel is contractually obligated to transfer the disputed billboards as well as whatever permits are needed to operate the billboards to the MBTA. Clear Channel has asserted counterclaims alleging that the MBTA breached the existing contract by offering a new license on terms that are not commercially reasonable and by not allowing Clear Channel to exercise its contractual right of first refusal, and that Clear Channel therefore has no contractual obligation to transfer the billboard structures to the MBTA at the end of the current license term. The MBTA now seeks a preliminary injunction that would bar Clear Channel from interfering with any use of the billboards on MBTA property, or terminating or otherwise disposing of its existing permits for billboards on MBTA property. Clear Channel seeks a preliminary injunction that would bar the MBTA from proceeding with the new license it has issued to Outfront Media or otherwise interfering with Clear Channel’s ownership of billboard structures and associated permits. The Court will ALLOW the MBTA’s motion and DENY Clear Channel’s motion. – 2 – 1. Legal Background. 1.1. The Public Interest in MBTA Advertising Revenues. The MBTA is a governmental entity, established by the Legislature as a “political subdivision of the commonwealth” that consists of 65 cities and towns within the MBTA’s service area. G.L. c. 161A, § 2 (political subdivision) & § 1 (defining the cities and towns within the “area constituting the authority”). The MBTA is now governed by the board of directors of the Massachusetts Department of Transportation. Id. § 3. “The MBTA’s essential function is to provide mass transportation services” in the greater Boston metropolitan area. See Massachusetts Bay Transp. Auth. v. City of Somerville, 451 Mass. 80, 86 (2008). The MBTA obtains most of its operating funds from taxes […]

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Posted by Massachusetts Legal Resources - March 2, 2018 at 2:57 am

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State Road Auto Sales, Inc. v. Massachusetts Division of Banks (Lawyers Weekly No. 09-013-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV04041-BLS2 ____________________ STATE ROAD AUTO SALES, INC. v. MASSACHUSETTS DIVISION OF BANKS ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION State Road Auto Sales, Inc., seeks a preliminary injunction that would bar the Massachusetts Division of Banks from completing an ongoing adjudicatory hearing. The Division brought administrative charges asserting that State Road violated G.L. c. 255B, which governs retail installment sales of motor vehicles, by acting as a “motor vehicle sales finance company” without a license and by entering into illegal motor vehicle installment sales with individual consumers. The Legislature authorized the Commissioner of Banks to implement and enforce c. 255B. State Road is entitled to contest those charges through an evidentiary proceeding before a Division hearing officer. State Road argues that the Division’s administrative charges and adjudicatory proceeding are barred by State Road’s recent settlement of a class action brought on behalf of consumers who entered into motor vehicle leases with State Road that were in effect after October 21, 2013, and were signed before January 1, 2016. More specifically, State Road argues that the order approving the class action settlement deprived the Division of subject matter jurisdiction to decide the pending administrative charges and, in the alternative, that the prior settlement has collateral estoppel or issue preclusive effect that would bar the Division from exercising its jurisdiction over State Road. The Court concludes that State Road is not entitled to preliminary injunctive relief because it has failed to exhaust its administrative remedies and therefore is not likely to succeed on the merits of its claims. Cf. Fordyce v. Town of Hanover, 457 Mass. 248, 266 (2010) (vacating preliminary injunction because plaintiffs were “unlikely to succeed on the merits”). The Division of Banks has already began an enforcement action against State Road, those adjudicatory proceedings are still pending, and the determination of – 2 – whether the Division can prosecute and decide the administrative charges turns on disputed issues of fact and not pure issues of law. Under these circumstances, State Road must exhaust its administrative remedies at the Division before seeking to challenge the Division’s exercise of jurisdiction over State Road in court. See Wilczewski v. Commissioner of the Dept. of Envtl. Quality Eng’g, 404 Mass. 787, 793-794 (1989) (affirming dismissal of challenge to agency’s jurisdiction in pending matter); Gill v. Board of Reg. of Psychologists, 399 Mass. 724, 728 (1987) (ordering dismissal of action); East Chop Tennis Club v. Massachusetts Comm’n Against Discrim., 364 Mass. 444, 451 (1973) (vacating decree entered by Superior Court and ordering dismissal of action); Reliance Ins. Co. v. Commissioner of Ins., 31 Mass. App. Ct. 581, 585 (1991) (affirming dismissal of action). […]

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Posted by Massachusetts Legal Resources - March 1, 2018 at 9:05 am

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Anesthesia Associates of Massachusetts, PC v. Plexus Anesthesia Services of Massachusetts, PC (Lawyers Weekly No. 09-016-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00375-BLS2 ____________________ ANAESTHESIA ASSOCIATES OF MASSACHUSETTS, PC v. PLEXUS ANESTHESIA SERVICES OF MASSACHUSETTS, PC ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Anaesthesia Associates of Massachusetts, PC (“AAM”) claims that defendant Plexus Anesthesia Services of Massachusetts, PC (“PASM”) owes it at least $ 2.0 million for past anesthesia services. AAM asks the Court to enter a preliminary injunction that would PASM from transferring or encumbering any assets, or from making any payments of any funds except for paying wages to its employees, paying its attorneys, or paying rent, utilities, and taxes. AAM asserts that it will suffer irreparable harm without the requested injunction because PASM has been making and would continue to make preferential payments to entities other than AAM, thereby preventing from receiving money it is still owed for past services rendered. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs had made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). “Trial judges have broad discretion to grant or deny injunctive relief.” Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014). The Court will DENY this motion for a preliminary injunction for two reasons: AAM has not met its burden of proving irreparable harm, and the broad relief it seeks is not permitted without a judgment under Massachusetts law.1 1 At the close of the oral argument, the Court stated that it was also persuaded that granting the preliminary injunction sought by AAM would be against the public interest because it would materially interfere with PASM’s ability to provide anesthesiology services to its hospital clients. However, the Massachusetts Appeals Court has held that it is reversible error for a trial court to consider harm to the public interest as a factor in granting or denying a preliminary injunction in a case like this – 2 – 1. Failure to Prove Irreparable Harm. As the moving party, AAM has the “burden of showing it would suffer an irreparable harm absent an injunction.” GTE Products Corp. v. Stewart, 414 Mass. 721, 726 (1993). AAM asserts that it will suffer irreparable harm without the proposed preliminary injunction because PASM has been making preferential payments to another entity. The sole evidence supporting that assertion is a statement made “upon information and belief” by AAM’s chief operating officer. But assertions in an affidavit or verified complaint made on “information and belief” that are not supported by any other evidence […]

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Posted by Massachusetts Legal Resources - February 28, 2018 at 10:20 pm

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Carey v. Gatehouse Media Massachusetts I, Inc. (Lawyers Weekly No. 11-024-18)

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   17-P-82                                         Appeals Court   SUZANNE E. CAREY, personal representative,[1]  vs.  GATEHOUSE MEDIA MASSACHUSETTS I, INC.     No. 17-P-82.   Norfolk.     September 14, 2017. – February 27, 2018.   Present:  Green, Sullivan, & Sacks, JJ.     Independent Contractor Act.  Newspaper.  Carrier.  Federal Preemption.  Statute, Federal preemption.  Waiver.  Practice, Civil, Summary judgment, Waiver.       Civil action commenced in the Superior Court Department on September 22, 2011.   Motions for summary judgment were heard by Angel Kelley Brown, J.; the entry of separate and final judgment was ordered by her; and a motion for postjudgment relief was heard by her.     Mark W. Batten for the defendant. James W. Simpson, Jr., for the plaintiff. Peter J. Caruso & Robert J. Ambrogi, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.     SACKS, J.  Defendant GateHouse Media Massachusetts I, Inc. (GateHouse), publisher of the Patriot Ledger newspaper, appeals from a separate and final judgment under Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), declaring that David King, who had delivered the Patriot Ledger by automobile to some of its subscribers, was, under G. L. c. 149, § 148B (§ 148B), GateHouse’s employee rather than an independent contractor.  Gatehouse also appeals from the denial of its motion for relief from the rule 54(b) judgment, which asserted that the relevant portion of § 148B is preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), codified at 49 U.S.C. § 14501(c)(1).  We affirm.[2] Background.  We recount certain undisputed material facts from the summary judgment record, reserving for later discussion the details of GateHouse’s contract with King.  GateHouse, a subsidiary of New York-based GateHouse Media, “publishes and distributes” a variety of daily and weekly newspapers within Massachusetts.  Gatehouse describes itself as a publisher and distributor of publications in its “Wholesale Agreements” with newspaper delivery drivers such as King.  GateHouse employs a sales and advertising department, which works to increase circulation and advertising revenue.  Among GateHouse’s newspapers is the Patriot Ledger, published on all five weekday afternoons and on Saturday mornings. GateHouse distributes the Patriot Ledger out of a distribution center in Braintree, employing supervisors, district managers, distribution managers, and others to manage that process.  GateHouse has three main distribution methods.  First, to distribute the newspaper to residential and business subscribers, GateHouse enters into agreements with individual carriers,[3] whom it classifies as independent contractors.  The carriers are required […]

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Posted by Massachusetts Legal Resources - February 27, 2018 at 5:43 pm

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Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-006-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER DENYING CLEAR CHANNEL’S MOTION FOR A TEMPORARY RESTRAINING ORDER In 2003 the Massachusetts Bay Transportation Authority granted Clear Channel Outdoor, Inc., a 15-year license to operate billboards on MBTA property. That license will expire in early March 2018.1 The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards beginning after the Clear Channel license expires. The MBTA received bids from Outfront Media LLC, which agreed to enter into a six-month license, and Clear Channel, which refused to accept a term that short. The MBTA disqualified Clear Channel. It intends to award a six-month license to Outfront Media. The MBTA brought this action. It seeks declarations that its recent request for responses is lawful, Clear Channel is not entitled to enforce a right of first refusal contained in its 2003 license, and neither of these disputes is subject to the arbitration clause in the 2003 license. It also seeks certain preliminary injunctive relief to enforce terms of the parties’ existing license. The parties agreed upon a schedule for the filing of cross-motions for a preliminary injunction, with a hearing on those motions now scheduled for February 22. Clear Channel has filed an emergency motion seeking a temporary restraining order that would bar the MBTA from taking any steps to license its billboards to or contract with Outfront Media, or from “interfering in any way with Clear Channel’s rights in the billboards themselves or the permits necessary to operate those billboards.” The Court will DENY this motion for a TRO because Clear Channel has not met its burden of showing that it is entitled to the requested relief. “A preliminary 1 The parties have submitted two different versions of their license. One states that it terminates on March 3, the other says March 5. – 2 – injunction [or a TRO] is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs [have] made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). Clear Channel has not yet made such a showing. 1. Clear Channel Has Asserted No Claims. Clear Channel’s request for injunctive relief is premature because Clear Channel has not asserted any counterclaims or any other kind of affirmative claim against the MBTA. To obtain preliminary injunctive relief, “the applicant must show a likelihood of success on the merits […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 1:04 pm

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Mui v. Massachusetts Port Authority (Lawyers Weekly No. 10-016-18)

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-12296   TZE-KIT MUI  vs.  MASSACHUSETTS PORT AUTHORITY.       Suffolk.     November 6, 2017. – January 29, 2018.   Present:  Gants, C.J., Gaziano, Budd, & Cypher, JJ.     Massachusetts Wage Act.  Massachusetts Port Authority.  Public Employment, Sick leave benefits.       Civil action commenced in the Superior Court Department on October 17, 2014.   The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Laurie F. Rubin for the defendant. Kevin C. Merritt for the plaintiff. David J. Fried, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.     BUDD, J.  The plaintiff, Tze-Kit Mui, sued his former employer, Massachusetts Port Authority (Massport or agency), alleging that Massport failed to timely compensate him for his accrued, unused sick time under the Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act or act).  A Superior Court judge allowed Mui’s motion for judgment on the pleadings.  Massport appealed, and we transferred the case here on our own initiative.  Because we conclude that payment for accrued, unused sick time (sick pay) does not count as “wages” under the act, we vacate the judgment and remand the matter to the Superior Court.[1] Background.  In 2013, Massport initiated disciplinary proceedings against Mui, a longtime employee.[2]  One week later, he applied for retirement.  Massport’s employees’ retirement system set Mui’s retirement date retroactively, despite the fact that the disciplinary proceedings had not been resolved.  Several weeks later, Massport discharged Mui for cause.[3]  The termination was subsequently overturned pursuant to a grievance procedure.[4] Under Massport’s sick pay policy, eligible employees receive payment for a percentage of the value of their accrued, unused sick time upon separation from the agency.[5]  Employees who are discharged for cause are not eligible for sick pay. Prior to the completion of the grievance process, Massport’s position was that because the agency initiated disciplinary proceedings against Mui by suspending him prior to his application for retirement, and then terminated him (an action that was later reversed), he was not entitled to any sick pay.  Once the arbitrator ruled that Massport could not terminate Mui because he had already retired, the agency paid the value of Mui’s accrued sick time pursuant to its policy.  Because of the grievance […]

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Posted by Massachusetts Legal Resources - January 29, 2018 at 4:02 pm

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Jones, et al. v. Massachusetts Department of Children & Families (Lawyers Weekly No. 09-001-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                                                                    SUPERIOR COURT 1784CV00586                                                 THERESE JONES and MAXWELL JONES                          BY HIS MOTHER AND NEXT FRIEND, THERESE JONES                                                                                v.                                              MASSACHUSETTS DEPARTMENT OF                                                        CHILDREN & FAMILIES                                           MEMORANDUM OF DECISION AND ORDER                                         ON DEFENDANT’S MOTION TO DISMISS       This case arises out of the decision of defendant Massachusetts Department of Children and Families (“DCF”) to take emergency custody of minor plaintiff Maxwell Jones (“Maxwell”).  This decision followed a statutorily mandated investigation in which DCF learned that plaintiff Therese Jones (“Ms. Jones”) had left her three-year old son sleeping alone in a Marriott hotel room while she drank with friends at the hotel bar.  Plaintiffs’ Complaint concedes that Ms. Jones left the infant Maxwell alone in her hotel room when she “ran into a few work friends and had a few drinks,” but insists that she “checked in on her son every ten to fifteen minutes.”   Plaintiffs have brought negligence claims against DCF, asserted under the Massachusetts Tort Claims Act, G.L. c. 258 (the “MTCA”).  Plaintiffs contend that Ms. Jones “ha[d] never been arrested, had no criminal record, and had no previous contact or investigation with DCF,” facts that DCF purportedly “failed to investigate.”  In these circumstances, plaintiffs charge, the decision to take Maxwell into emergency custody and remove him from the care of his mother was “wrongful.” DCF has now moved to dismiss the Complaint, both for failure to state a claim pursuant to Mass. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1).  DCF maintains that the Complaint sets forth no facts plausibly suggesting negligence on the part of DCF.  DCF alternatively argues that even otherwise viable negligence claims of the type asserted by the plaintiffs in this case must be dismissed, because they fall within the MTCA’s “discretionary function” exemption, G.L. c. 258, _ 10(b). DISCUSSION At the outset, the Court expresses doubt that the plaintiffs have stated viable claims for negligence, as the facts pleaded in the Complaint do no more than attach conclusory labels – viz.,  a “failure to investigate” and a “wrongful” decision to assume custody of the minor child – to the conduct of the defendant.  Beyond such labels, the Complaint sets forth no facts permitting a plausible inference that DCF’s investigative actions and decisions were improper in any respect.  Plaintiffs stress that Ms. Jones “checked in on her son every ten to fifteen minutes,” but do not dispute that Ms. Jones left the child unattended in a strange hotel room for substantial periods of time while she consumed alcohol in a bar.  DCF […]

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Posted by Massachusetts Legal Resources - January 24, 2018 at 12:05 am

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