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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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]

Landry v. Massachusetts Port Authority, et al. (Lawyers Weekly No. 11-042-16)

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-253 Appeals Court DONALD R. LANDRY vs. MASSACHUSETTS PORT AUTHORITY & another.[1] No. 15-P-253. Hampden. November 12, 2015. – April 12, 2016. Present: Cohen, Grainger, & Wolohojian, JJ. Massachusetts Port Authority. Municipal Corporations, Liability for tort. Practice, Civil, Summary judgment, Interlocutory appeal, Execution. Negligence, Use of way. Way, Public: defect. Notice, Action alleging injury caused by defect in public way. Civil action commenced in the Superior Court Department on June 25, 2012. The case was heard by C. Jeffrey Kinder, J., on motions for summary judgment. Tara E. Lynch for the defendants. Enrico M. De Maio for the plaintiff. COHEN, J. The plaintiff, Donald R. Landry, brought this negligence action pursuant to the Massachusetts Tort Claims Act, G. L. c. 258, seeking damages from the defendants, the Massachusetts Port Authority (Massport) and the city of Worcester (city), for injuries he sustained at the Worcester Regional Airport (airport) when a motorized sliding gate pinned him to a metal bar protruding from the gate post. The defendants jointly moved for summary judgment, claiming that Landry was injured by reason of a defect in a way and, hence, his exclusive remedy was an action under G. L. c. 84, §§ 15, 18, and 19.[2] See Botello v. Massachusetts Port Authy., 47 Mass. App. Ct. 788, 789 & n.3 (1999). Because it was undisputed that Landry had not given notice within thirty days of his injury, as required by c. 84, § 18,[3] the defendants argued that they were entitled to judgment as matter of law. The city also argued that it was entitled to summary judgment for the independent reason that it was not responsible for “the way at issue.” A judge of the Superior Court denied summary judgment, concluding that the defendants had failed to establish that the site of the accident was a “way,”[4] and that there remained a genuine issue of material fact as to the city’s responsibility for the maintenance and operation of the gate. The defendants then jointly filed a notice of appeal from this interlocutory order, claiming entitlement to immediate review under the doctrine of present execution. Although we conclude that the appeal is not properly before us and must be dismissed, we exercise our discretion to consider the defendants’ substantive arguments, which we find to be without merit. Background. Viewing the evidence in the summary […]

Beverly Port Marina, Inc. v. Commissioner of the Department of Environmental Protection, et al. (Lawyers Weekly No. 11-145-13)

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‑2010 Appeals Court BEVERLY PORT MARINA, INC. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 12‑P‑2010. Essex. September 12, 2013. ‑ December 11, 2013. Present: Green, Grainger, & Fecteau, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of regulation, Regulations. Regulation. Real Property, Littoral property, License. License. Civil actions commenced in the Superior Court Department on July 22 and November 7, 2011. After consolidation, the case was heard by David A. Lowy, J., on motions for judgment on the pleadings. Adam J. Brodsky for the plaintiff. Louis M. Dundin, Assistant Attorney General, for Department of Environmental Protection. Richard A. Nylen, Jr., for city of Beverly. GREEN, J. Under the regulations governing issuance of licenses under G. L. c. 91 for projects on filled tidelands, a license may not issue for a project proposed in a “designated port area” (DPA) if a proposal for a “competing project” submitted during the public comment period on the license application would promote water-dependent industrial uses of the project site to a greater extent than the project proposed in the license application. See 310 Code Mass. Regs. § 9.36(5)(a) (1994). During review by the Department of Environmental Protection (DEP) of an application by the city of Beverly (city) for licenses authorizing, inter alia, construction and operation of a restaurant on a waterfront site, the plaintiff, Beverly Port Marina, Inc. (BPM), submitted a proposal to, inter alia, build and operate a boatyard on the site instead. A DEP hearing officer (presiding officer) concluded that BPM’s submission failed to demonstrate that its proposal was feasible, and recommended issuance of the licenses, with conditions, for the city’s proposed project. The DEP commissioner adopted the recommended decision, and BPM appealed the decision to the Superior Court, where a judge affirmed the decision on cross motions for judgment on the pleadings. We conclude that BPM’s competing proposal adequately satisfied the criteria established by the applicable regulations, and we vacate the judgment. Background. The site at the center of the controversy among the parties is a parcel owned by the city known as “Glover’s Wharf,” located along the Beverly waterfront. The site is at the westernmost end of a DPA established in 1978 under the Massachusetts Coastal Zone Management Plan. See 301 Code Mass. Regs. […]