Silva v. Todisco Services, Inc. (Lawyers Weekly No. 12-006-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS Todisco Towing towed Christopher Silva’s motor vehicle without Silva’s consent from a private parking lot in Salem, Massachusetts, to East Boston. The Todisco invoice says this was a “trespass” tow, which presumably means that the vehicle was towed at the request of the property owner or manager because it was parked there illegally in violation of a posted notice. Cf. G.L. c. 266, § 120D. Silva says Todisco charged him $ 169.00, including a $ 90.00 towing charge; a $ 42.00 mileage charge; a $ 35.00 storage charge; and a $ 2.00 fuel surcharge. Silva alleges that the mileage charge and fuel surcharge were illegal because Todisco’s invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a regulation promulgated by the Department of Public Utilities (“DPU”) that establishes maximum rates for towing vehicles. Silva asserts claims for negligent misrepresentation, intentional fraud, unjust enrichment, violating G.L. c. 93A, and declaratory judgment. He also seeks to represent a class consisting of all people whose motor vehicles were towed by Todisco and were charged a mileage fee or fuel surcharge when Todisco did not record the required information on the tow slip. Silva seeks monetary compensation for damages, punitive damages under c. 93A, equitable relief, and declaratory relief on behalf of himself and the putative class members. Todisco moves to dismiss this action on the grounds that Silva lacks standing, the DPU has primary jurisdiction, the statute authorizing a fine for violating the tow charge regulation bars any other relief, the cited regulation did not require Todisco to disclose any information, the claims for misrepresentation and fraud cannot be decided on a class-wide basis, and the claims for misrepresentation and fraud and under G.L. c. 93A are all preempted by federal law. The Court concludes that none of these arguments justifies dismissal. It will therefore DENY the motion to dismiss. – 2 – 1. Standing. Todisco asserts that Silva lacks standing to bring this action because the allegations in the complaint establish that Todisco’s alleged wrongdoing did not cause Silva himself to suffer any injury. This argument is without merit. Todisco correctly points out that the complaint alleges that Nathan Silva went to East Boston to retrieve the towed vehicle and paid the $ 169.00 total charge demanded by Todisco. But the complaint also alleges that Nathan paid the towing charges imposed by Todisco on behalf of Christopher Silva, Nathan was acting as Christopher’s agent, Christopher is the one who actually paid […]
Padmanabhan v. Centers for Medicare & Medicaid Services (Lawyers Weekly No. 10-019-17)
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 SJC-12181 BHARANIDHARAN PADMANABHAN vs. CENTERS FOR MEDICARE & MEDICAID SERVICES. January 24, 2017. Practice, Civil, Stay of proceedings, Moot case. Moot Question. The petitioner, Bharanidharan Padmanabhan, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. In October, 2014, the petitioner commenced an action in the Superior Court, naming as defendants the respondent and certain individuals associated with Cambridge Health Alliance, the city of Cambridge, the Executive Office of Health and Human Services, and others. As best as we can discern from the record before us, his complaint alleged claims of, among other things, Medicare or Medicaid fraud, which he became aware of during the course of his employment with some of the defendants; and retaliation by his employer when he spoke up about the perceived fraud. In March, 2015, the case was removed to the United States District Court for the District of Massachusetts. A judge in that court subsequently allowed a motion to dismiss certain Federal defendants and then remanded the case to the Superior Court. The petitioner appealed from both the allowance of the motion to dismiss and the remand order to the United States Court of Appeals for the First Circuit, and that appeal remains pending. Meanwhile, in the Superior Court, shortly after the remand order, the remaining defendants filed motions to dismiss, which, it appears, the petitioner opposed. The docket further indicates that on June 7, 2016, a status conference was scheduled for July 19, 2016. On July 11, 2016, the petitioner filed an “emergency motion to stay improper proceedings in State court” in the county court, which the single justice treated as a petition pursuant to G. L. c. 211, § 3. He argued that the State court lacked jurisdiction because his appeal from the remand order remained pending in the Federal court, and he asked this court to stay further proceedings in the Superior Court. He also asked the court to order that the status conference scheduled for July 19, 2016, be canceled. While his G. L. c. 211, § 3, petition was pending, the July 19, 2016, status conference proceeded as scheduled. A docket entry dated July 20, 2016, indicates that because the petitioner’s appeal to the First Circuit remained pending, the status conference would be continued to October […]
DeVito, et al. v. Longwood Security Services, Inc., et al. (Lawyers Weekly No. 12-169-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2013-01724 BLS 1 DEAN DEVITO, JASON OLIVIERA, ALEX VELAZQUEZ, individually, and on behalf of a class vs. LONGWOOD SECURITY SERVICES, INC. and JOHN T. CONNELLY MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT and TO DECERTIFY THE CLASS On June 17, 2015, this court (Frison, J.) certified a class of plaintiffs consisting of security officers employed, currently or in the immediate past, by defendant, Longwood Security Services. The principal claim of plaintiffs and the class is that Longwood failed to pay them in full for wages earned. The claim is brought under the Wage Act, G.L. c. 149, § 148. Briefly stated, the claim is that for each eight hour shift, thirty minutes were deemed to be a meal break. Longwood did not include in the employees’ hours worked the thirty minutes per shift for the unpaid meal break. Plaintiffs claim that the thirty minutes should be compensated as wages earned because they remained on duty during the meal breaks. The issue presented by these motions is what legal standard should be applied to determine whether the thirty minute meal break is compensable working time. Both sides agree that the issue is one that no Massachusetts appellate court has addressed. Longwood contends that the test for compensation should be whether the employee’s meal break time was spent 1 predominantly for the benefit of the employer (the “predominant test”). Plaintiffs, on the other hand, contend that the test for compensation should be whether the employee was relieved of all duties (the “relief from duties test”) during the meal break. Based upon Longwood’s view that the predominant test is applicable, it moves for summary judgment and decertification of the class. BACKGROUND The parties’ Joint Statement of Material Facts (“SMF”) does not comply with Superior Court Rule 9A. Instead of precise statements of undisputed fact, the SMF consists of broad, argumentative statements of position and equally argumentative responses. Of the 82 numbered paragraphs in the SMF, the vast majority are disputed, denied or qualified by the party opposing the statement. On that basis alone, the court could conclude that because of the disputes over material facts summary judgment should be denied. In fact, this court in two previous rulings denied the parties’ attempts to obtain summary judgment. Nevertheless, the parties persuasively presented at oral argument that it would aid resolution of the case, and would be necessary in any event for the trial of the case, for the court to determine which test for compensable time should be applied to plaintiffs’ claims under Massachusetts law. Longwood provides private security services at numerous locations, such as housing developments, hospitals and colleges. Longwood employed […]
Schubert v. Committee for Public Counsel Services (Lawyers Weekly No. 10-117-16)
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-12044 GREG T. SCHUBERT vs. COMMITTEE FOR PUBLIC COUNSEL SERVICES. August 9, 2016. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, attorney Greg T. Schubert, filed papers in the county court entitled “writ of mandamus” and “writ of certiorari” that a single justice treated as a petition pursuant to G. L. c. 211, § 3, and denied. Schubert appeals, and we affirm. The matter stems from a billing dispute between Schubert and the respondent, the Committee for Public Counsel Services (CPCS). Essentially, CPCS conducted an audit of bills that Schubert submitted for payment to CPCS in connection with legal services that he provided for an indigent defendant. Pursuant to the CPCS Assigned Counsel Manual, certain administrative proceedings followed the audit, culminating in a hearing. The hearing officer ultimately rendered a decision adverse to Schubert, after which Schubert filed two separate complaints in the Hampden County Superior Court: one in the nature of certiorari (HDCV2013-00881) and one for a declaratory judgment (HDCV2014-00141). CPCS filed a motion to dismiss in each action. A judge denied the motion in the certiorari action because, at the hearing on the motion, CPCS agreed to give Schubert additional time to file a motion for judgment on the pleadings, as required by Superior Court Standing Order 1-96. Schubert had not filed such a motion because he did not believe that the standing order applied to his case. In the declaratory judgment action, the judge did allow CPCS’s motion to dismiss, on the bases that CPCS cannot be sued under G. L. c. 231A, § 2, for a declaratory judgment, and that the individual defendants named in that action were immune from suit. Schubert then filed his pleadings in this court, which a single justice denied without a hearing. After the single justice denied his request for relief, Schubert filed several motions to supplement his pleadings with additional documents, which the single justice treated as motions for reconsideration and denied. Additionally, CPCS again moved to dismiss the certiorari action in the trial court, this time for failure to prosecute. The motion was allowed. It is incumbent on Schubert, as the petitioner, to demonstrate that “review of the trial court decision[s] cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 […]
Winbrook Communications Services, Inc., et al. v. United States Liability Insurance Company (Lawyers Weekly No. 11-068-16)
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-401 Appeals Court WINBROOK COMMUNICATION SERVICES, INC., & others[1] vs. UNITED STATES LIABILITY INSURANCE COMPANY. No. 15-P-401. Suffolk. March 8, 2016. – June 14, 2016. Present: Hanlon, Sullivan, & Massing, JJ. Practice, Civil, Default, Summary judgment. Insurance, Coverage, Insurer’s obligation to defend, Construction of policy. Contract, Insurance, Performance and breach. Damages, Negligent misrepresentation. Civil action commenced in the Superior Court Department on December 20, 2011. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion for reconsideration and a second motion for summary judgment were heard by Bonnie H. MacLeod, J. Eric F. Eisenberg for the plaintiffs. John B. DiSciullo for the defendant. SULLIVAN, J. In this insurance coverage dispute we consider whether the factual record on cross motions for summary judgment is adequate to permit either party to establish entitlement to judgment as matter of law. Plaintiff Winbrook Communication Services, Inc. (Winbrook[2]), appeals from a summary judgment declaring that the defendant, United States Liability Insurance Company (USLIC), had no obligation under a directors and officers liability policy to pay a judgment obtained by Winbrook against USLIC’s insureds, DeSales Group, LLC (DSG), and William York (collectively, DSG). We conclude that it was error to grant USLIC’s motion for summary judgment because there remain genuine issues of material fact as to the applicability of the policy’s personal profit exclusion. More precisely, there is a genuine dispute of material fact whether DSG received any profit, benefit, remuneration, or advantage to which DSG was not legally entitled. Accordingly, we vacate and remand for further proceedings. Background. The procedural history of the litigation is both material and undisputed. Winbrook filed suit against DSG and York on August 24, 2010, alleging that York had made a series of negligent misrepresentations concerning DSG the entity’s financial condition that induced Winbrook to continue to work on the development of a children’s storybook series and associated promotional items. The series never went to market and Winbrook sued, seeking compensation for work performed. DSG gave notice to USLIC of Winbrook’s claims in advance of suit. USLIC replied that the policy would not cover the claims. After suit was filed, Winbrook notified USLIC of the suit and of a pending motion for entry of default. DSG reportedly told USLIC that it did not intend to […]
N-Tek Construction Services, Inc. v. Hartford Fire Insurance Company (Lawyers Weekly No. 11-028-16)
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 14-P-1483 Appeals Court N-TEK CONSTRUCTION SERVICES, INC. vs. HARTFORD FIRE INSURANCE COMPANY. No. 14-P-1483. Essex. November 5, 2015. – March 14, 2016. Present: Agnes, Sullivan, & Blake, JJ. Public Works, Payment bond. Surety. Notice. Bond, Public works, Construction contract bond. Contract, Public works, Construction contract, Bond, Surety. Civil action commenced in the Superior Court Department on November 18, 2010. After transfer within the Superior Court Department, the case was heard by Timothy Q. Feeley, J. Edward J. Quinlan for the plaintiff. John W. DiNicola, II, for the defendant. AGNES, J. In this case we address the notice provision contained in G. L. c. 149, § 29, as amended by St. 1972, c. 774, § 5 (§ 29),[1] in the context of a $ 23.29 million publicly funded project to repair a bridge in Gloucester (project). In particular, we decide whether the electronic mail message (e-mail) notice given by the claimant, N-Tek Construction Services, Inc. (N-Tek), to the general contractor, SPS New England, Inc. (SPS), satisfied § 29. N-Tek contends that the Superior Court judge, who tried this case without a jury, erred in concluding that the e-mail sent to SPS by N-Tek’s principal failed to satisfy the requirements of § 29. For the reasons that follow, we affirm. SPS, the general contractor, posted a payment bond from a surety, Hartford Fire Insurance Company (Hartford). N-Tek filed the underlying action, seeking recovery against SPS’s bond pursuant to G. L. c. 149, § 29, based on its claim that it had not been fully paid for its work furnished to a subcontractor, Seaway Coatings, Inc. (Seaway). N-Tek sought to reach and apply the payment bond funds to satisfy outstanding invoices. Hartford denied liability. After a bench trial, the judge found that N-Tek did not provide sufficient written notice of its bond claim to SPS as required by § 29, and ordered judgment to enter for Hartford. On appeal, N-Tek argues that the judge misinterpreted § 29 by imposing an added requirement that the notice “include and communicate an intent to assert a claim against the [g]eneral [c]ontractor’s” bond, based on Federal cases construing the Miller Act, 40 U.S.C. §§ 3131-3134 (2002), the Federal analogue to § 29.[2] Facts. We summarize the facts found by the judge, supplemented by undisputed parts of the record. 1. Project. On August 14, 2008, the Massachusetts Highway Department (department)[3] […]
Aurora Loan Services, LLC v. Murphy (Lawyers Weekly No. 11-186-15)
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 13-P-874 Appeals Court AURORA LOAN SERVICES, LLC vs. WALTER MURPHY.[1] No. 13-P-874. Plymouth. November 4, 2015. – December 11, 2015. Present: Berry, Meade, & Maldonado, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage, Sale. Sale, Real estate. Notice, Foreclosure of mortgage. Practice, Civil, Retroactivity of judicial holding. Retroactivity of Judicial Holding. Summary process. Complaint filed in the Southeast Division of the Housing Court Department on February 6, 2012. The case was heard by Anne Kenney Chaplin, J., and a motion for reconsideration was heard by her. Paul R. Collier, III, for the defendant. Shawn Michael Masterson for the plaintiff. MEADE, J. Walter Murphy purchased his home in 2007 with a mortgage loan from GreenPoint Mortgage Funding, Inc. (GreenPoint). In November of 2010, Murphy received a notice from Aurora Loan Services, LLC (Aurora), notifying him that he had defaulted on his loan. The letter also informed him of his right to cure the default, or to assert the nonexistence of a default or any other defense to acceleration of the loan in a foreclosure proceeding. Acting as nominee for GreenPoint, the Mortgage Electronic Registrations Systems, Inc. (MERS), assigned the mortgage to Aurora on April 13, 2011. In October, 2011, Aurora foreclosed on and purchased the property in an extrajudicial foreclosure auction. Thereafter, Aurora commenced a summary process action to evict Murphy. In Housing Court, the judge determined that Aurora, as mortgage servicer, adequately complied with the requirements under G. L. c. 244, § 35A, as mortgagee, and granted it summary process to recover possession of the premises. On appeal from the judgment, Murphy claims that, pursuant to the Supreme Judicial Court’s (SJC) recent decision in Pinti v. Emigrant Mort. Co., 472 Mass. 226 (2015), Aurora’s failure to strictly comply with the notice of foreclosure procedures contained in Murphy’s mortgage renders the subsequent foreclosure void. Asserting that a ruling in his favor would not impair existing property interests and doing so would apply Pinti‘s otherwise prospective limitation equitably and without appearing arbitrary and capricious, Murphy claims the Pinti ruling ought to extend to cases pending on appeal (when the claim was raised and preserved) at the time of the Pinti decision’s release. We agree and therefore reverse. 1. Background. Murphy purchased 245 Holmes Street in Halifax on March 13, 2007, through a mortgage loan […]
J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-120-14)
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 12-P-1760 Appeals Court J.W.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2],[3] No. 12-P-1760. Middlesex. June 2, 2014. – September 24, 2014. Present: Green, Trainor, & Grainger, JJ. Division of Administrative Law Appeals. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Judicial review. Statute, Construction. Civil action commenced in the Superior Court Department on September 15, 2011. The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings. Timothy J. Casey, Assistant Attorney General, for the defendants. Stephen M. Sheehy for the plaintiff. TRAINOR, J. The Department of Developmental Services (DDS) appeals from a Superior Court judgment that vacated the decision of the Division of Administrative Law Appeals (DALA) approving the transfer of J.W. under the provisions of G. L. c. 123B, § 3.[4] J.W. is a profoundly mentally disabled, visually impaired, and nonverbal individual. He has little or no concept of personal safety, and therefore, while he can walk independently, he cannot negotiate stairs alone. He has been a resident at the Fernald Developmental Center (FDC or Fernald) for nearly his entire life. The FDC is in the process of closing, however, and the policy decision to transfer its residents, all intellectually disabled individuals, to other appropriate care facilities is no longer subject to review by the Federal courts and would require a change in State law to prevent.[5] In a comprehensive and balanced decision, an administrative magistrate of the DALA approved the plan proposed by the DDS to transfer J.W. from his residence at Malone Park 23 at the FDC to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3. A judge of the Superior Court, on review, concluded that “[i]f one accepts the Magistrate’s legal rulings — essentially limiting inquiry to a choice between Fernald and Heffron Hall — then there is no lack of substantial evidence for the Decision. Nor (on the same assumption) does the Court find any error in ‘the logic of the analysis that the hearing officer articulated in [his] decision.’ Covell v. Department of Developmental Servs., 439 Mass. 766, 782 (2003).” Despite that, the judge concluded that the magistrate erred in his legal ruling by limiting his consideration of J.W.’s best interest to either the existing placement at Fernald or the single alternative proposed by […]
Categories: News Tags: 1112014, department, Developmental, J.W., Lawyers, Services, Weekly
G.R. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-011-14)
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 12‑P‑0951 Appeals Court G.R.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑951. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on April 28, 2011. The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Timothy J. Casey, Assistant Attorney General, for the defendants. KATZMANN, J. Through his guardian, G.R., a severely intellectually disabled individual who resides at the Fernald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3.[3] We focus our analysis on whether the Department of Developmental Services (DDS) presented the administrative magistrate at the DALA hearing with substantial evidence to support her decision that the interfacility transfer would be in G.R.’s best interest. After reviewing the administrative record and the parties’ submissions, we conclude that the magistrate’s decision was supported by substantial evidence and that there is no ground to set aside the DALA’s decision. We affirm the judgment of the Superior Court approving the DALA’s decision. See G. L. c. 30A, § 14(7). 1. Background. At the time of the administrative hearing, G.R. was sixty-six years old. He has lived at FDC since 1956. G.R. is severely intellectually disabled as well as blind and deaf. He cannot communicate verbally, although he will vocalize sometimes. In 2003, the year that its closure was announced, FDC served 280 residents. In November, 2010, FDC only served twenty-three residents. There are over eighty buildings on the FDC campus, and approximately fifty are not in use. As an older facility, FDC has extensive physical plant maintenance issues; however, funds are only available for necessary repairs, rather than renovations. There have also been significant staffing changes associated with FDC’s closure. From 2004 to the time of the administrative hearing, there were fifteen consolidations in residences or day programs. Staff members have transferred to other facilities, have retired, or have been laid off. As a Ricci class member, see Ricci v. Okin, 823 F. Supp. 984 (D. […]
Categories: News Tags: 1101114, department, Developmental, G.R., Lawyers, Services, Weekly
P.D. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-013-14)
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 12‑P‑1460 Appeals Court P.D.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1460. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on August 10, 2011. The case was heard by Kathe M. Tuttman, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Carrie Benedon, Assistant Attorney General, for the defendants. BERRY, J. This involuntary transfer case concerns a proposal by the Department of Developmental Services (DDS) to move P.D., a profoundly intellectually disabled man, from his home at the Fernald Developmental Center (FDC) to Heffron Hall B, apartment 3 (apartment 3) at the Wrentham Developmental Center (WDC). After determining that the transfer would result in improved services and quality of life for P.D. and be in his best interest, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the transfer. See G. L. c. 123B, § 3. The guardians appeal from a Superior Court judgment affirming that decision. Concluding, as we do, that the decision was supported by substantial evidence and free from error of law, we affirm. Substantial evidence. The magistrate’s ultimate conclusion that the transfer would result in improved services and quality of life for P.D. was supported by substantial evidence. See G. L. c. 30A, § 14(7); G.R. v. Department of Developmental Servs., ante at (2013). In determining whether the transfer should proceed as in P.D.’s best interest, the magistrate properly examined the over-all picture, comparing the supports and services available at the respective facilities to meet P.D.’s unique needs. He also carefully considered the guardians’ many objections, as required by the statute, and rejected them as invalid or unreviewable, or valid but outweighed by other factors or adequately addressed by DDS. P.D. has lived at FDC for most of his life. His primary medical and psychiatric issues are sever pica (ingesting nonfood items), skin picking, hyperactivity, a swallowing disorder, and both obsessive-compulsive disorder and bipolar disorder. These conditions are addressed in his individual support/service plan (ISP). In his decision, the magistrate identified the seven distinct improvements in services and quality of life that DDS asserted would be available to P.D. at […]
Categories: News Tags: 1101314, department, Developmental, Lawyers, P.D., Services, Weekly