Posts tagged "Union"

Philadelphia Indemnity Insurance Company v. National Union Fire Insurance Company of Pittsburgh, PA (Lawyers Weekly No. 12-083-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2016-00045 BLS1 PHILADELPHIA INDEMNITY INSURANCE COMPANY vs. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Plaintiff Philadelphia Indemnity Insurance Company (PIIC) and defendant National Union Fire Insurance Company (National Union) each issued insurance policies to North Suffolk Mental Health Associated, Inc. (North Suffolk). PIIC issued a Commercial General Liability (CGL) policy; and National Union issued a Workers’ Compensation and General Liability (Workers’ Comp.) policy. In a case filed in the Middlesex Superior Court in 2011, captioned Estate of Stephanie Moulton v. Nicholas Puopolo, et al. (the Underlying Action), the plaintiff estate brought suit against eighteen directors of North Suffolk (the Director Defendants) asserting claims arising out of the work related death of Ms. Moulton, a North Suffolk employee. The Director Defendants tendered the claim to both PIIC and National Union. PIIC defended the claim (under a reservation of right) and National Union declined coverage. The Director Defendants’ motion to dismiss the Underlying Action was eventually allowed, after appeal to the Supreme Judicial Court (SJC). See Estate of Moulton v. Puopolo, 467 Mass. 478 (2014) (Moulton). In this action, PIIC has filed suit against National Union asserting claims for 2 declaratory judgment and equitable subordination and seeking to recover the cost of its successful defense of the Underlying Action. The case is now before the court on the parties’ cross-motions for summary judgment. For the reasons that follow, National Union’s motion is ALLOWED, and PIIC’s motion is DENIED. ADDITIONAL FACTS The following additional facts are undisputed. Ms. Moulton was an employee of North Suffolk, a charitable corporation that provides mental health and rehabilitation services. She was assaulted and killed by a patient while performing her job. As explained in Moulton, her estate (the Estate) filed the Underlying Action against the directors of North Suffolk and others. It alleged claims for willful, wanton, reckless, malicious and grossly negligent conduct and, also, as to the Director Defendants, breach of fiduciary duty. The complaint alleged that the Director Defendants “effectuated” policies and failed to “effectuate” other policies that caused Ms. Moulton’s death. Id. at 480. They “moved to dismiss the complaint chiefly on the grounds that, with respect to the wrongful death action, they are immune from suit, as Ms. Moulton’s employer, under the exclusive remedy provision, G.L.c. 152, § 24 of the Workers’ Compensation Act (act), and, with respect to the breach of fiduciary duty claim, they owed Moulton no such duty.” Id. The Superior Court denied the motion to dismiss; the director defendants sought interlocutory review under the doctrine of present execution; and the case was transferred to the SJC. As […]

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Posted by Massachusetts Legal Resources - July 3, 2017 at 10:06 pm

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Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-025-17)

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   16-P-308                                        Appeals Court   NANCY BRADY, executrix,[1] & another[2] vs. CITIZENS UNION SAVINGS BANK[3] & another.[4]     No. 16-P-308.   Bristol.     December 6, 2016. – March 9, 2017.   Present:  Green, Agnes, & Desmond, JJ.     Probate Court, Attorney’s fees, Trust.  Trust, Attorney’s fees.  Executor and Administrator, Attorney’s fees.  Practice, Civil, Attorney’s fees.       Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011.   Following review by this court, 88 Mass. App. Ct. 416 (2015), an award of attorney’s fees, costs, and compensation for professional services was entered by Virginia M. Ward, J.     Carol L. Ricker for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben N. Dunlap for Edwin J. Haznar, Jr.     GREEN, J.  On remand following our decision in a previous appeal in this case, see Brady v. Citizens Union Sav. Bank, 88 Mass. App. Ct. 416 (2015) (Brady I), the Probate and Family Court judge entered a thorough and detailed written memorandum of decision, in which she reduced from $ 457,902.09 to $ 350,680.80[5] the amount the plaintiffs could recover as reimbursement for fees and costs their decedents incurred in defense of a lawsuit brought against them by the defendant Dale Eggers and her daughter.  Eggers has again appealed, contending that (1) the amount of fees is unreasonable in light of the nature and complexity of the underlying litigation; (2) the amount of fees represents an unreasonable proportion of the value of assets held by the Wilson O. Smith Trust (trust); and (3) the judge failed adequately to consider the availability of insurance proceeds as an alternative source of reimbursement.  We affirm, addressing Eggers’s arguments in turn.[6] Lodestar method.[7]  In determining the amount of a reasonable fee, we consider “the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.”  Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979).  Determination of a reasonable fee is in the first instance largely committed to the sound discretion of the trial judge, who is in the best position to evaluate the […]

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Posted by Massachusetts Legal Resources - March 9, 2017 at 3:26 pm

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Anderson, et al. v. National Union Fire Insurance Company of Pittsburgh PA, et al. (Lawyers Weekly No. 10-022-17)

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-12108   ODIN ANDERSON & others[1]  vs.  NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA & others.[2]       Middlesex.     October 6, 2016. – February 2, 2017.     Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Lowy, Budd, JJ.     Consumer Protection Act, Insurance, Unfair or deceptive act, Offer of settlement, Damages.  Insurance, Settlement of claim.  Damages, Consumer protection case, Interest, Punitive.  Interest.  Judgment, Interest.  Practice, Civil, Judgment, Damages, Interest.       Civil action commenced in the Superior Court Department on March 13, 2003.   The case was heard by Brian A. Davis, J., and motions to alter or amend the judgment were also heard by him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Kathleen M. Sullivan for National Union Fire Insurance Company of Pittsburgh PA. Leonard H. Kesten (Richard E. Brody also present) for the plaintiffs.     GAZIANO, J.  In this appeal, we consider the proper measure of punitive damages to be assessed against defendants who engage in unfair or deceptive insurance settlement practices in violation of G. L. c. 176D, § 3, and G. L. c. 93A, § 9 (3).  The plaintiffs — Odin Anderson, his wife, and his daughter — filed a personal injury action in the Superior Court for serious injuries Odin[3] suffered after being struck by a bus owned by Partners Healthcare Systems, Inc. (Partners), that was being driven by one of its employees.  The plaintiffs filed a separate action, under G. L. c. 176D, and G. L. c. 93A, against Partner’s insurers and claims representatives; proceedings in that action were stayed pending resolution of the underlying tort claims.  After a trial, a Superior Court jury awarded Anderson $ 2,961,000[4] in damages in the personal injury action, and awarded his wife and daughter $ 110,000 each.  At a subsequent, jury-waived trial, a different Superior Court judge found that the insurers and claims representatives violated G. L. c. 93A and G. L. c. 176D by their “egregious,” “deliberate or callously indifferent” actions, “designed to conceal the truth, improperly skew the legal system and deprive the Andersons of fair compensation for their injuries for almost a decade.”  Based on these findings, the judge concluded that the insurers’ and claims representatives’ “misconduct warrants the maximum available sanction . . . , both as punishment for what transpired and as a deterrent to similar conduct in the future.”  He awarded the plaintiffs treble […]

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Posted by Massachusetts Legal Resources - February 2, 2017 at 6:14 pm

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Service Employees International Union, Local 509, et al. v. Auditor of the Commonwealth, et al. (Lawyers Weekly No. 10-186-16)

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-12126   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, & others[1]  vs.  AUDITOR OF THE COMMONWEALTH & others.[2]       Suffolk.     September 6, 2016. – December 9, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Privatization Act.  Auditor.  Commissioner of Mental Health.  Public Welfare, Department of Health and Human Services.  Mental Health.  Practice, Civil, Action in nature of certiorari.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 8, 2016.   The case was reported by Spina, J.     Ian O. Russell (Katherine D. Shea & James F. Lemond with him) for the plaintiffs. Bryan F. Bertram, Assistant Attorney General (Daniel J. Hammond, Assistant Attorney General, with him) for the defendants.     LENK, J.  The plaintiffs, Service Employees International Union, Local 509 (SEIU), the Massachusetts Nurses Association, and the American Federation of State, County and Municipal Employees, Council 93, challenge a decision by the Auditor of the Commonwealth approving a proposed privatization contract pursuant to G. L. c. 7, §§ 52-55 (Pacheco Law).  The Pacheco Law establishes “[p]rocedures that agencies must follow when beginning the bidding process for and entering into a privatization contract.”  Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 786 (2000) (MBTA).  The Auditor of the Commonwealth must review all privatization proposals to determine if they comply with the Pacheco Law.  Id. In January, 2016, the Department of Mental Health (DMH) submitted a proposal to the Auditor that would privatize certain of its State-run mental health services.  Under the terms of the proposal, the Massachusetts Behavioral Health Partnership (MBHP), a privately owned State-wide mental health provider, would take over from DMH the provision of mental health services in the Southeast region of Massachusetts.  In March, 2016, the Auditor issued a written decision concluding that DMH’s privatization proposal met the requirements of the Pacheco Law, specifically, that the privatization was procured properly, that it would not result in a net cost to the Commonwealth, and that it would not cause a decline in the quality of mental health services provided in the Southeast region.  The plaintiffs then filed a petition in the nature of certiorari in the county court, seeking review of the Auditor’s decision.  A single justice reserved and reported the matter to the full court. We conclude that the […]

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Posted by Massachusetts Legal Resources - December 9, 2016 at 9:37 pm

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Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16)

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-12035   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509  vs.  DEPARTMENT OF MENTAL HEALTH & others.[1]     Suffolk.     September 6, 2016. – November 22, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Privatization Act.  Commissioner of Mental Health.  Commonwealth, Contracts.  Contract, Validity.  Public Employment.  Laches.  Practice, Civil, Judgment on the pleadings.       Civil action commenced in the Superior Court Department on February 15, 2012.   Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Ian O. Russell (Katherine D. Shea with him) for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for Department of Mental Health. Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue. Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue. Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief.     LENK, J.  This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012.  Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55.  The Pacheco Law establishes certain prerequisites that agencies must meet when seeking to enter into privatization contracts. Because DMH had determined that the subject contracts were not privatization contracts, however, it did not comply with those statutory prerequisites.  In bringing this action, the union seeks, among other things, a declaration invalidating the contracts on the basis of G. L. c. 7, § 54 (§ 54), which provides that no privatization contract “shall be valid” where an agency did not follow the necessary procedures. In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not […]

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Posted by Massachusetts Legal Resources - November 22, 2016 at 9:45 pm

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City of Springfield v. United Public Service Employees Union (Lawyers Weekly No. 11-035-16)

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-742                                        Appeals Court   CITY OF SPRINGFIELD  vs.  UNITED PUBLIC SERVICE EMPLOYEES UNION. No. 15-P-742. Hampden.     February 11, 2016. – March 25, 2016.   Present:  Kafker, C.J., Rubin, & Agnes, JJ. Arbitration, Collective bargaining, Authority of arbitrator, Judicial review.  Employment, Sexual harassment, Termination.  Public Policy.  Public Employment, Collective bargaining, Termination, Reinstatement of personnel.  Civil Service, Termination of employment, Reinstatement of personnel.       Civil action commenced in the Superior Court Department on January 2, 2014.   The case was heard by John S. Ferrara, J.     Gordon D. Quinn for the plaintiff. Lan T. Kantany for the defendant.     KAFKER, C.J.  The issue presented is whether an arbitrator exceeded her authority when she ordered a terminated employee reinstated without loss of pay or other rights, even though she found that he had engaged in conduct amounting to sexual harassment.  Because the mitigating circumstances the arbitrator identified supported her determination that the employer lacked just cause for termination, and her order does not preclude appropriate remedial action to address the employee’s sexual harassment, we conclude that her award does not offend public policy or require a result prohibited by statute.  We therefore affirm the Superior Court judge’s decision confirming the validity of the award. 1.  Background.  The city of Springfield (city) discharged Gregory Ashe, a long-time employee, following an investigation and hearing after a coworker complained of sexually inappropriate conduct.  Ashe, through his union, grieved the city’s decision to terminate his employment.  Pursuant to the parties’ collective bargaining agreement (CBA), the case was submitted to an arbitrator.  The parties presented the following question:  ”Was the termination of the Grievant Gregory Ashe supported by just cause?  If not, what shall be the remedy?”  After two days of hearings, the arbitrator issued her award.  She determined that much of the alleged harassing conduct did occur, but found that mitigating circumstances meant there was not just cause for termination.  She concluded:  ”As a remedy, the Grievant is entitled to be reinstated to his position without loss of compensation or other rights.” The city sought to vacate the award in the Superior Court under G. L. c. 150C, § 11.  In its appeal, the city argued that the arbitrator exceeded her authority under the CBA by reinstating the employee in direct violation of the public policy and statutory requirements governing sexual harassment.  The judge, in […]

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Posted by Massachusetts Legal Resources - March 25, 2016 at 3:52 pm

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Union, et al. v. Bloomberg, et al. (Lawyers Weekly No. 11-181-15)

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   14-P-1719                                       Appeals Court   LAURI UNION & another[1]  vs.  SAMUEL BLOOMBERG & others,[2] trustees.[3] No. 14-P-1719. Norfolk.     October 19, 2015. – December 2, 2015.   Present:  Berry, Green, & Blake, JJ.     Contract, Settlement agreement.  Condominiums, Common area, Management of trust.  Real Property, Condominium.  Damages, Attorney’s fees.  Practice, Civil, Attorney’s fees, Trustee of condominium management trust.       Civil action commenced in the Superior Court Department on July 7, 2009.   The case was heard by Patrick F. Brady, J., on a motion for summary judgment, and a motion for attorney’s fees and costs was heard by him.     Thomas O. Moriarty for the defendants. Arthur P. Kreiger for the plaintiffs.      BERRY, J.  This action concerns a settlement agreement between a condominium trust, among others, and the owners of property that abuts the condominium.  The defendants, trustees of the Longyear at Fisher Hill Condominium Trust (collectively, the trust), appeal from summary judgment entered in favor of the plaintiffs, Lauri Union and Stanley Rosenzweig, whereby a Superior Court judge ruled that the settlement agreement obligated the trust to plant and to maintain a number of trees between the condominium buildings and the plaintiffs’ property.[4]  On appeal, the trust claims that the settlement agreement is invalid because it violates certain provisions of the condominium statute, see G. L. c. 183A, §§ 1-23, and that the attorney’s fees awarded by the judge pursuant to the settlement agreement are excessive.  We affirm. Background.  The undisputed facts relevant to this appeal are taken from the parties’ joint statement of material facts, which we supplement somewhat, from the record.  In 1999, Longyear Properties, LLC (Longyear), the condominium declarant and developer, began construction of four condominium buildings on an eight-acre parcel in Brookline (town), pursuant to a special permit issued by the town board of appeals (the board).  CCCT, Inc. (CCCT), was established by Longyear as the initial condominium trustee, pursuant to a June 28, 1999, declaration of trust, recorded in the Norfolk County registry of deeds.  Robert S. Roth and John J. Sullivan controlled both Longyear and CCCT.  The plaintiffs own property across the street from two of the condominium buildings, referred to as buildings C and D. After completion of the first two buildings in the development, Longyear began construction on building C.  The plaintiffs claimed that the location of building C was closer to […]

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Posted by Massachusetts Legal Resources - December 2, 2015 at 6:27 pm

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Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-152-15)

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   14-P-1641                                       Appeals Court   W. NANCY BRADY, executrix,[1] & another[2]  vs.  CITIZENS UNION SAVINGS BANK[3] & another.[4]   No. 14-P-1641. Bristol.     June 1, 2015. – September 30, 2015.   Present:  Sullivan, Maldonado, & Massing, JJ. Probate Court, Attorney’s fees, Trust.  Trust, Attorney’s fees.  Practice, Civil, Attorney’s fees.  Executor and Administrator, Attorney’s fees.       Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011.   The case was heard by Virginia M. Ward, J.     Philip J. Laffey for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben Nathan Dunlap for Edwin J. Haznar, Jr.     MASSING, J.  Defendant Dale Eggers, a beneficiary of the William O. Smith Trust (the trust), appeals from a decree issued by a judge of the Probate and Family Court awarding attorney’s fees, costs, and compensation for professional services to be paid to the plaintiffs from trust funds.  The plaintiffs’ petition to the court claimed that their decedents (the trustees) had rendered legal and accounting services to the trust and had incurred expenses in their defense of a lawsuit that Eggers initiated against them in connection with their duties as trustees.  The amount of the award was nearly sixty percent of the value of the trust at the time of the petition.  While we do not reach the question of the reasonableness of the award, we remand the case for the judge to “undertake a more specific and searching analysis of the actual requests for fees and costs submitted than the record suggests took place.”  Matter of the Estate of King, 455 Mass. 796, 809 (2010) (King). Background.  Eggers’s father, Wilson O. Smith, established the trust in 1987.  Among the beneficiaries were Smith’s wife, Betty Georgas (who was not Eggers’s mother), Eggers, and Eggers’s children.  In December, 2006, Eggers and one of her daughters initiated a lawsuit in the Probate and Family Court against the trustees, Thomas T. Brady and Edwin J. Haznar, alleging breach of fiduciary duty in their 1994 conveyance of a Florida property out of the trust to Georgas (the prior action). After nearly four years of litigation, on November 8, 2010, summary judgment entered in favor of the trustees.  Among the grounds for judgment was that the prior action was barred by the statute of limitations because Eggers […]

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Posted by Massachusetts Legal Resources - September 30, 2015 at 5:02 pm

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City of Springfield v. Local Union No. 648, International Association of Firefighters, AFL-CIO (Lawyers Weekly No. 11-107-15)

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-1691                                       Appeals Court   CITY OF SPRINGFIELD  vs.  LOCAL UNION NO. 648, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO. No. 13-P-1691. Hampden.     September 11, 2014. – August 13, 2015.   Present:  Trainor, Rubin, & Sullivan, JJ.   Fire Fighter, Appointment.  Arbitration, Fire fighters, Authority of arbitrator, Damages.  Labor, Fire fighters, Arbitration, Civil service, Damages.  Civil Service, Fire fighters, Appointment.  Contract, Collective bargaining contract.  Damages, Back pay.       Civil action commenced in the Superior Court Department on December 14, 2011.   The case was heard by John S. Ferrara, J., on motions for judgment on the pleadings; a motion for reconsideration was heard by him; and entry of a final judgment was ordered by him.     Albert R. Mason for the plaintiff. Joseph G. Donnellan for the defendant.      RUBIN, J.  The city of Springfield (city) appeals from a judgment of the Superior Court confirming a labor arbitration award issued in favor of a public employee union representing firefighters, Local 648, International Association of Firefighters, AFL-CIO (union).  We affirm. Background.  Because the arbitration award incorporated by reference certain legal conclusions of the Civil Service Commission (commission), we first summarize the commission proceedings, followed by the arbitration proceedings.  Under the civil service law, G. L. c. 31, in order to fill a vacant position, the city may appoint either a “permanent” replacement, or, if the vacancy or the position is temporary, a “temporary” replacement.  See G. L. c. 31, §§ 6-8.  In either event, the appointment must be made through the detailed procedural steps set out in the civil service law. As the commission ultimately found, for an extended period of time the city’s appointments to vacant positions in the fire department did not comply with the above requirements.  Rather, in 2009 and 2010, the city filled certain vacancies in its fire department not by promoting firefighters, but by making extended appointments of firefighters to higher-ranking civil service positions on an “acting” basis.  These firefighters were paid additional out-of-grade compensation pursuant to the terms of art. 31 of the collective bargaining agreement (CBA) between the union and the city.  Even with this additional out-of-grade amount, their compensation and other benefits fell short of that set forth in the CBA for the positions in which they were serving.  The city’s justification for this discrepancy was that the firefighters were serving only on an “acting” basis. […]

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Posted by Massachusetts Legal Resources - August 13, 2015 at 8:37 pm

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Christakis v. Jeanne D’Arc Credit Union, et al. (Lawyers Weekly No. 10-075-15)

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-11758   PAGONA CHRISTAKIS  vs.  JEANNE D’ARC CREDIT UNION & others.[1]       Suffolk.     January 6, 2015. – May 6, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Lien.  Bankruptcy, Discharge.  Judgment, Default.  Practice, Civil, Execution, Default.       Civil action commenced in the Land Court Department on October 17, 2013.   The case was heard by Keith C. Long, J., on motions for summary judgment, and a motion for entry of judgment by default was also heard by him.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     David G. Baker for the plaintiff. Sandra M. Boulay for Jeanne D’Arc Credit Union. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief.     GANTS, C.J.  The issue on appeal is whether judicial liens on real property remain valid after the owner of the property receives a discharge under Chapter 7 of the Bankruptcy Code.  We conclude that the judicial liens survive the discharge where, as here, the Bankruptcy Court judge did not avoid them.[2] Background.  The plaintiff, Pagona Christakis, filed a complaint in the Land Court to remove judicial liens that had attached to real property she owned in Billerica after three creditors obtained final judgments against her.  Only one creditor defendant, Jeanne D’Arc Credit Union (credit union), filed an answer.  The other two creditor defendants, Harvest Credit Management VII, LLC (Harvest), and Citibank (South Dakota), N.A. (Citibank), failed to respond.  The plaintiff moved for entry of judgment by default against Harvest and Citibank and for summary judgment against the credit union; the latter cross-moved for summary judgment.  In denying the plaintiff’s motions and allowing the credit union’s motion, the judge concluded that “[t]he defendants’ liens remain, subject to potential review by the [B]ankruptcy [C]ourt to determine if they impair exempt property.”  The judge then entered judgment in favor of all the defendants, including the defaulting defendants.  The plaintiff appealed, and we transferred the case to this court on our own motion. We summarize the relevant facts in the summary judgment record, viewed in the light most favorable to the plaintiff.  The defendants are creditors of the plaintiff, apparently for unpaid credit card bills.[3]  Each defendant sued the plaintiff to collect the unpaid debt and obtained […]

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Posted by Massachusetts Legal Resources - May 6, 2015 at 5:23 pm

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