Herrick v. Essex Regional Retirement Board, et al. (Lawyers Weekly No. 10-132-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC‑11239 ROBERT D. HERRICK vs. ESSEX REGIONAL RETIREMENT BOARD & another.[1] Essex. March 5, 2013. ‑ July 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Public Employment, Retirement benefits, Forfeiture of pension. Judgment, Interest. Practice, Civil, Interest. Municipal Corporations, Pensions. County, Retirement board. Contract, Damages. Civil action commenced in the Superior Court Department on March 24, 2005. Following review by the Appeals Court, 77 Mass. App. Ct. 645 (2010), a motion for assessment of damages was heard by Howard J. Whitehead, J., and corrected judgment was entered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Sacco for Essex Regional Retirement Board. H. Ernest Stone for the plaintiff. GANTS, J. The questions on appeal are whether plaintiff Robert Herrick, a member of a public employee contributory retirement system governed by G. L. c. 32, §§ 1-28, inclusive, is entitled to prejudgment interest on a retroactive award of superannuation retirement benefits and, if so, at what rate of interest. We hold that the plaintiff is not entitled to interest at a rate of twelve per cent per annum pursuant to G. L. c. 231, § 6C, because his suit was not an action “based on contractual obligations.” We further hold that the plaintiff is not entitled to twelve per cent annual interest pursuant to G. L. c. 231, § 6H, because interest in this case is “otherwise provided by law” under G. L. c. 32, § 20 (5) (c) (2). We interpret § 20 (5) (c) (2) to provide that, where, as here, a retirement board makes a legal error in denying retirement benefits that is corrected by a court, the plaintiff is entitled to a rate of interest determined by the board’s actuary “so that the actuarial equivalent of the pension or benefit to which the member or beneficiary was correctly entitled shall be paid.” Background. The plaintiff worked for twenty-seven years as a custodian and maintenance mechanic for the Wenham Housing Authority and was a member of the Essex Regional Retirement System.[2] On May 1, 2003, he was charged with sexually assaulting his daughter and, that same day, resigned his position. On May 6, he submitted an application for voluntary superannuation retirement pursuant to G. L. c. 32, § 5 (1) (a). On […]