Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1158 Appeals Court ESSEX REGIONAL RETIREMENT BOARD vs. JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2] No. 16-P-1158. Essex. March 8, 2017. – July 12, 2017. Present: Grainger, Blake, & Neyman, JJ.[3] Public Employment, Retirement, Forfeiture of pension. Police, Retirement. Pension. Constitutional Law, Public employment, Excessive fines clause. County, Retirement board. Practice, Civil, Action in nature of certiorari. District Court, Appeal to Superior Court. Civil action commenced in the Superior Court Department on July 14, 2015. The case was heard by James F. Lang, J., on motions for judgment on the pleadings. Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow. GRAINGER, J. The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow. The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4). We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4). We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background. We summarize the procedural history and the underlying relevant facts which are undisputed. In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department. At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service. Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point. After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan. He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car. The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs. Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt. He began screaming […]
Holyoke Mutual Insurance Company in Salem, et al. v. Vibram USA, Inc. (Lawyers Weekly No. 12-031-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-2321 BLS1 HOLYOKE MUTUAL INSURANCE COMPANY IN SALEM and MARYLAND CASUALTY COMPANY vs. VIBRAM USA, INC. MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON RECOUPMENT AND RECOVERY OF DEFENSE COSTS INTRODUCTION This action arises out of a coverage dispute between the plaintiff insurance companies, Holyoke Mutual Insurance Company in Salem (Holyoke)1 and Maryland Casualty Company (Maryland) (individually an Insurer, and collectively the Insurers), and the defendant, Vibram USA, Inc. (Vibram). Each of the insurers issued commercial general liability policies to Vibram (or its affiliate) (the Policies).2 An action was filed against Vibram in the United States District Court for the Western District of Washington at Tacoma captioned: Tefere Abebe Bikila, and others, v. Vibram, case no. 3:15-cv-05082-RBL (the Underlying Action). Vibram asserted coverage under the Policies and tendered defense of the Underlying Action to the Insurers. The 1 Holyoke has been replaced as a plaintiff in this action by its successor, Country Mutual Insurance Company. For consistency, the court will continue to refer to it as Holyoke in this Memorandum of Decision and Order. 2 Holyoke issued policies to Vibram for several years, while Maryland issued policies to an affiliate of Vibram,Vibram Five Fingers, LLC. It is not necessary to distinguish between Vibram and its affiliate for the purposes of this motion, and the court will refer to them collectively as Vibram. Additionally, for purposes of this motion the relevant policy language in all of the policies is identical, and is it also unnecessary to distinguish among policy years. The court will therefore simply refer to the Holyoke and Maryland policies collectively as the Policies. 2 Insurers each sent a “reservation of rights” letter to Vibram in which they agreed to provide its defense to the claims asserted in the Underlying Action, but also maintained that coverage did not exist under the Policies and reserved their rights to bring a declaratory judgment action and seek reimbursement for defense costs advanced. The Insurers then filed this declaratory judgment action seeking a declaration that the claims asserted against Vibram in the Underlying Action are not covered under the Policies; Vibram counterclaimed for a declaration that they are. In a Memorandum of Decision and Order on Cross-Motions for Summary Judgment and Partial Summary Judgment originally issued on August 17, 2016 (the Decision), this court held that the Policies do not provide coverage for the claims asserted against Vibram in the Underlying Action and, accordingly, there is no duty to defend. The case is now before the court on cross-motions for summary judgment addressing the issues of recoupment of defense costs advanced or, conversely, recovery of defense costs incurred before […]
Furlong, et al. v. Zoning Board of Appeals of Salem, et al.
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-1174 Appeals Court MICHAEL F. FURLONG & another[1] vs. ZONING BOARD OF APPEALS OF SALEM & another.[2] No. 15-P-1174. Suffolk. October 7, 2016. – December 12, 2016. Present: Hanlon, Sullivan, & Blake, JJ. Zoning, Variance, Setback. Practice, Civil, Zoning appeal. Civil action commenced in the Land Court Department on February 17, 2012. The case was heard by Robert B. Foster, J. Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for the plaintiffs. Leonard F. Femino for BHCM Inc. BLAKE, J. The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina (Brewer), sought and received a dimensional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed a G. L. c. 40A, § 17, appeal in the Land Court. Following a jury-waived trial, the judge affirmed the board’s decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance. We agree and affirm. Background. We recite the facts found by the judge, which are undisputed by the parties. Brewer owns a nonrectangular parcel of property[3] with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina. The property consists of a large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot. The structures include a combination shower, bath, and laundry house, a pressure wash shed, an approximately 1,500 square foot temporary Quonset hut located in the center of the property, a small dock house, and a “marine travel lift” hoist (travel lift). As part of its marina operation, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut. By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the property, outside of the setback requirements of the local zoning ordinance. The proposed building would serve as the marina’s boat repair facility, allowing the removal of the Quonset […]
Theophilopoulos, et al. v. Board of Health of Salem, et al. (Lawyers Weekly No. 11-028-14)
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 13‑P‑100 Appeals Court ARTHUR THEOPHILOPOULOS & others[1] vs. BOARD OF HEALTH OF SALEM & another.[2] No. 13‑P‑100. Essex. October 4, 2013. ‑ March 18, 2014. Present: Cypher, Katzmann, & Maldonado, JJ. Department of Environmental Protection. Solid Waste Management. Municipal Corporations, Board of health. Department of Environmental Quality Engineering. Administrative Law, Regulations, Agency’s interpretation of regulation, Judicial review. Statute, Construction. Civil action commenced in the Superior Court Department on March 18, 2010. The case was heard by Howard J. Whitehead, J., on a motion for judgment on the pleadings, and a motion for reconsideration was also heard by him. Thomas A. Mackie for the intervener. Leonard F. Femino for the defendant. Seth Schofield, Assistant Attorney General, for the Commonwealth. Carl D. Goodman for the plaintiffs. CYPHER, J. The question presented for review is whether the Salem board of health (board) properly classified the joint application of the city of Salem (city) and Northside Carting, Inc. (NCI), as one for a minor modification of a site assignment. On appeal to the Superior Court pursuant to G. L. c. 30A, § 14(7), a judge concluded that it had not, and nullified the decision of the board approving the application.[3] We reverse. History of the site. In June, 1960, the board assigned city-owned land in Salem for use as a refuse incineration plant (site).[4] As was common for the time, the board did not place any capacity or volume limitations in the site assignment. Once the incinerator was built, the city disposed of the ash on site in a landfill. By 1968, incineration and landfilling operations had ceased. No governmental entity at any time thereafter sought to rescind, suspend, or modify the site assignment through the imposition of conditions. On September 9, 1975, the Department of Environmental Quality Engineering (DEQE), the predecessor agency of the Massachusetts Department of Environmental Protection (department), approved the city’s plan to construct a solid waste transfer station at the site.[5] DEQE’S plan approval was subject to five conditions, including a weight-receipt limit of 100 tons of refuse per day.[6] On June 3, 1994, the department approved the city’s application, pursuant to 310 Code Mass. Regs. § 19.023(3) (1992), for a permit by rule, finding that the existing transfer station met the department’s design and operations standards.[7] See 310 Code […]