Paul O. Penachio
Town of Saugus et al No. 134119
MEMORANDUM AND DECISION ON DEFENDANT'S MOTION FOR
Timothy Q. Feeley, Associate Justice
Paul O. Penachio (" Penachio") commenced this
action on March 5, 2014. He is a former firefighter for the
defendant Town of Saugus (" Saugus" or the "
town"). Defendant Scott Crabtree (" Crabtree"
and collectively with Saugus, the " defendants") is
the Town Manager for Saugus. On February 13, 2014, Penachio
in writing resigned his positions as a firefighter and
Emergency Management Director for Saugus. He did so due to a
letter provided anonymously to the Saugus Fire Chief (and
perhaps others) and then shown to Penachio that accused
Penachio of a litany of sexual misconduct on town property
and while on duty as a firefighter, and threatened to make
the allegations public unless Penachio resigned for his town
positions. Several days later, after a short, previously
planned vacation, Penachio sought to rescind his
resignations. The town refused to rehire/reinstate Penachio,
and this litigation commenced. The complaint asked for a
declaration restoring Penachio to his positions as a
firefighter and Emergency Management Director for the town,
plus retroactive compensation and benefits. Significantly
the complaint made no allegation as to the source of the
anonymous letter, and failed to even suggest that the town,
Crabtree, or any other town official had anything to do with
the anonymous letter.
also quickly sought a preliminary injunction from the court,
prohibiting the town from cancelling or otherwise interfering
with his group family health insurance coverage. [D. 5.]
After a non-evidentiary hearing the court (Feeley, J.) denied
the motion for preliminary injunction with the following
The dispositive issue for the court is Penachio's
inability to show a likelihood of success on the merits of
his claim. Given no allegations in the complaint (or at the
hearing) attributing the anonymous letter to the Town, the
court fails to see a justiciable cause of action asserted by
Penachio. Underlying a declaratory judgment action, there
must be an actual controversy that has arisen, some legal
right or relation within the jurisdiction of the court that
can be enforced by court judgment. G.L.c. 231A, § §
1, 2. Although fraud, threats, and/or duress may be a ground
to order rescission of a resignation of a public employee (as
Penachio argues), Penachio's counsel acknowledged that he
has found no case where such rescission has been based on
fraud, threats, or duress for which the public employer was
not responsible. The court doubts that any such case exists.
Accordingly, finding no likelihood that Penachio will succeed
on the merits of his claim against the Town, the court need
not proceed further to a balancing of harms. See John T.
Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124,
130-31, 713 N.E.2d 955 (1991), quoting Commonwealth v.
Mass. CRINC, 392 Mass. 79, 87-88, 466 N.E.2d 792 (1984).
before the court is defendants' motion for summary
judgment. [D. 14.] A non-evidentiary hearing was held on May
17, 2016. For reasons discussed below, the defendants'
motion for summary judgment is ALLOWED . Judgment of
dismissal will enter in the defendants' favor.
motion for summary judgment should be granted where there is
no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Mass.R.Civ.P.
56(c). The moving party, here the defendants, bear the burden
of affirmatively demonstrating the absence of a triable issue
and that the record entitles it to judgment as a matter of
law. Pederson v. Time, Inc., 404 Mass. 14, 16-17,
532 N.E.2d 1211 (1989). " The court must view the
evidence in the light most favorable to the party against
whom summary judgment is sought and draw all reasonable
inferences in [its] favor." Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Sullivan v.
Liberty Mutual Ins. Co., 444 Mass. 34, 38, 825 N.E.2d
522 (2000) (same).
party who does not bear the burden of proof at trial, like
the defendants, may satisfy this burden either by submitting
affirmative evidence that negates an essential element of the
opposing party's case or by demonstrating that the
opposing party has no reasonable expectation of proving an
essential element of his case at trial. Flesner v.
Technical Commc'ns Corp., 410 Mass. 805, 809, 575
N.E.2d 1107 (1991); Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 714, 575 N.E.2d 734 (1991). Here,
the defendants contend, among other arguments, that Penachio
has no reasonable expectation of proving that either
defendant is responsible for the threats and coercion that
Penachio claims impermissibly forced his resignation from his
positions with the town.
the moving party " establishes the absence of a triable
issue, the party opposing the motion must respond and allege
specific facts which would establish the existence of a
genuine issue of material fact." Pederson, 404
Mass. at 17. " The mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
" Only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude
the entry of summary judgment." Id. at 248.
" Summary judgment will not lie if the dispute about a
material fact is 'genuine, ' that is if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Id. The nonmoving party
cannot defeat a motion for summary judgment by resting on the
pleadings and mere assertions of disputed facts. LaLonde
v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989).
In deciding motions for summary judgment, the court may
consider pleadings, deposition transcripts, answers to
interrogatories, admissions on file, and affidavits.
Mass.R.Civ.P. 56(c). " [A]ffidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated
therein." Mass.R.Civ.P. 56(e); see also Madsen v.
Erwin, 395 Mass. 715, 719, 481 N.E.2d 1160 (1985)
(" The requirements of Rule 56(e) are mandatory").
The court reviews the evidence in the light most favorable to
the nonmoving party, but does not weigh evidence, assess
credibility, or find facts. Attorney Gen. v. Bailey,
386 Mass. 367, 370-71, 436 N.E.2d 139 (1982).
starting point for the court is the same fatal flaw that
doomed Penachio's request for preliminary injunctive
relief. Even after discovery and a police investigation, it
is undisputed that neither the town nor Crabtree had any
involvement in or responsibility for the anonymous letter
that Penachio claims, also without dispute, forced his
resignations. Thus, it is undisputed that the threats and
coercion that forced his employment resignations did not
emanate from the defendants. As was the case at the
injunctive stage of this action, Penachio has found no case
which grants rescission of an employment resignation that
resulted from threats or coercion of the sort here, where the
defendant employer had no involvement in or responsibility
for the threats and coercion that forced the resignations.
Cases where rescission is granted for employer misconduct are
not helpful to Penachio, as there is no employer misconduct
in this case. Finally, the court is aware of no authority
that would support a forced rescission of an employment
resignation for which the employer bore no responsibility. If
new law is to be created, it will have to be done by an
appellate court of this Commonwealth. Accordingly, no
disputed facts preclude entry of judgment as a matter of law
in favor of the defendants.
motion for summary judgment [D. 14] is ALLOWED .
Judgment of dismissal ...