Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Silva v. Todisco Services, Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

January 24, 2017

Christopher Silva on Behalf of Himself and all Others Similarly Situated
v.
Todisco Services, Inc. dba Todisco Towing No. 136525

          MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          Kenneth W. Salinger, Justice of the Superior Court.

         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.

         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 the amount charged by Todisco, and therefore Christopher (not Nathan) is the one who suffered financial harm as a result of Todisco imposing towing charges that were not allowed under 220 C.M.R. § 272.03.

         Those allegations plausibly suggest that Todisco breached a legal duty owed to Silva by charging more for an involuntary tow than permitted by law, that Silva himself was injured by Todisco's actions, and that Silva therefore has standing to bring this action. See G.L.c. 93A, § 9(1) (any person injured by unfair or deceptive act or practice in trade or commerce may bring action in superior court for damages and equitable relief); Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 22-23, 858 N.E.2d 699 (2007) (plaintiff has standing if allegations in complaint plausibly suggest that defendant owed legal duty to plaintiff, breached that duty, and plaintiff suffered injury as a result). Silva was not required to allege in more detail facts showing that Nathan was acting as Silva's agent and paid Todisco on behalf of Silva. See, e.g., Lopez v. Commonwealth, 463 Mass. 696, 701, 978 N.E.2d 67 (2012) (" detailed factual allegations are not required"); Cannonball Fund, Ltd. v. Dutchess Capital Mgmt., LLC, 84 Mass.App.Ct. 75, 93-95, 993 N.E.2d 350, rev. denied, 466 Mass. 1106, 996 N.E.2d 473 (2013) (plaintiff's standing is determined based on factual allegations in complaint, assuming them to be true).

         2. Primary Jurisdiction

         Todisco asserts that the DPU has primary jurisdiction over Silva's claims, and that the Court should therefore dismiss this action. " The doctrine of primary jurisdiction arises in cases where a plaintiff, 'in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy' that includes an issue within the special competence of an agency." Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 121, 20 N.E.3d 229 (2014), quoting Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 220, 386 N.E.2d 211 (1979). This doctrine " has particular applicability when 'an action raises a question of the validity of an agency practice . . . or when the issue in litigation involves " technical questions of fact uniquely within the expertise and experience of an agency." '" Id. (ellipsis in original), quoting Murphy, supra, at 221, quoting in turn Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976).[1]

          The DPU and the Superior Court share jurisdiction over claims that a towing company has violated the Department's towing rate regulation. Since Silva's vehicle was towed at the request of the owner or operator of the property where the vehicle had been parked, and without the consent of Silva or any authorized user of the vehicle, Todisco could not charge Silva any more than the maximum amount allowed for such involuntary tows under the applicable DPU regulations. See G.L.c. 266, § 120D. All of Silva's claims are based on his allegation that Todisco imposed towing charges for mileage and a fuel surcharge without providing information required under 220 C.M.R. § 272.03. This regulation was adopted by the Department pursuant to its authority under G.L.c. 159B, § 6B, to regulate the maximum charges that may be assessed for the involuntary towing of motor vehicles. Anyone affected by a violation of this regulation " may file" a complaint with the Department. G.L.c. 159B, § 21. But this jurisdiction is not exclusive. See Papetti v. Alicandro, 317 Mass. 382, 385-90, 58 N.E.2d 155 (1944). The governing statute provides that the Superior Court retains " jurisdiction in equity to restrain any . . . violation" of regulations promulgated under this statute. See G.L.c. 159B, § 21. In addition, individuals like Silva who contend they have been overcharged may file an action in Superior Court seeking repayment, just as carriers or towers who contend they are owed money under this regulation may file a civil action seeking payment. Cf. Papetti, supra, at 391-93.

          Where a lawsuit involves a dispute over which a court and an administrative agency share jurisdiction, as in this case, the court generally has broad discretion as to whether to allow the lawsuit to proceed or instead dismiss or stay the action and refer issues to the agency under the doctrine of primary jurisdiction. See Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass.App.Ct. 794, 801-02, 910 N.E.2d 956 (2009).

         But Silva seeks damages and other relief under G.L.c. 93A, § 9. That makes it inappropriate to dismiss or even to stay this case on the ground that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.