Heard: February 7, 2017.
action commenced in the Superior Court Department on January
case was heard by Bruce R. Henry, J., on motions to dismiss
and for summary judgment.
Christopher G. Fallon for the plaintiff.
R. Mason for the defendant.
Present: Trainor, Blake, & Shin, JJ.
plaintiff, Malden Police Patrolman's Association (union),
is a labor organization comprised of approximately
seventy-nine police officers employed by the defendant, the
city of Malden (city). The union and the city were parties to
a collective bargaining agreement (CBA) covering three fiscal
years from July 1, 2010, through June 30, 2013. The CBA set
forth the provisions governing, among other matters, paid
detail work performed by the officers. During the summer
of 2014, the union notified the city that it was in arrears
on the payment of compensation to officers for detail work,
requested a written explanation for the nonpayment, and
demanded the outstanding detail pay. The city took the
position that, because the officers earned the detail pay for
work performed for third parties, the city was exempt from
the provisions of the Massachusetts wage and hour laws,
requiring timely payment of earned wages.
January 21, 2015, the union filed a complaint in the Superior
Court against the city,  alleging that the city owed the
officers approximately $410, 000 in compensation for the
performance of past detail work. The complaint requested
relief under theories of breach of contract (count I), breach
of an implied covenant of good faith and fair dealing (count
II), promissory estoppel (count III), unjust enrichment
(count IV), and violation of the Massachusetts Wage Act, G.
L. c. 149, § 148 (Wage Act) (count V). The union then
filed a motion for summary judgment pursuant to Mass.R.Civ.P.
56, 365 Mass. 824 (1974). The city moved to dismiss the
union's complaint or, in the alternative, for summary
judgment and declaratory judgment.
memorandum of decision and order dated February 9, 2016, the
judge denied the union's motion for summary judgment,
allowed the city's motion to dismiss with respect to
counts I through IV of the complaint, and granted summary
judgment for the city with respect to count V of the
complaint. First, the judge stated that the union's
claims for breach of contract and breach of an implied
covenant of good faith and fair dealing were governed by the
CBA and, therefore, those claims were "best resolved by
whatever dispute resolution provisions [were] contained in
that agreement." While the record does not contain the
entire CBA, neither party disputes that it contains an
arbitration/grievance procedure. Next, the judge concluded
that promissory estoppel was not a viable claim against the
city. The judge also determined that the circumstances of the
present dispute did not give rise to a claim of unjust
enrichment. Finally, the judge concluded that, although
detail pay constituted wages under G. L. c. 149, § 148,
the union could not prevail under the Wage Act due to the
provisions of the municipal finance law, G. L. c. 44, §
Following the entry of judgment, the union appealed. For the
reasons that follow, we reverse the allowance of summary
judgment in favor of the city on count V of the complaint,
setting forth the union's Wage Act claim, and remand for
further proceedings. In all other respects, we affirm.
Compliance with Superior Court rules.
union first contends that the judge erred in granting the
city's motion to dismiss or, in the alternative, for
summary judgment because the city failed to comply with Rules
9A and 9B of the Rules of the Superior Court (2014). In
particular, the union asserts that the city failed to include
with its motion either a separate statement of uncontested
material facts with references to supporting materials, or a
joint appendix with an index of exhibits. See Superior Court
Rule 9A(b)(5)(i) and (vi). The union claims that the city,
when notified of these deficiencies, did not correct them
properly. In addition, the union points out that the city
failed to include a certificate of service on the last page
of its motion. See Superior Court Rule 9B. In the union's
view, the city's motion was fatally defective because of
these deficiencies and, therefore, should have either not
been considered or been denied. We disagree.
said that "[r]ules of procedure are not just guidelines.
Their purpose is to provide an orderly, predictable process
by which parties to a law suit conduct their business. Any
litigant who fails to turn a procedural corner squarely
assumes the risk that the rules infraction will be used
against him and the rule vigorously enforced by the trial
judge." USTrust Co. v. Kennedy, 17 Mass.App.Ct.
131, 135 (1983). See Superior Court Rule 9A(b)(6) (judge
"need not consider any motion or opposition that fails
to comply with the requirements of this rule").
"Every violation of a procedural rule, however, need not
-- and should not -- require the perpetrator to be undone.
The defect may be harmless." USTrust Co. v.
Kennedy, supra, and cases cited. Consequently, trial
judges "have discretion to forgive a failure to comply
with a rule if the failure does not affect the opposing
party's opportunity to develop and prepare a
response." Ibid. See Greenleaf v. Massachusetts Bay
Transp. Authy., 22 Mass.App.Ct. 426, 429 (1986)
(management of case committed to discretion of trial judge).
the judge, in his discretion, chose to consider the merits of
the city's motion, notwithstanding the city's alleged
noncompliance with procedural rules. We note that in a
revised memorandum of law accompanying its motion, the city
did set forth agreed factual allegations taken directly from
the paragraphs of the union's complaint. It also appears
from the Superior Court docket that a statement of material
facts was filed, although it has not been included in the
record appendix. We agree with the union that the city failed
to file a joint appendix with an index of exhibits and to
include a certificate of service on the last page of its
motion. Nonetheless, the union has not claimed that the
city's noncompliance with Rules 9A and 9B affected the
union's ability to respond to the city's motion.
Absent any prejudice to the union, we conclude that the judge
did not abuse his discretion in considering the merits of the
city's motion, rather than deeming it fatally defective.
Breach of contract and breach of implied covenant of good
faith and fair dealing. Both parties have characterized the
judge's dismissal of the contract-based claims as one
under the doctrine of primary jurisdiction and have briefed
the issue accordingly. The union contends that the judge
erred in this respect because judicial resolution of such
claims would not interfere with any pending administrative
proceedings, and courts routinely resolve these types of
controversies. In the union's view, its claims presented
only questions of law for which the expertise of the
Department of Labor Relations (department) was unnecessary.
That being the case, the union argues, there was no reason
for the judge to relinquish jurisdiction over its
contract-based claims. We disagree.
the doctrine of primary jurisdiction and the doctrine of
exhaustion of remedies serve the purpose of "promoting
proper relationships between the courts and administrative
agencies." Lincoln v. Personnel Administrator of the
Dept. of Personnel Admin.,432 Mass. 208, 211 n.4
(2000), quoting from Nader v. Allegheny Airlines,
Inc.,426 U.S. 290, 303 (1976) (Nader). The exhaustion
doctrine, however, "is commonly applied to prevent
premature interference with a pending administrative
proceeding." J. & J. Enterprises, Inc. v.
Martignetti,369 Mass. 535, 539 (1976). It
"contemplates a situation where some administrative
action has begun, but has not yet been completed."
Murphy v. Administrator of the Div. of Personnel
Admin.,377 Mass. 217, 220 (1979) (Murphy). See
Lumbermens Mut. Cas. Co. v. Workers' Compensation Trust
Fund, 88 Mass.App.Ct. 183, 187 (2015). The ...