94859B, 94859B
| Citation | 1998 MBAR 273 |
| Decision Date | 01 January 1998 |
| Docket Number | 94859B |
| Parties | Thomas D. Moynahan v. Essex County Retirement Board et al. |
| Court | Superior Court of Massachusetts |
Mass L. Rptr. Cite: 9 Mass. L. Rptr. 232
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): SIKORA
Pursuant to G.L.c. 30A, 14, the plaintiff Thomas D. Moynahan appeals from a final decision of the defendants Essex County Retirement Board ("ECRB") and Massachusetts Contributory Retirement Appeal Board ("CRAB") denying him creditable service and a corresponding retirement allowance for six years of employment (1984 to 1990) as a full-time custodian at the Hamilton-Wareham Regional High School.
Upon his retirement on or about October 1990, Mr. Moynahan sought a retirement allowance crediting those six years. The ECRB sought and received an opinion from the Massachusetts Public Employees Retirement Administration ("PERA") to the effect that the governing statutes precluded creditable service for those years. The ECRB adopted the opinion and denied the service and conforming allowance. Pursuant to G.L.c. 32, 16(4), Moynahan appealed that determination to CRAB. An administrative magistrate of the Division of Administrative Law Appeals affirmed the denial of the requested retirement allowance (Record Appendix or "RA" at 42-47). CRAB thus adopted the magistrate's decision as the final administrative adjudication of the request (RA 5-7).
Mr Moynahan appeals to the Superior Court upon the ground that the administrative decision rests upon an error of law (or possibly arbitrary or inequitable action), within the meaning of G.L.c. 30A, 14(7) [].
Mr. Moynahan began employment in February 1955 as a call (part-time) firefighter for the Town of Ipswich. At that time he became a member of the Essex County Retirement System. He ceased work as a call firefighter in December of 1980. Effectively as of March 23, 1983, he received superannuation retirement with an award of 25 years and 10 months of creditable service.
During 1983 and 1984 he received his retirement benefit payments. They totaled $893.38. During 1984 he considered employment as a full-time custodian at Hamilton-Wenham Regional High School and a resumption of membership in the Essex County Retirement System. He corresponded with the ECRB upon the subject. On October 9, 1984, the executive secretary of that board wrote him that he could "be reinstated into the retirement system as an active member" if he returned to the system the $893.38 of benefits received to that point; and stated her belief that "the future benefits to be gained by you by re-establishing membership in a full-time position are well worth making this payment." (RA 38.)
In response Moynahan returned the retirement payments and proceeded with employment as a full-time custodian. In October of 1990, he retired from that position. During the period of August 1984 to October 1990 he had contributed a retirement deduction at the established rate of 5 percent. In 1990, he sought a superannuation retirement allowance based upon both his employment as a call firefighter from 1955 to 1980 and his employment as a full-time custodian from 1984 to 1990.
The ECRB then sought PERA's guidance upon the proper calculation of creditable service and resulting benefit level. PERA opined that the controlling provisions of G.L.c. 32, 3(8)(b) and 5(1)(g) did not authorize reinstatement of active membership in the retirement system once an employee had earlier retired and had effectively received any retirement allowance.
The ECRB followed the opinion. In February of 1991, it refunded to Moynihan all retirement deductions taken over the six years from his custodian's salary ($5,743.69); and restored his 1983 superannuation retirement allowance as determined by his creditable years of service as a call firefighter.
Mr. Moynahan then commenced the administrative process resulting in the present appeal. He asserts that he reasonably relied upon the incorrect representation of the ECRB in 1984 that he could achieve reinstatement and an increased retirement payment by means of his employment as a full-time custodian; and that he had passed up preferable alternative employment as a result.
On appeal Mr. Moynahan does not challenge the application of the pertinent statutes (Superior Court "appeal" complaint paragraphs 9-12; and final paragraph). Consequently, I take G.L.c. 32, 3(8)(b) [] and 5(1)(g) [the specific enumerated exceptions to the general limitation] normally to exclude the reinstatement sought by Mr. Moynahan.
Instead he grounds the appeal upon a specific point of law or equity the rule of promissory estoppel. He contends that the ECRB in 1984 induced him to take the position of full-time custodian by its inaccurate representation of an increased retirement allowance. That board did mistakenly lead him to believe that his time as a custodian would be creditable cumulatively with his time as a call firefighter toward a higher retirement benefit (RA 34-35; 38). Consequently Mr. Moynahan proposes that, under the rule of promissory estoppel (or, by inference, equitable estoppel) the ECRB should be bound to fulfill its promise to him of the higher retirement benefit because he reasonably relied upon its negligent misrepresentation by acceptance and performance of the custodian position. He relies upon a major Massachusetts precedent for operation of promissory estoppel between private parties: Loranger Construction Corporation v. E.F.Hauserman Co., 376 Mass. 757, 760-61 (1978) [Superior Court Memorandum on Support of Appeal at 2].
The defendant ECRB (and impliedly CRAB) responds upon two grounds: (1) that as a matter of procedure, Moynahan's failure to file a motion for judgment on the pleadings in this c. 30A appeal within the time limit set by Superior Court Standing Order No. 1-96, paragraph 4 () requires dismissal; and that, as a matter of substance, the notion of promissory or equitable estoppel does not apply to governmental parties.
1. I do not construe Standing Order I-96 to require the sanction of dismissal for violation of its timetable. Its deadlines are procedural; they are directory, not mandatory. They promote the orderly and timely accomplishment of litigation. Noncompliance will not ordinarily forfeit substantive rights, nor invalidate the act subject to the time limit. See Amherst-Pelham Regional School Committee v. Department of Education, 376 Mass. 480, 496 (1978) (cases collected); Liberty Mutual Ins. Co. v. Acting Commissioner of Insurance, 265 Mass. 23, 29 (1928); and Treasurer of the County of Norfolk v. County Commissioners of Norfolk, 7 Mass.App.Ct. 368, 372 (1979). Therefore I DENY the ECRB's motion to dismiss the appeal on this ground.
2. As to the merits, in Massachusetts and in most jurisdictions the principle of promissory or equitable estoppel will usually not operate against governmental bodies. The Massachusetts decisions are longstanding and consistent. See especially Doris v. Police Commissioner of Boston, 374 Mass. 443, 449-50 (1978); Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 161-64 (1977); Elbe File & Binder Co. v. City of Fall River, 329 Mass. 682, 685-86 (1953); Attorney General v. Methuen, 236 Mass. 564, 578-79 (1921); Harrington v. Fall River Housing Authority, 27 Mass.App.Ct. 301, 307-08 (1989); Outdoor Advertising Board v. Sun Oil Co. of Pennsylvania, 8 Mass.App.Ct. 872, 873 (1979); and DiGloria v. Chief of Police of Methuen, 8 Mass.App.Ct. 506, 515-16 (1977).
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