Crowley v. City of Boston

• Decision Date: 03 April 1961
• Citation: 173 N.E.2d 647,342 Mass. 344
• Parties: Joseph A. CROWLEY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 647

173 N.E.2d 647

342 Mass. 344

Joseph A. CROWLEY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 1961.

Decided April 3, 1961.

Daniel J. Hourihan, Boston, Joseph A. Crowley, for plaintiff.

William H. Kerr, Boston, for defendant.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiff's action for a balance of salary from April 2, 1952, to April 4, 1956, was tried on a case stated. The defendant has appealed under G.L. c. 231, § 96, from the order for judgment for the plaintiff in the amount of $1,904.93.

In June, 1952, a classification plan and correlative compensation plan were formulated by the director of civil service for certain civil service positions in the city of Boston under G.L. c. 31, § 2A, par. (b), as amended through St.1951, c. 302 (now further amended by St.1953, c. 286, § 1, and St.1954, c. 295, § 1). The plan was subject to the approval of the civil service commission. The plan classified the plaintiff as senior clerk. At the time he was a civil service employee in the traffic department under the title of 'clerk' and was paid weekly. His service in that position had begun on January 14, 1952. The plan provided that 'On June 23, 1952, each employee affected will be notified of the allocation of his position under the Plan with a notation that he may request the Director to review such allocation if he believes it is not correct. * * * The Director will give a hearing to each employee who files a request for a review of his allocation * * * in order to determine whether any change should be made in the allocation. If any employee * * * is not satisfied with such determination by the Director, he may appeal to the Civil Service Commission for a review of the action taken.'

The notice sent to the plaintiff on June 23, 1952, informed him that 'In order to make the plan effective, this allocation will be recorded in the office of the Division of Civil Service. If, however, within fourteen days from the date of this letter, a request is made for a review of your proposed allocation, such action will be suspended until you are given a hearing thereon. In order to expedite action, your request should include a statement of the reasons for your belief that the allocation is incorrect.' The plaintiff did not within fourteen days from June 23, request a review.

General Laws c. 31, § 2, provides that the commission shall '(b) Hear and decide all appeals from any decision or action of, or failure to act by, the director, upon application of a person aggrieved thereby * * *.' At all times material to the controversy a lawfully promulgated rule of the commission provided that 'The Commission may decline to entertain any appeal from any decision of the Director not received within thirty days of the date of the giving of notice by the Director to the appellant, or in cases of appeals regulated by statute within any lesser period provided therein.'

On October 20, 1954, the plaintiff made written 'appeal' of his allocation under the plan. The director on October 27, 1954, declined to act as 'the time for appeals has elapsed.' The plaintiff on November 15, 1954, appealed to the commission from the director's decision; this appeal was denied on January 27, 1955; the plaintiff thereafter asked reconsideration; on July 27, 1955, after a hearing, the commission 'voted to accept * * * [the] late appeal and to grant * * * [the plaintiff] the allocation of senior traffic investigator * * *.'

No provision of the plan directly or by implication limited the time within which the employee might request a review by the director. The letter of June 23, 1952, was not a part of or prescribed by the plan. The only limitation on the right of review of the allocation lay in the commission's power to reject an appeal from the director's decision not received within thirty days of the date of notice of such decision.

As he is a civil service employee, the plaintiff's right to recover is not affected by the stated fact that in the years 1953 and 1954 'no appropriation was available.' Barnard v. City of Lynn, 295 Mass. 144, 147, 3 N.E.2d 264; Allen v. City of Lawrence, 318 Mass. 210, 215, 61 N.E.2d 133, 160 A.L.R. 486. There is nothing in the city's contention that an additional payment to the plaintiff would be an unconstitutional gratuity. The compensation finally awarded was determined in accordance with the plan and that is the compensation which the city agreed to pay the plaintiff and for which he worked. The failure to seek review for more than two years was not a waiver by the plaintiff of his right to additional compensation. Compare Phillips v. City of Boston, 150 Mass. 491, 23 N.E. 202.

Neither party contends that the decision of the commission was intended to operate as an allocation effective only from and after July 27, 1955, or August 5, 1955. ¹ We, therefore, do not reach the question of the power of the commission to make such an order. In the circumstances we construe the commission's decision as a determination, within its power, that the plaintiff was entitled to an original salary adjustment effective April 2, 1952.

Rule 12 of the plan provides, 'Existing salaries shall be adjusted to the pay schedule effective * * * April 2, 1952, for weekly paid employees subject to the following terms and conditions * * *.' This rule was applicable. Gediman v. Commissioner of Public Works of Boston, 331 Mass. 658, 662-663, 121 N.E.2d 893. The classification plan put 'Senior Clerk' in grade 13, and the pay schedule showed that the maximum rate for this grade was $68. The plaintiff immediately prior to April 2, 1952, had been paid $68.29 and this latter amount became his compensation as senior clerk under Rule 12(g) which provides, 'The compensation of any employee shall not, by reason of the establishment of the Compensation Plan, be reduced below that payable to him on April 2, 1952 * * *.' The plaintiff was paid at the rate of $68.29 through August 4, 1955.

The plaintiff in April, 1952, had more than twenty years' service, having been a full time employee since March 1, 1929. Therefore, under Rule 12(a) read with Rule 5(a), he was entitled to compensation from and after April 2, 1952, in the classification of senior traffic investigator (grade 17) at not less than the rate shown in column III of the schedule, that is $70.50.

Rule 12(a) ² also provides a longevity increment for the starting pay in the classification, determined by deeming the number of years served in the position 'in which he was serving immediately prior to his classification' as though 'served after such classification' (emphasis supplied). There is some basis for construing the date of 'classification' as the date subsequent to April 2, 1952, at which classification was complete under the evolving plan. Rule 12(a) uses the date of March 31, 1952, only for determining the length of service with the city. See also a letter of the director of September 19, 1952, to the traffic commissioner, which recognizes 'a change is status * * * [taking] place since the allocation of the position.' But whatever the precise meaning, we think that the date of 'classification' cannot reasonably be construed as later than December 3, 1952, on which date 'the defendant established, effective as of April 2, 1952, a...