Davidson v. Com.

• Decision Date: 31 October 1979
• Citation: 395 N.E.2d 1314,8 Mass.App.Ct. 541
• Parties: Norman DAVIDSON, trustee, v. COMMONWEALTH.
• Court: Appeals Court of Massachusetts

Page 1314

395 N.E.2d 1314

8 Mass.App.Ct. 541

Norman DAVIDSON, trustee, v. COMMONWEALTH.

Appeals Court of Massachusetts, Essex.

Argued March 19, 1979.

Decided Oct. 31, 1979.

Richard H. Gens, West Newton, for plaintiff.

Elizabeth Bowen Donovan, Asst. Atty. Gen., for the Commonwealth.

ROSE, Justice.

The plaintiff ¹ brought an action in the Superior Court seeking damages for an alleged taking of its property by the Commonwealth. The judge allowed the defendant's motion to dismiss the action (Mass.R.Civ.P 12(b)(6), 365 Mass. 755 (1974)), ² and the plaintiff appealed. We affirm.

The relevant undisputed facts, taken from the complaint, exhibits appended thereto, and affidavits submitted by the parties in connection with the defendant's motion to dismiss, are as follows. On September 14, 1976, the Commissioner of Public Health (Commissioner) informed the Governor by letter that Woodland Nursing Home (Woodland) in Methuen (a facility owned and operated by the corporation represented by the plaintiff in this action) had announced that it would not guarantee payment to its staff after 3:00 P.M. on September 14, 1976, that families and relatives of certain patients at Woodland had been advised by the owners to remove the patients from the facility by the evening of September 14, and that the Department of Public Welfare could not make any emergency payments to Woodland. The Commissioner stated that removal of patients from Woodland would constitute an immediate danger to their health because of the lack of alternate nursing home facilities in the Methuen area and the fact that mortality of patients had been shown, in studies available to the Department of Public Health, to increase in the event of enforced transfer. The Commissioner requested the Governor to declare a public health emergency "so the Department of Public Health may take the necessary steps to provide care for the patients in the Woodland Nursing Home."

Pursuant to G.L. c. 17, § 2A, inserted by St.1965, c. 473, ³ the Governor declared on September 14, 1976, that "an emergency exists which is detrimental to the public health at the Woodland Nursing Home in Methuen." Following the Governor's declaration, the Commissioner issued an order on the same day for the protection of patients at Woodland. The order provided that the Department of Public Health "is assuming responsibility for the care of the patients at the Woodland Nursing Home" and that employees of Woodland were to report for their regularly scheduled work shifts and "will be reimbursed by the Department . . . for services rendered at their usual rates of pay." The order also provided that the owners of Woodland were not to interfere with the access of any representative of the Department of Public Health to the home and were not to take any action to cause patients to be transferred from Woodland. ⁴ In an order published on September 16, 1976, the Commissioner announced that the Commonwealth "will assure payment for all properly authorized supplies and services purchased for (Woodland) after 6:00 p. m., September 14, 1976."

In an affidavit submitted by the plaintiff in opposition to the defendant's motion to dismiss, the former president of Woodland alleged that on September 14, 1976, and prior thereto, patient care at Woodland, in spite of a shortage of funds, was adequate and uninterrupted, and that there was "no danger to the health and welfare of patients, thus no emergency situation existed on September 14. . . ." He alleged that "(t)here was, as of August 17, 1976, a shortage of funds to the nursing home created by failure of the Commonwealth to pay for current services and monies owed, totalling $242,096.34" and that this shortage of funds precipitated actions by Woodland to reduce operating costs "by asking patients' relatives to take back whereever possible those patients who were medically capable of returning home and, to e(n)sure that all patients not medically capable of transfer be protected to the fullest by present staff, who agreed to stay on, and if necessary, with added hel(p)." The former president stated further that at no time did Woodland's owners consider moving patients whose health would be endangered by the trauma of transfer. Only patients in "Light Care Level III . . . not exposed to medical danger by transfer, were asked to return home."

Based on the events described above, the plaintiff brought this action for recovery of damages resulting from the "taking" of its property (including land, buildings, equipment and all personal property) by the Commonwealth "pursuant to a Declaration of Emergency by the Governor . . . and an order for the protection of patients by (the) Department of Public Health. . . ." The plaintiff claimed that it had received no compensation for the use of its property or for damages sustained as a result of the taking and had never been given an accounting by the Commonwealth concerning the property or the operation of the nursing home. After a hearing, the judge allowed the defendant's motion to dismiss and entered a judgment dismissing the action.

In reviewing the judge's action in the present case, we apply the standard that summary judgment "shall be rendered forthwith if the pleadings . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). We are mindful of the Supreme Judicial Court's approval of the use of summary procedures when clearly justified as " 'an excellent device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved.' " Community Natl. Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877, 879 (1976), quoting from 3 Barron & Holtzoff, Federal Practice and Procedure (Rules ed.) § 1231, at 96 (Wright rev. ed. 1958). After review of the materials before us, viewing the evidence in the light most favorable to the plaintiff, we conclude that the present case is an appropriate one for summary procedure.

The underlying issue is whether the action of the Commonwealth in taking over operation of Woodland during the pendency of a public health emergency declared by the Governor pursuant to G.L. c. 17, § 2A, constitutes a lawful exercise of the police power as the Commonwealth contends, for which no compensation is required, or a taking of property requiring compensation, as the plaintiff claims. In order to determine whether the plaintiff has a remedy under G.L. c. 79, §§ 10, ⁵ and 14, ⁶ authorizing recovery of damages for injury to property where there has been no formal taking of the property by the government, we must ascertain whether the allegations, in their aspect most favorable to the plaintiff, reveal a genuine issue as to whether the plaintiff's property has been "appropriated to public uses" so that "reasonable compensation therefor" must be provided under art. 10 of the Massachusetts Declaration of Rights. ⁷ Sullivan v. Commonwealth, 335 Mass. 619, 621, 142 N.E.2d 347 (1957).

There is no dispute as to the facts regarding the sequence of events which led to the declaration of emergency; namely, that Woodland had announced that it would no longer guarantee payment to staff as of September 14, 1976, and that certain patients had been asked to leave. Based on the Commissioner's determinations that there were no alternative nursing home facilities available in the area and that the trauma of enforced transfer would be likely to endanger the lives and health of the patients, he requested the Governor to declare an emergency, and, following such declaration, the Department of Public Health took over operation of Woodland. The plaintiff's allegations that patient care up to and including September 14, 1976, despite a shortage of funds, was adequate; that only patients in light care level III who were medically capable of returning home were asked to leave, and that no patients were asked to leave whose health would be endangered by the trauma of transfer; that certain staff members had agreed to stay on (presumably without guarantee of pay) to provide care for remaining patients; and that on September 14 there was no danger to the patients' health and welfare, and thus no emergency at Woodland, do not raise "material" factual issues within the meaning of Rule 56. ⁸ Even though we accept the plaintiff's allegations as true, we find that they have no bearing on the issue of whether the plaintiff is entitled to compensation for a "taking" of its property under G.L. c. 79, § 10. ⁹ The plaintiff has not challenged the constitutionality of c. 17 § 2A, under which statute the emergency was declared by the Governor, or the validity of the Commissioner's actions undertaken in accordance with that statute.

We are of the opinion that the allegations set forth in the complaint, exhibits and affidavits do not disclose a "taking" for which compensation must be paid. The essential distinction between an exercise of the State's eminent domain power which is compensable and an exercise of the police power which is not is that in the exercise of eminent domain a property interest is taken from the owner and applied to the public use because such use is beneficial to the public, while in the exercise of the police power an owner's property interest is restricted or infringed upon to prevent its use in a manner detrimental to the public interest. See Franco-Italian Packing Co. v. United States, 128 F.Supp. 408, 414, 130 Ct.Cl. 736 (1955); 1 Nichols, Eminent Domain § 1.42(2), at 1-123 (rev. 3d ed. 1976). See also Sax, Takings and the Police Power, 74 Yale L.J. 36, 63 (1964). See generally, Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.R. 1165 (1967). To determine...