Koonce v. Aldo Realty Trust

• Decision Date: 01 August 1979
• Citation: 8 Mass.App.Ct. 199,392 N.E.2d 549
• Parties: Linda KOONCE v. ALDO REALTY TRUST et al. 1
• Court: Appeals Court of Massachusetts

Page 549

392 N.E.2d 549

8 Mass.App.Ct. 199

Linda KOONCE v. ALDO REALTY TRUST et al. ¹

Appeals Court of Massachusetts, Hampden.

Argued April 25, 1979.

Decided Aug. 1, 1979.

William F. Malloy, Boston, for plaintiff.

Before ARMSTRONG, BROWN and KASS, JJ.

KASS, Justice.

Once again we are confronted with a case in which no judgment was ever entered as required by Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1976), and the appellate procedure is, therefore, premature. Under such circumstances we are constrained to dismiss the appeal. Tisei v. Building Inspector of Marlborough, 5 Mass.App. 328, --- ^A, 363 N.E.2d 262 (1977). Levy v. Bendetson, 5 Mass.App. ---, --- - --- ^B, 379 N.E.2d 1121 (1978). Harrow v. Board of Appeals of Pittsfield, --- Mass.App. --- ^C, 391 N.E.2d 276 (1979). Smith & Zobel, Rules Practice §§ 58.5, 58.6 (1977).

Because the case has been briefed and argued we will express our views, and the plaintiff may, in light of our opinion, choose to move for a rehearing and reconsideration of the defendants' motion to dismiss the action. That motion was allowed after trial in the court below and the judge made findings of fact.

The controversy revolves around whether the defendant Aldo Realty Trust (landlord) and the defendant Irving Feldman, a constable (constable), lawfully employed a summary process execution issued by the Housing Court of the County of Hampden. The plaintiff has sought a declaratory judgment concerning this issue.

From the Housing Court judge's findings of fact, which we must accept unless clearly erroneous, Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), ² and certain uncontroverted pleadings we learn that the plaintiff was a tenant of the landlord's. She fell behind in rent payments, and the landlord, after some months, brought summary process proceedings. An execution issued giving the landlord possession, rent arrearages, and costs. The landlord delivered the execution to the constable for the purpose of regaining possession of the apartment in which the plaintiff lived and to collect the dollar amounts set out in the execution, one infers by levying on those items of the plaintiff's personal property which were not exempt from execution under G.L. c. 235, § 34, as amended through St.1975, c. 501, §§ 4, 5, 6, 7 and 8.

In order to obtain possession, it was open to the constable, acting under G.L. c. 239, § 4, to remove the personal property in the apartment, place it on the sidewalk, and thereafter (assuming the dispossessed tenant does not then and there take charge of the belongings) remove it to storage for the benefit of the owners. The constable may sell property at public auction to satisfy the judgment in the manner prescribed by G.L. c. 235, §§ 36 through 45. What the constable (inferably from the record at the landlord's instruction) did instead in this case was to remove the following items of highly portable equipment: three fans; a stereo system and record collection; a digital clock radio; a double bed quilt; an iron; and a portable tape recorder, ³ and to leave behind a note to the effect that execution for possession would be carried out if the rent were not paid up. Much bargaining ensued; the constable never did come back; and the plaintiff did not bring her rent current. The items of personal property which the constable had removed were, after some months, returned.

It is inescapable from the record that the constable, acting in concert with the landlord, used the execution as an instrument of persuasion rather than a means of satisfaction. A constable holds a public office (see G.L. c. 41, §§ 91 through 95) and is not a negotiating agent for a private party. The conduct of the constable lends itself to, and in this case smacks of, a harassing and coercive kind of debt collecting now proscribed under G.L. c. 93, § 49, which makes such conduct actionable under G.L. c. 93A. See Baldassari v. Public Fin. Trust, 369 Mass. 33, 337 N.E.2d 701 (1975).

It was the duty of the constable, once the execution was placed in his hands, to remove all the plaintiff's possessions, to sell in the statutory manner (fourteen days after seizure) such of them as were necessary to satisfy the execution, and to make all the rest of the plaintiff's possessions available to her. See McGonigle v. Belleisle Co., 186 Mass. 310, 313, 71 N.E. 569 (1904). We have considered whether the symbolic method...