Milano v. Hingham Sportswear Co., Inc.

• Decision Date: 13 November 1974
• Citation: 366 Mass. 376,318 N.E.2d 827
• Parties: , 75 Lab.Cas. P 53,511 Edward MILANO et al. v. HINGHAM SPORTSWEAR CO., INC. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 827

318 N.E.2d 827

366 Mass. 376, 75 Lab.Cas. P 53,511

Edward MILANO et al. v.HINGHAM SPORTSWEAR CO., INC. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 19, 1974.

Decided Nov. 13, 1974.

Martin S. Cosgrove, Quincy, for defendants.

John McMahon, Boston, for plaintiffs.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and WILKINS, JJ.

WILKINS, Justice.

The individual defendant, Peter Bruzzese(Bruzzese), appeals from a final decree which adjudged him guilty of contempt and directed him to pay specific amounts to named persons or for specific purposes.¹

In August, 1972, an order was entered in the Superior Court confirming an arbitration award against the corporate defendant.The arbitration award directed the reinstatement of five employees with retroactive pay and other benefits.Bruzzese was not a party to the collective bargaining agreement, and the arbitrator made no determination against him.

In October, 1972, a petition for attachment for contempt was filed, seeking relief against the corporate defendant and Bruzzese.An order of notice was issued returnable on November 1, 1972, in the first session without jury in Suffolk county.On November 1, 1972, the following order was entered by the judge: 'After hearing the arguments of counsel, defendantsHingham Sportswear Co., Inc. and Peter Bruzzese are hereby adjudged in contempt.It is further continued to November 15, 1972, for the purpose of assessing fines.'The matter subsequently was continued to November 22, when new counsel for the defendants unsuccessfully moved to vacate the finding of contempt and for a new hearing.On that day, an interlocutory order was entered stating that each defendant was guilty of contempt and appointing a special master to determine the amounts owing pursuant to the arbitration award.The report of the special master was filed in December, 1972, and in March, 1973, after confirmation of that report, the final decree was entered from which Bruzzese appeals.No request for a report of material facts was made by the defendants.

Bruzzese argues that he did not have an evidentiary hearing on the petition for attachment for contempt and that constitutionally he was entitled to one as a matter of due process of law.He points to the fact that the determination of contempt was based on 'arguments of counsel' in the first session without jury in Suffolk County, commonly known as the motion session.Bruzzese also contends that the arbitration award did not apply to him, that he had no duty to carry out its terms and that the final decree adjudging him in contempt should not have directed him to satisfy the obligations of the arbitration award.

Several principles concerning contempt proceedings are not in dispute here.An order confirming an arbitration award may be enforced 'as any other judgment or decree.'G.L. c. 150C, § 13, inserted by St.1959, c. 546, § 1.A petition for civil contempt, therefore, was an appropriate avenue for the plaintiff to follow.Civil contempt will not be decreed if a defendant is unable to comply with the court's order to pay a sum of money.Crystal, petitioner, 330 Mass. 583, 588, 116 N.E.2d 255(1953).SeeSodones v. Sodones, --- Mass. ---, 314 N.E.2d 906(1974), and cases cited.Although not named in an order against a corporation, a corporate agent may be held in contempt of that order if he was responsible for the acts or inaction of the corporation which constituted a violation of the court order.SeeCommonwealth v. Hudson, 315 Mass. 335, 347, 52 N.E.2d 566(1943);John Bath & Co. Inc. v. Commonwealth, 348 Mass. 78, 83, 202 N.E.2d 249(1964), cert. den.380 U.S. 977, 85 S.Ct. 1340, 14 L.Ed.2d 271(1965);Wilson v. United States, 221 U.S. 361, 376, 31 S.Ct. 538, 55 L.Ed. 771(1911);Parker v. United States, 126 F.2d 370, 379(1st Cir.1942).A contempt proceeding must satisfy the requirements of due process, including the right to an evidentiary trial on the allegations of the petition for attachment for contempt.SeeSodones v. Sodones, supra, --- Mass. at ---, 314 N.E.2d 906, and cases cited.However, where the record fails to show a denial of due process in contempt proceedings, this court will not infer such a violation.Sodones v. Sodones, supra, at ---, 314 N.E.2d 906.A defendant in a contempt proceeding may, of course, waive his right to an evidentiary trial.SeeZobel v. People ex rel. Kyle, 49 Colo. 142, 147, 111 P. 846(1910);Matter of Westminster RealtyCorp., 123 App.Div.(N.Y.) 797, 800,108 N.Y.S. 551(1908);State ex rel. La Follett v. La Follett, 132 Ore. 257, 265, 284 P. 283(1930).Such a waiver may result, in effect, from a failure to assert rights in the trial court in a manner which permits effective appellate review.SeeYates v. United States, 316 F.2d 718, 725(10th Cir.1963).

Applying these principles to the facts of this case, ...