Rollins Environmental Services, Inc. v. Superior Court

• Citation: 330 N.E.2d 814,368 Mass. 174
• Parties: ROLLINS ENVIRONMENTAL SERVICES, INC. v. . Supreme Judicial Court of Massachusetts, Suffolk
• Decision Date: 19 June 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 814

330 N.E.2d 814

368 Mass. 174

ROLLINS ENVIRONMENTAL SERVICES, INC.

v. SUPERIOR COURT.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1975.

Decided June 19, 1975.

Edward C. Donlan, Wellesley, for petitioner.

Francis X. Bellotti, Atty. Gen., Danielle E. deBenedictis and Michael Eby, Asst. Attys. Gen., for respondent.

Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

This purports to be an appeal by the plaintiff Rollins Environmental Services, Inc. (Rollins), from an order of a single justice of this court denying its petition ¹ 'to correct and prevent an (alleged) error and abuse consisting of the wrongful denial' by a judge of the Superior Court of the plaintiff's motion for summary judgment in an action pending in that court. The petition denied asked for relief under this court's supervisory powers under G.L. c. 211, § 3, or, in lieu thereof, for relief under G.L. c. 231, § 118, as appearing in St.1973, c. 1114, § 202.

Whether the petition be treated as seeking relief under G.L. c. 211, § 3, or under G.L. c. 231, § 118, it was properly denied; and if it is treated as seeking relief under the latter statute, the order of denial was interlocutory and the appeal therefrom is not properly before us at this time.

The petition which was denied by the single justice stemmed from the following proceedings. Rollins brought an action in the Superior Court against Montvale Laboratories, Inc. (Montvale), and certain of Montvale's officers, asserting in 'Claim One' of its complaint that Montvale owed it $12,784.54 according to an account annexed to the complaint, and in 'Claim Two' of the complaint that Montvale's officers and directors owed it the same $12,784.54. Montvale filed an answer admitting the allegations of 'Claim One,' denying liability by it ² on 'Claim Two,' and asserting four counterclaims, all allegedly accruing after the date of the two Rollins claims. In its first counterclaim Montvale alleged that Rollins, 'in violation of its obligation not to compete with the defendant (Montvale), solicited and obtained orders from one or more of the defendant Montvale's customers to its damage.' This counterclaim, fairly read, appears to allege a breach of a covenant in the same contract as that on which the two claims by Rollins are based. Montvale's second counterclaim seeks recovery of $1,500,000 for Rollins's alleged violation of the Sherman Antitrust Act, its third seeks recovery in the same amount for Rollins's alleged conduct in restraint of trade, and its fourth seeks recovery in the same amount for Rollins's alleged use of its monopolistic domination of the New England market in Montvale's line of business for purposes of price discrimination against Montvale.

Rollins filed a motion in the Superior Court 'under Rules 12(c) and 56 that Judgment be entered against Defendant Montvale . . . on Claim One of the Complaint in the amount of $12,784.54, with interest and costs, said Defendant in its Answer thereto having admitted the allegations contained in said Claim One.' After a hearing on the motion, a judge of the Superior Court entered the following order thereon on November 19, 1974: 'Motion for judgment on the pleadings and/or summary judgment against Deft/Montvale Laboratories, Inc. Denied.' ³

After the denial of its motion for summary judgment on Claim One, Rollins, on December 16, 1974, filed its petition with the single justice as described in the first paragraph of this opinion. The matter was heard on January 8, 1975, on the return of the order of notice issued thereon, and on January 9, 1975, the petition was denied by an order of the single justice. Rollins claimed an appeal from that order to the full court. For the several reasons discussed below, we hold that the appeal is not properly before us, and that therefore it must be dismissed.

1. Before implementation of the new Massachusetts rules regulating civil and appellate procedure, it was the settled law, established by a long line of decisions of this court, that an order denying a motion for summary judgment under G.L. c. 231, § 59, was an interlocutory order, that it was not an 'order decisive of the case' within the meaning of G.L. c. 231, § 96, and that no appeal from such an order could be entered for review by an appellate court until the case was in all other respects ripe for final disposition in the trial court. Lawrence v. Old Silver Beach, Inc., 303 Mass. 377, 378, 21 N.E.2d 956 (1939). Old Mill Point Club, Inc. v. Paine, 308 Mass. 505, 506, 33 N.E.2d 257 (1941). Crandall Dry Dock Engrs., Inc. v. Gloucester Marine Rys., 334 Mass. 704, 135 N.E.2d 12 (1956). Rudnicki v. Hearst Corp., 355 Mass. 800, 247 N.E.2d 698 (1969). In Bean v. 399 Boylston Street, Inc., 335 Mass. 595, 596, 141 N.E.2d 363 (1957), dealing with an attempted appeal from the denial of a motion to dismiss an action at law, we said: 'The case is prematurely here. By G.L. . . . c. 231, § 96, 'no appeal or exception shall be entered in the supreme judicial court until the case is in all other respects ripe for final disposition by the superior court.' . . . It is a principle of general application that 'this court cannot be required to deal with cases in interlocutory stages, except where the trial judge has exercised his discretion to that end by reporting the action taken by him under G.L. . . . c. 231, § 111, or in equity under G.L. . . . c. 214, § 30. . . . In the absence of a report by the trial judge the proper course is to proceed in accordance with his orders until the case is ready for final disposition.' . . . (T)he denial (of the motion to dismiss) is not immediately reviewable.' See Redfield v. Abbott Shoe Co., 335 Mass. 208, 209, 139 N.E.2d 391 (1957); Orasz v. Colonial Tavern, Inc., --- Mass. ---, --- - --- ^a, 310 N.E.2d 311 (1974); Giacobbe v. First Coolidge Corp., --- Mass. ---, --- - --- ^b, 325 N.E.2d 922 (1975); Foreign Auto Import. Inc. v. Renault Northeast, Inc., --- Mass. ---, --- - --- ^c, 326 N.E.2d 888 (1975).

Neither the Massachusetts Rules of Civil Procedure nor the Massachusetts Rules of Appellate Procedure changed the previous settled law that unless a judge making an interlocutory order reports it to an appellate court for review, the order is not subject to appellate review until the case is an all other respects ripe for final disposition in the trial court. Foreign Auto Import, Inc. v. Renault Northeast, Inc., supra, --- Mass. at --- - --- ^d, 326 N.E.2d 888 (1975). In Albano v. Jordan Marsh Co., --- Mass. ---, --- ^e, 327 N.E.2d 739, 741 (1975), we said: 'Whether governed by the former law or by the more recent Massachusetts Rules of Civil Procedure and Massachusetts Rules of Appellate Procedure a litigant is not entitled to piecemeal appellate review of unreported interlocutory orders or rulings of a trial judge by the full court of this court or of the Appeals Court.'

2. It is equally the settled Federal law that an order denying a motion for summary judgment under the Federal Rules of Civil Procedure is interlocutory and generally nonappealable. Moore's Federal Practice, par. 56.21(2) (2d ed. 1974). Switzerland Cheese Ass'n, Inc. v. E. Horne's Mkt. Inc., 385 U.S. 23, 24--25, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966). Valdosta Livestock Co. v. Williams, 316 F.2d 188 (4th Cir. 1963). Heron v. City & County of Denver, Colo., 317 F.2d 309, 311 (10th Cir. 1963). Chappell & Co. v. Frankel, 367 F.2d 197, 199 (2d Cir. 1966). Duke v. Gardner, 387 F.2d 336, 337 (5th Cir. 1967). Alart Associates, Inc. v. Aptaker, 402 F.2d 779, 780--781 (2d Cir. 1968). Madry v. Sorel, 440 F.2d 1329, 1330 (5th Cir. 1971). Clark v. Kraftco Corp., 447 F.2d 933, 934 (2d Cir. 1971). Gialde v. Time, Inc., 480 F.2d 1295, 1299 (8th Cir. 1973).

'It is a well-recognized rule that the adjudged construction of a statute by a foreign state or country, where it was enacted, is to be given to it, when it is afterwards passed by the legislature of another state or country.' Pratt v. American Bell Tel. Co., 141 Mass. 225, 227, 5 N.E. 307, 309 (1886). Thibault v. Lalumiere, 318 Mass. 72, 75, 60 N.E.2d 349 (1945). On several occasions this court has applied this rule in construing language first appearing in United States statutes and later enacted by our Legislature. Poirier v. Superior Court, 337 Mass. 522, 527, 150 N.E.2d 558 (1958). JONES V. DEMOULAS SUPER MKTS., INC., --- MASS. --- , 308 N.E.2D 512 (1974)^F.

This court having adopted comprehensive rules of civil procedure in substantially the same form as the earlier Federal Rules of Civil Procedure, the adjudged construction theretofore given to the Federal rules is to be given to our rules, absent compelling reasons to the contrary or significant differences in content. See Giacobbe v. First Coolidge Corp., --- Mass. ---, --- ^g, 325 N.E.2d 922 (1975). We conclude, accordingly, that the order of the judge denying Rollins's motion for summary judgment on Claim One was an interlocutory order which, not having been reported by the judge, is not presently reviewable by this court.

3. Rollins, apparently recognizing that, as we have concluded, it is not entitled as matter of right to appellate review of the order denying its motion for summary judgment, resorted to the two pronged petition heard by the single justice. One prayer of the petition is that the court invoke its powers under G.L. c. 211, § 3 as amended by St.1973, c. 1114, § 44, to superintend 'all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided.' This extraordinary power has been sparingly exercised, and it 'should be exercised only in exceptional circumstances, when necessary to protect substantive rights.' HEALY V. FIRST DIST. COURT OF BRISTOL, --- MASS. --- , 327 N.E.2D 894, 895 (1975)^H. This case does not present such circumstances. Here no substantive rights of Rollins are at stake. Although the judge denied its ...