Town of Lexington v. Town of Bedford

• Decision Date: 31 July 1979
• Parties: TOWN OF LEXINGTON v. TOWN OF BEDFORD. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 321

393 N.E.2d 321

378 Mass. 562

TOWN OF LEXINGTON v. TOWN OF BEDFORD. ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 2, 1979.

Decided July 31, 1979.

Douglas A. Randall, Quincy, for defendant.

Katherine Hendricks, Cambridge, for plaintiff.

Samayla D. Deutch, Sp. Town Counsel, and Paula Bonnell, Boston, for the town of Concord, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

LIACOS, Justice.

This is an action under G.L. c. 32, § 59A, ² by which the town of Lexington seeks reimbursement from the town of Bedford for a portion of a pension paid by Lexington pursuant to the Veterans' Retirement Act (Act). G.L. c. 32, §§ 56-60. Lexington's claim rests on the undisputed fact that a number of the years of governmental service necessary to qualify the veteran for rights under the Act accrued while he was in the employ of Bedford. In the proceedings below, Lexington moved for summary judgment. A judge of the Superior Court allowed the motion and entered judgment ordering Bedford to pay $10,798.72, with interest and costs. ³ Bedford took an appeal to the Appeals Court, which comes before us by our granting of Lexington's application for direct appellate review. We affirm.

Under the Veterans' Retirement Act, a veteran who entered governmental service before June 30, 1939 (G.L. c. 32, § 60), and who remains in such service for a certain number of years (G.L. c. 32, §§ 56, 57, 58), is eligible to receive a pension from the governmental unit from which he retires, at no cost to himself. Sections 56 through 59 are not, however, mandatory for all governmental units in the Commonwealth but rather are only "in effect in any county, city, town or district which accepted them." G.L. c. 32, § 60, as amended through St.1973, c. 207, § 7. Statute 1968, c. 174, an act of the Legislature, provided that notwithstanding the version of § 60 then in force, §§ 56-59, inclusive, "shall be in effect in any town which accepts said sections prior to January first, nineteen hundred and seventy by majority vote of the selectmen." By majority vote of its selectmen, Lexington accepted the relevant provisions of the statute on February 19, 1969.

On July 31, 1974, Dr. Ado Commito retired from his post as assistant superintendent of the Lexington public schools. Thereafter, Lexington began to pay him pension benefits under G.L. c. 32, § 58B. Section 58B enables a veteran, who is eligible under § 58 for a pension (seventy-two per cent of the highest annual rate of compensation for the grade held at retirement), to receive a lesser yearly amount in his lifetime with the provision that on the veteran's death, his widow would receive two-thirds of the lesser amount for life. At the time of his retirement, Dr. Commito's annual salary was $30,437. During the remaining portion of 1974, and the calendar years 1975 and 1976, he was paid pension amounts of $7,062.40, $16,949.77, and $17,099.77, respectively.

Dr. Commito's eligibility for § 58 benefits rests first on the fact that he is a veteran under G.L. c. 32, § 1: he was in active wartime service in the army from December 4, 1942 to March 5, 1946, received numerous decorations, including a Purple Heart medal, and was honorably discharged. It was determined also by the Lexington board of retirement that he had engaged in governmental service in the Commonwealth for at least "a total period of thirty years in the aggregate" (G.L. c. 32, § 58), the earliest service having occurred before June 30, 1939. The service included employment from September 1, 1938 to March 10, 1960, as a teacher, then as primary school principal in the Everett public school system; employment from March 10, 1960 to September 1, 1969, as principal and then as assistant superintendent in the Bedford public school system; and finally employment as assistant superintendent for the Lexington public schools from September 1, 1969 to July 31, 1974.

On August 28, 1974, an actuary in the division of insurance of the Department of Banking and Insurance determined that 26.28% Of Dr. Commito's pension was allocable to Bedford. Based on this determination, the secretary of the Lexington board of retirement sent notice on January 30, 1975, to the treasurer of Bedford that $1,856 was due as reimbursement for Bedford's share of Dr. Commito's 1974 pension payment. On January 23, 1976, the secretary sent notice to the treasurer that $4,454.90 was due as Bedford's share of Dr. Commito's 1975 pension payment. On January 14, 1977, the secretary sent notice that $4,493.82 was due as Bedford's share of Dr Commito's 1976 pension payment. At no time has Bedford reimbursed Lexington for any portion of Dr. Commito's pension.

1. Preliminary Issues.

Before us, Bedford raises three preliminary issues any of which, if meritorious, would be dispositive of this appeal.

Bedford challenges the judge's ruling on Lexington's motion for summary judgment on the ground that the case presented two genuine issues of material fact. It first claims that an issue of fact was raised regarding the actuary's procedure for determining the extent of Bedford's reimbursement obligation. Section 59A provides that one governmental unit shall reimburse another for "such portion of the pension or allowance as shall be computed by the actuary in the division of insurance." Bedford objects to the propriety of the method used by the actuary to determine Bedford's portion of Dr. Commito's pension. There is no dispute, however, as to how the actuary made his determination. Bedford itself recognizes that the computation was based on the number of years worked. Neither Bedford nor Lexington presented any evidence that the actuary may have considered other factors. Whether the factors actually considered were inappropriate or inadequate under the statute present only a question of law.

Bedford claims that an issue of fact was raised regarding Lexington's compliance with the notice provisions of § 59A. As to two of its three reimbursement demands, Lexington sent notice after January 15, the deadline set by statute. On all three occasions, notice was sent by the secretary of the retirement board rather than by the town treasurer as required. Bedford acknowledges these facts and argues that these deficiencies in notice ought to defeat Lexington's claim. Whether they do, is on this record a question of law. These matters raised no genuine issue of material fact.

Bedford claims also that the arbitrariness of the actuary's computation and the deficiencies in notice relieve it as matter of law of the obligation to reimburse Lexington for pension payments made in 1974, 1975, and 1976. Bedford challenges the computation on the ground that § 59A contains no standards to guide the actuary in the discharge of his duty and constitutes an unconstitutional delegation of powers. Regarding notice, Bedford asserts that the elements of the notice provision are mandatory, not directory, and that Lexington's failure to comply with the time and manner requirements must defeat its claim.

Lexington maintains that neither the computation nor the notice issue is properly before us, as it was not raised below. Bedford challenged the computation in the Superior Court on the ground that it was made in the absence of rules and regulations by the Commissioner of Insurance. There is no suggestion of a constitutional attack on the statute itself. Bedford first challenged the time and manner of notice in a motion to amend its answer filed one year and three months after the original answer and ten days after the judge granted Lexington's motion for summary judgment. The judge denied the motion to amend. Bedford does not contest this ruling ⁴ but relies instead on the fact that in his memorandum regarding final judgment, the judge referred to the substance of the amended answer, and allegedly indicated thereby that the issue was before the court. The record indicates that the reference occurred in the context of Lexington's request for interest under G.L. c. 231, § 6C, as appearing in St.1973, c. 1114, § 156. As noted in the memorandum of decision, § 6C provides that in "all actions based on contractual obligation" the judgment shall include interest from "the date of the breach or demand," if established, and, if not, from "the date of the commencement of the action." The judge held that the letters sent by the secretary of the Lexington board of retirement were "sufficient demand to begin the accrual of interest." Whether notice was sufficient to begin accrual of interest under G.L. c. 231, § 6C, is distinct from whether it was sufficient to entitle Lexington to rights under G.L. c. 32, § 59A. In sum, then, neither the computation nor the notice issue was presented below as it is here and, therefore, neither need be considered on appeal. See, e. g., Royal Indem. Co. v. Blakely, 372 Mass. 86, 87-88, 360 N.E.2d 864 (1977).

2. Obligation to Reimburse Under G.L. c. 32, § 59A.

It is undisputed that Bedford has never accepted the Veterans' Retirement Act. Based on this fact, Bedford advances two arguments for the proposition that it has no obligation to reimburse under § 59A. First, it contends that Dr. Commito is not eligible for a veteran's pension, and second, even if he were, a nonaccepting town is not subject to § 59A. The first argument looks to provisions of the Act other than § 59A; the second depends on the construction of § 59A within the context of the Act. Based on the pertinent statutory language and the policy of the Act, we find neither argument persuasive.

A. It is clear that a governmental unit can have no obligation to reimburse another unit under § 59A unless the pension, on which the claim for reimbursement rests, is paid to a claimant eligible under the Act. See G.L. c. 40, § 53; Jones v. Natick, 267 Mass. 567, 166 N.E. 754 (1929). Section 58, as amended through St.1973, c. 207, § 3, the eligibility...