Wolf v. Commissioner of Public Welfare

• Decision Date: 28 March 1974
• Citation: 2 Mass.App.Ct. 812,308 N.E.2d 920
• Parties: Lorraine E. WOLF v. COMMISSIONER OF PUBLIC WELFARE.
• Court: Appeals Court of Massachusetts

Page 920

308 N.E.2d 920

2 Mass.App.Ct. 812

Lorraine E. WOLF v. COMMISSIONER OF PUBLIC WELFARE.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 20, 1974.

Decided March 28, 1974.

Richard A. Cohen, Dorchester (Jeffrey W. Kobrick, Boston, with him), for plaintiff.

Nicholas P. Arenella, Asst. Atty. Gen., for defendant.

Before ROSE, GOODMAN and GRANT, JJ.

RESCRIPT.

In the opinion of a majority of the court (see Rule 1:18 of the Appeals Court) ¹ this 'Bill in Equity for Declaratory and Injunctive Relief' was properly dismissed for its failure to set forth an 'actual controversy' within the meaning of G.L. c. 231A, § 1, or to suggest how a grant of the declaratory relief prayed for would 'remove an uncertainty' within the meaning of G.L. c. 31A, § 2. See Poremba v. Springfield, 354 Mass. 432, 435, 238 N.E.2d 43 (1968); Greenberg v. Assessors of Cambridge, Mass. (1971) 275 N.E.2d 149. ^a Even if the bill had complied with either of the sections cited, it contained no allegation which would have required the court to grant the injunctive relief against a public officer which was specifically prayed for. See Times Film Corp. v. Commissioner of Pub. Safety, 333 Mass. 62, 63, 127 N.E.2d 893 (1955), and the cases cited therein; contrast Board of Health of Woburn v. Sousa, 338 Mass. 547, 553, 156 N.E.2d 52 (1959). The final decree is to be modified to provide that the dismissal is without prejudice and, as so modified, is affirmed. See Backman v. Commonwealth, Mass.App.Ct. (1973), 302 N.E.2d 924.

So ordered.

1 Justice Goodman dissenting on the basis of Price v. Price, 341 Mass. 390, 393--394, 170 N.E.2d 346 (1960); Woods v. Newton, 349 Mass. 373, 378--379, 380, 208 N.E.2d 508 (1965); Banner v. Smolenski, 315 F.Supp. 1076, 1079, 1079--1080 (D.Mass.1970); and Like v. Carter, 448 F.2d 798, 804, 805 (8th Cir. 1971).

a. Mass.Adv.Sh. (1971) 1583, 1584--1585.