ATKINSON'S INC., & others vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION; J. & J. ENTERPRISES, INC., intervener.

ATKINSON'S INC., & others [Note 1] vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION; J. & J. ENTERPRISES, INC., intervener.

15 Mass. App. Ct. 325

February 9, 1983 - February 15, 1983

Middlesex County

Present: GRANT, KAPLAN, & GREANEY, JJ.

In a proceeding under G. L. c. 30A, Section 14, for judicial review of a decision by the Alcoholic Beverages Control Commission, a Superior Court order of remand to the Commission for the formulation of entirely new findings and rulings, following the judge's finding of unauthorized ex parte communications between the Commission and counsel for the complainants, was interlocutory and under c. 30A, Section 15, an appeal to this court from the order of remand was premature. [327-330]

CIVIL ACTION commenced in the Superior Court on April 9, 1976.

The case was heard by Mitchell, J.

Evan T. Lawson (Howard J. Wayne & Paul M. Osborne with him) for the plaintiffs.

John P. Graceffa, Assistant Attorney General, for Alcoholic Beverages Control Commission.

GRANT, J. Following the decision in J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. 535 (1976), certain of the plaintiffs in that case filed a complaint in the Alcoholic Beverages Control Commission (commission) in which they charged the plaintiffs herein (plaintiffs) and others with a variety of monopolistic practices and by which they sought (among other relief) revocation of the licenses to operate retail

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liquor stores which had been issued to most of the plaintiffs under G. L. c. 138, Section 15. Following fifteen days of hearings conducted by its then chairman, the commission, acting by the chairman and one of its other then members (Vernon R. Farnsworth, Jr.), [Note 2] rendered a decision adverse to the plaintiffs. They seasonably sought review in the Superior Court under G. L. c. 30A, Section 14.

A judge of that court, acting on the basis of evidence that was put before him by agreement of the parties, found that there had been unauthorized ex parte communications between Farnsworth and special counsel to the commission (Mr. Harold Kowal) on the one hand and counsel for the complainants (Mr. Harold Hestnes) on the other in the course of which "Farnsworth and Kowal provided Hestnes with [a] file [of documents which Farnsworth had obtained from a private source] knowing that it contained information which the complainants did not possess and knowing that the information would help them substantiate their allegations . . . . Neither Farnsworth nor Kowal ever notified [the plaintiffs] of their ex parte contact with Hestnes, nor did they give notice that Farnsworth had obtained the file . . . and turned it over to the complaints . . . ." "[T]he plaintiffs learned about Farnsworth's ex parte contact with Hestnes and his provision of the documents to the complainants" "[t]wo days before the scheduled . . . adjudicatory hearing date." [Note 3]

The judge struck the commission's findings, rulings and order, and remanded the case to the commission (the membership of which had completely changed) for the formulation of entirely new findings and rulings. The order of remand provided that the commission could render its new decision on the basis of the evidence that had already been introduced at the public hearing, together with such new

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evidence as the commission might choose to take. [Note 4] The plaintiffs have appealed, confining their arguments to the proposition that compliance with the mechanics of the order of remand would result in depriving the plaintiffs of procedural due process. [Note 5] Neither the commission nor the intervener has appealed.

The order of remand is purely interlocutory so far as the plaintiffs are concerned. Compare Pollack v. Kelly, 372 Mass. 469 , 475-476 (1977); Brooksbank v. Epstein, 5 Mass. App. Ct. 377 , 378 (1977). The commission points to instances in which we have responded to the traditional abhorrence of piecemeal appellate review (see Pollack, at 470-472 by dismissing appeals from interlocutory orders of remand (see, e.g., Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715 , 719-720 [1974]; Politano v. Selectmen of Nahant, 12 Mass. App. Ct. 738 , 739-740, 746 [1981]) and tempts us to follow that course here. The plaintiffs point to the provisions of G. L. c. 30A, Section 15, as appearing in St. 1973, c. 1114, Section 3, [Note 6] and urge us to resist the temptation.

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The conflicting contentions of the parties require us to consider the history of Section 15. That section, as originally inserted by St. 1954, c. 681, Section 1, read as set out in the margin. [Note 7] In Marlborough Hosp. v. Commissioner of Pub. Welfare, 346 Mass. 737 (1964), the court read the portion of the section which is italicized in n.7 hereof in light of the "finality" stricture of G. L. c. 214, Section 19, as in effect prior to St. 1973, c. 1114, Section 62, [Note 8] and concluded that an order of remand to an administrative officer for a further hearing was interlocutory in nature and would have to await an appeal from any final decree that might ultimately be entered in the Superior Court. See G. L. c. 214, Section 26, as also in effect prior to St. 1973, c. 1114, Section 62. Accordingly, the appeal from the order of remand was dismissed.

The plaintiffs point to the fact that G. L. c. 30A, Section 15, in its present form (n.6 hereof) no longer contains any language comparable to that which has been italicized in n.7 and would have us wish the Marlborough Hosp. case away as some sort of sport in the old equity practice. The difficulty with such wishful thinking is its failure to recognize the fact that the "finality" concept of the old G. L. c. 214, Section 19. which was repealed by St. 1973, c. 1114 ("An Act improving

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the procedure in civil trials and appeals"), Section 62, immediately resurfaced in G. L. c. 231, Section 113, as appearing in Section 202 of the same c. 1114. [Note 9]

We see nothing more to the 1973 amendment of Section 15 than another instance of the many changes in the General Laws which were designed to accommodate the abolition of the procedural distinctions between actions at law and suits in equity which was effectuated by Mass.R.Civ.P. 2, 365 Mass. 733 (1974). See, e.g., Del Duca v. Town Admr. of Methuen, 368 Mass. 1 , 2 n.3 (1975); Boston Edison Co. v. Boston Redevelopment Authy., 374 Mass. 37 , 46-49 (1977); Walker v. Board of Appeals of Harwich, 388 Mass. 42 , 46 n.5, 48, 49 & n.6 (1983). Compare Boston Seaman's Friend Soc. v. Attorney Gen., 379 Mass. 414 , 415-417 (1980). Indeed, a survey of the cases decided under the present Section 15 discloses that the only instances in which either of our appellate courts has entertained an appeal from an order of remand to an administrative agency have been ones in which the order has included a final determination of the rights of an appellant. See Cliff House Nursing Home, Inc. v. Rate Setting Commn., 378 Mass. 189 , 190-191 (1979); Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122 , 137-138 (1982); Blue Moon Saloon, Inc. v. Alcoholic Beverages Control Commn., 11 Mass. App. Ct. 890 , 890-891 (1980). [Note 10] There is no comparable determination of the rights of the plaintiffs in this case.

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As nothing in the Massachusetts Rules of Civil Procedure or in the Massachusetts Rules of Appellate Procedure purports to enlarge the jurisdiction of either of the appellate courts (see Mass.R.A.P. 1[b], 365 Mass. 844 [1974]; Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174 , 178 [1975]), the entry is

Appeal dismissed.

FOOTNOTES

[Note 1] Atlantic Plaza Liquors, Inc., Clark's Liquors, Inc., East Boston Malt Co., Inc., Kappy's Liquors, Inc., Main Street Bottle Store, Inc., Northgate Liquors, Inc., Springdale Liquors, Inc., and Route 114 Liquors, Inc.

[Note 2] The third member had disqualified himself.

[Note 3] No question has been raised as to the accuracy of any of the quoted findings.

[Note 4] Although it is not entirely clear, the judge appears to have contemplated that the commission would follow the procedure authorized by G. L. c. 30A, Section 11 (7), inserted by St. 1954, c. 681, Section 1, for use in cases in which a majority of those who must participate in an official decision have neither heard nor read the evidence. See Board of Appeals of Maynard v. Housing Appeals Comm., 370 Mass. 64 , 66 (1976); Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Commn., 372 Mass. 152 , 156 (1977); New England Tel. & Tel. Co. v. Department of Pub. Util., 376 Mass. 28 , 33 (1978); Arthurs v. Board of Registration in Medicine, 383 Mass. 299 , 315-316 (1981); Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122 , 130 (1982); Brookline v. Commissioner of Dept. of Environmental Quality Engr., 387 Mass. 372 , 393 (1982); School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. 262 , 271-272 (1976); Charlesbank Restaurant, Inc. v. Alcoholic Beverages Control Commn., 12 Mass. App. Ct. 879 , 880 (1981).

[Note 5] The plaintiffs may not have assessed the import of what was said in Fortier v. Department of Pub. Util., 342 Mass. 728 , 733, 735-736 (1961), and in Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122 , 131 (1982).

[Note 6] "The supreme judicial court and the appeals court shall have concurrent jurisdiction to review any proceedings had, determinations made, and orders or judgments entered in the superior court pursuant to section fourteen. The supreme judicial court or the appeals court, subject to the provisions of section thirteen of chapter two hundred and eleven A, may by rule vary the procedure authorized or required for such review upon a finding that the review by the court will thereby be made more simple, speedy and effective." There is no such rule as the statute authorizes.

[Note 7] "The supreme judicial court shall have jurisdiction to review any proceedings had, determinations made and orders or decrees issued in the superior court pursuant to section fourteen in the same manner and to the same extent as in equity suits, so far as the provisions governing equity suits are applicable. The court may by rule vary the procedure authorized or required by this section upon a finding that the review by the court will thereby be made more simple, speedy and effective" (emphasis supplied).

[Note 8] "A party aggrieved by a . . . final decree of the superior court may, within twenty days after the entry thereof, appeal therefrom. An appeal . . . from a final decree of the superior court shall be entered in the supreme judicial court" (emphasis supplied).

[Note 9] "A party aggrieved by a final judgment of the superior court . . . may appeal therefrom to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven A, to the full court of the supreme judicial court" (emphasis supplied). The plaintiffs do not contend that the order of remand in this case constitutes a "final judgment" within the meaning of Section 113, so far as they are concerned, nor could they properly do so. See Pollack v. Kelly, 372 Mass. at 472; Borman v. Borman, 378 Mass. 775 , 779-780 (1979).

[Note 10] As already pointed out, neither the commission nor the intervener has appealed from the action of the Superior Court in setting aside the commission's decision as the prelude to the order of remand.