LORRAINE E. WOLF vs. COMMISSIONER OF PUBLIC WELFARE.

LORRAINE E. WOLF vs. COMMISSIONER OF PUBLIC WELFARE.

2 Mass. App. Ct. 812

March 28, 1974

In the opinion of a majority of the court (see Rule 1:18 of the Appeals Court, 1 Mass. App. Ct. 892 [1972]) [Note 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, Section 1, or to suggest how a grant of the

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declaratory relief prayed for would "remove an uncertainty" within the meaning of G. L. c. 231A, Section 2. See Poremba v. Springfield, 354 Mass. 432 , 435 (1968); Greenberg v. Assessors of Cambridge, 360 Mass. 418 , 420-421 (1971). 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 (1955), and the cases cited therein; contrast Board of Health of Woburn v. Sousa, 338 Mass. 547 , 553 (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, 1 Mass. App. Ct. 851 (1973).

So ordered.

FOOTNOTES

[Note 1] Justice Goodman dissenting on the basis of Price v. Price, 341 Mass. 390 , 393-394 (1960), Woods v. Newton, 349 Mass. 373 , 378-379, 380 (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).