JOHN A. GLORIOSO vs. RETIREMENT BOARD OF WELLESLEY.

JOHN A. GLORIOSO vs. RETIREMENT BOARD OF WELLESLEY.

401 Mass. 648

November 6, 1987 - February 9, 1988

Norfolk County

Present: HENNESSEY, C.J., LIACOS, NOLAN, LYNCH, & O'CONNOR, JJ.

The Contributory Retirement Appeal Board has no jurisdiction over claims by a veteran for noncontributory retirement benefits pursuant to G. L. c. 32, Section 58. [650-651] Services performed for a town on at least two occasions prior to July 1, 1939, for which the town paid $1.88, constituted "employment" within the meaning of G. L. c. 32, Section 60, so as to qualify a town employee, on his retirement as a military veteran following thirty years' service with the town's fire department, for noncontributory retirement benefits pursuant to G. L. c. 32, Section 58. [651-652]

In the circumstances, this court, concluding that it would be inappropriate to deem as frivolous the appeal taken by a town's retirement board in a proceeding by a town employee to determine his rights under G. L. c. 32, Sections 56-60A, the Veterans' Retirement Act, declined to award additional damages and costs under Mass. R. A. P. 25. [652-653]

CIVIL ACTION commenced in the Superior Court Department on June 24, 1983.

The case was heard by Edward W. Farrell, J., sitting under statutory authority.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Albert S. Robinson, Town Counsel, for the defendant.

Dennis R. Brown for the plaintiff.

LIACOS, J. This is an action for declaratory judgment seeking to determine the rights of the plaintiff, John A. Glorioso, under the Veterans' Retirement Act, G. L. c. 32, Sections 56-60A (1986 ed.). The plaintiff claims eligibility to participate in a noncontributory retirement system under Section 58. This would entitle

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him to recover his contributions to the Wellesley retirement system made during his employment as a firefighter from October 1, 1949, until his retirement on November 7, 1979. See G. L. c. 32, Section 25 (3) (1986 ed.). [Note 1]

The retirement board of Wellesley (board), on October 19, 1979, denied Glorioso's application for retirement under Section 58 and for a refund pursuant to G. L. c. 32, Section 25 (3). Glorioso then brought an action for declaratory judgment in the Superior Court in Norfolk County. After that action was dismissed, without prejudice, for failure of the plaintiff to exhaust his administrative remedies, the board reconvened on February 11, 1981, and affirmed its previous decision. Glorioso pursued a timely appeal to the Contributory Retirement Appeal Board (CRAB). On April 29, 1983, CRAB affirmed the board's decision.

On June 24, 1983, Glorioso filed this action in the Superior Court in Norfolk County seeking a judgment declaring his rights under c. 32, Section 58, and, alternatively, seeking judicial review pursuant to G. L. c. 30A, Section 14 (1986 ed.). The judge concluded that CRAB lacked jurisdiction over cases brought pursuant to c. 32, Section 58, and set aside CRAB's ruling. After a full evidentiary hearing, the judge found that Glorioso had been in the town's employ prior to June 30, 1939. [Note 2] Relying on

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Cardellicchio v. Board of Retirement of Natick, 391 Mass. 760 (1984), he entered judgment for Glorioso. The board filed a timely appeal, claiming that the judge erred in ruling that CRAB had no jurisdiction. We transferred the case to this court on our own motion. We affirm the Superior Court decision.

1. CRAB's jurisdiction. Our examination of the veterans' retirement provisions, [Note 3] contained in G. L. c. 32, Sections 56-60, affirms the conclusion of the judge that CRAB has no jurisdiction to entertain claims arising under c. 32, Section 58. Sections 56 and 57, to which the board refers, both cover retirement due to incapacity. Under c. 32, Section 57A, [Note 4] a right of appeal to CRAB is granted to those claiming retirement under either of these provisions. Significantly, as to Section 58, which grants certain retirement benefits to those veterans retiring after thirty years' service, there is no similar provision providing a right of appeal to CRAB. "[A] statutory expression of one thing is an implied exclusion of other things omitted from the statute." Harborview Residents' Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425 , 432 (1975). County of Middlesex v. Newton, 13 Mass. App. Ct. 538 , 542 (1982). We concluded that the Legislature did not intend that CRAB have jurisdiction over Section 58 cases. [Note 5]

Our conclusion comports with previous treatment of Section 58 claims. In Bianchi v. Retirement Bd. of Somerville, 359 Mass. 642 , 647 (1971), we concluded that the veterans' retirement

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provisions stood apart from the rest of the chapter, and that, "[g]enerally speaking, sections of c. 32 other than Sections 56-60 apply to the retirement of veterans only if they are expressly made applicable thereto by such other sections or by Sections 56-60." This court has recognized, as well, that the Legislature intended to afford different rights to Section 58 beneficiaries than to other claimants. See Hoban v. Boston Retirement Bd., 355 Mass. 681 , 683-684 (1969) (the language of Section 58, unlike that of Section 57, vests only a ministerial, nondiscretionary function in the board).

Finally, we recognize that many Section 58 claims have been brought in the Superior Court seeking a declaration of rights. See, e.g., Sullivan v. Boston Retirement Bd., 359 Mass. 228 (1971); Flanagan v. Lowell Hous. Auth., 356 Mass. 18 (1969); Hoban v. Boston Retirement Bd., supra; LaCouture v. Retirement Bd. of Quincy, 11 Mass. App. Ct. 738 (1981); Santucci v. Selectmen of Palmer, 4 Mass. App. Ct. 785 (1976). Claims under Section 58 have also been brought properly as contract actions. See, e.g., Weiner v. Boston, 342 Mass. 67 , 68 (1961).

We note that CRAB itself has decided that it does not possess jurisdiction over Section 58 claims. [Note 6] While CRAB's determination is not dispositive, see Bagley v. Contributory Retirement Appeal Bd., 397 Mass. 255 , 256-258 (1986), in this instance we agree with CRAB's conclusion.

2. Qualification under Section 58. We turn now to the merits of Glorioso's claim under Section 58. The parties agree that Glorioso meets all but one of the requirements for retirement under that provision. He is a veteran within the meaning of the statute; he served the Commonwealth, or a subdivision thereof, for a total period of thirty years in the aggregate; and he was in active service at the time of retirement. Cardellicchio, supra at 763. LaCouture, supra at 741. The sole issue is whether he was employed by the town prior to June 30, 1939, as c. 32,

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Section 60, requires. The board concedes that, if CRAB had no jurisdiction over this claim, the judge's findings are supported by the evidence before him. The board further concedes that, pursuant to Cardellicchio, supra at 764, if Glorioso performed any work for the town prior to June 30, 1939, and was compensated for such labor, Glorioso is entitled to the benefits of Section 58. See LaCouture, supra at 738, 744 (payment for seven months' part-time service to otherwise qualified veteran satisfied statute); Santucci v. Selectmen of Palmer, supra (payment to otherwise qualified veteran for approximately 255 hours of previous service).

The judge found that the town of Wellesley employed Glorioso on at least two occasions prior to June 30, 1939. In addition, the judge found that 1939 town records showed payment of $1.88 to the same "John Glorioso," and payment to persons unknown for snow removal. The judge further found that Glorioso had done clean-up work after a 1938 hurricane. [Note 7] Therefore, the judge was correct in concluding that Cardellicchio, supra, is controlling, and that this work constituted employment under the statute. The judgment for the plaintiff is to be affirmed.

3. Damages for delay. Glorioso seeks double costs and appellate attorneys' fees, pursuant to Mass. R. A. P. 25, as amended, 378 Mass. 925 (1979), and G. L. c. 211A, Section 15 (1986 ed.). Damages for delay are authorized against parties pursuing frivolous appellate claims. Such an award is within the sound discretion of the appellate court. See Lewis v. Marsh, 21 Mass. App. Ct. 987 , 989 (1986); Allen v. Batchelder, 17 Mass. App. Ct. 453 , 458-460 (1984). As noted above, much of the board's arguments are without merit. It is also true, however, that CRAB had a mixed history of entertaining Section 58 claims, and that the matter of its jurisdiction had not been determined definitively. Additionally, when the first complaint

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was brought, another judge in the Superior Court apparently agreed with the board as to CRAB's jurisdiction and dismissed that complaint for failure of the plaintiff to exhaust his administrative remedies. In these circumstances, we conclude that it would be inappropriate to deem the board's position frivolous. We decline to award additional damages and costs in this instance.

Judgment affirmed.

FOOTNOTES

[Note 1] The text of G. L. c. 32, Section 25 (3), reads, in pertinent part: "Rights of Veterans at Retirement. -- (a) Any member in service classified as a veteran referred to in sections fifty-six to sixty A inclusive, who entered employ of any governmental unit prior to July first, nineteen hundred and thirty-nine, shall have full and complete rights either under the system of which he is a member or under the provisions of sections fifty-six to sixty A inclusive, whether or not he may have signed a waiver of his rights under such sections upon becoming a member of such system, anything to the contrary in the provisions of this chapter or in similar provisions of earlier laws notwithstanding. Such rights shall be in the alternative and shall be exercised only at the time of his retirement. If a member is retired under the provisions of sections fifty-six to sixty A inclusive, he shall, upon his written application on a prescribed form filed with the board in which he waives all his rights under sections one to twenty-eight inclusive, be paid the amount of the accumulated total deductions credited to his account in the annuity savings fund of the system on the date of his retirement."

[Note 2] The parties stipulated that Glorioso met all of the criteria for retirement under c. 32, Section 52, except for employment by the town prior to June 30, 1939. The requisite criteria are discussed in this opinion, infra.

The board concedes in its brief that, if CRAB had no jurisdiction and if the judge properly held an evidentiary hearing on the plaintiff's claim, the judge's findings as to the plaintiff's employment are supported by the evidence.

[Note 3] The Veterans' Retirement Act applies, by its terms, only to veterans of the Spanish Civil War and of the World Wars. See G. L. c. 32, Sections 56-58. Further, it is limited to those veterans whose employment began on or prior to June 30, 1939. See G. L. c. 32, Section 60.

[Note 4] Specifically, reference is made in Section 57A to the right of appeal to CRAB provided in G. L. c. 32, Section 16 (4) (1986 ed.).

[Note 5] The board argues that, if this court concludes that CRAB had no jurisdiction, the effect of this holding should apply prospectively only. The board's contention is unsupported by any authority and is unpersuasive. This is a jurisdictional matter and applies to the case at bar.

[Note 6] In Bianchi v. Retirement Bd. of Somerville, supra at 646, we noted that CRAB "voted that it had no jurisdiction of the matter [Section 58 cases]." Although it has considered such claims since then, two months after its decision in the case at bar, CRAB ruled that neither c. 32, Section 57A, nor Section 16 (4), provided for jurisdiction of Section 58 claims. Evangelous v. Marlborough Retirement Bd., Contributory Retirement Appeal Decision CR-6729 (June 27, 1983).

[Note 7] The judge found that the Federal government had paid for Glorioso's clean-up efforts under a work program. Apparently, a Federal employee supervised the work initially, but the clean-up effort soon came under the town's auspices. Therefore, the judge found that this work constituted "employment" under c. 32, Section 60. See LaCouture, supra at 743-744.