41 Mass. App. Ct. 736 | Mass. App. Ct. | 1996
When the plaintiff won second prize in the “Mass Millions” lottery held on July 16, 1991, she expected to collect something close to the “average of $50,000” advertised by the defendant State Lottery Commission (com
The plaintiff appealed the commission’s decision to the Superior Court, seeking judicial review pursuant to G. L. c. 30A in a complaint which, as amended, also contained three common law counts alleging breach of contract, deceit and negligent misrepresentation, together with a count alleging violation of G. L. c. 93 A, § 9. The judge affirmed the commission’s decision and, acting on the parties’ cross motions for judgment on the pleadings, Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), allowed that of the commission. Subsequently, a second judge denied the plaintiff’s motion for relief from judgment and allowed the commission’s second motion for judgment on the pleadings with respect to the common law counts and the count under G. L. c. 93A.
1. The G. L. c. 93A claim. The plaintiff invokes c. 93A, claiming the commission is a “person” engaged in trade or
Although it is apparent that c. 93A does not expressly expose the commission to suit, we need not rely on that ground since we conclude that the commission is not a “person”
The Legislature has mandated the commission to “conduct a state lottery,” G. L. c. 10, § 24, as inserted by St. 1971, c. 813, § 2, and to establish a fluid consisting “of all revenues received from the sale of lottery tickets . . . [i]n order to provide local property tax relief and continue services at the local level.” Id. at § 35, as amended through St. 1977, c. 185. The activities of the commission are driven by legislative mandate, not business or personal objectives. Compare Barrett v. Massachusetts Insurers Insolvency Fund, supra at 777. In that respect, it stands in sharp contrast to State-regulated racetracks which “are private proprietary corporations engaged in trade and commerce.” DePasquale v. Ogden Suffolk Downs, Inc., 29 Mass. App. Ct. 658, 662 (1990).
2. The common law administrative claims. The plaintiff asserts she is entitled to litigate the common law counts in her amended complaint because they are independent and preexisting causes of action.
The commission is authorized by statute to determine the types of lotteries and the sizes of prizes to be awarded and to establish rules and regulations it deems necessary or desirable. See G. L. c. 10, § 24. It is beyond dispute that where the Legislature has entrusted such matters to an administrative agency, its adjudicatory proceedings must be utilized before there may be resort to the courts. See St. Luke’s Hosp. v. Labor Relations Commn., 320 Mass. 467, 469-470 (1946). Cf. East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 451-452 (1973). With the exception of her claim of violation of c. 93 A, everything which the plaintiff placed before the commission is a subject well within its jurisdiction and discretion and properly was ad
By purchasing a ticket the plaintiff entered into a contractual arrangement with the commission and is deemed to have reasonable notice of the pertinent regulations and rules of the game. See Ruggiero v. State Lottery Commn., 21 Mass. App. Ct. 686, 689 (1986). See also DePasquale v. Ogden Suffolk Downs, Inc., 29 Mass. App. Ct. at 661. In its decision, the commission determined any contractual issue when it concluded that the prize properly was calculated in accordance with its regulation applicable to parimutuel payoffs. 961 Code Mass. Regs. § 2.54(7) (1991). There is no contention in the pleadings, nor has it been argued to us, that the commission did not follow its regulations and rules. The commission’s decision also resolved the claims of deceit and misrepresentation in finding that the advertising was prepared in good faith, that there was no reliance by the plaintiff on it and that, in any event, if c. 93A were applicable, there was no violation of its provisions.
Judgments affirmed.
Although the plaintiffs amended complaint can be read to state that her action against the commission followed her acceptance of payment of the prize, the commission did not raise as a defense the regulation which provides that such a payment operates as a discharge of the commission and the director from further liability or responsibility. 961 Code Mass. Regs. § 2.45 (1986). The parties do not argue such an issue on appeal. Contrast Craft v. Capital Dist. Regional Off Track Betting Corp., 107 A.D.2d 952, 953-954 (N.Y. 1985). We proceed, therefore, to address the issues relating to the sufficiency of the plaintiffs amended complaint. See Sampson v. Lynn, 405 Mass. 29, 30 (1989).
General Laws c. 93A, § 9(1), as appearing in St. 1979, c. 406, § 1, proscribes “injur[y] [of any person] by another person’s use or employment of any method, act or practice declared to be unlawful by section two or any rule or regulation issued thereunder.” Section 2(a) declares as unlawful “unfair or deceptive acts or practices in the conduct of any trade or commerce.”
“Person” is defined in G. L. c. 93A, § 1(a), as inserted by St. 1969, c. 813, § 1, as “natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity.”
The Supreme Judicial Court noted in Boston, 399 Mass, at 571, that if there is a standing requirement in G. L. c. 93A, § 11, the city of Boston met that test as “a ‘person who engages in the conduct of any trade or
The plaintiff mistakenly relies on Pierce v. Dew, 626 F. Supp. 386 (D. Mass. 1986), for the proposition that the government is a person subject to c. 93 A liability. In that case, the Federal judge acknowledged that “Chapter 93A does not by its terms specifically apply to public agencies,” but held that the Secretary of the United States Department of Housing and Urban Development, in his capacity as a landlord, is subject to suit under c. 93A as a “person,” citing the specific application of c. 93A to landlord-tenant relations. Id. at 387-388.
The Commonwealth asserts the actions of the commission are exempt from c. 93A by the terms of § 3, as inserted by St. 1983, c. 242, which states that nothing in c. 93A “shall apply to transactions or actions otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of the commonwealth. . . .” We
The plaintiff asserts she is not precluded from pursuing her common law contract claim because the Commonwealth did not waive its immunity in contract as it did in tort in G. L. c. 258, § 1. See Morash & Sons, Inc. v. Commonwealth, 363 Mass, at 614-616. We do not reach this issue since our decision in this section rests entirely on other grounds.
The commission’s regulations permit a claimant to appeal to the commission from an adverse decision of the director pursuant to G. L. c. 30A, which provides for a full and fair hearing. 961 Code Mass. Regs. § 2.38 (4) (1986). G. L. c. 30A, §§ 10 & 11.
Responding to the plaintiffs claim that the commission continued to advertise a $50,000 average prize during an approximately four-month period when it was aware of an average of less than $30,000, the decision contained a finding that the advertisement was made “upon sales expectations that were determined in good faith” by persons in the business of making such projections. Because the plaintiff in her appeal does not challenge the commission’s findings, we have no occasion to further consider this issue.