10 Mass. App. Ct. 822

July 2, 1980

The judge in the Superior Court appears to have confused the question of how long the defendant was obliged to extend employment to the plaintiff (see Campion v. Boston & Me. R.R., 269 Mass. 579, 581-582 [1930]; Fenton v. Federal St. Bldg. Trust, 310 Mass. 609, 612 [1942]; Phelps v. Shaw-print, Inc., 328 Mass. 352, 355 [1952]; Askinas v. Westinghouse Elec. Corp., 330 Mass. 103, 106 [1953]) with the question whether the terms and provisions of the employee manual which the defendant had required the plaintiff to sign in 1971 constituted part of her contract of employment (see Kirkley v. F.H. Roberts Co., 268 Mass. 246, 251-252 [1929]; MacLaren v. Windram Mfg. Co., 287 Mass. 221, 226 [1934]; Fortune v. National Cash Register Co., 373 Mass. 96, 101 [1977]) when she was discharged by the defendant in 1976. The District Court finding for the plaintiff under G. L. c. 231, Section 102C (as amended through St. 1975, c. 377, Sections 102 and 102A), when analyzed in light of the issues raised by the pleadings, was prima facie evidence (see Cook v. Farm Serv. Stores, Inc., 301 Mass. 564, 568 [1938]) of the fact that the terms and provisions of the manual did form part of the contract of employment at the time of the discharge. Spritz v. Lishner, 355 Mass. 162, 164-165 (1969). Adams, Harkness & Hill, Inc. v. Northeast Realty Corp., 361 Mass. 552, 555-556 (1972). As all the relevant evidence in the Superior Court was consistent with the District Court finding on that point, the judge in the Superior

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Court was required to reach the same factual conclusion on that aspect of the case. Universal C.I.T. Credit Corp. v. Ingel, 347 Mass. 119, 125 (1964). Fulton v. Gauthier, 357 Mass. 116, 117-118 (1970). O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 244-245 (1976). As the evidence in the Superior Court was insufficient to warrant a finding that the plaintiff had been discharged under or in accordance with the only provision of the manual relied on by the defendant at the time of the discharge, the judge in that court was required to find for the plaintiff on the ultimate question of liability. On this analysis, it is unnecessary to decide (a) whether the evidence in the Superior Court would have warranted a finding that the defendant was acting in bad faith at the time of the discharge or (b) what the consequence of such a finding would have been. See Fortune v. National Cash Register Co., 373 Mass. at 101-106. The judgment is reversed, and the case is remanded to the Superior Court for a determination of the damages sustained by the plaintiff by reason of her wrongful discharge.

So ordered.