Home COMMONWEALTH vs. CLAIRE M. FAY, individually and as trustee, & others (and a companion case). [Note 1]

11 Mass. App. Ct. 890

December 19, 1980

In this appeal from judgments in favor of the plaintiff, the defendant Fay personally and as trustee of various nursing home trusts argues error in the allowance of motions for summary judgments as to liability (there was a subsequent hearing on damages). There was no error. An examination of the pleadings and affidavits submitted by the plaintiff (see Community Nat'l Bank v. Dawes, 369 Mass. 550 , 554 [1976]) reveals the absence of any triable issue involving the fact that the defendant were overpaid with respect to nursing home services provided to Medicaid recipients which is the sole issue raised by the complaint. In the only case in which the defendant filed an affidavit in opposition to the motion for summary judgment (none was filed in the other case), the averments of the affidavit miss the mark entirely. Moreover, totally unavailing is the defendant's attack on the propriety of the final rates set by the plaintiff. The defendant's resistance to summary judgment based on the pendency of appeals concerning final rates is without merit because of the statutory mechanism for such appeals in G. L. c. 6A, Section 36. Finally, the method of calculating the rate was not open on the motion for summary judgment. See Haverhill Manor, Inc. v. Commissioner of Pub. Welfare, 368 Mass: 15, 22, 29-30 (1975).

Judgment affirmed.


FOOTNOTES

[Note 1] Commonwealth vs. Claire M. Fay, individually and as trustee, & another.

Home BLUE MOON SALOON, INC. vs. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

11 Mass. App. Ct. 890

December 19, 1980

1. The Alcoholic Beverages Control Commission (ABCC) correctly contends that in the present circumstances the appeal from the order of the Superior Court remanding this matter to the

Page 891

ABCC for further consideration is ripe for immediate appellate review. See Cliff House Nursing Home, Inc. v. Rate Setting Commn., 378 Mass. 189 , 191 (1979). See also Wells v. Southern Airways, Inc., 517 F.2d 132, 132 n.3 (5th Cir. 1975), cert. denied, 425 U.S. 914, and sub nom. Air Line Pilots Assn., Intl. v. Wells, 425 U.S. 1000 (1976). From the viewpoint of the ABCC, the Superior Court judgment was final. Cf. Seymour's Case, 6 Mass. App. Ct. 935 (1978).

2. It was error for the judge of the Superior Court to order the ABCC to reconsider its decision affirming the local licensing authority's revocation decision. The judge found that the decision of the ABCC was based on substantial evidence. [Note 1] "The judge may set aside the agency's decision only if it is `[u]nsupported by substantial evidence.'" Olde Towne Liquor Store, Inc. v. Alcoholic Beverages Control Commn., 372 Mass. 152 , 153 (1977). The ABCC's statutory authority to revoke the plaintiff's license is not open to doubt. Id. at 154. Thus, as revocation of a license is one of the sanctions provided by law (see G. L. c. 138, Section 64), it cannot be said that revocation has no reasonable relation to the offending practices of the plaintiff. See Jacob Siegel Co. v. FTC, 327 U.S. 608, 612-613 (1946). See also Number Three Lounge, Inc. v. Alcoholic Beverages Control Commn., 7 Mass. App. Ct. 301 , 313 (1979).

3. The judge relied on the severity of the penalty as the basis for his remand of this matter to the ABCC. That was error. See Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519 , 528-529 (1979). Compare Number Three Lounge, Inc. v. Alcoholic Beverages Control Commn., supra at 312-313.

The judgment is reversed, and the case is remanded to the Superior Court for the entry of a new judgment affirming the decision of the ABCC.

So ordered.


FOOTNOTES

[Note 1] None of the other grounds set out in G. L. c. 30A, Section 14(7), for setting aside the decision of an agency was relied on by the judge.