Home BRUCE R. HOMSTEAD & others, trustees, vs. TOWN OF WHATELY & others.

11 Mass. App. Ct. 985

March 31, 1981

A majority of the panel are of opinion that the Probate Court lacked jurisdiction over the subject matter of the present action (one ostensibly brought under G. L. c. 231A) because the board of appeals, in its decision rendered under G. L. c. 40A, Sections 13 and 15(1), as in effect prior to St. 1975, c. 808, Section 3, expressly determined that the way in question "is not a public way" and because the plaintiffs' exclusive remedy with respect to that determination was a timely appeal to the proper District Court or to the Superior Court under G. L. c. 40A, Section 21, as also in effect prior to St. 1975, c. 808, Section 3. See, e.g., Hull v. Belmont, 309 Mass. 274, 277-281 (1941); Smith v. Board of Appeals of Plymouth, 340 Mass. 230, 232 (1960); Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 420 (1963); Saab v. Building Inspector of Lowell, 1 Mass. App. Ct. 87, 88 (1973); Potter v. Board of Appeals of Mansfield, 1 Mass. App. Ct. 89, 94, 97 (1973); Planning Bd. of Falmouth v. Board of Appeals of Falmouth, 5 Mass. App. Ct. 324, 327-328 (1977). Contrast Spaulding v. Board of Appeals of Leicester, 334 Mass. 688, 689-692 (1956). The third member of the panel (Goodman, J.) reaches the same result, for the reason that the present case is not one "cognizable under the general principles of equity jurisprudence" within the ambit of the first paragraph of G. L. c. 215, Section 6, as appearing in St. 1973, c. 1114, Section 63. See Administrator of OPA v. Chook, 320 Mass. 187, 191-192 (1946); Springfield Preservation Trust, Inc. v. Springfield Historical Commn., 380 Mass. 159, 161 (1980); 1963 Pub. Doc. No. 166, at 29. The third member suggests that the reader should also see and compare the second paragraph of G. L. c. 211B, Section 9, inserted by St. 1978, c. 478, Section 110. The judgment is vacated, and the action is to be dismissed for lack of jurisdiction.

So ordered.


11 Mass. App. Ct. 985

April 1, 1981

The employee appeals from a judgment entered in the Superior Court affirming an award of the Industrial Accident Board. We affirm. 1. The board's denial of the employee's claim under G. L. c. 152, Section 28, was amply supported by the subsidiary findings of the single member. See McCarthy's Case, 314 Mass. 610, 612 (1943). Moreover, the board found that the employee had been given an option to change work assignments following his complaint based on safety. Contrast Randolph's Case, 247 Mass. 245, 248 (1924); O'Leary's Case, 367 Mass. 108, 115 (1975). 2. The employee claims that once the board had recommitted the case to the single member "for the sole purpose of determining the question of average weekly wage," the board, on review of the member's decision following recommittal, could

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not recommit on a separate issue, specifically, earning capacity. The board's first action, captioned an "Order of Recommittal," was not a final determination of the case. Compare Hunnewell's Case, 220 Mass. 351, 353 (1915). The board retained control over the case and thus could revise its previous action. See and compare Frizzi's Case, 237 Mass. 460, 462 (1921), and M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. 446, 454-457 (1975). 3. The employee's claims based on the form of the Superior Court judgment are groundless. Although the total amount of partial incapacity compensation was not computed, the amount was certain, on the principle that whatever can be made certain by mere arithmetic is already certain. Boyer v. Bowles, 316 Mass. 90, 95 (1944). There was no uncertainty as to the starting and ending dates of the period of interest accrual under G. L. c. 152, Section 50, as amended through St. 1965, c. 616, since those dates are established by the statute. The absence in the judgment of an award of costs to the employee under G. L. c. 152, Section 11, was not error, as the employee, who had brought the case before the Superior Court, did not prevail in that court. G. L. c. 152, Section 11. The employee's claim under G. L. c. 152, Section 28, was addressed in the judgment.

Judgment affirmed.