14 Mass. App. Ct. 916

June 15, 1982

The plaintiff brought an action in the Superior Court seeking an injunctive order which would require the defendant city clerk to transmit a referendum petition to the registrar of voters for certification of the number of registered voters who had signed the petition drafted pursuant to G. L. c. 43, Section 42, and the Northampton city charter, Sections 40A through 40H. The case was submitted on a statement of stipulated facts, the judge found for the defendants, and we affirm the judgment.

On June 19, 1980, the city council resolved that the city would incur debt for the purpose of acquiring land for a State-sponsored skating rink. While this legislative action could have been made the subject of a referendum petition (see Moore v. School Comm. of Newton, 375 Mass. 443 , 447 [1978]; 8A McQuillin, Municipal Corporations Section 25.246 [3d rev. ed. 1969]), no such challenge was initiated. In November, 1980, the city filed an application for a special permit for the "removal of scrub deciduous trees and brush, grading and construction of parking lot, skating rink building, and related site facilities" on the acquired land. Under the Northampton zoning ordinance, Section 5.2, Section 10.10, and Section 11.6, the city council is the special permit granting authority for this particular type of regulated use. G. L. c. 40A, Section 7. On January 19, 1981, the council voted to grant the permit. It is this vote which the plaintiff sought to make the subject of a referendum petition.

We need not resolve what little doubt may exist as to whether G. L. c. 43, Section 42, is restricted to legislative acts, Moore v. School Comm. of Newton, 375 Mass. at 446-447, in order to conclude that the vote of the council granting the special permit is not subject to a referendum petition. Had the zoning ordinance designated the zoning board of appeals rather than the city council as the special permit granting authority, the granting of the special permit could not be subject to a referendum petition. That the authority to grant or withhold such a permit was instead vested in the city council when acting as the special permit granting authority does not change the subject matter of the vote, nor does it create a remedy in addition to that provided by the Legislature in G. L. c. 40A, Section 17.

Judgment affirmed.

Home GERARD H. BRANDI & another [Note 1] vs. NATIONAL BULK CARRIERS, INC. & another. [Note 2]

14 Mass. App. Ct. 916

June 15, 1982

The plaintiffs filed a complaint against National Bulk Carriers, Inc. (National), a Delaware corporation. Personal service of the summons and complaint was made on one Jerome W. Magnifico, Jr., a Massachusetts resident, as "resident agent for [National]." The

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complaint alleged that as a result of a fire at the Southampton Princess Hotel in Bermuda, the plaintiffs suffered damages. The complaint was based on a breach of an implied warranty of safety and on negligence. As a result of National's answers to their interrogatories, the plaintiffs discovered that the hotel was owned by Westend Properties Limited (Westend). The complaint was amended to include Westend as a defendant, and service was again made on Magnifico, as "agent in charge of [Westend's] business at time of said service." National filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and Westend filed a motion to quash or, alternatively, to dismiss on several grounds, including lack of personal jurisdiction. Mass.R.Civ.P. 12(b)(2) & (5), 365 Mass. 755 (1974). After a hearing, a Superior Court judge allowed National's and Westend's motions, and the plaintiffs have appealed.

1. National's motion for summary judgment. There was no error in the allowance of National's motion for summary judgment. In support of its motion, National filed an affidavit of one of its officers, one Funke. He described with particularity the services provided by National on a contract basis to all the Princess Hotels, including the Southampton Princess. The affidavit stated that National did not own, operate or control the operations of the Southampton Princess. The statements in the affidavit were not legal conclusions, as the affiant, by virtue of being an officer of National, possessed the requisite knowledge and capacity to state whether National held any ownership interest in the Southampton Princess, whether it exercised any control over hotel operations, and whether it was involved in any aspect of such operations. The plaintiffs did not respond by alleging specific facts which established a triable issue. Community Natl. Bank v. Dawes, 369 Mass. 550 , 554 (1976). Since there was no basis for finding that National had control over the hotel, the plaintiffs' theories of liability need not be examined.

2. Westend's dismissal motion. On a motion filed pursuant to Mass.R.Civ.P. 12(b)(2) & (5), 365 Mass. 755 (1974), the plaintiffs had the burden of establishing the facts on which they predicated jurisdiction over the defendant. Droukas v. Divers Training Academy, Inc., 375 Mass. 149 , 151 (1978). The plaintiffs relied on the affidavit of Gerard Brandi, the pleadings, selected portions of affidavits filed by the defendant, and part of a transcript of a deposition of Magnifico. The defendant submitted another affidavit of Funke and also an affidavit of Magnifico. The undisputed facts were that the plaintiffs made arrangements through an independent travel agent to spend their vacation at the Southampton Princess, which is owned by Westend, a Bermuda corporation. Westend does not have an office or resident agent in Massachusetts, nor does the Southampton Princess have a telephone listing in the Commonwealth. The plaintiffs' contention that Westend's business was transacted through an agent, Magnifico, is without factual support. magnifico was an employee of National and was not subject to supervision or control by Westend. The

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plaintiffs presented no facts from which it might be deduced that Westend solicited business in Massachusetts by advertising that Magnifico was its resident agent or by publishing his telephone number. Compare Jet Mfg. Co. v. Sanford Ink Co., 330 Mass. 173 , 176 (1953); Campbell v. Frontier Fishing & Hunting, Ltd., 10 Mass. App. Ct. 53 , 54 (1980). Magnifico was not an agent for the purposes of G. L. c. 223, Sections 37 & 38, nor did Westend transact business in the Commonwealth G. L. c. 223A, Section 3(a). Magnifico's involvement in a bank promotion whereby he furnished information on the hotel was an "isolated transaction." See Droukas v. Divers Training Academy, Inc., supra at 154. The judge's action in allowing the motion was correct.

Judgment affirmed.


[Note 1] Lynda Brandi.

[Note 2] Westend Properties Limited.