Home RAYMOND COX vs. CIVIL SERVICE COMMISSION.

3 Mass. App. Ct. 793

December 10, 1975

This petition for a writ of mandamus was properly dismissed. While the demurrer of the Civil Service Commission (commission) was acted upon after July 1, 1974, and was therefore treated as a motion to dismiss for failure to state a claim upon which relief can be granted (Mass. R.Civ.P. 1A, subpar. 3, 365 Mass. 731 [1974]), the petition cannot pass muster even under the more liberal standards by which pleadings are to be tested when dismissal is sought under Mass. R.Civ.P. 12(b) (6), 365 Mass. 755 (1974). See Charbonnier v. Amico, 367 Mass. 146 , 152-153 (1975). The plaintiff is not entitled to relief under G. L. c. 31, Section 43 (as amended through St. 1971, c. 179, Section 4), because the tenure and hearing rights conferred by Section 43 are available only to a "person holding office or employment under permanent appointment" (emphasis supplied) and the plaintiff's appointment to the permanent position from which he was demoted was not a permanent appointment but only a temporary one, as defined in G. L. c. 31, Section 1 (as amended through St. 1971, c. 685, Section 1). See Dallas v. Commissioner of Pub. Health, 1 Mass. App. Ct. 768 , 771 (1974). Nor, on the basis of the allegations in the petition as construed most favorably to the plaintiff (Charbonnier v. Amico, supra, at 152) or through such argument as is contained in his brief on appeal (see Lolos v. Berlin, 338 Mass. 10 , 13-14 [1958]), can we discern any ground for requiring the commission to entertain the plaintiff's purported appeal under G. L. c. 31, Section 2 (b) (as appearing in St. 1973, c. 320, Section 1), from the failure of the Director of Civil Service (director) to act in the plaintiff's behalf, for the plaintiff has not called to our attention any statutory power or duty in the director to countermand the actions of the plaintiff's appointing authority or otherwise to act in the circumstances. Additionally, our examination of the pertinent statutes discloses none. Compare Canney v. Municipal Court of Boston, 368 Mass. 648 , 651-652 (1975). In sum, "it appears to a certainty that [the plaintiff] . . . is entitled to no relief under any state of facts which could be proved in support of the claim[s]" (emphasis omitted). Reporter's Notes under Rule 12(b)(6).

Judgment affirmed.

Home EMMA W. COBURN vs. ELEANOR R. GOULD & another.

3 Mass. App. Ct. 793

December 15, 1975

In the plaintiff's brief on appeal from the judgment of the Superior Court dismissing her bill in equity, she does not question the propriety of the interlocutory decree sustaining both defendants' demurrers, but attacks only the subsequent order denying her motion to amend the bill. Even if it be assumed, as asserted by the plaintiff, that the denial of her

Page 794

than an exercise of discretion (see Manufacturing Improvement Corp. v. Georgia Pac. Corp. 362 Mass. 398 , 401 [1972]), that ruling is not shown to have been erroneous. As the motion was denied long before July 1, 1974, and as no further motion to amend was filed thereafter (though the judgment was not entered until October 31 of that year), the sufficiency of the allegations in the proffered amendment is to be tested by the law as it existed before the effective date of the Massachusetts Rules of Civil Procedure. See Mass.R.Civ.P. 1A, subpars. 1 and 3, 365 Mass. 731 (1974); Harrison v. Textron, Inc. 367 Mass. 540 , 557 (1975). The purported allegations that the defendants violated various provisions of G. L. c. 140C (as inserted by St. 1969, c. 517, Section 1), the Truth-in-Lending Act, are apparently grounded on the premise that any lender of money is a "creditor" within the meaning of the act, whereas that term as used in the act is expressly confined to "a person who in the ordinary course of business regularly extends or arranges for the extension of consumer credit, or offers to extend or arranges for the extension of such credit" (emphasis supplied). G. L. c. 140C, Section 1(1). There is no allegation that either defendant falls within that definition (an inference to that effect may not properly be drawn from the name of the corporate defendant), and hence, no sufficient allegation that the actions complained of were in violation of the act. Compare McKinney v. Liberty Mut. Ins. Co. 1 Mass. App. Ct. 569 (1973). The omission is not cured by the allegation that each defendant acted "as the lender or creditor as defined in various sections of the General Laws," for that allegation is at most an unsubstantiated generalization (compare Moskow v. Boston Redevelopment Authy. 349 Mass. 553 , 563-564 [1965], cert. den. 382 U.S. 983 [1966] and Weinrebe v. Coffman, 358 Mass. 247 , 252 [1970]) or conclusion of law (compare Crall v. Leominster, 362 Mass. 95 , 106 [1972]). Only two other allegations are sufficiently argued in the plaintiff's brief to require consideration. See Moskow v. Boston Redevelopment Authy., supra, at 568, and cases cited. One of them, that the individual defendant "demanded payments at a greater rate of interest than one percent after default in violation of G. L. c. 140, Section 90A," omits, other than by conclusion of law (see Crall v. Leominster, supra), any averment that the mortgaged land securing the loan had "an assessed value of not over twenty-five thousand dollars" (G. L. c. 140, Section 90A, as amended through St. 1962, c. 286) or that the supposedly excessive interest rate applied to any "period after the expiration of six successive months of continuing default" (ibid.) and therefore alleges no violation of that statute. The remaining allegation, that the corporate defendant "failed to comply with the requirements of G. L. c. 184, Section 17B [as amended through St. 1970, c. 313] in regard to statements contained on the mortgage application," is far too conclusory and vague to inform that defendant of what it would be called upon to meet. See Moskow v. Boston Redevelopment Authy., supra, at 564; Weinrebe v. Coffman, supra; Leventhal v. Dockser, 358 Mass. 799 (1970); Greenberg v. Assessors of Cambridge, 360 Mass. 418 , 420-421 (1971), and cases cited; Manufacturing Improvement Corp. v. Georgia Pac. Corp., supra.

Judgment affirmed.