MARCIA BRETTON vs. STATE LOTTERY COMMISSION & another. [Note 1]

JACOBS, J. When the plaintiff won second prize in the "Mass Millions" lottery held on July 16, 1991, she expected to collect something close to the "average of $50,000" advertised by the defendant State Lottery Commission (com-

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mission). Instead, she was paid $23,263, prompting her to complain of "misleading and false advertisement" to the Attorney General who forwarded her complaint to the commission. In an administrative hearing before the commission, she maintained that the defendant had violated G. L. c. 93A. A hearing officer, in a decision adopted by the commission, ruled that the commission is not subject to the provisions of that statute, and in any event, had not violated it. He found that the commission's advertisement of an average prize of $50,000 was made in good faith and that the plaintiff was induced to play Mass Millions by the advertised size of the jackpot (eleven million dollars) and not because of the advertisements relating to the second prize. The hearing officer concluded that the plaintiff had been paid the amount due her under the commission's then applicable parimutuel rules.

The plaintiff appealed the commission's decision to the Superior Court, seeking judicial review pursuant to G. L. c. 30A in a complaint which, as amended, also contained three common law counts alleging breach of contract, deceit and negligent misrepresentation, together with a count alleging violation of G. L. c. 93A, s. 9. The judge affirmed the commission's decision and, acting on the parties' cross motions for judgment on the pleadings, Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), allowed that of the commission. Subsequently, a second judge denied the plaintiff's motion for relief from judgment and allowed the commission's second motion for judgment on the pleadings with respect to the common law counts and the count under G. L. c. 93A. [Note 2] In this appeal the plaintiff raises two issues.

1. The G. L. c. 93A claim. The plaintiff invokes c. 93A, claiming the commission is a "person" engaged in trade or

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commerce and, therefore, subject to its provisions. [Note 3] She cites no cases, nor are we aware of any, holding that statutorily created bodies such as the commission are proper defendants under c. 93A. It is generally accepted that the Commonwealth cannot be impleaded in its courts except where an act of the Legislature clearly manifests its consent. Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 615 (1973). Commonwealth v. ELM Med. Labs., Inc., 33 Mass. App. Ct. 71, 77-79 (1992). "Chapter 93A contains no explicit indication that governmental entities are to be liable under its provisions." United States Leasing Corp. v. Chicopee, 402 Mass. 228, 232 (1988). See also All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 271 (1993).

Although it is apparent that c. 93A does not expressly expose the commission to suit, we need not rely on that ground since we conclude that the commission is not a "person" [Note 4] engaged in "trade or commerce." "[I]t is a widely accepted rule of statutory construction that general words in a statute such as 'persons' will not ordinarily be construed to include the State or political subdivisions thereof." Hansen v. Commonwealth, 344 Mass. 214, 219 (1962). See also Commonwealth v. ELM Med. Labs., Inc., supra at 76-77; Kilbane v. Secretary of Human Servs., 14 Mass. App. Ct. 286, 286-287 (1982) (holding that since the Commonwealth does not come under the definition of "person" in G. L. c. 4, s. 7, Twenty-third, it cannot be held liable under G. L. c. 266, s. 91, which proscribes false advertising by "[a]ny person.") Even if we assume the commission is a person within the statutory definition, compare Boston v. Aetna Life Ins. Co., 399 Mass. 569, 575 (1987), [Note 5] amenability to suit under the statute cannot be considered apart from the context of the particular acts under

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review. See Planned Parenthood Fedn. of America, Inc. v. Problem Pregnancy of Worcester, Inc., 398 Mass. 480, 492-493 (1986) ("PP, Inc.'s status as a 'charitable' corporation is not, in and of itself, dispositive of the issue whether c. 93A applies"). [Note 6] "Thus, the proscription in s. 2 of 'unfair or deceptive acts or practices in the conduct of any trade or commerce' must be read to apply to those acts or practices which are perpetrated in a business context." Lantner v. Carson, 374 Mass. 606, 611 (1978). See also Barrett v. Massachusetts Insurers Insolvency Fund, 412 Mass. 774, 775 (1992); Poznik v. Massachusetts Med. Professional Ins. Assn., 417 Mass. 48, 52 (1994). We must therefore determine whether the commission acts in a business context as contemplated by the statute.

The Legislature has mandated the commission to "conduct a state lottery," G. L. c. 10, s. 24, as inserted by St. 1971, c. 813, s. 2, and to establish a fund consisting "of all revenues received from the sale of lottery tickets . . . [i]n order to provide local property tax relief and continue services at the local level." Id. at s. 35, as amended through St. 1977, c. 185. The activities of the commission are driven by legislative mandate, not business or personal objectives. Compare Barrett v. Massachusetts Insurers Insolvency Fund, supra at 777. In that respect, it stands in sharp contrast to State regulated racetracks which "are private proprietary corporations engaged in trade and commerce." DePasquale v. Ogden Suffolk Downs, Inc., 29 Mass. App. Ct. 658, 662 (1990). [Note 7] Moreover, the conduct of a lottery generally is prohibited and

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criminalized by statute. See, e.g., G. L. c. 271, s.s. 7 & 9. The commission's lotteries exist in an environment where similar lawful activities within the Commonwealth consist only of government sponsored lotteries, and "raffles" and "bazaars" conducted by certain nonprofit organizations under permits issued pursuant to statutory authority. See G. L. c. 271, s. 7A. Thus created, protected and regulated by and pursuant to statute, the commission's activities hardly resemble endeavors conducted in a conventional business context. Given this dissimilarity, we conclude that "[t]he deterrence goals of c. 93A are inapplicable" to the commission's lottery activities. Poznik v. Massachusetts Med. Professional Ins. Assn., supra at 53.

2. The common law administrative claims. The plaintiff asserts she is entitled to litigate the common law counts in her amended complaint because they are independent and preexisting causes of action. [Note 8] She also argues she was not required to raise these causes of action before the commission because it is without jurisdiction to hear them or to grant her appropriate relief. Such views misperceive the proper relationships between courts and administrative agencies. See Murphy v. Administrator of the Div. of Personnel Admn., 377 Mass. 217, 220-222 (1979).

The commission is authorized by statute to determine the types of lotteries and the sizes of prizes to be awarded and to establish rules and regulations it deems necessary or desirable. See G. L. c. 10, s. 24. It is beyond dispute that where the Legislature has entrusted such matters to an administrative agency, its adjudicatory proceedings must be utilized before there may be resort to the courts. See St. Luke's Hosp. v. Labor Relations Commn., 320 Mass. 467, 469-470 (1946). Cf. East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 451-452 (1973). With the exception of her claim of violation of c. 93A, everything which the plaintiff placed before the commission is a subject well within its jurisdiction and discretion and properly was ad-

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dressed at the administrative hearing. At that hearing, conducted without any limitation of issues, [Note 9] plaintiff's counsel summed up her view of the issues as misrepresentation and false advertising by the commission, and argued the applicability of c. 93A, concluding that the plaintiff was "asking for what she bargained for." Thus, the plaintiff put before the commission the substance of the causes of action which she later formulated as separate counts in the Superior Court. The focus of all these counts is on whether the plaintiff is entitled to a prize of $50,000 and the record shows the commission addressed all the relevant factual issues inherent in the question.

By purchasing a ticket the plaintiff entered into a contractual arrangement with the commission and is deemed to have reasonable notice of the pertinent regulations and rules of the game. See Ruggiero v. State Lottery Commn., 21 Mass. App. Ct. 686, 689 (1986). See also DePasquale v. Ogden Suffolk Downs, Inc., 29 Mass. App. Ct. at 661. In its decision, the commission determined any contractual issue when it concluded that the prize properly was calculated in accordance with its regulation applicable to parimutuel payoffs. 961 Code Mass. Regs. s. 2.54(7) (1991). There is no contention in the pleadings, nor has it been argued to us, that the commission did not follow its regulations and rules. The commission's decision also resolved the claims of deceit and misrepresentation in finding that the advertising was prepared in good faith, that there was no reliance by the plaintiff on it and that, in any event, if c. 93A were applicable, there was no violation of its provisions. [Note 10] Thus, there was no issue presented to the Superior Court that is appropriate for direct

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judicial determination outside of review pursuant to G. L. c. 30A, s. 14(7), and the judge therefore did not err in allowing the defendants' motion for judgment on the pleadings.

Judgments affirmed.