FRANCIS A. O'CONNOR vs. CITY MANAGER OF MEDFORD.

DREBEN, J. In this action brought under G. L. c. 31, Section 46A (as in effect prior to St. 1978, c. 393, Section 11), the trial judge, on a statement of agreed facts, ruled that the defendant, the city manager of Medford, had acted in violation of G. L. c. 31, Section 43, as then in effect, in abolishing the plaintiff's position as head of the redevelopment division of the city's department of community affairs. The judge also ruled that the city council of Medford, by enacting an ordinance denying civil service benefits to the plaintiff and others, had exceeded its authority. A judgment remanding the matter to the defendant to conduct proceedings in conformity with G. L. c. 31, Section 43, was entered on May 9, 1977. The plaintiff moved under Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), for amendment of the judgment so as to reinstate the plaintiff to his former position with back pay, and to delete the requirement of further proceedings. The motion to amend was denied on May 20, 1977, and the plaintiff appeals from that denial.

The plaintiff argues that our review is limited to the denial of his motion to amend the judgment, and that, in the absence of a cross appeal, we cannot review the judgment of May 9, or modify it, even if erroneous. We disagree and remand the case for dismissal of the action.

1. The denial of a motion under rule 59 is normally reviewable only in conjunction with an appeal of the judgment to which it relates. Forte v. Muzi Motors, Inc., 5 Mass. App. Ct. 700, 701 n.4 (1977), and cases cited. 6A Moore's Federal Practice par. 59.15[1] and [4] (2d ed. 1974). 11 Wright & Miller, Federal Practice and Procedure Section 2818 (1973). It is clear that had the plaintiff wanted us to review the judgment, he could have achieved that

Page 617

result even if he had technically only appealed from the denial of the rule 59 motion. Foman v. Davis, 371 U.S. 178 (1962). Livergood v. S. J. Groves & Sons Co., 361 F.2d 269 (3d Cir. 1966). Peabody Coal Co. v. Local Union Nos. 1734, 1508 and 1548, UMW, 484 F.2d 78 (6th Cir. 1973).

The plaintiff obviously does not wish us to review the favorable rulings of the lower court, and argues that a party who fails to appeal is not entitled, as of right, to more favorable treatment than was given in the court below. M. L. Shalloo, Inc. v. Ricciardi & Sons Constr., 348 Mass. 682, 684 (1965). He claims that we are without jurisdiction to modify the judgment, that the Federal courts uniformly hold that, in the absence of a cross appeal, the judgment of a lower court even if erroneous will not be disturbed, and urges, citing Rollins Environmental Servs., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975), that we are bound by the Federal precedents.

However, the rule cited is a rule of practice and not a limitation on the powers of appellate courts. Langnes v. Green, 282 U.S. 531, 538 (1931). In appropriate circumstances, the rule will not be followed. This is true in the Federal courts. Tug Raven v. Trexler, 419 F.2d 536, 548 (4th Cir. 1969), cert. denied sub nom. Crown Central Petroleum Corp. v. Trexler, 398 U.S. 938 (1970). Arnold's Hofbrau, Inc. v. George Hyman Constr. Co., 480 F.2d 1145, 1150 (D.C. Cir. 1973). United States v. United States Steel Corp., 520 F.2d 1043, 1052 (5th Cir. 1975), cert. denied sub nom. United States Steel Corp. v. United Steelworkers of America, 429 U.S. 817 (1976). Hysell v. Iowa Pub. Serv. Co., 559 F.2d 468, 476 (8th Cir. 1977). See In re Barnett, 124 F.2d 1005 (2d Cir. 1942); 9 Moore's Federal Practice par. 204.11 [5] (2d ed. 1975); 15 Wright, Miller & Cooper, Federal Practice and Procedure Section 3904 (1976). [Note 1] And, it is

Page 618

equally true in Massachusetts. C. J. Hogan, Inc. v. Atlantic Corp., 332 Mass. 322, 327-328 (1955). See also Beacon Oil Co. v. Maniatis, 284 Mass. 574, 577-578 (1933); Royal Indem. Co. v. Perry, 296 Mass. 149, 154 (1936); Cooperstein v. Bogas, 317 Mass. 341, 345 (1944); Schneider v. Armour & Co., 323 Mass. 28, 31 (1948).

We believe this case presents the compelling circumstances in which an appellate court can and should correct an erroneous judgment in the absence of a cross appeal. We therefore do not reach the question whether a denial of the rule 59(e) motion can be appealed alone and treat the plaintiff's appeal as bringing with it the May 9 judgment. Carter v. Empire Mut. Ins. Co., 6 Mass. App. Ct. 114, 117 n.3 (1978). Maryland Tuna Corp. v. MS Benares, 429 F.2d 307, 317-318 (2d Cir. 1970).

In this action the judge has cast serious doubt on the validity of a municipal ordinance [Note 2] and, as will be seen in part 2 of this opinion, has imposed restraints on municipal hiring which are not provided by law. In C. J. Hogan, Inc. v. Atlantic Corp., 332 Mass. at 328-329, a judgment was modified on appeal because it could cause confusion among the parties to the litigation. In this action the impact of the judgment is obviously far wider and affects municipal hiring, a matter of public and taxpayer concern.

We note also that the plaintiff under the guise of an amendment is seeking what is, in effect, an entirely new judgment. The judgment of May 9, which remanded the matter for proceedings in accordance with G. L. c. 31, Section 43, provided no assurance that the plaintiff would be reinstated in his position or would receive back pay, but

Page 619

left these questions to be determined in further proceedings. See Gardner v. Lowell, 221 Mass. 150, 154 (1915). However, the plaintiff would have us enter a judgment, far more onerous for the defendant, which orders reinstatement and back pay. He insists that such an order must be divorced from the question whether the plaintiff is entitled to civil service status.

We will not accede to the plaintiff's contention that we must blind ourselves to the fact that the May 9 judgment was erroneous. The plaintiff's position is entirely contrary to the spirit of the rules of civil procedure and is untenable. Our judicial system is not "a mere game of skill or chance" in which the judge is merely an "umpire." In re Barnett, 124 F.2d at 1010-1011. We will not permit the rules to subvert a just result, see 9 Moore's Federal Practice par. 204.11(5), at 948 & n.9, and will not, in these circumstances, limit our examination to the remedy prescribed where, as here, the plaintiff is entitled to none.

2. The trial judge ruled that under St. 1974, c. 839, the plaintiff kept his civil service status and, consequently, was entitled to the protections of G. L. c. 31, Section 43. He also ruled that the city council in enacting an ordinance which purported to deny the plaintiff and others civil service status had exceeded its authority. We hold that St. 1974, c. 839, does not, under the facts of this action, preserve the plaintiff's civil service status and we therefore have no occasion to examine, let alone question, the validity of the ordinance.

The facts as taken from the statement of agreed facts and as found by the trial judge show that the plaintiff was executive director and secretary of the Medford Redevelopment Authority from September 5, 1972, to September 12, 1974. He had civil service tenure in that position. After the Medford Redevelopment Authority and two other agencies were abolished by St. 1974, c. 839, Section 2, the plaintiff received a letter from the defendant advising him that, effective September 13, 1974, he was appointed

Page 620

head of the redevelopment division of the office of community development of the city. The plaintiff remained head of that division until June 30, 1976, when the defendant abolished the position. [Note 3]

The judge, relying on Section 2 of the statute, ruled that the plaintiff was protected by G. L. c. 31. However, an analysis of the statute as a whole indicates that Section 2 is not the only section relating to civil service status of employees, although it is the only section included in the statement of agreed facts. [Note 4] Section 2 of St. 1974, c. 839, provides that all salaried employees of the abolished agencies "are hereby transferred to and made employees of the office of community development. At the discretion of the city manager, said employees shall not suffer reduction in their rank or compensation, or impairment of . . . their civil service seniority and other rights in the position held on the effective date of this act."

Section 3 provides for the appointment by the city manager of a director of the office of community development who "shall not be subject to the provisions of chapter thirty-one of the General Laws . . ." (the civil service provisions) or to the provisions giving tenure protection to veterans.

Section 4 provides that the city manager, after consultation with the director, shall "appoint" other officers and employees and also provides that "division heads" shall not be subject to the statutory civil service or protection for veterans provisions. The plaintiff was head of the redevelopment division, and specifically came within the Section 4 exclusion from civil service.

Page 621

While the plaintiff concedes that division heads are expressly not subject to G. L. c. 31, he argues that Section 4 is not applicable since he was "transferred" to his position under Section 2 and was not "appointed" under Section 4. We do not accept this argument. Sections 3 and 4 provide that the appointees to the policy-making positions of director and division heads of the new agency are not to be subject to G. L. c. 31. Section 4 makes no distinction between division heads who previously were employees of one of the abolished agencies and newly employed persons. It is unnecessary for us to decide whether, in the light of Section 4, the city manager could under Section 2 have exercised his discretion in favor of the plaintiff, a department head. We are satisfied that he did not and was not required to do so.

Section 3 and 4 are consistent with and further the purposes of civil service laws. Appointments to policy-making positions are not required to be made from the civil service lists (see G. L. c. 31, Section 48, as appearing in St. 1978, c. 393, Section 11; Montanari v. Director of Civil Serv., 356 Mass. 514 [1969]) and persons of high office do not acquire the protections acquired by employees of lesser rank. We see no intent in c. 839 of St. 1974 to preserve the civil service status of persons who became division heads. The statute clearly provides the contrary. Compare St. 1956, c. 465, Section 22, St. 1966, c. 735, Section 6, and St. 1968, c. 761, Section 14, where the Legislature showed its ability to use the language necessary to preserve civil service rights when it chose to do so.

Since the plaintiff is not covered by G. L. c. 31, the judgment is remanded to the Superior Court with directions to enter a new judgment dismissing the action.

So ordered.