8 Mass. App. Ct. 872

July 2, 1979

This is an appeal from the denial of a motion to vacate a decree entered under G. L. c. 210, Section 3, dispensing with the consent of a mother to her daughter's adoption. The motion as filed in the Probate Court alleged improper service of process and lack of knowledge or notice of this proceeding. 1. The mother's claim of improper service cannot be sustained. By filing a general appearance and by failing to raise the defense of insufficiency of service of process in her answer, she has waived such defense. Buckley v. John, 314 Mass. 719, 722 (1943).

2. Counsel for the mother when questioned by this court acknowledged that she had had actual notice of the proceedings and that the only claim being asserted was a lack of knowledge as a matter of law because of improper service. Thus, the only question raised by this appeal which was also before the judge on the motion to vacate was the defense of improper service, a defense which was waived as a matter of law. There is, therefore, no issue upon which findings of fact were necessary. Contrast Custody of a Minor (No. 1), 377 Mass. 876, 877, 885-886 (1979).

3. The mother also attempts to challenge as unconstitutional the presumption contained in the third paragraph of G. L. c. 210, Section 3(c), namely, that if certain conditions are met, the best interests of the child will be served by the issuance of a decree dispensing with the need for parental consent. However, this claim was not raised before the probate judge and is, therefore, not properly before us. Commonwealth v. Proctor, 355 Mass. 504, 506 (1969). Milton Sav. Bank v. Amelung, 5 Mass. App. Ct. 801 (1977).

Decree affirmed.

Home FRANK SALVATORE & another vs. CITY OF NORTHAMPTON & another.

8 Mass. App. Ct. 872

July 2, 1979

Inasmuch as the plaintiffs appeal from the denial of their motion for counsel fees, costs and expenses, brought under G. L. c. 231, Section 6F, should have been directed to a single justice of this court pursuant to the provisions of G. L. c. 231, Section 6G, rather than to a panel of the Justices, the appeal is hereby transferred to a single justice.

So ordered.


8 Mass. App. Ct. 872

July 6, 1979

The board brought this action to effect the removal of a sign which is located within 660 feet of a primary highway and which is visible from the highway. G. L. c. 93, Sections 29

Page 873

through 31. G. L. c. 93D, Sections 2 through 4. There were no genuine issues of material fact in dispute in the Superior Court, and summary judgment for the board was properly entered. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974).

The sign is located on an easement granted to the defendant and is over 800 feet from the nearest boundary of the property upon which the defendant operates its business. The easement extends from the defendant's property to the sign, and it was granted to the defendant for the purpose of connecting the sign's electrical system to the property. The location of the sign on an easement granted to the defendant and the connection of the sign to the property by electrical wires does not bring the sign within the scope of the on-premises exception (G. L. c. 93, Section 30; G. L. c. 93D, Section 2[b] and [c]) to outdoor advertising regulation. Attorney Gen. v. J.P. Cox Advertising Agency, 298 Mass. 383, 389-390 (1937).

The facts that nearly six years prior to the commencement of this action the board indicated in a letter to the defendant that the sign "appears to be an accessory use sign" and under the jurisdiction of the town in which it was located and not the board's, and that the defendant acted in reliance upon this letter, do not now estop the board from commencing this action. Officers of the Commonwealth may correct their jurisdictional and substantive rulings; and a change in position by one relying upon a prior ruling does not normally give rise to an equitable estoppel. See New City Hotel Co. v. Alcoholic Beverages Control Commn., 347 Mass. 539, 542 (1964); Cullen v. Building Inspector of No. Attleborough, 353 Mass. 671, 674-675 (1968); Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 161-163 (1977). Cf. General Outdoor Advertising Co. v. Department of Pub. Works, 289 Mass. 149, 200 (1935).

The order of removal of the sign does not violate First Amendment rights. John Donnelly & Sons v. Outdoor Advertising Bd., 369 Mass. 206, 225-228 (1975). The Commonwealth may validly impose on an individual restrictions which limit the manner and location in which he exercises his speech. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770-771 (1976). Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92-93 (1977). Carey v. Population Serv. Intl., 431 U.S. 678, 700-702 (1977). Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977).

The defendant's claim that a genuine issue of material fact exists relative to its due process right to compensation for the removal of the sign does not involve a jurisdictional issue and will not be considered because it is raised and argued for the first time on appeal. Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565 (1976). Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977). Corman Realty, Inc. v. Rothstein, 4 Mass. App. Ct. 777 (1976).

Judgment affirmed.