TLC 55183

March 1, 1991

Worcester, ss.



This is a proceeding, commenced July 18, 1978, for foreclosure of a tax title on property on Hawley Street in Worcester, resulting from a taking recorded at Worcester District Registry of Deeds at Book 6177, Page 152 for failure to pay taxes for fiscal year 1976. By the time the citation issued, the property had been acquired by Forrest Corey.

Defendant answered in November 1983 claiming a right of redemption but also contending that the taking was void for lack of notice and because the City of Worcester (the "City") had illegally destroyed the buildings formerly on the property. The last return day was September 24, 1984. In October 1984 defendant moved for a jury trial. In April 1985, on motion of the City, the request for jury trial was stricken.

On July 12, 1985 this Court entered a finding pursuant to G.L. c. 60, §68 allowing redemption upon payment on or before October 1, 1985 of $33,751.74 with interest and costs.

Nothing further happened until September 1990 when defendant filed a counterclaim alleging that the City had unlawfully appropriated the property and had obtained restraining order in Worcester Superior Court without due process of law, thereby depriving defendant of rental income from the property; defendant claimed damages of $500,000 plus interest and costs. Defendant alleged that she had attempted to raise the same matters in Worcester Superior Court but had not been allowed to do so.

The City answered the counterclaim, denying its essential allegations and raising affirmative defenses that the countrclaim should have been brought in Superior Court and that the counterclaim was barred under G.L. c. 258, §4.

Defendant filed motions for declaratory judgement, for damages and for a writ of execution.

A hearing on defendant's counterclaim and motions was held on December 18, 1990 at which the City was represented by counsel and defendant appeared pro se. Paul J. Cahill, Chief Code Inspector of the City's Department of Code Inspection, Housing Inspection Division, testified for the City and Forrest Corey and George Corey testified for the defendant. Defendant introduced ten exhibits. The testimony was taped and a transcript prepared from the tape.

I find and rule as follows:

1. The action to which defendant objects was the demolition in 1981 of two three-family buildings on the property (13 and 13 1\2 Hawley Street) by the City, acting under G.L. c. 139 and c. 143 and the State Building Code.

2. Defendant's counterclaim is governed by G .L. c. 258. Accordingly, under Section 3 thereof, this Court does not have jurisdiction. Section 3 requires that the action be brought in Worcester County, since defendant lives in Worcester and the City of Worcester is the public employer.

3. There is no indication that presentment was made as required under §4 of Chapter 258 and the City has not waived that requirement.

4. The City's defense of the three year statute of limitations set forth in §4 of Chapter 258 is not meritorious. The cause of action accrued in 1981. It is true that the counterclaim, named as such, was not filed until 1990, but in her answer filed in 1983 defendant raised, if in summary form, her damage claim.

5. Judgement for plaintiff on the counterclaim is justified on the basis of either paragraph 2 or 3 above. However, should there be any question, I will act on the substance of defendant's counterclaim.

6. In 1981 the City gave notice to Forrest Corey, the then owner of the buildings, that the buildings were unfit for human habitation and hazardous. On his failure to correct the hazardous conditions, the City demolished the buildings pursuant to the State Building Code and G.L. c. 139 and c. 143.

7. Defendant complains that while the condemnation proceedings were underway, she was restrained by court order from dealing with the property. She points to two cases in Worcester Superior Court, 80-18812 and 80-18813, in which restraining orders were issued on December 11, 1980. These cases were apparently brought by tenants of the buildings. It is not clear from the evidence how long these restraining orders remained in effect, but even assuming they were in effect in 1981, they appear proper, and if defendant had wished to correct the physical condition of the buildings, the Superior Court surely would have permitted that.

8. Forrest Corey brought an action in Worcester Superior Court, 81-20518 on July 24, 1981. The docket in that case indicates that it was an action pursuant to G.L. c. 139, §2. That section establishes a right of appeal to the local superior court of orders under c. 139 and c. 143. That action was dismissed on February 27, 1987 for lack of prosecution.

9. Defendant has not demonstrated that there was any error in the demolition of the buildings by the City. To the contrary, such evidence as there is in the record indicates that the procedures followed were regular.

10. At the December 18, 1990 hearing, defendant raised the question of her claim to jury trial. As noted above, defendant did not move for a jury trial until October 1984, after the return day of September 24, 1984. G.L. c. 60, §71 requires that a claim of jury trial be made on or before the return day, unless further time be allowed by the court. As stated above in April 1985 this Court struck defendant's motion for jury trial.

11. As I am ruling against defendant on her counterclaim, I also deny her motions for declaratory judgement, for damages and for a writ of execution. It now remains for plaintiff to move for a decree under G.L. c. 60, §69, based on the July 12, 1985 finding.

12. I hereby expressly determine that there is no just reason for delay in entering judgement for plaintiff on defendant's counterclaim and expressly direct the entry of such judgement.

Judgement accordingly.