Home WILLIAM J. LEVENTHAL vs. WILLIAM B. DOCKSER & others [Note 1] (and two companion cases). [Note 2]

361 Mass. 894

May 10, 1972

The plaintiff appeals from orders sustaining "with leave to amend denied" demurrers to the declarations in three actions, two in "tort" and one in "contract," and from the additional sustaining of an answer in abatement filed in the contract action. The two tort actions represent the plaintiff's attempt to remedy defects in his pleadings in an earlier case in which this court upheld the sustaining of demurrers. See Leventhal v. Dockser, 358 Mass. 799. Each count of his declarations in the new tort actions consumes approximately six pages of the printed record, as contrasted with approximately one page in the earlier case, and each count now contains a plethora of extraneous, discursive and immaterial allegations. Notwithstanding the prolixity of the declarations in these two new tort actions the plaintiff has not remedied the fatal defects of his earlier declarations. The allegations in all counts of both actions remain "but generalizations and conclusions which do not sufficiently inform the defendants of the facts so that they might know what they would be called upon to meet." Leventhal v. Dockser, supra. G. L. c. 231, Section 7, Second. The counts designated by the plaintiff as being for "malicious abuse of criminal process" do not allege facts sufficient to constitute that cause of action. Leventhal v. Dockser, supra. The counts described as being for "extortion" and for "coercion and duress" do not state facts supporting any recognized civil cause of action in this Commonwealth. In his "contract" action the plaintiff attempts to combine a claim for damages with a request for a declaration from the court that certain documents and transfers of securities, allegedly executed by the plaintiff and his mother in favor of the defendants, are "void or voidable." All four counts in this action are based upon an alleged agreement that if the plaintiff executed and transferred such instruments he would receive a "guaranteed suspended sentence" in a pending criminal prosecution. The plaintiff's reliance on this patently illegal agreement appears on the face of his declaration, and a demurrer to all counts based upon it was properly sustained. See Atwood v. Fisk, 101 Mass. 363, 364. The refusal to grant leave to amend was within the discretion of the trial judge and, no abuse of discretion having been shows, the orders sustaining the demurrers in all three cases are affirmed. Leventhal v. Dockser, supra, and cases cited. Having upheld the sustaining of the demurrers in the contract action, we do not consider whether the answer in abatement was also properly sustained.

So ordered.


[Note 1] The partners in the law firm of Choate, Hall & Stewart of Boston.

[Note 2] Both entitled William J. Leventhal vs. American Discount Corporation & others.


361 Mass. 894

May 11, 1972

In 1961, Commonwealth v. Penta, 352 Mass. 271, 274-276, dealt with the sufficiency of three affidavits as basis for issuing separate warrants to search a garage. We held the first affidavit did not comply with

Page 895

G. L. c. 276, Section 2B, as amended, because it showed no basis for the affiant's knowing facts asserted in the affidavit. We suppressed evidence obtained under the first warrant. The second and third affidavits (see pp. 275-276) in terms were adequate. We did not suppress the evidence seized under the resulting warrants. Our 1967 decision led Penta to discover that the second and third warrants (and affidavits) were based upon knowledge obtained during the illegal search under the first warrant. Penta made no such contention in his 1967 appeal from conviction. Penta then sought a writ of habeas corpus in the United States District Court which was dismissed without prejudice because Penta had not exhausted his State court remedies. Penta then sought a rehearing in this court. Before passing upon his request, we directed (September 9, 1971) that there be a new evidentiary hearing before a Superior Court judge upon a motion for a new trial. This was done. The judge assigned to hear the matter (the trial judge having retired) has found (1) that the second and third warrants were issued on the basis of the affiant's knowledge obtained by the illegal search, and (2) that Penta's conduct did not amount to a waiver of any of his constitutional assertions. The case now comes to us upon what is, in effect, a report by the judge who heard the motion for new trial. Although Penta at trial and in his 1967 appeal should have made his present contentions (see Commonwealth v. Johnson, 352 Mass. 311, 318), his failure was probably because his counsel expected that all the warrants would be held invalid, or none of them. If the matter had been suitably raised in 1967 (although the evidence in no way suggests Penta's freedom from guilt), his convictions probably would have been set aside. In the confused circumstances, we resolve doubts in his favor and hold that his conduct at trial and in 1967 did not constitute a waiver. See Commonwealth v. Underwood, 358 Mass. 506, 509-511. We note that the matter could have been disposed of in the Superior Court by granting a new trial.

Judgments reversed.

Verdicts set aside.