AUGUSTUS P. CHARBONNIER & others vs. PAUL F. AMICO, trustee, & others.

KAPLAN, J. In this suit commenced in the Superior Court for the county of Suffolk, the judge entered interlocutory decrees sustaining the defendants' demurrers to the plaintiffs' bill in equity, [Note 1] and, after denying the plaintiffs' motion to amend their bill, [Note 2] he entered on November 20, 1973, a final decree dismissing the bill, from which the plaintiffs take their appeal. The essential question for review, expressed in the terminology of the Massachusetts Rules of Civil Procedure effective July 1, 1974, [Note 3] is whether the complaint states a claim upon which relief can be granted, that defense having been presented by the defendants' motions to dismiss. Rule 12 (b) (6), 365 Mass. 754 .

Through the excessively adjectival allegations of the complaint, [Note 4] the plaintiffs' story emerges as follows.

The plaintiffs (appellants here), eleven in number, are residents of the Charlestown area of Boston and members of an unincorporated association called "Concerned Citizens of Charlestown." They complain of three named defendants (appellees here), Paul F. Amico, as

Page 148

trustee of the "Piemonte Family Trust," the Boston Redevelopment Authority (B. R. A.), and the city of Boston.

For a considerable period of time prior to the events in suit, a corporation, Downtown Auto Parks, Inc., doing business under the name, "One Two Three Car Wash," owned and operated a car wash located at 294 Causeway Street in Boston. As of 1970, Evelyn P. Piemonte was the president, Gabriel F. Piemonte the treasurer, and Paul F. Amico the clerk, of the corporation. In December, 1970, the city of Boston acquired the car wash premises by eminent domain.

Much earlier, in 1965, B. R. A. had designed an urban renewal plan for Charlestown which was approved by the mayor and city council of Boston and in that connection a "cooperation agreement" was entered into between B. R. A. and the city. The renewal plan is in process of being carried to completion. In August, 1971, B. R. A. advertised the availability of a certain parcel "C-2A1" (the complaint places it in Charlestown, but without more exact location) for redevelopment as a commercial site. That month the Downtown corporation informed B. R. A. of its interest in relocating and in becoming the redeveloper of the parcel. Subsequently Evelyn P. Piemonte and Gabriel F. Piemonte submitted a proposal, which was later amended to name as the proposed redeveloper only Amico, as trustee of the Piemonte Family Trust, which is alleged to be a trust for the benefit of the grandchildren of Gabriel F. Piemonte. The proposal was for a car wash. The projected transaction aroused the opposition of the plaintiffs, among other local residents, because in their opinion the site was inappropriate for the proposed use. This view was communicated to B. R. A. Nevertheless B. R. A. voted on September 7, 1972, to designate Amico, as trustee, as redeveloper. The decision was advertised on November 8, 1972. Boston Redevelopment Authority withheld further action because of the continued protests of the

Page 149

"Concerned Citizens," but, evidently after hearing them, it voted on April 5, 1973, to reaffirm the designation of Amico.

Searching for the sting of illegality in the allegations of the complaint, we find it suggested in two ways. [Note 5] There is an allegation that "[t]he Urban Renewal Planners of Project R55 [for Charlestown] at no time filed an environmental impact study and a negative statement was never filed prior to commencing redevelopment activities in this area." The complaint also refers to the conflict of interest statute, G. L. c. 268A, and alleges that Gabriel F. Piemonte was at relevant times a member of the Boston city council, prohibited by Section 20 (a), a criminal provision, from knowingly having a "financial interest, directly or indirectly" in a "contract" made by a municipal agency of the same city. [Note 6] Filed in April, 1973, shortly after B. R. A. finally designated Amico as redeveloper, the complaint prayed injunctive relief against this projected use of the parcel, and for good measure demanded damages against the defendants "individually and severally . . . for the time and expenses . . . [the plaintiffs] have incurred to prevent this harmful and unlawful relocation." [Note 7]

Page 150

The complaint is notably thin in its substance, as the judge may well have found in sustaining the demurrers. With respect to the abrupt allegation about "environmental impact," the plaintiffs in their argument mentioned the National Environmental Policy Act of 1969, effective January 1, 1970 (P. L. 91-190, 83 Stat. 852, codified as 42 U. S. C. Sections 4321, 4331-4335, 4341-4347 [1970]). It appears on the face of the complaint that the basic renewal plan long antedated the statute, and there are no averments that the particular proposal here in question, or any segment of the plan embracing the proposal, is so distinct from the plan as a whole and its performance so timed as to require separate treatment under the statute. Cf. Jones v. Lynn, 477 F. 2d 885 (1st Cir. 1973). Nor does the complaint indicate what the Federal involvement in the relevant part of the plan is supposed to be that would bring the statute into play. We may pretermit the question of a need to join the interested Federal agencies when the statute applies and is invoked. [Note 8] The plaintiffs also referred in argument to the State Environmental Policy Act (St. 1972, c. 781, Section 2, codified as G. L. c. 30, Sections 61-62), of which the section requiring the filing of environmental impact statements, G. L. c. 30, Section 62, became effective July 1, 1973. The matter of the timing of performance is here also to the fore; not only the basic renewal plan but even the particular proposal and, indeed, the present suit, antedated Section 62, and there are no saving averments in the complaint. See Boston v. Massachusetts Port Authy. 364 Mass. 639, 659-661 (1974). Cf. Secretary of Environmental Affairs v. Massachusetts Port Authy. 366 Mass. 755 (1975).

Page 151

With regard to conflict of interest, under the provisions of G. L. c. 268A, Section 21 (a), which allow a private action to rescind a transaction by a municipal agency infected by a violation of Section 20 (a), that violation must have "substantially influenced" the action taken by the municipal agency in the particular matter. [Note 9] This is a significant part of the gravamen, see Crall v. Leominster, 362 Mass. 95, 106 (1972), but the present complaint does not include such an allegation. [Note 10] To return to Section 20 (a) (quoted at n. 6 above), there is also a difficulty in the present case in making out the requisite "financial interest" in the municipal employee. A trust described as one for the employee's grandchildren is not on its face a financial interest of the employee, direct or indirect (compare the situation in Starr v. Board of Health of Clinton, 356 Mass. 426, 429-430 [1969]), [Note 11] and if the

Page 152

pleader meant to charge that the trust was a fraudulent pretense on the employee's part, as an oblique remark in the complaint suggests, then the pleading was not ample enough, for according to the salutary special principle of Rule 9 (b), 365 Mass. 751 "[i]n all averments of fraud . . . the circumstances . . . shall be stated with particularity." [Note 12]

In considering whether this complaint can survive the motions to dismiss, we are mindful that the new Rules represent a sweeping overturn of attitudes toward pleading. For example, whereas under the previous dispensation in this Commonwealth "[n]o intendment in favor of the pleader . . . [could] be made upon a demurrer," see Moskow v. Boston Redevelopment Authy., supra, 349 Mass. at 563 (1965), quoting from Walter v. McCarvel, 309 Mass. 260, 263 (1941), and pleadings were generally to be construed strictly against the pleader, see Hawes v. Ryder, 100 Mass. 216, 218 (1868), the contrary attitude is to be taken under the new Rules, as the Reporters' Notes under Rule 8 (a) (1) and (b) and elsewhere take pains to say. So also a complaint need not, as under G. L. c. 231, Section 7, Second (now repealed by St. 1973, c. 1114, Section 157, except as to the District Courts), "state

Page 153

concisely and with substantial certainty the substantive facts necessary to constitute the cause of action"; it is now enough for the complaint to "contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief" (Rule 8 [a] [1], 365 Mass. 749 ). The reasons for the abandonment of the inherited stiff pleading requirements in favor of the simplified style of the new Rules are well known and need not be rehearsed here; they are explained by the Reporters, and have been often repeated in the decisions interpreting the Federal Rules of Civil Procedure upon which our Rules are based. We would be loath to renew the futile paper chase for the supposedly exact pleading, and shall resist any tendency so to interpret the new Rules contrary to their purpose and spirit. Nevertheless the Rules are not designed to encourage a plaintiff to put in a grievously murky complaint, without sufficient attention to its basis in the substantive law, in hopes of somehow finding something helpful to his case in the course of the discovery procedure.

Although we have found much fault with the complaint, we cannot say that when the plaintiffs' counsel reexamine the facts and law they will be unable to state a claim. Cf. Vogelaar v. H. L. Robbins & Co. Inc. 348 Mass. 787 (1965). We recognize the public importance of the subject matter, cf. United States v. Hayes Intl. Corp. 456 F. 2d 112, 121 (5th Cir. 1972), and we give weight to the fact that the demurrers, which recited the then conventional battery of grounds, from failure to state a cause of action to multifariousness, were sustained without indication of reasons, see Griffin v. Locke, 286 F. 2d 514, 515 (9th Cir. 1961). [Note 13] Accordingly,

Page 154

we think it best to afford the plaintiffs an opportunity to reframe their complaint. For this reason, the decree appealed from will be reversed and the plaintiffs will have leave to file an amended complaint in the Superior Court within forty days of the date of the rescript. [Note 14] The defendants may then move or answer according to the Rules.

So ordered.