379 Mass. 917

January 7, 1980

The defendant died the day after argument of his appeal in this court. If a criminal defendant dies while his appeal is under consideration, normally the judgment should be vacated and the indictment dismissed. Commonwealth v. Eisen, 368 Mass. 813 (1975). Neither the asserted importance of the issues nor any personal interest in the defendant's vindication is sufficient to warrant deciding the appeal. Id. at 814. Counsel have not presented any other reason why we should decide this appeal. The matter of counsel fees will be decided by a single justice of this court.

Judgment on indictment No. 02436 is vacated; the case is remanded to the Superior Court where the indictment shall be dismissed.


379 Mass. 917

February 4, 1980

Plaintiff Datatrol Inc. commenced this action on September 11, 1979, in the Superior Court for Middlesex County, alleging that defendant State Lottery Commission's (Lottery) Third Invitation to Bid and Request for Proposals for On-Line Number Selection Lottery Processing System violated the requirements of G. L. c. 7, Section 22. Datatrol prayed for a temporary restraining order and preliminary injunction forbidding the Lottery and its chairman, members, executive director and deputy director from proceeding to award a contract under the Third Invitation to Bid. Datatrol also asked for a declaration that G. L. c. 7, Section 22, required proper competitive bidding and approval of the State Purchasing Agent for the procurement of the on-line system and that the Third Invitation to Bid did not comport with these requirements. On September 18, the judge granted the preliminary injunction pending the plaintiff's filing of a surety bond. The defendants' motion for summary judgment was denied on September 21. On September 26, Datatrol moved for summary judgment. The parties stipulated that, if G. L. c. 7, Section 22, applies to the procurement contemplated in the Third Invitation to Bid, then the plaintiff's motion should be granted. If not, the motion should be denied. The judge allowed the plaintiff's motion and continued the injunction. We granted a motion to consolidate the defendants' appeal with the appeal in Datatrol Inc. v. State Purchasing Agent, ante 679 (1980).

The Third Invitation to Bid purports to be issued under G. L. c. 10, Sections 24, 26, and G. L. c. 29, Section 29A. It purports to invite bids for a services contract and provides for leasing, rather than purchasing, of equipment. It does not provide for approval of the State Purchasing Agent. The purposes of the system are the same as those of the system described in Datatrol

Page 918

Inc. v. State Purchasing Agent, supra, and that case controls here. We held there that G. L. c. 7, Section 22, generally applies to procurement of an online number selection lottery processing system. We further held that the statute applies even though the contract is for a lease of equipment and for services. In view of the stipulation of the parties, the applicability of G. L. c 7, Section 22, is the only issue before us. We have held G. L. c. 7, Section 22, to apply in the related case before us.

Judgment affirmed.