415 Mass. 358

May 3, 1993 - May 28, 1993

Middlesex County


The president of a corporate employer was not a "person having employees" for purposes of G. L. c. 149, Section 150C, which provides criminal penalties for an employer's failure to procure or keep in force insurance coverage when employee wages are withheld for that purpose, and a complaint under that statute was correctly dismissed. [359-360]

COMPLAINT received and sworn to in the Framingham Division of the District Court Department on June 26, 1991.

On transfer to the jury session of that division, the case was heard by Robert V. Greco, J., on a motion to dismiss.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Robert N. Sikellis, Assistant Attorney General, for the Commonwealth.

George R. Desmond for the defendant.

NOLAN, J. We affirm the order dismissing the complaint as to the defendant for reasons hereinafter set forth. We assume, without deciding, that the Commonwealth's appeal was timely filed. The defendant was the president of C & M Electric, Inc. (C & M), a Massachusetts corporation, for which one Jeffrey A. Taylor worked. Taylor sought process by criminal complaint against C & M and the defendant for violation of G. L. c. 149, Section 150C (1990 ed.), which provides criminal penalties against "[a]ny person having employees . . . who withholds or deducts wages from employees for the purpose of purchasing or contributing toward the purchase of a blanket or general policy of insurance . . . and who fails to

Page 359

purchase such coverage or keep such coverage in force . . . ." Possible punishment for violation includes imprisonment for not more than six months or a fine of not more than $1,000. Id. C & M has filed for protection in bankruptcy.

The narrow issue is whether the defendant was the "employer" of Taylor within the meaning of Section 150C. The motion judge concluded that the defendant, as a corporate officer, was not Taylor's employer. We agree.

It was open to the Legislature in G. L. c. 149, Section 150C, to render corporate officers criminally liable as it has done in G. L. c. 149, Section 148 (1990 ed.), which deals with the payment of wages. The Legislature did not make corporate officers liable under Section 150C. Criminal statutes are to be construed strictly. Commonwealth v. Marrone, 387 Mass. 702, 706 (1982), and cases cited. It has been said that "[t]he words of a criminal statute must be such as to leave no reasonable doubt as to its meaning or the intention of the legislature." Id. at 706, quoting 3 C. Sands, Sutherland Statutory Construction Section 59.04, at 13 (4th ed. 1974).

The Commonwealth argues that there should have been an evidentiary hearing. We do not agree. The Commonwealth concedes that the only issue is whether the language of the statute should be interpreted to include corporate officers as employers. Statutory interpretation is a pure question of law. Therefore, an evidentiary hearing on this issue would have been inappropriate because, "where it is clear by reason of established facts and established law that the defendant cannot be convicted, the Commonwealth and the defendant should not be put to the trouble and expense of a trial." Commonwealth v. Hare, 361 Mass. 263, 269 (1972). We are not unmindful of the procedure set forth in Commonwealth v. Brandano, 359 Mass. 332, 337 (1971), but in the present case such procedure is not required, since a reading of the statute itself compels the conclusion as a matter of law. We hold as a matter of law that the defendant, as the corporate president, was not the "person having employees," within the language of G. L. c. 149, Section 150C.

Order affirmed.