Opinion
14-P-658
01-15-2015
LINDA M. DeCOTIS v. TOWN OF WRENTHAM.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Linda M. DeCotis, a registered nurse retired from her employment with the town of Wrentham (town) and a member of the Wrentham Municipal Clerical Employees union (union), commenced this action seeking accrued vacation and longevity pay she claimed was due to her under the terms of the collective bargaining agreement (CBA) between the union and the town. Her complaint alleged that the town's failure to make these payments violated G. L. c. 93A. A judge of the Superior Court dismissed the action under Mass.R.Civ.P. 12(b)(1) and 12(b)(6), 365 Mass. 754 (1974). We affirm.
DeCotis alleged in her complaint that she utilized the grievance procedures set forth in the CBA. She further alleged that the town denied her grievance, and the town and the union, "the only parties allowed under the terms of the [CBA] to bring [her] claim to Arbitration," refused to do so. Thereafter, she served a demand letter on the town under G. L. c. 93A, § 9, then filed her suit in Superior Court.
A judge of the Superior Court dismissed the action on two grounds. First, the judge correctly determined that, as a member of the union, DeCotis had no independent right to compel arbitration or to bring a judicial proceeding alleging violations of the CBA. "As a member of the bargaining unit, [DeCotis] may not work the grievance machinery or maintain a judicial proceeding on her own." Peabody Fedn. of Teachers, Local 1289 v. School Comm. of Peabody, 28 Mass. App. Ct. 410, 414 (1990). See Norton v. Massachusetts Bay Transp. Authy., 369 Mass. 1, 1-2 (1975); Frost v. Framingham, 9 Mass. App. Ct. 843, 843-844 (1980). While there are limited exceptions to this rule, DeCotis did not allege any facts in her complaint that would bring her case within one of them.
To the extent DeCotis could proceed against the union for breach of its duty of fair representation, see Peabody Fedn. of Teachers, Local 1289 v. School Comm. of Peabody, supra at 416, based on the limited transcript presented to this court of the hearing on the town's motion to dismiss, DeCotis did not assert any claim against the union.
As an alternative ground for dismissal, the trial court judge also correctly held that G. L. c. 93A was inapplicable because the action arose out of the employment relationship. Under Massachusetts law, such disputes between employers and employees do not occur in the conduct of trade or commerce as required to maintain an action under G. L. c. 93A. See Anzalone v. Massachusetts Bay Transp. Authy., 403 Mass. 119, 121-122 (1988); Psy-Ed Corp. v. Klein, 459 Mass. 697, 719-720 (2011).
On appeal, DeCotis has recast her claim as arising under G. L. c. 149 (Massachusetts Wage Act) and G. L. c. 151. Following the entry of the judgment dismissing the complaint on August 18, 2010, and the timely filing of her notice of appeal on September 7, 2010, DeCotis obtained a private right of action letter from the Attorney General's office dated November 18, 2010, authorizing her to pursue her claims under G. L. c. 149 and G. L. c. 151. (She included the letter as an addendum to her brief.) On May 28, 2014, she obtained leave from this court to seek to amend her complaint in the trial court to add claims under those statutes; however, we also directed that this appeal should proceed. Accordingly, any claim under G. L. c. 149, or G. L. c. 151, is not properly before us, and we do not reach it. "New theories of liability raised for the first time on appeal are deemed waived." Freedman v. United States Liab. Ins. Co., 82 Mass. App. Ct. 331, 335 (2012). See Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004). "Pro se litigants are bound by the same rules of procedure as litigants represented by counsel." McCormick v. Labor Relations Commn., 412 Mass. 164, 170 n.11 (1992).
Judgment affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 15, 2015.