TESSA WOLFE & Another v. JOHN BUDZYNA & Another. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-543
TESSA WOLFE & another1
vs.
JOHN BUDZYNA & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from an order of the Superior Court, the
individual defendants claim error in the denial of their motion
for summary judgment, which sought dismissal of the claims
against them on the basis of immunity under G. L. c. 231, § 85W
(the Charitable Immunity Statute).3 We conclude that genuine
disputes of material fact precluded entry of summary judgment
and affirm.
1 Austin Davy.
2 James Solomon. The amended complaint also named Daniel
Antonelli as a defendant, but the claims against him were
dismissed with prejudice in the trial court and he is not part
of this appeal.
3 Because the Charitable Immunity Statute provides qualified
immunity from suit and not simply from liability, "an order
denying a motion to dismiss or a motion for summary judgment
brought by a volunteer for a nonprofit organization based on the
defense of charitable immunity is subject to interlocutory
appeal as of right." Lynch v. Crawford, 483 Mass. 631, 640
(2019).
A party is entitled to summary judgment where the moving
party "shows that, viewing the evidence in the light most
favorable to the nonmoving party, 'there is no genuine issue as
to any material fact and that the moving party is entitled to a
judgment as a matter of law.'" Lynch v. Crawford, 483 Mass.
631, 641 (2019), quoting Mass. R. Civ. P. 56 (c), as amended,
436 Mass. 1404 (2002). The moving party may satisfy this burden
either by submitting affirmative evidence that negates an
essential element of the opposing party's case or by
demonstrating that the opposing party has no reasonable
expectation of proving an essential element of the case at
trial. Flesner v. Technical Communications Corp., 410 Mass.
805, 809 (1991). Our review of the denial of a motion for
summary judgment is de novo. See Gennari v. Reading Pub. Sch.,
77 Mass. App. Ct. 762, 763 (2010).
The Massachusetts Wage Act, G. L. c. 149, § 148, imposes
liability for unpaid wages on an employer, as well as on the
employer's president and treasurer. See Segal v. Genitrix, LLC,
478 Mass. 551, 558 (2017). The Charitable Immunity Statute
protects uncompensated officers of a nonprofit organization from
liability for civil damages "as a result of any acts or
omissions related solely to the performance of his duties as an
officer." G. L. c. 231, § 85W. It does not, however, protect
acts or omissions "intentionally designed to harm" or that are
2
"grossly negligent . . . which result in harm to the person."4
Id.
In the present case, the undisputed facts in the record
reveal the following. Boston Children's Theater, Inc. (BCT), a
nonprofit organization, struggled financially for several years
leading up to its declaration of bankruptcy, resulting in unpaid
wages owed to the plaintiffs.5 Defendants James Solomon and John
Budzyna served as treasurers for BCT; Solomon also served as
president. Neither was compensated for their service. The
essential elements of a Wage Act claim and of a Charitable
Immunity Statute defense are therefore met.
The parties differ on whether the individual defendants'
actions could be construed to support an intent to harm the
plaintiffs. Both defendants were aware that BCT employees were
owed wages and yet continued to work. While Budzyna was serving
as BCT treasurer, BCT's executive director regularly sent him a
monthly list of vendors to be paid; Budzyna then used an
electronic banking program to approve payments to those vendors.6
4 The plaintiffs did not allege any grossly negligent actions by
the defendants in their opposition to the defendants' motion for
summary judgment, so we consider only whether the defendants
acted with an intent to harm.
5 BCT was named as a defendant in the plaintiffs' original
complaint, but the claims against it were stayed after it filed
a suggestion of bankruptcy. The plaintiffs later filed an
amended complaint that did not name BCT as a defendant.
6 BCT's former executive director is not a party to this suit.
3
For several months in which Budzyna approved payments to outside
vendors, he was aware that BCT employees, including the
plaintiffs, were still owed back wages. Budzyna also told BCT's
unpaid employees, including at least one of the plaintiffs, that
he and the board were "working on" addressing unpaid wages, and
that he would do what he could to ensure that the wages were
paid.
Like Budzyna, Solomon had control over BCT's expenses while
serving as treasurer and interim president, and directed that
funds be used to repay vendors and donors instead of employees.
Solomon also told BCT employees, including the plaintiffs, that
he was "working on" getting them paid.7 Although Solomon
informed the BCT board that BCT would not be able to make
payroll, he did not inform the plaintiffs. Despite
acknowledging that the plaintiffs continued to work without pay
after bringing their payroll concerns to him, Solomon did not
file an insurance claim to cover unpaid wages until November
2019, shortly before BCT filed for bankruptcy and after BCT had
consistently struggled to make payroll for several months.
7 Solomon told another BCT employee in an e-mail message to "have
faith that while you do the excellent job I am told you do, I
will be working with [the executive director] to make sure the
money is there, not only for you to be paid on time, but for you
to receive the back-pay that no one should have to wait for!"
4
Though Budzyna and Solomon claim that merely allowing or
encouraging employees to continue working without pay does not
show an intent to harm, the Supreme Judicial Court upheld denial
of summary judgment on very similar facts in Lynch v. Crawford,
483 Mass. 631 (2019).8 In Lynch, former employees of a
financially struggling nonprofit organization brought Wage Act
claims against the former president. 483 Mass. at 632. The
president had personally promised employees that they would be
paid, while he was aware that the organization would not make
payroll and chose to direct funds to outside vendors instead of
to employees. Id. at 642. The Court held that those actions
constituted "an intentional design to harm employees by failing
to pay them the wages they were due." Id. at 644.
As in Lynch, in the present case both Budzyna and Solomon
were aware that BCT would not timely make payroll, and that the
funds necessary to do so would not be forthcoming, based on
BCT's financial circumstances. Cf. Lynch, 483 Mass. at 642.
Both Budzyna and Solomon personally assured employees that they
would be paid. Both Budzyna and Solomon directed funds be paid
8 The defendants' contention that their expressed interest in,
and efforts toward, seeing that the plaintiffs get paid all
wages owed negates an "intent to harm," imports a malice
standard that is not supported either by the language of the
statute or by caselaw. See Lynch, 483 Mass. at 644 (jury could
find that defendant's actions in encouraging employees to work
and assuring them payment was forthcoming showed intentional
design to harm).
5
to vendors rather than to pay the plaintiffs' back wages.9 The
evidence in the summary judgment record, viewed in the light
most favorable to the plaintiffs and drawing all reasonable
inferences in their favor, presents a triable question of fact
whether the defendants, as treasurers and president of BCT,
"acted with an intentional design to harm employees by failing
to pay them the wages they were due." Lynch, supra at 644.
Accordingly, we affirm the order denying the defendants' motion
for summary judgment.
So ordered.
By the Court (Green, C.J.,
Rubin & Massing, JJ.10),
Clerk
Entered: April 11, 2023.
9 We acknowledge that the defendants' decision to pay certain
bills (such as for rent) was understandable, in that some
payments were necessary to preserve the viability of the
business as a whole, and that failure to preserve the business
would result in a complete inability to pay wages to employees.
10 The panelists are listed in order of seniority.
6