ELAINE M. SHEA v. MASSACHUSETTS TEACHERS' RETIREMENT SYSTEM & 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-470
ELAINE M. SHEA
vs.
MASSACHUSETTS TEACHERS' RETIREMENT SYSTEM & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After more than fifty years of teaching in both private and
public schools, the plaintiff retired. Her work as a public
school teacher entitled her to certain retirement benefits,
including the ability, under certain circumstances, to "buy
back" service rendered at nonpublic schools for credit towards
the public school retirement benefit. See G. L. c. 32, §§ 1-
28A. The plaintiff applied to the Massachusetts Teachers'
Retirement System to purchase credits towards her retirement
from the time that she worked as a private school teacher in the
employ of the Archdiocese of Boston, beginning in 1970.2 The
1 Contributory Retirement Appeal Board.
2 In her papers, the plaintiff references service from 1970 to
2000. The teachers' retirement board references service from
September 1970 to June 1973.
teachers' retirement system denied her request, determining that
this service was not creditable because she was eligible for
social security benefits during the service. See G. L. c. 32,
§ 3 (4A) (no credit allowed for service if employee entitled to
retirement allowance by Federal government); Rosing v. Teachers'
Retirement System, 458 Mass. 283, 285 n.5 (2010) (G. L. c. 32,
§ 3 [4A] governs purchase of nonpublic school service prior to
1973).
The plaintiff appealed the denial, which was assigned to
the Division of Administrative Law Appeals (division). In
response to the division's order to show cause why her appeal
should not be dismissed for failure to state a claim upon which
relief may be granted, the plaintiff did not dispute that she
was eligible for social security benefits with respect to her
private school employment (which made that service
noncreditable); however, she additionally referenced G. L.
c. 32, § 4 (1) (p), as a source of her entitlement. The
division issued a dismissal on summary disposition, noting that
the plaintiff failed to offer any evidence that "the tuition of
all such pupils taught [while she worked for the Archdiocese of
Boston] was financed in part or in full by the commonwealth" as
required by G. L. c. 32, § 4 (1) (p). The plaintiff further
appealed to the Contributory Retirement Appeal Board (board),
which affirmed the division's decision.
2
The plaintiff then sought Superior Court review of the
board's decision. In April 2021, the board served and filed the
administrative record in answer to the complaint. The plaintiff
was to file a motion for judgment on the pleadings within thirty
days of service of the administrative record. See Superior
Court Standing Order 1-96. Having received no response from the
plaintiff, on January 25, 2022, the court issued a "Notice of
Dismissal for Lack of Prosecution of G. L. c. 30A Appeal." The
notice specifically advised the plaintiff that the action would
be dismissed unless she notified the court within thirty days
that she had served a motion for judgment on the pleadings on
the defendant. The plaintiff failed to do so, and the case was
dismissed on March 2, 2022. The plaintiff thereafter filed a
timely notice of appeal.
The sole issue for consideration in this appeal is whether
the judge abused her discretion in dismissing the plaintiff's
complaint. See Bucchiere v. New England Tel. & Tel. Co., 396
Mass. 639, 641 (1986) (dismissal for failure to prosecute
committed to sound discretion of court). An abuse of discretion
is a decision that "falls outside the range of reasonable
alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
Here, it appears that the plaintiff did nothing to
prosecute the case after the initial filing of the complaint.
3
Approximately nine months after the administrative record was
filed, the court notified the plaintiff of the impending
dismissal and instructed her as to what she needed to do to
avoid dismissal.3 Still, the plaintiff took no action. Under
the circumstances, the judge was well within her discretion to
dismiss the case. See Maciuca v. Papit, 31 Mass. App. Ct. 540,
544 (1991) (court has inherent power to dismiss action which
plaintiff has not prosecuted diligently).4
Judgment affirmed.
By the Court (Sullivan,
Desmond & Singh, JJ.5),
Clerk
Entered: May 24, 2023.
3 We note that the "Notice of Dismissal for Lack of Prosecution
of G. L. c. 30A Appeal" does not appear in the Superior Court
docket, though the document itself indicates that notice was
given to all parties. On appeal, the plaintiff makes no
argument regarding lack of notice.
4 The plaintiff's brief does not address the procedural issue
that led to the dismissal of her complaint; it only addresses
the merits of her underlying claim. Although the merits are not
before us, the plaintiff's brief fails to provide any basis on
which we could conclude that the board's decision is erroneous.
5 The panelists are listed in order of seniority.
4