DocketNumber: No. 01-P-1669
Citation Numbers: 60 Mass. App. Ct. 303
Judges: Duffly
Filed Date: 1/8/2004
Status: Precedential
Modified Date: 6/25/2022
Robert Jacobs purchased an instant lottery ticket that, on its face, entitled him to a $10 prize, but, on the basis of a mistake contained in lottery advertising, he sought to collect a cash prize in the amount of $4,001,350. The State Lottery Commission (commission) denied Jacobs’s claim. The Superior Court affirmed the commission’s decision following its review in accordance with G. L. c. 30A, § 14. We affirm.
1. Background. The commission introduces several new instant games per year, each running for approximately thirteen
Soon thereafter, lottery officials discovered the mistake and took remedial measures. On November 15 and 16, 1996, they notified lottery sales agents of the error by issuing Special Report 70 through online computer terminals, instructing agents to remove all Holiday Bonus change mats and posters.
Unfortunately, a change mat with the incorrect information remained in place at the Route 9 Beer and Wine store in South-borough, where Jacobs made a purchase of Holiday Bonus tickets. On one of the tickets, he uncovered a ★ symbol. The prize reflected in the space with the ★ symbol was $5. In another space on that ticket, he uncovered a winning number also reflecting a $5 prize. An agent validation code, which appears on each ticket and allows a sales agent to determine that ticket’s value, established that the total prize for Jacobs’s winning ticket was $10. Jacobs claimed entitlement to the combined value of all ten prizes shown on the ticket, $4,001,350. Upon review of the language on Jacobs’s ticket, Murray, the counter clerk, disagreed with Jacobs’s assessment and handed the ticket back. Jacobs left with the disputed ticket and the change mat setting forth the incorrect rule.
Jacobs first submitted his claim form to the commission one and one-half years later, on April 9, 1998. The claim was thereafter denied and Jacobs pursued various administrative avenues,
2. Discussion. The commission found facts in accordance with the evidence and ruled that, with respect to the ★ symbol, Jacobs was not entitled to the prize amount he claimed because the ticket rules, as set forth on the ticket he had purchased,
It was up to the hearing officer to determine the circumstances under which the ticket was sold. The hearing officer expressly discredited the testimony of Jacobs and Murray that was to the effect that Jacobs, asking about any new games, had closely inspected the change mat and relied on the incorrect rule in making his decision to purchase two Holiday Bonus tickets.
In discrediting the testimony of Murray, the hearing officer found that Murray knew Jacobs from his regular visits to the Route 9 Beer and Wine store, where Jacobs frequently purchased substantial amounts of lottery products, buying between twenty and eighty dollars in tickets at a time. Furthermore, based on the activation date of the disputed ticket, Jacobs could not have purchased it until at least December 24, 1996,
The hearing officer found that Jacobs had initially made the claim to the commission that he purchased the ticket in early November, 1996, and that it was in Jacobs’s interest to claim he had purchased the ticket prior to November 15, 1996, during a period when the incorrect Administrative Bulletin No. 105 (sup
The parties contest whether the commission may be contractually bound by the terms of the incorrect advertisement. See Bretton v. State Lottery Commn., 41 Mass. App. Ct. 736, 741 (1996) (by purchasing a ticket, a party enters into a contract with the commission). The commission argues that, as a general rule, an advertisement is not considered an offer, but rather an invitation to make an offer or enter into a bargain. See 1 Williston, Contracts § 4:7, at 285-288 (4th ed. 1990 & Supp. 2003). Massachusetts courts have followed this rule in many contexts. See Weinstein v. Green, 347 Mass. 580, 582 (1964) (request for bids on real estate not an offer); Cannavino & Shea, Inc. v. Water Works Supply Corp., 361 Mass. 363, 365-366 (1972) (quotation sent to plaintiff was not an offer).
We need not decide whether the language on the change mat was binding on the lottery commission. In light of the hearing officer’s credibility-based determinations that Jacobs had not asked about any new games (and thus had no reason to be directed to look at the change mat), and that his purchase was not in reliance on anything set forth on the change mat, we think this case is controlled by the principles stated in Ruggiero v. State Lottery Commn., 21 Mass. App. Ct. at 689. “According to the rules stated on . . . the ticket, [a ★ symbol would entitle the holder to the “prize shown”]. Those rules do not appear to us to be unreasonable or unfair. They appear in simple language
Judgment affirmed.
The sample Holiday Bonus tickets shipped to the commission by the printer in September, 1996, contained the incorrect rule. The error on the tickets, however, was caught and corrected prior to the first shipment to the sales agents. The “win all prizes shown” rule was intended to apply solely to the “Wild 25” game, another new game introduced on the same day as the Holiday Bonus game.
The general rules then in force for instant games appear at 961 Code Mass. Regs. § 2.31 (1996). Prior to 1995, lottery officials issued the rules governing particular instant games through emergency regulations (see G. L. c. 30A, § 3) that automatically expired after ninety days. In 1995, pointing out the logistical difficulties in this system, the regulations division of the Office of the Secretary of State recommended the issuance of rules for specific games as administrative bulletins. That office opined that the change would not violate G. L. c. 10, § 24, as long as the general regulations in § 2.31 were maintained. Lottery officials apparently agreed with the assessment. In June, 1996, after proper notice and a public hearing, the commission amended 961 Code Mass. Regs. § 2.31(4)(p) to reflect the change (ticket is void if “[i]t fails to meet any requirement contained in the Administrative Bulletin issued by the Director [of the State Lottery] for any particular Instant Game”). Neither administrative bulletin at issue in this case was filed with the Office of the Secretary of State or published in the Massachusetts Register. In view of our decision, we do not reach the issue whether the lack of filing or publication violates G. L. c. 10, § 24.
Special reports are sent electronically to the agents’ point-of-sale terminals.
Jacobs filed a timely request for reconsideration of the denial of his claim. Following an informal hearing before the acting executive director of the commission, the denial was affirmed. Jacobs then timely requested a hearing before a member of the commission.
Uncontradicted testimony credited by the hearing officer describes the following procedure: when a book of instant lottery tickets is unwrapped for sale, the sales agent “activates” the book by means of an electronic scan. The date of activation is thereby reported to and maintained by the commission’s computers. In this case, the activation date of the book containing the disputed ticket was December 24, 1996.