DocketNumber: No. 9700179
Citation Numbers: 7 Mass. L. Rptr. 565
Judges: Fabricant
Filed Date: 10/21/1997
Status: Precedential
Modified Date: 10/17/2022
INTRODUCTION
Plaintiffs, tenants in a Cambridge apartment building, seek damages against their landlord for alleged violations of the State Sanitary Code and unfair trade practices under G.L.c. 93A. Count I of the complaint alleges violations of provisions of the State Sanitary Code requiring that dwelling units be maintained in such a way as to be weather tight; plaintiffs allege that their units have experienced “violent and repellent flooding.” In Count II, plaintiffs allege violation of separate provisions of the State Sanitary Code governing charges for utilities. In Count III, plaintiffs allege that the violations of the Sanitary Code alleged in Counts I and II also constitute unfair trade practices in violation of G.L.c. 93A. Presently before the Court is the plaintiffs’ motion for partial summary judgment on Count II of their Complaint, along with their motion for class certification as to that Count. Defendants argue in their opposition that they are entitled to summary judgment. For reasons that will be explained, summary judgment will be entered on Count II in favor of defendants Massachusetts Institute of Technology and Independent Managers, Inc., and in favor of plaintiffs as against defendant Kennedy Lofts Associated Limited Partnership. Plaintiffs’ motion for class certification will be denied without prejudice to renewal at a later stage of the litigation.
FACTS
The affidavits submitted by the parties in connection with the present motions establish the following facts. The named plaintiffs are twelve residential tenants in a 142 unit apartment building known as Kennedy Biscuit Lofts (“the building”), located in Cambridge. Defendant Massachusetts Institute of Technology (“MIT”) owns the land on which the apartment building is located. Kennedy Lofts Associates Limited Partnership (“Kennedy Lofts”) leases the land from MIT under a seventy-five year ground lease, and owns and operates the building. Defendant Independent Managers, Inc. (“IMI”) serves as Kennedy Lofts’ management agent.
According to the affidavit of a representative of Kennedy Lofts, the heating
This system, according to the affidavit of the Kennedy Lofts representative, and also according to an affidavit of an energy analyst employed by the Massachusetts Housing Finance Agency, “encourages individual control over utility costs and promotes energy conservation generally, and . . . these benefits are not outweighed by the possibility of inaccurate billings to individual tenants." In support of the latter contention, the affiants note that there are “sufficient controls in place to ensure checks of the system’s operations” and that “tenants are afforded appeal rights to voice their concerns about any utility bills they may receive.”
The plaintiffs filed this action on January 10, 1997. Defendants responded with a motion to dismiss, arguing that the plaintiffs had failed to comply with the procedural requirements set forth in G.L.c. 111, §127C, for private enforcement of the State Sanitary Code. Apparently in response to that contention, on February 18, 1997, plaintiffs made a request to the Cambridge In-spectional Services Department (“ISD”) for an inspection of the building’s heating and cooling system. The ISD performed the requested inspection, and on April 9, 1997, issued a notice of violation, citing 105 C.M.R. §410.354, and directing that the violation be corrected within fourteen days. Defendants petitioned the ISD for a hearing to contest the notice of violation. In the alternative , they requested that the ISD grant a variance from the cited provision of the Sanitary Code, pursuant to its authority under 105 C.M.R. §410.840.
The ISD held an administrative hearing on May 2, 1997, and on September 10, 1997, it issued a written decision granting the requested variance, based on a finding, as required by the regulation, that “strict application and enforcement of the provisions of Section 410.354 of the State Sanitary Code to the Kennedy Lofts premises would do manifest injustice." The ISD reasoned that “(t]he system appears to be a reasonable method to monitor use and allocate cost with the potential for energy conservation and cost savings.” The ISD opined that the system offered tenants the benefit of control over their own costs, and was in that respect preferable to “(t]he likely alternative . . . where the utility costs are prorated as part of the rent" based on number of bedrooms or square footage. The ISD made the variance subject to specified conditions, including the submission of a proposed procedure for resolution of tenant complaints regarding cost allocation. The ISD specified that the variance will be effective until August 31, 1998, and from year to year thereafter, until such time as it might issue notice to the contrary.
At argument on the present motion,
DISCUSSION
A.Summary Judgment Standard
The Court grants summary judgment where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, 404 Mass. 14, 16-17 (1989). Where both parties have moved for summary judgment and “in essence there is no real dispute as to the salient facts or if only a question of law is involved” summary judgment shall be granted to the party entitled to judgment as a matter of law. Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983).
B.Defendants MIT and IMI
Defendants MIT and IMI argue that they have no liability for any alleged violations of the sanitary code in the building, since they are neither the owner of the building nor the lessor of the dwelling units. Plaintiffs make no argument in response, and nothing in the allegations of the complaint or in the affidavits submitted by the plaintiffs suggests a basis for imposing liability on these two defendants. Accordingly, the Court concludes that these two defendants are entitled to judgment as a matter of law on Count II of the plaintiffs’ complaint.
C.Violation of State Sanitary Code
The regulation in issue in Count II, 111 C.M.R. §410.354, provides in pertinent part that:
(A) The owner shall provide and pay for the electricity and gas used in each dwelling unit unless (1) [s]uch gas or electricity is metered through a meter which serves only the dwelling unit . . . ; and (2) [t]he rental agreement provides for payment by the occupant.
*567 (C) If the owner is not required to pay for the electricity or gas used in a dwelling unit, then the owner shall install and maintain wiring and piping so that any such electricity or gas used in the dwelling units is metered through meters which serve only such dwelling unit.
The Department of Public Health (“DPH"), which issued the State Sanitary Code pursuant to its authority under G.L.c. 111, §127A, has construed this regulation in an opinion letter, dated February 13, 1997, issued in response to an inquiry from the Boston Inspectional Services Department. DPH opined that the word “meter,” as used in the regulation, means “a meter installed, inspected, maintained, and read by a utility company subject to the jurisdiction of the Massachusetts Department of Public Utilities." DPH based that interpretation on the DPU’s regulatory prohibition against “reselling of utilities or submetering," which that agency considers inconsistent with enforcement of regulatory requirements that ensure accuracy and protect consumers from excessive or erroneous charges. Based on this interpretation, DPH concluded that the regulation does not permit “a Landlord to charge Tenants for hot water and/or heat used where the means of measuring gas output to such heat is based on a system which is (a) not provided by any authorized public utility company, and (b) installed, maintained and read solely by the landlord or the landlord’s employees or agents.”
Giving substantial deference to the DPH opinion, see Boston Police Superior Officers Federation v. Boston, 414 Mass. 458, 462 (1993) (“[a]n agency’s construction of its own rules and regulations ‘is one to which considerable deference is due’... So long as the agency’s interpretation of its regulations and statutory mandates is rational, and adhered to consistently, it should be respected”), the Boston Housing Court ruled, on March 14, 1997, that the regulation prohibits any “owner-installed metering system,” no matter how accurate and fair such a system may be, and despite whatever merit it may have in promoting energy conservation. Inspectional Services Department v. Parker, Boston Housing Court Criminal Action No. 96-3782.
Despite these authorities, Kennedy Lofts argues that its system does not violate the regulation, on two grounds. First, pointing to the phrase “gas used in a dwelling unit,” Kennedy Lofts notes that no gas is actually combusted in the dwelling units at the building; gas combustion occurs only in boilers located in common areas, producing hot water that in turn produces hot air. The resulting hot air, rather than the gas, is distributed to the dwelling units by fans. The argument is not persuasive. Gas is clearly used in the dwelling units, in the sense that the tenants depend on it to produce their heat, air conditioning, and hot water. Nothing in the language of the regulation limits its application to settings in which combustion actually occurs in the dwelling unit.
Kennedy Lofts’ second argument is that the landlord, rather than the tenants, pays the utility company for the gas, and that the regulation does not expressly prohibit the landlord from passing on the cost by charging tenants amounts, characterized as “additional rent,” based on usage. This argument reads the regulation so literally as to render it a nullity; under this reading, any landlord could deprive its tenants of all the protections described in the DPH opinion letter, merely by advancing payments to the gas company, and then recouping from tenants based on the landlord’s own metering system.
More generally, Kennedy Lofts argues that its system promotes energy conservation and gives tenants control of their energy costs, and that these benefits outweigh any risk of erroneous charges. The system, Kennedy Lofts argues, is more consistent with the both the tenants’ interests and the public interest than the alternative of charging higher rent with utilities included. As the ISD’s decision recognizes, the argument has considerable force as a policy matter. But this Court has no authority to decline to enforce a valid regulation, according to its terms and as construed by its issuing agency, based on such policy arguments. The proper forum for these arguments is the ISD, in application for a variance, as well as DPH, in connection with proposals for regulatory change.
Based on the plain meaning of the regulation, along with DPH’s interpretation of it, as well as the persuasive opinion of the Boston Housing Court in the Parker case, this Court concludes that Kennedy Lofts’ system of charges for heating, cooling, and hot water in the building is inconsistent with the requirements of the regulation. It is therefore necessary to consider the effect of the variance granted by the ISD. It is clear that the ISD has the power to grant a variance from the regulation, pursuant to 111 C.M.R. §410.840, and that in granting the variance the ISD has properly recited the standard set in the regulation. Thus, the variance serves to exempt the building from application of the regulation during the period of its effectiveness.
Chapter 93A, §9(3), however, does grant a remedy in damages for the regulatory violation that occurred prior to the grant of the variance.
D. Class Certification
Plaintiffs have moved, pursuant to Mass.R.Civ.P. 23, for certification of a class with respect to Count II.
The party moving for class certification bears the burden of demonstrating that the following prerequisites have been met:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Mass.R.Civ.P. 23(a); Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 601 (1985). Rule 23(b) further provides that:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Mass.R.Civ.P. 23(b). In determining whether to certify a class, the judge is accorded wide discretion. Brophy v. School Committee of Worcester, 6 Mass.App.Ct. 731, 735 (1978).
Under the numerosity requirement, the court must find that the inconvenience or difficulty of joining all members of the purported class makes class litigation desirable. Joinder need not be impossible, just impracticable, unwise or imprudent. See, e.g. Brophy, supra at 735 (defining impracticable): Westcott v. Califano, 460 F.Supp. 737,744 (D.Mass. 1978). Numbers are not dis-positive; rather, the court should examine the particular circumstances attendant upon the purported class. Andrews v. Bechtel Power Corp., 780 F.2d 124, 131-32 (1st Cir. 1985), cert. denied, 476 U.S. 1172 (1986).
Here, the class of potential plaintiffs consists of those who have been tenants in the 142 apartments in the building during the three year limitations period prior to the filing of the complaint.
The three remaining factors — commonality, typicality, and adequacy of representation — all also favor class certification when Count II is considered in isolation. Clearly common questions of fact and law exist as to Count II. It appears that all tenants were charged for utilities in a manner violative of the State Sanitary Code, prior to the issuance of a variance. While it is certainly possible that the facts that will be
Similarly, the position of the named plaintiffs as to Count II is typical of that of all members of the potential class, in that the injuries involved, if any, arise from the same course of conduct, and the claims of all members of the potential class are based on the same legal theories. See, e.g., Donaldson v. Pillsbury Co., 554 F.2d 825, 831 (8th Cir.), cert. denied, 434 U.S. 856 (1977) (“When the claim arises out of the same legal or remedial theory, the presence of factual variations is normally not sufficient to preclude class action treatment”); In re Bank of Boston Corp. Sec. Lit., 762 F.Supp. 1525, 1532 (D.Mass. 1991) (“The claims of a named plaintiff are considered to be typical of the class when the plaintiffs injuries arise from the same events or course of conduct as do the injuries that form the basis of the class claims, and when plaintiffs claims and those of the class are based on the same legal theory”); Adair v. Sorenson, 134 F.R.D. 13, 17 (D.Mass. 1991). Nothing in the present record suggests that the efforts of the named plaintiffs in advancing their claims under Count II would be in any way inconsistent with the interests of the class. See McNeill v. New York City Housing Auth., 719 F.Supp. at 252.
It appears also that the named plaintiffs have the ability and the incentive to vigorously represent the claims of the class and have obtained adequate counsel. See Hassine v. Jeffes, 846 F.2d 169, 179 (3d Cir. 1988); Andrews v. Bechtel Power Corp., 780 F.2d at 130; Massengill v. Bd. of Educ., Antioch Comm. High School, 88 F.R.D. 181, 185 (N.D. Ill. 1980) (the “adequacy of representation is the key to the integrity of class litigation").
It is less clear, however, that common questions predominate over individual questions, or that a class action is a superior method for the fair and efficient adjudication of the controversy. In this respect, the relationship between the two substantive counts alleged in the complaint gives pause. The flooding alleged in Count I is clearly specific to the named plaintiffs,
ORDER
For the foregoing reasons, the plaintiffs’ motion for summary judgment on Count II is hereby ALLOWED as against defendant Kennedy Lofts Associated Limited Partnership, and DENIED as against defendants Massachusetts Institute of Technology and Independent Managers, Inc., and the request of defendants Massachusetts Institute of Technology and Independent Managers, Inc. for summary judgment on Count II is ALLOWED. Plaintiffs’ motion for class certification is DENIED without prejudice.
The affidavits submitted by both parties suggest, without ever explicitly saying so, that air conditioning is provided under the same system. Hot water, it appears, is provided by the same source, with charges made to tenants based on the number of occupants of the dwelling unit.
The ISD issued its decision on the variance request after the present motions had been filed, and shortly before they were argued.
Soon after the Parker decision, the Kennedy Lofts representative who serves as the defendants’ affiant in this case wrote to the Department of Public Health urging review of its interpretation of the regulation in light of the energy conservation potential of modern monitoring technology. The Department’s Deputy General Counsel responded, by letter dated May 19, 1997, indicating that “we are carefully reviewing this issue and will consider your detailed comments.” Based on this exchange, the defendants assert that "issues pertaining to the meaning and purpose” of the regulation “are currently pending before, and being reviewed by” DPH. The exchange does not support that characterization; nothing in DPH’s response indicates any retreat from the opinion expressed in its previous letter, nor is there is any indication that any rulemaking proceeding is underway to amend the regulation.
No claim is presently before this court for judicial review of the decision to grant the variance, and nothing in this memorandum should be understood as expressing any view as to the merits of any such claim.
With the variance in effect, liability is precluded by G.L.c. 93A, §3, which provides that “[nlothing in this chapter shall apply to transactions or actions otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of the commonwealth!.]”
Since actions under c. 93A are subject to a three year statute of limitations, the relevant time period for this calculation will be the three year period ending upon the filing of this action.
Plaintiffs’ written motion appears addressed to the entire action. At argument, however, plaintiffs acknowledge the individual nature of the flooding alleged in Count I, and limited their request for class certification to Count II.
See note 8, supra.
Defendants assert in their memorandum that “there are distinctions between market rate tenants and assisted tenants . . . with respect to the payment of heating and cooling costs,” but they neither identify the claimed distinctions nor document them.
Defendants assert that the named plaintiffs occupy basement units, and suggest that the flooding problem is unique to that setting.
This analysis assumes liability on Count I, which has yet to be detemined.
The parties have provided no citations to any cases addressing the propriety of certification of a class action with respect to a single count of a multiple count complaint.