PISARCZYK v. LYNCH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The pro se plaintiff, George R. Pisarczyk, appeals from a judgment dismissing his claims against the Department of Environmental Protection (DEP), as well as State and town officials. The plaintiff had sought the designation of Lake Lashaway as a “Great Pond” pursuant to G. L. c. 91, § 35. The DEP declined, and the plaintiff brought suit. A judge of the Superior Court dismissed the claims for lack of subject matter jurisdiction, see Mass. R. Civ. P. 12 (b) (1), as amended, 487 Mass. 1499 (2019), and for failure to state a claim upon which relief can be granted, see Mass. R. Civ. P. 12 (b) (6), as amended, 487 Mass. 1499 (2019). We affirm.

Discussion. We review the allowance of a motion to dismiss under either rule 12 (b) (1) or rule 12 (b) (6) de novo. “[W]e accept the factual allegations in the plaintiff['s] complaint, as well as any favorable inferences reasonably drawn from them, as true.” Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15, 20-21 (2006), quoting Ginther v. Commissioner of Ins., 427 Mass 319, 322 (1998).

Passing on the applicability of review under G. L. c. 30A, § 14, we treat the appeal from the judgment against the DEP and the State and local defendants as an appeal in the nature of certiorari. See G. L. c. 249, § 4.⁴ “A civil action in the nature of certiorari ․ shall be commenced within sixty days next after the proceeding complained of.” Id. See Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 131 (2013). The DEP issued its notice on September 21, 2016. Pisarczyk initiated the current suit in February 2019, more than two years later. The action against the DEP, and the claims against the State and town officials to the extent based on the same theory, are therefore untimely.

The plaintiff nonetheless challenges the merits of the DEP's actions, and for the first time at oral argument, asserts that his action against all of the defendants was one for fraud, to which a longer limitations period applies. “Objections, issues, or claims ․ that have not been raised at the trial level are deemed generally to have been waived on appeal.” Scheffler v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 905 (2013), quoting Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997).

Even if we were to reach this ground of appeal, the plaintiff would fare no better. A careful review of the complaint shows that the plaintiff plainly took issue with the DEP ruling and the procedure used to reach it, and challenged the validity and accuracy of the maps and documents that were submitted by the town officials. However, there are no specific allegations supporting the claimed fraud, other than conclusory assertions that the maps and statements provided by the town officials were false and misleading, and that the State officials also “conspired” with the town officials to provide this information to the DEP. “The requirement that fraud must be pleaded with particularity is standard to notice pleading, and appears in our rules of civil procedure: ‘In all averments of fraud, ․ the circumstances constituting fraud ․ shall be stated with particularity.’ ” Billings v. GTFM, LLC, 449 Mass. 281, 293-294 (2007), quoting Mass. R. Civ. P. 9 (b), 365 Mass. 751, (1974). The complaint does not meet the particularity requirement.

Furthermore, fraud claims against the public entities are barred by the Massachusetts Tort Claims Act (MTCA), G. L. c. 258, § 10 (c). The complaint is directed at the town officials, and names the State actors in their official capacities. It alleges wrongdoing undertaken in their official capacity, and requests affirmative relief against them in their official capacities. The complaint is therefore barred by § 10 (c). See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 626 (2012); Tivnan v. Registrar of Motor Vehicles, 50 Mass. App. Ct. 96, 102 (2000).⁵

Finally, even if we were to construe the complaint as one for negligence or negligent misrepresentation, the result would not change. Before bringing a negligence or a misrepresentation claim against a public entity, a plaintiff must first follow the presentment requirements of the MTCA. See G. L. c. 258, § 4. “A civil action shall not be instituted against a public employer on a claim for damages ․ unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose.” Id. “ ‘This strict presentment requirement is a statutory prerequisite for recovery under the [a]ct,’ the purpose of which ‘is to allow public employers the opportunity to investigate and settle claims and to prevent future claims through notice to executive officers.’ ” Magliacane v. Gardner, 483 Mass. 842, 851 (2020), quoting Shapiro v. Worcester, 464 Mass. 261, 267-268 (2013). Presentment was not alleged in the complaint, and the plaintiff acknowledged at oral argument that he had not sent a presentment letter. For these additional reasons, the complaint failed to state a claim upon which relief may be granted as to all of the defendants.

Judgment affirmed.

FOOTNOTES

4.   We also pass on whether, as the town officials assert as alternative grounds for affirmance, the plaintiff would have been permitted to seek review under 310 Code Mass. Regs. § 9.17 (2014), whether the defendants are immune from suit, or whether the plaintiff had standing.

5.   The plaintiff also claims that the town officials and the two State legislators conspired to interfere with his appeal by opposing it with false documents in a coordinated fashion. We have not been cited any authority for the proposition that town officials and other elected officials may not coordinate a response to a request for public comment. We have addressed the claims based on negligence or fraud above.