Min Romney
Governor
Kerry Healey
Daniel A. Grabauskas
Secretary
Lt. Govemor
J
To:
Secretary Daniel A. Grabauskas, EDT
Through:
Commissioner John Cogliaoo, MHO
From:
Stephen H. Clark, Administrative Law Judge
Date:
September 30, 2004
Re:
Report aod Recommendatio; u d .
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John Cogliano
Commissioner
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I am pleased to submit for your consideration aod approval the attached report
and recommendation.
The pending administrative appeal of DeLucca Fence
Company, Inc. (DeLucca) arising (rom MHD contract #32047
should be dismissed since DeLucca bas filed an action in
Superior Court to litigate tbe same claim and only tbe
Attorney General may now conduct tbe litigation of DeLucca's
claim.
Massachusetts Highway Department· Ten Park Plaza, Boston, MA 02116-3973· (617) 973-7800
To:
Secmmy Daniel A. Grabauskas, EOT Through:
Commissioner Iohn Cogliano, MHO
From:
Stephen H. Clark, Administrative Law Iudge ~
Date:
September 30, 2004 Re:
Report and Recommendation ¥.~ I am please to submit for your consideration and approval the attached report and
recommendation.
ne peDmg .dmiDistrative .ppeal or DoLo.... FeDce
ComplUlY, In.. (DoLo...) arisiag from MUD CODtract ##32047
Iho.ld he dismissed liDce DoLocca h.. med lUI .ctiOD iD
Superior Court to Dtigate the same c:Wm lUId ...Iy the
Attorney GeDeral may DOW coDduct the DtigatioD of DeLoces'l
cJalm.
Massachusetts Highway Department· Ten Park Plaza, Boston, MA 02116-3fJ73· (617) .973-7800
STATEMENT OF THE APPEAL
DeLucca Fence Company, Inc. (Delucca) appealed from the decision of the
claims committee of the Massachusetts Highway Department (Department) concerning
Department contract #32047(Contract) entered into by Delucca and the Department on
September 10, 2001. Under the Contract DeLucca was to “repair” certain areas of
damaged guardrail along highways in District 4. DeLucca claims that the Department
ordered it to “remove and replace” a one mile length of guardrail along Rt. 3 and
contends that work was different from that described in the Contract.
In addition, DeLucca claims that the specifications for certain fittings on which it
bid were not adequately described. Specifically, DeLucca contends that payment Item
603.21 “wood offset bracket (Thrie Beam)” (Wood Offset Bracket) was plainly
ambiguous and did not refer to the material actually needed in the “remove and replace”
work. DeLucca contends that the needed material is typically described by the
Department as “Guardrail offset block for steel post-Thrie Beam” (Wood Offset Block
For Steel). DeLucca claimed the value of the blocks used was $18.00 each. DeLucca
used 1,618 Wood Offset Blocks For Steel in the work.
DeLucca’s Statement of Claim, dated May 12, 2003, was filed in the Office of the
Administrative Law Judge May 21, 2003. Acting Chief Administrative Law Judge John
McDonnell conducted a hearing on the appeal on October 16, 2003, but not make a
report.
On April 27, 2004 DeLucca filed a complaint in Superior Court, SUCV200401180, asserting claims identical to those raised in its administrative appeal.
DISCUSSION
The question presented is whether DeLucca’s pending administrative appeal
arising under Contract #32047 should be dismissed because DeLucca has filed an action
in the Superior Court seeking relief on an identical claim. I conclude that DeLucca’s
administrative appeal arising under Contract #32047 should be dismissed. Any action
taken by the Department in the hearing or deciding DeLucca’s pending administrative
appeal will necessarily conflict with the functions of the Attorney General. As a matter
of policy, the Department should not hear and decide appeals that could even potentially
interfere with the disposition of identical or related actions in court.
The Attorney General has exclusive jurisdiction to appear for the Department “in
all suits … in which the commonwealth is a party or interested, or in which the official
acts and doings of said [Department] … are called in question, in all the courts of the
commonwealth …. All such suits and proceedings shall be prosecuted or defended by
him or under his direction.” G.L. c. 12, s.3. In the exercise of his statutory and
Constitutional powers, the Attorney General assumes primary control over the conduct of
litigation that involves the interests of the Commonwealth; under his powers in so doing
he decides matters of legal policy normally reserved to a client in the ordinary attorneyclient relationship. See Feeney v. Commonwealth, 373 Mass. 359 (1977). The Attorney
General has the incidental power to compromise or settle matters in which the
commonwealth is a party or interested. See 6 Op. Atty. Gen. 1921, p. 169. The
Department, through proceedings before its Administrative Law Judge, should refrain
from any action that could even potentially interfere with the Attorney General’s conduct
of identical or related litigation.
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DeLucca filed suit in Superior Court against the Department on claims arising
under Contract #32047 while its appeal on the same subject matter was pending in the
Department. Because of the exclusive power of the Attorney General to conduct
litigation filed against the Department, any hearing or disposition of DeLucca’s related
administrative appeal will necessarily conflict with the exclusive statutory and
constitutional authority of the Attorney General.
Practitioners before the Office of the Administrative Law Judge understand that
the filing of a court action results in the dismissal of a pending administrative appeals.
With respect to the Department, the report of the “20th Annual Conference on
Massachusetts Construction Law” states (at page III-5):
It should be noted further that wherever a claim is asserted in a
court action, the MHD Hearing Officer … will refuse to entertain
such claim. Accordingly, no action can be brought in court on any
claim which is pending before the MHD Hearing Officer or it will
be immediately be dismissed by the MHD Hearing Officer.
Accordingly, DeLucca’s appeal under Contract #32047 should be dismissed.
RECOMMENDATION
The Commissioner should dismiss DeLucca’s pending appeal arising from
Contract #32047.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: September 30, 2004
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