INTRODUCTION
The appeal of J. Tropeano, Inc. (Tropeano) seeking an equitable adjustment of
$96,837.57 for work done under MassHighway 1 contract #33279 (Contract) should be
dismissed because Tropeano has filed an action in Superior Court against the
Commonwealth to litigate the same dispute. See SUCV 09-3233-G. Tropeano’s lawsuit
followed a ruling granting partial summary judgment in favor of MassHighway because
Tropeano did not timely file the required statutory notice under G.L. c.30, s.39N (Section
39N) on its unforeseen site condition claim. 2
Tropeano’s action in Superior Court seeks $96,837.57. It is grounded on facts
identical to those raised in its pending administrative appeal. The appeal should be
dismissed as only the Attorney General may conduct litigation related to Tropeano’s
claims arising from the Contract.
BACKGROUND
Tropeano’s dispute with MassHighway arose during work to reconstruct
Marlborough Road in Salem under the Contract, which was awarded May 9, 2003.
Tropeano sought an equitable adjustment in price under Section 39N because of an
1
On November 1, 2009, the Massachusetts Highway Department was reorganized as the Highway
Division of the Massachusetts Department of Transportation (MassHighway). See G.L. c. 6C, s.40.
2
The factual gravamen of Tropeano’s dispute is that MassHighway’s plans did not disclose the exact
locations of twenty-one water utility services beneath the roadway surface; that the city of Salem did not
(or could not) mark those locations; and that MassHighway personnel in the District had actual knowledge
of the costs Tropeano was incurring at the time it removed the unmarked services. In ruling on
MassHighway’s motion for summary judgment, I found as a matter of fact that MassHighway did not
“guarantee” the locations of the water services shown on the plans and ruled that Tropeano failed to give
written notice “as soon as possible” after it discovered the alleged unforeseen site conditions.
alleged unforeseen site condition. Tropeano argues that twenty-one water utility services
it removed and replaced were not correctly located on the Contract plans.
After the Engineer’s claims committee denied Tropeano’s claim on July 26, 2006,
it appealed. MassHighway then moved for summary judgment on the basis that
Tropeano had failed to give the statutory notice required by Section 39N and had thus
waived its rights to pursue the Section 39N remedy of an equitable adjustment. On
September 3, 2008 I found that Tropeano failed to give a notice “in writing” “as soon as
possible” after the discovery of the alleged unforeseen site condition when it filed its first
written claim on December 16, 2005, sixteen months after the last disputed utility service
location was found and more than twenty-four months after the first. See ALJ
Memorandum, attached.
Tropeano then moved to amend its statement of claim. On July 30, 2009, while
that motion was pending, Tropeano filed a complaint in the Superior Court alleging
“design errors” in the Contract, seeking $96,837.57 for (1) breach of contract and (2)
quantum meruit.
DISCUSSION
Because Tropeano’s action in SUCV 09-3233-G is duplicative of its
administrative appeal, the appeal should be dismissed. 3 Only the Attorney General may
now conduct litigation on Tropeano’s claims.
The Attorney General represents departments of the Commonwealth, including
MassHighway, when an action is filed in court. The Attorney General has exclusive
jurisdiction to appear for the Commonwealth’s departments “in all suits … in which the
3
In all Tropeano has advanced ten theories of recovery—initially an unforeseen site condition claim under
Section 39N; then seven additional theories first raised in a motion to amend its statement of claim on
appeal; and finally two additional theories (breach of contract and quantum meruit) in SUCV 09-3233-G.
2
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 under his direction.” G.L.
c. 12, s. 3. The Attorney General’s obligation has been construed to mean that, once a
lawsuit has been filed against the Commonwealth, she is vested with exclusive control
over the matter in ligation. See Attorney General v. Department of Public Utilities, 342
Mass. 662 (1961).
Only the Attorney General has the power to compromise or settle civil
proceedings in which a department of the Commonwealth is a party. See 6 Op. Atty.
Gen. 1921, p.169. See also Feeney v. Commonwealth, 373 Mass 359 (1977) (in the
exercise of his statutory and Constitutional powers, the Attorney General assumes
primary control over the conduct of litigation that involves the interest of the
Commonwealth, and in so doing he decides matters of legal policy normally reserved to a
client in the ordinary attorney-client relationship).
The Attorney General’s constitutional and statutory powers dictate that
Tropeano’s pending administrative appeal be dismissed. Otherwise actions taken
pursuing or defending the appeal would materially interfere with the Attorney General’s
functions, since she does not represent MassHighway in Tropeano’s administrative
appeal. Accordingly, once Tropeano has filed suit against the Commonwealth, the
exclusive statutory and constitutional authority of the Attorney General to defend
MassHighway requires dismissal of Tropeano’s administrative appeal.
Contractors filing appeals in the office of the Administrative Law Judge
understand that filing a parallel action in court will result in the immediate dismissal of
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an administrative appeal. As stated in the report of the 20th Annual Conference on the
Massachusetts Construction Law (at page III-5):
It should be noted further that where 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 dismissed
by the MHD Hearing Officer.
Tropeano, by filing suit in SUCV09-3233-G, elected to pursue its claims arising
under the Contract in court.
RECOMMENDATION
The Secretary should dismiss Tropeano’s pending appeal.
Respectfully submitted,
Stephen H. Clark
Administrative Law Judge
Dated: April ___, 2010
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