Court: APPEALS COURT OF MASSACHUSETTS
Citation:
Parties: LOCAL 589, AMALGAMATED TRANSIT UNION
Docket No.:96-P-1951
Decision Date: FEBRUARY 24, 1998
Judges: KASS, SMITH & FLANNERY, JJ.

MEMORANDUM AND ORDER UNDER RULE 1:28

In a complaint filed March 29, 1994, Local 589, Amalgamated Transit Union (the union) sought to enjoin performance of two construction contracts let by the Massachusetts Bay Transportation Authority (MBTA), one to the defendant Walsh Construction Company (Walsh) for a project on the Blue Line, and another to the defendant M-Track Enterprises, Inc. (M-Track) for a project on the Red Line. The union alleged that the MBTA had failed to comply with the State privatization act, G. L. c. 7, ss. 52-56 (the act) relating to the use of the defendant private contractors to provide public services formerly provided by State employees. The gravamen of the complaint, which also asked for declaratory relief, was that two rail track reconstruction jobs on the Red Line and the Blue Line were of a kind previously done in-house by MBTA maintenance employees.

In June, 1995, the first motion judge dismissed that portion of the complaint which alleged the act was violated by the MBTA's Blue Line contract with the defendant Walsh, stating as grounds that the Blue Line contract was not within the scope of the act. By the time the Red Line case came up for argument on the motion of the MBTA and M-Track for summary judgment in September, 1996, the Red Line contract had been performed and the Superior Court judge who heard the case awarded judgment to the MBTA and M-Track on the ground that the Red Line controversy was moot. (The Blue Line project was completed by June 25, 1995, and the Red Line project by July 21, 1995).

On appeal the union argues (1) that the first motion judge erred in ruling that the act did not control the Blue Line project portion of the complaint, and (2) that the second motion judge erred in finding mootness when there were potential monetary damages and when the controversy was likely to be repeated.

We hold that by the time briefs on appeal were filed in the winter of 1997, the entire controversy had become moot. Regarding monetary damages, insofar as the omnibus prayer in the complaint for "such other and further relief as this court deemed just and proper" might possibly stretch to a claim for monetary damages, such a claim is barred under Massachusetts Bay Transp. Authy. v. Local 589, Amalgamated Transit Union, 406 Mass. 36, 41 (1989).

The sole question remaining is whether the controversy is of a nature that is susceptible of repetition and is likely to evade review. We think not. Each of the contracts was highly specific and, indeed, involved major components of rail station reconstruction (including, in the case of the Blue Line, reconstruction of a foot viaduct) and, on the Red Line, bridge repair. Should a case arise in the future in which track maintenance is the major component of the work, there will be an opportunity to consider the questions the union seeks to raise, providing that the union acts with alacrity to move the case to judgment and ripeness for appeal.

Because the entire controversy is now moot, we vacate the partial judgment as to the union's Blue Line claim against the MBTA and Walsh Construction Company, Inc., and a new judgment shall enter dismissing the claim, not on the merits but because it has become moot. The judgment of dismissal on the grounds of mootness as to the union's Red Line claim against the MBTA and M- Track Enterprises, Inc. is affirmed.

So ordered.

End of Decision