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The group has represented a veritable “who’s who” of the insurance industry, including American International Group, National Indemnity Co., Infrassure Ltd., Allied World Assurance Co., Great American Insurance Group, United Guaranty Insurance Co., AXA Corporate Solutions, Liberty Mutual Insurance Co., Various Syndicates at Lloyds London, MBIA, OneBeacon America, HDI-Gerling, Resolute Ltd., Mass Mutual, Excess Treaty Management Corp., Syncora Guaranty, Allstate Insurance Co, National General Holdings Corp., and The Excess Casualty Reinsurance Association, in both cutting edge coverage and reinsurance matters as well as litigation and arbitration involving complex structured financial products.
Group co-leader, Jane Byrne, has 30 years of experience in the industry and has been identified as a “renowned insurance and reinsurance litigator” (Chambers 2017) and as “as good as it gets” (Chambers 2015). Most recently, Ms. Byrne was again recognized as a Law360 MVP in Insurance (2018, 2017, and 2013), was selected as one of the Top 30 Insurance and Reinsurance Law Practitioners in the World by Best of the Best Global Expert Guide (2018), and was ranked by Who’s Who Legal in the area of Insurance & Reinsurance (2018). She was also honored by Benchmark Litigation as one of the top ten insurance litigators in the country (2017), as a National Litigation Star (2015-2017), and as one of the Top 250 Women in Litigation (2015-2018). She was also selected to be a member of the Legal 500 Hall of Fame for insurance for having been identified by clients and peers as an elite leading lawyer representing insurers for six consecutive years.
Group Co-Leader, Michael Carlinsky, has consistently been ranked among the top litigators in the United States by multiple leading global publications. Most recently, Chambers USA identified Mr. Carlinsky as “a star, who you want on your case,” and as “an absolutely wonderful trial lawyer” (Chambers 2017).
The firm and many of its attorneys are also active members of the AIDA Insurance and Reinsurance Society, also known as ARIAS. Our collective experience has helped us create a valuable database of knowledge with a broad range of arbitrators both inside and outside the United States.
American Claims Management, Inc. v. Allied World Assurance Co., Case No.: 18-CV-925-JLS (MDD) (March 28, 2019): Obtained dismissal of all claims for defendant Allied World Assurance Co. in a suit brought under a Professional Liability Insurance Policy by American Claims Management in the United States District Court for the Southern District of California. The court found that under California law, American Claims Management failed to state a claim for indemnity and bad faith against Allied World arising from American Claims Management’s alleged faulty handling of a claim that resulted in a significant jury award against American Claims Management’s principal.
Onyx Pharmaceuticals, Inc. v. Allied World Assurance Co, et al.; Case No. CIV538248 (Superior Court of the State of California, County of San Mateo): Represented D&O insurer, Allied World Assurance Co., in a bench trial in State Court in California addressing a question of first impression and of critical importance to the D&O industry; namely, the definition of Loss and whether it covers indemnified settlements paid to resolve a shareholder dispute over the price per share paid for Amgen’s purchase of Onyx Pharmaceuticals. A final decision from the trial court is expected imminently.
Stemco Products, Inc. v. Allied World Surplus Lines Insurance Co. (Arbitration 2018): We successfully represented Allied World Surplus Lines Insurance Co. (“Allied World”) in an arbitration commenced by Stemco Products, Inc. in March 2018. After answering Stemco’s arbitration demand alleging a breach of a representations and warranties policy, Allied World asserted a counterclaim for attorneys’ fees under the Texas Insurance Code. By August 2018, QE prevailed in achieving a favorable global settlement of the entire dispute.
Anderson v. National Union Fire Insurance Company of Pittsburgh PA, 67 N.E.3d 1232 (Mass. 2017): We successfully petitioned for review of, and then succeeded in reversing, a Massachusetts intermediate appellate court’s decision against AIG that a “judgment” for purposes of a treble-damages statute includes not only the amount of a judgment but also post-judgment interest that has accrued on that judgment. Because Massachusetts imposes a statutory 12% annual interest rate, that decision had increased the judgment against AIG by more than $4.2 million. The Supreme Judicial Court of Massachusetts ruled unanimously in AIG’s favor, adopting QE’s interpretation of the statute and thus eliminating over a third of the judgment against AIG.
Sinclair Wyoming Refining Go. v. Infrassure Ltd. (District of Wyoming 2017): We were retained by Swiss reinsurer Infrassure, Ltd. (“Infrassure”) to defend it against bad faith and business interruption claims brought by Sinclair Wyoming Refining Company (“Sinclair”) related to a fire at one of its refineries. Infrassure is one of eighteen insurers that participated in Sinclair’s quota share property insurance program. Sinclair alleges that it suffered in excess of $100m in damages, and that Infrassure’s failure to timely pay its share constituted breach of contract, anticipatory repudiation, and bad faith. Because Infrassure’s policy required it to pay the loss based upon the estimated timeline for repair of the refinery, it has refused to pay the portion of Sinclair's claim that exceeded the timeline. In a series of motions, QE successfully obtained dismissal of all of Sinclair’s claims, including dismissal of its bad faith claims on summary judgment.
United States ex rel. Grabcheski v. AIG (Second Circuit 2017): We obtained a unanimous victory in the Second Circuit, where we defended a dismissal that we previously obtained for AIG in a major False Claims Act case that alleged AIG defrauded the Federal Reserve Bank of New York by hundreds of millions of dollars during the financial crisis. The case, brought by a former AIG human resources executive-turned-whistleblower, alleged that two insurance subsidiaries that AIG sold to the Federal Reserve in exchange for $25 billion in debt reduction had, for decades, engaged in unlicensed insurance business in New York. The plaintiff alleged that AIG was complicit in the illegal insurance activity, concealed it from regulators, and deliberately misled the Fed during the negotiations in order to consummate the transaction. This case posed a potential $2.5 billion liability for AIG under the False Claims Act’s treble damages provision.
Infrassure Ltd. v. First Mutual Transportation Assur. Co. (Second Circuit 2016): We were retained by Swiss reinsurer, Infrassure, Ltd. (“Infrassure”) to arbitrate against First Mutual Transportation Assurance Company (“FMTAC”), the captive insurer of the Metropolitan Transportation Authority, concerning damages allegedly incurred during Superstorm Sandy. QE prevailed in a declaratory judgment action in the Southern District of New York resisting FMTAC’s attempt to compel arbitration under the London Arbitration Clauses. The Second Circuit, in a case of first impression, held that Infrassure was not bound by the London Arbitration Clauses contained in an endorsement to the policy, as those clauses were captioned “UK and Bermuda Insurers Only”. In reaching its decision, the Second Circuit rejected FMTAC’s argument that “UK and Bermuda Insurers Only” should be disregarded under the “Titles Clause” of the Reinsurance Certificate, which provided that the titles of the certificate’s provisions have no meaning.
CIFG Assurance North America, Inc. v. J.P. Morgan Securities LLC (f/k/a “Bear, Stearns & Co., Inc.”) (New York Appellate Division, First Department 2015): On behalf of client CIFG, now known as Assured Guaranty, Quinn Emanuel convinced a New York state appellate court to modify the lower court’s dismissal of a misrepresentation claim with prejudice to a dismissal without prejudice, thus allowing CIFG to replead the claim in its effort to recover from Bear Stearns for inducing CIFG to issue financial guaranty insurance regarding collateralized debt obligation vehicles that Bear Stearns had loaded with risky assets.
Financial Guaranty Insurance Company v. Putnam Advisory Company, LLC, 783 F.3d 395 (Second Circuit 2015): We represented Financial Guaranty Insurance Company in a case relating to a $900m insurance policy on a credit default swap referencing a $1.5bn collateralized debt obligation. We obtained a complete reversal from the Second Circuit of the district court’s order dismissing the complaint for failure to state a claim, protecting our client’s right to pursue its claims for fraud, negligent misrepresentation, and negligence.
Consumer Financial Protection Bureau v. United Guaranty Corporation (Eleventh Circuit 2015): On behalf of mortgage insurer United Guaranty, we defeated a third party’s motion to intervene in a district court case in which United Guaranty was a party that risked disrupting the prior resolution of the district court case. We then defeated the third-party’s appeal to the Eleventh Circuit Court of Appeals.
American International Group Inc. v. New York State Department of Financial Services (Southern District of New York 2014): We negotiated a favorable settlement for our client American International Group (“AIG”) in its lawsuit against the Superintendent of the New York Department of Financial Services (“DFS”) in response to DFS’s assertion that certain AIG subsidiaries had engaged in illegal and undisclosed insurance activities in New York. QE asserted that DFS’s stated interpretation and enforcement of the insurance laws was unconstitutional. Following motion to dismiss briefing, QE obtained a favorable settlement for AIG, which was much less than the amount paid by MetLife for related allegations that spanned a much shorter time period.
Riddle v. Bank of America Corp. et al. (Third Circuit 2014): We represented United Guaranty in ten class actions alleging that the reinsurance it purchased on its mortgage insurance portfolio from captive reinsurers affiliated with lending banks was an illegal “kickback” in violation of the Real Estate Settlement Practices Act (RESPA). After obtaining dismissals of several of the class actions on statute of limitations grounds, the Eastern District of Pennsylvania granted summary judgment dismissing the claims against United Guaranty in Riddle v. Bank of America. Plaintiffs appealed and the Third Circuit affirmed concluding that that the plaintiffs failed to meet their “diligence” obligations because they did nothing to attempt to discover their claims at any time between their loan closings and the time, years later, when they were contacted by their lawyers.
AIG Domestic Claims, Inc. v. Hess Oil Co., 751 S.E.2d 31 (W. Va. 2013): We won a unanimous victory for AIG in the West Virginia Supreme Court, vacating all that was left of a $58 million jury verdict against subsidiaries of AIG involved in an environmental insurance coverage dispute. QE first challenged the underlying punitive damages and successfully reduced that verdict by $28 million on post-trial motions. QE then litigated the remaining $30 million before the West Virginia Supreme Court which rejected the plaintiffs’ argument that they were entitled to damages against a corporation for alleged injuries to its shareholders, and zeroed out the judgment.
United States Fidelity & Guaranty Company v. American Re-Insurance Company et al. (New York Court of Appeals 2013): In a case where reinsurers challenged the allocation of a $1 billion settlement of asbestos related liabilities, we obtained a 5-0 victory in the New York Court of Appeals in a landmark decision on the “follow the fortunes” doctrine. Because most reinsurance agreements are governed by New York law, this decision is widely followed and will have a widespread impact on the insurance industry.
Ford Motor Co. v. National Indemnity Co. (Eastern District of Virginia 2013): We defended Berkshire Hathaway affiliate, National Indemnity Co., in a challenge to its business model of purchasing and running off policies on behalf of policy-issuing companies. Ford filed this action in federal court claiming that National Indemnity had violated Virginia’s Conspiracy statute and engaged in tortious interference with contract by causing its insurer to refuse to pay allegedly valid claims. The conspiracy statute carries severe penalties, including trebling of damages. We obtained summary judgment dismissing the conspiracy claims, thereby eliminating Ford’s claim for treble damages.
Various United Guaranty Reinsurance Litigation Matters: We were lead counsel for United Guaranty, which was named as a defendant in over ten class actions brought under Real Estate Settlement Procedures Act of 1974 (RESPA). The class plaintiffs all alleged violations of RESPA’s anti-kick-back provisions arising from United Guaranty’s practice of obtaining reinsurance for its mortgage insurance policies from captive insurers affiliated with lending banks. We obtained dismissals in nine of the class actions on various grounds including that the actions were time barred and that the class plaintiff lacked standing to bring the claims. See, e.g., White v. PNC Bank et al (E.D. Pa.); Menichino v. Citibank, et al (W.D. Pa.); Manners v. Fifth Third Bank et al (W.D. Pa.); Cunningham v. M&T Bank (M.D. Pa); McCarn v. HSBC, et al (E.D. Ca.). Plaintiff has appealed Samp v. J.P. Morgan, et al (C.D. Cal.) and Orange v. Wachovia Bank (C.D. Cal.) to the Ninth Circuit.
In re: Chinese-Manufactured Drywall Products Liability Litigation (MDL)(Eastern District of Louisiana.): We represented AIG and its subsidiaries in numerous class action and individual lawsuits related to defective Chinese-manufactured drywall products, much of which was consolidated in a multi-district litigation in the Eastern District of Louisiana.
Royal Park Investments, SA/NV v. CIFG Assurance North America, Inc. (New York Supreme Court): We represented CIFG Assurance North America, Inc. (“CIFG”) in an action in which CIFG was alleged to have breached two agreements with Royal Park Investments, SA/NV (“RPI”) – a special purpose vehicle formed to hold Fortis Bank assets – arising from a mortgage backed securities bond issuance that RPI purchased and CIFG insured. RPI sought to recover its purported share of liquidation proceeds that CIFG obtained upon liquidation of the collateral on the grounds that in agreeing to forego RPI’s right to CIFG’s insurance on the bonds, RPI was entitled to its share of the liquidated proceeds. Following extensive summary judgment briefing and argument, we obtained a complete dismissal, with prejudice, of RPI’s claim.
MBIA v. Countrywide et al. (New York Superior Court): We secured another victory for our client, MBIA Insurance Corporation. In Justice Bransten’s decision on the parties’ summary judgment motions, she adopted virtually the entire legal framework advocated by Quinn Emanuel. The ruling impacts other insurers and investors in RMBS who have sued issuers of RMBS for fraud and breach of contract. First, insurers in New York now have a clear path to recovery on misrepresentation claims, where they need not show either reasonable reliance or loss causation (beyond inducement to enter the transaction, or transaction causation). Second, insurers and investors in RMBS now can enforce repurchase claims for material breach regardless of whether or why the defective loans are in default or delinquency. In other words, the contractual requirement of “material and adverse effect” is tested as of the closing date only, rendering the housing collapse and financial crisis irrelevant. Third, insurers and investors can rely on the “no default” provisions in mortgage notes to capture borrower misrepresentations even where the transaction documents do not contain a representation and warranty prohibiting borrower fraud.
MBIA v. Countrywide et al. (New York Superior Court): We secured a significant ruling for our client, MBIA Insurance Corporation, in connection with its multibillion dollar claims against Bank of America Corporation and Countrywide, filed in the Commercial Division of the New York State Supreme Court. The Court held that: (i) New York, not Delaware, law applied to a de facto merger claim against Bank of America; (ii) reliance is not an element of a successor liability claim based on a theory of implied assumption of liabilities; (iii) the payment of billions of dollars for Countrywide’s assets is not relevant to a de facto merger claim; and (iv) a strict asset-for-stock sale is not necessary to establish continuity of ownership under a de facto merger claim. Numerous plaintiffs across the country have alleged that Bank of America should be held liable for Countrywide’s misconduct, and this ruling establishes the correct legal standards to prove such claims at trial.
Assured Guaranty Municipal Corp. v. UBS Real Estate Securities Inc. (Southern District of New York): We represented Assured Guaranty Municipal Corp. (“Assured”) in its lawsuit in the Southern District of New York against UBS Real Estate Securities Inc. (“UBS”) arising out of Assured’s issuance of financial guaranty insurance for RMBS underwritten and marketed by UBS. On May 6, 2013, after a series of procedural wins for Assured, UBS agreed to settle Assured’s claims for breaches of representations and warranties for $360 million plus an ongoing reinsurance obligation covering 85% of Assured’s forward liabilities with respect to the insured certificates.
Axa Vericherung AG v. New Hampshire Insurance Co. (Second Circuit): We obtained a complete victory for our client, American International Group, when we convinced the Second Circuit to vacate a nearly $35 million judgment in a complex reinsurance case against several AIG subsidiaries and to remand the case to the district court for entry of judgment in AIG’s favor.
Horowitz v. American International Group, Inc. (Southern District of New York): We obtained dismissal with prejudice and affirmation in the Second Circuit of that dismissal of a nationwide class action against Chartis Insurance Group brought by investors in Bernard Madoff’s Ponzi scheme who demanded that their insurers compensate them for loss of fictitious profits.
Nevada Viatical Sales (Nev.): We defended AI Credit, a subsidiary of AIG, against fraud and contract claims in Nevada State Court arising out of its funding of life insurance viatical sales. The case settled favorably before trial.
National Council on Compensation Insurance, Inc. v. American International Group, Inc. (Eastern District of Illinois): We obtained dismissal with prejudice of a $1 billion civil fraud and RICO action brought against AIG by a nationwide reinsurance pool, in a case that involves allegations of premium underreporting that had precipitated a $350 million settlement with former New York Attorney General Elliot Spitzer.
Park Terrace LLC v. Transportation Insurance Co. (Supreme Court of Wisconsin): We were retained after trial and on appeal obtained a reversal of an $8 million award of bad faith and punitive damages, which was the largest award of such damages against an insurer in Wisconsin history.
In re: Arbitration Between Houston Casualty Co. and CineFinance Insurance Services: After a ten-day arbitration, we obtained a complete victory, including an award of $3.9 million attorney’s fees and costs for Houston Casualty Company and CineFinance Insurance Services (HCC) in a dispute concerning the financing of a motion picture entitled “Tekken.” HCC guaranteed the financiers of “Tekken” that the film would be completed and delivered by November 29, 2009, but the film was not delivered until December 2010, over a year later with no written extension or waiver of the delivery date. One of the financiers initiated an arbitration against HCC claiming $15.8 million under the completion guaranty. Although Newbridge never agreed to extend the delivery date, the Arbitrator found that Newbridge knew that the film could not be completed and delivered by November 29th and waived the delivery date. He denied Newbridge any relief and awarded HCC its attorney’s fees and costs.
Fireman’s Fund Insurance Co. v. North Pacific Insurance Co. (Ninth Circuit): We were retained after trial and persuaded the Ninth Circuit to vacate a multi-million dollar judgment against our insurer client, finding on a case of first impression that the trial court had failed to consider whether an insurer targeted by an all sums election who seeks contribution must provide adequate notice to co-insurers.
Assured Guaranty Municipal Corp. v. JP Morgan Chase and Syncora Guaranty Inc. v. Jefferson County (New York Supreme Court): Assured Guaranty and Syncora retained us to recoup over $700 million in rescissionary damages from J.P. Morgan and Jefferson County, Alabama on claims of fraud and aiding and abetting fraud in connection with solicitation of bond insurance policies. These cases have been resolved.

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40-3402. Professional liability insurance to be maintained by health care providers as condition to rendering services in state, exception, limits of coverage; information to be furnished by insurer; termination of coverage, notice; contents of policies issued in state; duties of certain insurance companies; surcharge and information required of certain health care providers; occurrence form policy as alternative to required claims made policy for certain persons. (a) A policy of professional liability insurance approved by the commissioner and issued by an insurer duly authorized to transact business in this state in which the limit of the insurer's liability is not less than $200,000 per claim, subject to not less than a $600,000 annual aggregate for all claims made during the policy period, shall be maintained in effect by each resident health care provider as a condition to rendering professional service as a health care provider in this state, unless such health care provider is a self-insurer. This provision shall not apply to optometrists and pharmacists on or after July 1, 1991 nor to physical therapists on and after July 1, 1995 nor to health maintenance organizations on or after July 1, 1997. Such policy shall provide as a minimum coverage for claims made during the term of the policy which were incurred during the term of such policy or during the prior term of a similar policy. Any insurer offering such policy of professional liability insurance to any health care provider may offer to such health care provider a policy as prescribed in this section with deductible options. Such deductible shall be within such policy limits.
(1) Each insurer providing basic coverage shall within 30 days after the premium for the basic coverage is received by the insurer or within 30 days from the effective date of this act, whichever is later, notify the board of governors that such coverage is or will be in effect. Such notification shall be on a form approved by the board of governors and shall include information identifying the professional liability policy issued or to be issued, the name and address of all health care providers covered by the policy, the amount of the annual premium, the inception and expiration dates of the coverage and such other information as the board of governors shall require. A copy of the notice required by this subsection shall be furnished the named insured.
(2) In the event of termination of basic coverage by cancellation, nonrenewal, expiration or otherwise by either the insurer or named insured, notice of such termination shall be furnished by the insurer to the board of governors, the state agency which licenses, registers or certifies the named insured and the named insured. Such notice shall be provided no less than 30 days prior to the effective date of any termination initiated by the insurer or within 10 days after the date coverage is terminated at the request of the named insured and shall include the name and address of the health care provider or providers for whom basic coverage is terminated and the date basic coverage will cease to be in effect. No basic coverage shall be terminated by cancellation or failure to renew by the insurer unless such insurer provides a notice of termination as required by this subsection.
(3) Any professional liability insurance policy issued, delivered or in effect in this state on and after July 1, 1976, shall contain or be endorsed to provide basic coverage as required by subsection (a) of this section. Notwithstanding any omitted or inconsistent language, any contract of professional liability insurance shall be construed to obligate the insurer to meet all the mandatory requirements and obligations of this act. The liability of an insurer for claims made prior to July 1, 1984, shall not exceed those limits of insurance provided by such policy prior to July 1, 1984.
(b) Unless a nonresident health care provider is a self-insurer, such health care provider shall not render professional service as a health care provider in this state unless such health care provider maintains coverage in effect as prescribed by subsection (a), except such coverage may be provided by a nonadmitted insurer who has filed the form required by subsection (b)(1). This provision shall not apply to optometrists and pharmacists on or after July 1, 1991 nor to physical therapists on and after July 1, 1995.
(1) Every insurance company authorized to transact business in this state, that is authorized to issue professional liability insurance in any jurisdiction, shall file with the commissioner, as a condition of its continued transaction of business within this state, a form prescribed by the commissioner declaring that its professional liability insurance policies, wherever issued, shall be deemed to provide at least the insurance required by this subsection when the insured is rendering professional services as a nonresident health care provider in this state. Any nonadmitted insurer may file such a form.
(2) Every nonresident health care provider who is required to maintain basic coverage pursuant to this subsection shall pay the surcharge levied by the board of governors pursuant to subsection (a) of K.S.A. 40-3404 and amendments thereto directly to the board of governors and shall furnish to the board of governors the information required in subsection (a)(1).
(c) Every health care provider that is a self-insurer, the university of Kansas medical center for persons engaged in residency training, as described in subsection (r)(1) of K.S.A. 40-3401 and amendments thereto, the employers of persons engaged in residency training, as described in subsection (r)(2) of K.S.A. 40-3401 and amendments thereto, the private practice corporations or foundations and their full-time physician faculty employed by the university of Kansas medical center or a medical care facility or mental health center for self-insurers under subsection (e) of K.S.A. 40-3414 and amendments thereto shall pay the surcharge levied by the board of governors pursuant to subsection (a) of K.S.A. 40-3404 and amendments thereto directly to the board of governors and shall furnish to the board of governors the information required in subsection (a)(1) and (a)(2).
(d) In lieu of a claims made policy otherwise required under this section, a person engaged in residency training who is providing services as a health care provider but while providing such services is not covered by the self-insurance provisions of subsection (d) of K.S.A. 40-3414 and amendments thereto may obtain basic coverage under an occurrence form policy if such policy provides professional liability insurance coverage and limits which are substantially the same as the professional liability insurance coverage and limits required by subsection (a) of K.S.A. 40-3402 and amendments thereto. Where such occurrence form policy is in effect, the provisions of the health care provider insurance availability act referring to claims made policies shall be construed to mean occurrence form policies.
History: L. 1976, ch. 231, § 2; L. 1984, ch. 238, § 2; L. 1985, ch. 166, § 2; L. 1986, ch. 229, § 26; L. 1986, ch. 179, § 3; L. 1986 ch. 184, § 2; L. 1989, ch. 143, § 2; L. 1990, ch. 175, § 2; L. 1991, ch. 139, § 2; L. 1994, ch. 155, § 1; L. 1995, ch. 145, § 1; L. 1997, ch. 134, § 1; July 1.


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AMENDED MOTION for a new trial filed in the Superior Court on November 24, 1975.
The proceeding was heard by Donahue, J.
Richard M. Riley (Thomas J. Valkevich & Albert S. Conlon with him) for the defendant.
John C. Doherty, Assistant District Attorney, for the Commonwealth.
WILKINS, J. Fifty years ago last May, Leo Nolin was indicted by an Essex County grand jury for the murder of William H. Griffin. Counsel was appointed for Nolin, and, on October 4, 1927, after a trial lasting fourteen trial days, Nolin was found guilty of murder in the second degree and sentenced to a mandatory term of imprisonment for life in the State prison at Charlestown. No appeal was taken from Nolin's conviction. Including his pre-trial detention, he has been incarcerated for more than fifty years.
In 1972, Nolin filed a motion for a new trial on which, for some unexplained reason, no action was taken. In October, 1975, counsel was appointed for Nolin who shortly thereafter presented an amended motion for a new trial. After almost half a century the preparation of a record on which to argue a motion for a new trial presented substantial problems. No stenographic record was available. However, newspaper accounts of the victim's death, of the search for and apprehension of Nolin and his companions, and of the trial are substantial. The daily proceedings at trial were reported in the Haverhill Gazette in significant detail, at times purporting to present verbatim accounts of the testimony. The judge who heard the motion for a new trial accepted newspaper articles as a partial record of the trial of the case. Although the newspaper stories are far more detailed than those customarily seen today, they do not purport to be a full record of the trial. In this circumstance, the extent of any prejudice to the defendant is often difficult to assess, even if one were to accept one or more of his claims that the trial judge erred in particular respects.
in obtaining a new trial. Acting in his discretion under G. L. c. 278, Section 29, the judge denied Nolin's amended motion for a new trial. We agree with each of these conclusions and affirm the denial of Nolin's amended motion for a new trial.
A motion for a new trial is addressed to the sound discretion of the lower court judge. Commonwealth v. Gagne, 367 Mass. 519 , 526 (1975). If, however, "the original trial was infected with prejudicial constitutional error," the judge has no discretion to deny a new trial. Earl v. Commonwealth, 356 Mass. 181 , 184 (1969). The motion judge did not focus specifically on whether Nolin claimed any error of constitutional dimensions, but we find no basis for valid objection to the motion judge's ruling because Nolin has not established any violation of his constitutional rights.
new trial suggests that Nolin's assertions in his affidavit should not be accepted without question.
In this circumstance, we think that Nolin must take the consequences of the unavailability of a transcript of his trial, but we will review the record, as he has been able to prepare it, as if the case were being heard on appeal. The result will be that the standard we apply will be whether there was reversible error in Nolin's trial and conviction, rather than the lesser standard whether the motion judge abused his discretion in denying the amended motion for a new trial.
2. Nolin claims that he was denied his constitutional right to a fair trial because of extensive pre-trial and trial newspaper publicity. The record contains copies of newspaper articles in the Haverhill Gazette, published in March and April, 1927, concerning the victim's identification of a picture of Nolin, the search for Nolin, the victim's death, Nolin's arrest, his prior criminal record, the arrest of his companions Mary Cwikla and Herman Reed, their arraignment, and admissions made by Reed and Cwikla. A later article, dated June 15, 1927, stated that Reed made an offer through his counsel to plead guilty to manslaughter.
On September 19, 1927, the day the trial commenced, the Lawrence Tribune reported that Reed had moved for the exclusion of jurors from Haverhill, Groveland, Georgetown, and Bradford because of the June 15, 1927, newspaper story concerning Reed's alleged offer to plead guilty to a charge of manslaughter. The motion was denied. The Lawrence Tribune article repeated that portion of the June 15, 1927, Haverhill Gazette article which reported that Reed had offered to plead guilty to manslaughter. The next day Reed moved for a mistrial on the basis of the Lawrence Tribune article, but his motion was denied.
The jury were not sequestered. Some of the jurors came from the circulation areas of the Haverhill and Lawrence newspapers. In assessing the claim that Nolin was harmed by pre-trial publicity, we note that the jury found Reed not guilty.
The burden is on Nolin to establish that he was denied a fair trial by the pre-trial and trial publicity. Delle Chiaie v. Commonwealth, 367 Mass. 527 , 532 (1975). Commonwealth v. Gilday, 367 Mass. 474 , 491-492 (1975). Murphy v. Florida, 421 U.S. 794, 799-800 (1975). Here, Nolin did not move for a change in venue or for a continuance because of publicity. He did not join in Reed's motion to exclude jurors from certain municipalities nor in Reed's motion for a mistrial. Nolin made no challenge to any publicity during trial. The judge was not obliged to warn the jurors not to read newspapers (Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 , 298-299 , cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914 ), but he did several times. There is, of course, no showing that any juror in fact did read any newspaper article. There was a special venire and many persons were excused from serving. The motion judge was correct in concluding that Nolin had failed to prove that he was denied a fair trial by reason of prejudicial newspaper publicity.
3. Prosecution witnesses were permitted to testify concerning extrajudicial statements inculpating Nolin made by Nolin's codefendants, Reed and Cwikla. Both Reed and Cwikla testified. Therefore, we are not dealing here with out-of-court statements of a codefendant, who did not testify, inculpating of another defendant. See Bruton v. United States, 391 U.S. 123 (1968), made retroactive by Roberts v. Russell, 392 U.S. 293 (1968). When the declarant takes the stand and is subject to cross-examination, a denial of the constitutional right of confrontation expressed in the Bruton case is not involved. Nelson v. O'Neil, 402 U.S. 622, 626-630 (1971). California v. Green, 399 U.S. 149, 164 (1970).
were not made in furtherance of or in the course of any joint enterprise. Commonwealth v. White, 370 Mass. 703 , 710-711 (1976).
The newspaper accounts do not indicate that the trial judge gave limiting instructions to the jury on each occasion. He did give such an instruction when an affidavit of Cwikla was read to the jury. He gave a limiting instruction when statements of Cwikla were introduced for the purposes of impeachment and again when Reed was cross-examined concerning prior statements. It is impossible, with the peculiar form of the record in this case, to determine whether the trial judge may have given limiting instructions on other occasions, as he appears to have done voluntarily in certain instances. In any event, the record does not show that Nolin ever objected to the admission of Reed's and Cwikla's statements for general purposes, ever requested limiting instructions concerning those statements, or even excepted to the trial judge's rulings. We do know that Reed and Cwikla did testify to substantially the same facts and were subject to cross-examination.
In the absence of any demonstration that Nolin challenged the admission of Reed's and Cwikla's statements, we find no basis to conclude that there was any error which could have supported a reversal of his conviction.
4. Nolin challenges the admission of evidence that the victim identified Nolin in a photograph which was shown to him in the hospital.
judge instructed the jury that the victim's statement could be considered as evidence only if they found that, when the victim made the statement, he knew that he was dying and had no hope for recovery. The evidence was properly admitted as a dying declaration.
Nolin argues further that the identification procedure was constitutionally impermissible because a photograph of only Nolin was used in the identification procedure. Of course, a one-to-one confrontation, whether in person or by photograph, is disfavored. Commonwealth v. Barnett, 371 Mass. 87 , 91-92 (1976), cert. denied, 429 U.S. 1049 (1977). Simmons v. United States, 390 U.S. 377, 383-384 (1968). See Commonwealth v. Dickerson, 372 Mass. 783 , 790 (1977). Although the use of a single photograph has not alone generally been an adequate ground for exclusion of an identification (see Nassar v. Vinzant, 519 F.2d 798, 801 [1st Cir.], cert. denied, 423 U.S. 898 ; Model Code of Pre-Arraignment Procedure Section 160.2, Commentary at 440-441 ), such a practice presents an element of suggestiveness which calls for a consideration of the entire circumstances of the identification procedure. Manson v. Brathwaite, 432 U.S. 98, 109-114 (1977). The identification may be shown nevertheless to be reliable. Id. Also, the circumstances may demonstrate a justification for the procedure, such as a need for prompt identification. Commonwealth v. Chase 372 Mass. 736 , 743-744 (1977), and cases cited. Where the victim is seriously incapacitated in a hospital, a prompt one-to-one confrontation is generally permissible and may be imperative. Commonwealth v. Barnett, supra at 92. Stovall v. Denno, 388 U.S. 293, 302 (1967). Model Code of Pre-Arraignment Procedure Section 160.5, Commentary at 450-451 (1975). Here, the victim was seriously wounded and near death, and the perpetrator of the crime was still at large. We find no due process violation in the circumstances.
the absence of the entire charge to the jury, we are in no position to conclude that the judge improperly handled any matter in his jury instructions, and there is no showing that Nolin's counsel requested any particular instructions or objected to any instructions which were given. Such portions of the trial judge's one and one-half hour charge as appear in the Haverhill Gazette appear to be conscientious and fair.
6. Nolin claims that confinement for fifty years constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the Constitution of the United States. This issue is not one which can be raised on a motion for a new trial. In any event, a sentence of life imprisonment for conviction of murder in the second degree is not cruel and unusual punishment, nor, we add, would it be cruel or unusual punishment under art. 26 of the Declaration of Rights of the Constitution of the Commonwealth.
7. An appeal of a motion for a new trial is not an occasion for our consideration of the case under G. L. c. 278, Section 33E. However, treating this proceeding as if it were an appeal, we see no occasion to order a new trial nor to order a reduction in the verdict. The evidence indicates that Nolin shot the victim, a storekeeper, in cold blood in the course of an attempt to rob him. We are impressed, as was the motion judge, with the apparent fairness with which the trial judge conducted Nolin's trial.
Order denying the amended motion for a new trial affirmed.

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art. 26


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Člen představenstva firmy SurfaceTreat a.s.
FRVŠ 2005: Studentská laboratoř analýzy materiálů a jejich povrchů.
GAČR č. 106/96/0350 (řešitel ing. Petr Louda, CSc, Technická univerzita Liberec): Studium tvorby, mechanických vlastností a biokompatibility tenkých uhlíkových vrstev – ukončeno v r. 1997.
Autor či spoluautor 66 publikací v mezinárodních impaktovaných časopisech.
9. P. Špatenka, H. Suhr, M. Rump, G. Erker: Formation of Hafnium Carbide Thin Films by Plasma Enhanced Chemical Vapor Deposition from Cyclopentadienyl/dimethyl Hafnium. Appl.Phys A 60, (1995) 285.
46. V. Stranak, Z. Hubicka, P. Adamek, J. Blazek, M. Tichy, P. Spatenka, R. Hippler, S. Wrehde, Time-resolved probe diagnostics of pulsed dc magnetron discharge during deposition of TiOx layers. Surf. Coat. Technol. 21, (2006), 2512-2519.
50. V. Straňák, M. Tichý, V. Kříha, V. Scholtz, B. Šerá, P. Špatenka: Technological applications of surfatron produced discharge. J. Optoelectorn. Adv. Mater. 9 (No. 4), (2007) 852.
55. Blažek J., Bartoš P., Basner R., Kersten H., Špatenka P.: Investigation of Dust Particles in Collisionless Plasma Sheath with Arbitrary Electron Energy Distribution Function, The European Physical Journal D 54(2), (2009) 219-224, , DOI: 10.1140/epjd/e2008-00277-9.
61. Bartoš P., Blažek J., Jelínek P., Špatenka P.: Hybrid Computer Simulations: Electrical Charging of Dust Particles in Low-Temperature Plasma, The European Physical Journal D 54(2), 319-223 (2009), DOI: 10.1140/epjd/e2009-00029-5.
14. M. Tichý, S. Pfau, P. Špatenka: Langmuir probe diagnostics of low temperature plasmas (review lecture). Proceedigs of the International Workshop on Plasma Diagnostics, University of Ghent, Belgium 1999.
19. J. Blažek, P. Špatenka: Computer Modeling of Plasma Fluctuations and their Influence on the Probe Characteristic. Proceedings of the 16th Europhysics Conference on Atomic and Molecular Physics of Ionized Gases and the 5th International Conference on Reactive Plasmas (eds. Sadeghi, N., Sugai, H.), Volume 2, Grenoble, France, July 14 – 18, 2002, pp. 279 – 280.
21. V. Straňák, M. Tichý, P. Adámek, J. Blažek, P. Kříž, P. Špatenka: Electron temperature in surfatron-generated plasma-jet in argon measured by double Langmuir probe. Proceedings of the ICPIG XXVI Confererence (ed. J. Meichsner, D. Loffhagen and H.-E. Wagner), Greifswald, Germany, July 15-20, 2003. Vol. 3., pp. 249-250. ISBN 3-00-011689-3.
34. Straňák, V., Navrátil, Z., Slavíček, P., Šerý, M., Blažek, J., Špatenka, P., Tichý, M.: Optical emission spectroscopy and probe measurement in Ar + N2 surfatron discharge. In: WDS 04 Proceedings of Contributed Papers. WDS 04, Praha, 15.-18. June, 2004. Part II, Physics of Plasmas and Ionized Media (ed. Šafránková, J.) pp. 339-343. Matfyzpress, MFF UK Praha, 2004. ISBN 80-86732-32-0.
35. Straňák, V., Navrátil, Z., Slavíček, P., Tichý, M., Špatenka, P., Trunec, D.: Optical emission spectroscopy of argon plasma generated by surfatron at frequency 2.45 GHz. In: Proceedings of the 17th Escampig 2004, Constanta, Romania, 01. 05. September 2004. Contributed Papers (ed. V. Ciupina, G. Musa, R. Vladoiu), pp. 181-183.
36. Tomáš Vatuňa, Jakub Wiener, Lenka Martínková, Petr Špatenka: Etching of PES by CF4 and O2 and Comparison of the Hydrophility Measuremen Metods. World Textile Conference – 4th AUTEX Conference, Roubaix, June 22-24, France 2004.
37. Straňák, V., Navrátil, Z., Slavíček, P., Adámek, P., Tichý, M., Špatenka, P.: Comparative diagnostics of Ar and He surfatron generated plasma by meaes of optical emission spectroscopy and probe measurement. Proc. of ICPP, October 25-29, Nice, France 2004.
38. Jiří Olejníček, Jan Píchal, Josef Blažek, Petr Špatenka: Method for complicated interference pattern evaluation. Proc. of ISSP, October 25.-29. 10. 2004, Nice, France.
39. J. Blažek, P. Špatenka, Ch. Taeschner, A. Leonhardt: Investigation of Electric Conditions in the Vicinity of Carbon Nanotubes Grown in a DC Plasma Sheath. Proc. of ICPP, October 25.-29. 10. 2004, Nice, France.
40. Petr Jelínek, Josef Blažek, Petr Špatenka: Investigations of Collisional Plasma Sheath in the Vicinity of Planar Probe. Proc. of ICPP, October 25.-29. 10. 2004, Nice, France.
45. Píchal J., Koller J., Aubrecht L., Vatuňa T., Špatenka P.: Textile Hydrofobicity Control by Plasma Discharges. New Trends in Physics – NTF 2004, Brno, November 11-12, 2004, Brno, Czech Republic.
73. V. Stranak, M. Tichy, V. Kriha, V. Scholtz, Z. Navratil, P. Slavicek, P. Spatenka, Bio-medical applications and diagnostics of microwave plasma. In: Proceedings of ESCAMPIG 2006 Vol. 30G, Lecce, July 12-16, (2006), (ed. M. Cacciatore, S. D. Benedictis, P. F. Ambrico, M. Rutigliano), 441-442. ISBN 2-914771-38-X.
74. J. Blazek, J. Olejnicek, V. Stranak, P. Spatenka, Modification of Abel transformation to refractional methods. In: Proceedings of 14th Annual Conference Technical Computing Prague 2006, Prague, October 26, (2006), CD-ROM, ISBN 80-7080-616-8, 7 pages.
75. J. Blažek, P. Kříž, V. Straňák and P. Špatenka: Diagnostics of Low – Temperature Plasma by Refractional Methods. In: Programme & Abstract Book of the 22nd Symposium on Plasma Physics and Technology (Ed. P. Kulhánek), Prague, Czech Republic, 26. – 29. June 2006, ISBN 80-01-03506-9, p. 32.
82. V. Stranak, S. Kment, Z. Hubicka, P. Kluson, J. Krysa, H. Sichova, M. Tichy, P.Spatenka: Deposition of thin TiOx films by surfatron generated plasma. In:Proceedings of ICPIG XXVIII Confererence, 2007, Prague, July 15-20, (2007), (eds. J.Schmidt, M. Simek, S. Pekarek, V. Prukner). ISBN 978-80-87026-00-7.
83. P. Bartoš, L. Sedláková, P. Špatenka: Experimental and theoretical study of PECVD in model of hollow substrates In:Proceedings of ICPIG XXVIII Confererence, 2007, Prague, July 15-20, (2007), (eds. J.Schmidt, M. Simek, S. Pekarek, V. Prukner). ISBN 978-80-87026-00-7.
84. V. Stranak, J. Blazek, M. Tichy, Z. Hubicka, P. Spatenka, S. Wrehde, R. Hippler,Study of slightly electronegative Ar/O2 discharge by means of Langmuir probe. In:Book of abstracts of IWEP VII Confererence, 2007, Prague, July 22-25, (2007), (eds.M. Tichy, P. Kudrna, V. Stranak), 10. ISBN 978-80-7378-010-4.
85. J. Hladík, J. Píchal, P. Špatenka J. Gregr, Comparison of modification PE powder in low and high pressure plasma. New perspectives of Plasma Science and technology. International Workshop for Students and Young Researchers, 23-25 October 2007, Brno, Czech Republic.
Dále autor či spoluautor více než 50 odborných přednášek a příspěvků na konferencích.

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The provisions of this chapter shall apply to civil penalties created pursuant to §§ 4101(d) and 4802 of this title and to other civil penalties provided for in this title.
§ 802 Authority to stop.
§ 803 Right of transfer.
The provisions of § 5303 of Title 11 shall not apply to a civil traffic offense. However, the Justice of the Peace Court may establish procedures for transferring to the Court of Common Pleas a civil traffic offense with a criminal offense which occurred in the same incident.
§ 804 Jurisdiction over certain children.
The Justice of the Peace Court shall have jurisdiction over children age 16 or 17 years of age or older charged with a civil traffic offense except when said child is also charged in the same incident with having violated 1 or more offenses specified in § 927 of Title 10, in which event the entire case shall be heard in the Family Court. When the Justice of the Peace Court has jurisdiction over a child charged with a civil traffic offense, the provisions of this chapter shall apply. Section 921(10) of Title 10 or Justice of the Peace Court Civil Rule 55 notwithstanding, such child may pay a civil penalty by voluntary assessment and a default judgment may be entered against such child in any instance in which it would be entered against an adult.
§ 805 Payment of penalties and costs.
(a) Payment of penalties and costs. — Upon being found responsible for a civil traffic offense, all the costs shall be paid by the party found responsible.
(b) The videophone assessment provided for in § 4101(d) of Title 11 shall not be assessed.
(c) The victim's compensation penalty assessment provided for in § 9016 of Title 11 shall not be assessed.
(d) Court costs shall be governed by Justice of the Peace Court rule, consistent with § 9801 of Title 10.
(e) Immediately upon imposition by a court of a civil penalty or costs or both, including a default judgment, the same shall be a judgment against the person found responsible for the full amount of the penalty or costs or both. If not paid promptly upon its imposition or in accordance with the terms of the order of the court, the clerk shall, upon motion, cause the judgment to be transferred to the civil judgment docket whence it may be executed and enforced or transferred in the same manner as other judgments of the court; provided, however, that where a stay of execution is otherwise permitted by law such a stay shall not be granted as a matter of right but only within the discretion of the court.
(f) Any governmental entity to whom civil penalties or costs are payable pursuant to subsection (j) of this section or any other provision of law may pursue execution on such judgment.
(g) Upon any reversal of a finding of responsibility, the State Treasurer shall remit to each person, or to the attorney of such person, any civil penalty or costs or both which was later set aside by a court of higher jurisdiction upon a certiorari or appeal from the lower court, as provided in § 4103 of Title 11 for fines.
(h) When a court imposes a civil penalty, costs or both, the court may direct that the defendant pay the entire amount at the time of imposition or may direct that the defendant pay a specified portion of the civil penalty, or costs, or both at designated periodic intervals. The Court may order the defendant to participate in work referral until the civil penalties and costs are paid. Failure to participate in court-ordered work referral shall not result in contempt of court. Failure to participate in court-ordered work referral may result in the transfer of the judgment to the Office of State Court Collections Enforcement to be collected according to § 4104 of Title 11.
(i) For purposes of ensuring the payment of civil penalties and costs and the enforcement of any orders imposed, the court shall retain jurisdiction over the person found responsible for a civil traffic offense until any civil penalty or costs imposed are paid in full. The court may discharge the civil penalty and costs of any person found responsible when the court receives evidence that such person is deceased.
(j) The provisions of § 706 of this title shall be applicable to the disposition of amounts collected for civil penalties and related costs.
§ 806 Payment by voluntary assessment.
Civil traffic offenses shall be payable by mail to the voluntary assessment center or other applicable entity. The provisions of this chapter shall govern the failure to pay a voluntary assessment for a civil traffic offense.
a default judgment may be entered against the defendant. Such judgments may be vacated or enforced consistent with § 805(e) of this title.
§ 808 Forwarding of names to the Division of Motor Vehicles.
(a) Except as to persons operating a commercial motor vehicle in violation of § 4176C of this title, § 703A of this title shall not apply to persons found responsible for civil traffic offenses. No record of a finding of responsible for a civil traffic violation shall be forwarded to the Division of Motor Vehicles and no entry shall be made on the person's driving record for a civil traffic violation.
(3) Has requested a trial on the charge and has failed to appear at the time and place set for trial.
§ 809 Suspension of license.
(1) Shall forthwith suspend the driver's license of a resident of this State, unless the person's name and address was forwarded to the Division of Motor Vehicles under § 709(j) of this title, in which case the provisions of § 709(j) of this title shall apply.
(2) May suspend the driving privileges in this State of a nonresident of this State and immediately advise the motor vehicle administrator of the state in which the person is a resident that the person's license to drive be suspended until proof is provided that the person has paid the civil penalty, costs, or both, has appeared in court following a default in appearance or payment and made arrangements to pay the civil penalty, costs, or both, or has had a default judgment vacated and been found not responsible.
§ 810 Refusal of registration renewal.
When a person's name and address is forwarded to the Division of Motor Vehicles pursuant to § 808(b) of this title and the offense was 1 for which the person received service of the notice or summons by mail and the person has not responded within the required time by either paying the civil penalty or requesting a hearing or, submitting an affidavit stating that the person was not the driver, if applicable, the Division of Motor Vehicles may deny the renewal of the registration of the owner's vehicle operated at the time the summons was issued. The Division shall register any vehicle for which it has refused registration upon proof that the person has paid the civil penalty, costs, or both, or has appeared in court following a default in appearance or payment and made arrangements to pay the civil penalty or costs or both or has had a default judgment vacated and been found not responsible.
Any appeals of civil penalties assessed under this chapter shall be taken in the same manner as provided in § 708 of this title.
§ 812 Court rules or policies.
The Justice of the Peace Court, upon approval by the Chief Justice, may develop court rules, administrative directives, or other forms of policies for handling of civil traffic offenses.


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BOSTON REAL ESTATE BOARD & others vs. DEPARTMENT OF PUBLIC UTILITIES & another. QUAKER BUILDING CO. vs. SAME.
Present: QUA, C.J., RONAN, COUNIHAN, & WHITTEMORE, JJ.
TWO BILLS IN EQUITY, filed in the Supreme Judicial Court for the county of Suffolk on April 7, 1953, and April 29, 1953.
The suits were reported by Wilkins, J.
William F. Byrne, (R. Gaynor Wellings & Clarence A. Roberts with him,) for Boston Real Estate Board and others.
Richard J. Walsh, (Robert S. Zollner with him,) for Quaker Building Co.
Matthew S. Heaphy, Assistant Attorney General, for the department of public utilities.
Frederick M. Ives, (Finley H. Perry with him,) for Boston Edison Company.
WHITTEMORE, J. These are bills in equity under G. L. (Ter. Ed.) c. 25, Section 5, [Note p479-1] to review an order of the department of public utilities (the department) dated March 4, 1953, addressed to the elimination of the competitive resale of electricity purchased from Boston Edison Company (Edison) at wholesale rates. The plaintiffs in the first case are owners, managers and operators of rental real estate in Boston, who engage in or have an interest in the business of resale of electricity to tenants or others who can be served without crossing a public way (see G. L. [Ter. Ed.] c. 164, Sections 87, 88), and the Boston Real Estate Board, a corporation certain of whose members own, manage or operate buildings in Boston, acting in their own behalf and for other owners and operators of commercial properties in Edison's territory alleged to have a common interest with the plaintiffs. The plaintiff in the second case (Quaker) since its organization in 1911 has, as its chief business, sold steam and electricity to owners and occupants in the block bounded by Devonshire, Summer, High, Federal, and Franklin streets in Boston. Its customers are eighty-three in number, in twenty-one buildings, and only four of them are Quaker's tenants. Edison was allowed to intervene in each case. The cases, with a companion case (Kargman v. Department of Public Utilities, post, 497) were referred to a master.
A single justice denied motions to recommit the master's report and otherwise reserved and reported the cases for our determination of all questions of law and fact appearing on the record.
The department's findings show that the practice of resale, or submetering, arose from Edison's efforts in its development period to secure off-peak customers who could be served without corresponding increase in generating capacity.
It was advantageous to Edison and its existing customers, largely residential, for Edison to obtain additional revenue at little additional expense by offering wholesale rates to induce self generators of electricity, including the many "block plants," five hundred in number in 1912, to cease business and buy Edison current. Most of these plants were eliminated but a number of the owners remained in the business of within-the-block or within-the-building distribution and others were attracted to it.
As this occurred and the balance of supply and demand changed with the great growth of the use of electricity, Edison concluded that this resale hurt its revenues and beginning in 1930 Edison from time to time took various formal and informal steps to discourage and restrict the practice. The department stated views adverse to the practice in 1947 in Re A. W. Perry Inc. D. P. U. 7697 (denial of a petition to order Edison to supply alternating current in place of direct, for resale) and again in 1949 in Re Boston Edison Co. D. P. U. 8228 (the Rate R case in which a special higher rate for resellers was disapproved). Edison then filed a new amended schedule and, following hearings in respect of that schedule, the subject order was entered.
The department took note of the development and disapproval of the practice elsewhere and in its conclusions found and ruled that the practice of competitive resale is fundamentally unsound and against the public interest, that it results in the utility supplying current to competitors at rates which deprive it of revenue which the utility must obtain by addition to the bills of other customers if it is to receive a just return, that Edison is threatened with expansion of the practice, that the order will not mean an increase in Edison's net earnings, that Edison and the department are not estopped, and that Quaker's position, though different in certain aspects, "must fall with the rest."
not, without the department's approval, supply electricity for resale except by way of rent inclusion, a term referring to arrangements whereby the tenant pays for current by paying his rent unaffected by extent of use, and except in special cases stated.
The order manifestly contemplates that in the usual case the reseller will change to multiple metering, which term means a separate meter for each of the group comprised of the former reseller and his former customers. It provides however (7[b]) for a limited use of series metering (a term which refers to the use of a master meter to measure all the current going into the building and separate meters for billing the tenants at usual retail rates), and a determination of the charge to the holder of the master meter by a computation related to the difference between the total on the master meter and the total on the tenants' meters. Series metering may be used in those cases where the building has been wired therefor before the order date and the "landlord in good faith notifies the company that rewiring for the installation of multiple metering equipment would be impracticable."
The special exceptions to the prohibition of the sale of electricity for resale permit sales (1) to municipal light plants and to electric companies whose customers are outside Edison's territory; (2) as provided in a special contract filed with the department under c. 164, Section 94; (3) as lawfully directed and required by the department under c. 164, Sections 92 or 92A; and (4) at locations of resale existing July 1, 1951, where the customer has refused or failed to rewire for series or multiple metering. There is a provision in paragraph 18 (4) for the rate of charge in such cases which is designed, as the department has stated, to be "a rate made up of the sum of the estimated rates which would be collected from the building itself and the individual tenants involved if they were severally served direct, including the sum of the estimated demands." The other provisions in the order and schedule so far as material are referred to below.
It was proper to allow Edison to intervene as a party defendant. Manifestly Edison is at interest. Justice is served and the court assisted by its presence as a party. The procedure on certiorari is irrelevant. G. L. (Ter. Ed.) c. 249, Section 4. While the proceedings are in this court as an appeal, the appeal is from an order in proceedings in which Edison was a party. Our jurisdiction is in equity (c. 25, Section 5). There can be no doubt of our power to allow such intervention.
THE REFERENCE AND THE MASTER'S REPORT. THE DEPARTMENT'S RULINGS.
Edison appealed from the appointment of the master and objected to the master's receiving any evidence other than the record and transcript of the proceedings in the department. The order being in the nature of legislative action in the rate making field it was necessary that the court "act upon its own independent judgment as to both law and fact" in the issues involved in "a claim of confiscation or of other violation of constitutional right" (Opinion of the Justices, 328 Mass. 679, 687), and it was appropriate to appoint a master to find the relevant facts. Lowell Gas Co. v. Department of Public Utilities, 324 Mass. 80, 89. Opinion of the Justices, 328 Mass. 679. New England Telephone & Telegraph Co. v. Department of Public Utilities, 327 Mass. 81. Massachusetts Bonding & Ins. Co. v. Commissioner of Insurance, 329 Mass. 265, 271. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287. The master properly ruled that he was required to receive evidence bearing on the constitutional questions.
evidence, not to "contradict findings of fact by the department" but in order to "report facts pertinent to claims by the plaintiffs that the department's order was unlawful on other grounds than those of constitutional prohibitions." Although there was no occasion for the receipt of this evidence, in the view we take of these cases no one has been harmed. For reasons hereinafter stated we rule that the order of the department is lawful, and, on the nonconstitutional issues, we so rule on the facts found by it. The plaintiffs may not complain that, at their offer and urging, additional facts or aspects of facts tending to support the lawfulness of the order are available to us as findings in the master's report.
So far as recommittal was sought for further findings by way of conclusion from facts found, it would not be necessary now as the facts found are available to us. The additional facts asked to be found on recommittal would not be significant in our view of the case.
There is no occasion to pass on specific objections (that is, exceptions -- see Pearson v. Mulloney, 289 Mass. 508, 514) to the master's report. In the following paragraphs we state the important findings on which we rely. We have not given weight to any which we do not find supported. To any extent that our rulings differ from those made by the master, the former control. The purpose of rulings of law by the master to show the principles of law which he has deemed applicable and has followed in deciding facts (First National Bank v. Harrison, 271 Mass. 258, 263) has been well served here.
It will be unnecessary to deal separately with the rulings and refusals to rule of the department. Each has been considered in connection with the issues to which it relates.
the same effect as if a schedule with such changes were filed by the company, and shall become effective from such time as the department shall order." The subject order in this respect provided that Edison "file, on or before April 1, 1953, new supplements amending its M. D. P. U. No. 54 modifying the same as follows: . . .."
The plaintiffs in the first case now contend that this order, appealed from by them, is a nullity, that no one is aggrieved by it, and that we are therefore without jurisdiction. We disagree. Section 94 also provides that the company may file schedules amending its filed schedules of rates, prices and charges, and that "Unless the department otherwise authorizes, the rates, prices and charges set forth in such a schedule shall not become effective until the first day of the month next after the expiration of fourteen days from the filing thereof." Edison's compliance with the subject order of March 4, 1953, would mean that the provisions of the schedule would be effective either April 1, 1953, or May 1, 1953, depending upon whether Edison filed the required schedule before March 18. The result is the same as though the department had directed changes to take effect on April 1, 1953, if Edison should make the required filing before March 18, and otherwise to take effect on May 1. This is a sufficient order by the department of the effective time of the changes directed by the department. See Perth Amboy v. Board of Public Utility Commissioners, 98 N. J. L. 106; S. D. Warren Co. v. Maine Central Railroad, 126 Maine, 23.
THE POWER OF THE DEPARTMENT TO ENTER THE ORDER.
well as rate scales may be regulated under a power to prescribe rates. Florida Power & Light Co. v. State, 107 Fla. 317, 321-322.
Section 94 requires the filing of "schedules . . . showing all rates, prices and charges . . . with all forms of contracts thereafter to be used in connection therewith." It gives the department jurisdiction not only over the stated rates, prices and charges for various classifications of service, and the relationship between classifications, but also over reasonably related terms and conditions stated in the service contract or the filed schedules. See Ambassador, Inc. v. United States, 325 U.S. 317, 322, note 3; Campo Corp. v. Feinberg, 279 App. Div. (N. Y.) 302, affirmed 303 N. Y. 995 (New York Public Service Comm., case No. 14279).
Under Edison's prior schedule the plaintiffs were informed that they could get power unrestrictedly at wholesale rates to service their tenants. It was certainly appropriate, and it was lawful, to use an amendment of the schedule to inform them of drastic restriction of the conditions under which power would thereafter be furnished for such purpose and large price increases therefor.
THE EFFECT OF G. L. (TER. ED.) c. 164, Section 92A.
COMPETITION BETWEEN EDISON AND QUAKER.
legal and reasonable terms and conditions. The subject order in effect denies this.
We hold that Section 92A does not give Quaker or others similarly situated a right to require that electricity be furnished them for resale in competition with Edison. The permissive form of this section and of the companion Section 92 is significant. So also is the provision that such an order if made shall be "upon such terms and conditions as are legal and reasonable." The basis for any regulation of the supply of electric current is the State policy, in the general interest, of encouraging a monopoly of supply. (See Weld v. Board of Gas & Electric Light Commissioners, 197 Mass. 556.) If there can be one or several within-the-block or within-the-building reselling competitors of Edison there can be many. As the department has said, "Such a situation would be intolerable . . .."
The controlling policy in the interpretation of Section 92A is to be found in the fact of regulation and in such a provision as Section 87 which prohibits the use of public ways to a competing electric utility without the consent of the aldermen or selectmen after notice and public hearing.
Quaker refers to 1930 House Doc. No. 1200. This report of the department recommended a bill, which with some amendments became Section 92A, "to make it indisputable that . . . [Section 92] applies to wholesale contracts and covers the situation where a wholesale company may refuse to sell power to an operating company which has no other economically practicable source of supply" (pages 70-71). Quaker was then qualified as a reporting electric company and Doc. 1200, which was a widely ranging report, listed, in its comprehensive statement of the existing companies in the State, the independent companies. This list included Quaker, together with six nonelectric manufacturing companies engaged in selling current generated in excess of their own needs. The enactment of Section 92A in this setting did not show a policy that independent companies shall be assured of electricity for the purpose of competing with their suppliers.
The able brief for Quaker contends, however, that Quaker is not a competitor of Edison as it has not sought to get customers from Edison, but on the contrary brought its customers to the use, through Quaker, of Edison current. We pass the effect of the allegation of Quaker's amended bill of complaint herein that "From the time of its organization in 1911, Quaker openly competed with Edison for electricity customers in the territory . . . [of its block] . . .." Plainly there is competition between two distributors in the presently significant meaning of the word which perhaps is the sense that Quaker had in mind in its allegation. Edison's wires are in the streets surrounding Quaker's block available to supply Quaker's customers with no substantial extension of mains. Some tenants in some of the buildings in which Quaker serves most of the tenants are Edison customers. The essential aspect of opportunity of choice by the consumer is present. The competitive aspect is not, as Quaker contends, the same as that between Edison and Boston Gas Company in its exercise of its franchise in Charlestown. Edison has no wires in Charlestown and could not supply any material number of Boston's customers in Charlestown, if any whatever, without an extension of its main wires into that territory and action by the city council under Section 87 granting it a franchise there.
use of its generators, but that in the present era it is a "loss" to it so to sell to resellers because of change in relevant factors. We prefer, as it is unnecessary, not to consider whether this change in public interest can be deemed to show a "loss" to Edison under Section 92A or whether the concept of a loss is otherwise supportable. It is significant, however, in determining that resale to competitors is not in the public interest that the department has found that the net increase in Edison's annual revenue from an end of the practice of resale to tenants will be about $1,000,000, and that there is little likelihood of self generation of electricity by former resellers.
THE EFFECT ON THE ORDER OF CONSTITUTIONAL PROVISIONS.
THE CLAIM OF VESTED RIGHTS.
The order changes a State created frame of reference in which the plaintiffs have been able to conduct profitable businesses for many years and thereby affects the value of property used in the businesses and affects the obligations of outstanding contracts with others than Edison made in the course thereof. What the plaintiffs have enjoyed is in substance a perquisite of location and occupation dependent upon the circumstance that for a period it was found to be in the general public interest for Edison to maintain, without limitation in respect of competitive use of current bought, a rate structure that gives a very substantial discount to wholesale purchasers. This circumstance and the concomitant rate structure had the collateral effect of giving to owners of certain property, strategically located, State supported monopolies of business opportunity. There has been no constitutional assurance to the plaintiffs that State regulation of Edison would continue to be carried out so as to make likely, or sure, the continuance of these special opportunities for profit.
through the public . . .." Weld v. Board of Gas & Electric Light Commissioners, 197 Mass. 556, 559. The contest here is over the application rather than the validity of the fundamental principles that the "right of freedom to contract in general is subject to reasonable legislative control under the police power," Attorney General v. Prudential Ins. Co. 310 Mass. 762, 766; Hudson County Water Co. v. McCarter, 209 U.S. 349, 357, quoted in New England Telephone & Telegraph Co. v. Brockton, 322 Mass. 662, 666; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 438, quoted in General Outdoor Advertising Co. Inc. v. Department of Public Works, 289 Mass. 149, 210, and that reasonable and nonarbitrary action under the police power may be taken although it may diminish or destroy without compensation the value of property not actually taken. Callender v. March, 1 Pick. 418, 429-432. Mugler v. Kansas, 123 U.S. 623. Chicago, Burlington & Quincy Railroad v. Chicago, 166 U.S. 226. New Orleans Public Service, Inc. v. New Orleans, 281 U.S. 682, 687. Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33, 36-37. United States Gypsum Co. v. Mystic River Bridge Authority, 329 Mass. 130, 135.
For reasons stated below we hold the order reasonable and not arbitrary. There is nothing in Quaker's claim that the order in effect will take its profitable business of reselling electricity and give it to Edison without compensation and will destroy its steam supply business and that this is the same for constitutional purposes as an actual taking. The master has rightly stated that this cannot be found to be the result in fact. The legal principle is inapplicable.
resellers' contracts have bound them to pay for service "in accordance with the company's terms and conditions . . . as they exist from time to time and are filed . . .." The possibility existed of change in the conditions which for a time resulted in regulation favorable to the purchase of electricity for competitive resale. The possibility of change in the regulations was implicit at all times and was confirmed by action of Edison and the department over a number of years beginning in 1930. We need not pause to consider whether, since all customers and the public have an interest in all rates, the terms and conditions on which a regulated utility must furnish service could in any circumstances be determined or affected by estoppel or analogous principles. Nor need we decide what the effect would be of a change in the regulatory background of the resale contracts made startlingly soon after important changes had been made by new Edison customers.
We have considered carefully Quaker's contention, based on its decision in 1916 to take on as a customer the newly built Rice building, and to take Edison current rather than buy larger generating equipment, as well as its other claims to special treatment. But we see nothing to suggest that any vested rights arose in Quaker because of any of the facts found, or any facts which make the general principles on which we base this opinion inapplicable to Quaker.
"Petitioners have no vested rights, statutory or otherwise, in the practice of submetering . . .." Campo Corp. v. Feinberg, 279 App. Div. (N. Y.) 302, 306, affirmed, without opinion, 303 N. Y. 995. Sixty-Seven South Munn, Inc. v. Board of Public Utility Commissioners of New Jersey, 106 N. J. L. 45, affirmed 107 N. J. L. 386, certiorari denied 283 U.S. 828. [Note p490-1] See (not submetering cases) Birmingham v.
Southern Bell Telephone & Telegraph Co. 234 Ala. 526, 533, 534; Brooklyn Union Gas Co. v. New York, 50 Misc. (N. Y.) 450, 461-463; United States Light & Heat Corp. v. Niagara Falls Gas & Electric Light Co. 47 Fed. (2d) 567, 570.
THE ORDER IS REASONABLE AND NOT ARBITRARY.
So far as it is a question of fact the master's finding that the order is not arbitrary and unreasonable is fully supported by the evidence; so far as it is a matter of law, we so rule. We think it is enough to support this conclusion to have found that it is enough to support this conclusion to have found that it is no longer in the interest of the other customers of Edison or the general interest that there be a profit yielding rate structure available to Edison's competitors. The large amount of additional net revenue found to accrue to Edison under the order shows that the spread between wholesale and retail rates is greatly more than is warranted by differences in direct costs between wholesale and retail distribution. If there is such a concept in the complex field of utility rate making, the rate now to be ended for competitors of Edison does not appear as innately reasonable apart from the special conditions which brought it about and have now ended. We are not concerned with the continued justification of the wholesale rate to noncompetitors. It is not arbitrary or unreasonable to classify them differently. It does not deprive Quaker of equal protection of the laws to allow Edison to continue to sell current at wholesale rates to Boston Gas Company for resale to its Charlestown customers.
threatened with expansion of the practice of resale, the facts found support the conclusion that the threat of expansion, absent restriction or prohibition of the practice, does exist. The economics of the situation are persuasive.
Whether or not material, there is support for the finding that Edison's net earnings are not going to be increased as a result of the order. The department has power over existing rates (c. 164, Section 93) and over proposed rates (Section 94). Also Edison, in the subject proceedings, has committed itself to the department to devote "the proceeds of any recovery . . . for the benefit of those customers who take service under the residence rates, unless the department should request a different use."
Quaker argues forcefully that a special exception for it is required because of its unique position among the plaintiffs as a qualified electric company and in other respects. Special treatment for Quaker might have been warranted. We do not need to determine this and intend no suggestion. But an exception for Quaker might have raised very serious factual and legal questions of where to draw the line between Quaker and others. It was appropriate and lawful for the reasons stated, and not unreasonable or arbitrary, to apply the order to Quaker just as to all other resellers.
Nor does it make the order unlawful that it might have been open to the department to order that all resellers in their precise status as of a given date be exempted from the order, particularly, as the argument goes, since most of the resellers take direct current, and there is increasingly strong demand for alternating current only. See In the Matter of Commonwealth Edison Co. #40745 Ill. Comm. Comm. 1/29/53, C. C. H. Utilities Law Rep. 1953 et seq. par 16, 514. The department was not required to find it in the public interest for Edison not to receive for a substantial period the large increase in annual revenue here involved.
Other claims of unreasonableness and arbitrariness are discussed below. We have considered each of the many specifications to the point even though not mentioned.
THE EFFECT OF PARAGRAPHS 7 (b), 18 (4) AND 19.
Most if not all the arguments of unlawfulness based on paragraphs 7 (b) and 18 (4) stem from the assumption that the plaintiffs have a right to a supply of current for use in competitive resale. Our holding that there is no such right is sufficient answer.
These are optional provisions to ameliorate the effect of the prohibition of sale of current for competitive resale. As such they are not to be judged as offered rates in stated schedules, and any deviations therein from rate making principles, such as may have been stated in the Rate R decision, would not be controlling. Perhaps the order would have been valid without any options allowing current to be supplied under series metering or to resellers who are located in Edison territory. Brand v. Water Commissioners of Billerica, 242 Mass. 223, 228. General Outdoor Advertising Co. Inc. v. Department of Public Works, 289 Mass. 149, 205-210. Instead of that the department has provided for no sale on series metering or to resellers in competitive territory except on terms which, within the limits imposed by the inherent difficulties, including that of determining the demands of each user in the absence of separate meters, will yield to Edison an approximation of the revenue it would have had if series metering or reselling had been given up.
We have considered each of the specified ways in which, under these paragraphs, the rate computations or the charges will differ from the rate computations and charges which would prevail if metering were different or the computations different, and all specifications of uncertainty, inexactness and unevenness in operation of the provisions. They do not invalidate the order.
to multiple metering which under all conditions of use of current is precisely or substantially equivalent thereto in dollar impact.
The primary significance of paragraph 18 (4) is in its assurance to all reselling customers of Edison that they will not be deprived of electricity at some price even if they do not shift to multiple or series metering within the specified year. The master found that it is designed to "provide Edison with a method of collecting . . . about as much revenue as if that customer had given up resale." It would be immaterial in the circumstances, including this finding, if it were true, as additionally found by the master, that the department also sought to prescribe terms making failure to give up the practice "so disadvantageous that building owners . . . would be compelled to adopt either multiple or series metering." This does not show, as contended, that the department has imposed a penalty. At most the charging provisions of 18 (4) operate to resolve in Edison's favor the difficulties involved, under the conditions it allows, in determining what Edison's revenue would be if those conditions had been prohibited. That, we hold, the order may lawfully do.
We agree with the master that paragraph 18 (4) applies to Quaker notwithstanding the use of the word "tenant." The controlling intent to treat Quaker as are the other plaintiffs, is manifest.
Paragraph 19, directing Edison to purchase meters on stated terms, does not make the order unlawful. This is not for Edison's benefit. It is another provision to lessen the impact of a police power change, permitted but not required. Connor v. Metropolitan District Water Supply Commission, 314 Mass. 33, 37.
THE EFFECT OF PARAGRAPH 18 (2).
c. 164, Section 94, and there are no specified standards under which such contracts may be allowed. Other plaintiffs contend that the practice of resale cannot be the subject of a special contract under Section 94.
For reasons already stated we hold that Section 94 does give the department power to determine whether Edison by a special contract may furnish electricity for resale. What will be determined in such a case in substantial part is whether a wholesale rate (either the regularly scheduled wholesale rate or a special one for the special case) may be charged for certain electric service. This is sufficiently related to the regulation of rates, prices and charges to be within the intendment of Section 94.
provisions of special contracts which will facilitate resale. The department's findings indicate some of the applicable criteria in determining the public interest; including on the one hand the adverse effect of resale in competition with the utility and on the other the desirability of increasing custom up to the generator capacity under special conditions.
The now existing special contracts do not show that the power will be exercised arbitrarily. The department has expressly declared that the public interest in respect of such contracts as allow for resale will, because of the subject order, be determined by it. Section 94 gives the department the necessary power. It is immaterial that under the different conditions existing prior to adoption of the subject order the department has not heretofore taken affirmative action in respect of any filed special contract. To any and the full extent that applicable rules of law now or at any time hereafter require consistency of treatment for customers who stand in like aspect we must assume it will be afforded.
The department made findings as to two special contracts. We agree with the department that they do not show or forecast unreasonable discrimination.
of electricity by large users is necessarily a completely irrelevant factor in determining the classification for rate purposes into which such users shall fall.
The department has indicated that it contemplates the use of paragraph 18 (2) to give "Edison and its customers, under supervision of the department, time to iron out . . . difficulties [in making changes under the order] as they come up . . . [and that] Edison can allow any customer who has coperated in good faith to meet the deadline, but who is unable for some reason to do so, to have additional time to rearrange his system." This we hold will be a reasonable use of the provision.
The department also said, "Such latitude as the department might give in this matter would be adequate to protect vested contract rights . . .." This is an additional proper reason for the inclusion of paragraph 18 (2).
A decree is to be entered in each case denying the motion to recommit the master's report, confirming the report and dismissing the bill of complaint.
[Note p479-1] The substitution of a new Section 5 by St. 1953, c. 575, Section 1, took effect September 1, 1953, and does not apply to "any final decision, order or ruling made prior to said effective date."

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