
    James G. Clothier & another vs. Teachers’ Retirement Board & another.
    
    No. 09-P-1731.
    Suffolk.
    September 8, 2010.
    October 20, 2010.
    Present: Grasso, Smith, & Graham, JJ.
    
      Teachers* Retirement Board. Negligence, Misrepresentation. School and School Committee, Retirement benefits. Public Employment, Retirement benefits.
    In a civil action brought by a retired teacher against the Teachers’ Retirement Board (board), alleging that the board was negligent and misrepresented the teacher’s eligibility to purchase service credit for his time as a teacher in the New York State public school system, and his consequent retirement benefits, the judge did not err in granting summary judgment in favor of the board, where a question on the application to purchase service credit asking whether the teacher had retirement contributions on deposit in another State’s retirement system was neither a statement nor a factual representation as to the teacher’s eligibility or entitlement to such credit, and where, even if that question could be viewed as a statement of material fact, the teacher could not reasonably rely on it for guidance as to his eligibility to purchase credit or the amount of his future pension, in that G. L. c. 32 defines and limits the benefits to which the teacher was entitled. [145-146]
    Civil action commenced in the Superior Court Department on April 28, 2006.
    The case was heard by John C. Cratsley, J., on motions for summary judgment.
    
      Matthew D. Jones for the plaintiffs.
    
      Catherine E. Sullivan, Assistant Attorney General, for the defendants.
    
      
      Margaret Clothier.
    
    
      
      Commonwealth of Massachusetts.
    
   Grasso, J.

James G. Clothier (Clothier) appeals from a judgment in favor of the Teachers’ Retirement Board (TRB) on claims alleging negligence, breach of fiduciary duty, negligent misrepresentation, and negligent infliction of e notional distress. A judge of the Superior Court concluded tha¡ Clothier’s action was barred by claim preclusion arising from i judgment in an earlier action wherein Clothier unsuccessfully challenged TRB’s reduction of his retirement benefits. We affirr . the judgment in favor of the defendants on grounds different rom those relied on by the Superior Court judge.

1. Background. Clothier worked as a teache in the New York State public school system from 1968 until 986. During that time, he earned a pension funded by contribi ions solely from his employer. After relocating to Massachusetts in 1986, Clothier became a public school teacher in the Martha’s ineyard Regional School District and began contributing to tl s Massachusetts Teachers’ Retirement System (MTRS).

In 1992, Clothier applied to the TRB for th ■ purchase of ten years of creditable service in the MTRS pursui nt to G. L. c. 32, § 3(4), on account of his prior public school :eaching in New York State. In his application, Clothier respcm led “No” to the question that asked, “Do you have retirement contributions on deposit in another state’s retirement system?” he TRB allowed the application, and Clothier purchased ten yc ars of creditable service in 1993, paying $18,502.14.

In 2000, Clothier became eligible and beg¡ n to receive his New York State pension. In 2002, Clothier app led for superannuation retirement in Massachusetts and also >egan to receive Massachusetts retirement benefits. During a r >utine audit, the TRB discovered that, in contravention of G. ,. c. 32, § 3(4), Clothier was collecting a retirement benefit rom New York State and from Massachusetts for the same en-year service period on account of his purchase of credit for New York State service. Pursuant to G. L. c. 32, § 20(5)(c)(2 i, the TRB corrected the double payment error, reduced Clothier’s annual benefits, and refunded his service credit purchase money.

Clothier’s appeal to the Contributory Retirement Appeal Board (CRAB) from the reduction of his pension was unsuccessful, as was his appeal to the Superior Court, which determined that he was receiving all the retirements benefits to which he was entitled. Clothier did not appeal from the Superior Court judgment.

In 2006, Clothier instituted these claims under the Massachusetts Tort Claims Act. See G. L. c. 258, § 2.

2. Discussion. Clothier’s action, however characterized, is predicated on the contention that the TRB was negligent and misrepresented his eligibility to purchase service credit and his consequent retirement benefits. He asserts that as a result of TRB’s negligence and misrepresentation he retired from Massachusetts earlier than he otherwise would have and that he suffered financial harm and emotional distress. We see no merit to his assertions.

Clothier’s claims rest on fundamentally flawed premises. The application question, “Do you have retirement contributions on deposit in another state’s retirement system?” is neither a statement nor a factual representation as to his eligibility or entitlement to purchase service credit. See Kitner v. CTW Transp., Inc., 53 Mass. App. Ct. 741, 749 (2002). Rather, it is a request for information to assist the TRB in determining his statutory eligibility to purchase credit for years of service in another State. See G. L. c. 32, § 3(4) (having contributions in another State’s retirement system affects an individual’s ability to purchase credit). Beyond failing to represent Clothier’s eligibility to purchase credit, the question is neither false nor misleading. See Gossels v. Fleet Natl. Bank, 453 Mass. 366, 372 (2009); Townsends, Inc. v. Beaupre, 47 Mass. App. Ct. 747, 754-755 (1999). The question does not limit itself to employee contributions to the New York State retirement system, but asks whether contributions are “on deposit” without differentiation as to source.

More fundamentally, even if viewed as a stat ment of material fact, the application question is not something tl at Clothier could reasonably rely upon for guidance as to his eligi sility to purchase credit or the amount of his future pension. See Barrington v. Fall River Hous. Authy., 27 Mass. App. Ct. 301, 309 1989). Clothier’s entitlement to retirement benefits and the amoun of such benefits is governed entirely by G. L. c. 32. See Macka v. Contributory Retirement Appeal Bd., 56 Mass. App. Ct. 924, 924-925 (2002). Because the statute defines and limits the benefits o which Clothier and other like retirees are entitled, those ber ;fits are a legal determination that may not be enlarged, even )y an erroneous interpretation by the TRB or any of its emplo; ees. See Phipps Prods. Corp. v. Massachusetts Bay Transp. A, thy., 387 Mass. 687, 693-694 (1982); Bristol County Retirement Bd. v. Contributory Retirement Appeal Bd., 65 Mass. App. Ct. 443, 448-449 (2006). Consequently, Clothier can neither clan i entitlement to, nor reasonably rely upon, a retirement benefit w ten the statutory language does not provide for it. See Madden v. Contributory Retirement Appeal Bd., 431 Mass. 697, 701 (2000); Hollstein v. Contributory Retirement Appeal Bd., 47 Mass. App. Ct. 109, 111 (1999).

Judgr ent affirmed. 
      
      Resolution of Margaret Clothier’s claim for loss of coi sortium is governed in all material respects by our disposition of Clothier’s cl. ims.
     
      
      We pass over whether principles of claim preclusion or issue preclusion are fatal to Clothier’s claims. See Bagley v. Moxley, 407 Mass. 633, 636-638 (1990). We also need not resolve the Commonwealth’s coni intion that negligent misrepresentation is not a claim for “injury or loss of { -operty or personal injury” as to which the Commonwealth has waived severe gn immunity under G. L. c. 258, § 2, inserted by St. 1978, c. 512, § 15, and C L. c. 258, § 10(c).
     
      
      Although not necessary to our decision, we note that Clothier knew that his employer had made contributions to the New York State retirement system on his behalf and that he was entitled to a pension from New York.
     
      
      As resolved in his earlier action, Clothier is ineligible fc • the greater retirement benefits that he initially received. See G. L. c. 32, 3(4) (a recipient cannot obtain credit or payment for any service in anc her State if he is “entitled to receive a retirement allowance” from that Stat ).
     