
    Charles W. Cassidy vs. City of Newton
    Northern District
    October 16, 1981
    Present: Forte, Tiffany & Banks, JJ.
    Matthew J. Ferraro for the plaintiffs.
    G\ Michael Peirce for the defendant.
    
      
       Louis A. Collella.
    
   Forte, J.

This is an action that has been instituted under G.L.c.41, §§ 11 IE and 11 IF in which the plaintiffs are retired firefighters and are claiming lost wages which were denied them. The plaintiffs were injured in the line of duty and were out on injured leave. Upon retirement, they seek compensation for their vacation time they were unable to take because of their injuries. While on injured leave in the years 1971 (3 weeks), 1972 (4 weeks) and 1973 (4 weeks), the fire chief changed their absence from injured reserve leave to vacation leave, even though they were still injured.

The matter was submitted on a Statement of Agreed Facts without any additional evidence, therefore submitted as a case stated.

The parties agree this case raises the same issues as decided in Carvalho v. City of Cambridge, 372 Mass. 464 (1977) affirming a decision of this Appellate Division in 5 9 Mass. App. Dec. 46 (1976).

The defendant distinguishes this instant case from Carvalho in that the City of Newton had an ordinance that states: ‘ ‘The vacation periods allowable under Sections 2-52 and 2-54 shall not be cumulative, but shall be taken only in the calendar year in which the employee first became entitled thereto.” Further, the collective bargaining agreement covering the firefighters states: “All members shall be entitled to vacations annually as now provided by the laws of the City of Newton.”

In examining the exhibits in the Carvalho case, exhibitC, we find there too vacations had to be taken in the year in which the vacation accrued.

However, in assuming arguendo, that the ordinance of the City of Newton did provide that vacation time, even while injured, had to be taken in the year accrued, such would be contrary to the General Laws, particularly G.L.c.41, §§11 IE and 11 IF. Cities cannot adopt ordinances contrary to the General Laws, G.L.C.43B, §13. See also G.L.c.40, §21 A, where cities cannot adopt ordinances regarding working conditions of firemen that provide leave without loss of pay less than provided by the general laws.

We are of the opinion that the decision of Carvalho v. City of Cambridge, ibid, controls this action.

The finding for the defendant is vacated and the action is returned to the trial judge for hearing to determine the amount of damages to be awarded the plaintiffs in lieu of vacations for the years in question, pursuant to G.L.c.41,§lllE.  