construction clause in Massachusetts

2003L. c. 123A, that are procedural “do not define criminal conduct, are not penal statutes, and may not be subject to such strict construction against the Commonwealth,” Commonwealth v. George , 430 Mass, at 278-279; and even under the strict construction rule we do not reject “an available and sensible interpretation ... in favor of a fanciful or perverse one." Commonwealth v. Wotan, 422 Mass. 740, 743 (1996).

2003In abiding by the strict construction rule, however, the Commonwealth is permitted an “available and sensible interpretation,” Commonwealth v. Wotan, 422 Mass. 740, 743 (1996), quoting from Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992), as we think obtains here.

2021Cf. Bruno v. Zoning Bd. of Appeals of Tisbury, 93 Mass. App. Ct. 48, 52 (2018) (for statute of limitations purposes, challenge to all uses of structure is challenge to existence of structure).

2009Cf. Caval-laro v. United States, supra at 245, quoting United States v. Arthur Young & Co., 465 U.S. 805, 816 (1984) (“the doctrine of construing the privilege narrowly . . . has particular force in the context of IRS [Internal Revenue Service] investigations given the ‘congressional policy choice in favor of disclosure of all information relevant to a legitimate IRS inquiry’ ”).

2003In abiding by the strict construction rule, however, the Commonwealth is permitted an “available and sensible interpretation,” Commonwealth v. Wotan, 422 Mass. 740, 743 (1996), quoting from Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992), as we think obtains here.

1997The attorney-client privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 481-482 (1990), quoting Hunt v. Blackburn, 128 U.S. 464, 470 (1888).

1997The attorney-client privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.” Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 481-482 (1990), quoting Hunt v. Blackburn, 128 U.S. 464, 470 (1888).

1994As was stated in Financial Acceptance Corp. v. Garvey, 6 Mass.App.Ct. 610, 613 (1978), the “guiding principle in construction of a dragnet clause in a mortgage is the determination of the intent of the parties in view of the particular circumstances and the language employed in the mortgage.” In Everett Credit Union v. Allied Ambulance Service, Inc., supra, the Court held that, in cases where there is no evidence of unfairness or oppressiveness in the relationship between the parties to the mortgage and no evidence as to the intent of the parties in executing the mortgage, the dragnet clause s

1994Given the amount of money at stake ($1,955) and the fact of actual knowledge by the general contractor, we ordinarily would consider imposing sanctions on the appellant’s attorney (see Avery v. Steele, 414 Mass. 450, 457 [1993]), but for his claim that the matter at issue here is of great importance and genuine concern to the construction bar.

1990Co. v. Van’s Westlake Union, Inc., 34 Wash. App. 708, 714 (1983). 6 We decline to speculate on the proper construction of the exception, if a release or discharge, initially both accidental and sudden, continues for an extended period.

1987See Rollins Environmental Servs., Inc. v. Superior Court, supra at 180 .

1984The majority’s construction of the clause is also not in keeping with the rule of elementary fairness which entitles a party to be heard before imposing liability, see West’s Case, 313 Mass. 146, 155 (1943); Thayer’s Case, 345 Mass. 36, 44-45 (1962); Harkins v. Contributory Retirement Appeal Bd., 15 Mass. App. Ct. 964, 964-965 (1983), nor with the normal rule which construes insurance provisions against the insurer.

1984The majority’s construction of the clause is also not in keeping with the rule of elementary fairness which entitles a party to be heard before imposing liability, see West’s Case, 313 Mass. 146, 155 (1943); Thayer’s Case, 345 Mass. 36, 44-45 (1962); Harkins v. Contributory Retirement Appeal Bd., 15 Mass. App. Ct. 964, 964-965 (1983), nor with the normal rule which construes insurance provisions against the insurer.

1984The majority’s construction of the clause is also not in keeping with the rule of elementary fairness which entitles a party to be heard before imposing liability, see West’s Case, 313 Mass. 146, 155 (1943); Thayer’s Case, 345 Mass. 36, 44-45 (1962); Harkins v. Contributory Retirement Appeal Bd., 15 Mass. App. Ct. 964, 964-965 (1983), nor with the normal rule which construes insurance provisions against the insurer.

1984Rule 13 (a) (1) is consistent with a theory of de nova proceedings in which the defendant obtains a new trial “completely divorced from the record of the prior trial,” Mann v. Commonwealth, 359 Mass. 661, 664 (1971), and in which “all issues of *201 law and fact must be determined anew.” Costarelli v. Massachusetts, 421 U.S. 193, 194 (1975).

1984Rule 13 (a) (1) is consistent with a theory of de nova proceedings in which the defendant obtains a new trial “completely divorced from the record of the prior trial,” Mann v. Commonwealth, 359 Mass. 661, 664 (1971), and in which “all issues of *201 law and fact must be determined anew.” Costarelli v. Massachusetts, 421 U.S. 193, 194 (1975).

1981“The purpose of [rule 4 (a)] is clear: It is ‘to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant’s demands.” Browder v. Director, Dep’t of Corrections of Ill., 434 U.S. 257, 264 (1978) (construing Fed.