GISELA LEVIN vs. JORDAN'S FURNITURE, INC.

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

GISELA LEVIN [FN1] vs. JORDAN'S FURNITURE, INC.

10-P-1476

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

From March 25, 2008, through April 27, 2008, Jordan's Furniture, Inc. (Jordan's), ran a sales promotion providing that any qualifying purchase made at its stores during the promotional period would be free if the Boston Red Sox swept the 2008 Baseball World Series. During the promotional period, the plaintiff purchased $4,661.70 worth of qualifying merchandise from Jordan's.

On October 8, 2008, the plaintiff brought this suit for beach of contract and violations of G. L. c. 93A, § 2, alleging, pursuant to G. L. c. 137, § 1, [FN2] that the Jordan's promotion was an illegal lottery. [FN3] On April 7, 2009, the plaintiff filed an amended complaint; Jordan's thereafter filed a motion pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974), for judgment on the pleadings and to dismiss the complaint. In granting that motion, the judge noted that the 'essential test' for determining whether the 'price' element of a lottery has been satisfied is 'whether those who chose to pay were 'paying in part for the chance to win a prize." Commonwealth v. Webb, 68 Mass. App. Ct. 167, 171 (2007), quoting from Commonwealth v. Wall, 295 Mass. 70, 73 (1936). Reasoning that the plaintiff's complaint did 'not claim that any part of the purchase price of the furniture was paid for the chance to win the rebate,' she concluded that the plaintiff had 'fail[ed] sufficiently to assert the element of 'price," and therefore 'the Monster Sweep [did] not qualify as an illegal lottery.'

For substantially the reasons set forth in the motion judge's memorandum of decision, we affirm. As the judge recognized, the amended complaint is bereft of language alleging that any portion of the purchase price was paid in anticipation of the Monster Sweep rebate and, accordingly, the complaint was properly dismissed. See Commonwealth v. Webb, supra, at 171.

Judgment affirmed.

By the Court (Kantrowitz, Trainor, & Grainger, JJ.),

Entered: April 15, 2011.

FN1. On behalf of herself and all others similarly situated.

FN2. 'Whoever, by playing at cards, dice or other game, or by betting on the sides or hands of those gaming, loses to a person so playing or betting money or goods, and pays or delivers the same or any part thereof to the winner, or whoever pays or delivers money or other thing of value to another person for or in consideration of a lottery, policy or pool ticket, certificate, check or slip, or for or in consideration of a chance of drawing or obtaining any money, prize or other thing of value in a lottery or policy game, pool or combination, or other bet, may recover such money or the value of such goods in contract; and if he does not within three months after such loss, payment or delivery, without covin or collusion, prosecute such action with effect, any other person may sue for and recover in tort treble the value thereof.'

FN3. In order to constitute a lottery in Massachusetts, a promotion must include: (1) the payment of a price, (2) a prize, and (3) some element of chance. Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 406 (1972). The parties have at all times acknowledged the existence of a prize and an element of chance, and therefore the only issue before the court below was the existence of a price element.

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