               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT

                                        

No. 93-1489

                    DAVID SNOW, ET AL.,

                  Plaintiffs, Appellants,

                             v.

                 HARNISCHFEGER CORPORATION,

                    Defendant, Appellee.

                                        

        APPEAL FROM THE UNITED STATES DISTRICT COURT

             FOR THE DISTRICT OF MASSACHUSETTS

      [Hon. Douglas P. Woodlock, U.S. District Judge]
                                                    

                                        

                           Before

            Torruella and Stahl, Circuit Judges,
                                               
              and DiClerico,* District Judge. 
                                            

                                        

Walter A.  Costello, Jr. with whom  Julie M. Conway and  Costello,
                                                                 
Barrett and Gonthier, P.C. were on brief for appellants.
                     
David  M. Rogers  with whom  Richard P.  Campbell and  Campbell  &amp;
                                                                 
Associates, P.C. were on brief for appellee.
           

                                        

                     December 29, 1993
                                        

                

*Of the District of New Hampshire, sitting by designation.

          DiClerico, District Judge.  Plaintiffs David Snow,
          DiClerico, District Judge.
                                   

Linda  Snow, Jason  Snow and  Kevin Snow  brought an  action

against       defendant       Harnischfeger      Corporation

("Harnischfeger") alleging  defective design  and negligence

after  the trolley wheel  of an Harnischfeger  crane injured

David  Snow.    Harnischfeger  moved for  summary  judgment,

claiming the  Massachusetts  real estate  statute of  repose

barred the  action.  The  district court agreed  and granted

summary judgment.  We affirm.

                             I
                              

                         BACKGROUND
                                   

          In March 1973,  Rust Engineering Company ("Rust"),

an engineering  and construction  firm acting  as agent  for

Refuse   Energy    Systems   Company    ("RESCO"),   engaged

Harnischfeger to assist in the design and manufacture of two

thirteen-ton  overhead  cranes  for use  at  RESCO's Saugus,

Massachusetts trash-to-energy  plant.1  The cranes  are used

                    

1Harnischfeger has designed and manufactured overhead cranes
since 1906 and has built  more than 24,000 overhead  trolley
cranes.    Harnischfeger  customizes  each overhead  trolley
crane it  manufactures.  Overhead cranes such as those built
by   Harnischfeger  are   generally  considered   heavy-duty
machinery  for specific production purposes and used by many
industries to lift and move heavy objects.  

                            -2-
                             2

to move  trash into  trash feed hoppers  where the  trash is

burned   and   steam  is   generated   and  converted   into

electricity.   Rust incorporated the cranes into the plant's

buildings   as   part    of   the   original   construction.

Harnischfeger was not involved in the design or construction

of the  RESCO facility,  nor did  Harnischfeger install  the

cranes.     

          On December  29, 1987, the trolley wheel of one of

the overhead cranes  severed David Snow's third,  fourth and

fifth finger and a portion of his right hand.  At  the time,

Snow was  working at the  Saugus facility.  The  Snow family

brought an action  in Essex Superior Court,  Commonwealth of

Massachusetts,  alleging  the   crane  was  unsafe  due   to

Harnischfeger's failure  to  equip the  trolley  with  wheel

guards and rail  sweeps, automatic audio or  visual movement

alarms,  a  proper  lock-out  system  or  kill  switch,  and

Harnischfeger's  failure   to  warn   of  inherent   risks.2

Harnischfeger  removed  the  action to  the  district  court

pursuant to 28 U.S.C.   1446, and moved for summary judgment

                    

2In their amended complaint, the Snows charge  Harnischfeger
with  defective  design,   negligence,  breach  of   express
warranty   and   breach   of   the   implied   warranty   of
merchantability.  

                            -3-
                             3

under  the  Massachusetts  real  estate  statute  of  repose

("statute").  

          The statute, Mass.  Gen. Laws Ann.  ch. 260,    2B

(West 1992) ("M.G.L. c. 260,   2B"), provides:

          Action [sic] of tort for damages arising
          out  of any deficiency or neglect in the
          design,   planning,   construction    or
          general administration of an improvement
          to   real  property  .   .  .  shall  be
          commenced only  within three  years next
          after  the  cause   of  action  accrues;
          provided,  however,  that  in  no  event
          shall  such  actions be  commenced  more
          than six years after the  earlier of the
          dates  of:    (1)  the  opening  of  the
          improvement to  use; or  (2) substantial
          completion  of the  improvement and  the
          taking  of possession  for occupancy  by
          the owner.3 

Id.4   The district  court found Harnischfeger  was included
   

in  the class  of  actors protected  under  the statute  and

granted the summary judgment motion.5

                    

3Massachusetts courts have construed the statute to apply to
implied breach of warranty claims where the underlying cause
of action is the same as the tort claim.  Klein v. Catalano,
                                                           
437 N.E.2d 514, 526 &amp;  n.19 (Mass. 1982); see also Anthony's
                                                            
Pier  Four, Inc.  v.  Crandall Dry  Dock  Eng'rs, Inc.,  489
                                                      
N.E.2d 172, 175 (Mass. 1986).

4M.G.L. c. 260,   2B was last revised in 1984.  Id.
                                                   

5The  district court  barred the  Snows'  action noting  the
RESCO plant became operational in 1975 and the Snows did not
institute their action  until 1990.  In  1986, Harnischfeger
designed two replacement trolleys.   The Snows do  not argue
that  we should measure the application  of the statute from
the date Harnischfeger designed the replacement trolleys.

                            -4-
                             4

          On appeal the  Snows argue (1) the  district court

improperly  granted summary judgment where genuine issues of

material fact remained; (2) the district court impermissibly

extended repose  to the  manufacturer of  a machine  thereby

changing  Massachusetts'  product  liability  law;  (3)  the

district  court   improperly  found   Harnischfeger  was   a

protected actor within  the meaning of M.G.L. c.  260,   2B;

and  (4)  questions  of   local  law  are  central  to   the

disposition of the  appeal and  should be  certified to  the

Massachusetts Supreme Judicial Court ("SJC").

                             II
                               

                         DISCUSSION
                                   

Standard of Review
                  

          "We  review a grant  of summary judgment  de novo,
                                                           

using  the same criteria incumbent upon the district court."

Gaskell v.  Harvard Coop. Soc'y,  3 F.3d 495, 497  (1st Cir.
                               

1993) (citing Vanhaaren v.  State Farm Mut. Auto.  Ins. Co.,
                                                           

989 F.2d 1, 3 (1st Cir.  1993); High Voltage Eng'g Corp.  v.
                                                            

Federal Ins. Co., 981 F.2d 596, 598 (1st Cir. 1992); Pedraza
                                                            

v.  Shell Oil Co.,  942 F.2d 48,  50 (1st Cir.  1991), cert.
                                                            

denied,     U.S.     , 112 S. Ct.  993 (1992).  The  role of
      

summary  judgment is  "to  pierce  the  boilerplate  of  the

                            -5-
                             5

pleadings and assay the parties' proof in order to determine

whether trial is  actually required."  Wynne  v. Tufts Univ.
                                                            

Sch. of Medicine, 976 F.2d 791, 794  (1st Cir. 1992).  It is
                

appropriate only if "the  pleadings, depositions, answers to

interrogatories, and  admissions on file, together  with the

affidavits, if any,  show that there is no  genuine issue as

to any material  fact and that the moving  party is entitled

to judgment  as a matter  of law."   Fed. R. Civ.  P. 56(c).

The burden is on the moving party to establish the lack of a

genuine, material factual issue,  Finn v. Consolidated  Rail
                                                            

Corp.,  782 F.2d 13, 15 (1st Cir.  1986), and the court must
     

view  the  record  in  the  light  most  favorable  to   the

nonmovant, according the nonmovant all beneficial inferences

discernable from  the evidence.   Mesnick  v. General  Elec.
                                                            

Co., 950 F.2d  816, 822 (1st Cir. 1991) (quoting Griggs-Ryan
                                                            

v. Smith, 904 F.2d 112,  115 (1st Cir. 1990)), cert. denied,
                                                           

     U.S.    ,  112 S.  Ct.  2965 (1992);  Caputo v.  Boston
                                                            

Edison Co.,  924 F.2d  11,  13 (1st  Cir. 1991).   Once  the
          

defendant has made  a properly supported motion  for summary

judgment,  however, the plaintiffs  "may not rest  upon mere

allegation  or denials  of [their]  pleading,  but must  set

forth specific  facts showing there  is a genuine  issue for

                            -6-
                             6

trial."  Anderson v. Liberty  Lobby, Inc., 477 U.S. 242, 250
                                         

(1986) (citing Fed. R. Civ. P. 56(e)).            

Issues of Fact
              

          According  to the  Snows, four  genuine issues  of

material  fact  remain in  dispute, making  summary judgment

inappropriate.   We have reviewed their contentions and find

them to be without merit.

          The Snows first argue there is  a genuine issue of

fact  as to  whether Harnischfeger  is  in the  construction

business.6   The Snows do not dispute Harnischfeger designed

and manufactured the crane.  Instead, the Snows assert  that

these activities are not sufficient for a court to find that

Harnischfeger  is involved in  the construction industry and

                    

6The Snows assert:

          [t]he defendant claimed  that because it
          manufactured  an  overhead   crane  that
          became affixed to real  property, it was
          involved in  the construction  business.
          The   plaintiffs   contend    that   the
          defendant's design and manufacture of an
          overhead crane  which  is  housed  in  a
          structure  on  real property,  does  not
          mean the defendant  was involved in  the
          type  of  construction  contemplated  by
          M.G.L. c. 260   2B. 

Brief of the Plaintiffs-Appellants at 5-6.

                            -7-
                             7

that such  involvement is necessary  to bring  Harnischfeger

within M.G.L. c.  260,   2B.   Harnischfeger contends M.G.L.

c. 260,   2B provides protection "`to architects, engineers,
                                                           

contractors  and others  involved in  the design,  planning,
                                                           

construction or  general administration  of improvements  to

real  property'" and  suggests  it  deserves  repose  as  an

"`engineer' or `other' involved in the  `design,' `planning'

and  `construction'  of  the  overhead  crane."    Brief  of

Defendant-Appellee   at  10-11   (alteration  in   original)

(quoting Klein, 437 N.E.2d at 523).
              

          Whether a  defendant's activities fall  within the

statute is a question of law.  See,  e.g., McDonough v. Marr
                                                            

Scaffolding Co., 591  N.E.2d 1079, 1081 (Mass.  1992) (court
               

appropriately  granted  summary  judgment  after  concluding

defendant's actions were  construction activity contemplated

by M.G.L. c. 260,    2B).  Moreover, as Harnischfeger notes,

the statute  does not limit  its protection solely  to those

involved  in the actual construction of improvements to real

property.    Harnischfeger  may be  a  protected  actor even

without being involved in the construction business.  As the

district  court  aptly  stated,  the  Snows'  contention  is

"merely  [an  argument]  about  how  to  apply  law  to  the

established facts."  Snow v. Harnischfeger, 823 F. Supp. 22,
                                          

                            -8-
                             8

24 (D. Mass. 1993).  To the extent there is a dispute, it is

immaterial to the disposition of the action. 

          The Snows  next argue there is a  genuine issue of

fact as to  whether the overhead crane is  a unique product.

They argue the crane, like many standard cranes,  was merely

customized  to fit  inside a  building,  shed or  structure.

Harnischfeger  maintains  that  the  product  is unique  and

custom  designed for RESCO.  In support Harnischfeger offers

affidavits showing the  following:  Harnischfeger  designed,

manufactured and constructed the cranes' lifting capacity as

well as the dimensions of  the major components for specific

plant and  job functions; Rust supplied  specifications that

were the basis  of the designs including  specified overhead

and  wall  clearances;  and  Harnischfeger  custom  designed

sixteen  component  parts  and  manufactured  and  assembled

virtually all the components.   The Snows counter that  they

have  presented evidence  showing the  crane  is a  standard

design and the trolley  was previously designed for  sale in

Florida.  

          The   Snows'    evidence,   which    consists   of

Harnischfeger's brochures and  literature along with  expert

affidavits  and deposition  testimony,  does not  create any

genuine issue  of fact for  trial.  The  brochures emphasize

                            -9-
                             9

that  customers should  avoid  "standard" cranes  and should

have  Harnischfeger's  experts  design  a  crane  that  will

satisfy their  particular needs.   At  best, the  literature

suggests Harnischfeger  has standardized the  materials used

to create the  crane and standardized certain  components to

be mixed and matched into a final product.  In addition, the

opinions  of  Snows'  experts  that the  crane,  as  a final

product, is a  basic design similar to cranes  used in other

industries  do not  contradict Harnischfeger's evidence.   A

crane   can  be  designed  for  a  particular  location  and

specialized  function   and  still   retain  the   essential

characteristics common to industrial  cranes.  Moreover, the

ability  of the  crane  to  be adopted  for  use by  another

industry  is  immaterial  to  Harnischfeger's  status  as  a

protected actor  because the relevant  inquiry involves  the

motivation behind and the activity of producing the product,

not the product  itself.  See Dighton v.  Federal Pac. Elec.
                                                            

Co., 506 N.E.2d  509, 516  (Mass. 1987).   Furthermore,  the
   

deposition  testimony  of  James  Fravert,  a  Harnischfeger

employee, does  not establish that  the design of  the RESCO

trolley was the same as one previously used by Harnischfeger

for  sale to  Brevard  County, Florida.    Fravert does  not

testify  that the design was duplicated,  only that a design
                        

                            -10-
                             10

drawing  was  duplicated  and  the  duplicated  drawing  was
       

modified to create the drawing for the RESCO crane.  

          Lastly, the Snows raise the issue of the status of

the crane,  arguing first that  there is a genuine  issue of

fact  as to  whether the  crane  is an  improvement to  real

property.  Once again, however, the Snows do not dispute any

relevant  facts but rather  the application of  law to these

facts.     The   parties   agree   as   to   the   essential

characteristics of the crane.  There is an established legal

standard  defining improvements  for purposes  of  M.G.L. c.

260,     2B  as  well  as case  law  establishing  when  the

definition  should be  applied.   See  Milligan v.  Tibbetts
                                                            

Eng'g  Corp., 461  N.E.2d 808,  811  (Mass. 1984)  (adopting
            

definition   found   in    Webster's   Third   International

Dictionary);   see  also     Dighton,  506  N.E.2d   at  516
                                    

(explaining when definition  is useful).  The  Snows suggest

no disputed  facts that  would in any  way preclude  us from

applying the legal standard.

          The Snows also  argue there is a genuine  issue of

fact as to  whether the crane is  a permanent fixture.   The

SJC has rejected adoption of a fixture analysis to determine

applicability of the  statute of repose, noting  the statute

"makes  no reference to `fixtures,' nor  does it appear that

                            -11-
                             11

the Legislature intended,  by its choice of the  common term

`improvement,'  to subsume  that tangle of  highly technical

meanings, often distinct in diverse legal contexts, which is

the law  of fixtures."  Dighton, 506 F.2d  at 515.  The fact
                               

that a product is affixed, permanently or otherwise, neither

makes the product an improvement nor turns the producer into

a protected  actor.   Id.   Thus,  the crane's  status as  a
                         

permanent fixture is immaterial to our inquiry.  

Harnischfeger as a Protected Actor
                                  

          The Snows  further challenge the  summary judgment

order by maintaining the  district court acted impermissibly

and   without   precedent  in   applying   the   statute  to

Harnischfeger,  who  they  define  as  "manufacturers  of  a

machine."  The Snows argue Harnischfeger, as a manufacturer,

is outside  the class  of  actors M.G.L.  c.  260,    2B  is

designed  to   protect.    Harnischfeger  admits  to  having

manufactured the crane but argues a manufacturer who engages

in protected activities is entitled to repose.

          The  purpose  of   the  statute  is  "to   protect

providers   of    `individual   expertise'"    who   "render

particularized services  for the design  and construction of

particular  improvements   to  particular  pieces   of  real

                            -12-
                             12

property."   Id.   The  statute  does not  name a  class  of
                

protected actors, but  instead extends protection  to "those

who  commit  `any  deficiency  or  neglect  in  the  design,

planning,  construction,  or  general administration  of  an

improvement to real property.'"  Id. at 514.  Certain actors
                                    

obviously fall within  the statute.  See id. at  516.  These
                                            

actors  include   architects,  engineers   and  contractors.

Klein, 437 N.E.2d at 523.   The statute shields these actors
     

from  any liability  after six  years as  long as  they were

involved  in an  enumerated  activity  with  respect  to  an

improvement  to  real  property.    Other  actors,  such  as

materialmen and "mere"  suppliers, are outside the  scope of

the statute  and not entitled  to its protection.   Dighton,
                                                           

506 N.E.2d at 514 n.10; McDonough, 591 N.E.2d at 1082.
                                 

          Ambiguity in the  application of M.G.L. c.  260,  

2B arises  when it  is unclear  whether a party  acted as  a

materialman or  supplier rather than an architect, engineer,

contractor, surveyor  or some  other protected  actor.   See
                                                            

Dighton,  506 N.E.2d  at 514.   A  party is not  a protected
       

actor when the  party does not perform protected  acts.  See
                                                            

id. at 515.   Conversely, an actor such as a manufacturer or
   

supplier may be protected if  that actor becomes more than a

"mere"  supplier   by  engaging  in   protected  activities.

                            -13-
                             13

McDonough,  591 N.E.2d  at  1082 (manufacturer  who designed
         

bleacher units specifically for the  rink in which they were

installed by another is more than mere supplier and entitled

to benefit of statute).  Thus, application of the statute is

necessarily  dependent   on  the   nature  of   the  party's

activities.7  See Dighton, 506 N.E.2d at 516.  
                         

          In  Dighton, the defendant  did not claim  to have
                     

provided  particularized   services  with  respect   to  the

improvement  -- the  building  --  but  rather  claimed  the

                    

7The Snows argue that Dighton imposes a requirement upon the
                             
court to engage in a  two-step analysis to determine whether
Harnischfeger  is protected  under  M.G.L.  c.  260,     2B.
According  to the  Snows,  Dighton  requires  the  court  to
                                  
consider whether  the statute names the party as a protected
actor, i.e.,  an architect  or engineer.   If the  answer is
yes, the court  may determine whether the  defendant engaged
in protected acts.  
          Dighton imposes no  such test.  The  Dighton court
                                                      
merely noted  that the  trial judge  framed the question  in
this bipartite form.  506 N.E.2d at 514.  The court rejected
the bipartite formulation:

          On its  face,   2B defines the protected
          actor largely by  reference to protected
          acts.  The body  of   2B names  no class
          of protected actors.  Rather, its  terms
          extend protection  to persons  allegedly
          responsible  for acts,  i.e., those  who
          commit "any deficiency or neglect in the
          design,   planning,   construction,   or
          general administration of an improvement
          to real property."

Id.   Thus, the court can  and must engage in  an activities
   
analysis when the defendant's status as a protected actor is
unclear.  See id.
                 

                            -14-
                             14

benefit  of  the  statute as  a  designer,  manufacturer and

supplier   of  a   component  that  fell   within  Webster's

definition of improvement.8   Id. at 515, 516.   The SJC did
                                 

not reject the contention that a producer of a component may

be  entitled  to protection.    See  id.  at 516;  see  also
                                                            

McDonough, 591 N.E.2d at 1084.   Instead, the SJC rejected a
         

formalistic   inquiry   and   established   the   producer's

motivations and activities as the relevant focus of inquiry,

not the nature of  the product or the ability to  define the

product as an improvement or a fixture.  Dighton, 506 N.E.2d
                                                

at 516.

          In considering whether an actor not clearly within

the statute  is entitled to  repose, the court engages  in a

fact-based activities  analysis.  See  id.   The court  must
                                          

consider  the motivation  of  the  actor  in  producing  the

improvement.9   Id.   If the actor  designed the improvement
                   

                    

8This  definition has  been  adopted by  the  SJC where  the
defendant's status as  a protected  actor is  not in  doubt.
Id. at 516.
   

9The SJC provides the following illustration:

               [I]f  a  piece of  metal  sculpture
          were  welded to an  exposed girder  in a
          building,   it   certainly    could   be
          characterized as  a "permanent  addition
          to or betterment  of" the property,  one
          "enhanc[ing]  it  capital   value,"  one
          "involv[ing] the expenditure of labor or

                            -15-
                             15

for  public sale or  for general use, then  the actor is not

protected because  the actor is  engaged in the  activity of

creating  a  fungible product.    See id.  If,  however, the
                                         

improvement is produced for a  particular project and to the

specifications of  an architect  or an  engineer, M.G.L.  c.

260,    2B may protect the  actor as someone engaged  in the

activity of designing a particularized improvement.  Id.
                                                        

          Like the defendant in Dighton, Harnischfeger  does
                                       

not  claim  to have  rendered  particularized services  with

respect to the design or construction of the RESCO facility.

Instead,  Harnischfeger  claims  to be  brought  within  the

                    

          money,"  one   "designed  to   make  the
          property more . .  . valuable," and  one
          clearly distinguish[able]  from ordinary
          repairs."    But   would  that  tell  us
          whether, or to what extent, the sculptor
          had  been  involved   in  the  protected
          activity   of   "improvement   to   real
                  
          property?"    We  think  not.     If  he
          produced the sculpture  on commission by
          the developer to specifications provided
          in  part  by   the  architect  and   the
          engineer, we  might conclude that  he is
          protected  by     2B; but  if  he  mass-
          produced the sculpture  and sold it  for
          use  in  a variety  of contexts,  or for
          incorporation  into  any   building,  we
          would conclude that he had been involved
          merely in the activity of producing  and
          selling a fungible commodity, and not in
          the activity of improving real estate. 

Dighton, 506 N.E.2d at 516 (alteration in original).
       

                            -16-
                             16

protection  of  the  statute  by  designing  RESCO's cranes.

Pursuant to affidavits  submitted, when designing  the crane

that caused Mr. Snow's  injuries, Harnischfeger's motivation

in producing the crane was to create, at the  request of the

construction engineer,  an essential component of  the plant

building,    made    to    the    construction    engineer's

specifications, for sale only to RESCO and for incorporation

only into the  RESCO plant.  RESCO intended the cranes to be

a permanent and integral  part of the overall  plant, making

the property  useful.   Harnischfeger was  not motivated  to

create a fungible crane available to a variety of buyers and

appropriate for  incorporation into a number  of facilities.

Harnischfeger's  actions  conform to  those outlined  by the

Dighton Court and are protected activities.10  
       

          As  the plaintiffs  note,  "[w]hen faced  with the

question of  whether  or not  the defendant  is entitled  to

repose under  M.G.L. c. 260    2B, the first question  to be

answered is `Is the defendant a protected actor under M.G.L.

c. 260    2B?'"   Brief of the Plaintiffs-Appellants  at 11.

                    

10As the Snows'  experts note, a subsequent  purchaser could
remove  and modify  the  RESCO  cranes  for use  in  another
industry, although  this contingency was neither  Rust's nor
Harnischfeger's intention.   Furthermore, we do not  look at
possible  future uses and are therefore unconcerned that the
crane could  someday be sold  to another party, or  could be
incorporated into another plant.

                            -17-
                             17

Having answered  affirmatively, we now  state our  agreement

with the  trial court  that the crane  is an  improvement to

real property within the meaning  of the statute.  See Snow,
                                                           

823 F. Supp. at 24-25.  For purposes of M.G.L. c. 260,   2B,

an improvement is 

          a permanent addition to or betterment of
          real property that  enhances its capital
          value and that involves the  expenditure
          of  labor or  money and  is designed  to
          make   the  property   more  useful   or
          valuable as distinguished  from ordinary
          repairs. 

Milligan, 461 N.E.2d  at 811 (quoting Raffel v.  Perley, 437
                                                       

N.E.2d 1082,  1085 (Mass. App.  1982)).  RESCO  intended the

crane to  be a  betterment  of real  property enhancing  its

capital  value and  making  the  property  more  useful  and

valuable.    Therefore,  Harnischfeger  is  entitled to  the

protection afforded by M.G.L. c. 260,   2B.  

Certification 
Certification
             

          Following the district court  order and subsequent

appeal  and shortly before oral arguments, the Snows brought

a motion  asking for the  first time that the  following two

questions be certified to the SJC:

          (1)      Whether     the      defendant,
          Harnischfeger,  the  manu-facturer  of a
          manually operated  overhead crane,  is a

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          member  of the class M.G.L. c. 260,   2B
          was designed to protect?

          (2)  Whether  the district  court  acted
          appropriately in  using Webster's  Third
          International Dictionary's definition of
          `improvement' in determining whether the
          plaintiffs'  product  liability   claims
          were barred by M.G.L. c. 260,   2B?

The Snows had argued to  the district court that Dighton was
                                                        

dispositive of the issues in their case but now claim "[t]he

foregoing   questions  of  local  law  are  central  to  the

disposition of this  appeal. . . .  [T]he local law on  this

question has  not been  clearly determined."11   Plaintiffs-

Appellants' Memorandum in Support of their Motion to Certify

Questions of  Local Law  to  the Supreme  Judicial Court  of

Massachusetts at 2.

          Certification   of    determinative   issues    is

appropriate  where "it appears to the certifying court there

is no controlling precedent in the decisions  of the Supreme

Judicial Court."   Supreme  Judicial Court  Rule  1:03,    1

(1986).  The SJC construed the scope  of M.G.L. c. 260,   2B

in a number of cases.   See, e.g., McDonough, 591 N.E.2d  at
                                            

1084  (repose  extends   to  designer   of  bleacher   units

specifically  designed for rink); Parent v. Stone &amp; Webster,
                                                           

                    

11The  Snows also acknowledged the dispositive nature of the
case law at a hearing before the district court.

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556  N.E.2d 1009,  1011  (Mass.  1990)  (repose  extends  to

contruction  engineer  who   installs  distribution  panel);

Dighton,  506 N.E.2d  at  516  (repose  does not  extend  to
       

manufacturer  of mass  marketed circuit  breaker affixed  to

real  property).  The Snows themselves  list in their motion

for certification no less than ten cases where Massachusetts

courts  have determined whether  a defendant is  a protected

actor under M.G.L. c. 260,    2B.  Massachusetts courts have

also  extensively  addressed  when  Webster's definition  of

improvement is to  be utilized.  See Dighton,  506 N.E.2d at
                                            

516;   Milligan, 461  N.E.2d at 811;  Raffel, 437  N.E.2d at
                                            

1085.  Thus,  we are satisfied  that sufficient guidance  is

available  and  certification  is  inappropriate  under  the

circumstances of this case.

Affirmed.
         

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