
    James E. Johnson vs. Danny’s Auto Body, Inc.
    Southern District
    March 8, 1984.
    Present: Welsh, P.J., Silva & Shubow, JJ.
    Douglas A. Hale for the plaintiff.
    Michael Zeman for the defendant.
   Silva, J.

This consolidated action arises out of a suit commenced in the Wareham Division of the District Court by the plaintiff for negligence, breach of contract, and violation of the Consumer Protection Act, (G.L.C.93A); and a suit by the defendant, which was brought in the New Bedford Division, against this plaintiff for work, labor, and materials furnished. The matter was heard before a justice of the Wareham Division and judgment was entered on June 17, 1982. The attorney for Danny’s Auto Body Inc. received the finding and copy of judgment at his office on or before June 21,1982. An appropriate claim for trial by jury and a check in the amount of one hundred and fifty dollars ($150.00), to cover the removal fee and bond, were prepared by the attorney for Danny’s Auto Body Inc. and forwarded by first class mail, postage prepaid, to the Clerk Magistrate of the Wareham Division on June 23,1982. A copy was forwarded to the attorney for James E. Johnson.

The documents were not received by the Clerk Magistrate until July 6,1982. The envelope containing the above mentioned documents was placed in a U.S. Postal mailbox near the office of the attorney for Danny’s Auto Body Inc., on June 23, 1982. Due to an internal problem in the post office the postal authorities failed to pick up the mail for several days with the result that the envelope was not postmarked until July 2, 1982. The usual time for mail delivery between New Bedford, Massachusetts and West Wareham, Massachusetts is approximately two (2) days. The ten (10) day period for the claiming a jury trial in the nature of an appeal to the Superior Court starts to run from the date of receipt of notice by the counsel for the defendant. The time would have expired on July 1,1982. On July 7th, the attorney for Danny’s Auto Body Inc. was informed that his appeal would not be entered because of the late filing. A hand written motion to stay execution was filed with the court on that date. On July 9th, a motion to order acceptance of defendant’s request for trial by jury late was mailed to the court and opposing counsel with a request that it be marked for hearing on July 14, 1982. The plaintiff waived the notice requirements for the hearing in order that it could be heard on July 14th. The motion was allowed on August 13, 1982. The plaintiff, Johnson, claims to be aggrieved by the allowance of the motion to order acceptance of the defendant’s request for trial by jury late and alleges that the justice had no discretion to allow the late filing or to order the late filing of a claim of jury trial and filing of a removal fee and bond after the ten days for the filing had expired.

The only issue presented for review is whether the motion justice has discretion to allow a late filing of a claim of j ury trial and removal after the ten days has expired.

It appears that pursuant to (G.L.c. 231, §104) the trial judge has no discretion to grant an extension of time for claiming a jury trial in the Superior Court.

The computation of the ten day filing period commences after actual receipt of notice of judgment. Purcell v. Dutch Enterprises, 1978 Mass. App. Div. 214, 216. Notice was received by the defendant’s attorney on June 21,1982. Failure to perfect filing within the ten day mandatory requirement of the statute resulted in a forfeiture of the defendant’s right to a jury trial in the Superior Court as a matter of law. Perlman v. Kornitsky, 1981 Mass. App. Div. 5.

Since actual notice of the finding and judgment was not received by the attorney for the defendant until June 21, 1982, he had until the close of business on Thursday, July 1, 1982, to file his request for transfer to the Superior Court for trial by jury. Sweeney v. Morey & Co. Inc. 279 Mass. 496, 502, (1982). The docket reflects no action was taken by the defendant until July 6, 1982, when he attempted to file with the clerk a notice of appeal and an entry fee. The clerk returned these to the defendant as not being timely filed. There was no error in the part of the clerk’s office in declining to accept the late filed request for transfer. H.K. Webster Co. v. Mann, 269 Mass. 381, 384 (1929).

While the Mann case, supra, supports the proposition that a District Court Justice has the discretion to permit a late removal upon the terms delineated in the statute, the court, in reaching that result, relied upon the language of G.L.c. 231, §107, which in express terms permitted a judge to allow a late removal at anytime prior to judgment. In this case, the defendant seeks a late removal after a mandated trial in the District Court and after judgment.

Subject to the pendency of motions or other proceedings tolling the running of the ten day period, a District Court judge is not empowered to enlarge the time for removal if the motion is filed after the running of the ten day period. Upon a showing of excusable neglect, the judge, acting upon a motion for relief from judgment filed pursuant to Rule 60, may order the original judgment vacated and order the reentry of judgment so as to cause the ten day period to commence to run anew. Coen Marine Equipment Inc. v. Kurker, Mass. App. Div. (decided July 20, 1983.)

The constitutional right to a trial by jury is not impaired by a statute which imposes reasonable limitations on the exercise of the right. H.K. Webster Co. v. Mann, supra.

There is no dispute that the failure to perfect was due to the internal delivery problems of the Post Office and not occasioned by any fault on the part of the attorney. Even though the attorney acted in good faith, the legislature in its wisdom has not provided for a good faith exception to the ten day filing requirement. The language of the statute is clear, if a party desires a trial in the Superior Court he “shall... file . . .within ten days after notice.” G.L.c. 231, § 104. Not only does the statute fail to provide any avenue for the exercise of judicial discretion but, cases have interpreted the statute to provide that, “a District Court Justice is not empowered to extend the time period for removing the action to the Superior Court Department or to otherwise authorize removal after the expiration of the statutory filing period.” Perlman v. Kornitsky, supra at page 6 and Purcell v. Dutch Enterprises, supra at page 217.

The defendant argues that the trial justice had the discretion to extend the ten day filing period by virtue of Mass Rules of Civil Procedure, Rule 6(b)(2), which provides that “when by these rules, or by notice given thereunder or by order or rule of court an act is required or allowed to be done at or within a. specified time, the court may for cause shown at anytime in its discretion . . . upon motion made after the expiration of the specific period permit the act to be done where failure to act was a result of excusable neglect.” The Rule is limited to those matters which must be performed within a specified time as set forth in the Rules and does not apply to the removal statute.

The recent case of U.S. Trust Co. v. Kennedy, 17 Mass. App. Ct. 131, seems to reinforce a trial judge’s discretion to forgive a failure to comply with a rule under certain circumstances. However, we are unable to find any authority which would allow a trial judge to pardon a failure to comply with statutory time constraints, even where the tardiness was caused by circumstances beyond the control of the party seeking relief.

The order allowing defendant’s motion for late removal is vacated.

Dissenting Opinion

Shubow, J.

dissenting. This case presents the question of whether a defendant which, after losing a civil case, undertakes in timely fashion and in good faith to seek a jury trial, may lose its constitutional right to do so because of conduct of others over which it had no control. This is not the garden variety of controversy where a party for one reason or another is tardy in completing some procedural step deemed essential to carrying on the litigation. With all deference, I suggest the underlying chronological facts warranted the trial judge in overruling the clerk’s rejection of late-arriving appeal papers; the cases relied on by my brothers do not, under the rare circumstances here present, require reversal, and recent authority, though not precisely on all fours, leaves the central question open and arguably authorized the trial judge’s action.

In the first place, it is not necessarily the case that when the trial court clerk on July 6,1982, ás appears from the docket entries, finally received the defendant’s notice of appeal and check, that the jury claim was then indeed “late.” It is undisputed that under the circumstances the defendant had at least until July 1,1982, to file its claim. For aught that appears in the Report, the trial court may have had in mind the provisions of Dist/Mun. Cts. R. Civ. P., Rule 6(d) which provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a. notice or other papers upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.

No case has held that this Rule does not apply to time deadlines appearing both in the rules and statutes. Indeed the Rule opens (section a) with an express definition treating certain computations of time under" . . . these rules, by order of court, or by any applicable statute or rule ...” (emphasis supplied). If three days are added, pursuant to the computation rule, the relevant deadline becomes July 4,1982. That was a Sunday. The next day, Monday, July 5, 1982, was a legal holiday. If Rule 6(d) applies [but see Goldstein v. Barron, 382 Mass. 181 (1980)], then the arrival of the requisite papers was timely and the clerk in error in returning to the defendant the papers filed by it.

Since the parties have not briefed the timeliness point, I turn to the more fundamental issue. Assuming the jury claim did arrive late, did the trial court have any discretion to relieve the aggrieved party from the consequences of the delay? It is, of course, undisputed that no fault may be attributed on this record to the defendant. Counsel for the defendant on June 23,1982, mailed his claim for trial by jury on appeal and a check for the necessary removal fee and the bond within two days of receipt of notice from the clerk of the findings adverse to his client. “Due to an internal problem in the Post Office the Postal Authorities failed to pick up the mail for several days so that Jury Claim was not dated [received? ] until July 2,1982, due at no fault of Attorney Zeman who had exercised due dillegence (sic).” (Report, p. 1). A duty on the defendant to make a daily check of the docket in order to make certain that the notice mailed was in fact received by the clerk could not be reasonably imposed. See Hanley v. Polanzak, 8 Mass. App. Ct. 270, 275, footnotes 10 and 11 (1979). The Rule as to an extra three days for claims by mail is considered to apply to jury claims in SMITH AND ZOBEL, MASS. PRACTICE SERIES Vol. 6, p. 160.

There is much history and sound policy behind the majority’s decision. An objective and ascertainable standard for fixing the rights of parties is a necessary element in the administration of justice. However, the precedents need analysis (a) in the light of whether they cover the case of the party who has not himself stumbled procedurally, and (b) whether there is a remedy for unnecessarily harsh results under the Rules of Civil Procedure which affect the time requirements created by statute.

Purcell v. Dutch Enterprises, Inc., Mass. App. Div. Adv. Sh. (1978) 214, is not inconsistent with the position being advanced here. In Webster v. Mann, 269 Mass. 381 (1929), the defendant failed “at all times” in the performance of one of the essential prerequisites to removal for jury trial and was untimely in the performance of another. The decision, it should also be noted, predates the modern rules.

In Perlman v. Kornitsky, 1981 Mass. App. Div. 5, the defendant never attempted to file the fee and documents necessary to appeal and the decision, therefore, does not reach the problem in the instant case.

The appellant argues that in any event the trial court was permitted by Rule 6(b)(2) to enlarge the time within which the acts required of it could be done. In response the court broadly asserts, without citation of authority, that “The Rule is limited to those matters which must be performed within a specified time as set forth in the Rules and does not apply to the removal statute.” Notwithstanding the apparent limitation in the words of the Rule, the Supreme Judicial Court has given effect to the discretionary power of a court, acting under Rule 6(b)(2), to enlarge the time for performing an act beyond that required by statute. See Goldstein v. Barron, 382 Mass. 181, 185-186 (1980). The court makes the point “Although the rule is not applicable by its terms, it should be applied by analogy, as its Federal counterpart has been” (at p. 186). The court also takes pains to point out the special situation that exists when the defendant, as here, is not at fault or delay occurs “through other casualty.” The Appeals Court has recognized the same policy to avoid a loss of the right to sue that would be “manifestly unjust” when the delay resulted from the non-action of a clerk. See Hanley v. Polanzak, 8 Mass. App. Ct. 270, 274 (1979); Saltus v. Abruzzese, 1981 Mass. App. Div. 22. See also Bogdanowicz v. D.D.E.S., 341 Mass. 331, 332 (1960). The majority sees the court’s power as limited by the Rule. However, the Reporter’s Notes say “Rule 6(b) does not change Massachusetts practice. The power of the courts in Massachusetts to allow extension of time applies also to permission for late filing.” In Hall v. Opacki, 1 Mass. App. Ct. 58 (1973), the court suggests that relief should be available where “a party has lost an otherwise viable appeal as the result of understandable mistake,...” (at p. 61). Griffin v. Powers, 1 Mass. App. Ct. 846 (1973), although apparently contrary, turns on the failure of the appealing party to act to claim a retransfer within the mandated ten days.

In its recent discussion of the importance of strict adherence to procedural rules, the Appeals Court carefully excepted those situations “where a party suffers from a handicap which prevents or delays compliance with the rules, e .g. a prisoner unable to respond within time limits.” U.S. Trust Co. v. Kennedy, 17 Mass. App. Ct. 131, 136 (1983). (See also p. 134 where the opinion treats inconsistencies between the statutes and the rules of civil procedure.)

The majoritysuggests that it was open to the defendant to have sought relief under Rule 60. See Coen Marine Equipment, Inc. v. Kurker, 1983 Mass. App. Div. 221, 222; see also Chavoor v. Lewis, Mass. Adv. Sh. (1981) 1467, 1472. The majority understandably expresses no concern that such remedial action is limited to procedural defects under the Rules but recognizes that relief may be afforded, where otherwise justifiable, from statutory strictures as well as from requirements of the rules.

Accordingly, I would at the very least remand the case to the trial court to afford the defendant an opportunity, pursuant to Rule 15(b), to amend his motion to refer directly to the relief that, on this record he clearly sought, namely relief from the adverse consequences resulting from errors of the post office. It would be even more consonant both with judicial efficiency and fundamental fairness to follow the example in King v. Allen, 9 Mass. App. Ct. 821 (1980). There the court held that a trial judge had discretion to allow a late filed motion to amend ajudgment as one susceptible to treatment as a motion for relief from judgment under Mass. R. Civ. P. 60(b)(6). The court concluded that the motion appears to have been so treated by the judge. 
      
       § 104. Removal from district court to superior court.
      Any other party, a plaintiff against whom a claim, counterclaim, or cross-claim is brought, and a defendant who asserts a compulsory counterclaim, may, provided that the amount of the claim against such other party, the amount of the claim, counterclaim or cross-claim brought against such plaintiff, or the amount of the compulsory counterclaim asserted by such defendant, as the case may be, exceeds seven thousand five hundred dollars, file in the district court in which the action is pending a claim of trial by the superior court together with the fee for the entry of the claim of each plaintiff in the superior court, and, except as provided in section one hundred and seven, a bond in the penal sum of one hundred dollars, with such surety or sureties as may be approved by the party or parties not asserting such claim of trial by the superior court or by the clerk or an assistant clerk of said district court, payable to the other party or parties, conditioned to satisfy any judgment for costs which may be entered against him in the superior court in said cause within thirty days after the entry thereof. Such claim of trial by the superior court must be filed no later than twenty-five days after service of the pleading which asserts the claim, counterclaim, or cross-claim on which the right to remove is based, provided, however, that in the case of a compulsory counterclaim, the party asserting such counterclaim must file such claim of trial by the superior court no later than five days after the expiration of the time allowed to assert such counterclaim. The clerk shall forthwith transmit the papers and entry fee to the clerk of the superior court and the same shall proceed as though then originally entered there.
      Removal of a case under this section shall remove any default and vacate any judgment entered thereon for failure to plead or otherwise defend in the district court, excepting cases in which the ad damnum does not exceed seven thousand five hundred dollars. Cases in which no claims, counterclaims or cross-claims exceed seven thousand five hundred dollars and those in which rights of parties to remove for trial in the superior court as hereinabove provided are not properly exercised shall be tried in the district court. A party who would ha ve been entitled to remove the case for trial in the superior court as hereinabove provided but for the fact that the amount of the claim, counterclaim, or cross-claim, as the case may be. does not exceed seven thousand five hundred dollars shall, if he desires trial bv the superior court file an entry fee of fifty dollars and bond within ten days after notice of the decision or finding. Such filing shall have the same effect as a request for retransfer under section one hundred and two C, and the decision shall be transmitted to and the case tried in the superior court subject to the provisions of said section one hundred and two C applicable to retransferred cases.
     
      
      If the issue before us was the literal one presented in the Report, namely “that there is no discretion to ... order the late filing of a claim of jury trial,” I would be hard put to dissent, but the actual issue is whether or not the defendant acted so as to lose its right to a jury trial.
     
      
      Especially under the new Rules, the precise reach of which have not yet been authoritatively defined, it seems that clerks' offices ought n'ot to return papers or fees “In Hand” on a determination of untimeliness made without hearing by an individual not identified on the docket who may or may not be qualified or authorized to make such decisions. When the Rules contemplate such determinations to be made in this way they expressly say so. See, for example, Uniform Rule of Summary Process, 10(d)(iii), dealing with a clerk’s duty to review papers before entering judgment. Webster v. Mann, 269 Mass. 381, 384 (1929), involved a situation where an independent judgment, approval of a bond, was required of a clerk and to that extent is distinguishable.
     
      
      At footnote 11, p. 275, the court leaves open the situation where the clerk mails a notice which is not received. See also the question left open in DaLomba v. D.D.E.S., 369 Mass. 92, 97 (1975).
     