
    Atlantic Richfield Company vs. John A. Quill
    Western District
    November 5, 1981.
    Present: Walsh, P.J., McGuane & Larkin, JJ.
    
      Robert E. Kubicek for the plaintiff.
    Donald P. Conway for the defendant.
   McGuane, J.

This action was commenced by a Summary Process complaint brought by plaintiff Atlantic Richfield Company (hereinafter called “Arco”) against defendant John A. Quill (hereinafter called Quill) in which Arco sought to obtain possession of certain gasoline service station premises in Ludlow, Hampden County, Massachusetts. The defendant answered and thereafter amended his answer to include as a compulsory counterclaim an allegation of violations of General Laws, Chapter 93E, § 5A.

The defendant specified no ad damnum in his compulsory counterclaim. The trial judge found for the plaintiff Arco on its Summary Process claim and for the defendant on its compulsory counterclaim and awarded $4,000.00 damages for the defendant.

The plaintiff, being aggrieved by the finding for the defendant upon his compulsory counterclaim, filed a request for a report and, after hearing, the report was dismissed by the Appellate Division by decision and order dated December6,1979. On December 13, 1979, the defendant, by mailing to the Clerk of the District Court of Eastern Hampden, filed a claim for removal and for trial by jury in the Superior Court. In response, the plaintiff Arco filed a motion to quash defendant’s claim for removal, which, after hearing, was denied by the trial judge and from that denial the plaintiff has claimed this report.

The only issue presented is whether or not the trial judge’s denial of said motion was an error of law. We shall treat defendant’s motion to quash as a motion to dismiss the defendant’s claim of removal and for trial by jury.

This matter is governed by Mass. General Laws Chap. 231, §§ 103 and 104.

It is fairly well settled that the time limit for filing for removal is tolled or suspended while the case is on appeal to the Appellate Division. Orasz v. Colonial Tavern, Inc., 365 Mass. 131; also McGloin v. Nilson, 348 Mass. 716 (1965);Heil v. McCann, 360 Mass. 507 (1971).

The claim for removal and trial by jury was timely filed.

A reading of Mass. General Laws Chap. 231, § 103 in part states “...if any compulsory counterclaim is asserted by a defendant, said defendant may have the right to remove his action and claim for jury trial in the same manner and upon the same terms as are set forth in Section 104”.

The only remaining argument raised by the plaintiff Arco concerns the jursidictional ad damnum amount in effect at the time of this suit in the amount of $4,000.00. A reading of Section 104 of Chapter 231 disposes of this contention. The pertinent part of said Mass. General Laws Chap. 231, § 104 reads “...a party who would have been entitled to remove the case for trial in the Superior Court as hereinbefore provided but for the fact that the amount of the claim, counterclaim, or cross claim, as the case may be, does not exceed ($4,000.00 Now $7,500.00) shall, if he desires trial by the Superior Court, file said entry fee and bond within ten days after notice of decision of finding’ ’.

The defendant Quill has filed his entry and bond within the ten days of decision of the Appellate Division.

We find no error by the trial Judge and therefore the report is to be dismissed.  