Cohen v. Board of Registration in Pharmacy

• Decision Date: 28 February 1964
• Citation: 196 N.E.2d 838,347 Mass. 96
• Parties: Martin COHEN et al. v. BOARD OF REGISTRATION IN PHARMACY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 838

196 N.E.2d 838

347 Mass. 96

Martin COHEN et al. v. BOARD OF REGISTRATION IN PHARMACY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1963.

Decided Feb. 28, 1964.

Harold Rosenwald, Boston, for petitioners.

David Lee Turner, Asst. Atty. Gen., for respondent Board of Registration in Pharmacy.

John F. Zamparelli, Medford, for interveners Mass. State Pharmaceutical Assn. and others.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.

WHITTEMORE, Justice.

This appeal under G.L. c. 30A, § 15, from a final decree in the Superior Court, and a bill of exceptions, present a question of jurisdiction under G.L. c. 30A, § 14(1) and (2). It is unnecessary to take notice of the exceptions.

The record and docket entries show that the petitioners on August 3, 1962, acting under G.L. c. 30A, § 14(1), ¹ filed a petition for review of a decision of the Board of Registration in Pharmacy (the board) that had denied the petitioners' application for registration of a drug store. The filing was within thirty days after the decision as the statute requires. The petitioners however did not give notice to the interveners, who had been parties before the board, until August 14, 1962, eleven days after the filing. General Laws c. 30A, § 14(2), ² requires that such notice be given within ten days.

The interveners filed a notice of intervention under G.L. c. 30A, § 14(5), ³ on August 20, 1962. The petitioners on February 14, 1963, filed a motion for leave to file a substitute petition for review. The interveners on March 14, 1963, moved to dismiss the petition on the ground that the Superior Court was without jurisdiction of the proceeding because of the failure to serve them within ten days. The final decree denied the motion to file a substitute petition, allowed the interveners' motion, and dismissed the petition.

We hold that G.L. c. 30A, § 14(2) does not state a jurisdictional requirement. Whatever the minimal requirements for jurisdiction under subsection (1) (compare International Paper Co. v. Commonwealth, 232 Mass. 7, 13, 121 N.E. 510; Mayor of Revere v. Special Judge of the Dist. Court of Chelsea, 262 Mass. 393, 395-397, 160 N.E. 431), the Superior Court has jurisdiction when that subsection has been complied with.

There is no contention that the petitioners did not meet the requirements of subsection (1). That subsection states that '[p]roceedings for * * * review * * * shall be instituted by the filing * * *.' It requires that the filing and the service on the agency be within thirty days from the receipt of notice of the agency decision or within an extension of time granted within the period.

Subsection (2) is concerned with threshold matters other than acquiring jurisdiction. It sets out what the petition shall contain. It provides for notice to those who were parties before the board and that they 'shall have the right to intervene.' It authorizes the court to allow others to intervene.

The absence of a requirement that parties before the agency must be initial parties to the proceeding for review is significant and distinguishes the case from Kravitz v. Director of Division of Employment Security, 326 Mass. 419, 421, 95 N.E.2d 165. (Construction of G.L. c. 151A, § 42, as amended through St.1947, c. 434, ⁴ which then provided in relevant part that every party before the board 'shall be made a party respondent.') The statute involved in Carey v. Planning Board of Revere, 335 Mass. 740, 745, 139 N.E.2d 920, expressly requires both the entry of the appeal and the giving of notice as the means of taking the appeal, and hence of giving the court jurisdiction.

Subsection (2) recognizes that only by securing from the agency a certified list of the parties to the agency proceeding can a petitioner in all cases be sure of the identity of such parties and of addresses adequate for service. There is no provision in subsection (2) for an extension of time in the event that the agency does not furnish the list promptly upon request. Thus, if the list has not been received by a petitioner before the petition is entered, his power to make service as required by subsection (2) may depend upon the agency's compliance with the petitioners' request for the list. In Weiner v. Director of Division of Employment Security, 327 Mass. 360, 363, 99 N.E.2d 57, and Bogdanowicz v. Director of Division of Employment Security, 341 Mass. 331, 332, 169 N.E.2d 891, this court held that, where compliance with a step in a notice procedure is not controlled by the party, such compliance is not a jurisdictional requirement. The principle of these cases is applicable to the construction of G.L. c. 30A, § 14(2). This is so even though a forehanded petitioner might be able to protect himself under subsection (1) by withholding entry of the petition and obtaining an extension of time for entry.

The case, of course, could not be heard prior to service on those having the right to intervene. Unreasonable delay would give ground for dismissal of the proceeding. Terms, if deemed appropriate,...