Garrett v. Director of Div. of Employment Sec.
| Decision Date | 03 April 1985 |
| Citation | 475 N.E.2d 1221,394 Mass. 417 |
| Parties | Thomas GARRETT v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John M. Coyne for employee.
Willie Ivory Carpenter, Jr., Asst. Atty. Gen., for Director of the Div. of Employment Sec.
Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.
General Laws c. 151A, § 42, as appearing in St.1983, c. 451, § 10, provides in part: "The director or any interested person aggrieved by any decision in any proceeding before the [Division of Employment Security] board of review may obtain judicial review of such decision by filing, within thirty days of the date of mailing of such decision, a petition for review thereof in [an appropriate] district court ...." This case presents the question whether the requirement that a petition for review be filed within thirty days of the date of mailing of the board's decision is met when the petition is sent by certified mail to the clerk of the District Court within the thirty-day period but is not received by the clerk until after the appeal period has expired.
The plaintiff had appealed to the board of review from a decision of a review examiner denying his claim for unemployment benefits. The board denied his application for review, making the review examiner's decision final. The board's decision was mailed to the plaintiff on September 23, 1983. Thirty days from that date was October 23, 1983, a Sunday. General Laws c. 4, § 9, provides that when the last day for performing an act falls on a Sunday, unless the act is specifically authorized to be performed on a Sunday, it may be performed on the next succeeding business day. Thus, the appeal period for filing a petition for review of the board's decision expired on Monday, October 24, 1983. On that day, the plaintiff sent, by certified mail, a petition for review of the board's decision to the clerk of the Wareham District Court. The clerk received and entered the petition on October 25, 1983.
The Director of the Division of Employment Security (Director) filed a motion to dismiss the petition, asserting that the plaintiff had failed to comply with the statutory requirements for obtaining judicial review because the petition was not filed within the thirty day period. On February 22, 1984, a judge of the District Court allowed the motion and dismissed the petition. The plaintiff appeals directly to this court pursuant to G.L. c. 151A, § 42. We affirm.
The plaintiff argues that a petition that is mailed to the clerk of a district court within the thirty day appeal period should be deemed filed within that period. In support of his position, the plaintiff relies on a provision in G.L. c. 151A, § 42, which states: "Except as otherwise provided in this section, ... [an appeal in the district court] shall be governed by the Rules of Civil Procedure for the district courts ...." The plaintiff argues that under those rules his petition was timely filed. Specifically, the plaintiff relies on Mass.R.Civ.P. 3 and 81(d), applicable to the District Courts and Municipal Court of Boston. Rule 3, as amended, Mass. (1982), provides in part: "A civil action is commenced by (1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk" (emphasis added). Rule 81(d), 365 Mass. 841 (1974), provides: "In applying these rules to any proceedings to which they apply, the terminology of any statute which also applies shall, if inconsistent with these rules, be taken to mean the analogous device or procedure proper under these rules."
The plaintiff argues that to the extent the requirements for commencing an appeal under G.L. c. 151A, § 42, differ from the requirements for commencing an action under the Massachusetts Rules of Civil Procedure, rule 81(d) requires the application of the analogous procedure under the rules. He contends that the word "filing" as used in the statute is analogous to commencing an action under the rules. Thus, he argues, the rules allow "commencement" of his appeal either by filing the petition or by mailing it by certified or registered mail. We disagree.
The plaintiff misconstrues the effect of rule 81(d). The plaintiff's interpretation of that rule would make the Rules of Civil Procedure paramount to the express intent of the Legislature. That is not the purpose of the rule. ...
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...Generally, it connotes the "receipt" of the appeal, absent an express intent to the contrary. See Garrett v. Director of the Div. of Employment Sec., 394 Mass. 417, 420, 475 N.E.2d 1221 (1985). The absence of the word "filed" in the relevant sentence of § 43 is persuasive evidence of a legi......
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