Kravitz v. Director of Division of Employment Sec.

• Decision Date: 06 November 1950
• Citation: Kravitz v. Director of Division of Employment Sec., 95 N.E.2d 165, 326 Mass. 419 (Mass. 1950)
• Parties: KRAVITZ v. DIRECTOR OF DIVISION OF EMPLOYMENT SECURITY et al.
• Court: Supreme Judicial Court of Massachusetts

326 Mass. 419

95 N.E.2d 165

KRAVITZ v. DIRECTOR OF DIVISION OF EMPLOYMENT SECURITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 6, 1950

Argued Oct. 6 1950.

A. Kravitz Dorchester, for petitioner.

Francis E. Kelly Atty. Gen. (A. M. Cicchetti, Asst. Atty. Gen., with him), for respondent.

Before QUA, C. J and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

The petitioner sought unemployment benefits under the provisions of G.L (Ter.Ed.) c. 151A, as appearing in St.1941, c. 685, § 1, as amended. The director of employment security, hereinafter called the director, determined that the petitioner was not entitled to any benefits and his decision was affirmed by the board of review. G.L.(Ter.Ed.) c. 151A, §§ 39, 40, and 41, as amended. The petitioner seasonably filed a petition in the Municipal Court of the City of Boston seeking judicial review of the board's decision. The director moved that the petition be dismissed because of noncompliance with certain of the provisions of G.L. (Ter.Ed.) c. 151A, § 42, as appearing in St.1943, c. 534, § 6, as amended by St.1947, c. 434, and the motion was allowed. The petitioner appealed, and the case comes here on a report in accordance with the rules of the District Court made pursuant to section 42.

The following facts appear in the report: Two respondents were named in the petition, the director, and Kravitz Brothers, Inc., the employer. See G.L. (Ter.Ed.) c. 151A, §§ 38, 39, 40, 42. 'A notice was duly issued by the court for service upon the director, and said notice, together with one copy of the petition were served upon the director, as provided in the notice. The petitioner failed, however, to deliver to the director 'as many copies of the notice and petition as there are parties respondent,' as required by section 42 of c. 151 A, as amended.'

The director's motion to dismiss the petition was grounded on lack of jurisdiction by reason of the petitioner's failure to comply with the provision of section 42 just mentioned. The judge in effect ruled that this provision was mandatory and that the failure to comply with it was fatal as matter of law to the perfecting of the review. If the motion to dismiss was addressed to the court's discretion, then as the petitioner has argued, the dismissal of the petition as matter of law would be erroneous. Long v. George, 296 Mass. 574, 578, 7 N.E.2d 149. Peterson v. Cadogan, 313 Mass. 133, 46 N.E.2d 517.

We are of opinion that the petition was rightly dismissed. The pertinent provisions of the statute governing judicial review of decisions of the board of review read: 'The director or any interested person aggrieved by any decision in any proceeding before the board of review may obtain judicial review of such decision by filing, within twenty days of the date of mailing of such decision, a petition for review thereof in the district court within the judicial district whereof he lives, or is or was last employed, or has his usual place of business, and in such proceeding every other party to the proceeding before the board shall be made a party respondent. * * * The director shall be deemed to be a party to any such proceeding. * * * Upon the filing of a petition for review by an aggrieved party other than the director a notice and copy of the petition shall be served upon the director by registered mail fourteen days at least before the return day, and at the same time there shall be delivered to the director as many copies of the notice and petition as there are parties respondent. * * * Upon the filing of a petition for review by the director or upon the service of a petition on him, the director shall forthwith send by registered mail to each other party to the proceeding a copy of such notice and petition, and such mailing shall be deemed to be completed service upon all such parties' (emphasis supplied).

Since, in the case at bar, there were two respondents, the director and the employer, it was the petitioner's duty under section 42 to deliver to the director two copies of the notice and petition. Instead of that the petitioner delivered to him only one copy of the notice and petition. The petitioner concedes that this did not satisfy the requirements of section 42 but argues that the omission was not fatal to the right of review. We cannot agree.

The right of judicial review of decisions of the board is defined and regulated by section 42. Apart from this statute there is no right to such a review. Touching...