Sumner H. Smith for the plaintiffs.
Robert A. Munroe for the defendants.
The plaintiffs brought this action under G. L. c. 258 for damage to their aircraft, and loss of use thereof, allegedly caused by the negligence of employees of the Beverly Airport Commission. On the last day of the three-year statute of limitations, G. L. c. 258, Section 4, the plaintiffs filed their action in the Salem District court. Two months later, a judge of that court dismissed the action for want of jurisdiction, which lay only in the Superior Court. See G. L. c. 258, Section 3. The plaintiffs then commenced a new action in the Superior Court, five months after the expiration of the limitations period, invoking as authority G. L. c. 260, Section 32, as appearing in St. 1973, c. 114, Section 340. Chapter 260, by various provisions, sets the limitations periods for different types of claims, and Section 32 provides that "[i]f an action duly commenced within the time limited in this chapter is dismissed . . . for any matter of form, . . . the plaintiff . . . may commence a new action for the same cause within one year after the dismissal." The plaintiffs appeal from an order dismissing the Superior Court action as untimely.
The defendants correctly concede that dismissal for bringing an action in the wrong court is "a matter of form" within the meaning of Section 32. See
Loomer v. Dionne, 338 Mass. 348 , 351-352 (1959). This does not help the plaintiffs, however, because the tolling provisions of G. L. c. 260 have no application to actions, such as this, not having a common law basis but authorized instead by G. L. c. 258, which contains its own limitations period. Weaver v. Commonwealth, 387 Mass. 43 , 50 (1982). Compare General Elec. Co. v. Lexington Contr. Corp., 363 Mass. 122 , 124 (1973) (Section 32 has no application where the limitations period is imposed by contract rather than by a provision of c. 60).
[Note 1] Maureen A. Ciampa, co-owner of the damaged plane.
[Note 2] City of Beverly.