Home ROSALIE SCOLA & another vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY (and four companion cases [Note 1]).

326 Mass. 180

March 9, 1950 - June 29, 1950

Essex County


A "decision" of a District Court judge from which an appeal may be taken to this court under Section 42 of the employment security law, as appearing in St. 1943, c. 534, Section 6, and as amended by St. 1947, c. 434, is the judge's final disposition of the case and not an interlocutory ruling not decisive of the case.

A denial by a District Court judge of a motion to dismiss a petition for review under Section 42 of the employment security law, as appearing in St. 1943, c. 534, Section 6, and as amended by St. 1947, c. 434, is interlocutory and not decisive of the case, and an appeal does not lie Section 42.

FIVE PETITIONS, filed in the District Court of Eastern Essex on June 1, 1948, for review of decisions of the board of review in the division of employment security.

The cases were heard by Morley, J.

E. J. Nantoski, Assistant Attorney General, & J. A. Brennan, for the respondent.

S. Sandler, for the petitioners.

WILKINS, J. The petitioners, owners of fishing vessels, allege that they are not subject to the employment security law (G. L. [Ter. Ed.] c. 151A, inserted by St. 1941, c. 685, Section 1, as amended) as employers of the fishermen on their boats "on the ground that there is no employer-employee relationship." Each petition seeks a review by a District Court of a decision of the board of review, which affirmed

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the respondent's determination under Section 12 that the petitioners are employers subject to that law. In the District Court the respondent's motions that the petitions be dismissed for lack of jurisdiction were denied. The respondent appealed to this court. There is a report by the District Court judge of certain questions of law as to compliance with Section 42, as amended, in giving notice of the filing of the petitions for review in the District Court. The substantial procedural right is the appeal, not the report. See Lasell v. Director of the Division of Employment Security, 325 Mass. 23, 26-27.

The appeals cannot be considered at this time, as the cases in their present posture do not fall within the procedure prescribed in another part of the same section, which reads: "An appeal may be taken from the decision of the single justice of the district court directly to the supreme judicial court." G. L. (Ter. Ed.) c. 151A, Section 42, as appearing in St. 1943, c. 534, Section 6, and as amended by St. 1947, c. 434. This, we think, must refer only to a final disposition of a case by the District Court judge, and does not comprehend interlocutory rulings which are not decisive of a case. Any other interpretation would lead to an anomalous procedure. It is the general policy of the judicial process not to permit the hearing of appeals piecemeal. Vincent v. Plecker, 319 Mass. 560, 562-563. Broderick's Case, 320 Mass. 149, 151. And under the workmen's compensation act a case cannot be brought here unless there is a decree decisive of the whole case. Pierce's Case, 325 Mass. 649, 651-652.

The word "decision," although its use in Section 42, as amended, has not been the subject of judicial interpretation, has been used in the statutes respecting the Land Court since its establishment. In that connection the word has often been employed by judges of that court and of this court to describe "the final determination reached by a judge." Sheehan Construction Co. v. Dudley, 299 Mass. 48, 50. We think that this is the sense in which it is used in Section 42, as amended.

The denial, as distinguished from the granting, of a motion to dismiss is palpably interlocutory. See Gill v. Richmond

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Co-operative Association, Inc. 309 Mass. 73, 83. Compare Summers v. Boston Safe Deposit & Trust Co. 301 Mass. 167, 169; Harrington & Richardson Arms Co. v. Director of the Division of Employment Security, 323 Mass. 603. It is no more decisive of the case than is the denial of a motion for judgment in an action at law. See Wishnewsky v. Saugus, 325 Mass. 191, 192.

Appeals dismissed.


[Note 1] The companion cases are by Carlo Parisi and another, Antonio Ritondo and another, Simplicio Bichao and another, and Sebastiana Chianciola and another, against the same respondent.