AARON SCHULTE vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another. [Note 1]

KAPLAN, J. The petitioner Aaron Schulte was denied certain benefits by the board of review of the Division of Employment Security. He entered a petition in a District Court for judicial review of the board's decision. There he was met by a motion on the part of the Director of the division to dismiss the petition because he had failed to follow the procedure for judicial review prescribed by G. L. c. 151A, Section 42, as amended through St. 1971, c. 957, Section 3 (the text is reproduced in the margin). [Note 2] A judge of the District Court allowed the motion,

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and the case is here on report, in which the facts and the question presented are set out succinctly.

The procedure for review of board decisions in the District Courts, as far as immediately relevant, is stated in Section 42 thus: "[A]ny 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 . . . [of appropriate venue], and in such proceeding every other party to the proceeding before the board shall be made a party respondent. . . . Upon the filing of a petition for review by an aggrieved party . . . the clerk of

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the district court within seven days thereafter shall issue an order of notice. Said order of notice and a copy of the petition shall be served by the petitioner upon the director by registered mail within seven days of the date of the order, fourteen days at least before the return day, and shall be returnable at the election of the petitioner at any return day which occurs after the expiration of twenty-eight days from and within sixty days after the date of the filing of the petition."

In the present case the board's decision was mailed to the petitioner on April 18, 1974. The petitioner mailed his petition to the clerk of the District Court on April 22 and the clerk received and docketed it on April 23. The filing satisfied the statute as being within twenty days of the mailing of the board's decision. Order of notice with a return day of May 20, a date selected by the clerk, [Note 3] was promptly issued, and the order with copy of the petition was served on the Director on April 25. Issuance of the order was thus within seven days of petition filed, and service was within seven days of the date of the order and more than fourteen days before the return day. The return day was within sixty days of the filing of the petition. The one deviation from the statutory procedure pointed to by the Director was that the return day did not fall after the expiration of twenty-eight days from the date of the filing of the petition; the Director figured the interval as only twenty-seven days. On this basis the Director moved on May 18 to dismiss the petition as matter of law and the judge allowed the motion on May 30. So the petitioner lost his chance to challenge the correctness of the board's decision.

The petitioner (appellant here) contends, first, that he complied with the statute. If the date of mailing the petition, April 22, is taken as tantamount to the date of filing it, and is included in the count, then the return

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day, May 20, is twenty-nine days after filing. But it is hard (although perhaps not impossible, cf. Survey & Research Serv. Inc. v. Director of the Div. of Employment Security, 352 Mass. 475, 477 [1967]) to assimilate mailing to filing, and there is the further difficulty that the day from which a period begins to run is ordinarily excluded from the count. See Mass. R. Civ. P. 6 (a), 65 Mass. 747 (1974); Mass. R. A. P. 14 (a), 365 Mass. 859 (1974). An alternative argument is that such mistake as may have occurred was the clerk's doing, for which the petitioner is not responsible. There are cases under statutes providing for appellate review, including a case under Section 42, which have absolved the appealing parties of errors committed by clerks in carrying out duties assigned to them. See Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375, 377-378 (1966); Bogdanowicz v. Director of the Div. of Employment Security, 341 Mass. 331, 332 (1960); Home Owners' Loan Corp. v. Sweeney, 309 Mass. 26, 29 (1941). The trouble here is that the statute speaks of the petitioner's electing the return day, which suggests that the task and thus the responsibility of picking a proper date are on him.

It seems best to accept and deal with the proposition that the petitioner departed from the statute in the single respect mentioned. The Director (appellee here) argues as if a failure in any particular to follow a statute concerned with appellate review deprives the reviewing court of "jurisdiction," that is, results necessarily in dismissal of the appeal. One can cite statements capable of interpretation in that sense (see, e.g., Del Grosso v. Board of Appeal of Revere, 330 Mass. 29, 32 [1953]), as well as some decisions that visit seemingly inconsequential breaches of the statutes with forfeitures of appeals. See Del Grosso v. Board of Appeal of Revere, supra (acknowledging, 330 Mass. at 32 & n.1, the harshness of

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the results of certain decisions); Famigletti v. Neviackas, 324 Mass. 70 (1949). [Note 4]

In recent years, the problem has come up in a series of our cases and we think a coherent rationale has emerged consonant with a modern view of the functions of litigative procedure. See Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375 (1966); Greeley v. Zoning Bd. of Appeals of Framingham, 350 Mass. 549 (1966); Staman v. Assessors of Chatham, 350 Mass. 100 (1966); Opie v. Board of Appeals of Groton, 349 Mass. 730 (1965); Halko v. Board of Appeals of Billerica, 349 Mass. 465 (1965); Cohen v. Board of Registration in Pharmacy, 347 Mass. 96 (1964). Sloppiness in following a prescribed procedure for appeal is not encouraged or condoned, but at the same time a distinction is taken between serious missteps and relatively innocuous ones. Some errors or omissions are seen on their face to be so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. A prime example is attempted institution of an appeal seeking judicial review of an administrative decision after expiration of the period limited by a statute or rule. The result in such cases is understandable and acceptable: it is comparable in some respects to the dismissal of an original claim brought to a court after the running of an applicable statute of limitations. See, on the dismissal of late appeals, such decisions as O'Day v. School Comm. of W. Brookfield, 343 Mass. 122 (1961), Mayor of Revere v. District Court of Chelsea, 262 Mass. 393 (1928), and International Paper Co. v. Commonwealth, 232 Mass. 7

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(1919). Cf. New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 747-748 (1975); Canron, Inc. v. Assessors of Everett, 366 Mass. 634, 637 n.4 (1975). With respect to other slips in the procedure for judicial review, the judge is to consider how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice. After such an assessment, the judge is to decide whether the appeal should go forward without more, or on terms, or fail altogether.

The Cohen case, supra, is an example of this mode of treatment. It involved judicial review under the State Administrative Procedure Act (G. L. c. 30A) of a decision of the board of registration in pharmacy. The petition for review was timely filed under Section 14 (1), but the petitioner gave notice to interveners on the eleventh day after the filing, whereas Section 14 (2) allowed only ten days. The court intimated that tardy filing of the petition under Section 14 (1) would be "jurisdictional," but, after consideration of the place and function of Section 14 (2) in the scheme, the court concluded that it "does not state a jurisdictional requirement." 347 Mass. at 98. Yet it added that "[u]nreasonable delay [in giving notice under Section 14 (2)] would give ground for dismissal of the proceeding. Terms, if deemed appropriate, could be imposed upon allowance of a motion for delayed service. In this case, however, no delay or prejudice of any kind has resulted from failure to serve the interveners until the eleventh day." 347 Mass. at 99.

It should be observed that the pattern of the cited cases corresponds fairly well with our Rules of Appellate Procedure effective on July 1, 1974, 365 Mass. 844. Rule 3 (a) provides in part: "Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal."

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Rule 4 indeed goes on to authorize the lower court, "[u]pon a showing of excusable neglect," to extend the time for filing notice of appeal for a period not to exceed thirty days. [Note 5]

Returning to the facts of the present case, the mistake attributed to the petitioner is quite different from that conventionally considered to be serious, namely, attempted late institution of an appeal. Here the procedure was timely begun and the effect of the error was to speed, not to delay, the course of the appeal. The Director might perhaps have some cause for complaint if he were unduly hurried in responding to the order of notice. But here the Director had twenty-five days from service of the papers upon him to the return day. This gave the Director time enough to prepare; it exceeded the fourteen days to which he is in all events entitled and to which he can be held if service of the papers upon him occurs (as it may, permissibly, under the statute) less than fourteen days before the expiration of twenty-eight days from the filing of the petition. We need hardly say that if the Director needed time, a telephone call to the petitioner's counsel or to the clerk or application to the court might well have solved his problem. In fact he was able to prepare sufficiently to enter his motion to dismiss two days before the return day.

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Our cases cited above support a reinstatement of the appeal here. There is no case specifically in point under Section 42. None under that statute is opposed in principle to the result suggested, [Note 6] unless it be Kravitz v. Director of the Div. of Employment Security, 326 Mass. 419 (1950), and its immediate progeny. A provision of Section 42 required that when service was made on the Director of the order of notice and petition, copies be furnished him by the petitioner sufficient in number to enable him, in turn, to serve those papers on the other parties respondent. [Note 7] In the Kravitz case an appeal was dismissed for failure of the petitioner to supply the Director with a copy for such

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service. This led to Estey v. Director of the Div. of Employment Security, 338 Mass. 797 (1959), where an appeal was lost because the petitioner himself served the other respondent instead of enabling the Director to do so. See DeFino v. Director of the Div. of Employment Security, 350 Mass. 581, 586 n.5 (1966) (stating the effect of the two previous cases). The Kravitz and Estey cases did support the evident policy of the statute to put the matter of service on the other respondents in the hands of an impartial official, rather than to rely on "the say-so of the individual who commenced the proceeding." Estey case at 798. But was imposition of the extreme penalty of dismissal of the appeals called for? Whether the other precedents and the influence of the Rules of Appellate Procedure would cause us to decide the Kravitz and Estey cases differently today, we need not say. At all events, we believe the present case falls into the category of nonprejudicial mistake.

As there was no basis for dismissal as matter of law, and no significant issue of discretion was or could be presented, we reverse the order of the judge of the District Court and order the petition for review reinstated in the District Court. See Staman v. Assessors of Chatham, 350 Mass. 100, 101 (1966); Opie v. Board of Appeals of Groton, 349 Mass. 730, 734 (1965).

So ordered.