ARTHUR GOLDSTEIN, executor, vs. BEATRICE S. BARRON & another, executors, & another [Note 1] (and two consolidated appeals [Note 2]).

KAPLAN, J. This case, which is before us on further appellate review of a two to one decision of the Appeals Court, 9 Mass. App. Ct. 644 (1980), involves narrow points of procedure about the time for the plaintiff's filing a bond after a negative finding of a medical malpractice tribunal.

1. Time for filing bond under G. L. c. 231, Section 60B, and effect of Mass. R. Civ. P. 6 (d). [Note 3] The plaintiff executor sued in Superior Court a physician (now represented by his executors) and the physician's professional corporation, defendants, for negligence in treating the plaintiff's decedent. A medical tribunal, convened in accordance with G. L. c. 231, Section 60B, made its finding on February 20, 1979. The clerk entered the finding and mailed copies to the parties on the same day, February 20. The finding being negative, the plaintiff moved on various stated grounds for the appointment of a new medical tribunal. He also moved for a stay of the posting of bond until the new tribunal should bring in a fresh finding. These motions were denied by a judge of the Superior Court on March 14. After unsuccessful efforts in the Appeals Court to stay the posting of bond pending appeal of the refusal to convene a new tribunal, [Note 4] the plaintiff on March 23 delivered a bank passbook which is taken to be the equivalent of a bond for $2,000. On March 26, the defendants moved in Superior Court to dismiss the action on the ground that Section 60B allows only thirty days after a finding for the posting of bond; here the bond

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had not been posted until the thirty-first day; therefore the action must fail. The correct construction of the statute is the question to be first decided.

The pertinent provision of Section 60B, inserted by St. 1975, c. 362, Section 5, effective January 1, 1976, reads thus: "If said bond is not posted within thirty days of the tribunal's finding the action shall be dismissed." [Note 5] We think "finding" can and should be read to incorporate entry of the finding by the clerk (see Mass. R. Civ. P. 79 [a], 365 Mass. 839 [1974]). The starting point of the thirty days is the entry rather than the making of the finding, if there is a difference. This reading is suggested by Clements v. Florida E. Coast Ry., 473 F.2d 668, 670 (5th Cir. 1973), which in a somewhat similar context speaks of entry as establishing a "fixed and unarguable date."

The Appeals Court went much further in attempting to gloss the word "finding." It looked to rule 77 (d), 365 Mass. 837 (1974), according to which the clerk, on making entry of an order or judgment, is immediately to serve notice thereof by mail upon the parties. [Note 6] The court then took

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another step to rule 6 (d), 365 Mass. 747 (1974), which provides, "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other papers upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period." Reading 77 (d) and 6 (d) in conjunction with the sentence above quoted from Section 60B, the court concluded that the thirty days ran from a point three days after the mailing by the clerk (which in this case coincided with the entry). So the defendants' furnishing bond on March 23 was held timely. 9 Mass. App. Ct. at 649-650. [Note 7]

The Appeals Court's construction is not implausible, but, besides stretching considerably the language both of Section 60B and rule 6 (d), it goes counter to rather firm Federal interpretations which we tend to follow in administering our parallel rules. We find a considerable array of decisions in varying contexts indicating that Federal Rule 6 (e) -- the equivalent of our rule 6 (d) -- is not routinely invoked through rule 77 (d); that is to say, we expect application of rule 6 (e) to be reserved, as its text indicates, to cases where a rule or statute providing some measuring period itself

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refers to service of a paper as the starting point. See Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir. 1975); Clements v. Florida E. Coast Ry., supra at 670; Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972); Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858, 860 (3d Cir. 1970); Goff v. Pfau, 418 F.2d 649, 654 (8th Cir. 1969); Tavernaris v. Beaver Area School Dist., 454 F. Supp. 355 (W.D. Pa. 1978); United States ex rel. TVA v. 72.0 Acres of Land, More or Less, 425 F. Supp. 929 (E.D. Tenn. 1976); Army & Air Force Exch. Serv. v. Hanson, Deputy Comm'r of Labor, 250 F. Supp. 857, 858-859 (D. Haw. 1966). Cf. In re Levens, 563 F.2d 1223 (5th Cir. 1977). It follows that the plaintiff's furnishing of a bond equivalent on March 23 was untimely by reference to Section 60B and was not saved by our rule 6 (d).

2. Application of the principle of Mass. R. Civ. P. 6 (b) (2). The running of the thirty-day period from the entry of the finding will cause no trouble in the mass of cases if only for the reason that the clerks will act as required under rule 77 (d). [Note 8] Difficulties may arise on occasion, whether through failure or substantial delay of notice to the plaintiff without fault on his part, [Note 9] or through other casualty. A corrective is available in appropriate situations. It is found in the principle of rule 6 (b), 365 Mass. 747 (1974), which permits "enlargement" of time under stated conditions. The second clause reads: "the court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." [Note 10] The plaintiff tried to resort to this

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rule. [Note 11] Although the rule is not applicable by its terms, it should be applied by analogy, as its Federal counterpart has been. [Note 12] The misapprehension of plaintiff's counsel resulting in a delayed filing is here claimed to be "excusable." A flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not extended "to cover any kind of garden-variety oversight." Pasquale v. Finch, 418 F.2d 627, 630 (1st Cir. 1969) (construing "excusable neglect" in Fed. R. App. P. 4 [a]). Here, however, the particular questions of procedure with respect to furnishing bond were without definite precedent. The plaintiff was

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insisting on rule 6 (d) as giving him the additional three days. That view in fact was adopted by the Appeals Court. It is rejected by this court on grounds which are not beyond all doubt and perhaps will not persuade every mind. There is no question of irregular behavior on the part of counsel or his seeking tactical advantage through any pretense. In these circumstances we think relief according to the standard of 6 (b) (2) is appropriate (see Feeder Line Towing Serv., Inc. v. Toledo, Peoria & W.R.R., 539 F.2d 1107 [7th Cir. 1976]; Dugan v. Missouri Neon & Plastic Advertising Co., 472 F.2d 944, 948 [8th Cir. 1973] [under Fed. R. App. P. 4 (a)]; Ohlinger v. United States, 135 F. Supp. 40 [D. Idaho 1955] [under Fed. R. Civ. P. 6 (b)]), especially as the one day's delay in furnishing bond could not have prejudiced the defendants in any material way. See Coady v. Aguadilla Terminal Inc., 456 F.2d 677, 678-679 (1st Cir. 1972) (delayed furnishing of bond for costs). [Note 13]

Holding that the plaintiff's "neglect" was "excusable," we let the malpractice action continue, thus reaching the same result as the Appeals Court in the present case, although by a somewhat different route.

3. One or two bonds. [Note 14] We do not disturb the holdings by the judge of the Superior Court and by the Appeals

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Court that a single bond will suffice although the defendant physician's professional corporation, Dr. Edward M. Barron, Inc., was joined as a party.

The action will stand and any stay of further proceedings therein will be dissolved.

So ordered.