The plaintiff has undertaken to appeal to this court from a decision of the Appellate Division of the District Court which reversed certain orders of a District Court judge and ordered the case to trial. There is no final decision, and therefore the appeal must be dismissed. Demirdjian v. Star Mkt. Co., 381 Mass. 778 (1980), and cases cited.
[Note 1] Digital Equipment Corporation, trustee.
This is an appeal from the decision of the Appellate Tax Board (A.T.B.) dismissing an appeal by the plaintiff to it which was filed after the statutory period of ten days had elapsed. See G. L. c. 58, Section 14. "The attempted institution of an appeal after the statutory period has expired is `so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal.'" Sears, Roebuck & Co. v. State Tax Comm'n, 370 Mass. 127 , 130 (1976), quoting Schulte v. Director of the Div. of Employment Security, 369 Mass. 74 , 79 (1975). A letter sent to the Commissioner of Revenue within the statutory period and not to the A.T.B. did not comply with the statute, was ineffective and did not confer jurisdiction on the A.T.B. See, e.g., Greeley v. Zoning Bd. of Appeals of Framingham, 350 Mass. 549 , 552 (1966), and cases cited.
The decision of the Appellate Tax Board dismissing the plaintiff's appeal is affirmed.
The plaintiff's position was abolished by the Lynn Housing Authority, and the decision of the authority has been upheld by the Civil Service Commission, by a judge of the Boston Municipal Court, and by a single justice of this court, who dismissed an action in the nature of certiorari. We affirm the decision of the single justice on the grounds stated by him. 1. There was substantial evidence to support the commission's conclusion that the abolition of the position was justified under G. L. c. 31, Section 43 (recodified by St. 1978, c. 393, Section 11, in G. L. c. 31, Section 41). Cambridge
Hous. Auth. v. Civil Serv. Comm'n, 7 Mass. App. Ct. 586 , 588 (1979), and cases cited. 2. The authority could properly proceed anew after a previous effort had been invalidated as procedurally defective. See Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388 , 393-394 (1948), and cases cited. The commission could properly reject the conclusion of its hearing officer that the second effort was procedurally defective, and could rest its decision on the subsidiary findings of the hearing officer. Commissioner of Revenue v. Lawrence, 379 Mass. 205 , 210-211 (1979). It was stipulated that the plaintiff received a timely notice in proper form of the hearing held by the authority on April 11, 1977, and he did not attend. The fact that part of his pay was temporarily withheld because of a dispute as to amount did not invalidate that hearing. 3. The plaintiff asserts that the judge of the Boston Municipal Court improperly rejected an offer of proof. He cites nothing in the record, and we hold that the point is not properly before us. Moreover, the claim apparently is that counsel for the commission told the plaintiff's counsel by telephone that the commission's decision was in error and would be corrected on reconsideration, but that the commission on reconsideration adhered to its decision. Participation by plaintiff's counsel in such an agreement, without participation by counsel for the authority, would of course have been quite improper.