Home ALLEN MARKELSON vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & others. [Note 1]

383 Mass. 516

February 5, 1981 - May 5, 1981

Essex County

Present: HENNESSEY, C.J., BRAUCHER, WILKINS, LIACOS, & ABRAMS, JJ.

A District Court judge erred in dismissing for want of jurisdiction an action for review of the review of the denial of unemployment compensation on the ground that the court was not within the judicial district in which the plaintiff lived or was last employed or had his usual place of business as required by G. L. c. 151A, Section 42; the language of Section 42 determines the venue, not the jurisdiction, of such a proceeding and, in the absence of prejudice to the court or the parties, the plaintiff's motion to change venue should have been allowed. [517-519]

CIVIL ACTION commenced in the Central Northern Essex Division of the District Court Department on January 10, 1980.

The case was heard by Brisson, J., on motion to dismiss.

John C. Sullivan, for the plaintiff, submitted a brief.


LIACOS, J. The plaintiff Allen Markelson appeals from the dismissal of his action for District Court review of the denial of unemployment compensation. G. L. c. 151A, Section 42; Dist. Mun. Cts. R. Civ. P. 140 (1975). The District Court judge dismissed the claim on the footing that the Haverhill District Court lacked jurisdiction. We reverse the order of the District Court and order reinstatement of the complaint.

The record indicates that Markelson was totally unemployed from early June, 1978, [Note 2] but filed no claim for unemployment

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compensation until October 16, 1979. A hearing was held on November 13, 1979, and the claim was denied by a review examiner of the Division of Employment Security. The director of the Division of Employment Security (director) affirmed the denial of benefits; and on December 13, 1979, the board of review denied further review. Markelson then filed an action for judicial review in the Haverhill District Court, pursuant to G. L. c. 151A, Section 42. His claim was brought within the thirty-day statutory time period. The defendants moved to dismiss for lack of jurisdiction and improper venue. Mass. R. Civ. P. 12 (b) (1) and (3), 365 Mass. 754 (1974). They sought dismissal because Markelson's residence in North Andover lies within the judicial district of the Lawrence District Court, and Markelson had not alleged a usual place of business or that he was last employed within the district of the Haverhill District Court. [Note 3] Markelson promptly filed a motion for change of venue. He averred that he brought the action in Haverhill upon the advice of officials of the Division of Employment Security. On May 14, 1980, after oral argument, the judge allowed the defendants' motions to dismiss upon his finding that Markelson did not reside or have a place of business nor was he last employed within the boundaries of the Haverhill District Court. The judge then reported the matter to this court.

Though factually dissimilar, this case raises the identical question we addressed in Shulte v. Director of the Div. of Employment Security, 369 Mass. 74 , 78 (1975): Does failure to follow statutory procedures in any particular deprive the reviewing court of jurisdiction? In Schulte this

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court enunciated a "coherent rationale . . . of litigative procedure," derived from the clear implication of several earlier decisions. 369 Mass. at 79. That rationale calls for differentiating serious missteps of procedure from relatively innocuous ones. Id. Only errors which are "repugnant to the procedural scheme" or prejudicial to the other parties would justify outright dismissal. Id. at 79-80. Under the Schulte test, the question before us is whether Markelson's error was a serious or innocuous misstep. We find it innocuous for the following reasons.

The language of G. L. c. 151A, Section 42, determines the venue, not the jurisdiction of such a proceeding. Section 42 indicates that it is appropriate for an aggrieved party to file a petition "in the district court within the judicial district in which he lives, or is or was last employed, or has his usual place of business . . . ." The statutory options regarding the locus for judicial review appear to have been selected for the benefit of the aggrieved party. Cf. G. L. c. 151A, Section 74 (statutory purpose to lighten burden of unemployed worker).

The matter of venue has procedural implications totally distinct from jurisdiction. Venue "commonly has to do with geographical subdivisions, relates to practice or procedure, may be waived, and does not refer to jurisdiction at all." Paige v. Sinclair, 237 Mass. 482 , 484 (1921). The provisions of G. L. c. 218, Section 2A, confirm this view. [Note 4] See Pierce v. Board of Appeals of Carver, 369 Mass. 804 , 808-809 (1976). Venue being a procedural matter which in no way affects the inherent authority of a District Court to entertain

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unemployment compensation claims, dismissal on that single basis is not required as a matter of law.

Furthermore, the nature of Markelson's error suggests no need to dismiss as a matter of judicial discretion. Markelson represented that he acted on the good faith belief that venue was proper in the Haverhill District Court, and he moved promptly for transfer when he learned about the error. The director and the other defendants appear to have been prepared to present a defense in either Haverhill or Lawrence. No question of lack of notice, unfairness, or other claim of prejudice to the parties appears on the record. Contrast Schubach v. Household Fin. Corp., 375 Mass. 133 , 134-135 (1978) (bringing collection action in court of proper venue may nevertheless constitute an unfair practice). The transfer of venue permitted under G. L. c. 218, Section 2A, does not duplicate proceedings already completed or unreasonably obstruct the continuity of action. We see no prejudice either to the court or to the parties that would ensue by permitting Markelson's motion to change venue.

As we hold that it was error to dismiss Markelson's complaint for lack of jurisdiction and we find no significant issue of discretion, we reverse the judgment of the District Court. We remand the case to the Haverhill District Court where the motion for change of venue is to be deemed allowed. The case is to be transferred, pursuant to G. L. c. 218, Section 2A, to the Lawrence District Court for proceedings on the merits.

So ordered.


FOOTNOTES

[Note 1] Statewide Investigations Service, Inc., and Revenue Recovery Service, Inc.

[Note 2] The record is ambiguous as to the precise time Markelson's unemployment began.

[Note 3] General Laws c. 151A, Section 42, as amended by St. 1978, c. 478, Section 79, provides, in part: "The director or any interested person aggrieved by any decision in any proceeding before the board of review may obtain judicial review of such decision by filing, within thirty days of the date of mailing of such decision, a petition for review thereof in the district court within the judicial district in which he lives, or is or was last employed, or has his usual place of business, and in such proceeding every other party to the proceeding before the board shall be made a party respondent."

[Note 4] General Laws c. 218, Section 2A, inserted by St. 1951, c. 325, provides: "Each district court shall have civil jurisdiction of actions local or transitory begun in such court which should have been brought in some other district court, to the extent that the court in which the action is begun may try and dispose of the case if the question of venue is waived or, if not waived, the court may, on motion of any party, order the action, with all papers relating thereto, to be transferred for trial or disposition to any other district court in which the action might have been commenced." Cf. Mass. R. Civ. P. 12 (h) (1), 365 Mass. 754 (1974) (objections to lack of venue may be waived), Mass. R. A. P. 3 (a), as amended, 378 Mass. 924 (1979).