383 Mass. 874

March 13, 1981

The case was submitted on briefs.

Jack L. Altshuler for the plaintiff.

David S. Hoar for the defendant.

The plaintiff has purported to appeal from a decision of the Appellate Division of the District Courts vacating a finding for her in a case that had been remanded from the Superior Court pursuant to G. L. c. 231, Section 102C. The plaintiff has no right to review by this court because the decision of the Appellate Division was not final. See Pupillo v. New England Tel. & Tel. Co., 381 Mass. 381 Mass. 714, 715 (1980); Fusco v. Springfield Republican Co., 367 Mass. 904 , 906 (1975); Orasz v. Colonial Tavern, Inc., 365 Mass. 131 , 139-140 (1974). The plaintiff had the right to have the case retransferred to the Superior Court for a trial de novo by making such a request within ten days of the decision of the Appellate Division. G. L. c. 231, Section 102C. Orasz v. Colonial Tavern, Inc., supra. Only after that trial would a final judgment or decision arise as to which review in this court might be obtained. Pupillo v. New England Tel. & Tel. Co., supra. In the circumstances, the appropriate order is

Appeal dismissed.


383 Mass. 874

April 9, 1981

Albert L. Hutton, Jr. (William C. Madden with him) for the defendant.

Page 875

Gary A. Nickerson, Assistan District Attorney, for the Commonwealth.

James R. McMahon, Jr., amicus curiae, submitted a brief.

The defendant's appeal from his conviction for assault and battery by means of a dangerous weapon is founded on the judge's denial of his motion to exclude from evidence certified copies of records of convictons pursuant to G.L.c. 233, Section 21. He argues a denial of the rights of due process and fair trial in art. 12 of the Massachusetts Declaration of Rights and in the Sixth and Fourteenth Amendments to the United States Constitution. There was no error.

This court responded to all the arguments of the defendant in Commonwealth v. Diaz, ante 73, 75-82 (1981), and Commonwealth v. Caldron, ante 86, 94 (1981).