383 Mass. 876

April 9, 1981

Kuson J. Haddad, City Solicitor (Aldo Cipriano, Assistant City Solicitor, with him) for the plaintiff.

Joan C. Stoddard, Assistant Attorney General, for the defendant.

The board of assessors of Marlborough (board) claims to be aggrieved byi the action of the Commissioner of Revenue in determining the equalized valuation of its property subject to local taxation in an amount in excess of $125,000,000 beyond what the board claims is its total fair cash value. See G. L. c. 58, Section 9, as amended by St. 1978, c. 514, Section 40, and Section 10A, as appearing in St. 1978, c. 514, Section 42. The board appealed this determination to the Appellate Tax Board (A.T.B.). The appeal was mailed on June 18, 1980, under conditions of certified mail. The A.T.B. received it on June 23, 1980. The controlling statute, G. L. c. 58, Section 10B, as most recently amended by St. 1979, c. 283, Section 2, set forth in full in the margin, [Note 1] requires that the town appeal on or before June 20.

The Commissioner responded to the appeal by filing a motion to dismiss on the ground of a tardy appeal. The A.T.B. allowed the motion. There was no error.

The clear import of Section 10B is that the appeal must be made on or before June 20. See Old Colony R.R. v. Assessors of Quincy, 305 Mass. 509, 513-514 (1940). Cases cited byi the board which equate timely mailing with service are totally inapposite because they were all decided under statutes or rules which recognize mailing as an appropirate vehicle for service. Section 10B is not such a statute. The appellate remedy is statutory, and therefore, the statute governs. Assessors of Bost on v. Suffolk Law School, 295 Mass. 489, 492 (1936). Accordingly, the A.T.B. had no jurisdiction to consider this appeal because of the late filing. Cf. Assessors of Sandwich v. Commissioner of Revenue, 382 Mass. 689 (1981). The decision of the Appellate Tax Board dismissing the plaintiff's appeal is affirmed.

So ordered.


[Note 1] General Laws c. 58, Section 10B, provides: "On or before June twentieth next following, a city or town aggrieved by the equalized valuation established for it by the commissioner under sections nine and ten A may appeal the determination of the commissioner to the appellate tax board. The appellant shall have the burden of proving that the equalized valuation of such city or town is substantially different from the commissioner's determination. Every such appeal shall be decided by the board not later than December first of the year in which it is filed. If the board fails to act upon an appeal within said time, it shall be deemed to be a denial of such appeal. The decision of the board shall be final."


383 Mass. 876

April 10, 1981

The defendant was found guilty of armed robbery and assault and battery by means of a dangerous weapon. She appealed, and we transferred the case to this court on our own motion. The defendant has raised five issues in

Page 877

this appeal from her convictions, but we will consider only one because this is the second occasion on which this case has been accorded appellate review. In her first appellate appearance (Commonwealth v. Boswell, 374 Mass. 263 [1978]), initiated by the Commonwealth's interlocutory appeal under G. L. c.278, Section 28E, the court set forth the evidence which need not be repeated here and responded to her claims concerning probable cause for her warrantless arrest by holding that the police officers had probable cause to arrest her and that they were not required, in the circumstances, to seek a warrant. The evidence adduced before the first motion judge, together with his findings and conclusions, was sufficient for this court to apply the law in reaching its conclusion that the arrest was valid. Commonwealth v. Miller, 366 Mass. 387, 389 (1974). Commonwealth v. Mahnke, 368 Mass. 662, 666-667 (1975), cert. denied, 425 U.S. 959 (1976). See Commonwealth v. Stevens, 362 Mass. 24 (1972). Furthermore, in our prior decision this court expressly found that exigent circumstances justified the failure to obtain a warrant before the arrest of the defendant. 374 Mass. at 270-271.

The only live issue in this appeal concerns the first motion judge's application of the principles of Commonwealth v. Antobenedetto, 366 Mass. 51 (1974). The court in Antobenedetto construed Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971), as requiring State courts to allocate the burden of proof on probable cause for a warrantless search to the Commonwealth. Commonwealth v. Antobenedetto, supra at 55-58. The record in the instant case fails to disclose a violation of Antobenedetto. The Commonwealth met its burden of proof.

Judgments affirmed.