385 Mass. 1002

January 14, 1982

The defendant appeals from a decision of the Appellate Division of the District Courts vacating the judgment of the District Court and remanding for a new trial. The dispute arises out of a contract entered into between the defendant and the plaintiff's assignor. At trial the judge found that the assignment of the contract to the plaintiff was void and unenforceable, and entered a judgment in favor of the defendant. On appeal to the Appellate Division of the District Courts, Northern District, that court held that the trial judge erred, and entered an order vacating the judgment and remanding for a new trial. The defendant appeals the order of the Appellate Division to this court although the retrial has not yet taken place.

As we have said frequently and emphatically, an appeal does not lie at such an interlocutory stage. Demirdjian v. Star Mkt. Co., 381 Mass. 778 (1980). Pupillo v. New England Tel. & Tel. Co., 381 Mass. 714 (1980). Pollack v. Kelly, 372 Mass. 469, 475-477 (1977), and cases cited. See Alves v. Picard, 337 Mass. 77, 78 (1958) (an "appeal from the decision of the Appellate Division ordering a new trial was not from a final decision and [is] of no effect . . ."); Real Property Co. v. Pitt, 230 Mass. 526, 528 (1918). This case does not fall within any recognized exception to this rule. See, e.g., Chavoor v. Lewis, 383 Mass. 801, 805 (1981); Borman v. Borman, 378 Mass. 775, 778-781 (1979). The result of the new trial may be such as to obviate the need for an appeal and, if that does not turn out to be the case, the Appellate Division's rulings are ultimately appealable to this court, if appellate rights were appropriately preserved. We would assess double costs against the appellant defendant here, see Pollack v. Kelly, supra at 477, but for the fact that the appellee plaintiff also argued the merits before us, and did not move for the dismissal of the appeal on the above obvious grounds.

Appeal dismissed.


385 Mass. 1002

February 1, 1982

The plaintiff is a podiatrist who was twice suspended from the practice of podiatry by the Board of Registration in Podiatry pursuant

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to G. L. c. 112, Sections 20, 61. Following each suspension, the plaintiff incorrectly filed a petition for judicial review in the Superior Court. G. L. c. 30A, Section 14. [Note 1] The case were consolidated for hearing and ordered transferred to this court (G. L. c. 112, Section 64) by a single justice who heard the matter and ordered the entry of judgment affirming both decisions. From this judgment, the plaintiff appeals. There is no error.

The plaintiff was first suspended on March 8, 1978, for physically assaulting a patient. He was suspended for six months. There was substantial evidence to support this finding. G. L. c. 30A, Section 1 (6). The board correctly concluded that such conduct constitutes gross misconduct within the meaning of G. L. c. 112, Section 61. The suspension was authorized by G. L. c. 112, Section 20. There is no substance to the plaintiff's argument that certain members of the board were biased and prejudiced against him. See Commonwealth v. Leventhal, 364 Mass. 718, 721-722 (1974).

The plaintiff was found to have continued practicing podiatry during the six-month period of the first suspension. Here, too, there was substantial evidence to support the finding. G. L. c. 30A, Section 1 (6). The board suspended the plaintiff for an additional six months, but stayed the suspension on certain conditions. There was no error in the conclusion that such conduct was "deceit and gross misconduct" within the ambit of G. L. c. 112, Section 61. Equally without merit is the charge of bias and partiality on the part of the hearing officer who conducted the second hearing to consider whether the plaintiff had continued to practice while under suspension.

Judgment affirmed.


[Note 1] General Laws c. 112, Section 64, provides for the filing of a petition in the Supreme Judicial Court by one whose license has been suspended.