THE GREENHOUSE, INC. vs. TRANS WORLD AIRLINES, INC.

O'CONNOR, J. This case presents a question we left open in Kolakowski v. Finney, 393 Mass. 336, 340 (1984): If, when a party receives notice of a decision of the Appellate Division of a District Court, that party has the right to have his case transferred to the Superior Court for retrial, must that party exercise that right before appealing to this court? We now answer that question "yes."

The plaintiff, The Greenhouse, Inc. (Greenhouse), brought suit against the defendant, Trans World Airlines, Inc. (TWA), in the Boston Municipal Court, which is a District Court. See G. L. c. 218, Section 1. Greenhouse alleged that TWA had violated its contract with Greenhouse and had acted negligently when TWA delivered to Greenhouse decayed, dehydrated, and, thus, unsaleable flowers. The complaint sought $5,000, an amount below the threshold of $7,500 established by G. L. c. 231,

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Section 104, as amended through St. 1980, c. 539, Section 4, for prompt removal by TWA to the Superior Court. After trial, judgment in the amount of $1,440.01 was entered for Greenhouse. TWA claimed a report to the Appellate Division of the Boston Municipal Court. On April 24, 1984, the Appellate Division dismissed the report. Within ten days of notice of that decision, TWA could have caused the case to be transferred to the Superior Court for a new trial. G. L. c. 231, Section 104. See Orasz v. Colonial Tavern, Inc., 365 Mass. 131, 134-140 (1974); McGloin v. Nilson, 348 Mass. 716, 718-719 (1965). However, TWA chose not to do so and instead appealed here. We dismiss the appeal.

General Laws c. 231, Section 109, as amended through St. 1975, c. 377, Section 108A, provides that "[a]n appeal to the supreme judicial court shall lie from the final decision of the appellate division of any district court." In Locke v. Slater, 387 Mass. 682, 684 (1982), we wrote that "[a] decision of an Appellate Division is not final and immediate appeal to this court is not available if trial in the Superior Court is available to the party seeking the appeal." That language controls this case. As we have said above, when TWA received notice of the Appellate Division's decision dismissing its report, TWA had ten days in which to claim a trial in the Superior Court. G. L. c. 231, Section 104. But TWA chose not to claim its Superior Court trial. "[I]nstead," as TWA states in its brief, it "intentionally allowed the ten day removal period to expire and then brought its appeal to this Court."

Of course, after the ten-day removal period expired, TWA could no longer remove the case to the Superior Court, and the Appellate Division decision became final. However, over ten years ago, in Orasz v. Colonial Tavern, Inc., supra, this court announced a rule prohibiting an appeal in precisely that situation. We stated that a party who, after a decision by an Appellate Division, has the right to remove his case to the Superior Court "does not have the right to appeal to this court from a decision of the Appellate Division before the retrial of the case in the Superior Court" (emphasis added). Id. at 139. In the past ten years we have many times affirmed the "Orasz

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rule." See, e.g., Third Nat'l Bank v. Continental Ins. Co., 387 Mass. 1001, 1002 (1982); Kingsley v. Massachusetts Bay Transp. Auth., 383 Mass. 874 (1981); Pupillo v. New England Tel. & Tel. Co., 381 Mass. 714, 715 (1980); Fusco v. Springfield Republican Co., 367 Mass. 904, 906 (1975). Today, we affirm it again.

In support of its position, TWA points to Parrell v. Keenan, 389 Mass. 809, 811 n.4 (1983), and Pilotte v. Aetna Casualty & Sur. Co., 384 Mass. 805, 805 n.1 (1981). We agree that those decisions give support to TWA's position. However, in neither of those cases did the parties brief or argue the propriety of the appeal, and in neither of them did we expressly or intentionally abandon the rule that we articulated in Orasz and applied in Orasz's progeny. In Pilotte, supra, we entertained the appeal in the exercise of our discretion, but the concern we expressed in Orasz, supra at 140, that "a good deal of confusion has apparently resulted from the discretionary entertainment of premature appeals by this court," prompts us now to adhere closely to the Orasz rule. See Weil v. Boston Elevated Ry., 216 Mass. 545, 549 (1914) ("The rule of practice as to when [appeals] may be presented for argument in this court ought to be simple, capable of being easily understood and not likely to be open to doubt in application. . . . It is more important to preserve it than to break in upon it for the purpose of doing what may appear to be desirable in a single case and thereby work confusion in many other cases"). Surely, Orasz and subsequent cases that applied the Orasz rule, none of which have ever been expressly overruled, placed TWA on notice that it could not safely assume that it had the right to appeal directly to this court from the Appellate Division.

In Parrell v. Keenan, supra, we relied on Joseph Freedman Co. v. North Penn Transfer, Inc., 388 Mass. 551, 551 n.1 (1983), and Third Nat'l Bank v. Continental Ins. Co., 388 Mass. 240, 241-242 (1983), but our reliance was inappropriate. In Joseph Freedman Co., supra, before trial in the District Court the defendant-appellant could have removed the case for trial in the Superior Court, G. L. c. 231, Section 104, but it did not. Therefore, before the Appellate Division filed its decision, the

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defendant-appellant had waived its right to a Superior Court trial. See Conroy v. Boston, 392 Mass. 216, 216 n.1 (1984). In Third Nat'l Bank, supra, although the plaintiff-appellant could have filed its suit in the Superior Court, it chose to sue in the District Court. Again, as in Joseph Freedman Co., supra, before the Appellate Division filed its decision, the plaintiff-appellant had waived its right to a Superior Court trial. See Locke v. Slater, supra. So, in both of the cases that we relied on in Parrell v. Keenan, supra, when the Appellate Division made its decision that decision was final. Therefore, appeal to this court was appropriate. That was not the situation in Parrell v. Keenan, supra, nor is it the situation in this case.

Considerations of judicial economy justify our decision to retain the Orasz rule. A contrary rule -- one that would permit the direct appeal to this court of cases that the Legislature has required to be tried in the first instance in the District Court -- would not advance the efficient disposition of judicial business. By their very nature, those cases have a much greater potential for prompt termination in the Superior Court -- by trial or by settlement -- than they have in this court.

Appeal dismissed.

ABRAMS, J. (dissenting). Delay in civil trials in the trial court is the most serious problem in the administration of justice. [Note Dissent-1] Despite knowledge of that fact, the court today refuses to adopt a simple housekeeping measure which would end litigation in a small group of cases and instead adds to the delay and congestion in the Superior Court.

General Laws c. 231, Section 109, as amended through St. 1975, c. 377, Section 108A, provides that a party may appeal to this court from "the final decision of the appellate division of any district

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court." Contrary to the court's decision today, the Appellate Division's dismissal of the report, combined with the defendant's failure to move for transfer of the case to the Superior Court, makes the Appellate Division's decision final and therefore appealable to this court.

Where, as here, the only remaining question for the court is one of law, there is no justification for requiring Superior Court action. [Note Dissent-2] See Pilotte v. Aetna Casualty & Sur. Co., 384 Mass. 805, 805 n.1 (1981). The resolution of factual disputes is what the trial court does best. The resolution of legal issues is our function.

If the plaintiff had lost the Appellate Division decision, it could have brought an appeal before this court. See Third Nat'l Bank v. Continental Ins. Co., 388 Mass. 240, 241-242 (1983). Or, if the defendant had waived its right to jury trial in the Superior Court before the Appellate Division's decision, it also could have appealed to this court without first retrying the case in the Superior Court. See Joseph Freedman Co. v. North Penn Transfer, Inc., 388 Mass. 551, 551-552 n.1 (1983). I think that once the defendant allowed the ten-day period to remove the case to pass, the Appellate Division's decision became final and appealable. The fact that the defendant elected to waive its right to a jury trial in the Superior Court after the Appellate Division decision, rather than before, should not determine the case's procedural status. This court's decision merely prolongs litigation, increases the costs to litigants, and makes it more difficult for citizens to enforce small claims even though such claims are valid, or makes it economically disadvantageous to defend against invalid claims.

"The controlling ideas [of court reorganization, see St. 1978, c. 478, are] unification, flexibility, conservation of judicial power, and responsibility." R. Pound, Organization of Courts 275 (1940). Today's decision neither conserves judicial power nor is it responsible. Adherence to old procedures does not

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serve the purposes of reorganization, but merely continues the strangulation of the trial courts by adding another layer of decisionmaking before appellate review. Such a procedure merely adds to spiraling litigation costs and increases delay between entry and final disposition.

The court's conclusion that "[c]onsiderations of judicial economy" justify its decision not to decide an issue of law is unfair. [Note Dissent-3] The courts are not created for the convenience of judges and lawyers but are created to serve litigants and the public interest in securing "the just, speedy and inexpensive determination of every action." See Mass. R. Civ. P. 1, as appearing in 385 Mass. 1213 (1982).

The court today departs from its recent holding that even if appellate review "increases [appellate] judicial business, that result must be accepted. Courts exist to vindicate important rights. We cannot withhold from [litigants] important protections merely because granting them may place some additional burden on the courts." Berry v. Commonwealth, 393 Mass. 793, 799 (1985). Today's decision does not improve the administration of justice for litigants, the public, or for the court system as a whole. [Note Dissent-4] I dissent.