396 Mass. 1015

February 12, 1986

Frederick T. Golder for the plaintiffs.

Henry G. Stewart (Joanne E. Barker with him) for the defendants.

In May, 1984, the plaintiffs commenced an action in tort against the defendants in the Superior Court in Middlesex County. The defendants moved to dismiss all counts of the complaint. The trial judge allowed the motion to dismiss on August 15, 1984. [Note 3] A motion to reconsider was filed but was neither heard nor decided. Judgment of dismissal was entered on October 5, 1984. On October 17, 1984, the plaintiffs filed a motion to vacate judgment; this motion was denied on November 26, 1984. On November 30, 1984, the plaintiffs filed notice of appeal from the judge's "orders" allowing the defendants' motion to dismiss and denying their motion to vacate judgment and also for "not acting on their Motion for Reconsideration." The defendants moved in the Superior Court to dismiss the appeal, alleging that it was not filed timely under Mass. R. A. P. 4, as appearing in 378 Mass. 928 (1979). The judge denied the motion. The defendants renewed their motion to dismiss the appeal before the Appeals Court. Subsequently, we transferred the case and the motion to this court on our own motion.

We hold that the plaintiffs' appeal is barred by rule 4 and must be dismissed. Rule 4 (a) provides in pertinent part: "In a civil case, unless otherwise provided by statute, the notice of appeal required by rule 3 shall be filed with the clerk of the lower court within thirty days of the date of the entry of the judgment appealed from; but if the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed by any party within sixty days of such entry." The plaintiffs did not file their notice of appeal until fifty-six days after the entry of judgment. See Mass. R. Civ. P. 6 (a), 365 Mass. 747 (1974).

The plaintiffs did not address in their brief, or their supplemental brief, the issue whether appeal is exempt from the usual thirty-day requirement of Mass. R. A. P. 4. The defendants, however, have briefed the issue of the lack of timely filing of the appeal. [Note 4]

The plaintiffs argued orally, in the alternative, that, even if Minuteman Regional Vocational Technical School District is not an agency of the

Page 1016

Commonwealth, the Superior Court judge properly exercised his discretion under Mass. R. A. P. 4 (c), as appearing in 378 Mass. 928 (1979), to grant them an extension for filing notice of appeal beyond the otherwise applicable thirty-day time period because of "excusable neglect." There are no facts of record in the case at bar that would warrant a finding of excusable neglect on the plaintiffs' part, and they made no showing in that regard. See Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981) (excusable neglect requires circumstances that are unique or extraordinary; it is not meant to afford relief from mistakes by counsel).

Accordingly, the plaintiffs' failure to file timely notice of appeal from the dismissal of their complaint forecloses review of that decision by this court. The appeal is dismissed.

So ordered.


[Note 1] Angelo J. Fergione.

[Note 2] Nancy McGrath, James Amara, and Dr. Ronald Fitzgerald.

[Note 3] Some of the underlying facts which appear to have given rise to this complaint are set forth in Fergione v. Director of the Div. of Employment Sec., ante 281 (1985).

[Note 4] The plaintiffs claimed in oral argument that they were in compliance with rule 4 because Minuteman Regional Vocational Technical School District is an agency of the Commonwealth, and that they were therefore entitled to a sixty-day appeal period from the date of entry of judgment. This issue was not briefed and hence is waived. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975). Commonwealth v. Appleby, 389 Mass. 359, 380 (1983). See Okongwu v. Stephens ante 724 (1986).