STEVEN T. TRAVIS vs. JOHN MCDONALD.

HENNESSEY, C.J. The defendant, John McDonald, appealed from a judgment entered against him in a G. L. c. 93A action by the small claims session of a District Court. A Superior Court judge ordered the dismissal of the appeal for lack of jurisdiction, and remanded the case to the District Court for entry of a final judgment. We granted the defendant's application for direct appellate review. We reverse that part of the

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Superior Court order denying appellate jurisdiction, and remand the proceeding to the Superior Court for further action not inconsistent with this opinion.

The plaintiff, Steven T. Travis, commenced an action in the small claims session of the District Court against McDonald, an employee of Crown Chevrolet, Inc. (Crown). In this action Travis alleged that the defendant had engaged in unfair and deceptive consumer practices within the meaning of G. L. c. 93A, Section 2 (1984 ed.). Specifically, Travis alleged that the defendant had repaired his automobile without giving him a copy of the cost of repairs; had estimated the repairs at $1,300 and charged over $2,300; had refused to honor an American Express card in payment for the repairs; and was holding the plaintiff's car for ransom. The judge entered a judgment for the plaintiff, awarding him damages in the amount of $1,000, doubled to $2,000 as permitted by G. L. c. 93A, Section 9, less $825 for work performed by the defendant, and return of the car.

The defendant appealed to the Superior Court and moved in that court to dismiss the action on the ground that the small claims session lacked jurisdiction to hear a G. L. c. 93A claim under G. L. c. 218, Section 21 (1984 ed.). A Superior Court judge ruled that the small claims session does have jurisdiction to hear G. L. c. 93A claims. Nonetheless, the judge then dismissed the defendant's appeal, ruling that because the small claims statute, G. L. c. 218, Section 23, gives a defendant an appeal to Superior Court for a de novo trial by jury, and because there is no right to a trial by jury in a G. L. c. 93A case, no appeal to the Superior Court could be taken.

1. Small Claims Jurisdiction.

The Superior Court judge correctly determined that Travis's consumer protection claim under G. L. c. 93A could properly be heard in the small claims session of the District Court. Under the small claims procedure statute, G. L. c. 218, Section 21, a plaintiff may commence in the small claims session "claims in the nature of contract or tort, other than slander or libel, in which the plaintiff may commence in the small claims session "claims in the nature of contract or tort, other than slander or libel, in which the plaintiff does not claim as debt or damages more than twelve hundred dollars." The determinative issue is

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whether c. 93A claims are claims "in the nature of contract or tort" within the ambit of G. L. c. 218, Section 21. In Slaney v. Westwood Auto, Inc., 366 Mass. 688 (1975), we had occasion to discuss the breadth of G. L. c. 93A. We noted that c. 93A establishes a new cause of action for unfair and deceptive trade practices, "neither wholly tortious nor wholly contractual in nature." Slaney, supra at 704. See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 626 (1978). The purpose of this discussion was to indicate that c. 93A claims are "suigeneris," and involve new substantive rights "not subject to the traditional limitations of pre-existing causes of action." Slaney, supra. Yet the fact that c. 93A claims are neither "wholly contractual" nor "wholly tortious" causes of action, as these terms were understood at common law, does not imply that these claims are not, at least derivatively, "in the nature of contract or tort" within the meaning of the small claims procedure statute. Chapter 93A claims normally are within "at least the penumbra" of common law tort or contract principles, see PMP Assocs. v. Globe Newspaper Co., 366 Mass. 593, 595-596 (1975), citing the Federal Trade Commission Act, 15 U.S.C. Section 45(a)(1) (1970), as by definition they are based on unfair or deceptive practices in trade or commerce. G. L. c. 93A, Section 2. We thus hold that c. 93A claims which meet the jurisdictional amount requirement [Note 1] are proper candidates for small claims treatment under G. L. c. 218, Section 21.

This result is consistent with the legislative purpose underlying these two statutory schemes. The small claims procedure statute is designed to provide a "simple, informal and inexpensive procedure" for the determination of claims involving relatively

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small amounts of money. G. L. c. 218, Section 21. This procedure allows meaningful access to the court system for litigants who, due to financial constraints or lack of familiarity with the legal process, might not otherwise be in a position to vindicate their rights. Allowing c. 93A claimants to appear in the small claims session will ensure greater access for aggrieved individuals, and promote the enforcement of our consumer protection laws. The Legislature recognized these benefits in 1978 by allowing c. 93A claimants who are seeking only money damages, and not equitable relief, to file their claims in District Court. G. L. c. 93A, Section 9 (3A), inserted by St. 1978, c. 478, Section 46. It is both logical and consistent with legislative policy to allow c. 93A claimants seeking not more than $1,200 to proceed in the small claims session of that same court. [Note 2]

2. Right of Appeal.

The Superior Court judge erred in ruling that, because there is no right to a jury trial in c. 93A cases, such claims initiated in small claims session cannot be appealed to the Superior Court for a trial by jury de novo pursuant to G. L. c. 218, Section 23 (1984 ed.). Section 23 provides that a defendant may file a claim of trial by jury within ten days of receiving an adverse small claims session judgment. If a defendant appeals a small claims judgment to the Superior Court pursuant to this provision, the statute provides that "the plaintiff shall have the same right to claim a trial by jury as if the cause had been begun in the superior court." G. L. c. 218, Section 23. The language of Section 23 makes clear that the Legislature, in making provision for a two-tier system of trial de novo for small claims actions, envisioned that the litigants have at least the possibility of obtaining a trial by jury when an appeal is taken from a small claims judgment. Here, the right to a trial de novo in the Superior Court depends on whether a trial by jury is available for actions brought pursuant to c. 93A.

In the case of Nei v. Burley, 388 Mass. 307, 315 (1983), we held that litigants in actions cognizable under G. L. c. 93A

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have no right to a jury trial. See Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 289 & n.14 (1985). See also Purest Ice Cream, Inc. v. kraft, Inc., 614 F. Supp. 994, 997 (D. Mass. 1985). While the parties in c. 93A actions cannot insist on a jury trial of their claims, "[t]he rule [of Nei v. Burley] does not suggest that a judge is prohibited from submitting such a case to the jury." Service Publications, Inc. v. Goverman, 396 Mass. 567, 577-578 (1986). [Note 3] Charles River Constr. Co. v. Kirksey, 20 Mass. App. Ct. 333, 337-339 (1985) (trial judge's exercise of discretion in submitting c. 93A claim to a jury not reversible error). See Capp Homes v. Duarte, 617 F.2d 900, 902 n.2 (1st Cir. 1980) (case decided before Nei v. Burley, supra, where court held that c. 93A contemplates trial by jury).

Because a Superior Court judge may exercise discretion in deciding whether to submit a c. 93A claim to the jury in the first instance, the provision in c. 218, Section 23, that defendants in small claims proceedings have the right to appeal adverse judgments to the Superior Court for a trial by jury de novo, does not pose an impediment to the appellate rights of defendants in c. 93A actions heard originally in small claims session. Just as Superior Court judges presently exercise discretion in deciding whether c. 93A actions commenced in Superior Court should be heard by a jury, judges are capable of exercising the same type of discretion in determining whether appeals from small claims session judgments in c. 93A actions should be heard by a jury. To take advantage of the appeal provisions of c. 218, Section 23, all that is necessary is that the litigants have the possibility of a trial by jury de novo. Whether the actual trial is a jury trial or a jury-waived proceeding is immaterial

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to whether the right of appeal is available. Thus, we conclude that defendants in c. 93A actions initiated in the small claims session have the right to appeal an adverse judgment to the Superior Court for a trial de novo. To hold otherwise would unfairly deprive these defendants of the right of appeal afforded defendants in other types of small claims actions. Cf. Lindsey v. Normet, 405 U.S. 56, 77 (1972) (once an appeal is afforded, it is a violation of the equal protection principle to grant a right of appeal to some litigants and to deny the right capriciously or arbitrarily to others).

3. Conclusion.

The order of the Superior Court is affirmed in part and reversed in part. The case is remanded to the Superior Court for a trial de novo on the plaintiff's c. 93A claim. Whether the trial de novo is conducted before a jury, or is a jury-waived proceeding, is left to the discretion of a Superior Court judge.

So ordered.