404 Mass. 1002

February 13, 1989

Bruce R. Taub for the defendant.

Robert J. Bender, Assistant District Attorney, for the Commonwealth.

The Appeals Court dismissed the defendant's appeal because of his failure to comply with the time limitation for filing notice of appeal, contained in the Massachusetts Rules of Appellate Procedure. 25 Mass. App. Ct. 1001 , 1002 (1988). We granted the defendant's application for further appellate review. We agree with the Appeals Court and dismiss the defendant's appeal.

The outcome of this case is controlled by Commonwealth v. Cowie, ante 119 (1988), decided today. In each case the defendant's trial counsel failed to file a timely notice of appeal and thus the defendant lost his right to a direct appeal of his conviction. The central issue in both cases is whether, under Evitts v. Lucey, 469 U.S. 387 (1985), due process requires that the defendant's direct appeal be reinstated. Because we concluded in Commonwealth v. Cowie, supra at 123, that a motion for a new trial under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), and a subsequent appeal from an adverse ruling thereon, fully comports with due process, we dismiss the defendant's appeal.

So ordered.


404 Mass. 1002

February 16, 1989

Thomas F. Sullivan for the plaintiff.

Lisa A. Levy, Assistant Attorney General, for the defendant.

The plaintiff Glynn appeals from a summary judgment for the defendant entered on order of a single justice of this court. We affirm the judgment.

In 1964, pursuant to G. L. c. 221, Section 5, as amended through St. 1950, c. 324, the then clerk of Suffolk County Superior Court for Criminal Business appointed Glynn, who had been a court employee since 1956, to the position of assistant clerk. It is agreed, for the purposes of this case, that Glynn has tenure in his position as assistant clerk. Although the defendant has terminated Glynn's compensation, the defendant has not removed Glynn from his position as an assistant clerk.

The heart of Glynn's grievance is that he accumulated vacation and sick leave benefits from 1956 into 1969, at which time the defendant's predecessor implemented a policy purportedly limiting Glynn's accumulated sick leave benefits but allowing certain sick days to be "banked." At various times from 1976 to 1985, Glynn was absent from work due to illness. The defendant concluded in December, 1984, that Glynn, who was not then working, had exhausted all his sick leave and vacation days under the 1969 plan and that Glynn owed the Commonwealth 122 days. On January 16, 1985, acting pursuant to the personnel manual governing nonunion employees,

Page 1003

the defendant ordered that Glynn's salary be discontinued as long as Glynn continued to be absent from work. These facts are properly supported by affidavit based on the records maintained by the office of the clerk and Glynn does not refute them by affidavit or otherwise pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974). There is no material fact in dispute.

Glynn claims that he had a property interest in his accumulated benefits within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution that could not lawfully be taken away by the 1969 sick leave and vacation time policy established by the defendant's predecessor. The basic question is whether under the law of the Commonwealth Glynn had a protected property interest in his accumulated benefits. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Martin v. School Comm. of Natick, 393 Mass. 430, 434 (1984), cert. denied sub nom. Martin v. Crain, 471 U.S. 1077, S.C., 395 Mass. 461 (1985).

No statute or contract grants Glynn a vested substantive right in the sick leave and vacation time benefits that he claims. The defendant's predecessor was authorized to regulate sick and vacation time as he did. Glynn's rights were at most an "expectancy." There was no enforceable guarantee of such future benefits that Glynn may have thought he had when the 1969 "banking" policy was adopted. See McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 782 (1975); Foley v. Springfield, 328 Mass. 59, 61 (1951). Compare Opinion of the Justices, 364 Mass. 847, 856-866 (1973) ("material expectations" arising from a contributory retirement plan). Glynn could not have had a reasonable expectation in the circumstances shown on the record that those future benefits were guaranteed. McCarthy v. Sheriff of Suffolk County, supra at 784. His job itself was not guaranteed. The fact that he has tenure makes no difference. See Martin v. School Comm. of Natick, supra at 434-435; Milne v. School Comm. of Manchester, 381 Mass. 581, 583 (1980); McCarthy v. Sheriff of Suffolk County, supra at 782.

Because Glynn had no protected property interest in his accumulated sick leave benefits, he was not entitled to notice and a hearing before his salary was terminated.

Judgment affirmed.