Mason v. Dir. of the Dep't of Unemployment Assistance

96 Mass.App.Ct. 1115

140 N.E.3d 938 (Table)

Raymond R. MASON

v.DIRECTOR OF the DEPARTMENT OF UNEMPLOYMENT ASSISTANCE & another.¹

19-P-198

Appeals Court of Massachusetts.

Entered: January 7, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Raymond R. Mason, was employed by defendant Central Mass Transit Management (CMTM) as a van driver. After Mason's employment was terminated for violating a policy prohibiting using a cell phone while driving, he unsuccessfully sought unemployment benefits. Although Mason initially prevailed, CMTM appealed, and a review examiner at the Department of Unemployment Assistance reversed the original determination of Mason's eligibility. Mason then appealed to the Department of Unemployment Assistance board of review, which denied his application for review. A District Court judge upheld that decision, with judgment entering on May 22, 2018. On May 31, 2018, Mason filed a motion for reconsideration, which was denied on July 19, 2018. On September 24, 2018, that is, 125 days after judgment had entered and 116 days after the motion for reconsideration had been filed, Mason filed a notice of appeal from the judgment.

On October 9, 2018, CMTM filed a motion to dismiss Mason's appeal as untimely. On October 16, 2018, Mason filed a motion to file a late notice of appeal, which he later amended. A District Court judge denied Mason's motions to file a late notice of appeal, and allowed CMTM's motion to dismiss the appeal. This appeal followed.³ We affirm.

Under Mass. R. A. P. 4 (c), as amended, 378 Mass. 928 (1979),⁴ a trial court judge may extend the time for filing a notice of appeal upon a showing of excusable neglect. Whether to allow such an extension, and whether to dismiss an untimely appeal, are both matters we typically review for an abuse of discretion. See Dattoli v. Hale Hosp., 400 Mass. 175, 177 (1987) ; Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 715 (2019).

According to Mass. R. A. P. 4 (c), extensions are "not to exceed [thirty] days from the expiration of the time otherwise prescribed by this rule." Here, however, Mason's deadline for filing his notice of appeal was prescribed, not by Mass. R. A. P. 4 (c), but by statute. Specifically, G. L. c. 151A, § 42, governs appeals from a District Court judgment in an unemployment insurance benefits case and requires that the "[n]otice of appeal shall be filed in the office of the clerk of the district court within thirty days after entry of the judgment by the clerk." CMTM argues that because the time for appeal is prescribed by statute, the motion judge was without discretion to deny CMTM's motion to dismiss or to allow Mason's motion to late file. See Friedman v. Board of Registration in Med., 414 Mass. 663, 665 (1993) (statutory time period "cannot be overridden by a contrary rule of court when the manner and time for effective filing of an appeal are delineated in the statute"); DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 169 (2018) (appeal period set by statute cannot be enlarged). While some argument can nevertheless be made that the appeal period set forth in § 42 can be extended where the putative appellant has complied with the procedures set forth in the appellate rules,⁵ we need not resolve the interplay between the statute and the appellate rules here, where Mason has failed to satisfy the requirements of either.

Assuming, arguendo, that Mass. R. A. P. 4 (c) applies, Mason's motion for reconsideration would have tolled the time in which he could take an appeal until that motion was denied on July 19, 2018. See Mass. R. A. P. 4 (a) (3), as amended, 464 Mass. 1601 (2013). Under rule 4 (c), Mason then would have had thirty days from that date -- through August 20, 2018⁶ -- to file his notice of appeal.⁷ See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013) (time for appeal runs from entry of order denying relief under Mass. R. Civ. P. 59, 365 Mass. 827 [1974], or Mass. R. Civ. P. 60, 365 Mass. 828 [1974]). A District Court judge would then have been permitted to expand the time for filing the notice by -- at most -- another thirty days, that is, through September 19, 2018. See Mass. R. A. P. 4 (c). Mason's notice of appeal was not, however, filed until September 24, 2018. See Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 553 (2012) ("the limitation in rule 4 is a limitation on the length of the extension of time that the judge is empowered to grant for filing the notice of appeal").⁸ Any discretion afforded the motion judge by Mass. R. A. P. 4 (c) to expand the deadline for Mason's notice of appeal did not extend to that late date. Therefore, even under the most generous interpretation of the appellate rules, the District Court judge would have lacked authority to allow Mason's late-filed appeal.

Moreover, Mason's current appeal fails for other reasons. Despite the fact that the subject matter of the current appeal is limited to the timeliness of Mason's original appeal and whether the judge abused her discretion in denying his motions to file a late appeal, Mason's opening brief addresses only the underlying merits of the appeal that was dismissed as untimely.⁹ Thus, for example, Mason's brief does nothing to explain why his failure to file a timely notice of appeal constituted "excusable neglect." Mass. R. A. P. 4 (c) (time for filing notice of appeal may be expanded "[u]pon a showing of excusable neglect"). See Shaev v. Alvord, 66 Mass. App. Ct. 910, 911 (2006), quoting Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981) ("The concept of excusable neglect is meant to apply to circumstances that are unique or extraordinary, not to any ‘garden-variety oversight’ "). Arguments that he had a right to pursue his original untimely appeal have therefore been waived. See Henderson v. Commissioners of Barnstable County, 49 Mass. App. Ct. 455, 459 (2000). Even in his reply brief, Mason fails to address the timeliness issues, at least with any contentions that rise to the level of sufficient appellate argument. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).

To the extent that Mason's reply brief is taken to suggest that Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979), allows him to prosecute a late appeal upon a showing of "good cause" for the delay, we note that his motion seeking to invoke that rule was denied by the single justice and no appeal of her order was taken by him. The instant appeal is from the District Court judgment dismissing Mason's appeal and from the District Court order denying his motions to file a late appeal, not from any order by the single justice. In any event, just as Mason has not demonstrated excusable neglect, he has not shown good cause for his failure to file a timely appeal.

Because Mason's notice of appeal could not be considered timely even under the relaxed timing available under Mass. R. A. P. 4 (c), and because Mason has not provided sufficient appellate argument on how he demonstrated excusable neglect, we affirm the order allowing CMTM's motion to dismiss Mason's appeal and the order denying Mason's motion and amended motion to file a late notice of appeal.

So ordered.

Affirmed

1 Central Mass Transit Management.

3 After his appeal was dismissed, Mason filed a motion with the single justice session of this court, seeking an order allowing him to file a late notice of appeal. On December 27, 2018, the single justice declared Mason's motion moot based on the dismissal of his appeal, but ordered the District Court clerk's office to treat his motion as a notice of appeal from both the judgment of dismissal and the order denying...