385 Mass. 753 | Mass. | 1982
The plaintiff was denied benefits by the board of review of the Division of Employment Security (board), and on May 8, 1980, she petitioned the District Court for review. The Director of the Division of Employment Security (director) and the present defendant, A-l Sales, Inc. (A-l), were named as defendants. The director filed a timely answer. A-l did not file an appearance or an answer. A-l does not claim inadequate notice of Caldwell’s petition. At a November 19, 1980, hearing in the District Court, the judge asked A-l’s counsel if he intended to file an answer and counsel responded that he would like to file an appearance but that he did not intend to file an answer. The judge permitted counsel to file an appearance as “amicus curiae,” giving counsel “a less than formal role in the case.”
General Laws c. 151A, § 42, as amended through St. 1978, c. 478, § 79, provides that a person aggrieved by a decision of the board may obtain judicial review by filing a petition therefor in “the district court . . . and in such proceeding every other party to the proceeding before the board shall be made a party respondent. . . . Each respondent shall file an answer within twenty-eight days after receipt of the petition.” Section 42 further provides that “[ejxcept as otherwise provided in this section, such a proceeding shall be governed by the Rules of Civil Procedure for the district courts and the municipal court of the City of Boston. . . . An appeal may be taken from the decision of the single justice of the district court directly to the supreme judicial court.”
The rules of civil procedure for the District Courts and the Municipal Court of the city of Boston do not govern the time for filing an answer in employment security cases because c. 151 A, § 42, provides otherwise. The statute alone establishes the time period for filing an answer, and it contains no provision authorizing a judge to extend this period for over thirteen months. Even if the statute were interpreted to make the time for answering subject to the aforementioned rules, there is nothing in the rules authorizing an enlargement of the time required by a statute for
In Bowmar Instrument Corp. v. Director of the Div. of Employment Security, 346 Mass. 53 (1963), an employer petitioned a District Court for review of a decision of the board of review of the Division of Employment Security. Although properly served with an order of notice and a copy of the petition, ninety-six employees failed to file an appearance or an answer. Rule 1 of the Rules of the District Courts (1952),
Appeal dismissed.
See now Dist. Mun. Cts. R. Civ. P. 140 (2) (1975).
Our holding is supported by Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667 (1975), in which we considered the standing of parties to appeal directly to this court pursuant to G. L. c. 25, § 5, from a decision of the Department of Public Utilities. We said in that case that “[ojnly where the parties have demonstrated the required participation in the administrative proceeding and have presented an orderly record before the agency have they properly preserved their appellate rights.” Id. at 672.