Opinion
October 31, 2002.
Present: Wheatley, P.J., Welshe Winslow, JJ.
Practice, Civil, Claim of appeal, Timelines of.
Opinion vacating order dismissing appeal. Motion to dismiss appeal heard in the Brookline Division by Edward R. Redd, J.
Daniel W. Goldstone for the plaintiff. Henry B. wynn, pro se.
This appeal raises the sole question whether the judge's order allowing a motion to dismiss a claim of appeal on the ground of tardiness was correct. We determine that the judge erred in his determination that the appeal was untimely. See Associated Chiropractic Services, Inc. V. Travellers Insurance Company, 1998 Mass. App. Div. 189, 190. As observed by the Appeals Court, the lack of an express grant of authority to the trial court to dismiss an appeal for failure to comply with the rules is not an impediment because courts possess inherent authority to dismiss an appeal for failure to diligently prosecute the same. Mariuca V. Papit, 31 Mass. App. Ct. 450, 544 (1991) Furthermore, recognition of this authority does not prejudice an appellant since review of such order of dismissal may be had in the appellate division. Associated Chiropractic Services, Inc. v. Travellers Insurance Company, 1998 Mass. App. Div., supra at 191.
Rule 6(a), Mass. R. Civ. P., provides the formula for computing any period of time prescribed for taking a procedural step. The day of the act or event after which the designated period of time begins to run is excluded from the count. The last day of the period to be computed is to be included unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday or legal holiday. the judgment was entered on November 21, 2001 commencing the count on November 22, 2001, the day following the entry of judgment. The tenth day occurs on Saturday, December 1, 2001. Since the following day was a Sunday, the appellant had until Monday, December 3, 2001 to file. Since the claim of appeal was filed on December 3, 2001, the appeal was filed timely.
The order dismissing the appeal is vacated and the case is remanded. The appellant shall be allowed 30 days from the date of entry of the order of the Appellate Division to designate the method of appeal, as provided in the District/Municipal Courts Ruled for Appellate Division Appeal.
So ordered.