NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-932
TOWN OF SALISBURY
vs.
GRACEMARIE TOMASELLI & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se appellants appeal from a single justice order
denying their motion to late docket their appeal and from a
single justice order denying a motion to reconsider that initial
denial. There is no dispute that the appellants timely received
from the District Court Department a notice dated July 15, 2021,
reading in full, "The parties are hereby NOTIFIED that the
RECORD IS FULLY ASSEMBLED in the subject case in accordance with
the Massachusetts Rules of Appellate Procedure (M.R.A.P. Rule
9)." They failed to docket their appeal within the fourteen
days provided by Mass. R. A. P. 10 (a) (1), as appearing in 481
Mass. 1618 (2019).
1 Joyce Tomaselli.
The appellants subsequently, after the deadline under rule
10 had passed, received a notice from this court that that
notice of assembly of the record was received by the court on
July 16, 2021. Our notice stated that, pursuant to Mass.
R. A. P. 10 (a) (1), each appellant has fourteen days from
receipt of the notice of assembly to docket the appeal in the
Appeals Court by paying the required entry fee or moving for
waiver of the fee on grounds of indigency. Our notice stated
that as of August 18, 2021, no appellant had entered the appeal,
pursuant to Mass. R. A. P. 10 (a) (1). Our notice also stated
that if an appellant wished to pursue the appeal, a motion had
to be filed before the single justice for leave to docket the
appeal late. The appellants filed such a motion.
In cases in which an appellant fails to docket a civil
appeal in a timely manner, pursuant to Mass.
R. A. P. 10 (a) (1), as a threshold matter, the appellant must
demonstrate "that the delay was caused by excusable neglect."
Howard v. Boston Water and Sewer Comm'n, 96 Mass. App. Ct. 119,
122 (2019). In their motion, the appellants asserted that they
"did not know about M.R.A.P. Rule 9(e) and Rule 10(a)(1) until
we received the Appeals Court notice." They also asserted that
they had contacted the Appellate Division of the District Court
to obtain the transcripts of the hearing.
2
With respect to this latter assertion, their motion
included no explanation of how this was relevant to their
failure to docket the appeal timely. With respect to the first
assertion, we cannot properly say that it was an abuse of
discretion for the single justice to conclude that lack of
knowledge of the rules, even on the part of a pro se appellant,
does not amount to excusable neglect. See Neuwirth v. Neuwirth,
85 Mass. App. Ct. 248, 257 (2014) (good faith misunderstanding
of pro se appellant's obligation under rules does not constitute
excusable neglect). The appellants' emergency motion for
reconsideration of the single justice's order did not present
any additional reason for the failure timely to docket the
appeal, and, therefore, again, we cannot properly conclude that
the single justice's denial of that motion was an abuse of
discretion.
Before us the appellants point out that the notice of
assembly of the record did not refer to rule 10, but only to
rule 9. The appellants argue that the notices sent by other
courts of the assembly of the record make reference to rule 10,
and that, in omitting to mention the rule, the District Court
Department's form notice failed to provide them proper notice.
They have included as exhibits form notices of assembly of the
record from several courts that do indeed state that action must
be taken within a number of days identified in the rule; indeed,
3
they have included the notice of assembly of the record provided
by this court in this appeal from the single justice orders, and
it, too, cites rule 10.
We cannot say that there is no force to this argument, but
as it was not raised before the single justice either in the
original motion to late docket the appeal or in the motion for
reconsideration, it is not properly before us. Therefore, we
may not address it, and we express no opinion on its ultimate
merit. The orders of the single justice are affirmed.
Orders denying motion to late
docket the appeal and for
reconsideration affirmed.
By the Court (Rubin,
Englander & Hand, JJ.2),
Clerk
Entered: March 17, 2023.
2 The panelists are listed in order of seniority.
4