MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is an appeal from an order of a Superior Court judge that dismissed the plaintiffs appeal to this court, on the basis that the plaintiff failed to timely pay the docketing fee, as required by Mass. R. A. P. 10 (a) (1), as appearing in 481 Mass. 1618 (2019). A different judge had previously granted summary judgment in the underlying suit, which involved a claim for breach of an employment contract, and the plaintiff had filed a timely notice of appeal. Under rule 10 (a) (1), the docketing fee was to be paid “[w]ithin 14 days after receiving from the clerk of the lower court the notice of assembly of the record” (emphasis supplied). In this case, the notice of assembly of the record was mailed to plaintiffs counsel by U.S. mail on August 12, 2019. The plaintiff did not pay the docketing fee until September 2, 2019, twenty-one days after mailing. The plaintiffs argument is that plaintiffs counsel had recently moved, that he had notified the post office (but not the court) of his new address, and yet counsel did not actually “receive” the notice until August 24, thereby rendering the September 2 payment timely.
To resolve whether the plaintiffs September 2 payment was in fact tardy, there first would need to be a finding and ruling as to when the plaintiff “received” the clerks notice for purposes of the rule. If the plaintiff “received” the notice on the date he claims, or indeed, at any time after August 18, then the payment was timely; if on the other hand, the notice is deemed to have been received earlier -- e.g., at some earlier point in the process of delivering the mail to the address on file with the clerks office -- then it was not timely. Passing that issue, even if the payment came after the fourteen-day deadline in rule 10 (a) (1), under rule 10 (c) the court could dismiss the appeal only “upon a finding of inexcusable neglect.” Here, the motion judge rejected the plaintiffs arguments, and ruled that the payment was untimely, and that the tardiness was the result of inexcusable neglect.
3
The judge did not, however, make a finding as to when the plaintiff “received” the notice for purposes of the rule 10 (a) (1).
Under the circumstances, applying the language of rule 10 (a) (1) presents thorny issues of both law and fact. We do not perceive a need to resolve those issues in this case, however. In prior cases, our court has stated that “[a]lthough appellate courts ordinarily defer to a trial court judges dismissal of an appeal absent an abuse of discretion, an appellate court nevertheless remains authorized to exercise [its] own independent judgment as to what is appropriate in the circumstances of a given case” (quotations omitted). Neuwirth v. Neuwirth, 85 Mass App. Ct. 248, 263 (2014).
Here, we think the “appropriate” result is to allow the appeal to proceed. Even assuming the plaintiff would have received the notice (mailed on August 12) through the mail in the ordinary course, that notice likely would not have arrived before August 14 or August 15, meaning that in the worst case, the plaintiffs September 2 payment would have missed the fourteen-day deadline by four or five days. As noted, however, the plaintiffs counsel had just moved his office on July 31, 2019. Despite notifying the post office of the need to forward his mail, plaintiffs counsel had experienced difficulties in getting his mail properly forwarded. The plaintiff in fact asserts that the post office is responsible for the delay here, and on the facts before us that is a possibility, if not a probability.
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Our cases recognize a general policy favoring the resolution of appeals on the merits, see Broome v. Broome, 40 Mass. App. Ct. 148, 153 (1996), and in these circumstances the appeal should be allowed to go forward.
Order dismissing appeal reversed.
FOOTNOTES
3
. Among other reasons, the judge pointed out that counsel had not notified the Court of its new address as of August 12. Counsel should have done so, but for reasons discussed infra, we do not think the error necessitates a dismissal of the appeal.
4
. The affidavits in the record indicate that by August 6, 2019 -- before the courts notice was sent -- plaintiffs counsel had established a new post office box in Westport, Massachusetts, to service his new office. The post office box was established because prior to August 6, counsels mail was not being received in Westport. The record does not reveal why the notice at issue, which was mailed August 12 to counsels old address in New Bedford, was not forwarded by the post office to the newly created post office box in Westport.