RUPERT MILLER & another vs. CITY OF BOSTON & another.

RUPERT MILLER & another [Note 1] vs. CITY OF BOSTON & another. [Note 2]

25 Mass. App. Ct. 997

April 28, 1988

Elizabeth A. DiLoreto for the plaintiffs.

Kathleen M. Fitzgerald, Assistant Corporation Counsel, for the city of Boston.

The plaintiffs appeal from a summary judgment entered in the Superior Court pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and 54(b), 365 Mass. 821 (1974), dismissing their action against the city of Boston (city). The plaintiffs sought to recover from the city for personal injuries and property damage incurred when the motor vehicle in which they were riding encountered a pothole. See G. L. c. 84, Section 15. The city's motion for summary judgment was made on the jurisdictional ground, see Paddock v. Brookline, 347 Mass. 230 , 231-232 (1964), that the plaintiffs failed to give timely notice to the city pursuant to G. L. c. 84, Sections 18 and 19.

The facts are not in dispute. The claimed damages were sustained by the plaintiffs on December 12, 1985. The thirty-day notice period prescribed by G. L. c. 84, Section 18, expired on January 11, 1986, a Saturday. On that day, the plaintiffs mailed notices of claim to the mayor and to the city clerk. See G. L. c. 84, Section 19. The city's offices are closed on Saturday. See Ordinances of the City of Boston c. 3, ord. 5, Section 110. The notices were received on Monday, January 13, 1986.

General Laws c. 4, Section 9, provides in pertinent part: "Except as otherwise provided, when the day or the last day for the performance of any act . . . authorized or required by statute . . . falls on Sunday or a legal holiday, the act may, unless it is specifically authorized or required to be performed on Sunday or on a legal holiday, be performed on the next succeeding business day" (emphasis supplied). General Laws c. 41, Section 110A, provides that when a city's (or town's) offices are closed on a Saturday, G. L. c. 4, Section 9, applies to the same extent as if the Saturday were a legal holiday. In this case, the last day for the giving of notice by the plaintiffs to the city was a Saturday, and the notice received by the city on the next succeeding business day, Monday, January 13, 1986, was thus timely. There is nothing in G. L. c. 84, Sections 18 or 19, which otherwise provides or which specifically authorizes or requires a contrary result. See Selig v. McCarthy, 281 Mass. 106 , 107-108 (1932); Smith v. Pasqualetto, 246 F.2d 765, 768 (1st Cir. 1957).

We note that the case was argued and decided by the Superior Court judge on the application of Mass.R.Civ.P. 6(a), 365 Mass. 747 (1974). General Laws c. 4, Section 9, was apparently not brought to the attention of the judge. Its application has been fully briefed and argued before this court and presents a question of law. The city makes no argument that we should not address the issue. We have varied the usual rule and considered the question in order to prevent possible injustice. See D'Errico v. Assessors of Woburn, 384 Mass. 301 , 305 n.7 (1981); Smith v. Pasqualetto, supra at 767-768.

Page 998

Because the answer is plain under the provisions of G. L. c. 4, Section 9, we do not reach the question of the applicability of Mass.R.Civ.P. 6(a), which provides in relevant part: "In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute or rule, . . . [t]he last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday." 365 Mass. 747 . The judge concluded that rule 6(a) had application only with respect to the service of process, pleadings, motions and orders. There is division among the Federal courts as to the effect of the cognate Fed.R.Civ.P. 6(a) on the expiration of statutes of limitation. See 2 Moore's Federal Practice par. 6.06(2) (2d ed. 1987); 4A Wright & Miller, Federal Practice and Procedure Section 1163 (2d ed. 1987). See also Smith & Zobel, Rules Practice Section 6.1 at 157 (1974).

Judgment reversed.

FOOTNOTES

[Note 1] Hilario Martinez.

[Note 2] Boston Water and Sewer Commission.