Haddad v. Pulaski

Massachusetts Appeals Court

Haddad v. Pulaski

634 N.E.2d 914, 36 Mass. App. Ct. 964, 1994 Mass. App. LEXIS 601

CourtMassachusetts Appeals Court

DecidedJune 15, 1994

DocketNo. 92-P-1689

StatusPublished

Cited by5 cases

This text of 634 N.E.2d 914 (Haddad v. Pulaski) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Haddad v. Pulaski, 634 N.E.2d 914, 36 Mass. App. Ct. 964, 1994 Mass. App. LEXIS 601 (Mass. Ct. App. 1994).

Pincite

Opinion

The plaintiff brought this contract action in a District Court. Although the amount claimed was less than $25,000, the action might have been brought in the Superior Court subject to transfer to the District Court under G. L. c. 231, § 102C. See G. L. c. 218, § 19; U.S. Funding, Inc. of America v. Bank of Boston Corp., 28 Mass. App. Ct. 404, 407 (1990); Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court § 1.2 (2d ed. 1990). Hence the plaintiff, by the terms of G. L. c. 231, § 103, as amended through St. 1987, c. 251, § 1, waived his right to trial by jury in the Superior Court “unless within [a certain period] . . . [the] plaintiff file[d] a claim to a jury trial in the [S]uperior [CJourt with the [District [C]ourt.” This he did not do. Nevertheless, the defendant revived the plaintiffs right to a jury trial in the Superior Court [965]*965when he filed a counterclaim. See G. L. c. 231, § 103. Compare Tolson v. Shemligian, 24 Mass. App. Ct. 969, 971-972 (1987). Because the counterclaim was for less than $25,000, the plaintiff, under the provisions of the first paragraph of G. L. c. 231, § 104, was unable to remove the case for trial in the Superior Court in the first instance. The second paragraph of § 104, as amended through St. 1987, c. 251, § 2, provides that “[a] party who would have been entitled to remove the case for trial in the [S]uperior [C]ourt as hereinabove provided but for the fact that the amount of the . . . counterclaim . . . does not exceed [$25,000] shall, if he desires trial by the [S]uperior [C]ourt, file an entry fee of [$50] and bond [in the penal sum of $100] within thirty days after notice of the decision or finding.” The plaintiff filed the entry fee and deposited $100 in lieu of bond. Therefore the case was properly transferred to the Superior Court, and it was error to allow the defendant’s motion to dismiss. It is immaterial that judgment was entered for the plaintiff on the defendant’s counterclaim. The right of removal applies to the entire “action or proceeding,” § 103, not only to “the claim, counterclaim, or cross-claim” on which the right to remove is based. The conclusion we reach is in accord with that reached by the Appellate Division of the District Courts in Filippone v. Gatzumis, 1990 Mass. App. Dec. 108, 109 (1990).

Stephen A. Greenbaum, for the plaintiff, submitted a brief.

Judgment on motion to dismiss reversed.

Free access — add to your briefcase to read the full text and ask questions with AI

The plaintiff brought this contract action in a District Court. Although the amount claimed was less than $25,000, the action might have been brought in the Superior Court subject to transfer to the District Court under G. L. c. 231, § 102C. See G. L. c. 218, § 19; U.S. Funding, Inc. of America v. Bank of Boston Corp., 28 Mass. App. Ct. 404, 407 (1990); Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court § 1.2 (2d ed. 1990). Hence the plaintiff, by the terms of G. L. c. 231, § 103, as amended through St. 1987, c. 251, § 1, waived his right to trial by jury in the Superior Court “unless within [a certain period] . . . [the] plaintiff file[d] a claim to a jury trial in the [S]uperior [CJourt with the [District [C]ourt.” This he did not do. Nevertheless, the defendant revived the plaintiffs right to a jury trial in the Superior Court [965]*965when he filed a counterclaim. See G. L. c. 231, § 103. Compare Tolson v. Shemligian, 24 Mass. App. Ct. 969, 971-972 (1987). Because the counterclaim was for less than $25,000, the plaintiff, under the provisions of the first paragraph of G. L. c. 231, § 104, was unable to remove the case for trial in the Superior Court in the first instance. The second paragraph of § 104, as amended through St. 1987, c. 251, § 2, provides that “[a] party who would have been entitled to remove the case for trial in the [S]uperior [C]ourt as hereinabove provided but for the fact that the amount of the . . . counterclaim . . . does not exceed [$25,000] shall, if he desires trial by the [S]uperior [C]ourt, file an entry fee of [$50] and bond [in the penal sum of $100] within thirty days after notice of the decision or finding.” The plaintiff filed the entry fee and deposited $100 in lieu of bond. Therefore the case was properly transferred to the Superior Court, and it was error to allow the defendant’s motion to dismiss. It is immaterial that judgment was entered for the plaintiff on the defendant’s counterclaim. The right of removal applies to the entire “action or proceeding,” § 103, not only to “the claim, counterclaim, or cross-claim” on which the right to remove is based. The conclusion we reach is in accord with that reached by the Appellate Division of the District Courts in Filippone v. Gatzumis, 1990 Mass. App. Dec. 108, 109 (1990).

Stephen A. Greenbaum, for the plaintiff, submitted a brief.

Judgment on motion to dismiss reversed.

Cite This Page — Counsel Stack

Bluebook (online)

634 N.E.2d 914, 36 Mass. App. Ct. 964, 1994 Mass. App. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haddad-v-pulaski-massappct-1994.

Opinion

Related

Cite This Page — Counsel Stack