EDWARD R. PIERCE
HANSEN ENGINEERING & MACHINERY CO., INC., & another.
Heard: May 6, 2019.
action commenced in the Superior Court Department on
June 16, 2014.
case was tried before Timothy Q. Feeley, J.; motions for a
new trial or remittitur and to extend the time for filing an
appeal were considered by him.
A. Kiernan (Robert E. Koosa also present) for the defendants.
P. Wilton for the plaintiff.
Present: Agnes, Shin, & Wendlandt, JJ.
appeal, we reaffirm that garden variety miscommunication
between a party's lawyers, each of whom purportedly
believed in "good faith" that the other would file
the notice of appeal, fails to meet the showing of
"excusable neglect" required under Mass. R. A. P. 4
(c), as amended, 378 Mass. 928 (1979),  to extend the time
for filing the notice of appeal. Accordingly, we dismiss the
appeal as untimely.
plaintiff, Edward R. Pierce, fell while maneuvering a pallet
jack, on which he was carrying an 800-pound freight, from his
delivery truck over a dock plate and onto the loading dock of
facilities in Danvers operated by the defendants, Hansen
Engineering and Machinery Co., Inc., and Hansen Aerospace
Laboratories, Inc. The fall aggravated Pierce's hip
osteoarthritis and eventually required him to undergo total
hip replacement surgery. Pierce has not regained full use of
his hip and was unable to resume work.
filed this personal injury action against the defendants,
alleging that the defendants' negligent failure to
maintain the dock plate -- the mechanism that bridged the gap
between a delivery truck's trailer and the loading dock
-- caused his injuries. At the jury trial, he presented
evidence that the defendants failed to pursue the periodic,
regular maintenance schedule that was recommended by the dock
plate manufacturer's owner's manual. Instead, the
defendants maintained the dock plate only after defects in
its operation were reported and required repair. The history
of these repairs showed that defects in the dock plate's
operation occurred about twice annually and that, on at least
one prior occasion, the service call noted the "dock
[was] not staying down in below grade position" because
of a worn ratchet bar which otherwise functioned to hold down
the dock plate. Pierce's technical expert opined that, as
a result of the failure to employ the recommended maintenance
schedule, components of the dock plate had become worn over
time, causing them to fail and allowing the dock plate to
spring up as Pierce approached it with the 800-pound freight.
Consistent with the expert's opinion, Pierce testified
that, after his fall, one of the defendants' employees
admitted that there had been problems with the dock plate
"for some time."
jury found the defendants were liable for Pierce's
injuries. Final judgment entered on December 26, 2017. The
defendants timely moved for a new trial or alternatively, for
a remittitur on December 29, 2017. The judge's denial of
the motion was entered on February 12, 2018, which commenced
the thirty-day period for filing a notice of appeal pursuant
to Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013).
defendants did not file the notice of appeal on or before
March 14, 2018 -- the deadline for doing so. Instead, on
March 22, 2018 (eight days after the deadline), the
defendants filed a motion to extend the time to file a notice
of appeal, pursuant to Mass. R. A. P. 4 (c). The judge
allowed the defendants' motion on March 27, 2018. The
defendant subsequently filed a late notice of appeal on April
2, 2018 -- nineteen days after the March 14, 2018 deadline
and forty-nine days after the denial of defendants'
posttrial motion. On April 12, 2018, Pierce filed a notice of
appeal from the judge's order allowing a late notice of
appeal, the defendants allege various errors by the judge,
including the judge's denial of their request for a jury
instruction on comparative negligence. In his cross appeal,
Pierce asserts that the judge abused his discretion in
allowing the ...