Maine State Employees Association v. City of Lewiston and Lewiston School
Committee, MLRB Nos. 92-17 & -18 (Sept. 11, 1992), Order Denying Respondents'
Motion to Dismiss, No. CV-92-400 (Me. Super. Ct., And. Cty., Nov. 30, 1992), 
Order Granting Motion for Temporary Restraining Order, Nos. CV-92-480 & -400
(Jan. 21, 1993), Decision Vacating Board Order, Nos. CV-92-400 & -480 (Feb. 25, 
1993), Law Court Decision Vacating Superior Court Decision for Lack of 
Jurisdiction, sub nom, City of Lewiston v. Maine State Employees Association,
638 A.2d 739 (Me. 1994)

MAINE SUPREME JUDICIAL COURT                          Reporter of Decisions
						      Decision No. 6815
						      Law Docket No. And-93-95

			     CITY OF LEWISTON, et al.



			       Argued November 1, 1993
			       Decided March 16, 1994

       RUDMAN, and DANA, JJ.


     The Maine State Employees Association and the Maine Labor Relations
Board (referred to individually as "MSEA" and "Board," and collectively as
"appellants") appeal the order of the Superior Court (Androscoggin County,
Delahanty, C.J.), which vacated a decision of the Board.  Because the City of
Lewiston and the Lewiston School Committee (the "Employers") did not file
their appeal from the Board's decision within the fifteen-day period
prescribed by 26 M.R.S.A.  968(5)(F) (Supp. 1993),[fn]1 we vacate the
judgment and remand with instructions to dismiss the appeal.

			   I.  Facts and Procedure

     The Employers are subject to the provisions of the Municipal Public
Employees Labor Relations Law, 26 M.R.S.A.  961-979 (1988 & Supp.
1993), which requires them to bargain collectively with their employees'
agent, the MSEA.  Id. at  964(1)(E) (1988).  The Employers and the MSEA

1.  Title 26 M.R.S.A.  968(5)(F) (Supp. 1993) provides in pertinent part as follows:

	  Either party may seek a review by the Superior Court ... of a decision or
	  order of the Maine Labor Relations Board by filing a complaint in
	  accordance with the Maine Rules of Civil Procedure, Rule 80C, if the
	  complaint is filed within 15 days of the date of issuance of the decision.


were parties to a two-year collective bargaining agreement effective July 1,
1989 to June 30, 1991 (the "Agreement"), which provided that employees'
wages would be subject to periodic step increases.  After the Agreement
expired, without a successor agreement in place, the Employers froze the
wages at the rates in existence as of June 30, 1991.

     In taking this action, the Employers adhered to the Board's "static
status quo" rule for wages, adopted in Easton Teachers Ass'n v. Easton
School Comm., No. 79-14 (Me.L.R.B. Mar. 13, 1979).  Pursuant to the Easton
rule, after a collective bargaining agreement expired with no new agreement
in place, public employers could pay wages at the rates in existence as of the
expiration date, unless the collective bargaining agreement provided
otherwise.  Three months after the Agreement expired, the Board reversed
Easton, and adopted the "dynamic status quo" doctrine, which required a
public employer, in the absence of a new collective bargaining agreement, to
pay wages in accordance with the wage plan of the expired agreement,
including any scheduled step increases.  Auburn School Adm'rs Ass'n v.
Auburn School Comm., No. 91-19 (Me.L.R.B. Oct. 8, 1991), consolidated
appeals dismissed per stipulation, No. CV-91-459 XCV-91-464 (Me. Super.
Ct., And. Cty., Apr. 24, 1992).

     In December 1991, the MSEA filed prohibited practice complaints
with the Board, alleging that the Employers failed to negotiate in good faith
when they "unilaterally suspended" the step increases.  Applying the new
Auburn rule to the facts stipulated by the parties, the Board issued a decision
on September 11, 1992, finding that the Employers' suspension of the


Agreement's wage plan violated 26 M.R.S.A.  964(1) (1988).[fn]2  The Board
ordered the Employers to pay all step increases due the employees during
the contractual hiatus and interest on amounts that remained unpaid after
October 11, 1992.

     Although the first page of the Board's order stated that it was issued
on September 11, 1992, the final page omitted the date.  The order advised
the parties of their right to appeal, and instructed them to "file a complaint
with the Superior Court within fifteen (15) days of the date of this decision."
On September 14, the Board issued the order again, and filled in the
September 11 date on the last page.

     Because the fifteen-day deadline fell on Saturday, September 26, the
complaint was due on Monday, September 28.  On the preceding Friday, the
Employers' counsel mailed a petition for review of the Board's decision to
the Superior Court (Androscoggin County).  Although the United States Post
Office "service commitment" specifies a delivery period of one day for first
class mail between Lewiston (the location of counsel's office) and Auburn
(the location of the Superior Court), the clerk's office stamped the petition
"RECEIVED SEP 29, 1992."  The record contains no evidence to explain
the delay.

     Because the petition was not filed within the fifteen-day period
prescribed by 26 M.R.S.A.  968(5)(F), the MSEA filed a motion to dismiss
for lack of jurisdiction.  In response, the Employers filed a motion

2.  Title 26 M.R.S.A.  964(1) (1988) provides that a public employer is prohibited from
"[r]efusing to bargain collectively with the bargaining agent of its employees."


requesting that the Superior Court accept the petition as having been filed
on September 28, 1992 or, in the alternative, to grant a one-day
enlargement of time after-the-fact.  The Superior Court (Cole, J.) granted
the motion for enlargement of time pursuant to M.R. Civ. P. 6(b), finding that
the reliance of the Employers' counsel on the service standards of the post
office, "followed by a failure to telephone the clerk's office to double-check
on the clerk's timely receipt of the petition," was excusable neglect.

     After a hearing on the merits, the Superior Court (Delahanty, C.J.)
vacated the Board's order.  The court concluded that the Board exceeded its
authority by abandoning the static status quo doctrine and by ordering the
Employers to pay the step increases.  The MSEA and the Board filed this
timely appeal.

			II. Authority to Entertain Appeal

     All of the parties to this appeal urge us to reach the issue of the
Board's authority to adopt the dynamic status quo doctrine.  Before we can
reach this issue, however, we must first determine whether the Superior
Court had the authority to entertain the appeal.

     Section 968(5)(F) provides that parties may appeal a Board decision to
the Superior Court provided they file a complaint "within 15 days of the
date of issuance of the decision."  The appellants argue that the Employers'
untimely filing of the petition for review deprived the court of the power to
entertain the appeal.  The appellants further argue that the court lacked
authority to grant the Employers' motion for enlargement of time pursuant
to M.R. Civ. P. 6(b).  We agree.

     In Reed v. Halperin, 393 A.2d 160, 162 (Me. 1978), we held that
statutory periods of appeal are not subject to a court-ordered enlargement of
time.  See also Brown v. State, Dep't of Manpower Affairs, 426 A.2d 880,
887-888 (Me. 1981) ("judicial enlargement of a statutorily provided period
of appeal is not possible").  If a party does not file an appeal within the
statutory period, the Superior Court has no legal power to entertain the

     The Employers raise four arguments to overcome this deficiency, none
of which is convincing.  They first argue that the Superior Court acted
within its discretion by granting the one-day extension.  They assert that the
court properly found that their counsel's reliance on the post office was
"excusable neglect," pursuant to M.R. Civ. P. 6(b).  In light of Reed and
Brown, this argument has no merit.

     The Employers then argue that the Superior Court could have
concluded that the Board's decision was actually issued on September 14,
the day on which the Board mailed a corrected copy to the parties.  The
Employers maintain that "[i]t would be unfair to litigants to measure an
appeal period from the date that an incomplete administrative decision was
issued, especially when the agency subsequently issues a complete and
conforming decision."  The Employers cannot escape the fact that the front
page of the original decision clearly stated that it was issued on September
11. 1992.  The fact that the Board later filled in the blank line with
information that had already been made available should not affect when the
statutory appeal period begins to run.  As the Supreme Court of New Jersey


held in City of Newark v. Fischer, 70 A.2d 733, 735 (N.J. 1950):

	  The general rule is that where a judgment is
	  amended in a material and substantial respect the
	  time within which an appeal from such
	  determination may be taken begins to run from the
	  date of the amendment, but where an amendment
	  relates solely to the correction of a clerical or formal
	  error in a judgment it does not toll the time for

See also 2 Am. Jur. 2d Administrative Law  544 (1962) ("where an
amendment relates solely to the correction of a clerical or a formal error in
the judgment, the appeal time is not extended but is computed from the
date of the original judgment"); cf. Packard v. Whitten, 274 A.2d 169, 174
(Me. 1971) (where the trial court's amended judgment does not affect the
original judgment, the appeal period runs from the entry of the original

     The Employers further argue that the fifteen-day time period could
run from the date of service, as opposed to the date of issuance.  See Town
of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Ass'n, 461
A.2d 1054, 1055-1056 (Me. 1983) (time period for appealing Board
decisions runs from the date of service and, if service is by mail, three days
is added to the time period pursuant to M.R. Civ. P. 6(d)).  As the Employers
acknowledge, however, section 968(5)(F) has been amended since the Old
Orchard Beach decision.  The prior version provided that a complaint must
be filed "within 15 days of the effective date of the decision," but did not
define "effective date."  We concluded that "effective date" meant the date
of service.  Id. at 1055-1056.  The current version of section 968(5)(F)


provides that the complaint must be filed "within 15 days of the date of
issuance of the decision," thus rendering Old Orchard Beach inapposite to
the present case.  The three-day extension for mailing provided for in M.R.
Civ. P. 6(d) also does not apply, since the Employers were required to file
their appeal from the date of issuance, not the date of service.

     Finally, the Employers argue that the Superior Court could have
"ordered that the Petition be deemed accepted by the Clerk's office" on
September 28, 1992.  Under this analysis, the court could have made a
finding of fact that, in light of the service standards of the post office, the
petition was timely filed with the clerk's office.  If the court had indeed
made such a finding, it would be adopting a rule that mailing a pleading
"reasonably" prior to the deadline is the equivalent of filing it in the clerk's
office.  Such a finding would contradict section 968(5)(F), which clearly
provides that the petition for review must be filed within fifteen days of the
Board's decision.  If the Legislature had intended for mailing reasonably in
advance of the deadline to suffice, it could have so provided.

     Although the Employers and their counsel may have reasonably
believed that the petition would be timely filed, it was one day late.  Even if
this late filing resulted from excusable neglect, the result is the same.  The
Superior Court had no authority to grant a one-day extension pursuant to
M.R. Civ. P. 6(b), nor did it have the authority over the Employers' appeal.
Its judgment reversing the Board's decision must therefore be vacated.


     The entry is:
			    Judgment vacated. Remanded to
			    the Superior Court with
			    instructions to dismiss the appeal.
All concurring.


Sitting as the Law Court                              Docket No. And-93-95

CITY OF LEWISTON, et al.   )
	  v.               )             MANDATE     
ASSOCIATION, et al.        )

     The above-captioned cause having been brought before this Court,
sitting as the Law Court, from the Superior Court in the County of
Androscoggin; and it having been heard and maturely considered;
     It is ORDERED that the Clerk of the Law Court enter upon the Law
Court docket and certify to the Clerk of the Superior Court in the County of
Androscoggin the following mandate therein:
			      Judgment vacated. Remanded to
			      the Superior Court with
			      instructions to dismiss the appeal.

Dated:  March 16, 1994

				       For the Court,

				       Howard H. Dana, Jr.
				       Associate Justice