ALFRED M. ZASTROW, Plaintiff-Appellee
 vs.

ALBERT G. GILES, ADMIN., OHIO BUREAU OF EMPLOYMENT SERVICES
and BOARD OF REVIEW and DR. CHARLES L. REHRIG,

Defendant-Appellants

Case No. 7-120
COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT, LAKE COUNTY
Slip Opinion
November 13, 1979

COUNSEL

For Appellee: Atty. Leo J. Talikka
For Appellants: Atty. Eugene P. Nevada

 JUDGES

Cook, J.,Dahling, P.J., Dissents, and Hofstetter, J., Concurs

 OPINION

 

 

 
Appellant, Administrator of Ohio Bureau of Employment Services, has appealed to this court from a judgment of the Common Pleas Court of Lake County reversing, on appeal, a decision of the Unemployment Compensation Board of Review which dismissed an appeal by appellee to said Board for lack of a timely filed notice of appeal.

 

Appellant has filed the following four assignments of error:

 

"I. The Common Pleas Court erred in reversing the decision of the Board of Review because the record contained sufficient evidence to establish that the claimant's appeal to the Board of Review from the Administrator's decision on reconsideration was untimely filed.

 

II. The Common Pleas Court erred in ordering the payment of benefits when that issue was not addressed by the Board of Review, and, consequently, was not before the Common Pleas Court on appeal.

 

III. The Common Pleas Court erred in ordering the case remanded to the Ohio Bureau of Employment Services because the "Trier-of-Fact" was the Unemployment Compensation Board of Review.

 

IV. The Common Pleas Court lacked subject matter jurisdiction to decide the instant case."

 

The assigned errors are well taken.

 

The major question in this appeal is whether the Common Pleas Court erred in reversing the decision of the Board of Review which dismissed the appeal for lack of a timely appeal by appellee to said Board.

 

The record from the Board of Review to the Common Pleas Court indicates the Administrator, on April 18, 1977 mailed a copy of the decision on reconsideration to the last known post office address of the claimant, appellee. The same record indicates the claimant, appellee, filed an appeal to the Board of Review by letter postmarked May 12, 1977.

 

The Board's records, forwarded to the Common Pleas Court, do not indicate appellant's alleged letter of April 20, 1977 was ever received by the Board.

 

Under the provisions of R.C. 4141.28(H), an appeal is perfected to the Board of Review when "an appeal is filed from such decision of reconsideration with the board within fourteen calendar days after such decision . . ." (emphasis added).

 

The term "filed" was defined by the Supreme Court of Ohio in Fulton, Supt. v. State, ex rel. General Motors Corp., 130 Ohio St. 494 as occurring when delivered to and received by the proper officer to be kept on file as a permanent record of his office.

 

Since the alleged letter of April 20, 1977 was never received by the Board of Review, there is nothing in the Board's records to indicate it was filed with the Board in compliance with R.C. 4141.28(H).

 

The trial court erred in determining, from the record before it, that the decision of the Board, that it had no jurisdiction of appellee's appeal from the Administrator's decision on the motion for reconsideration, was arbitrary.

 

As to the second and third assignments of error, we conclude the Common Pleas Court erred in ordering payment of benefits to the appellee and remanding the case to the Ohio Bureau of Employment Services.

 

The order appealed to the Common Pleas Court dismissed appellee's appeal to the Board of Review for failure to file a timely notice of appeal to said Board. It did not rule on the merits of appellee's appeal from the decision of the administrator on reconsideration of his claim.

 

Accordingly, the review by the Common Pleas Court, pursuant to R.C. 4141.28(O), is confined to the question of whether the notice of appeal to the Board of Review was timely filed. As to said decision of the Board of Review, the Common Pleas Court is empowered by said section of the Ohio Revised Code to find "that the decision was unlawful, unreasonable, or against the manifest weight of the evidence" and, if it so finds, the court is further empowered to "reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise the Court shall affirm such decision."

 

In the instant cause, the Court found the decision of the Board of Review was "arbitrary", which is not one of the statutory grounds on which he may review such a decision, and the Court took action, based on his finding, not authorized by the governing statute. Nor can his action be considered a "modification" of the decision appealed since the decision appealed was not a decision on the merits of appellee's claim.

 

As to the fourth assignment of error, the record indicates appellant did not serve a copy of his notice of appeal to the Common Pleas Court on the administrator.

 

R.C. 4141.28(O), in pertinent part, reads:

 

"Any interested party may within thirty days after notice of the decision of the board was mailed to the last known address of all interested parties, appeal from the decision of the board to the Common Pleas Court . . . Such appeal shall be taken within such thirty days by the appellant by filing a notice of appeal with the clerk of the court of common pleas, with the Board, and upon all appellees by registered mail to their last known post office address . . . All other interested parties before the board or the referee shall be made appellees. . ." (emphasis added)

 

As to the administrator, R.C. 4141.01(I) provides:

 

"'Interested party' means the administrator and any party to whom notice of a determination of an application for benefit rights or a claim for benefits is required to be given under Section 4141.28 of the Revised Code."

 

The Supreme Court of Ohio, in Zier v. Bureau of Unemployment Compensation, 151 Ohio St. 123, held:

 

"1. An appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed by statute. The exercise of the right conferred is conditioned upon compliance with the accompanying mandatory requirements."

 

We hold that the administrator is an interested party in an appeal to the Common Pleas Court pursuant to R.C. 4141.28(O) and must be served with a notice of appeal from decisions of the Unemployment Compensation Board of Review. Failure to serve the administrator or any other interested party to such appeal is a failure to perfect the appeal and the Common Pleas Court acquires no jurisdiction of said appeal.

 DISPOSITION
 

Judgment reversed and final judgment entered for appellants.