BOARD OF
REVIEW, OHIO BUREAU OF
EMPLOYMENT SERVICES,
APPELLANT,
vs.
ROPPO, APPELLEE
No. 38201
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA
COUNTY
401 N.E.2d 481, 61 Ohio App. 2d 220, 15 Ohio Op. 3d 363
March 1, 1979, Decided
APPEAL: Court of Appeals for Cuyahoga
County.
HEADNOTE
Unemployment compensation -- Timely appeal of denial of
benefits -- Notice must be postmarked prior to expiration of appeal
period.
SYLLABUS
An appeal of a decision of the Administrator of the Ohio Bureau of
Employment Services to the Board of Review claimed to have been
mailed prior to the expiration of the appeal period, but postmarked
after that period, does not meet the requirements of the
administrative rule which deems "filing" complete upon the
postmarked date.
COUNSEL
Mr. Q. A. Corsi, for appellant.
Mr. Thomas Weeks, for appellee.
JUDGES
DAY, J. CORRIGAN, C.J., and PRYATEL, J., concur.
AUTHOR: DAY
OPINION
{*220} This is an appeal by the Board of Review, Ohio
Bureau of Employment Services (Board or appellant) from a judgment
rendered by the Cuyahoga County Common Pleas Court.
In December 1975, James Roppo (Roppo or appellee), a mechanic,
was discharged from his job with the city of Parma. On December 31,
1975, Roppo filed a claim for unemployment benefits with the Ohio
Bureau of Employment Services.1
On January 30, 1976, the Administrator, Ohio Bureau of
Employment Services (Administrator), in a determination of
benefits, ruled that Roppo was "discharged for just cause" (R. C.
4141.29[D][2][a]), and disallowed appellee's claim for the week
ending January 3, 1976.
{*221} On February 4, 1976, appellee's attorney filed a
request for reconsideration with the Administrator. After a
predetermination fact-finding hearing the Administrator affirmed
the disallowance of January 30, 1976.
On March 3, 1976, the Administrator mailed a copy of its
decision to appellee and his attorney.
Appellee's attorney, in a letter postmarked March 18, 1976,
appealed the Administrator's reconsideration decision to the
Board.
On June 15, 1976, a hearing was held before a referee of the
Board. In a decision dated June 18, 1976, the referee denied
appellee's appeal stating that the appeal was not timely filed.
That is, the postmark did not bring the filing within the requisite
fourteen-day appeal period. The Board denied application for
further review and appellee perfected an appeal to the Court of
Common Pleas of Cuyahoga County, Ohio.
That court reversed the decision of the Board and ordered that
appellee be paid the benefits.
The Board appealed the decision of the Common Pleas Court to
this Court raising two assignments of error. The assignments are
set out in the margin.2
I.
The issue raised under the first assignment is whether
appellee's letter of appeal, mailed prior to the last day of the
appeal period, but postmarked after the period had expired, was
filed within the statutory time period provided in R.C. 4141.28
(H):
"Any interested party may appeal the administrator's decision on
reconsideration to the board and unless an appeal is filed
from such decision on reconsideration with the board within
fourteen calendar days after such decision was mailed to the last
known post office address of the appellant such decision
{*222} on reconsideration is final and benefits
shall be paid or denied in accordance therewith." (Emphasis
added.)
To support his claim, appellee's attorney testified that he
placed the letter of appeal in the mail on the evening of March 16,
1976, the day before the last day of the time
period for appeal. He further claimed that he called the Post
Office and ascertained that the letter would be picked up and
postmarked on March 17, 1976. Nevertheless, the envelope containing
appellee's appeal was delivered postmarked March 18, 1976. This was
one day after the time for appeal had expired.
The Board of Review has statutory authority to adopt rules of
procedure for the hearing and disposition of appeals. The relevant
part of R.C. 4141.06 provides:
"The board shall hear appeals arising from claims for
compensation and adopt, amend, or rescind such rules of procedure,
undertake such investigations, and take such action required for
the hearing and disposition of appeals as it deems necessary and
consistent with sections 4141.01 to 4141.46 of the Revised Code.
Such rules of procedure shall be effective as the board prescribes
and shall not be inconsistent with such sections."
In Riverdale Bd. of Education v. .
Grimm (1977), 55 Ohio App. 2d 5, the Court of Appeals
determined that a letter of appeal, postmarked on the last day of
the appeal period, had been "filed" within the meaning of R.C.
4141.28 (H).3
The Court interpreted R.C. 4141.28 (H) and 4141.28 (I). At page
8 of the opinion it was said:
"R.C. 4141.28 (I) prescribes:
"'(I) * * * appeals may be filed with the board, with the
administrator or one of his deputies, with an employee of another
state or federal agency, or with an employee of the unemployment
insurance commission of Canada charged with accepting claims. * *
*'
"Obviously, this statute is in pari materia
with R.C. 4141.28 (H) and contemplates that an appeal 'filed * * *
with the board' under R. C. 4141.28(H) is done so when filed with
{*223} any of those persons, officers or agencies set
forth in R.C. 4141.28(I), including 'with an employee of another
state or federal agency.' Reasonably depositing a letter
for postmark by an employee of the United
States Postal Service is equivalent to filing
same with an employee of a federal agency as of the time that the
postmark is affixed and that part of Rule UCr-13-01
equating postmarking with filing is consistent with the governing
statutes." (Emphasis added.)
The pivotal question in the instant appeal is the same as in
Grimm. That is, what is meant by the word
"filed"?
The Board of Review has now adopted a new administrative code
with a provision succeeding UCr-13-01(B). The new section, like its
predecessor, equates postmarking with filing:
"4146-13-01 Time of appeal; beginning of appeal period"
"(B) When Appeal, Request, or Application is deemed to be
Filed
"An appeal, or application to institute further appeal, or other
request, or application, shall be deemed to be filed with the Board
on the date of receipt, where delivered to the Board or to any of
the agencies or employees designated in 4146-5-01, by the person
himself, or his representative, agent or messenger. Filing
shall be deemed to be completed on the postmarked date appearing on
the enclosing envelope where filing is by mail." (Emphasis
added.)
It is well settled that where the right to appeal is statutory,
the mode stipulated by the statute is mandatory,
Zier v. . Bureau of Unemployment
Compensation (1949), 151 Ohio St. 123, 125;
Knoll v.
. Dudley (1969), 20 Ohio
App. 2d 339, 343, and requires strict compliance, Riverdale
Bd. of Education v. . Grimm, supra at
7.
The fact that appellee's attorney placed the appeal form in the
mail on March 16, 1976, prior to the expiration of the appeal
period does not bring him within the rule. See
Calhoun v. . Bur. of Employ.
Services (1979), Ohio App. 2d .
The trial court erred in concluding that appellee's appeal was
timely filed.
Assignment of Error No. I is well taken.
II.
Were it necessary to consider the second assignment of
{*224} error, challenging the ruling that appellee was not
discharged for just cause, it would be deemed well taken because
the merits of the discharge have not been
determined administratively. The discharge issue was not and is not
ripe for appeal to the Common Pleas Court.
However, it is unnecessary to address the issue because of the
disposition of the first assignment of error.
Reversed and final judgment entered for appellant.
Judgment reversed.
DISPOSITION
Judgment
reversed.
OPINION
FOOTNOTES
1 In his claim for benefits Roppo gave as a reason for leaving his
employer, "suspension". More specifically, he stated he was
discharged for sleeping and neglect of duty.
2 Assignment of Error No. I: "The Court of
Common Pleas erred in failing to rule that the administrative
appeal was not timely filed in accordance with Section 4141.28 (H)
O.R.C. and that appellee failed to file said appeal within the
statutory fourteen (14) calendar day period."
Assignment of Error No. II: "The Court of
Common Pleas erred in ruling that appellee was not discharged for
just cause in connection with his work and, therefore entitled to
unemployment benefits."
3 The Board of Education filed an appeal of the Administrator's
reconsideration decision. The appeal was mailed and postmarked on
June 9, 1976, the fourteenth day after the mailing of the
Administrator's decision. The letter of appeal was received on June
10, 1976, the fifteenth day after the mailing of the
Administrator's decision, Riverdale Bd. of
Education v. . Grimm, id. at 6.