George A. Van Niel, Plaintiff-Appellant,
 vs.

Board of Review, Ohio Bureau of Employment Services, et

al., Defendants-Appellees

No. 77AP-842
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
Slip Opinion
March 2, 1978

CASE STATUS: * PURSUANT TO RULE 2(G) OF THE OHIO SUPREME COURT RULES FOR THE REPORTING OF OPINIONS, UNPUBLISHED OPINIONS MAY BE CITED SUBJECT TO CERTAIN RESTRAINTS, LIMITATIONS, AND EXCEPTIONS.

 COUNSEL

 

Goldman, Giffin, Hillman & Roth, Mr. Robert E. Giffin, for Plaintiff-Appellant
Mr. William J. Brown, Attorney General, Mr. Eugene P. Nevada, Assistant, for Defendants-Appellees

 JUDGES

 

McCORMAC, J., STRAUSBAUGH and REILLY, JJ., concur.
 AUTHOR: MCCORMAC

 OPINION

 

 

 
DECISION

 

McCORMAC, J.

 

The administrator of the Ohio Bureau of Employment Services determined that appellant falsely certified that he was not working or self-employed and did not have earnings with respect to weeks ending December 13, 1975, December 20, 1975, and January 3, 1976, through February 28, 1976. The claims for these weeks were ordered cancelled and claimant was declared ineligible for twenty-two otherwise valid weekly claims filed between October 31, 1976, and October 28, 1978. Claimant was further ordered to repay $ 1,331.00 in benefits received with respect to the weeks ordered cancelled.

 

Appellant filed an appeal to the Board of Review, and on December 20, 1976, a hearing was held before a referee. On December 22, 1976, the referee mailed his decision to appellant affirming the order of the administrator. As part of that decision, the date of mailing of December 22, 1976, is indicated. Furthermore, the following language appears:

 

"An application to institute further appeal before the Board of Review may be filed by any interested party within fourteen (14) days after the date of mailing of this decision."

 

By letter dated January 3, 1977, an application to institute further appeal before the Board of Review was mailed to the Board of Review. That letter was postmarked January 6, 1977, and stamped received on January 7, 1977. The notice to institute further appeal was also stamped received January 7, 1977.

 

Appellant was notified that the Board of Review had ordered a hearing solely on the issue of the timeliness of filing the application to institute a further appeal. The evidence adduced at the hearing was that the referee's decision was mailed December 22, 1976, and received at approximately 11:00 a.m. on December 24, 1976. The attorney for claimant dictated the notice of appeal on December 31, 1976. On January 3, 1977, the appeal was typed and signed and returned to the attorney's secretary for deposit in the mail. The secretary testified that she placed the letter in the mail at the Grove City Post Office the night of January 3, 1977. As previously stated, the envelope is stamped January 6, 1977, by the post office and according to the Board of Review was received by that day, although the letter, the envelope, and the enclosure were stamped received early in the morning of January 7, 1977.>

 

The Board of Review found that January 5, 1977, was the last day for filing a further appeal before the board and that the fourteen-day period is jurisdictional. Thus, the board found that they had acquired no jurisdiction to determine the merits of the case and dismissed the appeal.

 

From the decision of the Board of Review, an appeal was instituted with the Franklin County Common Pleas Court who affirmed the board.

 

From the judgment of the Common Pleas Court, an appeal has been taken to this court, asserting the following assignments of error:

 

1. "The Court of Common Pleas erred in overruling appellant's claim that the decision was against the manifest weight of the evidence and contrary to law."

 

2. "The Court of Common Pleas erred in finding that appellant made a fraudulent misrepresentation with the intent to obtain benefits to which he was not entitled within the meaning of Ohio Revised Code Section 4141.35(A)."

 

3. "The Court of Common Pleas erred in overruling appellant's claim that his due process rights as guaranteed under the Federal and State Constitution were violated."

 

4. "The Court of Common Pleas erred in holding that appellant's appeal to the Board of Review was untimely."

 

The Board of Review considered only the question of their jurisdiction to hear the appeal and did not consider errors relating to the merits of the matter which are set forth in assignments of error one through three. Those assignments of error will not be considered by this court, as, if the Board's decision is reversed, the case would be remanded to the Board of Review for their initial determination as to the merits of the appeal. Hence, assignments of error one through three are overruled.

 

R.C. 4141.28(L), pertaining to procedure for appeal, provides as follows:

 

"(L) All interested parties shall be notified of the referee's decision which shall include the reasons therefor, which decision shall become final unless, within fourteen days after the decision was mailed to the last known post office address of such parties, the board on its own motion removes or transfers such claim to itself or, an application to institute a further appeal before the board is filed by any interested party and such appeal is allowed by the board."

 

The evidence supports the fact that the decision of the referee was mailed on December 22, 1976, and that the appeal of the claimant was not received by the Board of Review until January 6, 1977.

 

R.C. 1.14 provides as follows in regard to computation of time:

 

"The time within which an act is required by law to be done shall be computed by excluding the first and including the last day; except that when the last day falls on Sunday or a legal holiday, then the act may be done on the next succeeding day which is not a Sunday or a legal holiday.

 

"When a public office in which an act, required by law, is to be performed is closed to the public for the entire day which constitutes the last day for doing such act or before its usual closing time on such day, then such act may be performed on the next succeeding day which is not a Sunday or a legal holiday as defined in this section."

 

By the computation required by R.C. 1.14, the last day for filing the appeal fell on January 5, 1977, which day was a Wendesday and not a legal holiday.

 

R.C. 4141.28(L) is specific in providing that the time for the commencement of the fourteen-day period allowed for appeal is on the date that the decision was mailed and that the final time is on the day that the appeal is filed. If the claimant uses the U.S. mail for transmitting the appeal, any delay is the responsibility of the claimant. It is the date that the letter is received by the Board of Review that is the filing date. In other words, the time when the notice of appeal is placed into the mail by claimant is immaterial to the determination of whether the time provided by statute has elapsed.

 

The time limit provision set forth in R.C. 4141.28(L) is mandatory and jurisdictional. See Knoll v. Dudley (1969), 20 Ohio App. 2d 339, which so construed R.C. 4141.28(L), although the time periods were amended thereafter. The Supreme Court has further interpreted another provision providing for an appeal under R.C. 4141.28 as being mandatory and jurisdictional. See Todd v. Garnes (1975), 44 Ohio St. 2d 56.

 

The Board of Review correctly determined that they had no jurisdiction over the appeal since the appeal was not timely filed.

 

Appellant's fourth assignment of error is overruled.

 DISPOSITION
 

Appellant's assignments of error are overruled and the judgment of the trial court is affirmed