CLIFFORD L. LASKY, ET AL.,
APPELLANT,
vs.
BOARD OF REVIEW, ET AL.,
APPELLEES
No. 45073
COURT OF APPEALS, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY,
OHIO
Slip Opinion
February 17, 1983
APPEAL FROM COMMON PLEAS COURT NO.
012,671
COUNSEL
For plaintiff-appellant: Edward G.
Bohnert
For defendants-appellees: Q. Albert Corsi
JUDGES
PATTON, C.J., NAHRA, J., CONCUR.
AUTHOR: MARKUS
OPINION
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleadings and the
transcript of the evidence and the record in the Common Pleas
Court, and was submitted on briefs; and upon consideration, the
court finds no error prejudicial to the appellant and therefore the
judgment of the Common Pleas Court is affirmed. Each assignment of
error was reviewed and upon review the following disposition
made:
The common pleas court dismissed claimant's appeal from an
administrative denial of his unemployment compensation claim. In
his appeal to this court, claimant challenges the trial court's
finding that his appeal from the administrative agency was
jurisdictionally tardy.1 The two issues presented are (1) whether
the administrative agency gave proper notice of its decision to all
interested parties, so as to commence the jurisdictional time limit
for an appeal to the common pleas court, and if so (2) whether
claimant "filed" his notice of appeal with all interested parties
within that time limit. We conclude that the record sufficiently
supports the trial court's judgment, so we are obliged to
affirm.
The significant facts surrounding this controversy are largely
undisputed. The Ohio Bureau of Unemployment Services denied
claimant's application for unemployment benefits, finding that
claimant's unemployment resulted from a labor dispute and that
claimant's later earnings exceeded his weekly benefits. The board's
decision was rendered on April 17, 1980, and mailed on the same
date to claimant and his employer. The board asserts and claimant
denies that the board also mailed a copy to the administrator of
the Bureau of Unemployment Services.
Claimant filed his notice of appeal from the board's action to
the common pleas court in that court on May 14, 1980.> He then
mailed copies of that notice to the board, the administrator, and
his former employer on May 15, 1980. Neither the board nor the
administrator physically received the notice of appeal until May
29, 1980, because claimant's envelopes carried insufficient
postage, so they were returned to the sender and then remailed with
appropriate postage.
The board moved to dismiss the appeal to the common pleas court
for lack of jurisdiction, arguing that claimant failed to file his
notice of appeal with the board and other interested parties within
the thirty days allowed by R.C. 4141. 28(O). The motion was granted
on September 28, 1980. However, that ruling was vacated on December
8,1980, in response to claimant's motion for reconsideration.2
Thereafter, the board moved for further reconsideration. On
February 9, 1982, the common pleas court vacated its December 8,
1980, ruling and reinstated its September 28, 1980, order
dismissing the appeal.
I.
Claimant's first argument asserts that the trial court lacked
jurisdiction to rule on a motion to dismiss because the board
failed to notify "all interested parties" of its April 17, 1980,
decision. Of course, the trial court had jurisdiction to resolve
the dispute between the parties about the court's jurisdiction. Cf.
State, ex rel. Mansfield Tel. Co. v.
Mayer (1966), 5 Ohio St. 2d 222. In effect, claimant
really argues that the time for an appeal from the board's decision
has not yet begun to run. R.C. 4141.28(O) provides:
"(O) Any interested party may, within thirty days after
notice of the decision of the board was mailed to the last known
post office address of all interested parties, appeal from the
decision of the board to the court of common pleas of the
county wherein the appellant, if an employee, is resident or was
last employed or of the county wherein the appellant, if an
employer, is resident or has his principal place of business in
this state. Such appeal shall be taken within such thirty
days by the appellant by filing a notice of appeal with the clerk
of court of common pleas, with the board, and upon all appellees by
certified mail to their last known post office address.
Such notice of appeal shall set forth the decision appealed from
and the errors therein complained of. Proof of the filing of such
notice with the board shall be filed with the clerk. All other
interested parties before the board or the referee shall be made
appellees." (Emphasis added.)
There is no dispute that the board's decision was mailed on
April to the claimant and the claimant's employer. However, the
board must also send notice of its decision to the Administrator of
the Bureau of Employment Services before the jurisdictional time
limit for an appeal begins to run.
Fazio v. Board of Review
(Cuyahoga Co. Ct. of Appeals No. 42989, May 21, 1981), unreported.
The board's original certification of its mailings failed to
confirm that a copy of its notice had been sent to the
administrator. Perhaps that omission was the reason for the trial
court's order vacating its original dismissal.
However, the board later filed the affidavit of its acting
secretary, which stated every decision of the board was routinely
mailed to the administrator at the same time it was sent to the
claimant and the employer. The affidavit further stated that copies
of all board decisions were routinely inserted by board employees
in the administrator's file which was temporarily retained in the
board's custody, and that the two notice procedures were routinely
checked against each other to ensure compliance.
That affidavit about a routine business system which was
strictly followed creates a rebuttable presumption that it was
followed on this specific occasion.
Hitz v. Ohio Fuel Gas Co.
(1932), 43 Ohio App. 484. That presumption of mailing and
subsequent receipt can be rebutted with some evidence that the
letter was not received. Goodman v. Community Action
Against Addiction (Cuyahoga Co. Ct. of Appeals No. 44354,
Sept. 30, 1982), unreported; Simpson v. Jefferson Standard
Life Ins. Co. (C.A.6, 1972), 465 F.2d 1320. However,
unless some evidence rebuts the presumed fact, or the underlying
facts which create thepresumption, it suffices to eliminate any
genuine issue about that fact for summary judgment purposes.
Adamson v. May Co. (Cuyahoga
Co. Ct. of Appeals No. 44191, June 3, 1982), unreported.
The trial court apparently considered the evidentiary materials
filed by both parties, treating the motion to dismiss as a motion
for summary judgment. Civ. R. 12(B). The rules expressly allow this
procedure when the motion seeks dismissal for failure to state a
claim upon which relief can be granted. We believe the same
procedure is impliedly available to the trial court in considering
all motions to dismiss under Civ. R. 12(B). No objection to that
procedure was made in the trial court or in this court. Where one
party is likely to be surprised by treating the proceedings as a
summary judgment motion, notice is required. Here, the parties had
ample time to submit any further responsive evidentiary materials
pursuant to Civ. R. 56, since more than two months passed after the
board filed its motion with the critical affidavit before the court
dismissed the case; and claimant responded to the board's motion
with evidentiary materials early in that interval. See
Delisio v. Rindfleisch
(Cuyahoga Co. Ct. of Appeals No. 43458, Dec. 21, 1981), unreported;
accord Dayco Corp. v. Goodyear Tire
& Rubber Co. (C.A. 6, 1975), 523 F.2d 389.
Claimant has failed to supply any evidentiary materials which
challenge the board's affidavit that it routinely mailed such
notice to the administrator or which deny that the administrator
actually received this notice. The initial absence of a
certification that the board notified the administrator creates no
factual issue about that notice; it neither adds to nor detracts
from that possible factual issue. The trial court could have
concluded properly there was nogenuine issue that the administrator
was given the required notice, so the time to appeal from the
board's ruling began to run on April 17, 1980.
II.
Clainant next contends that the required notice of his appeal
was filed with the board and the administrator within the 30 days
allowed> by R.C. 4141.28(O), even though those notices were not
physically received within that time interval. However, numerous
decisions from this court and other appellate courts have
repeatedly held that "filing" sufficient to comply with R.C.
4141.28(O) occurs only when the notice is actually received,
E.g., Goodman v. Community Action Against
Addiction, supra ;
Fazio v. Board of Review,
supra.3
Several of these cases hold that a timely deposit in the mails
with sufficient postage does not constitute "filing" for the
purposes of R.C. 4141.28(O). At least two have expressly rejected
claimant's present argument that filing is accomplished by a
timelymailing with inadequate postage, which causes the board or
the administrator to refuse the letter within the 30-day limit,
rather than paying additional postage due to receive the notice for
filing. E.g., McGee v. Board of
Review, supra ; McAllister v.
Board of Review, supra.
The Supreme Court has insisted that statutory procedures for
perfecting an appeal from this administrative decision must be
satisfied, or the common pleas court lacks jurisdiction.
Zier v. Bureau of Unemployment
Compensation (1949), 151 Ohio St. 123, In Re Claim
of King (1980), 62 Ohio St. 2d 87. While we may sympathize
with claimant's plight, we cannot ignore the overwhelming weight of
authority which supports the trial court's action here.
Claimant's assignment of error is overruled, and the trial
court's judgment is affirmed.
It is ordered that appellee(s) recover of appellant their costs
herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this Court
directing the Common Pleas Court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
N.B. This entry is made pursuant to the third sentence of Rule
22(D), Ohio Rules of Appellate Procedure. This is an announcement
of decision (see Rule 26). Ten (10) days from the date hereof this
document will be stamped to indicate journalization, at which time
it will become the judgment and order of the court and time period
for review will begin to run.
OPINION FOOTNOTES
1 Claimant's sole assignment of error asserts:
"THE COMMON PLEAS COURT ERRED IN GRANTING APPELLEE'S MOTION TO
DISMISS."
2 The trial court may well have lacked authority to act after
its ruling on September 28, 1980, since a motion for
reconsideration is not cognizable after a final judgment in common
pleas court. Pitts v. Department of Transportation
(1981), 67 Ohio St. 2d 378. However, the order vacating the
dismissal was not void. The court had jurisdiction over all the
parties, and no party asserted a timely appeal from that order. The
court continued to act on the case with the apparent consent of all
parties.
3 See also, Oravecz v. Board of
Review (Cuyahoga Co. Ct. of Appeals No. 42836, May 14,
1981), unreported; McGee v. Board of Review
(Cuyahoga Co. Ct. of Appeals No. 42764, May 7, 1981), unreported;
Morgan v. Administrator (Warren Co. Ct. of Appeals
No. 296, Jan. 2, 1980), unreported; Siler v. Ohio
Bureau (Montgomery Co. Ct. of Appeals No. 7099, May 20,
1981), unreported; Frawley v. Int'l
Harvester (Clark Co. Ct. of Appeals No. 1534, July 2,
1981), unreported; VanTassel v.
Steenbergen Turkey Farms, Inc. (Lawrence Co. Ct. of
Appeals No. 1488, Aug. 1, 1981), unreported;
Rebber v. Nuturn Corp.
(Paulding Co. Ct. of Appeals No. 11-79-14, April 17, 1980),
unreported; DeVore v. Jolley Constr.
Co. (Adams Co. Ct. of Appeals No. 366, Dec. 10, 1979),
unreported; Epps v. Administrator (Stark Co. Ct.
of Appeals No. 5299, July 30, 1980), unreported;
VanNiel v. Board of Review
(Franklin Co. Ct. of Appeals No. 77 AP-842, March 2, 1978),
unreported; Moore v. Columbus Coated Fabrics
(Franklin Co. Ct. of Appeals No. 80 AP-122, July 29, 1980),
unreported; McAllister v. Board of Review
(Montgomery Co. Ct. of Appeals No. 7575, April 9, 1982),
unreported.