FORD MOTOR COMPANY, Appellant-Appellee

BOARD OF REVIEW, OHIO BUREAU OF EMPLOYMENT SERVICES, et

al., Appellees-Appellants

C.A. Nos. 3065, 3069
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT, LORAIN COUNTY
Slip Opinion
December 17, 1980

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT LORAIN COUNTY, OHIO, CASE NO. 84212 79

 COUNSEL

Stewart R. Jaffy and John F. Livorno, Attys. at Law
Thomas G. Herman, Atty. at Law
William J. Brown, Atty. General

 JUDGES

MAHONEY, J., BELL, P.J., VICTOR, J., CONCUR
 AUTHOR: MAHONEY

 OPINION

 

 

 
DECISION AND JOURNAL ENTRY

 

This cause was heard October 22, 1980, upon the record in the trial court, including the transcript of proceedings, and the briefs. It was argued by counsel for the parties and the matter was submitted to the court. We have reviewed each assignment of error and make the following disposition:

 

MAHONEY, J.

 

Because we conclude that the court of common pleas lacked the jurisdiction to consider this case on appeal from the Unemployment Compensation Board of Review, we rule all other assignments of error moot and discuss the threshold issue of jurisdiction only.

 

Appellant Board of Review's Assignment of Error

 

"I. The common pleas court lacked subject matter jurisdiction to decide the instant case."

 

R.C. 4141.28(O) provides the procedure for taking an appeal from a decision of the Unemployment Compensation Board of Review:

 

"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 * * * 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 certified mail to their last known post office address. * * * All other interested parties before the board or the referee shall be made appellees. * * *."

 

This section requires the appellant to file a copy of the notice of appeal with the administrator, who is defined as an interested person in R.C. 4141.01(I), within 30 days of the mailing of the board's decision.

 

The board here mailed its decision on February 20, 1979. Ford, the appellant below, mailed a copy of the notice of appeal to the administrator on March 22, 1979, the 30th day. The administrator received it March 23. The question is, of course, whether the notice of appeal must be mailed or received by the 30th day.

 

Ford claims that the administrator need only be served with a copy of the notice of appeal, and that service is complete upon mailing, citing Civ. R. 5. However, the statute, not the Civil Rules, controls here. Zier v. Bureau of Unemployment Comp., 151 Ohio St. 123 (1949). And, even more fundamentally, filing, not serving, is the requirement. The Supreme Court impliedly sanctioned this interpretation by emphasizing the words of the statute in the following manner in In re Claim of King, 62 Ohio St. 2d 87, 88 (1980):

 

"'* * * Such appeal shall be taken within 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 * * * [including the administrator].'"

 

Filing a copy of the notice of appeal is not achieved by depositing it in the United States mail. Townsend v. Bd. of Bldg. Appeals, 49 Ohio App. 2d 402 (1976).

 

We therefore find that Ford filed the copy of the notice of appeal upon the administrator too late to acquire the jurisdiction of the common pleas court pursuant to R.C. 4141.28(O). In re Claim of King, supra.

 

SUMMARY

 

We vacate the judgment of the common pleas court and dismiss the appeal for a want of jurisdiction and thus reinstate the orders of the Board of Review.

 

The court finds that there were reasonable grounds for this appeal.

 

We order that a special mandate, directing the Lorain County Common Pleas Court to carry this judgment into execution, shall issue out of this court. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.

 

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E).

 

Costs taxed to Ford Motor Company.

 

Exceptions.