30 Ohio St.3d 87, 30 Ohio
B. Rep. 234
BOWMAN V. OHIO BUREAU OF
EMP. SERV.
(S.
Ct. 1987) 507 N.E.2d 342
BOWMAN,
APPELLANT,
vs.
ADMINISTRATOR, OHIO BUREAU
OF EMPLOYMENT SERVICES,
APPELLEE, ET
AL.
No.
86-1204
SUPREME COURT OF
OHIO
30
Ohio St.3d 87, 30 Ohio B. Rep. 234, 507 N.E.2d
342
April
29, 1987, Decided
APPEAL from
the Court of Appeals forCuyahogaCounty.
HEADNOTE
Unemployment
compensation -- Appellate procedure -- Private meter postmarks are
presumptively valid and accurate "postmarks" under Ohio Adm. Code
4146-13-01.
SYLLABUS
Private meter postmarks are "postmarks," presumptively
valid and accurate, for purposes of the timely filing of an appeal
to the Unemployment Compensation Board of Review under Ohio Adm.
Code 4146-13-01.
STATEMENT OF THE
CASE
Karen M.
Bowman, plaintiff-appellant, appeals from a judgment of the court
of appeals affirming dismissal of her appeal to the Unemployment
Compensation Board of Review as untimely.
Bowman was
discharged by her employer and filed a claim for unemployment
compensation benefits. Her claim was denied by the Administrator of
the Ohio Bureau of Employment Services ("administrator"), who found
she was discharged for just cause.
The denial of
benefits was affirmed upon reconsideration by the administrator
onMay 3,
1983, and
Bowman had fourteen days thereafter in which to file her notice of
appeal to the Unemployment Compensation Board of Review ("board").
Her notice was received in the mail by the board onMay 20, 1983, bearing a so-called
"private meter postmark" datedMay 17, 1983. Following a hearing, a
referee dismissed the appeal as untimely, finding the notice of appeal was
filed when received onMay 20, 1983. The board disallowed
Bowman's application to institute further appeal before the
board.
Thereafter,
the Cuyahoga County Court of Common Pleas reversed the decision of
the board as unlawful, unreasonable, and contrary to the manifest
weight of the evidence. In addition to the meter postmark, Bowman's
counsel presented unrefuted testimony
before the referee that the envelope was stamped with a postage
meter and that he personally mailed the notice of appeal onMay 17,
1983.
The court of
appeals reversed, holding that a private meter postmark is not
sufficient as a matter of law to satisfy the requirement of Ohio
Adm. Code 4146-13-01 that timely mailing of a notice of appeal be
evidenced by a "postmark." The court found that "postmark" means a
postmark imprinted by the United States Postal Service which, it
asserted, cannot be manipulated or backdated. Thus, the court
concluded that Bowman's notice was not properly "postmarked," and,
therefore, was properly deemed to be filed when received, not when
allegedly deposited in the mail.
The matter is
now before this court upon the allowance of a motion to certify the
record.
COUNSEL
Brent L.
English, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and
Patrick A. Devine, for appellee.
JUDGES
MOYER, C.J.
SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
AUTHOR:
MOYER
OPINION
Theissue raised in this
appeal is whether the term "postmark," as used in Ohio Adm. Code
4146-13-01, includes a private meter postmark.
R.C.
4141.28(H) provides that appeals from the administrator's decision
on reconsideration may be filed within fourteen days after such
decision was mailed to appellant:
"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 {*89} such decision was mailed to the last
known post office address of the appellant such decision on
reconsideration is final and benefits shall be paid or denied in
accordance therewith."
Ohio Adm.
Code 4146-13-01, in pertinent part, further defines
"filing":
"* * * Notice
of appeal may be either mailed or delivered. If notice of appeal is
mailed, it must be postmarked beforemidnightof the last day of the
appeal period; if delivered, it must be received at one of the
offices named in 4146-5-01 before the closing time of the office on
the last day of the appeal period. * * *
"* * *
"(B) * * *
Filing shall be deemed to be completed on the postmarked date
appearing on the enclosing envelope where filing is by
mail."
The
administrator's reconsideration decision, sent to Karen Bowman on
May 3, 1983, informed her of her appeal rights, in pertinent part,
as follows:
"* * * To be
considered timely, your appeal must be filed in person or
postmarked no later than fourteen calendar days after the date
entered [May 3, 1983] * * *."
Bowman argues
that a "private meter postmark" and a United States Postal Service
post office postmark are equivalent for purposes of Ohio Adm. Code
4146-13-01. The administrator argues that the two are not the same,
and that only a postmark affixed by the government office is
reliable evidence of timely filing because it is not subject to
manipulation.
Despite the
legislative mandate of R.C. 4141.46 requiring that R.C. 4141.01 to
4141.46 be liberally construed, the administrator and the lower
courts have consistently interpreted "postmark" requirements of the
administrative rules and statutes sub judice to exclude the use of private meter
postmarks as evidence of timely filing. [FN1] However, we find the
reasoning in some of the more recent cases to be persuasive.
[FN2]
While
administrative agencies may expressly require that timely mailing
of a notice of appeal may only be evidenced by postmarks affixed by
the United States Postal Service, the administrator has not created
such a requirement in Ohio Adm. Code 4146-13-01. The term
"postmark" is not generally defined in any relevant statute or
rule. The administrator, who, by rule, permits "postmarks" to
evidence timely filing of documents, is deemed to be on notice of
pertinent postal regulations in the United States Postal Service
Domestic Mail Manual ("DMM") defining and regulating
"postmarks."
Private meter
postmarks are official postmarks imprinted under license from the
United States Postal Service (DMM Section 144.2), and metered mail
is entitled to all privileges applying to the various classes of
mail. (DMM Section 144.111.) The United
States Postal Service requires the date shown on private meter
postmarks to be the actual date of deposit of mail (or the next
scheduled collection day). (DMM Section
144.471.) [FN3] If the wrong date appears, a .00 postage
meter impression with the correct date is stamped on the envelope
by the post office. Otherwise, metered mail is not canceled or
postmarked by the Postal Service. (DMM Section
144.534.) [FN4] Although metered mail is subjected to only
random, selective samplings to detect misuse of meters (under DMM
Section 144.61), [FN5] such {*91} samplings and the sanction of
license revocation (DMM Section 144.23) [FN6] discourage misuse of
postmark meters.
Given notice
of these regulations, and in fairness to appealing parties, the
only reasonable presumption is that a private meter postmark
constitutes evidence of the date of deposit of the item in the
mail. We conclude, therefore, that because the administrator has
used the general term "postmark" in Ohio Adm. Code 4146-13-01,
private meter postmarks are "postmarks,
" presumptively valid and accurate, for purposes of timely
filing of an appeal to the board under the code.
Bowman's
notice of appeal was received by the board bearing a postage meter
mark dated within the appeal period. Bowman presented testimonial
evidence by her attorney that he, in fact, mailed her notice on the
date indicated on the stamp. The board presented no evidence to
rebut the presumption that the notice was mailed on the date
indicated on the stamp.
Accordingly,
the judgment of the court of appeals is reversed and the cause is
remanded for further proceedings consistent with this
opinion.
Judgment
reversed and cause remanded.
DISPOSITION
Judgment
reversed and cause remanded.
OPINION
FOOTNOTES
1 (Tenth
District) Tietz v.
.AutoviableServ., Inc. (Dec. 10, 1985), Franklin App.
No. 85AP-679, unreported. (Ninth District) Kerr v. .Unemp. Comp.
Bd. of Review (Aug. 20, 1986), Summit App. Nos. 12597 and 12601,
unreported; Cart v. . Ohio Bur. of Emp. Serv. (Mar.
26, 1986), Summit App. No. 12264, unreported; Connelly v. . Visiting Nurse Serv., Inc. (Apr. 24, 1985), Summit App. No.
11982, unreported; Hannah v. . Ohio Bur.
of Emp. Serv. (Mar. 2, 1983), Summit App. No. 10914,
unreported; Joreski v. .Unemp. Comp.
[Bd. of Review] (Dec. 1, 1982), Medina App. No. 1174, unreported.
(Eighth District)Berlinv.
.OhioBur. of Emp. Serv.
(1985), 27OhioApp.3d 59, 27 OBR 77, 499
N.E.2d 1252; Micro Lapping & GrindingCo.v.
.Unemp. Comp.
Bd. of Review (1984), 20OhioApp.3d 356, 20 OBR 460,
486 N.E.2d 225; Lindgren v. .Unemp. Comp. Bd. of Review (Dec. 19, 1985),
Cuyahoga App. No. 49924, unreported; Ohio Bur. of Emp. Serv. v. . Cowan Corp. (May 23, 1985), Cuyahoga App.
No. 48858, unreported; Holiday Inn v.
.OhioBu
r. of Emp. Serv. (Mar.
21, 1985), Cuyahoga App. No. 48603, unreported.
2 Metal Seal
& Products, Inc. v. .[Unemp. Comp.] Bd.
of Review (Sept. 29, 1986), Lake App. No. 11-215, unreported;
Gillespie v. . Ohio Bur. of Emp. Serv. (Aug.
14, 1986), Franklin App. No. 86AP-223, unreported. Cf. Witherspoon
v. .OhioBur. of Emp. Serv.
(1985), 24OhioApp.3d
128,24 OBR 199, 493 N.E.2d
569.
3 The United
States Post Office Domestic Mail Manual defines how and when a
meter stamp may be used. Section 144.471 provides:
"[.47 Date of
Mailing]
".471 Dates
shown in the meter postmark of any type or kind of mail must be the
actual date of deposit except when the mailing piece is deposited
after the last scheduled collection of the day. When deposit is
made after the last scheduled collection of the day, mailers are
encouraged but not required to use the date of the next scheduled
collection. When a .00 postage meter impression is used to correct
the date of metered mail, the date in that impression shall be
considered to be the actual date of deposit."
4 Section
144.534 provides:
".534
Examination
"Examine mail
while it is being routed for distribution to determine that it is
properly prepared. This examination may be made by a selective
check of the pieces as they are distributed. Metered mail bearing
the wrong date of mailing (see 144.47) will be run through a
canceling machine or otherwise postmarked to show the proper date.
Form 3749 will be used by postmasters to call irregularities to the
attention of the mailer. * * *"
5 "144.6
Security
".61
Quarterly Verification
"a. Area mail
processing units and post offices which do initial distribution of
originating mail must take a sampling of local originating metered
mail (letters and parcels, including those bearing Postal Service
meter stamps) each quarter. This sampling is designed to:
"(1) Detect
use of unauthorized meters.
"(2) Detect
altered metered stamps.
"(3) Detect
improper metered mail procedures by mailers, especially the use of
incorrect postmarks.
"(4) Detect
short-paid mail."
6 "144.2
Meter License
"* * *
".23
Revocation
".231 A
license will be revoked if a meter is used in operating any scheme
or enterprise of an unlawful character, for nonuse during any
consecutive 12 months, or for any failure of the licensee to comply
with the regulations governing the use of postage
meters."