335 N.E.2d 868 (Ohio App. 10 Dist. 1975), Fair v. School Emp. Retirement System of Ohio

Citation:335 N.E.2d 868, 44 Ohio App.2d 115
Opinion Judge:WHITESIDE, J.
Party Name:FAIR, Appellant, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO, Appellee. [*]
Attorney:Lucas, Prendergast, Albright, Gibson, Brown & Newman, Peter J. Gee and Robert J. Walter, Columbus, for appellant., William J. Brown, Atty. Gen., Thomas R. Anderson, Asst. Atty. Gen., and David J. Sherriff, Columbus, for appellee. Messrs. Lucas, Prendergast, Albright, Gibson, Brown & Newman, Mr. ...
Judge Panel:REILLY and McCORMAC, JJ., concur.
Case Date:May 01, 1975
Court:Court of Appeals of Ohio
 
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Page 868

335 N.E.2d 868 (Ohio App. 10 Dist. 1975)

44 Ohio App.2d 115

FAIR, Appellant,

v.

SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO, Appellee. [*]

Court of Appeals of Ohio, Tenth District, Franklin.

May 1, 1975

Page 869

Syllabus by the Court

Neither R.C. 119.12 nor R.C. 2506.01 confer a remedy of appeal from a decision of the School Employees Retirement Board denying an application for disability retirement.

Lucas, Prendergast, Albright, Gibson, Brown & Newman, Peter J. Gee and Robert J. Walter, Columbus, for appellant.

William J. Brown, Atty. Gen., Thomas R. Anderson, Asst. Atty. Gen., and David J. Sherriff, Columbus, for appellee. [44 Ohio App.2d 116]

WHITESIDE, Judge.

This is an appeal from a judgment of the Franklin County Court of Common Pleas dismissing plaintiff David Fair's appeal from an order of the School Employees

Page 870

Retirement Board which denied him disability retirement benefits. Plaintiff raises two assignments of error in support of his appeal, as follows:

'1. The Court erred in dismissing the appeal from an order of the School Employees Retirement Board denying disability retirement to a member for lack of jurisdiction of the subject matter.

'2. The Court erred in refusing to consolidate the appeal from the order of the School Employees Retirement Board denying appellant disability retirement with a second action challenging the same order seeking a writ of mandamus, or mandatory injunction.'

With respect to the first assignment of error, plaintiff contends that he has a right to appeal from the order of the School Employees Retirement Board, either under R.C. 119.12 or R.C. 2506.01. The School Employees Retirement System is established by R.C. 3309.03, and the School Employee's Retirement Board is created by R.C. 3309.04. Disability retirement is provided for by R.C. 3309.40 and 3309.41. R.C. 3309.39 provides that, with respect to disability retirement, 'the action of the board shall be final.' Similarly, R.C. 3309.40 provides, in part: 'The school employees retirement board is the final authority in determining the eligibility of a member for such form of retirement.' There is no provision in these sections, or elsewhere in R.C. Chapter 3309 for an appeal from a determination of the School Employees Retirement Board.

Plaintiff points out that R.C. 119.12 confers a right of appeal upon 'any party adversely affected by an order of an agency issued pursuant to any other adjudication.' He further quotes R.C. 119.01 as defining the word 'agency' to include 'any official, board, or commission having authority to promulgate rules or make adjudications.' However, a more complete quotation of the...

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