O'Donoghue v. Review Bd. of Indiana Employment Sec. Division
| Decision Date | 17 July 1980 |
| Docket Number | No. 2-180A19,2-180A19 |
| Parties | Michael H. O'DONOGHUE, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, William H. Skinner, David L. Adams and Paul M. Hutson, as members of and as constituting the Review Board of the Indiana Employment Security Division, and Prophet Foods, Appellees. |
| Court | Indiana Appellate Court |
L. Peter Iverson, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellees.
This is an unemployment compensation appeal. The Review Board dismissed the appeal on grounds that it was not filed within 15 days after the mailing of the referee's decision. The record shows the decision was mailed on October 30, 1979, and the appeal was filed November 15, 1979, sixteen days later. The record does not disclose when the decision was received by O'Donoghue, but because of the dates involved it is apparent that if the notification were delivered the day after it was mailed, his appeal was filed within fifteen (15) days after notification.
We find our decision should be controlled by that in Reece v. Rev. Bd. (1977), Ind.App., 360 N.E.2d 1262. Accordingly, we reverse and remand.
In Reece the First District was called upon to review the Employment Security Act provision, IC 22-4-17-2, dealing with an appeal of the original determination of benefit eligibility by a deputy to a hearing before a referee. O'Donoghue's present appeal concerns the next section of the Act, IC 22-4-17-3 and the next step of appeal: appealing the decision of the referee to the full review board.
Judge Lowdermilk writing for the court in Reece concluded that the requirement of IC 22-4-17-2 that the appeal be taken within ten days "after such notification was mailed to his or its last known address or otherwise delivered to him or it" was ambiguous as to when the period to perfect an appeal would commence to run.
Based then upon the humanitarian purposes of the Act and the rule of statutory construction which seeks to avoid harsh, unjust, or absurd consequences, the court held that the time limitation for perfecting an appeal commenced to run with the delivery of a claimant's Determination Letter rather than upon its mere deposit in the mail. 360 N.E.2d 1265.
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