Dressler Coal Co. v. Division of Reclamation, 87-LW-1308
| Decision Date | 01 May 1987 |
| Docket Number | CA 86-34,87-LW-1308 |
| Parties | DRESSLER COAL COMPANY, Appellant, v. DIVISION OF RECLAMATION, Appellee. |
| Court | Ohio Court of Appeals |
Civil Appeal from the Reclamation Board of Review, Case Nos RBR-4-86-217, RBR-4-86-218.
Robert A. Stubbins, Stubbins, Phillips & Co., L.P.A., Zanesville for appellant.
Anthony J. Celebrezze, Jr. Attorney General of Ohio, Bryan F. Zima Assistant Attorney General, Columbus, for appellee.
The appellant, Dressler Coal Company, appeals the decision of the Reclamation Board of Review which dismissed its appeal for lack of subject matter jurisdiction. The appellant raises a sole assignment of error:
ASSIGNMENT OF ERROR
THE RECLAMATION BOARD OF REVIEW ERRED WHEN IT DISMISSED APPELLANT'S APPEAL AND AFFIRMED RETROACTIVE APPLICATION OF PENALTY PROVISIONS FIRST EFFECTIVE THREE YEARS AFTER APPELLANT'S LAST ACTIVITY ON LICENSE B-0319 CONTRARY TO THE OHIO AND UNITED STATES CONSTITUTIONS.
On October 1, 1986, pursuant to R.C. 1513.02(F) and 1513.13, the appellant filed an appeal to the decision of the Reclamation Board of Review (Board) to civil penalties assessments issued on September 5, 1986. That appeal is attached to and incorporated in this opinion. On October 15, 1986, the Board dismissed the appellant's appeal, which is also attached to and incorporated in this opinion. The appellant later filed a motion to strike which was also denied by the Board. The appellant appeals the initial decision of the Board which dismissed its appeal.
I
The appellant asserts that the Reclamation Board of Review erred when it dismissed the appeal and affirmed retroactive application of penalty provisions first effective three years after the last activity on license B-0319, and is contrary to the Ohio and United States Constitutions. R.C. 1513.13(A)(1), Appeal of Violation or Decision to Reclamation Board of review, states:
(A)(1) Any person having an interest that is or may be adversely affected by a notice of violation, order, or decision of the chief of the division of reclamation, except to show cause order or an order that adopts a rule, or by any modification, vacation, or termination of such a notice, order or decision may appeal by filing a notice of appeal with the reclamation board of review for review of the notice, order, or decision within thirty days after the notice, order, or decision is served upon the person or within thirty days after its modification, vacation, or termination and by filing a copy of the notice of appeal with the chief within three days after filing the notice of appeal with the board. The notice of appeal shall contain a copy of the notice of violation, order, or decision complained of and the grounds upon which the appeal is based. The board has exclusive original jurisdiction to hear and decide such appeals. The filing of a notice of appeal under this division does not operate as a stay of any order, notice of violation, or decision of the chief.
The Board dismissed the instant appeal for lack of subject matter jurisdiction on the ground that the appellant failed to attach copies of the assessments. The constitutionality of the imposition of retroactive civil penalty assessments for No. 6738 and No. 6739 will not be considered herein. Interstate Motor Freight Systems v. Bowers (1955), 164 Ohio St. 122.
The appellant does not specifically assign error to the jurisdiction issue in the case sub judice. However, the issue was discussed in oral argument by both parties and is central to the orderly disposition of this issue. Dehart v. Aetna Life Ins. Co. (1982), 69 Ohio St.2d 189.
In the instant case, the appellant's appeal to the Board in its pertinent part states:
This appeal is without prepayment of the assessments and is done to protect and preserve Dressler's right to challenge the constitutionality of the assessments and the statute under which they were issued.
This Notice of Appeal is filed under protest, after having joined the Reclamation Board of Review as a party defendant in an action captioned Clarence A. Goss v. Division of Reclamation, Case No. C2-86-1127, in the United States District Court for the Southern District of Ohio, Eastern Division.
The grounds for this appeal are the grounds set out in the above referenced Complaint.
In dismissing, the Board stated:
A notice of appeal taken to the Reclamation Board of Review must contain a copy of the notice, order or decision being appeal [sic]. O.R.C. 1513.13(A)(1). Where the appeal is of a civil penalty assessment, the penalty amount must be forwarded to the secretary of the Board for placement in escrow. O.R.C. 1513.02(F)(3). These requirements are mandatory and jurisdictional.
In the instant cases, Appellant did not follow the mandatory provisions of O.R.C. 1513.13 or O.R.C. 1513.02 for perfecting appeals of civil penalty assessments to the Reclamation Board of Review. For these stated reasons, the Reclamation Board of Review lacks jurisdiction to hear and decide these appeals.
The Board cited American Restaurant & Lunch Co. v. Glander (1946), 147 Ohio St. 147, as authority for the dismissal. That case is an appeal from the final determination of the Tax Commissioner to the Board of Tax Appeals. The appeal was dismissed, which was authorized under former General Code, ] 5611, which stated in its pertinent part:
Such appeals shall be taken by the filing of a written notice to that effect with the Board of Tax Appeals and with the Tax Commissioner within thirty days after notice of the tax assessment, reassessment, valuation, determination, finding, computation or order, by the Tax Commissioner, shall have been given or otherwise evidenced, as required by law. The notice of such appeal shall set forth or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of, and shall also specify the error or errors therein complained of.
In affirming the decision of the Board of Tax Appeals which denied that appeal, that court stated at p. 150:
It is to be observed that the communication filed by the appellant with the Board of Tax Appeals in the instant case wholly fails either to set forth or have attached thereto, and incorporated therein by reference, a copy of the notice sent by the commissioner to the taxpayer of the final determination complained of.
This court has heretofore held in the cases of Kinsman Square Drug Co. v. Evatt, Tax Commr., 145 Ohio St., 52, 60 N.E.(2d), 668, and Dayton Rental Co. v. Evatt, Tax Commr., 145 Ohio St., 215, 61 N.E.(2d), 210, that substantial compliance with these mandatory requirements constitutes a condition precedent to the right to be heard, upon appeal, by the Board of Tax Appeals and that a failure to comply therewith warrants the dismissal thereof by the Board of Tax Appeals. (Emphasis added)
In the instant case, the appellant had previously served the Board with copies of the assessments and had appeared in the federal action referred to on the appeal. Additionally, the appellant incorporated the federal complaint by reference in its notice of appeal. The Board also cited Clippard Instrument Laboratory, Inc., v. Linley (1977), 50 Ohio St.2d 121, as authority for its dismissal; however, in that case, the court stated at p. 122:
R.C. 5717.02, which provides for appeals from final determinations of the Tax Commissioner to the Board of Tax Appeals, stated, at the time relevant herein, in part:
The record demonstrates that no notice of appeal was sent to the commissioner, his only notice deriving from receipt of a docketing letter from the board (emphasis added)
The "substantial compliance" test applied to the two cases cited by the court in American Restaurant, supra, was also followed by the trial court in Akron Standard Division v. Lindley (1984), 11 Ohio St.3d 10. That court found that a verification requirement under R.C. 5739.13 was not jurisdictional, p. 12:
The lack of a verified signature in a reassessment petition does not prevent the attachment of jurisdiction by an otherwise satisfactory filing, since substantial compliance with the requirements of the statute has taken place. The verification requirement is to be distinguished from the requirement that a notice of appeal be filed within thirty days of assessment, and also from the requirement that the order of the commissioner be included in the notice of appeal. The latter two requirements are essential in that they run to the core of procedural efficiency. The thirty-day requirement is an appellate statute of limitations, while the inclusion requirement litigated in American Restaurant gives notice of the substance of the appeal. Failure to comply fully with either of these requirements properly leads to dismissal of the appeal, since substantial compliance has not occurred. (Citations omitted). (Emphasis added)
When construing statutes, particular provisions may be mandatory prohibitory, directory, permissive, or discretionary. Lake Shore Electric R. Co. v. Public Utilities Comm. (1926), 115 Ohio St. 311. The intention of the legislature determines the...
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