Dudukovich v. Lorain Metropolitan Housing Authority, No. 78-1071

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM; CELEBREZZE; KEEFE, J., of the First Appellate District, sitting for WILLIAM B. BROWN; POTTER, J., of the Sixth Appellate District, sitting for LOCHER; POTTER
• Citation: 12 O.O.3d 198,58 Ohio St.2d 202,389 N.E.2d 1113
• Parties: , 12 O.O.3d 198 DUDUKOVICH, Appellee, v. LORAIN METROPOLITAN HOUSING AUTHORITY, Appellant.
• Docket Number: No. 78-1071
• Decision Date: 23 May 1979

Page 202

58 Ohio St.2d 202 389 N.E.2d 1113, 12 O.O.3d 198 DUDUKOVICH, Appellee,
v.
LORAIN METROPOLITAN HOUSING AUTHORITY, Appellant. No. 78-1071. Supreme Court of Ohio. May 23, 1979.

[389 N.E.2d 1114] Appellee, Marie Dudukovich, was employed by appellant, Lorain Metropolitan Housing Authority (LMHA), as an inspector of housing. On April 29, 1977, the board of directors of appellant, at a regular meeting, resolved to terminate the employment of appellee. Appellant listed five reasons for its dismissal of Dudukovich, which can be summarized as follows:

(1) Unsatisfactory performance of inspection;

(2) non-cooperation on eviction case bordering on insubordination;

(3) failure to show up for an inspection appointment with a tenant;

(4) miscalculation of rent owed by tenant; and

(5) errors in work performance.

Appellee appealed her dismissal to the board of directors of LMHA, and a hearing was held before that body on May 23, 1977, during which appellant was represented by counsel. The evidence presented at this hearing to support the charges against Dudukovich consisted of the unsworn testimony of the executive director of LMHA and a number of exhibits, all of which was offered without objection from appellee's counsel. At the conclusion of this hearing, appellant affirmed its dismissal of Dudukovich. ¹

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Appellee subsequently appealed the May 23 decision of the board to the Court of Common Pleas of Lorain County by filing a notice of appeal with that court on May 31, 1977, and by sending a copy of said notice to appellant by certified mail on May 28, 1977.

[389 N.E.2d 1115] After reviewing the record compiled at the hearing, the Court of Common Pleas reversed the board's decision and ordered that appellee be reinstated in her position of inspector. The Court of Appeals thereafter affirmed the judgment of the Court of Common Pleas.

This cause is now before this court upon a motion to certify the record.

Smith & Smith and Kenneth P. Frankel, Avon Lake, for appellee.

Warhola, O'Toole & Lumley and Dennis M. O'Toole, Lorain, for appellant.

PER CURIAM.

Initially we are confronted with a challenge by appellant to the assumption of jurisdiction by the Court of Common Pleas in this cause. Specifically, appellant contends that Marie Dudukovich did not comply with the requirements of R.C. Chapter 2505, pertaining to the filing of a notice of appeal from an agency decision. ² R.C. 2505.04 provides, as follows:

"An appeal is perfected when written notice of appeal is filed with the lower court, tribunal, officer, or commission. * * * (N)o step required to be taken subsequent to the perfection of the appeal is jurisdictional."

R.C. 2505.07(B) requires that such an appeal be perfected within ten days of the entry of a final order by the agency. Here, the final decision by LMHA was reached at the conclusion of the May 23, 1977, hearing. Appellee filed

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a notice of appeal with the Court of Common Pleas on May 31, 1977, and sent a copy of the notice to appellant by certified mail on May 28, 1977.

Although R.C. 2505.04 is, admittedly, not explicit on this point, it appears to require that written notice be filed, within the time limit prescribed by R.C. 2505.07(B), with the agency or board from which the appeal is being taken, in order for the appeal to be perfected. As a practical matter, such notice must also be filed, within the same time limit, with the Court of Common Pleas, in order for it to assume jurisdiction. This filing statute was similarly interpreted by the Court of Appeals for Franklin County in Bartlett v. Snouffer (1945), 64 N.E.2d 848, 44 Ohio Law Abs. 612. In construing the predecessor to R.C. 2505.04, that court, at page 613, 64 N.E.2d at page 849 stated: "In order to perfect the appeal it was necessary * * * to file the notice of appeal in the Justice's Court (the lower court) as well as in the Court of Common Pleas (the appellate court). Since the * * * two notices were not filed, 12223-4 GC, was not complied with and the Court of Common Pleas acquired no jurisdiction."

The issue thus becomes whether Dudukovich sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal to LMHA. It is established that the act of depositing the notice in the mail, in itself, does not constitute a "filing," at least where the notice is not received until after the expiration of the prescribed time limit. Fulton, Supt. of Banks v. State, ex rel. General Motors Corp. (1936), 130 Ohio St. 494, 200 N.E. 636. Rather, "(t)he term 'filed' * * * requires actual delivery * * *." Id., at paragraph one of the syllabus. However, no particular method of delivery is prescribed by the statute. Instead, as was aptly stated in Columbus v. Upper Arlington (1964), 201 N.E.2d 305, 308, 94 Ohio Law Abs. 392, 397 "any method productive of certainty of accomplishment is countenanced." Having considered appellee's method of service, we find that simply "(b)ecause the manner of delivery is unusual does not make it illegal." Id.

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Since there is evidence in the record that appellant did eventually receive the mailed copy of the notice, ³ the question [389 N.E.2d 1116] remains whether it received the notice within the ten-day time limit prescribed by R.C. 2505.07(B). In a situation such as this, a presumption of timely delivery, as first was expressed in Young v. Bd. of Review (1967), 9 Ohio App.2d 25, 222 N.E.2d 789, should control. (In that case the notice of appeal was mailed to the lower court six days prior to the expiration of the time limit. The exact date of its receipt was not known, the clerk of courts having found it " 'under some books in her office' " nine days after mailing.) There, the appellate court took judicial notice of the ordinary course of the mails and concluded that, in the absence of evidence to the contrary,...