Knoll v. Dudley

• Decision Date: 08 September 1969
• Citation: 20 Ohio App.2d 339,254 N.E.2d 387
• Parties: , 49 O.O.2d 482 KNOLL, Appellee, v. DUDLEY, Admr., Bureau of Unemployment Compensation, et al., Appellants.
• Court: Ohio Court of Appeals

Page 339

20 Ohio App.2d 339

254 N.E.2d 387, 49 O.O.2d 482

KNOLL, Appellee, v. DUDLEY, Admr., Bureau of Unemployment Compensation, et al., Appellants.

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 8, 1969.

Syllabus by the Court

1. The right to appeal in unemployment compensation proceedings is statutory, and the time-limit provision of Section 4141.28, Revised Code, is mandatory.

2. Where a claimant for unemployment compensation does not file his notice of appeal to the Unemployment Compensation Board of Review within 10 days after notice of the administrator's decision on reconsideration is mailed, such notice of appeal is untimely filed, and the board of review is without jurisdiction to entertain the attempted appeal.

Norbert E. Miller, Cincinnati, for appellee.

Paul W. Brown, Atty. Gen., and Ronald C. Morgan, Cincinnati, for appellants.

HESS, Judge.

This is an appeal from a final order of the Court of Common Pleas of Hamilton County overruling a motion for reconsideration of its previous decision which reversed the decision of the Board of Review, Bureau of Unemployment Compensation.

The record discloses the following history and facts:

On December 21, 1966, the administrator decided that the claimant (hereinafter referred to as appellee) had quit her employment without just cause and was not entitled to benefits.

On December 27, 1966, the administrator reconsidered his previous decision of December 21, 1966, and affirmed it, and a copy of this decision was mailed to the appellee on December 29, 1966.

On January 10, 1967, more than 10 days after the administrator's decision on reconsideration had been mailed to the appellee, the appellee filed an appeal.

On January 27, 1967, the appeal was heard by a referee, and, on February 1, 1967, the referee issued a decision which reversed the previous decision of the administrator. The referee held that claimant's appeal was timely filed because it had been misdelivered and then was returned to the bureau and, therefore, it was not constructively delivered to the appellee on the date of its mailing, December 29, 1966.

On February 8, 1967, the administrator filed an application to institute a further appeal from the referee's decision, which application was allowed by the board of review on April 11, 1967.

On April 28, 1967, the board of review issued a decision reversing the referee's decision of February 1, 1967, and holding that appellee's appeal dated January 10, 1967, addressed to the administrator's decision on reconsideration of December 29, 1966, was untimely and that, therefore, the referee had no jurisdiction to review the matter on its merits. The board dismissed the appeal and held that the administrator's decision of December 29, 1966, had become final.

On May 5, 1967, the appellee filed a notice of appeal from the board of review's decision in the Court of Common Pleas of Hamilton County.

On March 5, 1969, the Court of Common Pleas of Hamilton County reversed the decision of the board of review holding that notice to the appellee was January 3, 1967 (instead of December 29, 1966), and that appellee's appeal, which was filed on January 10, 1967, was within the 10-day statutory limitation to file such an appeal and referred such case back to the bureau for further determination.

On March 12, 1969, the appellant filed a motion in the Court of Common Pleas of Hamilton County requesting the court to reconsider its previous decision.

On March 26, 1969, the Court of Common Pleas of Hamilton County reconsidered its previous decision and affirmed it.

On April 24, 1969, the appellant filed its notice of appeal to the Court of Appeals for Hamilton County, which matter is now before this court for decision.

Appellee has resided at her present address, 2996 Gilbert Avenue, Cincinnati, Ohio, at all times in issue.

On December 27, 1966, a hearing was held before the administrator, and the appellee was present. On December 29, 1966, a copy of the decision of this administrator's hearing was mailed to the appellee at 2996 Gilbert Avenue, Cincinnati, Ohio 45206.

Appellee's correct name and address appeared on the copy of this correspondence, which was retained by the Bureau of Unemployment Compensation and is a part of the official transcript.

Appellee denies receiving this correspondence in the mail but does admit that she received it no later than January 3, 1967.

That correspondence sets forth what the right of appeal of the appellee was:

'If you consider this decision to be incorrect as to facts or law or because you have additional facts which might affect the decision, you may file an appeal in person or by writing to the local office indicated in Item 5 above (1916 Central Parkway, Cincinnati, Ohio), or by mailing directly to the Board of Review, 145 S. Front Street, Columbus, Ohio 43216. Such appeal must be filed in writing within ten (10) days after the 'Determination Mailed' date shown in Item 6 above (December 29, 1966). Claimant's social security number must be included in all correspondence. The local office will give you any assistance necessary.'

Appellee filed her notice of appeal from the decision which was mailed to her on December 29, 1966, on January 10, 1967.

Appellee's attorney of record filed a subsequent appeal on her behalf of January 13, 1967.

Appellee's attorney of record states that during the first week of January 1967 a man...