Malcom v. Review Bd. of Indiana Employment Sec. Div.

• Decision Date: 26 June 1985
• Docket Number: No. 2-385A97,2-385A97
• Citation: 479 N.E.2d 1333
• Parties: Garry W. MALCOM, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, David L. Adams and Paul M. Hutson, as Members of and as constituting the Review Board of the Indiana Employment Security Division, and Rush Industries, Appellees.
• Court: Indiana Appellate Court

Page 1333

479 N.E.2d 1333

Garry W. MALCOM, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION, David L. Adams and Paul M. Hutson, as Members of and as constituting the Review Board of

the Indiana Employment Security Division,

and

Rush Industries, Appellees.

No. 2-385A97.

Court of Appeals of Indiana,

First District.

June 26, 1985.

Douglas A. Mulvaney, Stutsman & Stevens, Elkhart, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellees.

ROBERTSON, Judge.

Claimant-appellant Garry Malcom (Malcom) appeals from the decision of the Review Board for the Indiana Employment Security Division, finding that Malcom was discharged for just cause and denying him unemployment compensation benefits.

We reverse.

Malcom was discharged from Rush Industries, and he filed a claim for unemployment benefits with the Indiana Employment Security Division. On November 2, 1984, a Deputy for the Employment Security Division found that Malcom was eligible to receive benefits because he had not been discharged for just cause. On November 27, Rush Industries filed a letter with the Employment Security Division indicating its intention to appeal the Deputy's decision. A hearing was held by the Appeals Referee, who reversed the Deputy's decision and found that Malcom was ineligible to receive unemployment compensation benefits. Malcom appealed the referee's decision to the Review Board; the Review Board adopted the findings of the Appeals Referee. Malcom then sought judicial review, contending that Rush Industries did not file its appeal of the Deputy's decision in a timely manner and further that the denial of unemployment compensation was contrary to law. Because of our disposition of the jurisdictional issue, we decline to reach the merits of this cause.

The administrative procedures of the Employment Security Division provide three opportunities for appeal: appeal of the Deputy's decision to the Appeals Referee; appeal of the referee's decision to the Review Board; and appeal of the Review Board's decision to the court of appeals. The time period for perfecting each appeal is statutorily defined. When a statute contains a requirement that notice of intention to appeal shall be filed within a certain time, strict compliance with the requirement is a condition to the acquiring of jurisdiction, and non-compliance with the requirement results in dismissal of the appeal. Teepe v. Review Board of Employment Security Division, (1964) 136 Ind.App. 331, 200 N.E.2d 538; Steel Transp. Co. v. Review Board of Employment Security Division, (1962) 134 Ind.App. 95, 186 N.E.2d 174. Thus, an analysis of the applicable statutes and the cases applying them is imperative where, as in the instant case, an appeal is challenged as untimely.

IND. CODE Sec. 22-4-17-11 (1982) describes the time limitation imposed given an appeal from the Review Board to the court of appeals:

Any decision of the review board in the absence of appeal therefrom as herein provided, shall become final fifteen (15) days after the date such decision is mailed to the interested parties.... [I]f ..., at any time prior to the expiration of fifteen (15) days from the date of mailing of such decision, a notice of intention to appeal from such decision [is filed], such action shall stay all further proceedings....

The statute unambiguously indicates that the fifteen day period begins to run from the date the Review Board's decision is mailed. Courts enforcing the statute have not deviated from its terms; when notice of intention to appeal is filed more than fifteen days after the mailing of the Review Board's decision, the appeal is dismissed. Smith v. Review Board of Employment of Employment Security Division, (1974) 159 Ind.App. 282, 306 N.E.2d 140; Teepe, supra.

The time period for appealing the referee's decision to the Review Board is set out in IND. CODE Sec. 22-4-17-3 (1982):

The parties shall be duly notified of [the referee's] decision and the reasons therefor, which shall be deemed to be the final decision of the review board, unless within fifteen (15) days after the date of notification or mailing of such decision, an appeal is taken....

Although the language of I.C. 22-4-17-3 differs from that of I.C. 22-4-17-11, courts have generally counted the fifteen days from the date the referee's decision was mailed. Rich v. Review Board of Employment Security Division, (1981) Ind.App., 419 N.E.2d 187 (director's appeal filed twenty-one days after referee's decision was mailed ); Neal v. Review Board of Employment Security Division, (1972) 153 Ind.App. 630, 288 N.E.2d 561 (referee's decision became final because no appeal taken within fifteen days after decision mailed ). Cf. O'Donoghue v. Review Board of Employment Security Division, (1980) Ind.App., 406 N.E.2d 1267 (time limitation begins to run after notification, not after mailing).

The statute pertinent to the instant case, IND. CODE Sec. 22-4-17-2(e) (1982), states the time period for appealing the Deputy's decision to the Appeals Referee:

In cases where the claimant's benefit eligibility or disqualification is...