Mountain States Tel. & Tel. Co. v. Department of Labor and Employment

• Decision Date: 25 March 1974
• Docket Number: No. 26241,26241
• Citation: 520 P.2d 586,184 Colo. 334
• Parties: The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation, Plaintiff-Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT et al., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 586

520 P.2d 586

184 Colo. 334

The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation, Plaintiff-Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT et al., Defendants-Appellees.

No. 26241.

Supreme Court of Colorado, En Banc.

March 25, 1974.

Rovira, DeMuth & Eiberger, Russell P. Rowe, Denver, for plaintiff-appellant.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for defendants-appellees.

LEE, Justice.

This appeal challenges a final order of the Industrial Commission dismissing an administrative appeal by appellant (Mountain Bell) from a decision of a referee granting respondent (Tischler) a full award of unemployment benefits under 1969 Perm.Supp., C.R.S.1963, 82--4--8(7). By reason of the constitutional issue involved, the case was transferred from the Court of Appeals to this Court for determination. We reverse the order of the Industrial Commission.

The sole issue here is the timeliness of Mountain Bell's appeal from the referee's adverse decision. We do not reach the merits of the decision granting the award of unemployment compensation to Tischler.

C.R.S.1963, 82--5--4, provides in relevant part:

'* * * The parties shall be duly notified of such referee's decision together with his reasons therefor, which shall be deemed to be the final decision of the department unless within eleven days after the date of notification or mailing of such decision, further appeal is initiated pursuant to section 82--5--6.'

The Industrial Commission ruled that Mountain Bell had not given notice of appeal within the required eleven days from the date of notification or mailing of the referee's decision, and that failure to do so was jurisdictional, thus requiring dismissal of the appeal.

The referee's decision was issued on February 23, 1973. Copies were mailed to the office of Tischler's attorney and to Mountain Bell on February 26, 1973. It is Mountain Bell's contention that a copy of the decision was not mailed to its attorney of record. The record does not establish otherwise. Counsel for Mountain Bell did not learn of the decision until 4 p.m. on Friday, March 9 (the eleventh day) when pursuant to his inquiry of the Department of Labor he was advised of the February 23 decision. He immediately gave verbal notice of intent to appeal and was advised that the intention to appeal would be noted in the case file. He preprared a written notice of appeal, which he was unable to file in the Commission office on March 9 because of the lateness of the hour. This notice was mailed on March 9 and received by the Commission on Monday, March 12. On the same day, counsel received a copy of the decision from the Commission.

Respondent Tischler moved to dismiss the appeal on the ground that it was not timely filed. The motion was granted without hearing, the Commission finding: '* * * The attorneys representing both parties were notified. * * *' Mountain Bell then filed a Request for Reconsideration setting forth the foregoing factual matters, particularly detailing the absence of service of a copy of the decision on its counsel. Upon reconsideration, the Commission in a review decision found:

'* * * Employer (Mountain Bell) was served, and opposing counsel (for Tischler) was served with notice of the decision and there being no substantial evidence to indicate that employer's counsel was not so served the Commission must rely on its decision of April 6, 1973 and deny jurisdiction in this matter.'

No evidence was presented to counter the factual statements contained in Mountain Bell's Request for Reconsideration. Indeed, the attorney general candidly states in his brief that it was not factually established by the record that a copy of the decision was mailed to mountain Bell's counsel. As heretofore noted, it is clear that the finding of the Commission on the motion to dismiss and on reconsideration that Mountain Bell's counsel was served was not supported by any substantial evidence in the record.

Nonetheless, the attorney general argues that the statute requires that notice of the referee's decision be given only to the parties and not their attorneys; and that inasmuch as Mountain Bell did receive notice of the decision, the statute was complied with and failure to give notice of appeal within the eleven-day period thereafter barred its right of appeal.

Thus, the issue squarely before this Court is whether procedural due process of law, as embodied in the Fourteenth Amendment to the United States Constitution and in Article II, Section 25, of the Colorado Constitution, compels an interpretation of the statute under consideration, C.R.S.1963, 82--5--4, as to require that notice of the referee's decision be given to counsel of record for the interested parties. We hold that where the parties, whether...