Northland Pioneer College v. Zarco

• Decision Date: 07 June 1994
• Docket Number: No. 1,CA-UB,1
• Citation: 179 Ariz. 44,875 P.2d 1349
• Parties: NORTHLAND PIONEER COLLEGE, Appellant, v. Thelma J. ZARCO, and Arizona Department of Economic Security, Appellees. 93-0067.
• Court: Arizona Court of Appeals

Page 1349

875 P.2d 1349

179 Ariz. 44

NORTHLAND PIONEER COLLEGE, Appellant, v. Thelma J. ZARCO and Arizona Department of Economic Security, Appellees.

No. 1 CA-UB 93-0067.

Court of Appeals of Arizona Division 1, Department D.

June 7, 1994.

[179 Ariz. 45] Aspey, Watkins & Diesel by Jane A. Butler, Flagstaff, for appellant.

Grant Woods, Atty. Gen. by Terrance R. Harris, Asst. Atty. Gen., Phoenix, for appellees.

OPINION

McGREGOR, Judge.

This appeal involves the requirements for timely filing a petition seeking review of a decision by the Arizona Department of Economic Security (DES) Appeals Board. The central question is whether, for purposes of determining when a petition for review is filed, delivery of the petition to a private document carrier is equivalent to delivery of the petition to the United States Postal Service. We hold it is not and affirm.

I.

Northland Pioneer College (Northland) employed Thelma J. Zarco from July 1, 1990 until October 7, 1992. Following her discharge, Zarco filed a claim for unemployment insurance benefits with DES. On October 22, 1992, a DES deputy issued a determination finding that Northland discharged Zarco for misconduct and that Zarco therefore was not entitled to receive unemployment insurance benefits. Zarco filed a request for reconsideration with the appeals tribunal. After a hearing on November 23, 1992, the appeals tribunal reversed the deputy's determination, finding that Zarco "did not knowingly violate [Northland's] policy and procedure."

On December 8, 1992, Northland sent a petition for review by Federal Express, which the office of appeals received on December 9, 1992. The appeals board summarily dismissed Northland's petition for review after deciding that Northland did not timely file the petition. In reaching this decision, the appeals board relied upon the following statute and regulation:

[A]n appeal tribunal, after giving reasonable notice and affording all interested parties reasonable opportunity for a fair hearing, shall make a decision.... The decision shall become final unless within fifteen days after mailing of the decision any interested party files a written petition for review with the appeals board....

Ariz.Rev.Stat.Ann. ("A.R.S.") § 23-671.D (Supp.1993) [hereinafter section 28-671.D] (emphasis added). The relevant regulation provides:

A. Except as otherwise provided by statute or by Department regulation, any ... petition [for review] ... shall be considered received by and filed with the Department:

1. If transmitted via the United States Postal Service or its successor, on the date it is mailed as shown by the postmark, or in the absence of a postmark the postage meter mark, of the envelope in which it is received; or if not postmarked or postage meter marked or if the mark is illegible, on the date entered on the document as the date of completion.

2. If transmitted by any means other than the United States Postal Service or its successor, on the date it is received by the Department.

Ariz.Admin.Code § R6-3-1404.A (1993) [hereinafter R6-3-1404.A] (emphasis added).

The appeals board found that a copy of the appeals tribunal's decision was sent by certified mail to Northland on November 23, 1992. Pursuant to section 23-671.D, therefore, the tribunal's decision became final unless Northland filed a petition for review by December 8, 1992. The appeals board also found that because Northland used a "means other than the United States Postal Service" to transmit its petition for review, the petition was not filed until the board received it on December 9, 1992. The appeals board then concluded that Northland's petition for review was untimely.

Northland timely filed a request for review, but the appeals board affirmed its decision on March 31, 1993. Northland now seeks review by this court, which has jurisdiction pursuant to A.R.S. section 41-1993.B (1992).

In reviewing decisions from the appeals board, this court may draw its own legal conclusions in determining whether the appeals board properly interpreted the law and applied it to the facts. Castaneda v. Arizona Dep't of Economic Sec., 168 Ariz. 491, 494, 815 P.2d 418, 421 (App.1991). Although we can draw our own legal conclusions, we give an agency's interpretation of its own regulations great weight. Capitol Castings, Inc. v. Arizona Dep't of Economic Sec., 171 Ariz. 57, 60, 828 P.2d 781, 784 (App.1992).

II.

Northland first contends the appeals board should have considered its petition for review timely filed because any delay in filing was due to "misinformation" from DES. See Ariz.Admin.Code § R6-3-1404.B (1993). ¹ The alleged "misinformation" involves the appeal tribunal's written decision, which includes the following section titled "Appeal Rights":

THIS APPEAL TRIBUNAL DECISION WILL BECOME FINAL WITHIN FIFTEEN (15) CALENDAR DAYS OF THE MAILING DATE SHOWN AT THE TOP OF THE DECISION UNLESS WITHIN THAT PERIOD AN INTERESTED PARTY INITIATES A FURTHER APPEAL BY FILING A WRITTEN PETITION FOR REVIEW BY THE APPEALS BOARD OR THE BOARD REMOVES THE CASE TO ITSELF ON ITS OWN MOTION.

A petition for review may be filed in person at any public employment office in the United States or Canada, or by letter to the Arizona Department of Economic Security, Office of Appeals, 207 East McDowell Road, Phoenix, AZ 85004. If the petition is filed by mail, the postmark date will be the date of the appeal. The petition should contain a statement setting forth the reasons for the appeal, your social security number, and your telephone number. The petition for review must be signed by the petitioning party. (Emphasis added.)

Northland argues it was misinformed because this language does not distinguish between the date a petition is considered filed when a party sends it by the United States Postal Service and the date of filing when a party sends the petition by a private document delivery service, such as Federal Express. Further, Northland contends, a party should not be expected to know that DES treats a private document carrier differently for filing purposes than it treats the United States Postal Service. We disagree.

In the information provided with its decision, DES correctly summarized the important terms of section 23-671 and...