Notice Violation v. LMD Integrated Logistic Servs., Inc. (In re LMD Integrated Logistic Servs., Inc.)

• Decision Date: 26 September 2018
• Docket Number: No. 2016-1442,2016-1442
• Citation: 2018 Ohio 3859,119 N.E.3d 1250,155 Ohio St.3d 137
• Parties: IN RE LMD INTEGRATED LOGISTIC SERVICES, INC., Notice of Apparent Violation and Intent to Assess Forfeiture; Public Utilities Commission of Ohio, Appellant; v. LMD Integrated Logistic Services, Inc., Appellee.
• Court: Ohio Supreme Court

155 Ohio St.3d 137
119 N.E.3d 1250
2018 Ohio 3859

IN RE LMD INTEGRATED LOGISTIC SERVICES, INC., Notice of Apparent Violation and Intent to Assess Forfeiture;

Public Utilities Commission of Ohio, Appellant;
v.
LMD Integrated Logistic Services, Inc., Appellee.

No. 2016-1442

Supreme Court of Ohio.

Submitted April 10, 2018
Decided September 26, 2018

Michael DeWine, Attorney General, William L. Wright and John H. Jones, Assistant Attorneys General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Hannah C. Wilson, Deputy Solicitor, for appellant.

AldenLaw, John L. Alden, Columbus, and Daniel J. Bennett, for appellee.

O'Donnell, J.

155 Ohio St.3d 138

{¶ 1} The Public Utilities Commission of Ohio ("PUCO") appeals from a decision of the Tenth District Court of Appeals denying its motion to dismiss LMD Integrated Logistic Services, Inc.'s appeal from a civil forfeiture order. The commission argues that LMD's appeal should be dismissed because LMD did not file its notice of appeal with the commission but, rather, filed its appeal with the Tenth District and served one of the members of the commission. This appeal concerns the proper procedure to follow in invoking the jurisdiction of the appellate court from a R.C. 4923.99 PUCO civil forfeiture order.

{¶ 2} A party appealing an order of the PUCO pursuant to R.C. 4923.99 is not required to file a notice of appeal with the commission to invoke the jurisdiction of the appellate court. LMD initiated its appeal by filing its notice of appeal with the Tenth District Court of Appeals and served a copy of that notice on a member of the commission in accordance with R.C. 4923.99(D). The appellate court ruled its jurisdiction had been properly invoked, and we affirm that judgment.

History

{¶ 3} Pursuant to R.C. Chapters 4921 and 4923 and Ohio Adm.Code 4901:2-5-02(A), the commission regulates, among other things, the transportation of persons and property by motor vehicle in Ohio. In connection with that regulation, the commission has adopted certain federal safety standards governing motor carriers engaged in interstate commerce, see R.C. 4923.04(A)(1) ; Ohio Adm.Code 4901:2-5-03, and R.C. 4923.99 authorizes the commission to assess a civil forfeiture against any person who violates these motor carrier regulations.

Facts and Posture of the Case

{¶ 4} On January 8, 2014, motor carrier enforcement inspectors for the Ohio State Highway Patrol inspected a commercial vehicle operated by LMD and cited LMD for transporting a hazardous chemical without the required poison inhalation hazard warning on its shipping papers in violation of 49 C.F.R. 172.823(a) and 177.817(a). See Ohio Adm.Code 4901:2-5-02 and 4901:2-5-03(A) (adopting 49 C.F.R. 171 through 180 and charging the commission with their enforcement).

155 Ohio St.3d 139

{¶ 5} LMD challenged the violation. After an administrative hearing, the commission found sufficient evidence to support the violation, issued a $1,680 civil forfeiture against LMD, and denied LMD's request for rehearing.

{¶ 6} On June 2, 2015, LMD filed a notice of appeal with the clerk of the Tenth District Court of Appeals and served a copy of the notice of appeal on a member of the commission.

{¶ 7} The commission moved to dismiss the appeal for lack of jurisdiction because LMD did not file its notice of appeal with the commission's docketing division, which it claims is required by R.C. 4903.13,

119 N.E.3d 1253

4923.99(C) and (D), and the regulations implementing the statutes.

{¶ 8} In a 2-to-1 memorandum decision, the appellate court denied the motion and concluded that R.C. 4923.99 does not require that the notice of appeal be filed with the commission, but only served on either the chairperson of the commission or another commissioner or by leaving a copy at the commission's Columbus office. The appellate court determined that LMD had properly invoked its jurisdiction because LMD had timely filed the notice of appeal with the court of appeals and served its notice of appeal on a member of the commission.

{¶ 9} The dissenting jurist asserted that R.C. 4923.99(C) and (D), read together with App.R. 3(A), R.C. 2505.04, and other "pertinent commission regulations," required LMD to file its notice of appeal with the commission's docketing division in order to invoke appellate jurisdiction. 10th Dist. Franklin No. 15AP-545, ¶ 5, 8-11 (Sept. 15, 2015) (Sadler, J. dissenting).

{¶ 10} In a separate, subsequent opinion, the court of appeals unanimously reversed the commission's finding that LMD had violated a hazardous material regulation, but that matter has not been appealed and is not before us.

{¶ 11} The PUCO appealed and presented one proposition of law for our review: "To perfect an appeal of an order of the Public Utilities Commission of Ohio under R.C. 4923.99, an appellant must file a notice of appeal with the Commission." See 149 Ohio St.3d 1405, 2017-Ohio-2822, 74 N.E.3d 464.

Claims of the PUCO

{¶ 12} The PUCO advances three bases to reverse the decision of the appellate court. It first contends that the plain language of R.C. 4923.99(D) and the regulations implementing the statute provide that to perfect an R.C. Chapter 4123 appeal from a commission order, the appealing party must file the notice of appeal with the commission's docketing division and serve a copy of the notice "upon the chairperson of the commission or, in the event of the chairperson's absence, upon any public utilities commissioner, or by leaving a copy at the office of the commission at Columbus." R.C. 4923.99(D). It next urges that the reference in R.C. 4923.99(C) to R.C. Chapter 4903 requires the filing of a notice

155 Ohio St.3d 140

of appeal with the commission because R.C. 4903.13 provides that "[t]he proceeding to obtain * * * reversal, vacation, or modification shall be by notice of appeal, filed with the public utilities commission." Finally, it asserts that references to the Rules of Appellate Procedure and R.C. Chapter 2505 in the last sentence of R.C. 4923.99(C) require the appealing party to file a notice of appeal with the commission, because App.R. 3(A) provides that "[a]n appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court" and the commission asserts that it "effectively act[s] as the trial court" in administrative appeals pursuant to R.C. 2505.03(B).

LMD's Contentions

{¶ 13} Contrariwise, LMD maintains that it is not necessary for a party appealing a PUCO order issued pursuant to R.C. 4923.99 to file a notice of appeal with the commission. It contends that it perfected its appeal when it timely filed its notice of appeal with the Tenth District Court of Appeals and served a copy of the notice of appeal on a member of the commission. Alternatively, LMD suggests that even if R.C. 4923.99 required the notice of appeal to be filed with the commission, this court should still conclude that it perfected its appeal, because caselaw allows that a "filing" for purposes of R.C. 2505.04 can be made through service by the clerk on the administrative agency. It also urges that if we construe R.C. 4923.99(D) as imposing a requirement to file with the commission's

119 N.E.3d 1254

docketing division, we should hold that LMD perfected its appeal to the Tenth District based on its substantial compliance with the other requirements of the statute.

Law and Analysis

{¶ 14} R.C. 4923.99(C) vests the Tenth District Court of Appeals with "exclusive, original jurisdiction to review, modify, or vacate an order of the commission issued to secure compliance with any provision of Chapters 4921 and 4923 of the Revised Code."

{¶ 15} And R.C. 4923.99(D) sets forth the specific statutory procedure to contest a compliance order, a violation, or the amount of a forfeiture, including the violation and civil forfeiture order at issue in this case:

Any person to whom any such order is issued who wishes to contest a compliance order, the fact of the violation, or the amount of the forfeiture shall file a notice of appeal , setting forth the order appealed from and the errors complained of * * *. The notice of appeal shall be served , unless waived, upon the chairperson of the commission or, in the event of the chairperson's absence, upon any public utilities commissioner, or by leaving a copy at the office of the commission at Columbus.

155 Ohio St.3d 141

(Emphasis added.)

{¶ 16} The foregoing statute does not specify where the notice of appeal is to be filed ; it does, however, expressly specify that the notice of appeal be served on the commission chairperson or another commissioner or by leaving a copy at the commission's Columbus office. If the legislature had intended to require that the notice of appeal be filed with the commission, it could have specified that in the legislation. We also know that the...