Pickhart v. U.S. Post Office

• Decision Date: 09 September 1983
• Citation: 664 S.W.2d 939
• Court: Kentucky Court of Appeals
• Parties: Robert PICKHART, Appellant, v. UNITED STATES POST OFFICE, Director, Employee & Labor Relations & Kentucky Unemployment Insurance Commission, Appellees.

Page 939

664 S.W.2d 939

Robert PICKHART, Appellant, v. UNITED STATES POST OFFICE, Director, Employee & Labor Relations & Kentucky Unemployment Insurance Commission, Appellees.

Court of Appeals of Kentucky.

Sept. 9, 1983.

Case Ordered Published By Court,

of Appeals Sept. 30, 1983.

Rehearing Denied Nov. 18, 1983.

Discretionary Review Denied

March 21, 1984.

Alan W. Roles, Louisville, for appellant.

Paul F. Fauri, Gen. Counsel, William K. Moore, Cabinet for Human Resources, Frankfort, for Kentucky Unemployment Ins. Com'n.

U.S. Post Office Director, Employee & Labor Relations, Louisville, pro se.

Before HOWARD, MILLER and REYNOLDS, JJ.

HOWARD, Judge.

The appellant was denied unemployment compensation and he attempted to appeal to the Jefferson Circuit Court. The appeal was dismissed because the petition was not verified as required by statute and the twenty-day period provided for in perfecting the appeal expired. Appellant appeals to this Court from the order of the trial court dismissing his appeal from the administrative agency.

The statute setting out the appeal procedure is K.R.S. 341.450 and same reads as follows Judicial review.--(1) Except as provided in KRS 341.460, within twenty (20) days after the date of the decision of the commission, any party aggrieved thereby may, after exhausting his remedies before the commission, secure judicial review thereof by filing a complaint against the commission in the circuit court of the county in which the claimant was last employed by a subject employer whose reserve account is affected by such claims. Any other party to the proceeding before the commission shall be made a defendant in such action. The complaint shall state fully the grounds upon which review is sought, assign all errors relied on, and shall be verified by the plaintiff or his attorney. [Emphasis added.]

The sole question in this case is whether or not the verification requirement is mandatory or merely a ministerial act.

Under the Civil Code of Practice all complaints were required to be verified, but a failure to do so was cured by an amended complaint and leave to file such amendments were freely granted by the courts. City of Dayton v. Hirth, 121 Ky. 42, 87 S.W. 1136 (1905). Appellant argues that the principle enunciated in the above case and in numerous subsequent cases cited in appellant's brief should in some way guide us in reaching a decision in the case at bar. Since the requirement for verification is described in those cases as being merely ministerial and not mandatory, we cannot agree with this contention. The requirement for verification is mandated by the statute quoted above and the failure to comply is fatal to appellant's appeal. In the case of Roberts v. Watts, Ky., 258 S.W.2d 513 (1953), the appellant failed to assign all errors relied upon in an appeal from the Department of Transportation to the Franklin Circuit Court. The Court of Appeals, in affirming the trial court's dismissal, stated as follows:

The right of appeal in administrative ... proceedings does not exist as a matter of right. When the right is conferred by statute, a strict compliance with its terms is required. It is the general rule that where the conditions for the exercise of the power of the court are wanting the judicial power...