Robert Paul Blasko, R.Ph. v. Ohio State Board of Pharmacy

• Decision Date: 15 May 2001
• Docket Number: 00 CA 98,01-LW-1951
• Citation: 2001 Ohio 3270
• Parties: ROBERT PAUL BLASKO, R.PH., PLAINTIFF-APPELLANT v. OHIO STATE BOARD OF PHARMACY, DEFENDANT-APPELLEE CASE
• Court: Ohio Court of Appeals

2001-Ohio-3270

ROBERT PAUL BLASKO, R.PH. PLAINTIFF-APPELLANT v. OHIO STATE BOARD OF PHARMACY DEFENDANT-APPELLEE

No. 00 CA 98

01-LW-1951 (7th)

Court of Appeals of Ohio, Seventh District Mahoning

May 15, 2001

Civil Appeal from Common Pleas Court, Case No. 99 CV 3089.

Hon Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite

For Plaintiff-Appellant: Attorney James Gentile, 44 Federal Plaza Central, Youngstown, Ohio 44503-1635

For Defendant-Appellee: Attorney Betty D. Montgomery, Attorney General, Attorney Sally Steuk, Assistant Attorney General, 77 South High Street, Room 1702, Columbus, Ohio 43215-6126

OPINION

VUKOVICH P.J.

Plaintiff-appellant Robert Paul Blasko appeals the decision of the Mahoning County Common Pleas Court which dismissed his appeal from the order of the Ohio State Board of Pharmacy on the grounds that notice of appeal was untimely filed with the Board. For the following reasons, the judgment of the trial court is affirmed.

Appellant was a pharmacist at Forum Health's Northside Hospital for eleven years. After investigating appellant in July 1999, the Board suspended his pharmacist license. On November 9, 1999, the Board held a dispositional hearing. On December 16, 1999, the Board issued a decision which revoked appellant's license on various grounds. The Board found that appellant violated multiple laws and is unfit to practice pharmacy due to an addiction. The Board noted that appellant admitted that he regularly injected himself with Morphine while at work, had been stealing Morphine from the pharmacy since March 1999, and had replaced that stolen Morphine with sterile saline. The Board also found that appellant stole Hydrocodone Bitartate from the pharmacy.

The Board's decision was sent to appellant by certified mail on December 16, 1999. As evidenced by appellant's signature on the return receipt, he received the decision on December 17, 1999. On December 30, 1999, appellant filed notice of appeal in the trial court and mailed a copy to the Assistant Attorney General who represented the Board. On January 4, 2000, appellant's counsel personally served the Board with notice of appeal.

Thereafter, the Board filed a motion to dismiss the appeal as untimely filed. The Board argued that, even assuming that the Board closed early on Friday, New Years Eve, appellant's notice of appeal had to be filed with the Board on Monday, January 3, 2000. A magistrate granted the Board's motion to dismiss stating that it lacked jurisdiction due to the untimely filed notice of appeal. Appellant filed timely objections which the trial court overruled on April 18, 2000. Appellant then filed timely notice of appeal to this court.

Appellant's sole assignment of error provides:

"THE COURT ERRED IN DISMISSING THE NOTICE OF APPEAL FILED PURSUANT TO R.C. 119."

Pursuant to R.C. 119.12, a party adversely affected by an order of an agency revoking a license may appeal to the trial court. To perfect his appeal, appellant shall file a notice of appeal with the agency and shall file a copy of the notice of appeal with the trial court. Both "notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency's order." As aforementioned, the Board mailed notice of its order on December 16, 1999, but the Board did not receive appellant's notice of appeal until January 4, 2000, when appellant's counsel personally delivered it to the Board.

The failure to file notice of appeal with the Board within fifteen days after the Board mails its order is fatal to the appeal. Sun Refining & Marketing Co. v. Brennan (1987), 31 Ohio St.3d 306, 307 (also explaining that before the start date is triggered by mailing, the Board must comply with the procedural requirements of R.C. 119.09 such as sending a copy of its decision to the party affected by certified mail return receipt requested). If notice of appeal is not timely filed with the Board within the specified time frame, then the court lacks jurisdiction to hear the appeal. Proctor v. Giles (1980), 61 Ohio St.2d 211, 214; Todd v. Garnes (1975), 44 Ohio St.2d 56, 57; Zier v. Bureau of Unemp. Comp. (1949), 151 Ohio St. 123, 127. See, also, Serenity Recovery Homes, Inc. v. Somani (1998), 126 Ohio App.3d 494, 497. Hence, appellant does not contest that an untimely filing negates jurisdiction and requires dismissal of the appeal.

Initially, appellant alleges that if his notice of appeal was due on January 3, 2000, then it was timely filed because, on December 30, 1999, he mailed a copy of the notice to the Assistant Attorney General who represents the Board. To assist us in arriving at the conclusion that the Assistant Attorney General received the notice in time, he mentions a "presumption of timely delivery" when notice is sent by mail and there is no evidence of the date of receipt. We note that the file contains a copy of appellant's notice of appeal that is time-stamped December 30, 1999 by the Attorney General's Health and Human Services Section. The Board notes that appellant mailed the notice to the main address for the Attorney General's Office which is not where the Assistant Attorney General for the Board is located. However, as will be demonstrated below, we need not address the issue of when the Assistant Attorney General received a copy of the notice of appeal.

The reason appellant engages in the above discussion is to argue that the Assistant Attorney General should have filed the notice of appeal with the Board for him. He also proposes that service on the Assistant Attorney General is service on the Board. Nevertheless, the statute explicitly requires that appellant file the notice of appeal with the Board. R.C 119.12. The duty lies with appellant, not the Assistant Attorney General. Additionally, as filing with a court requires a time-stamp for proof of filing,...