Smith v. Review Bd. of Indiana Employment Sec. Division, 2--1173--A--241

• Decision Date: 31 January 1974
• Docket Number: No. 2--1173--A--241,2--1173--A--241
• Citation: 159 Ind.App. 282,306 N.E.2d 140
• Parties: Walter W. SMITH, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees.
• Court: Indiana Appellate Court

Page 140

306 N.E.2d 140

159 Ind.App. 282

Walter W. SMITH, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees.

No. 2--1173--A--241.

Court of Appeals of Indiana, Second District.

Jan. 31, 1974.

John D. Raikos, Raikos, Melangton, Dougherty & Christ, Indianapolis, for appellant.

Harold L. Folley, Indianapolis, Theodore L. Sendak, Atty. Gen. of Indiana, Robert Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

ON THE MOTION OF APPELLEE REVIEW BOARD TO DISMISS APPEAL

PER CURIAM.

This cause is pending before the Court on the Motion of the appellee Review Board of the Indiana Employment Security Division to dismiss this cause for lack of jurisdiction. Specifically, appellee alleges that appellant's Notice of Intention to appeal was not received and filed with the Review Board within the time required by statute, and that the appellee Indiana Bell Telephone Company, Inc., failed to file a Notice of Intention to appeal, thus depriving this Court of jurisdiction of both the appellant's appeal and the appellee's attempted cross appeal.

We have examined the record of the proceedings herein, and based upon that examination we find that the allegations of the Motion to Dismiss are true and this cause should be dismissed.

The record reveals that the decision of the Review Board was mailed on September 19, 1973. The Board found and held that there was ample evidence to sustain a discharge for just cause in connection with claimant's work, affirmed the decision of the referee and imposed the statutory penalty of Chapter 15--1 of the Act. The statute providing for an appeal from the Review Board to this Court, § 52--1542j, Ind.Ann.Stat. (Burns' 1964 Repl.), IC 1971, 22--4--17--11 provides as follows:

'Any decision of the review board, in the absence of appeal therefrom as herein provided, shall become final fifteen (15) days after the date such decision is mailed to the interested parties. Provided, however, That if the board or the director or any party adversely affected by such decision files with the review board, at any time prior to the expiration of fifteen (15) days from the date of mailing of such decision, a notice of an intention to appeal from such decision, such action shall stay all further proceedings under or by virtue of such review board decision for a period of thirty (30) days from the date of the filing of such notice, and, if such appeal is perfected, further proceedings shall be further stayed, pending the final determination of said appeal; Provided, further, That if an appeal from such decision of the review board is not perfected within the time provided for by this act ( § 52--1563b), no action or proceeding shall be further stayed.'

Fifteen days from September 19, expired on October 4, 1973 which date was not a Saturday, Sunday or legal holiday.

On October 5, 1973, claimant's Notice of Appeal was received by the Review Board. The appellee contends that the notice of appeal must be received by the Review Board within the mandatory 15 days. Appellant contends that the Notice to appeal was timely filed by mailing on October 1, 1973. Appellant further contends that the Indiana Rules of Civil Procedure apply, and he refers us to Rule TR 5(B)(2), IC 1971, 34--5--1--1, Rule 5(b)(2) which pertains to service by mail. (Not filing by mail, which is found at Rule TR 5(E)(2), IC 1971, 34--5--1--1, Rule 5(e)(2)). ¹

Our Supreme Court held in the case of Clary v. National Friction Products Inc. (1972), Ind., 290 N.E.2d 53 that the rules of trial procedure are not applicable to proceedings before administrative agencies. Specifically the Court stated:

'Trial Rule 1 provides that the rules govern 'the procedure and practice in all courts of the state of Indiana * * *' Nothing in the rules purports to extend them to administrative boards from whom appeals to the courts may be had.'

'Each of the several administrative agencies is a creature of the Legislature. The procedures to be followed in presenting matters to these agencies and in appeals therefrom are specifically set out in the statutes pertaining to each. The rules of trial procedure, which, as stated in Trial Rule 1, govern the procedure and practice in all courts of the state of Indiana are not applicable to proceedings before the administrative agencies nor to the proceedings requisite to invoking the jurisdiction of reviewing judicial authority.' (290 N.E.2d 53, at p. 55.)

In the case of Teepe v. Review Board, etc. (1964), 136 Ind.App. 331, 334, 200 N.E.2d 538, Justice Hunter speaking for the Appellate Court stated:

'The Supreme Court of Indiana has held that where a statute provides the remedy for review of a decision of an administrative board and a proceeding to be followed, the procedure must be followed as a condition precedent to the acquiring of jurisdiction. In Ballman v. Duffecy ...