Smoliga v. Keller

• Decision Date: 31 August 1965
• Citation: 3 Ohio App.2d 250,210 N.E.2d 269
• Parties: , 32 O.O.2d 366 SMOLIGA, Appellant, v. KELLER, Admr., Bureau of Workmen's Compensation, et al., Appellees.
• Court: Ohio Court of Appeals

Page 250

3 Ohio App.2d 250

210 N.E.2d 269, 32 O.O.2d 366

SMOLIGA, Appellant, v. KELLER, Admr., Bureau of Workmen's Compensation, et al., Appellees.

Court of Appeals of Ohio, Seventh District, Trumbull County.

Aug. 31, 1965.

Traxler & Malkoff, Youngstown, for appellant.

Guarnieri & Secrest, Warren, for appellee Packard Electric Division, G.M.C.

William B. Saxbe, Atty.Gen., and Robert Duncan, Columbus, for appellee Elmer A. Keller, Administrator, Bureau of Workmen's Compensation.

JOHNSON, Presiding Judge.

This appeal comes on for hearing on an order of the trial court sustaining a motion to dismiss the notice of appeal and petition of the claimant-appellant and the further overruling of a motion for rehearing. The motion as filed in the trial court was directed to the jurisdiction of the trial court to entertain such appeal, appellee claiming such appeal had not been properly perfected in accordance with the provisions of Section 4123.519, Revised Code.

The notice of appeal filed herein is in pertinent part as follows:

"*** and serves notice of her appeal in Claim Number 392813-22, from the decision of the Canton Regional Board of Review entered September 27, 1963, from which the Industrial Commission of Ohio has refused to permit an appeal to said commission. ***." (Emphasis added.)

In addition, the petition, in part, sets out the following facts:

"5. Plaintiff further says that she filed her Application for compensation with the Industrial Commission of Ohio and that said claim was processed through various stages before the said commission and finally disallowed on the 27th day of September, 1963 and the following was the last order of the said Industrial Commission of Ohio:

" 'It is ordered that the appeal filed October 10, 1963 by the claimant from the order made September 27, 1963 by the Canton Regional Board of Review be refused and that copies of this order be mailed this day to all interested parties.'

"6. Plaintiff further states that such disallowance was in violation of her rights under the Workmen's Compensation Act and an unjustified denial thereof, by reason of which she appeals to this Court and demands a trial by jury." (Emphasis added.)

It is to be noted again that the disallowance referred to above is the disallowance of an appeal from the order of the Canton Regional Board of Review.

The notice of appeal was filed within the statutory time allowed.

The petition, on the other hand, was filed seven days after the running of the thirty-day period provided in Section 4123.519, Revised Code.

Two questions, testing the validity of the order of the trial court sustaining the motion to dismiss the notice of appeal and petition filed herein, and overruling the motion for rehearing, are thus presented to this court:

1. Whether a claimant-appellant, having been refused an appeal from an order of the Regional Board of Review by the Industrial Commission of Ohio must direct his notice of appeal to the decision of the Regional Board of Review or to refusal of the Industrial Commission to entertain an appeal from said Regional Board of Review.

2. Whether or not, after having filed a notice of appeal, it is mandatory and jurisdictional that a petition be filed by claimant-appellant within the thirty-day statutory period set out.

In regard to the first question raised, the Supreme Court of Ohio dealt with an identical one in Parker v. Young, Admr., Bureau of Workmen's Compensation, 172 Ohio St. 464, 178 N.E.2d 798. At page 466 of 172 Ohio St., at page 800 of 178 N.E.2d thereof is to be found the following:

"This court having determined in Starr v. Young, supra [172 Ohio St. 317, 175 N.E.2d 514], that this section must be strictly complied with, it is obvious that no appeal lies from an order of the Industrial Commission refusing to permit an appeal. In such a case, the appeal necessarily must be from the decision of the Regional Board of Review."

A reading of the record in the instant case clearly shows that the claimant-appellant appealed from the decision of the Canton Regional Board of Review entered September 27, 1963. The concluding sentence of the notice of appeal, in part, is as follows:

"*** and that the order of the Canton Regional Board of Review under date of September 27, 1963, is an appealable and final one ***." (Emphasis added.)

As to the filing of a notice of appeal, Section 4123.519, Revised Code, provides as follows:

"*** Notice of such appeal shall be filed by the appellant with the commission and the court of common pleas within sixty days after the date of the receipt of the decision appealed from or the date of receipt of the order of the commission refusing to permit an appeal from a regional board of review. Such filings shall be the only act required to perfect the appeal and vest jurisdiction in the court." (Emphasis added.)

It being apparent that the notice of appeal filed herein complied in all respects with the mandatory provisions of the statute, its filing vested jurisdiction in the Common Pleas Court to hear such appeal.

The second question to be resolved results from the orders of the trial court sustaining the motion to dismiss the notice of appeal and the petition and overruling the motion for rehearing. Both the motion to dismiss and the motion for rehearing were disposed of on the same day. The salient question, as heretofore pointed out, is whether the failure to timely file a petition is jurisdictional.

Much confusion has arisen over application of the following pertinent parts of Section 4123.519, Revised Code, to the filing of a petition:

"The claimant shall, within thirty days after the filing of the notice of appeal, file a petition setting forth the basis for the jurisdiction of the court over the action and setting forth the issues. Further pleadings shall be had in accordance with the rules of civil procedure, provided that service of summons on such petition shall not be required. ***." (Emphasis added.)

Through the evolution of amendments to the Ohio Workmen's Compensation Act, we now have a statute which requires the filing of a petition by the claimant, even though the claimant may have been the successful party before the Industrial Commission and in fact may have no desire to prosecute an appeal.

The dilatory tactics thus made available to a successful claimant against an employer desiring to appeal are obvious. As has been previously stated by this court in Hanna Coal Co. v. Young, 1 Ohio App.2d 230, at page 232, 204 N.E.2d 399, numerous tactics have also been used by appellant employers to force the claimant to file the petition as required.

The apparent mandatory wording of the statute would indicate that failure of the claimant to file a petition within the thirty-day period,...