Sun Refining & Marketing Co. v. Brennan

• Decision Date: 29 July 1987
• Docket Number: No. 86-1692,86-1692
• Citation: 31 OBR 584,31 Ohio St.3d 306,511 N.E.2d 112
• Parties: , 31 O.B.R. 584 SUN REFINING & MARKETING COMPANY, Appellant, v. BRENNAN, Chief, Div. of Boiler Inspection, et al., Appellees.
• Court: Ohio Supreme Court

Page 306

31 Ohio St.3d 306

511 N.E.2d 112, 31 O.B.R. 584

SUN REFINING & MARKETING COMPANY, Appellant, v. BRENNAN, Chief, Div. of Boiler Inspection, et al., Appellees.

No. 86-1692.

Supreme Court of Ohio.

July 29, 1987.

Syllabus by the Court

The fifteen-day appeal period provided in R.C. 119.12 does not commence to run until the agency whose order is being appealed fully complies with the procedural requirements set forth in R.C. 119.09.

On October 3, 1984, the Division of Boiler Inspection of the Ohio Department of Industrial Relations (hereinafter "the division") conducted an inspection of an unfired pressure vessel used in the manufacture of petroleum products at the Toledo, Ohio refinery of the Sun Refining & Marketing Company (hereinafter "Sun"), appellant herein. The division found the vessel to be unsafe and ordered that it be shut down until the condition was corrected.

Sun had its local attorney, James M. Sciarini, appeal the division's order to the board of building appeals (hereinafter "the board"). On or about October 18, 1984, the board upheld the division's order. On October 25, 1984, the board sent an uncertified copy of its decision to Sciarini in Toledo by certified mail, return receipt requested. The board did not send a copy to Sun's refinery in Toledo or to its corporate headquarters in Philadelphia, Pennsylvania.

On November 9, 1984, fifteen days later, Sun filed a notice of appeal of the board's decision in the Lucas County Court of Common Pleas. On the same day, Sun attempted to serve a copy of the notice of appeal on the board. Sciarini telephoned Donald A. Cataldi, an assistant attorney general of Ohio, to inquire exactly where the notice should be hand-delivered on that day. Cataldi assured Sciarini that service by mail would be sufficient. Sciarini then mailed the notice to Cataldi. The notice of appeal was not actually received by the board until November 14, 1984, twenty days after the board sent the copy of its decision to Sciarini.

On October 16, 1985, two days before trial, Cataldi filed a motion to dismiss for lack of subject-matter jurisdiction, alleging that Sun had failed to serve a copy of the notice of appeal on the board within the fifteen-day appeal period provided for in R.C. 119.12. Sun responded on October 17, 1985 with a motion to dismiss the board's decision, contending that the board had failed to comply with the requirements of R.C. 119.09 and 3781.19. Citing a lack of prejudice to either party by the procedural irregularities, the trial court denied both motions on November 14, 1985, and went on to affirm the decision of the board.

Sun then pursued an appeal to the court of appeals. Raising the issue sua sponte, the court of appeals held that the court of common pleas lacked subject-matter jurisdiction due to Sun's failure to deliver the notice of appeal to the board within fifteen days, and dismissed the appeal.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Stanley L. Arabis, Philadelphia, Pa., Spengler, Nathanson, Heyman, McCarthy & Durfee, James R. Jeffery and Susan B. Nelson, Toledo, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Patrick A. Devine, Columbus, for appellees.

LOCHER, Justice.

The issue presented for our determination herein is whether an agency whose order is being appealed under R.C. 119.12 must fully comply with the procedural requirements of R.C. 119.09 before the fifteen-day appeal period begins to run. For the reasons set forth below, we reply in the affirmative.

In relevant part, R.C. 119.12 provides as follows:

"Any party desiring to appeal shall file a notice of appeal with the agency setting forth the order appealed from and the grounds of his appeal. A copy of such notice of appeal shall also be filed by the appellant with the court. Unless otherwise provided by law relating to a particular agency, such notices of appeal shall be filed within fifteen days after the mailing of the notice of the agency's order as provided in this section. * * * " (Emphasis added.)

Sun does not dispute that it failed to file its notice of appeal with the board within fifteen days after the board sent a copy of its decision to Sun's local attorney. Ordinarily, such a failure is fatal to the appeal. See Zier v. Bur. of Unemp. Comp. (1949), 151 Ohio St. 123, 38 O.O. 573, 84 N.E.2d 746; In re Claim of King (1980), 62 Ohio St.2d 87, 16 O.O.3d 73, 403 N.E.2d 200.

Sun argues that the state should be estopped from claiming that Sun failed to timely file its notice of appeal with the board, because Sun's attorney relied on the erroneous advice of an assistant attorney general that service by mail would suffice in the place of hand-delivery on that day. This argument is without merit. Principles of equitable estoppel generally may not be applied against the state or its agencies when the act or omission relied on involves the exercise of a governmental function. See Sekerak v. Fairhill Mental Health Ctr. (1986), 25 Ohio St.3d 38, 39, 25 OBR 64, 65, 495 N.E.2d 14, 15; Griffith v. J.C. Penney Co. (1986), 24 Ohio St.3d 112, 113, 24 OBR 304, 305, 493 N.E.2d 959, 961; Chevalier v. Brown (1985), 17 Ohio St.3d 61, 63, 17 OBR 64, 66, 477 N.E.2d 623, 625; Besl Corp. v. Pub. Util. Comm. (1976), 45 Ohio St.2d 146, 150, 74 O.O.2d 262, 265, 341 N.E.2d 835, 838.

More persuasive is Sun's argument that compliance by an agency with the procedural requirements of R.C. 119.09 is a condition precedent to the running of the fifteen-day appeal period set forth in R.C. 119.12. In pertinent part, R.C. 119.09 states:

"After such order is entered on its journal, the agency shall serve by certified mail, return receipt requested, upon the party affected thereby, a certified copy of the order and a statement of the time and method by which an appeal may be perfected. A copy of such order shall be mailed to the attorneys or other representatives of record representing the party." (Emphasis added.)

Of the above requirements, the board only complied with the last, in that it mailed an uncertified copy of its decision to Sun's local attorney. The board failed to send Sun a certified copy of its decision by certified mail, return receipt requested. As Sun is the "party affected" by the board's decision, the board should have sent such a copy to Sun's refinery in Toledo, or even better, to Sun's...