In re App. No. C-4973 of Skrdlant
305 Neb. 635
| Neb. | 2020Background
- Two PSC matters: applicants sought exchange-boundary changes so Hamilton Telecommunications could provide advanced service; Windstream opposed.
- PSC entered orders on July 10, 2018 (orders stated "entered and made effective" that day), granting some boundary changes.
- Windstream’s motions for rehearing were dated/served July 20, 2018 (certificate asserted certified mail), but PSC file stamps show receipt on July 23, 2018. PSC scheduled oral argument and denied rehearing on August 21, 2018.
- Windstream filed notices of intention to appeal with the PSC on September 13, 2018 (past 30 days from July 10), asserting its rehearing motions were transmitted July 20 and thus tolled the appeal period.
- Lower tribunals and Nebraska Supreme Court focused on whether the rehearing motions were "filed" within 10 days (possession by PSC) and whether Windstream overcame the presumption attached to the PSC file stamps.
Issues
| Issue | Plaintiff's Argument (Windstream) | Defendant's Argument (PSC/Applicants) | Held |
|---|---|---|---|
| Whether Windstream’s motions for rehearing were "filed" within 10 days under § 75-134.02 | Motions were transmitted July 20 by email and mailed same day, so they were in PSC’s possession on July 20 | File stamps show receipt July 23; "filed" means in agency possession and file stamp is presumed correct | Motions presumed filed July 23 (file stamp); not timely under § 75-134.02 |
| Whether mailing/email on July 20 tolled the 30-day appeal period absent PSC possession or proof of authorized electronic receipt | Transmission and service on July 20 established filing and thus suspended appeal clock until rehearing denial | Mailing does not establish PSC possession; email lacked verified receipt by authorized PSC recipient and no efiling verification; mailbox rule not in PSC statutes/rules then | Mailing/email without proof of PSC possession or verified efiling did not toll appeal period; notices of intention to appeal were untimely |
Key Cases Cited
- Green v. Seiffert, 304 Neb. 212 (jurisdictional questions of law reviewed independently)
- Creighton St. Joseph Hosp. v. Tax Equal. & Rev. Comm., 260 Neb. 905 ("filed" means in possession of tribunal)
- State v. Hess, 261 Neb. 368 (presumption of regularity attaches to official file stamps)
- Strode v. Saunders Cty. Bd. of Equal., 283 Neb. 802 (filing by facsimile acceptable where rule permits and originals follow)
- Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705 (discussing legislative adoption of mailbox rule in other contexts)
- Hanson v. Shaker Hts., 152 Ohio App. 3d 1 (Ohio approach: where no filing method provided, actual receipt by appropriate personnel may constitute filing)