458 N.E.2d 408 | Ohio Ct. App. | 1983
This is an appeal taken from a dismissal of plaintiff-appellant Eleanor Bohacek's appeal to the court of common pleas from a denial of her claim for unemployment compensation. The board of review denied her benefits on July 28, 1981 and appellant mailed a notice of appeal on August 26, 1981 which the board received on August 28, 1981. On September 14, 1981, appellee, Administrator of the Ohio Bureau of Employment Services, moved to dismiss the appeal for lack of jurisdiction.
The basis for appellee's motion was that the notice of appeal was not filed with the board of review within the thirty-day appeal period as required by R.C.
Following a hearing, the court entered a judgment finding no merit in appellant's arguments opposing appellee's motion to dismiss and dismissed the case for lack of jurisdiction.1
On timely appeal to this court, appellant cites three assignments of error.
We will begin with the third assignment of error since it concerns which version of R.C.
Appellant filed her notice of appeal in the court of common pleas on August 26, 1981, and that same day mailed notice to the board, which received it on August 28, 1981. R.C.
"Any interested party may, within thirty days after notice of the decision of the board was mailed to the last known post office address of all interested parties, appeal from the decision of the board to the court of common pleas of the county wherein the appellant, if an employee, is resident or was last employed or of the county wherein the appellant, if an employer, is resident or has his principal place of business in this state. Such appeal shall be taken within such thirty days by the appellant by filing a notice of appeal with the clerk of the court of common pleas, with the board, and upon all appellees by registered mail to their last known post office address. Such notice of appeal shall set forth the decision appealed from and the errors therein complained of. Proof of the filing of such notice with the board shall be filed with the clerk. All other interested parties before the board or the referee shall be made appellees. * * *" *61
The requirement of filing a notice of appeal with the board of review as a prerequisite to conferring jurisdiction upon the court of common pleas was specifically eliminated in the amended version of the same section of the above statute, effective on September 25, 1981, which provides in part:
"Such appeal shall be taken within such thirty days by the appellant by filing a notice of appeal with the clerk of the court of common pleas. Such filing shall be the only act requiredto perfect the appeal and vest jurisdiction in the court. Failure of an appellant to take any step other than timely filing of a notice of appeal does not affect the validity of the appeal, but is grounds only for such action as the court deems appropriate, which may include dismissal of the appeal." (Emphasis added.)
Appellant argues that the amended version of the statute should apply to her case, since this statute is a remedial law which should be liberally construed in the interests of justice.
We disagree.
Under R.C.
"As a general rule, a statute is prospective in its operation `unless its terms show clearly an intention that it should operate retrospectively.' Bernier v. Becker (1881),
Since the amendment to R.C.
Further, regarding the effect of an amendment to a statute, R.C.
"(A) The * * * amendment * * * of a statute does not * * *:
"* * *
"(4) Affect any * * * proceeding * * * in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the * * * proceeding * * * may be instituted, continued, or enforced, * * * as if the statute had not been repealed or amended."
An appeal from a denial of unemployment benefits is a statutory "proceeding" within the meaning of the above statute. See Stough
v. Indus. Comm. (1944),
Appellant's reliance on Kilbreath v. Rudy (1968),
We hold that the pre-amended version of R.C.
We will now return to the discussion of appellant's first two assignments of error. *62
Appellant argues that even if the pre-amended version of R.C.
This court has addressed the identical issue in Oravecz v. Bd.of Review (May 14, 1981), Cuyahoga App. No. 42836, unreported, where we concluded at page 5:
"For a party to file a timely appeal, his notice of appeal must be received by the Board of Review within the thirty-day appeal period." (Emphasis sic.)
Accord, Rodgers v. Campbell (April 3, 1980), Cuyahoga App. No. 40394, unreported.
The record before us is undisputed that appellant's notice of appeal was received by the board of review on the thirty-first day after the mailing of the board's decision. Hence, we conclude that appellant failed to file a notice of appeal with the board within the thirty-day time limit.
Appellant also argues that Ohio Adm. Code 4146:13-01(B) (governing mailing of intra-administrative appeals) should be applied to this action. However, this regulation does not pertain to an appeal from the board of review to the court of common pleas under R.C.
Accordingly, Assignment of Error No. I is hereby overruled.
Under this assignment of error, appellant challenges the constitutionality of the pre-amended version of R.C.
Not every ambiguously worded statute is, ipso facto, void for vagueness as unconstitutional. The statute must first offend the Due Process Clause of the
Nonetheless, even assuming arguendo that appellant has raised a valid constitutional challenge to R.C.
"Such appeal shall be taken within such thirty days by the appellant by filing a notice of appeal with the clerk of the court of common pleas, with the board, and upon all appellees by registered mail to their last known post office address."
Under R.C.
This usual definition of the word "file" is also consistent with every other usage of a form of this word in the same subsection and other subsections of R.C.
"Proof of the filing of such notice with the board shall befiled with the clerk. * * * The board upon written demand filed by an appellant shall within thirty days after the filing of such demand file with the clerk a certified transcript of the record of the proceedings before the board pertaining to the decision complained of, and the appeal shall be heard upon such record certified by the board. * * *"3
The only reasonable interpretation of the words "filing" and "filed" above is "actual delivery into official custody or files" and not (as appellant would argue) "deposit into the mails" (for receipt at some unknown future date).
This interpretation of "filing" is also consistent with subsection (I) of the statute cited by appellant (governing the procedure for "filing" an appeal or request for reconsideration from an intra-administrative decision).4
Where statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language will be regarded as conclusive. United States v.Turkette (1981),
In the instant case, we find that appellant has failed to meet her burden of proving that the wording of R.C.
Assignment of Error No. II is hereby overruled.
We affirm.
Judgment affirmed.
PARRINO, P.J., and JACKSON, J., concur.
"The Court finds:
"1.) Appellant has failed to comply w/[sic] the statute in effect at the time notice of Appeal was filed.
"2.) O.R.C.
"3.) O.R.C. section
"The Appellee, Ohio Bureau of Employment Services' motion to dismiss; therefore is hereby dismissed."
We note that, to make sense of the meaning of the last sentence above, the following terms must be supplied:
"The Appellee, Ohio Bureau of Employment Services' motion to dismiss [is well-taken]; therefore [this case] is hereby dismissed."
Accordingly, we construe the meaning of the judgment entry with the above omissions supplied, as consistent with the clear intent of the court.
Appellant's argument that because an intra-administrative appeal may be filed with "an employee of another state or federal agency," she may choose to "file" her notice of appeal under subsection (O) with the United States Postal Service confuses two sections of the same statute governing separate appeal processes.