Opinion
No. 781648
Decided July 25, 1967.
Unemployment compensation — Application for reconsideration of determination of claim — Time for filing — Date notice mailed not controlling — Section 4141.28, Revised Code.
A claimant for unemployment compensation benefits may file an application for reconsideration of the administrator's determination of his claim for benefits within ten calendar days after notice of such determination was delivered to the claimant, even though such application was filed more than ten calendar days after such notice of determination was mailed to the claimant.
Mr. Harry P. Papourous, for appellant.
Mr. Edward Sepessy, for appellee.
This is an action wherein Alice E. Granakis has filed an appeal to the Cuyahoga County Common Pleas Court from a decision of the Board of Review of the Bureau of Unemployment Compensation, disallowing claimant's application to institute a further appeal before the Board of Review, pursuant to the provisions of Section 4141.28, Revised Code, from the decision of a referee affirming the administrator's reconsideration decision in which he dismissed claimant's request for reconsideration because it was not filed within the time limit prescribed by law.
The claimant had been employed by the Lakewood Bakery Corporation. This employment was terminated on October 27, 1962. The initial determination by the administrator was a holding that the plaintiff was discharged by Lakewood Bakery Corporation for just cause in connection with her work. He suspended her unemployment benefit rights for the portion of unemployment caused by said separation and disallowed her claim for the week ending November 3, 1962. A copy of the initial determination was mailed by the administrator to the applicant on December 17, 1962, addressed to 4209 Dawn Cliff Drive, Cleveland, Ohio. The copy of this determination was not delivered to the claimant until December 24, 1962, because of the heavy Christmas mail.
Following is a portion of the claimant's testimony before the referee:
"Q. * * * Had you left your residence at any time?
"What was the reason for it taking so long to reaching you there?
"A. I know it was because of the Christmas mail. The previous Friday I reported and they didn't receive it."
The claimant filed an application for reconsideration of the administrator's initial determination on December 28, 1962.
"Q. What was the reason you neglected to file a request for reconsideration from the decision that you received, mailed to your last known address, date mailed December 17, 1962, as indicated, until December 28, 1962?
"A. Well, I thought I had ten days and I was to report Friday to the Unemployment and I took care of it then."
The application for reconsideration is governed by Section 4141.28(G), Revised Code, 130 Ohio Laws 222 (formerly Section 1346-4, General Code) and it provides:
" Any interested party notified of a determination of an application for determination of benefit rights or a claim for benefits may, within ten calendar days after such notice was delivered to such person or was mailed to his last known postoffice address, apply in writing for a reconsideration of the administrator's or deputy's determination, and the payment of future benefits affected by such application shall be withheld pending the decision upon reconsideration."
The administrator dismissed the claimant's request for reconsideration holding that the request was not filed within the time prescribed by law.
The administrator's reconsideration decision follows:
"On December 17, 1962, the administrator issued a determination with respect to the benefit rights of the claimant identified above. On the same date, a copy of this determination was mailed to the last known post office address of each interested party.
"On December 28, 1962 claimant requested a reconsideration of this determination.
"The Ohio law provides that an interested party has ten days from the date of mailing of a determination to file a request for reconsideration. The determination mailed on December 17, 1962, became final on December 27, 1962, therefore, the request filed on December 28, 1962, was not made within the time limit prescribed by law and cannot be accepted as a timely request for reconsideration."
"The request for reconsideration of the determination dated December 17, 1962, is hereby dismissed because the request was not filed within the time limit prescribed by law."
This decision was upheld by the referee for the Board of Review and by the Board of Review.
In this matter the claimant filed her application for reconsideration within 11 days after the notice of the original determination by the administrator had been mailed to her last known post office address and within 4 days after such notice was delivered to the claimant. The delivery was by the United States Post Office Department.
The administrator's reconsideration decision includes the following:
"The Ohio law provides that an interested party has ten days from the date of mailing of a determination to file a request for reconsideration."
This is not a complete statement of the law and is misleading.
The law does not limit the time within which an application for reconsideration may be filed to 10 days from the date of mailing.
A claimant may file an application for reconsideration either
1. Within 10 calendar days after such notice was delivered, or
2. Within 10 calendar days after such notice was mailed to his last known post office address. (Section 4141.28(G), Revised Code.
Usually the time within which an appeal may be taken is computed from the date of the entry appealed from. Understandably it would place an impossible burden upon a claimant for unemployment compensation to require him to keep in such contact with the proceedings on his application for compensation so as to know of the exact date a determination or decision is made by the administrator, a deputy administrator, a referee, or the Board of Review. The Legislature of Ohio has therefore provided that it shall be the obligation of the Bureau of Unemployment Compensation, its Administrator, the Board of Review, etc., to give notice to interested parties of all determinations or decisions. The date of notice controls the date within which applications for reconsideration (Section 4141.28 (G), Revised Code), or appeals to the Board of Review (Section 4141.28(H), Revised Code), must be filed.
Section 4141.28 (G), Revised Code, provides:
"Any interested party, notified of a determination of an application * * * may, within 10 calendar days after such notice was delivered to such person, or was mailed to his last known post office address, apply in writing for a reconsideration. * * *
"Unless an application for reconsideration is filed within such 10-day period, such determination. * * * is final. * * *"
It is obvious from the use of the word "notified" that receipt of a notice is pre-supposed before the time limitaton for filing an application for reconsideration is to be computed.
Section 4141.28 (H), Revised Code, provides:
"Any interested party may appeal the administrator's decision on reconsideration to the board and unless an appeal is filed from such decision on reconsideration with the board within ten calendar days after such notification was delivered to such person or was mailed to the last known post office address of the appellant such decision on reconsideration is final. * * *"
The word "notification" is used in Subsection (H) in the same manner as the word "notified" is used in Subsection (G). Both words pre-suppose the receipt of a notice — not the mere issuance or mailing of a notice.
The question presented for decision by this court is one involving the time within which an application for reconsideration of an original decision by the administrator must be filed. Reported decisions with reference to the time within which an appeal may be taken to court from a final decision of the Board of Review are not helpful to a determinatoin of this question since such appeals are restricted to "within 30 days after notice of the decision of the board was mailed * * * to * * * all interested parties * * *" Section 4141.28 (Q), Revised Code. The phrase "within 10 calendar days after such notice was delivered to such person" as it appears in Section 4141.28 (G), Revised Code, and Section 4141.28 (H), Revised Code, is not contained in Section 4141.28 (Q), Revised Code.
The time within which a person may apply for a reconsideration, or may appeal is of course jurisdictional. However, where a statute specifies two different events from which the time limit for taking such a procedural step may be computed, an interested person may validly utilize the latest date as a basis for computing the time limitation.
The Supreme Court of Ohio has held that the limitations on the right of appeal should be given a liberal interpretation in favor of a right of appeal. Van Meter v. S. S. Co., 5 Ohio St.2d 185 :
"1. Statutes providing for appeals and for proceedings with respect to appeals and for limitations on the right of appeal are remedial in nature and should be given a liberal interpretation in favor of a right of appeal. (Section 1.11, Revised Code, applied.)
"2. Where a statute requires an application to be filed in a public office within a certain number of calendar days, the time within which such filing can be made should be computed by excluding the first and including the last day and, when the last day falls on Saturday, then the filing may be done on the following Monday. (Sections 1.11, 1.14, 5.30 and 4141.28 (G), Revised Code, construed and applied.)"
The constitutionality of a statute which would permit the right of appeal to be controlled by the efficiency or lack of efficiency of the United States Post Office Department, or the seasonable volume of its business, or the malfunctioning of some of its equipment or air or rail disasters resulting in the destruction of mail, would be questionable. The facts in the instant case and the applicable subsection of the controlling statute do not require a constitutional determination.
The provisions that a person may apply for reconsideration "within 10 calendar days after such notice was delivered * * * or was mailed * * *" eliminated the possibility of a premature application for reconsideration or notice of appeal. Such premature filing would be a nullity because the order or decision has not become so final as to be appealable. This could be comparable to a situation where a notice of appeal is filed upon an oral pronouncement by a court of its decision but prior to journalization.
While a person may not apply for reconsideration until after notice of a determination was mailed (regardless of the date that the determination was made) he need not wait for delivery of the mail before doing so. He may so apply upon learning of the mailing. However, the time within which he must so apply, or appeal, is limited to the 10 days after such notice was delivered, either by the United States Post Office Department or by its being handed to him by an employee of the Bureau of Unemployment Compensation.
A contention that the phrase "after such notice was delivered to such person" should be read as stating "after such notice was delivered to such person by an employee of the Bureau of Unemployment Compensation" is unwarranted. The statute does not so state and neither the court nor the Bureau of Unemployment Compensation may add a limitation upon the claimant's rights by reading something into the statute that is not actually contained in it. If the Legislature had intended this phrase to be so limited it could have easily said so.
The date of delivery may, at times, require a factual determination. There is apparently no dispute about the facts in the instant case with respect to the issue presented on this appeal.
It has been conclusively established that the claimant in the instant case filed her application for reconsideration within the required ten days after notice of the initial determination by the administrator was delivered to her. There probably had been a delay in its delivery because of heavy Christmas mail. It is interesting to note that when she had reported to the Bureau of Unemployment Compensation, after the date of mailing and prior to delivery, "* * * they hadn't told me the previous Friday that this had been turned down, or accepted. They didn't know anything about it either."
We are aware that the decision of the Court of Appeals for Hamilton County, in McCoy v. Bureau of Unemployment Compensation, 81 Ohio App. 158, is apparently in conflict with this decision although the McCoy case involved the question of the timeliness of an appeal to the Board of Review rather than the timeliness of an application for reconsideration of a determination by the administrator.
However the court feels that this decision is consistent with the opinion of the Cuyahoga County Court of Appeals in House v. BUC, in which it analyzes Section 4141.28, Revised Code. It is the decisions of the Cuyahoga County Court of Appeals that are binding upon this court.
In House v. B. U. C., 107 Ohio App. 400, the court discusses the procedural steps necessary to be taken by a person dissatisfied with an original determinatoin by the administrator, although the House appeal was rejected because the court found that the claimant had failed to follow the requirement that he request a rehearing by the Board of Review before filing an appeal to the Court of Common Pleas.
Page 402.
"Any interested party dissatisfied with and affected by the decision may, within ten days of notice of such determination, file in writing a request, thereby seeking a reconsideration of the administrator's determination."
The court does not limit the time of a request for reconsideration to ten days after mailing of the notice but rather indicates it must be within 10 days of its delivery or receipt.
See also: Section 4141.46, Revised Code (1345-33) Liberal Construction. Sections 4141.01 to 4141.46, inclusive, Revised Code shall be liberally construed.
The decision of the Board of Review wherein it disallowed claimant's application to institute further appeal before the Board of Review from the referee's decision affirming the administrator's decision on reconsideration is reversed and the cause remanded to the Administrator of the Bureau of Unemployment Compensation for decision on claimant's application for reconsideration of the administrator's initial determination of claimant's application for determination of benefit rights under the Unemployment Compensation laws of Ohio.
Decision reversed.