Opinion
No. 32617
Decided November 21, 1951.
Appeal — Board of Review, Bureau of Unemployment Compensation, to Common Pleas Court — Section 1346-4, General Code — Notice of appeal to contain what — Decision appealed from sufficiently "set forth," when.
Where an appeal is taken to the Common Pleas Court from a decision of the Board of Review, Bureau of Unemployment Compensation, that portion of Section 1346-4, General Code, which reads, "such notice of appeal shall set forth the decision appealed from," does not require that the decision appealed from be incorporated in the notice of appeal by being copied into it or by being attached thereto and made part thereof by reference. The "decision appealed from" is sufficiently "set forth" to satisfy the requirements of that statute where the notice of appeal clearly and without any ambiguity or uncertainty identifies, fully describes and states the substance and effect of the decision from which the appeal is taken.
APPEAL from the Court of Appeals for Franklin county.
The sole issue before this court is the sufficiency of the notice of appeal to the Common Pleas Court from a decision of the Board of Review of the Bureau of Unemployment Compensation.
The claim of John Bernard Moore for unemployment compensation was heard and disallowed and that determination was affirmed by the Board of Review. Within the time prescribed by statute the claimant filed in the Common Pleas Court of Franklin County and also mailed by registered mail to the Bureau of Unemployment Compensation, to Clyde W. Foreacher, as receiver of the Lustron Corporation, and to the Lustron Corporation a notice of appeal in the following form:
"Now comes the appellant John Bernard Moore, and says that his claim for unemployment compensation was heard by the referee of the Board of Review, on claimant's appeal from the administrator's initial determination, on the twentieth day of December 1949. That the appellant appealed this decision to the Board of Review, and on the fifteenth day of February 1950 the said Board of Review disallowed the claimant's application to institute a further appeal. That the said Board of Review mailed a copy of this decision to the appellant on the ninth day of March 1950.
"Appellant herein gives notice of his appeal to the Common Pleas Court of Franklin County, Ohio, under and by virtue of Section 1346-4, General Code of Ohio, to the Bureau of Unemployment Compensation, the Lustron Corporation and to Clyde W. Foreacher as receiver of the Lustron Corporation, 4300 East 5th avenue, Columbus, Ohio.
"Appellant herein says that he is a resident of Franklin county, Ohio, and that the employer, the Lustron Corporation, is a duly incorporated corporation in the state of Ohio and that Clyde W. Fereacher is the duly appointed receiver of the said Lustron Corporation in the United States District Court for the Southern District of Ohio, being case number 2772. That the decision appealed from is numbered on the appeals docket for the Board of Review — Bureau of Unemployment Compensation No. 105497, 13915-REF-49, 151-BR-50 and the social security number of the appellant herein is 566-34-8570.
"Appellant further says that the decision of the Board of Review was to the effect that the appellant herein was not available for work, whereas, in truth and in fact, the appellant was available for work. That the appellant contacted the following employers within two weeks after his discharge from Lustron Corporation:
"Timken Roller Bearing Co., 1025 Cleveland ave., Columbus, Ohio.
"The Ray-O-Light Products Co., Columbus, Ohio.
"The Chesapeake Ohio Railway, Huntington, W. Va.
"The State Highway Dept., Miller, Ohio.
"That he moved from Columbus, to Miller, Ohio, only as a temporary measure and he was at all times ready, willing and able to return to Columbus should any referrals be offered by the Bureau of Unemployment Compensation. That no referrals were offered to him after the date of the filing of his application on September 8, 1949 until the date of this appeal.
"Coughlin, Ogier Lloyd,
"Attorneys for appellant.
"State of Ohio, Franklin County, ss.:
"John Bernard Moore, being first duly sworn, deposes and says he is the employee and appellant in the above-entitled action, and that he is an interested party as defined by Sec. 1345-1, General Code of Ohio, and files this notice of appeal as such, and that the facts stated in the foregoing notice of appeal are true, as he verily believes.
"John Bernard Moore.
"Sworn to before me and subscribed in my presence this 3rd day of April, 1950.
"Robert A. Ramsey
"Notary public."
The copy in the files of the Bureau of Unemployment Compensation bears the following notation:
"Postmarked April 4, 1950.
"Received April 5, 1950. Mailing section."
The case in the Common Pleas Court was docketed as No. 179835. The Board of Review, Bureau of Unemployment Compensation, filed a motion in the case in the Common Pleas Court to dismiss the appeal for the reason that the notice of appeal failed to set forth the decision appealed from as required by law. That motion was sustained and it was ordered that the appeal be dismissed.
Upon appeal to the Court of Appeals the judgment of the Common Pleas Court on the motion to dismiss was reversed. Appeal to this court was then perfected.
Messrs. Coughlin, Ogier Lloyd and Mr. Robert A. Ramsey, for appellee.
Mr. C. William O'Neill, attorney general, Mr. J. Ralston Werum and Mr. Joseph S. Deutschle, Jr., for appellant.
Did the notice of appeal from the decision of the Board of Review, Bureau of Unemployment Compensation, to the Common Pleas Court satisfy the requirements of the statute as to form? It is agreed that the answer to this question depends upon the construction of Section 1346-4, General Code. The pertinent portion of that section reads as follows:
"* * * Such appeal shall be taken by the filing by appellant of a notice of appeal with the clerk of such court and with the Board of Review. 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 of Review shall be filed with the clerk of such court." (Emphasis added.)
No question is, raised as to service of the notice. The only question is, did the notice of appeal "set forth" the decision appealed from?
The Bureau of Unemployment Compensation, in support of its motion to dismiss, relies upon American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147, 70 N.E.2d 93, and Zier v. Bureau of Unemployment Compensation, 151 Ohio St. 123,
84 N.E.2d 746. The claimant, Moore, in opposing the motion to dismiss the appeal, relies largely upon the case of Castleberry, d.b.a. Cedar Hill Farms, v. Evatt, Tax Commr., 147 Ohio St. 30, 67 N.E.2d 861, 167 A.L.R., 198.
The American Restaurant Lunch Co. case above referred to involved an appeal from an order of the Tax Commissioner of Ohio to the Board of Tax Appeals. It did not involve unemployment compensation. The procedure to effect that appeal was specified in Section 5611, General Code, which provides:
"Such appeals shall be taken by the filing of a written notice to that effect with the Board of Tax Appeals and with the Tax Commissioner * * *. The notice of such appeal shall set forth or shall have attached thereto and incorporated therein by reference, a true copy of the notice sent by the commissioner to the taxpayer of the final determination complained of, and shall also specify the error or errors therein complained of."
The notice of appeal in that case did not incorporate a true copy of the determination complained of, either in the body of the notice or by attachment thereto. The specific requirements of Section 5611, General Code, were not complied with and the court so held. The language of Section 1346-4, General Code, is not the same as that of Section 5611, General Code, and we do not consider the decision in the American Restaurant Lunch Co. case applicable in the instant case.
In the Zier case, supra, this court construed the identical portion of Section 1346-4, General Code, involved in the instant case, but the notice of appeal in the Zier case was materially different from the notice now under consideration. In the Zier case the notice of appeal merely said:
"The undersigned claimant hereby gives notice of appeal from the decision of the Board of Review denying the right to compensation, in accordance with his right to appeal under Section 1346-4 of the General Code."
This court held that that notice was not in compliance with the requirements of Section 1346-4, General Code, and with the decision in that case we remain in accord.
In the instant case the notice of appeal to the Common Pleas Court recites the name and social security number of the appellant; the docket number of the proceedings before the Bureau of Unemployment Compensation; the date of the decision appealed from; the date of mailing of notice to the claimant of the decision appealed from; that notice of appeal was given to the interested parties who are then named; and that the appeal was being taken to the Common Pleas Court of Franklin County. The notice then states the substance and effect of the decision appealed from, denies the truth of factual finding of the Board of Review and states the facts which Moore claims establish the errors committed by the Board of Review.
We believe that this notice of appeal, considered realistically, does sufficiently "set forth" the decision appealed from and the errors therein complained of to satisfy the requirements of Section 1346-4, General Code. Even though it may be good practice to include in the body of the notice of appeal, or by attachment thereto and reference, an exact copy of the decision appealed from, we do not consider that the words, "set forth," require such to be done. The notice of appeal must, however, be so complete in its terms and recitals that no uncertainty can exist as to the particular decision appealed from. The notice of appeal in the instant case is sufficiently complete.
The conclusion reached by this court in the instant case is in complete harmony with the decision rendered in Castleberry, d.b.a. Cedar Hill Farms, v. Evatt, Tax Commr., supra. In that case an appeal was taken to this court from a decision of the Board of Tax Appeals. The proceedings to be followed were specified in Section 5611-2, General Code. As to the form of notice of appeal that section provides: "Such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from and the errors therein complained of." The notice of appeal there did not contain, or incorporate by reference, a copy of the decision appealed from. A motion was filed to dismiss the appeal on the ground that the notice of appeal did not comply with the statute. This court held that the notice was sufficient and overruled the motion to dismiss. Though a different statute was there under consideration, its language is identical with that of Section 1346-4, General Code, in that both require that the decision be "set forth," and neither specifically provides that the decision be copied into the notice or be attached and made a part thereof by reference.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART and HART, JJ., concur.
TAFT, J., concurs, excepting next to the last sentence of the opinion.