Opinion
No. 85-1148
Decided July 16, 1986.
Public employment — Job abolishment — Appeal to State Personnel Board of Review — Principles of estoppel not applicable against state, when.
CERTIFIED by the Court of Appeals for Franklin County.
Appellant, Loreen A. Sekerak, was employed as a certified peer review nurse at the Fairhill Mental Health Center in Cleveland, Ohio, from late 1978 until early 1983. As a peer review nurse, she was responsible for gathering data pertinent to the quality of health care received by patients at the center. On December 17, 1982, Sekerak received written notification that her position was to be abolished and that she would be laid off effective January 29, 1983. The notification provided, inter alia, as follows:
"You have the right to appeal your layoff to the State Personnel Board of Review within ten (10) days after receipt of this letter. Your appeal must be in writing and must be filed or postmarked no later than ten (10) days after receipt of this letter. Your appeal must be mailed directly to the State Personnel Board of Review, 10th Floor — Suite 1045, 30 East Broad Street, Columbus, Ohio 43215."
Apparently, appellant was confused as to whether the ten-day appeal period meant ten calendar days from receipt of the letter, or ten working days from its receipt in which to initiate an appeal to the State Personnel Board of Review. Accordingly, appellant approached the personnel director at Fairhill Mental Health Center, Judith Del Regno, for guidance concerning the procedure to be followed in perfecting an appeal. Del Regno informed appellant, contrary to R.C. 1.14 and 124.328, that the ten-day rule meant that she had ten working days in which to file her appeal.
R.C. 1.14 provides, in pertinent part:
"The time within which an act is required by law to be done shall be computed by excluding the first and including the last day; except that when the last day falls on Sunday or a legal holiday, then the act may be done on the next succeeding day which is not Sunday or a legal holiday."
R.C. 124.328 provides:
"An employee may appeal a layoff, or a displacement which is the result of a layoff, to the state personnel board of review. The appeal shall be filed or postmarked no later than ten days after receipt of the notice of layoff or after the date the employee is displaced. In cases involving the laying off of classified employees the affected employee may appeal the decision of the state personnel board of review to the common pleas court. The appeal from the state personnel board of review shall be made in accordance with section 119.12 of the Revised Code."
Appellant accepted this advice; although she was notified on December 17, 1982 that her job was to be abolished, her notice of appeal to the board of review was not postmarked until January 4, 1983. By order dated April 29, 1983, the board of review dismissed appellant's appeal as untimely. On appeal, the court of common pleas reversed, finding that under R.C. 124.328, appellant was entitled to perfect her appeal within ten days of receipt of the job abolishment notice or within ten days of her displacement. The court reasoned that since appellant was not "displaced" until January 29, 1983, her appeal postmarked January 4, 1983, was timely filed.
The rationale expressed by the court of common pleas was rejected by the court of appeals when it concluded that appellant had not been "displaced" by an employee with greater seniority; instead the court of appeals reasoned that appellant had sustained a "layoff" or job abolishment and, as such, was required to file her appeal within ten days after receipt of the notice. In addition, the court was unable to accept appellant's contention that under a theory of estoppel, Del Regno's incorrect advice should have precluded the board of review from dismissing the appeal as untimely. The court of appeals, finding its decision to be in conflict with the judgment of the Court of Appeals for Mahoning County in Ruozzo v. Giles (1982), 6 Ohio App.3d 8, certified the record of the case to this court for review and final determination.
Appellant does not contest the holding by the court of appeals that she was not, in fact, displaced from her position. Thus, the only issue before this court is whether the equitable principle of estoppel should apply to cause appellant's belated appeal to be considered timely.
Schwartz, Einhart Simerka and Robb F. Reinker, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Laurel D. Blum, for appellees.
It is well-settled that as a general rule "* * * the principle of estoppel does not apply against a state or its agencies in the exercise of a governmental function." Besl Corp. v. Pub. Util. Comm. (1976), 45 Ohio St.2d 146, 150 [74 O.O.2d 262], citing, inter alia, State, ex rel. Upper Scioto Drainage Conserv. Dist., v. Tracy (1932), 125 Ohio St. 399; State, ex rel. Kildrow, v. Indus. Comm. (1934), 128 Ohio St. 573 [1 O.O. 235]; Interstate Motor Freight System v. Donahue (1966), 8 Ohio St.2d 19. See, also, Griffith v. J.C. Penney Co. (1986), 24 Ohio St.3d 112, at 113-114; Chevalier v. Brown (1985), 17 Ohio St.3d 61, 63; Switzer v. Kosydar (1973), 36 Ohio St.2d 65 [65 O.O.2d 215].
Moreover, in Ford v. Indus. Comm. (1945), 145 Ohio St. 1 [30 O.O. 236], this court reasoned that "[e]stoppel is an equitable principle and has no bearing upon venue and jurisdiction of the subject matter." Id. at 4-5. (Emphasis added.) Since jurisdiction of appellant's appeal is conferred by statute (R.C. 124.328) upon the State Personnel Board of Review, the parties may not, by agreement or otherwise, confer jurisdiction upon the board where it is otherwise lacking. Accord Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236 [2 O.O.3d 408].
In spite of the aforementioned precedent, appellant seeks to bring her case within the confines of Ruozzo v. Giles, supra. In that case, the successful party, Mr. Ruozzo, was notified in December 1977 by the Ohio Bureau of Employment Services that he was entitled to certain trade readjustment allowances from August 1977 until August 1978. The notice which Ruozzo received, however, did not inform him of the time period in which the application for the trade readjustment allowances was required to be filed. Upon subsequent investigation, Ruozzo was informed by an employee of the Bureau of Employment Services "that he had until September 1980" to tender his application. Id. at 8. Nevertheless, when the application was submitted in March 1978, it was denied by the bureau as untimely.
In reversing the decision of the bureau and the judgment of the court of common pleas, the court in Ruozzo concluded that the equitable principle of estoppel should apply so as to allow the application for trade readjustment allowances to be considered as having been filed in a timely fashion.
Assuming, arguendo, that this court is in agreement with the holding in Ruozzo, the facts presented therein are nevertheless significantly distinguishable from the cause sub judice. This is readily apparent from the fact that in Ruozzo the notice sent to the applicant "offered no information as to filing dates," while in the instant case, appellant's notice twice stated within a single paragraph that her appeal must be instituted "within ten (10) days after receipt of this letter." In view of this considerable distinction, we are compelled to reject appellant's reliance on Ruozzo as commanding the application of the equitable doctrine of estoppel in the instant case.
Alternatively, appellant maintains that the notice of abolishment directed her to contact Del Regno for specifics concerning the initiation of an appeal to the board of review. We disagree, for although Del Regno's name appears in the notice three times, the references coincide with obtaining information, or exercising rights, pertaining to displacement, reinstatement, recall, or obtaining a copy of Ohio Adm. Code Chapter 123:1-41 (Rules of the Department of Administrative Services). A careful reading and examination of the abolishment notice fails to support appellant's contention that Del Regno was portrayed as the person to contact regarding the procedure for perfecting an appeal to the board of review.
For all the foregoing reasons, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.