Summary
In Thompson v. Reibel (1964), 176 Ohio St. 258, this court held that a court may, in the exercise of sound discretion, permit a claimant to file his complaint after the 30-day period, even where the claimant, rather than the employer, appeals from an unfavorable administrative order or decision.
Summary of this case from Zuljevic v. Midland-RossOpinion
No. 38476
Decided May 20, 1964.
Workmen's compensation — Appeal from decision of Industrial Commission — Notice of appeal — Filing notice only jurisdictional requirement — Section 4123.519, Revised Code — Filing of petition not jurisdictional.
Under Section 4123.519, Revised Code, the filing of a petition by a claimant is not jurisdictional. The filing of a notice of appeal with the Industrial Commission of Ohio and the Court of Common Pleas is the only act required to perfect the appeal and vest jurisdiction in the court. (Paragraph two of the syllabus of Singer Sewing Machine Co. v. Puckett, 176 Ohio St. 32, approved and followed.)
CERTIFIED by the Court of Appeals for Franklin County.
Plaintiff, Ethel J. Thompson, filed a death claim with the Bureau of Workmen's Compensation for the death of her husband. The administrator disallowed the claim, and an appeal was perfected to the Regional Board of Review which affirmed the decision of the administrator. On April 5, 1960, the Industrial Commission denied the appeal of plaintiff. On May 4, 1960, plaintiff filed her notice of appeal in the Court of Common Pleas of Franklin County. On June 29, 1960, more than 30 days after the filing of the notice of appeal, plaintiff filed her petition in the Court of Common Pleas.
Defendant George Reibel, appellant herein, on July 16, 1960, filed a motion to dismiss on the ground that the petition was not filed within the 30-day time limit specified in Section 4123.519, Revised Code, and the motion was sustained by the trial court.
On appeal, the Court of Appeals for Franklin County reversed the judgment of dismissal.
The Court of Appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals of the First Appellate District in the case of Singer Sewing Machine Co. v. Puckett, certified the record to this court for final review and determination.
Messrs. Solsberry, Ahern Butler, for appellee.
Messrs. Maugan, Vacca Braun, for appellant.
Mr. William B. Saxbe, attorney general, and Mr. Robert M. Duncan, for Industrial Commission and James L. Young, Administrator, Bureau of Workmen's Compensation.
The issue in this cause is whether that portion of Section 4123.519, Revised Code, which requires a claimant appealing in a workmen's compensation case to file his petition within 30 days of the filing of the notice of appeal is mandatory and a jurisdictional requirement.
Section 4123.519, Revised Code, reads:
"The claimant or the employer may appeal a decision of the Industrial Commission * * * to the Court of Common Pleas * * *. * * * Notice of such appeal shall be filed by the appellant with the commission and the Court of Common Pleas within 60 days after the date of the receipt of the decision appealed from or the date of receipt of the order of the commission refusing to permit an appeal from a Regional Board of Review. Such filings shall be the only act required to perfect the appeal and vest jurisdiction in the court.
"* * *
"The claimant shall, within 30 days after the filing of the notice of appeal, file a petition setting forth the basis for the jurisdiction of the court over the action and setting forth the issues. * * *"
It was held in the Court of Common Pleas that claimant's failure to comply with the mandatory requirements of Section 4123.519, Revised Code, is ground for dismissal.
The Court of Appeals, in reversing the judgment of dismissal, said that "we are of the opinion that while the statute required the filing of the petition within 30 days after the notice of appeal was filed, where the petition actually was filed before any objection thereto was made, that the court below possessed the discretion to dismiss or retain the petition in the exercise of a sound discretion."
In the Singer Sewing Machine case ( 176 Ohio St. 32), this court held in paragraph two of the syllabus:
"Under Section 4123.519, Revised Code, the filing of a petition by a claimant is not jurisdictional. The filing of a notice of appeal with the Industrial Commission of Ohio and the Court of Common Pleas is the only act required to perfect the appeal and vest jurisdiction in the court."
The only difference between the Singer case and the one now before us is that in that case the appellant was the employer while here it was the claimant who was the appellant. Since, under the statute as construed in the Singer case, it is the filing of the notice of appeal which vests jurisdiction in the court and not the filing of the petition by the claimant, it follows that a court may in the exercise of sound discretion permit a claimant to file his petition after the 30-day period specified in the statute, even though it is the claimant who is the appellant.
Therefore, the judgment of the Court of Appeals is correct, and it is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and GIBSON, JJ., concur.