Summary
In Zier v. Bur. of Unemployment. Comp. (1949), 151 Ohio St. 123, 38 O.O. 573, 84 N.E.2d 746, we held that a notice of appeal stating that the appellant appealed "in accordance with his right to appeal under Section 1346-4 of the General Code" failed to "'set forth the decision appealed from and the errors therein complained of'" and therefore failed to confer jurisdiction upon the court of common pleas.
Summary of this case from Medcorp v. Ohio Dept. of JobOpinion
No. 31544
Decided March 9, 1949.
Appeal — Exercise of right conditioned on compliance with mandatory statutory requirements — Bureau of Unemployment Compensation Board of Review to Common Pleas Court — Section 1346-4, General Code — Compliance with mandatory requirements essential to invoke jurisdiction — Notice of appeal to state decision appealed from and errors complained of.
1. An appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed by statute. The exercise of the right conferred is conditioned upon compliance with the accompanying mandatory requirements.
2. An appeal from a decision of the Unemployment Compensation Board of Review to the Court of Common Pleas is authorized by Section 1346-4, General Code, if perfected by filing a notice of appeal with the clerk of such court and with the board of review within thirty days of the mailing of notice of the decision of the board to the parties, which notice of appeal shall set forth the decision appealed from and the errors therein complained of. Compliance with these specific and mandatory requirements governing the filing of such notice is essential to invoke jurisdiction of the Court of Common Pleas. ( American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147, approved and followed.)
APPEAL from the Court of Appeals for Cuyahoga county.
Edward C. Zier filed a claim with the Bureau of Unemployment Compensation. His claim was allowed but he was given a referral to a job for which he was found by a claims examiner to be reasonably fitted, which job Zier refused to accept. Whereupon the benefit rights of the claimant were suspended "until claimant secures other employment and is separated therefrom and is otherwise eligible."
Thereupon the claimant took an appeal to the Unemployment Compensation Board of Review from the order of suspension of benefits. Upon a hearing before a referee, of which hearing the record shows that claimant and his employer, Thompson Aircraft Products Company, had notice, the decision of the administrator was affirmed. In the decision of the referee is the statement that "since claimant was reasonably fitted for the job, it appears that the differential in the wages previously earned by claimant and that which he was offered on the job referral had a definite connection with the finding of fact of the Cleveland office. Further, shortly after, claimant took a trip to Florida, during the winter months, returning some three months later. The reason for claimant's going to Florida is not substantial." The decision of the referee concludes as follows: "Claimant, on October 17, 1945, refused to accept an offer of work for which he was reasonably fitted * * *."
Upon application to institute a further appeal before the board of review, the unanimous decision of that board was as follows: "Upon examination and consideration of the entire record, it is the decision of the board that claimant's application to institute a further appeal should be and the same is hereby disallowed."
Thereupon the claimant filed the following notice of appeal in the Court of Common Pleas of Cuyahoga county: "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."
The Court of Common Pleas, upon motion by the Bureau of Unemployment Compensation, dismissed the appeal.
That judgment was reversed by the Court of Appeals and the cause remanded to the Court of Common Pleas for further proceeding.
The cause is in this court following the allowance of a motion to certify the record.
Messrs. Sindell Sindell, for appellee.
Mr. Hugh S. Jenkins and Mr. Herbert S. Duffy, attorneys general, Mr. John M. Woy and Mr. Madison C. Perkins, for appellant.
The only question presented is whether there was such compliance with the requirements of the statute as to invoke jurisdiction of the Common Pleas Court to review the decision of the board of review.
It is elementary that an appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed by statute. The exercise of the right of appeal conferred is conditioned upon compliance with the accompanying mandatory requirements. Collins, Exr., v. Millen, 57 Ohio St. 289, 291, 48 N.E. 1097. No one would contend that a notice of appeal need not be filed within the time fixed by statute. Compliance with a requirement that a notice of appeal shall be filed within the time specified, in order to invoke jurisdiction, is no more essential than that the notice be filed at the place designated and that it be such in content as the statute requires. Kinsman Square Drug Co. v. Evatt, Tax Commr., 145 Ohio St. 52, 60 N.E.2d 668; Dayton Rental Co. v. Evatt, Tax Commr., 145 Ohio St. 215, 61 N.E.2d 210; and American Restaurant Lunch Co. v. Glander, Tax Commr., 147 Ohio St. 147, 70 N.E.2d 93.
In the case last cited, it was held in the syllabus that "where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred."
That case involved an appeal from an order of the Tax Commissioner to the Board of Tax Appeals and presented the question of the sufficiency of the notice of appeal as to content, which was in substance whether the notice of appeal shall set forth or 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. It was stated in the opinion in that case that "the very statute which authorizes the appeal prescribes the conditions and procedure under and by which such appeal may be perfected," and held in the syllabus that "compliance with these specific and mandatory requirements governing the filing of such notice is essential to confer jurisdiction upon the Board of Tax Appeals."
The pertinent portion of Section 1346-4, General Code, being the statute governing the appeal procedure involved herein, is as follows:
"Any interested party * * * may * * * within thirty days * * * appeal from the decision of the board of review * * * 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. All other parties before the board of review * * * shall be made appellees. The appellant shall serve notice of the appeal upon all appellees by registered mail or actual delivery to his last known post office address unless such notice is waived."
We are in accord with the view that the procedure directed by the above provisions relative to parties and proofs of service of notice does not constitute conditions precedent to jurisdiction, but compliance with the requirements as to the filing of the notice of appeal — the time of filing, the place of filing and the content of the notice as specified in the statute — are all conditions precedent to jurisdiction.
The notice of appeal involved herein is not sufficient to meet the requirements of the statute in that it fails to set forth the decision appealed from or the errors therein complained of.
The foregoing statement of facts discloses the insufficiency of the notice of appeal in the respects stated.
It follows that the judgment of the Court of Appeals should be, and hereby is, reversed, and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.