Toth v. State (116 Ohio App. 258, 1962)

Fess, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing appellant’s appeal from a decision of a referee disallowing her claim for compensation. The motion to dismiss the appeal was upon the ground hat the notice of appeal failed to comply with that provision >f Section 4141.28, Revised Code, requiring that the notice of ppeal “shall set forth the decision appealed from and the er-ors therein complained of.”

The notice of appeal, filed April 29, 1960, recites verbatim he decision of the board upon rehearing, including a recitation >f the proceedings on reconsideration before the administrator, lis findings of fact and the reason for the disallowance of ap-lellant’s claim, and also the decision of the board of review vhich bears no date other than the date of the mailing thereof, 6., April 6, 1960. In her verification of the notice of appeal, appellant alleges “that the facts stated in the foregoing decision ire not true,” etc.

No formal statement of the “errors complained of” ap-iears in the notice of appeal. But in the transcript filed by the oard in the Common Pleas Court appears a “Notice of Intent o Appeal to Court and Request for Rehearing” (form UCO-941, pparently furnished by the board) filed in the Cleveland office n December 14, 1959, which recites:

“The undersigned appellant, an ‘interested party’ under ection 4141.01 (I) Revised Code, hereby gives notice of intent appeal to a Court of Common Pleas from the decision (or rder) of the board of review dated December 7, 1959, and re-aests a rehearing by the board, pursuant to. the provisions of Section 4141.28, Revised Code (effective October 10, 1955).

“Appellant hereby states that he (she or it) has been adversely affected by said decision (or order) of the board, and sets forth the following specific reasons for filing this notice and request: That the decision is unlawful, unreasonable and against weight of the evidence.” (The italicized portion was written in the form by typewriter presumably by appellant or at her direction.)

In support of the judgment below dismissing the appeal, the Attorney General on behalf of the appellee cites Zier v. Bureau of Unemployment Compensation, 151 Ohio St., 123, and several unofficially reported Common Pleas Court cases. Appel-lee relies also upon American Restaurant & Lunch Co. v. Glander, Tax Commr., 147 Ohio St., 147, and Queen City Valves, Inc., v. Peck, Tax Commr., 161 Ohio St., 579, holding that where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred and that compliance by an appellant-taxpayer by specifying “the error or errors therein complained of” in his notice of appeal is essential to confer jurisdiction upon the Board of Tax Appeals to hear and determine the appeal. In the Zier case, the court approved and followed the principle announced in the American Restaurant case.

In the light of the liberal interpretation of the provisions of the Appellate Procedure Act and Chapter 2953 of the Revised Code dealing with appeals in criminal cases, it is difficult to comprehend the basic justification for decisions holding that with respect to appeals from administrative agencies an adversely affected claimant is required to strictly and literally comply with the statutory conditions imposed as a predicate to accord jurisdiction in the court to which the appeal is sought to be taken.

Keeping in mind the legislative intent and the purpose of the Appellate Procedure Act, the courts have consistently held that the act in its entirety and every section thereof should bel liberally construed to the end that the legislative intent be madel effective. Such act is remedial and, if ambiguous, must be con-| strued liberally to the end that the appellant may have one trial! and one review of his case, which it is the thoroughly established! public policy of the state to vouchsafe every litigant. 2 Ohio! Jurisprudence (2d), 554, Section 2. With respect to appeals in criminal cases, notwithstanding that Section 2953.04, Revised Code, explicitly provides that the brief of the appellant shall he filed with the transcript and shall contain the assignments of error relied on in such appeal, the Supreme Court has held the provision is directory as to the time of filing of such brief, and an appellate court may, in the exercise of its discretion, grant additional time for the filing thereof. State v. Nickles, 159 Ohio St., 353.

In contrast with proceedings incident to a trial in a court af law, proceedings before administrative agencies are informal in character and are ordinarily not bound by common-law or statutory rules of evidence. The latter proceedings may be entirely devoid of formality and in complete disregard of rules )f evidence, and an agency may base its conclusions upon almost my information that may be before it, no matter what its form >r manner of presentation. Therefore, there is ordinarily no oc-¡asion for a claimant to “claim” or assign error incident to the iroceedings themselves. After all, it is apparent from the no-ice of appeal in the instant case, aside from the allegations n the verification thereof and the notice of intent to appeal, that he error of which appellant claims is her denial of compensa-ion as a result of the decision set forth in her notice. It is Iso well known that administrators are prone on occasions o act capriciously and arbitrarily. The term, “bureaucracy,” as come to connote a semblance of autocracy. Even the most nlightened bureaucrat is inclined to place special emphasis pon routine and conservative action — “red tape.” With the henomenal growth of administrative agencies displacing the Kurts in the adjustment of disputes, it has become increasingly ore important to-accord those appearing before boards and mimissions adversely affected the right of review by appeal to Le courts. In our opinion, such right of review should not be Seated on purely technical grounds.

And, although the American Restaurant and Queen City valves cases could be regarded as denying the right of review l technical grounds, they relate to an administrative appeal ithin the agency and not to an appeal to the courts and are, erefore, to be distinguished from the decision in Castleberry v. vatt, Tax Commr., 147 Ohio St., 30. The Zier case approved and followed the American Restaurant case but is not to be regarded as denying the right of review upon purely technical grounds. In Zier the notice of appeal wholly failed to set forth any decision of the board of review. In Moore v. Foreacher, Recr., 156 Ohio St., 255, the court distinguishes the Zier case and the American Restaurant case and holds:

“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, 4 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 described and states, the substance and effect of the decision from which the appeal is taken.”

In the opinion the court states:

“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 de cisión 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 court also observes that its conclusion was in completel harmony with its decision in Castleberry v Evatt, supra, a cas involving an appeal from the Board of Tax Appeals to the Supreme Court, wherein the court refused to dismiss the appea’ on technical grounds. For the facts presented in the Castleberr case, see dissenting opinion of Zimmerman, J., at pages 36, 37

The notice of appeal in the Moore case set forth the decisio appealed from but was less comprehensive than the notice i: the instant case. The notice in the instant case was more tha: sufficient to apprise the opposite party as well as the court o the taking of the appeal, the decision appealed from and the errors complained of. Commonwealth Oil Co. v. Turk, 118 Ohio St., 273.

Therefore, the judgment of the Common Pleas Court in the instant case is reversed and the cause remanded thereto for further proceedings according to law.

Judgment reversed and cause remanded.

Deeds, J., concurs.

Smith, P. J.,

dissenting. The requirements of Section 4141.28, Revised Code, have long been strictly construed by our Ohio courts, and such construction has become stare decisis. Cogent reasons may call for a liberal construction as has been given to the Appellate Procedure Act, but a change thereof is now a propert subject for the Legislature.

Smith, P. J., Deeds and Fess, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.