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10/06/87 JOE CANO v. REVIEW BOARD INDIANA

Filed: October 6, 1987.

JOE CANO, APPELLANT (DEFENDANT BELOW),
v.
REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, JOHN C. MOWRER AND JOE A. HARRIS AS MEMBERS OF AND AS CONSTITUTING THE REVIEW BOARD OF THE INDIANA EMPLOYMENT SECURITY DIVISION, AND LEASEWAY MOTORCAR TRANSPORT, APPELLEES (PLAINTIFFS BELOW)



APPEAL FROM THE INDIANA EMPLOYMENT SECURITY DIVISION REVIEW BOARD, CASE NO. (86-A-13721) 87-R-251.

Robertson, J., Neal, J. And Conover, J. Concur.

Author: Robertson

ROBERTSON, J.

Joe Cano (Cano) appeals the Review Board's determination that he fraudulently failed to disclose earnings received during weeks for which he claimed unemployment compensation. He presents essentially three issues for review on this appeal:

(1) Whether the director of the Employment Security Division appealed to the Review Board within the time provided by statute;

(2) Whether the Review Board's modification of the referee's decision without a hearing and prior notice that an appeal had been requested denied him due process of law; and,

(3) Whether the evidence is sufficient to support the Review Board's decision.

I.

Cano maintains that the director's request for an appeal to the Review Board was untimely because the division had "administrative notice" of the decision on January 28, 1987, the day the decision was rendered, but the director did not appeal until February 16, 1987. The record indicates that Form 651, the Employment Security Division "Request for Appeal to Review Board," was completed and filed with the local office within fifteen days from the date the referee's decision was mailed to Cano.

The rule is well-established in Indiana that where a statute providing for judicial review of an administrative order or decision contains a provision as to time for appeal, such provisions are mandatory as a condition precedent to the acquiring of jurisdiction of such an appeal. See Teepe v. Review Board (1964), 136 Ind. App. 331, 200 N.E.2d 538, 539-540 and cases cited therein. IND. CODE 22-4-17-3 contains such a provision. It provides in relevant part that:

Therefore, the failure of the director to file a notice of intention to appeal the decision of the referee "within fifteen (15) days after the date of notification or mailing of the referee's decision" would be a fatal noncompliance, preventing the Review Board from acquiring jurisdiction over the parties or the case.

The language "after the date of notification or mailing of such decision" has remained in the code without change since 1947. See Acts 1947, ch. 208, § 1803 and Acts 1957, ch. 299, § 4. Our courts have repeatedly interpreted this provision as providing that the time for perfecting an appeal commences on either the date of mailing or on the date of receipt by the claimant, whichever occurs later, without distinction among the parties who could bring the appeal. Compare Neal v. Review Board (1974), 153 Ind. App. 630, 288 N.E.2d 561, 563, trans. denied (jurisdictional chain broken by claimant's failure to file notice of intention to appeal decision of referee within 15 days after notice mailed to her) with O'Donoghue v. Review Board (1980), Ind.App., 406 N.E.2d 1267, trans. denied (claimant had 15 days after notification of referee's decision within which to appeal to review board) and Rich v. Review Board (1981), Ind.App., 419 N.E.2d 187, 188, n.2 (director's appeal not filed within 15 days of mailing of referee's original decision to claimant; no argument made that director received notification 15 or fewer days prior to his filing appeal.)

Cano cites no authority for his assertion that the fifteen day period begins to run against the director on the day he or she receives constructive notification of the referee's determination. Having discovered no such authority, we conclude that the director's request for appeal was timely because it was ...


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