COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59930 : VICTORIA STARKS : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : CIVIL SERVICE COMMISSION : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 23, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 138325 JUDGMENT: Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: VINCENT F. GONZALEZ BARBARA R. MARBURGER 2159 West Blvd. Assistant Director of Law Cleveland, Ohio 44102 Room 106 City Hall 601 Lakeside Avenue Cleveland, Ohio 44113 -2- MARGARET K. WEAVER, J.: Appellant, Victoria Starks, timely appeals a decision of the Cuyahoga County Court of Common Pleas granting summary judgment in favor of Appellee, City of Cleveland Civil Service Commission. We remand this case for an evidentiary hearing pursuant to R.C. Section 2506.03. Appellant was employed by the City of Cleveland, Division of Police, as a Patrol Officer assigned to the Fourth District. In 1984, Appellant developed an alcohol dependence that had an adverse impact on her employment. In 1986, after some problems and confrontations that occurred while she was at work, Appellant sought rehabilitative help at the request of the police department. In May, 1986, Appellant returned to active duty as a basic patrol officer. However, Appellant was readmitted into rehabilitative treatment from June 25, 1986 through July 10, 1986. Upon being discharged this second time, Appellant was admitted to a half-way house for two weeks. Appellant again returned to duty on August 29, 1986. In October, 1986, Appellant was served with a notice of disciplinary action for two unexcused absences, one in January and the other in February. The infractions were characterized as absences without official leave. This notice resulted in a disciplinary hearing before the Safety Director, who placed her on six months probation after a two day suspension. In May, 1987, Appellant called her supervisor and requested that she be placed on sick leave. Her request was denied. Appellant then called in sick and failed to appear for her -3- regularly scheduled shift. As a result of this alleged infraction, Appellant was suspended by the Safety Director for fifteen days. In June, 1987, Appellant was admitted again to Glenbeigh Hospital for alcohol dependency. In July, 1987, approximately one week after her return to work, Appellant was served with another disciplinary notice alleging various infractions. On August 20, 1987, Appellant appeared before the Safety Director and admitted the charges. On August 29, 1987, Appellant was sent a letter of termination by the Safety Director. The letter of discharge further advised Appellant, erroneously, that she had fifteen days from the date she received the notification of discharge to file a notice of appeal with the Civil Service Commission. The dismissal letter was sent by certified mail and received by Appellant on August 29, 1987. On September 10, 1987, after retaining counsel, Appellant mailed a notice of appeal to the Civil Service Commission, through her attorney. An envelope has been produced by Appellant with a postmark of September 10, 1987. However, the City of Cleveland Civil Service Commission denied Appellant's appeal based on a lack of jurisdiction in a letter from the Secretary dated October 7, 1987. The reason for the denial, as outlined in the letter, is that the notice of appeal was untimely filed. In support of this reason, the Secretary states that a certified mail receipt reflects that Appellant received her letter of discharge on August 29, 1987, had ten working days from that date -4- to file her notice of appeal with the Commission, and did not file the notice of appeal until the eleventh working day which was September 15, 1987. In addition, the October 7, 1987 letter also denied Appellant's request for reconsideration. A second request for reconsideration was also denied on or about October 9, 1987. Appellant, on or about October 21, 1987, filed a notice of appeal and request for a trial de novo with the Cuyahoga County Court of Common Pleas. This administrative appeal was heard by the Honorable William E. Mahon. In his opinion and order the trial court granted the Appellees' motion for summary judgment concluding that since the notice of appeal was not received by the Civil Service Commission within ten working days of Appellant's receipt of her notice of discharge; the Civil Service Commission lacked jurisdiction to entertain appellant's appeal pursuant to the City of Cleveland Charter. Appellant's two assignments of error will be addressed together because of their interrelationship. Respectively, they state: THE COURT ERRED IN HOLDING THAT APPELLANT'S NOTICE OF APPEAL WAS NOT TIMELY FILED AND THAT THE CIVIL SERVICE COMMISSION HAD NO JURISDICTION TO ENTERTAIN THE APPEAL. THE COURT ERRED IN HOLDING FROM THE FACTS BEFORE IT THAT APPELLANT'S NOTICE OF APPEAL WAS UNTIMELY SINCE A PRESUMPTION OF RECEIPT ARISES FROM PROOF THAT THE LETTER WAS MAILED, PROPERLY ADDRESSED, WITH SUFFICIENT POSTAGE, AND RECEIVED BY THE CIVIL SERVICE COMMISSION. These assigned errors raise the single issue of whether the trial court's order that the Civil Service Commission's denial of -5- Appellant's appeal, based on a lack of jurisdiction was proper, without taking additional evidence. The proper and timely filing of a notice of appeal from the decision of the City of Cleveland's Safety Director is governed by the City of Cleveland Charter and the Civil Service Commission rules. Charter Section 121 states, in pertinent part, the following: Any person in the classified service of the City who is suspended, reduced in rank, or dismissed from the service of the City may appeal from such decision to the Civil Service Commission within ten days from and after the date of the suspension, reduction, or dismissal. City of Cleveland Civil Service Commission Rule 9.60, in pertinent part, states: 9.60 Appeal to the Commission. Appeal to the Commission from the decision of the Director in all cases provided for by the Charter, shall be deemed perfected when the officer or employee concerned files notice thereof in writing with the Commission within ten (10) working days after service of such decision. Further, R.C. Section 2506.03 states in its entirety the following: (A) The hearing of such appeal shall proceed as in the trial of a civil action, but the court shall be confined to the transcript as filed pursuant to Section 2506.02 of the Revised Code unless it appears, on the face of that transcript or by affidavit filed by the appellant, that one of the following applies: (1) The transcript does not contain a report of all evidence admitted or proffered by the appellant; (2) The appellant was not permitted to appear and be heard in person, or by his attorney, in opposition to the final order, adjudication, or decision appealed from, and to do any of the following: (a) Present his position, arguments, and contentions; -6- (b) Offer and examine witnesses and present evidence in support; (c) Cross-examine witnesses purporting to refute his position, arguments, and contentions; (d) Offer evidence to refute evidence and testimony offered in opposition to his position, arguments, and contentions; (e) Proffer any such evidence into the record, if the admission of it is denied by the officer or body appealed from. (3) The testimony adduced was not given under oath; (4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from or the refusal, after request, of such officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body; (5) The officer or body failed to file with the transcript, conclusions of fact supporting the final order, adjudication, or decision appealed form; If any circumstance described in divisions (A)(1) to (5) of this section applies, the court shall hear the appeal upon the transcript and such additional evidence as may be introduced by any party. At the hearing, any party may call, as if on cross-examination, any witness who previously gave testimony in opposition to such party. (Emphasis added.) The instant case poses a difficult question with respect to fundamental fairness and Appellant's constitutional right to procedural due process. While this court is fully aware of the holding in Scherak v. Fairhill Mental Health (1986), 25 Ohio St. 3d 38 that equitable principles have no bearing upon venue and jurisdiction of the subject matter, the question of procedural due process involves a constitutional right and not an equitable principle. There has been no evidentiary record established in this case that provides "conclusive evidence" of an untimely filing of a notice of appeal. Absent the presentation of some additional evidence, there exists a genuine issue of fact as to whether the -7- Civil Service Commission received the notice of appeal prior to September 15, 1987. Appellant has presented both a postmarked envelope and representations from counsel that the notice of appeal was mailed to the Civil Service Commission in a time frame sufficient for it to arrive at the Commission by September 14, 1987. The Commission presents as evidence the receipt stamped notice of appeal reflecting that the notice of appeal was received on September 15, 1987, one day late. It is difficult to fathom, without additional evidence, how the trial court could conclude that two diametrically opposed pieces of evidence could constitute "conclusive proof" that the notice of appeal was received on September 15, 1987. The case of Dudukovich v. Lorain Metropolitan Housing Authority (1979), 58 Ohio St. 2d 202 is insightful with respect to this decision. The Ohio Supreme Court pointed out, in Dudukovich, that the term filed requires actual delivery. However, no particular method of delivery is prescribed by the statute. Any method productive of certainty of accomplishment is countenanced. Id. at 204. The Ohio Supreme Court goes on to endorse a presumption of timely delivery through the U.S. Mail, citing Young v. Bd. of Review (1967), 9 Ohio App. 2d 25. In Dudukovich, a copy of the notice of appeal was sent by certified mail to a destination within the same city, five days prior to the expiration of the statutory time limit. In this regard, Dudukovich supports the proposition that there is a presumption of timely delivery where -8- a notice of appeal is mailed within time and the circumstances suggest timely arrival. Further, in a R.C. Chapter 2506 proceeding, the court of common plea must weigh the evidence to determine whether there is a preponderance in support of the agency decision. Appellant's assignments of error are therefore found to be well taken. This case is remanded to the trial court pursuant to R.C. 2506.03 for an evidentiary hearing on whether the notice of appeal was timely filed under these circumstances and given the presumption of timely delivery supported by Appellant's evidence. The evidence before the trial court at present does not "conclu- sively prove" that the notice of appeal was untimely filed. Instead, the evidence creates a genuine issue of material fact with Appellant's envelope postmark and Appellees' receipt stamp as to how it can take five days to deliver a letter within the city of Cleveland or if there was error in the Commission's office to Appellant's prejudice. This case is remanded for an evidentiary hearing pursuant to R.C. 2506.03 not inconsistent with this opinion. -9- This case is remanded. It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DYKE, P.J., and HARPER, J., CONCUR. MARGARET K. WEAVER* JUDGE (*SITTING BY ASSIGNMENT: JUDGE MARGARET K. WEAVER, SANDUSKY COMMON PLEAS COURT) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .