COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69072 PAUL V. FARREN, ET AL. : ACCELERATED DOCKET : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION THE CLEVELAND BROWNS, INC. : : PER CURIAM Defendant-appellee : : DATE OF ANNOUNCEMENT : NOVEMBER 22, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-282265 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: NEIL M. CORNRICH, ESQ. IRWIN J. DINN, ESQ. Cornrich, Katz & Cornrich Suite 205 55 Public Square, Suite 1808 5885 Landerbrook Drive Cleveland, OH 44113-1901 Mayfield Heights, OH 44124 Q. A. CORSI, ESQ. 12th Floor 615 West Superior Avenue Cleveland, OH 44113 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs of counsel. On December 20, 1994, employer-appellee Cleveland Browns, Inc. timely filed a notice of appeal in the court of common pleas from an adverse ruling by the Industrial Commission of Ohio. Claimant-appellant Paul Farren received notice of the appeal but did not file a complaint within thirty days of the notice of appeal as required by R.C. 4123.519. On April 5, 1995, the court conducted a case management conference attended by counsel for the Browns, but neither Farren nor his counsel attended. The court issued the following order on April 5, 1995: "CMC held. Claimant's counsel & claimant failed to appear. Unless claimant shows good cause to the contrary for non-appearance, and not filing his complaint, judgment will be entered for Cleveland Browns, Inc. on 5/1/95 for failure of claimant to pursue his claim under R.C. 4123.512. CMC set for 5/1/95 at 10:30 a.m." On April 21, 1995, claimant filed a motion for leave to file a complaint instanter. As grounds for the motion, claimant's attorney asserted he had not been served with notice of either the notice of appeal or the first case management conference. The court conducted a second case management conference on May 1, 1995, but again neither claimant nor his counsel attended. The court issued the following order: "CMC held. Defendant's counsel appears. - 3 - Neither Plaintiff or counsel appear. Inasmuch as the Court's file shows that Paul Farren was served with notice of this appeal on 1/17/95, was mailed notice of the CMC of 4-3-95, and has failed to file a complaint or show good cause for non-appearance on 4/3/95, motion for leave to file complaint instanter filed 4/21/95 is denied inasmuch as the court's lack of jurisdiction to hear appellee's complaint. Judgment entered for Defendant-appellant Cleveland Browns, Inc." A claimant's failure to file a timely complaint after a notice of appeal brought pursuant to R.C. 4123.519 is not jurisdictional and the trial court has discretion to consider whether to permit the claimant leave to file a complaint after the expiration of the thirty day period. Thompson v. Reibel (1964), 176 Ohio St. 258, syllabus; cf. Singer Sewing Machine Co. v. Puckett (1964), 176 Ohio St. 32, paragraph two of the syllabus. Thus, the trial court erred by concluding it lacked jurisdiction to hear the complaint. The 1 first assignment of error is sustained. Judgment reversed and remanded. 1 We also note the court would have abused its discretion by dismissing the appeal for want of prosecution when it appeared claimant's counsel had not been served with the notice of appeal. The syllabus in Swander Ditch Landowner's Assn. v. Joint Bd. of Huron & Seneca Cty Commrs. (1990), 51 Ohio St.3d 131, states, "[w]hen service is required to be made upon a party who is represented by an attorney of record, service should be made upon the attorney unless the court expressly orders that it be made upon the party." See, also, Civ.R. 5(B); In re Price (June 2, 1994), Cuyahoga App. No. 66002, unreported. - 4 - This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellants recover of appellee their costs herein taxed. It is ordered that a special mandate issue out of this Court directing said 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. JOHN T. PATTON, CHIEF JUSTICE LEO M. SPELLACY, JUDGE JOSEPH J. NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, .