COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69688 STEPHEN FRENCH : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION SYSCO FOOD SERVICE : OF CLEVELAND : PER CURIAM : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-289823 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JANICE L. MAZURKIEWCZ (#0024422) 55 Public Square, Suite 1640 Cleveland, Ohio 44113-1901 For Defendant-Appellee: TIMOTHY A. MARCOVY (#0006518) Willacy, LoPresti & Marcovy 700 Western Reserve Building 1468 West Ninth Street Cleveland, Ohio 44113 For Bureau of Worker's Compensation: BETTY D. MONTGOMERY (#Z00006371) Attorney General of Ohio State Office Tower, 15th Floor 30 East Broad Street Columbus, Ohio 43266 - 2 - PER CURIAM: Plaintiff-appellant Stephen French ("appellant") appeals the dismissal of his workers' compensation appeal for failure to prosecute and the entry of judgment in favor of defendant-appellee SYSCO Food Service of Cleveland, Inc. ("appellee"). Appellant assigns the following error upon appeal: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DISMISSING APPELLANT'S APPEAL WITH PREJUDICE FOR WANT OF PROSECUTION PURSUANT TO RULE 41(B)(1) OF THE OHIO RULES OF CIVIL PROCEDURE AND THUS ERRED TO THE PREJUDICE OF THE APPELLANT. Finding the appeal to have merit, the judgment of the trial court is reversed. I. This is a workers' compensation case brought by appellant pursuant to R.C. 4123.512. On June 24, 1994, appellant filed a claim with the Ohio Bureau of Workers' Compensation for injuries which he sustained during the course of and arising out of his employment with appellee. Subse- quently, on September 2, 1994, a hearing was conducted before a District Hearing Officer of the Industrial Commission. Appellant's complaint, however, was disallowed. Appellant appealed the denial of his complaint by the District Hearing Officer, and on November 22, 1994, a Staff Hearing Officer heard the matter. Appellant's appeal was denied and the decision of the District Hearing Officer was affirmed. Appellant then appealed to the Industrial Commission; and on March 1, 1995, appellant's appeal was again - 3 - denied. Denial of appellant's appeal was mailed on March 21, 1995. On May 22, 1995, pursuant to R.C. 4123.512, appellant filed a notice of appeal in the trial court from the decision of the Industrial Commission denying his workers' compensation claim. On July 31, 1995, appellee filed a motion to show cause and requested that the trial court dismiss appellant's appeal for failure to prosecute pursuant to Civ.R. 41 (B)(1). Subsequently, on August 11, 1995, appellant filed a brief in opposition to appellee's motion to show cause, as well as a motion for leave, instanter, to file his complaint. On August 18, 1995, appellee filed a motion for leave to file, instanter, its reply brief. The trial court granted appellee's motion for leave to file reply brief, instanter, on September 5, 1995. And, on September 14, 1995, the trial court journalized the following entry: "Plaintiff's motion to show cause is granted. Plaintiff's appeal is dismissed with prejudice for want of prosecution." However, after a complete review of the file and the motions contained therein, it is clear that the trial court actually intended to grant the defendant-appellee's motion to show cause in that plaintiff-appellant never filed said motion with the court. II. In his sole assignment of error, appellant contends that the trial court abused its discretion when it dismissed his appeal with prejudice for want of prosecution pursuant to Civ.R. 41(B)(1). - 4 - R.C. 4123.512 allows a claimant to appeal an order of the industrial commission to the court of common pleas. R.C 4123.512 states in pertinent part that: [t]he appellant shall file the notice of appeal with a court of common pleas within sixty days after the date of receipt of the order of the commission refusing to hear an appeal of a staff hearing officer's decision * * * . The filing of the notice of appeal with the court is the only act required to perfect the appeal. * * * The claimant shall, within thirty days after the filing of the notice of appeal, file a petition containing a statement of the facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action * * *. In the case sub judice, appellant timely filed a notice of appeal with the Court of Common Pleas pursuant to R.C. 4123.512. However, appellant failed to timely file his complaint with the trial court. As a result, on July 31, 1995, appellee filed a motion to show cause and requested that the trial court dismiss appellant's appeal with prejudice for want of prosecution. The Supreme Court has liberally construed the language of R.C. 4123.512 which requires appellant to file his complaint within thirty-days after the filing of his notice of appeal. In Thompson v. Reibel (1964), 176 Ohio St. 258, the court, in interpreting R.C. 4123.519 (now R.C. 4123.512), vested the trial court with discretion to permit the claimant to file his complaint after the thirty-day period. Furthermore, "a claimant's failure to timely file his R.C. 4123.519 complaint does not of necessity warrant a - 5 - judicial determination in favor of the employer and against the claimant." Zuljevic v. Midland-Ross (1980), 62 Ohio St.2d 116, 119; citing Singer Sewing Machine v. Puckett (1964), 176 Ohio St. 32. Thus, to summarily grant a motion for judgment on the pleadings where the claimant fails to file his petition would be too harsh a consequence for the failure to file a timely petition." Id. The courts, however, have not permitted a claimant to completely disregard his statutory obligation by untimely filing his complaint without first obtaining leave of court. Rather, "[h]aving failed to comply with the statute, it becomes the claimant's burden to show that his failure is due to excusable neglect or other good cause." Zuljevic, 62 Ohio St.2d at 120. In response to appellee's motion to show cause and motion to dismiss, appellant subsequently filed a motion in opposition and a motion for leave, instanter, to file his workers' compensation complaint. Appellant failed to file his motion within the seven- day limitation period set forth by Local Rule 11(C). Appellant's motions were never granted by the trial court. Rather, the trial court, a month later, granted appellee's motion to dismiss appellant's appeal with prejudice for failure to prosecute. Civ.R. 41(B)(1) is the proper basis for dismissal of a workers' compensation appeal. Zuljevic at 119. Civ.R. 41(B)(1) provides: Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, - 6 - after notice to the plaintiff's counsel, dismiss an action or claim. A dismissal on the merits is a harsh remedy that calls for the due process guarantee of prior notice. Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99. Where a claim is dismissed by the trial court pursuant to Civ.R. 41(B)(1), "notice is a prerequisite to dismissal." Logsdon v. Nichols (1995), 72 Ohio St.3d 124, 128. "The purpose of notice is to provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should not be dismissed with prejudice." Id.; McCormac, Ohio Civil Rules Practice (2 Ed.1992) 357, Section 13.07. We must now turn to whether or not appellant was provided with proper notice by the trial court of its intention to dismiss appellant's claim with prejudice for failure to prosecute. After a complete review of the record, there is no evidence in the present case that the trial court notified appellant of its intention to grant appellee's motion to dismiss. Furthermore, the trial court did not grant or deny appellant's motion in opposition to appellee's motion to show cause and motion for leave. Rather, the court, without notice to appellant, dismissed the claim pursuant to Civ. R. 41(B)(1) for failure to prosecute. Accordingly, we reverse the judgment of the trial court and remand the cause since appellant did not receive prior notice of dismissal. Judgment reversed and remanded. - 7 - This cause is reversed and remanded for further proceedings consistent with this journal entry and opinion. . It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to 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. Exceptions. LEO M. SPELLACY. CHIEF JUSITCE PATRICIA BLACKMON, JUDGE SARA J. HARPER, JUDGE 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 journalization, at which time .