COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71640 DONALD JONES : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION MOBIL OIL CORPORATION : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil case from Common Pleas Court, No. CV-264462. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: W. Craig Bashien, Esq. Bashien & Bashien 1200 Illuminating Building 55 Public Square Cleveland, OH 44113 For Defendant-Appellant: Sheldon R. Jaffery Ohio Savings Plaza 1801 E. 9th Street, Suite 1710 Cleveland, OH 44114 DAVID T. MATIA, P.J.: Mobil Oil Corporation, defendant-appellant, appeals the denial of its motion for summary judgment by the Cuyahoga County Court of Common Pleas. Defendant-appellant assigns two errors for review -2- concerning the use of Civ.R. 41(A) by Donald D. Jones, plaintiff- appellee, in voluntarily dismissing the appeal from the Industrial Commission initiated by defendant-appellant pursuant to R.C. 4123.519. Since defendant-appellant's claims do not constitute a final appealable order, we dismiss this appeal. I. STATEMENT OF FACTS On February 22, 1990, Donald D. Jones, plaintiff-appellee, sustained a back injury which he claimed was due to the performance of his duties and incidental to his employment with Mobil Oil Corporation, defendant-appellant. After timely filing an application for benefits under Ohio's Workers' Compensation Fund, a hearing was held on October 1, 1990. The District Hearing Officer subsequently allowed plaintiff-appellee's claim finding the injury was sustained in the course of and arising out of his employment. This decision was appealed by defendant-appellant to the Regional Board of Review which affirmed the District Hearing Officer on August 15, 1991. Defendant-appellant then appealed the allowance of the claim to the Industrial Commission. On October 13, 1992, the Industrial Commission denied defendant-appellant's appeal and sustained plaintiff-appellee's right to participate in Ohio's Workers' Compensation Fund. Pursuant to R.C. 4123.519 [now 4123.512], defendant-appellant filed a Notice of Appeal in the Cuyahoga County Court of Common Pleas on December 10, 1992. On May 17, 1993, plaintiff-appellee filed his Complaint as required by statute. Defendant-appellant filed its answer on June -3- 14, 1993. On September 24, 1993, approximately one month before the scheduled trial date of October 25, 1993, plaintiff-appellee filed a voluntary dismissal of his Complaint pursuant to Civ.R. 41(A)(1)(a). Plaintiff-appellee subsequently refiled his Complaint on January 21, 1994. The matter was scheduled for trial on May 6, 1996. On April 16, 1996, defendant-appellant filed a Motion for Summary Judgment arguing plaintiff-appellee's voluntary dismissal is not permissible in an appeal from the Industrial Commission brought by the employer. On November 7, 1996, the trial court denied defendant- appellant's motion for summary judgment. Defendant-appellant appeals from this order. II. FIRST AND SECOND ASSIGNMENTS OF ERROR As Mobil Oil Corporation's, defendant-appellant's, first and second assignments of error contain similar issues of law and fact, we will consider them concurrently: I. USE OF CIVIL RULE 40(A) IS INAPPLICABLE TO AN EMPLOYER'S APPEAL PURSUANT TO OHIO REVISED CODE 4123.512. II. APPELLEE'S USE OF CIVIL RULE 41(A)CONSTITUTES A FINAL DISMISSAL OF THE EMPLOYER'S APPEAL SINCE THE TRIAL COURT IS WITHOUT JURISDICTION TO CONSID ER ANY EFFORT BY THE EMPLOYER TO COMPEL REFILING OF APPELLANT'S COMPLAINT OR TO COMPEL AN EXPEDITED TRIAL PURSUANT TO OHIO REVISED CODE 4123.512. Initially, although not addressed by the parties, we must first determine the threshold matter of this court's jurisdiction to hear defendant-appellant's appeal. In this case, the order is a final and appealable if it is an order that affects a substantial -4- right made in a special proceeding. R.C. 2505.02. A special proceeding is one that was not known to the common law or in equity. Polikoff v. Adam (1993), 67 Ohio St.3d 100. Worker's compensation appeals were not known to the common law or in equity, rather, they were created by statute in order to enforce the rights created by Chapter 4123 of the Ohio Revised Code. Therefore, a workers' compensation appeal is a special proceeding pursuant to R.C. 2505.02. See Anderson v. Sonoco Products (July 26, 1996), Miami App. No. 95-CA-58, unreported. This, however, does not end our inquiry. For defendant-appellant's claim to be a final appealable order, not only does the order have to be made in a special proceeding, but it must also affect a substantial right. In Swanson v. Ridge Tool Co. (1961), 113 Ohio App.17, the court held that the overruling of a motion for summary judgment in a special proceeding cannot be an order affecting a substantial right made in a special proceeding, as that phrase is used in R.C. 2505.02. The court reasoned that the denial of the Motion for Summary Judgment constitutes a refusal to make order rather than the making of an order. See, also, Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, cert denied (1990), 498 U.S. 967, 111 S.Ct. 428. Similarly, in this case, the trial court has refused to make an order, within the statutory meaning of that word, on the motion for summary judgment and has retained the case for a trial on the merits. In fact, the trial court's order denying the motion for summary judgment also rescheduled the trial on the merits for -5- a later date. This case is therefore dismissed for lack of a final appealable order. Dismissed. -6- This appeal is dismissed. It is, therefore, considered that said appellee recover of said appellant his 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. KARPINSKI, J. and *HOLMES, J., CONCUR (*Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court, sitting by assignment. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22( B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .