COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73433 ALPHA HEAT TREATING CO., : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : TRACY S. DEVONTENNO, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 15, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 303250 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Mitchell A. Stanley STANLEY, STANLEY & FISHER 6175 SOM Center Road Suite 220 Solon, Ohio 44139 For defendant-appellee, James H. French Tracy S. Devontenno: FRENCH & FRENCH 1514 Terminal Tower 50 Public Square Cleveland, Ohio 44113 For defendant-appellee, Vincent T. Lombardo Administrator of the Bureau Assistant Attorney General of Workers' Compensation State Office Building, 12th Floor and The Industrial 615 West Superior Avenue Commission of Ohio: Cleveland, Ohio 44113-1899 -2- NAHRA, J.: Appellant, Alpha Heat Treating Co., appeals the voluntary dismissal of appellee's, Tracy Devontenno, complaint in appellant's appeal of workers' compensation proceedings. Appellee was awarded benefits under the workers' compensation system. Pursuant to R.C. 4123.512, appellant filed an appeal to the court of common pleas. Thereafter, appellee filed a complaint pursuant to R.C. 4123.512 and then filed a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1). Appellant's assignments of error, which are interrelated and will be addressed concurrently, read: I. THE TRIAL COURT ERRED BY ALLOWING APPELLEE TO DISMISS HIS EMPLOYER'S APPEAL BY USE OF OHIO CIVIL RULE 41(A). II. THE TRIAL COURT ERRED BY DESIGNATING THE APPELLEE AS THE PARTY WHO COMMENCED THE ACTION AND THUS, ALLOWING THE APPELLEE THE RIGHT TO DISMISS THE ACTION PRIOR TO TRIAL PURSUANT TO CIVIL RULE 41(A). Appellant argues 1) that appellee cannot dismiss her complaint because she is not the plaintiff on its appeal because she did not commence the action; 2) that its right to an appeal of a workers' compensation claim pursuant to R.C. 4123.512 is denied by allowing appellee to dismiss her complaint; and 3) that appellee is abusing the legal system by unnecessarily delaying a determination of her workers' compensation claim. Civ.R. 41(A) reads in pertinent part: (A) Voluntary Dismissal: Effect Thereof. (1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23 (E) and Rule 66, an action may be -3- dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. *** (2) By Order of Court. Except as provided in subsection (1) an action shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper. *** In Robinson v. B.O.C. Group (1998), 81 Ohio St.3d 361, 691 N.E.2d 667, the court addressed appellant's arguments as to whether or not a workers' compensation claimant who files a complaint following an employer's appeal is a plaintiff in the action. In Robinson, supra, the court held that the claimant is the plaintiff and may withdraw a complaint pursuant to Civ.R. 41(A)(2). Id., Parts I, II. However, the syllabus of Robinson is limited to a determination that a claimant may voluntarily dismiss a complaint pursuant to Civ.R. 41(A)(2). In this case, appellee dismissed her complaint pursuant to Civ.R. 41(A)(1)(a). In Kaiser v. Ameritemps, Inc. (1998), 81 Ohio St.3d 1418, 688 N.E.2d 1044, the Ohio Supreme Court determined that a conflict existed among the courts of appeal upon the following issue: May a Workers' Compensation claimant use Civ.R. 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer appealing an adverse decision by the Industrial Commission pursuant to R.C. 4123.512? Id., quoting a journal entry in Kaiser v. Ameritemps, Inc. (Nov. 4, 1997), Summit App. No. 18205, unreported. -4- To support its argument that appellee cannot unilaterally dismiss her complaint, appellant relies on Rhynehardt v. Sears Logistic Service (1995), 103 Ohio App.3d 327, an opinion from the Franklin County Court of Appeals. In Rhynehardt, supra, the court stated: This court concludes that Civ.R. 41(A)(1)(a) should not be available to claimants when the employer has appealed an Industrial Commission case to the common pleas court because of the capacity for this to be used in an abusive manner to delay the litigation of the appeal on its merits. 103 Ohio App.3d 327, 332, 659 N.E.2d 375, 378. However, the court in Rhynehardt noted that it was in conflict with our decision in Ross v. Wolf Envelope Co. (Aug. 2, 1990), Cuyahoga App. No. 57015, unreported. Since Ross, supra, this court has repeatedly held that a workers' compensation claimant who files a complaint where the employer appealed pursuant to R.C. 4123.512 has the right to voluntarily withdraw that complaint pursuant to Civ.R. 41(A)(1)(a). Schade v. LTV Steel Company (1997), 117 Ohio App.3d 857, 691 N.E.2d 772; Rice v. Stouffer Foods Corp. (Nov. 6, 1997), Cuyahoga App. No. 72515; Moore v. Trimble (Aug. 15, 1996), Cuyahoga App. No. 67895, unreported; Rogers v. Ford Motor Co. (Aug. 18, 1994), Cuyahoga App. No. 66118, unreported. In Schade, after addressing arguments similar to appellant's based upon the same authorities, we stated: [I]t is the position of our court that in this district the Rules of Civil Procedure apply to these workers' compensation appeals. We recognize that pursuant to the Civil Rules, a plaintiff has the right to -5- voluntarily dismiss his or her case once without prejudice, invoking the saving statute. *** 117 Ohio App.3d at 861, 691 N.E.2d at 774. For these reasons, appellants' assignments of error are not well taken. Judgment affirmed. -6- It is ordered that appellees recover of appellant their 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. JOSEPH J. NAHRA JUDGE DYKE, P.J., and KARPINSKI, J., CONCUR. 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 .