RENDERED: April 24, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-3318-MR JAMES MEDICAL EQUIPMENT, LTD. APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT V. HONORABLE WILLIAM M. HALL, JUDGE
ACTION NO. 96-CI-0311
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, SHIRLEY E. RISEN, BRADLEY RISEN, DARRELYN UNDERWOOD, MARY SON, JUDY UNDERWOOD, MICHELLE JEFFRIES, SHIRLEY A. RUCKER, and MARCIA CALLISON APPELLEES
OPINION AFFIRMING
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BEFORE: COMBS, EMBERTON, and MILLER, Judges. COMBS, JUDGE: The appellant, James Medical Equipment (JME), appeals from the order of the Taylor Circuit Court. JME appealed a decision of the Kentucky Unemployment Insurance Commission to the circuit court, which found that JME had failed to comply with KRS 341.450(1) and dismissed the appeal for lack of jurisdiction. Having examined the record on appeal, we find that the circuit court was correct in dismissing JME's appeal. -2-
In May 1996, the appellees, Shirley E. Risen, Bradley C. Risen, Shirley A Rucker, Mary E. Son, Darrelyn R. Underwood, Judy K. Underwood, Marcia J. Callison, and Michelle L. Jeffries, voluntarily terminated their employment with JME. Subsequently, they filed claims for unemployment insurance benefits. The Division of the Unemployment Insurance conducted an investigation into their termination and issued Notices of Determination, finding that the appellees were eligible to receive benefits. JME appealed the Notices of Determination to an appeals referee. After holding a hearing on the matter, the referee rendered a decision, finding that the appellees had "left their work voluntarily with good cause attributable to the employment and are not disqualified from receiving benefits." JME appealed to the Commission, which affirmed the referee's decision. JME filed an appeal from the Commission's order in the Taylor Circuit Court. Upon the motion of the appellees, the circuit court entered an order on November 15, 1996 dismissing the appeal. The court found that JME had failed to verify its appeal as required by KRS 341.450(1) and that this failure was jurisdictional and fatal to its appeal. This appeal followed.
JME argues that the circuit court erroneously dismissed its appeal on the basis of a "technical error." It contends that its attorney's signature on the complaint sufficiently complied with the statutory mandate of KRS 341.450(1). JME requests that this Court reinstate its appeal and that the circuit court dispose of the action based upon its merits. We disagree.
In Pickhart v. United States Post Office, Ky. App., 664 S.W.2d 939 (1983), this Court addressed the issue of whether or not the verification requirement was mandatory or merely a ministerial act. We held that the failure of a party to comply strictly with the mandatory provisions of a statute authorizing an appeal from an administrative agency is jurisdictional -- rendering any failure to comply with the statute fatal to the appeal. In reaching this conclusion, we reasoned that the right of appeal in administrative proceedings does not exist as a matter of right. Rather, since the right of appeal is conferred by statute, strict compliance with its terms is mandated. Moreover, in Kentucky Unemployment Insurance Commission v. Carter, Ky., 689 S.W.2d 360, 361 (1985), the Kentucky Supreme Court rejected the applicability of the doctrine of substantial compliance in cases "where the appeal process is statutorily created and implemented." (Emphasis added.)
Furthermore, an attorney's signature on a complaint does not constitute compliance with the verification requirement set forth in KRS 341.450(1). In Fisher v. Kentucky Unemployment Insurance Commission, Ky. App., 880 S.W.2d 891, the appellant argued that her attorney's signature on the complaint sufficiently complied with the statutory mandate for verification. We affirmed the circuit court's dismissal for lack of jurisdiction, stating that the holding in Pickhart "unequivocally declare[d] the verification requirement to be mandatory and jurisdictional."
In the case sub judice, JME failed to verify its appeal as mandated by KRS 341.450(1). As this was an appeal in an administrative proceeding, strict compliance with the statutory mandates is required. We hold that JME's appeal was fatally flawed and that the circuit court properly dismissed the action for lack of jurisdiction. Therefore, we affirm the judgment of the Taylor Circuit Court.
EMBERTON, JUDGE, CONCURS. MILLER, JUDGE, DISSENTS. MILLER, JUDGE, DISSENTING: I dissent for the reasons stated in my dissent in Pickhart 664-939.
BRIEF FOR APPELLANT: Kevin K. Distler Susan G. Trollinger Louisville, KY
BRIEF FOR APPELLEE KUIC: Randall K. Justice Frankfort, KY