RENDERED: July 16, 1999; 10:00 a.m.

NOT TO BE PUBLISHED

C o m m o n w e a l t h O f K e n t u c k y

C o u r t O f A pp e a l s

NO. 1998-CA-000546-MR

HARVEY GENE CREGGETT APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE KEN G. COREY, JUDGE

CIVIL ACTION NO. 97-CI-05417

KENTUCKY TRUCK PLANT and KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION APPELLEES

OPINION AFFIRMING

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BEFORE: HUDDLESTON, JOHNSON and KNOPF, Judges. HUDDLESTON, Judge. Harvey Gene Creggett appeals from an order dismissing his petition and appeal for review of a decision by the Kentucky Unemployment Insurance Commission (KUIC) which denied Creggett unemployment compensation benefits. The circuit court dismissed the action due to Creggett's failure to verify the complaint and his failure to name his ex-employer, Ford Motor Company, as a party to his suit. We affirm the dismissal order.

On September 22, 1997, Creggett sought review in Jefferson Circuit Court of a decision by KUIC denying his claim for benefits. KUIC moved for dismissal of Creggett's complaint on the ground that the trial court lacked subject matter jurisdiction due to Creggett's failure to verify his complaint and his failure to join Ford Motor Company as a defendant, as required by Ky. Rev. Stat. (KRS) 341.450.

On November 3, 1997, Creggett tendered an amended complaint, pursuant to Ky. R. Civ. Proc. (CR) 15.01, which added Ford Motor Company as a defendant. Again, Creggett did not verify his complaint. On December 12, 1997, the trial court granted Creggett's motion for permission to file his amended complaint. After KUIC moved the court to reconsider its ruling, the court set aside the December 12, 1997, order and dismissed Creggett's complaint for lack of subject matter jurisdiction.

On appeal, Creggett argues that he was entitled to amend his complaint in accord with CR 15.01 which provides that: "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Creggett argues that his amendment was valid under the Civil Rules which rendered his original complaint timely under CR 15.03.

We cannot agree. The requirement for verification in KRS 341.450(1) is mandatory and jurisdictional, and timely but unverified complaints must be dismissed. Monyhan v. Kentucky Unemployment Ins. Com'n., Ky. App., 709 S.W.2d 837 (1986); Pickhart v. U. S. Post Office, Ky. App., 664 S.W.2d 939, 940 (1983); Fisher v. Kentucky Unemployment Ins. Com'n., Ky. App., 880 S.W.2d 891, 892 (1994).

In Fisher, this Court, citing to precedent, said that "[t]he Court in Pickhart adhered to the long-standing principle that statutes providing for judicial review of the decisions of administrative agencies are to be strictly observed." Id. at 892. The Court went on to say that:

There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy. Fisher, 880 S.W.2d at 892 (Citations omitted) (Emphasis original).

Likewise, when an employer has been a party before the Commission, an aggrieved employee must join the employer to the lawsuit. Kentucky Unemployment Ins. Com'n v. Carter, Ky., 689 S.W.2d 360 (1985). Creggett insists that by submitting extra copies to the KUIC and mentioning Ford Motor Company in his EEOC complaint, KRS 341.450 is satisfied. We find no authority to authorize substantial compliance in a case where the appeal process is statutorily created. Carter, 689 S.W.2d at 361. 

As we did in Fisher, we note here our duty to defer to precedent, regardless of our view of the advisability of the policy, and conclude here, as we did there, that "we are precluded from simply choosing not to follow the law." Id. at 892. We hold, therefore, that Creggett's failure to strictly comply with the mandatory provisions of a statute authorizing an appeal from an administrative agency is jurisdictional, and such failure is fatal to his appeal.

The order dismissing Cregett's petition and appeal is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE

KENTUCKY UNEMPLOYMENT Harvey Gene Creggett, pro se INSURANCE COMMISSION: Louisville, Kentucky

Randall K. Justice WORKFORCE DEVELOPMENT CABINET OFFICE OF GENERAL COUNSEL Frankfort, Kentucky