Tague v. Board of Trustees

399 N.E.2d 1240, 61 Ohio St. 2d 136, 15 Ohio Op. 3d 168, 1980 Ohio LEXIS 627

Opinions

Per Curiam.

To decide this cause, we need only determine whether the amendment to R. C. 4123.519 ¹ denies appellee, with respect to her then pending claim with the board,² a previously accorded statutory remedy of direct appeal to the Court of Common Pleas. Since the amendment is silent on this question, we resort to R. C. 1.58.³ Pursuant to R. C. 1.58, we determine that appellee’s remedy of direct appeal is preserved.

Under former R. C. 1.20⁴ the predecessor to R. C. 1.58, it was well established that once an action was pending, associated remedial rights extended by statute could not be eliminated by later amendment or repeal, unless a contrary legislative intent was expressly stated. Smith v. N.Y. Central Rd. Co. (1930), 122 Ohio St. 45, 52. Moreover, this rule was equally applicable to actions pending with agencies. State, ex rel. Cleveland Ry. Co., v. Atkinson (1941), 138 Ohio St. 157. The terms of R. C. 1.58 indicate that thie General Assembly intended it to be as protective in this regard as was R. C. 1.20. In pertinent part, R. C. 1.58 provides:

“(A) The reenactment, amendment, or repeal of a statute does not, * * *:

U * * *

“(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;

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“(4) Affect any* * * proceeding* * *in respect of any such privilege***; and the***proceeding***may be instituted, continued, or enforced***, as if the statute had not been repealed or amended.”

R. C. 1.58(A)(2) preserves appellee’s remedy of direct appeal. Once her claim was pending with the board, preamendment R. C. 4123.519 extended her the right or privilege to choose between direct appeal to the Court of Common Pleas and a more circuitous route to that same end (i.e., by first exhausting her appeal with the Industrial Commission). R. C. 1.58(A)(2) prohibits R. C. 4123.519 as amended from affecting this right or privilege. Cf. Coca-Cola Bottling Corp. v. Lindley (1978), 54 Ohio St. 2d 1, 9.

Additionally, R. C. 1.58(A)(4) preserves appellee’s remedy of direct appeal. An appeal to the board is a “proceeding” within the meaning of R. C. 1.58(A)(4). Cf. State, ex rel. Cleveland Ry. Co., supra, at page 161. R. C. 1.58(A)(4) assures that this proceeding can be “continued***as if***[R. C. 4123.519] had not been repealed or amended.”

Thus, we affirm the judgment of the Court of Appeals.

Judgment affirmed.

Celebrezze, C. J., W. Brown, P. Brown and Lynch, JJ., concur. Herbert J., concurs in the judgment. Locher, J., dissents. Holmes, J., not participating because he was a Judge of the Court of Appeals which heard the case. Lynch, J., of the Seventh Appellate District, sitting for Sweeney, J.

1 Effective January 17,1977, R. C. 4123.519 was amended to delete the following emphasized language:

“The claimant or the employer may appeal a decision of the industrial commission* * *to the court of common pleas* * *. Like appeal may be taken from a decision of a regional board from which the commission has refused to permit an appeal to the commission provided that the claimant may take an appeal from a decision of the administrator on application for reconsideration .or from a decision of a regional hoard. ”

2 The question certified by the Court of Appeals refers more broadly to claims “filed with the Bureau of Workers’ Compensation” (emphasis added) prior to the effective date of the amendment to R. C. 4123.519. Since both in the instant cause and in Storch v. Daugherty, supra, the claims were pending with the hoard on the effective date of the amendment, we so limit our analysis.

R. C. 1.58 reads as follows:

3 “(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:

“(1) Affect the prior operation of the statute or any prior action taken thereunder;

“(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder;

“(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;

“(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.

“(B) If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.”

R. C. 1.20 provided:

4 “When a statute is repealed or amended, such repeal or amendment does not affect pending actions, prosecutions or proceedings, civil or criminal. When the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions, or proceedings, unless so expressed, nor does any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.” (Emphasis added.)