| IN RE: CONTINENTAL SPORTS CORP. | ) | DOCKET NO. 90 2027 |
| ) | ||
| Claim No. 538,933-00 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Employer, Continental Sports Corporation, by
- Raekes, Rettig, Osborne, Forgette & O'Donnell, per
- Diehl R. Rettig (now withdrawn)
- Department of Labor and Industries, by
- The Attorney General, per
- Sharon M. Brown, Assistant, and Gary McGuire, Paralegal
This is an appeal filed by the employer on April 19, 1990 from an order of assessment of industrial insurance taxes dated March 14, 1990, which assessed industrial insurance taxes due and owing for the period July 1, 1988 through March 31, 1989 in the amount of $116,235.43. Appeal dismissed.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of labor and Industries to a proposed Decision and Order issued on February 8, 1991. The Proposed Decision and order determined that the firm's appeal was timely filed.
The Board has reviewed the evidentiary rulings in the record of proceedings and funds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue raised in this appeal is whether the firm complied with the terms of RCW 51.48.131, which requires that a notice of appeal from [2] a Department notice and order of assessment be filed within thirty days of the date the notice of assessment is served on the employer.
The facts surrounding this issue are not in dispute. The notice of assessment of industrial insurance taxes was served on the firm on Mach 19, 1990 at the firm's offices in Kennewick, Washington. On the same day, the firm staff in Kennewick faxed a copy of the notice of assessment to the company's main office in Vancouver, B.C. Following receipt of the copy by fax, the firm's accountant, Gary Mathieson, contacted representatives of the Department by phone on April 18, 1990. As a result of these conversations, Mr. Mathieson told the Department representatives that he was going to have the notice of appeal couriered to Olympia on that day for filing with the Board of Industrial Insurance Appeals. April 18, 1990 was the 30th day following the service of the notice and order of assessment on the employer. Mr. Mathieson placed the notice of appeal with a private delivery company, Federal Express, for overnight delivery. The notice of appeal was delivered to the Board on April 19, 1990, the 31st day.
The controversy in this case focuses on the employer's use of the private delivery service to deliver the notice of appeal to the Board. The industrial appeals judge relied on previous Board decisions: In re Daniel W. Kelp, BIIA Dec., 86 0686 (1988) and In re Betty L. Clayberg, BIIA Dec., 86 4295 (1988), and found that filing of the notice of appeal is effective upon mailing of the notice of appeal. The industrial appeals judge, however, also determined that use of a "reputable commercial delivery service" is tantamount to mailing and therefore the [3] notice of appeal was filed when it was delivered to the Federal Express agent on April 18, 1990, and is thus timely. We disagree.
While the Industrial Appeals Judge is correct in relying on In re Daniel W. Kelp and In re Betty L. Clayberg for the proposition that filing is effectively accomplished upon mailing of the notice of appeal, there is no authority to equate the use of a private delivery agent as a substitute for the mail. RCW 51.48.131 provides:
A notice of assessment becomes final thirty days from the date the notice of assessment was served upon the employer unless: (1) A written request for reconsideration is filed with the department of labor and industries, or (2) an appeal is filed with the board of industrial insurance appeals and sent to the director of labor and industries by mail or delivered in person.
Our reading of the statute convinces us that the Legislature intended only two methods for filing the notice of appeal with this Board. The notice of appeal can be placed in the mail, at which time it is effectively filed, or the notice of appeal can be delivered in person to the Board.
The firm argues that the private delivery agent is a reputable company and can be equated with mail service. We, however, believe that the use of the term "mail" in the statute has specific meaning. Mail is defined as "the bags of letters and the other postal matter conveyed under public authority from one post office to another." Webster's Third New International Dictionary, 1361 (1986). "Mails" is defined as "a nation's postal system." Webster's Third New International Dictionary, 1361 (1986). We believe that the use of the term "mail" has a specific [4] and very narrow connotation when used in this statutory scheme. We do not believe that the Legislature would have intended the statute to read: "by mail or any other agent, as designated by the appealing party". If the position enunciated in the Proposed Decision and Order, and urged by the firm is adopted, we believe this would be the impact of the statutory language.
We are also somewhat confused by the statement in the Proposed Decision and Order that delivery of the notice of appeal to the Federal Express agent would constitute delivery to a "person" within the meaning of RCW 51.48.131, so as to constitute a timely filing. We believe this is a misstatement of the law of agency. The notice of appeal in this case was effectively filed with the Board on April 19, 1990 "in person" by the firm's agent, Federal Express. The filing occurred when the firm's agent presented the notice of appeal with Federal Express, the firm's agent. Delivery to one's own agent does not constitute delivery to a third party.
Finally, we find no merit in the firm's contention that equitable estoppel should be applied so as to excuse the late filing. Equitable estoppel requires three elements: (1) a statement which is inconsistent with a claim made after the statement; (2) reliance by the other party on the truth of the statement; and (3) injury to the party which results from allowing the first party to contradict or repudiate the initial admission or statement. McDaniels v. Carlson, 108 Wn.2d 299 (1987). Even if this Board was inclined to grant equitable relief on this issue, [5] we do not believe the elements of equitable estoppel have been established. Mr. Mathieson's testimony merely indicates that in his conversations with representative from the Department, he believed that it was satisfactory to courier the appeal on April 18, 1990, the 30th day. His testimony is very narrow, in that there was no discussion with the Department as to when anybody expected the courier to deliver the notice of appeal. His testimony indicates only that he would have the item couriered on the 30th day. Mr. Clark Miller, a Federal Express manager, indicated that there were three forms of delivery provided by Federal Express. These include a same day delivery, an overnight delivery, and two-day delivery. Mr. Miller testified that the firm selected the overnight delivery service, knowing that the appeal would therefore be filed or delivered on April 19, 1990. These facts are insufficient to raise the equitable estoppel defense against the Department.
Since the notice of appeal filed by the firm in this matter was filed on the 31st day following the service of the notice of assessment of industrial insurance taxes on the firm, the appeal is untimely and this Board lacks jurisdiction to consider the merits of the appeal. Therefore the appeal must be dismissed.
FINDINGS OF FACT
1. On March 14, 1990, the Department of Labor and Industries issued a notice and order of assessment of industrial insurance taxes against the firm, Continental Sports Corporation, in the amount of $116,235.43 for the period July 1, 1988 through March 31, 1989. The notice and order of assessment demanded payment of such taxes. [6]
On April 19, 1990, the firm filed a notice of appeal with the Board of Industrial Insurance Appeals from the March 14, 1990 notice and order of industrial insurance taxes. On May 21, 1990, the Board issued an order granting the appeal subject to proof of timeliness, assigning it Docket No. 90 2027, and directing that proceedings be held on the issues raised.
2. The notice and order of assessment dated March 14, 1990 was communicated to the firm on March 19, 1990. On April 18, 1990, the 30th day after March 19, 1990, the firm employed a commercial delivery service, Federal Express, to courier the notice of appeal to the Board. Federal Express, acting as the firm's agent, delivered the notice of appeal to the Board on April 19, 1990.
3. The firm's notice of appeal from the notice and order of assessment of industrial insurance taxes dated March 14, 1990 was filed with the Board on April 19, 1990.
CONCLUSIONS OF LAW
- The appeal filed by the employer, Continental Sports Corporation, on April 19, 1990 with the Board of Industrial Insurance Appeals, was not timely filed within the meaning of RCW 51.48.131.
- The Board lacks jurisdiction over the subject matter of this appeal. The appeal filed by the firm on April 19, 1990 from the notice and order of assessment dated March 14, 1990 is hereby dismissed. [7]
It is so ORDERED.
Dated this 24th day of July, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
S. FREDERICK FELLER Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member