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Cite as 305 Neb. 635

In re Application No. C-4973 of Keith Skrdlant.

Windstream Communications, Inc., appellant,

v. Nebraska Public Service Commission 

and Keith Skrdlant, appellees.

In re Application No. C-4960 of Jason Poppe et al.

Windstream Communications, Inc., appellant,

v. Nebraska Public Service Commission 

et al., appellees.

___ N.W.2d ___

Filed April 23, 2020. Nos. S-18-877, S-18-878.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

that does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is an appellate court’s duty to determine whether it 

has jurisdiction to decide them.

3. Public Service Commission: Time: Words and Phrases: Appeal and 

Error. The words “file” and “filing” in Neb. Rev. Stat. § 75-134.02 

(Reissue 2018) mean that a motion for reconsideration must be in the 

possession of the Public Service Commission within 10 days after the 

effective date of the order in order to suspend the time for filing a notice 

of intention to appeal.

4. Administrative Law: Presumptions: Evidence. The file stamp of an 

agency is afforded a presumption of regularity, and therefore, in the 

absence of evidence to the contrary, the date a document was received 

by and in the possession of the agency is the date shown by the 

file stamp.

Appeals from the Public Service Commission. Appeals 

dismissed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/01/2020 01:07 AM CDT
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Blake E. Johnson and Katherine J. Spohn, of Bruning Law 

Group, for appellant.

Douglas J. Peterson, Attorney General, and L. Jay Bartel 

for appellees.

Miller-Lerman, Cassel, Stacy, Papik, and Freudenberg, 

JJ.

Miller-Lerman, J.

NATURE OF CASE

In these two appeals, Windstream Communications, Inc. 

(Windstream), attempts to appeal orders of the Nebraska Public 

Service Commission (PSC) which granted applications requesting changes to existing boundaries so that the applicants could 

receive advanced telecommunications services from another 

service provider in lieu of service from Windstream. As 

explained below, Windstream’s motions for rehearing were 

not timely filed and did not suspend the time for appeal. 

Accordingly, Windstream’s notices of intention to appeal were 

not timely filed with the PSC, and we lack jurisdiction. We 

dismiss these appeals.

STATEMENT OF FACTS

In both cases Nos. S-18-877 and S-18-878, applicants 

requested boundary changes so that they could receive 

advanced telecommunications service from Hamilton Telecommunications. In case No. S-18-877, Keith Skrdlant filed an 

application on March 1, 2018, and in case No. S-18-878, 10 

applicants, including Jason Poppe, filed their applications on 

November 27, 2017. In each case, the PSC notified Hamilton 

Telecommunications and Windstream of the applications, and 

in each case, Hamilton Telecommunications responded that it 

would accept the request, but Windstream did not consent to 

the requested boundary changes.

After holding public hearings on the applications, the PSC 

entered orders in both cases on July 10, 2018. In case No. 
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S-18-877, the PSC found that Skrdlant’s application should be 

granted, and it ordered that the requested revision to exchange 

boundaries be made. In case No. S-18-878, the PSC found 

that the applications of Poppe and of three other applicants, 

each of whom had either testified at the public hearing or 

submitted information after the hearing, should be granted, 

and it ordered that the requested revisions to exchange boundaries be made. However, the PSC denied the applications of 

the six remaining applicants because they failed to appear or 

to submit information upon the PSC’s request. In each case, 

the PSC concluded its order by stating that the order was 

“ENTERED AND MADE EFFECTIVE . . . this 10th day of 

July, 2018.”

Windstream thereafter submitted motions for rehearing 

requesting that the PSC reconsider its July 10, 2018, orders 

in these cases. A certificate of service attached to each motion 

asserted that the motion was served on the applicants via certified mail on July 20, but each motion was file stamped as 

having been received by the PSC on July 23. On July 31, the 

PSC entered orders scheduling oral arguments on Windstream’s 

motions for rehearing. Oral arguments were held, and on 

August 21, the PSC entered orders denying the motions for 

rehearing.

On September 13, 2018, in each case, Windstream filed 

a notice of intention to appeal with the PSC. Thereafter, in 

each case, the Nebraska Court of Appeals filed an order to 

show cause why the appeal should not be dismissed for lack 

of jurisdiction. The Court of Appeals noted that the PSC’s 

order provided that it was effective on July 10 and that 

Windstream’s motion for rehearing was not filed within 10 

days of the entry of the PSC order. The Court of Appeals reasoned that because the motion for rehearing, which was file 

stamped July 23, was not filed within 10 days, it could not be 

a terminating motion, and that because Windstream’s notice 

of appeal was not filed within 30 days of the July 10 order, it 

was not timely.
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Windstream responded to the order to show cause in each 

case. Windstream argued that it had filed its motion for rehearing within 10 days of the July 10, 2018, order because it 

“transmitted” the motion “both electronically and via U.S. 

Mail on July 20, 2018.” Windstream filed the affidavit of one 

of its attorneys in each case. In the affidavits, the attorney 

stated that she transmitted to the PSC “an electronic communication dated July 20, 2018 . . . which enclosed [Windstream’s] 

Motion for Rehearing in this matter” and that on that same 

day, she “transmitted a hard copy” of the motion for rehearing 

to the PSC “via U.S. Mail.” The affidavit did not aver that the 

motion had been received by the PSC on July 20. No affidavit 

by PSC personnel was submitted which might have averred 

that the PSC received the motion on July 20. And, although 

the email attached to the attorney’s showing states, “[a]ttached, 

please find motions for rehearing,” the email submitted as 

proof bore no attachments, not even an unstamped motion for 

rehearing. Windstream contended that “service of the Motion 

was effective as of July 20, 2018” and cited Neb. Ct. R. Pldg. 

§ 6-1105(b)(4) (rev. 2016). Windstream argued that it had 

30 days after the PSC’s August 21 rulings on its motions for 

rehearing to file its notices of intention to appeal and that it 

timely did so on September 13.

After Windstream filed its responses to the orders to show 

cause, the Court of Appeals entered orders stating that the 

cases would proceed but that it would reserve ruling on jurisdictional issues. We later moved these cases to our docket.

ASSIGNMENT OF ERROR

In each case, Windstream claims that the PSC erred when 

it determined that the applicants would not receive reasonable advance telecommunications capability service within a 

reasonable amount of time absent a change to the exchange 

boundary.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 
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which requires the appellate court to reach a conclusion independent of the lower court’s decision. Green v. Seiffert, 304 

Neb. 212, 933 N.W.2d 590 (2019).

ANALYSIS

[2] Before reaching the legal issues presented for review, it 

is our duty to determine whether we have jurisdiction to decide 

them. Id. This is the case regardless of whether the issue is 

raised by the parties. Id.

The following statutes govern appeals from orders of the 

PSC and are relevant to the jurisdictional issue in this appeal: 

Neb. Rev. Stat. § 86-158(1) (Reissue 2014) provides, “Except 

as otherwise provided in section 86-123, any order of the 

[PSC] entered pursuant to authority granted in the Nebraska 

Telecommunications Regulation Act may be appealed by any 

interested party to the proceeding. The appeal shall be in 

accordance with section 75-136.” Neb. Rev. Stat. § 75-136(2) 

(Reissue 2018) provides:

Any appeal filed on or after October 1, 2013, shall be 

taken in the same manner and time as appeals from the 

district court, except that the appellate court shall conduct 

a review of the matter de novo on the record. Appeals 

shall be heard and disposed of in the appellate court in 

the manner provided by law. Appeal of a [PSC] order 

shall be perfected by filing a notice of intention to appeal 

with the executive director of the [PSC] within thirty days 

after the effective date of the order as determined under 

section 75-134.

Neb. Rev. Stat. § 75-134(2) (Reissue 2018) provides in part 

that “[e]very order of the [PSC] shall become effective ten 

days after the date of the mailing of a copy of the order to the 

parties of record except (a) when the [PSC] prescribes an alternate effective date . . . .” Neb. Rev. Stat. § 75-134.02 (Reissue 

2018) provides in part:

[A]ny party may file a motion for reconsideration with 

the [PSC] within ten days after the effective date of the 

order as determined under section 75-134. The filing of a 
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motion for reconsideration shall suspend the time for filing a notice of intention to appeal pending resolution of 

the motion . . . .”

In the July 10, 2018, orders about which Windstream complains, the PSC declared that the orders were effective the 

day they were entered. Therefore, the effective date of the 

orders under § 75-134(2)(a) was July 10. Under § 75-136(2), 

appeals from the orders would be “perfected by filing a notice 

of intention to appeal with the executive director of the [PSC] 

within thirty days after” July 10. While under § 75-134.02 

the “filing of a motion for reconsideration shall suspend the 

time for filing a notice of intention to appeal,” § 75-134.02 

requires such motion for reconsideration to be filed “within 

ten days after the effective date of the order.” To determine 

compliance with these statutes, we must determine when 

the motions for rehearing were filed with the PSC. If the 

motions for rehearing were not timely, then the time for filing the notices of intention to appeal was not suspended and 

the notices of intention to appeal filed September 13 were 

not timely.

[3] The motions for rehearing filed by Windstream in these 

cases were file stamped by the PSC as being received on July 

23, 2018, which was more than 10 days after the July 10 effective date of the orders. In a case interpreting a statute governing filing deadlines for appeals in the Tax Equalization and 

Review Commission (TERC), we held that “the word ‘filed’ 

means ‘in the possession of’ a particular person or agency, as 

the circumstance dictates, and that [the statute] makes it clear 

that the appeal must be in the possession of TERC in order to 

be considered filed.” Creighton St. Joseph Hosp. v. Tax Eq. & 

Rev. Comm., 260 Neb. 905, 920, 620 N.W.2d 90, 101 (2000). 

We similarly interpret “file” and “filing” in § 75-134.02 to 

mean that a motion for reconsideration must be in the possession of the PSC within 10 days after the effective date of the 

order in order to suspend the time for filing a notice of intention to appeal.
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In the records of the proceedings in the PSC that were 

provided in these appeals, the only indication of when 

Windstream’s motions for rehearing were in the possession of 

the PSC is the date of July 23, 2018, that was file stamped on 

each motion. In a case in which the date a notice of appeal was 

filed was at issue, we noted that “[i]t has long been held that 

in the absence of evidence to the contrary, it may be presumed 

that public officers faithfully performed their official duties 

and that absent evidence showing misconduct or disregard of 

law, the regularity of official acts is presumed.” State v. Hess, 

261 Neb. 368, 377, 622 N.W.2d 891, 900-01 (2001). We reasoned in Hess that the timely filing of documents is an official 

duty of the clerk of a district court and that “the timely filing 

of such documents is an official act to which the presumption 

of regularity attaches.” 261 Neb. at 377, 622 N.W.2d at 901. 

We further reasoned in Hess that “[t]he entry of filing by the 

clerk is the best evidence of the date of filing and is presumed 

to be correct until the contrary is shown,” and we therefore 

concluded that “we must presume, in the absence of affirmative evidence to the contrary, that the clerk performed his or 

her duty and endorsed the notice of appeal with the date it was 

in fact presented to him or her for filing.” 261 Neb. at 377-78, 

622 N.W.2d at 901.

[4] By reasoning similar to Hess, we determine that the 

file stamp of an agency such as the PSC is afforded a presumption of regularity and that therefore, in the absence of 

evidence to the contrary, the date the document was received 

by and in the possession of the agency for filing is the date 

shown by the file stamp. The file stamp is durable proof of 

filing unless overcome by meaningful evidence to the contrary. In response to the Court of Appeals’ orders to show 

cause, Windstream attempted to overcome this presumption 

by asserting that on July 20, 2018, it transmitted the motions 

electronically as email attachments and via the U.S. mail. 

Windstream’s evidence of such transmissions included affidavits of its attorney to which copies of the email were 
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attached, but the emails themselves bore no attached motions 

for rehearing.

With regard to mailing hard copies of the motions via U.S. 

mail on July 20, 2018, such mailing was not effective to establish that the motions were filed with the PSC on that date. As 

discussed above, the relevant statutes require filing within 10 

days, which we interpret to mean that the motions must be in 

the possession of the PSC within that time. Mailing on a certain date does not establish possession by the recipient on that 

date. By contrast, we note that after the decision in Creighton 

St. Joseph Hosp. v. Tax Eq. & Rev. Comm., supra, discussed 

above, the Legislature amended relevant statutes related to 

appeals to TERC to adopt a “mailbox rule” to the effect that an 

appeal is timely filed if placed in the U.S. mail on or before the 

specified date. See Lozier Corp. v. Douglas Cty. Bd. of Equal., 

285 Neb. 705, 829 N.W.2d 652 (2013). However, the statutes 

quoted above regarding filing of motions with the PSC do not 

contain a “mailbox rule” nor do the rules, effective April 19, 

2019, to which we refer below, contain a “mailbox rule.” In 

sum, Windstream does not direct us to authority to the effect 

that a motion is timely filed with the PSC if placed in the mail 

on or before the specified date. Windstream cites only Neb. Ct. 

R. Pldg. § 6-1105(b)(4); however, that rule relates to service of 

pleadings, not to filing of pleadings.

In regard to service, at oral argument the attorney for the 

PSC stated that the motion “had been received electronically” and, when asked to clarify, answered “it was emailed 

to counsel, so counsel had it.” Regarding filing, the attorney 

continued, “[w]hether they’re the appropriate . . . I mean, 

I’m not sure how filing is accomplished, even if it[’]s handdelivered. I suspect it comes in, somebody stamps it . . . .” 

(Emphasis supplied.) Given the foregoing and the substance 

of the emails, it is not clear that Windstream even considered 

the email sent by its counsel to constitute a “filing.” We do 

not believe the PSC has established filing or admitted to a fact 

establishing filing on July 20, 2018, and to the contrary, we 
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understand the dialogue quoted above to mean that although 

there may have been service on opposing counsel on July 20, 

the filing of the motions is evidenced by a file stamp which in 

this case was July 23.

Windstream’s evidence that it submitted the motions electronically does not overcome the presumption that the motions 

for rehearing were filed as stamped on July 23, 2018. A 

proper efiling system provides verification of receipt. No such 

verification has been submitted in this case. The Windstream 

affidavit in response to the show cause order did not aver or 

identify that a recipient of the email was a PSC individual 

authorized to receive and administer the filing. And although 

the email heading shows that the email was sent to various 

“nebraska.gov” addresses, the record does not show that any 

certain address is that of the proper person with whom a 

pleading to the PSC must be filed; during the pendency of the 

appeal, the PSC did not assert that a proper person received 

the document on July 20. It is not the duty of a court to scour 

the record in search of facts that might support a claim. See 

State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018) (declining 

to scour record in search of facts that might support claim). 

Finally, even if we were to adopt a presumption that the email 

sent by Windstream on July 20 bore attached motions for 

rehearing and further presume that it was received by a proper 

recipient on that same date, Windstream has not directed us to 

any rule or regulation of the PSC or other authority indicating that an email attachment is an acceptable method for filing a motion with the PSC. Compare Strode v. Saunders Cty. 

Bd. of Equal., 283 Neb. 802, 815 N.W.2d 856 (2012) (filing 

of motion for rehearing by facsimile acceptable because rule 

adopted by TERC provides for filing by facsimile if original is 

mailed or delivered within 24 hours).

For completeness, we note that effective April 21, 2019, 

the PSC amended its general rules of practice and procedure. Those rules now define a pleading to include a motion, 

291 Neb. Admin. Code, ch. 1, § 001.25 (2019); require that 
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all pleadings must be on white letter-sized paper, 291 Neb. 

Admin. Code, ch.1, § 002.05A (2019); and require that all 

pleadings must be “filed with the [PSC] at its official office,” 

291 Neb. Admin. Code, ch. 1, § 002.05B (2019). They further provide that “[f]iling may be accomplished by personal 

delivery or mail and will be received during regular office 

hours of the [PSC].” Id. See, also, 291 Neb. Admin. Code, 

ch.1, § 002.01 (2019) (“office hours are 8:00 a.m. to 5:00 

p.m., Monday through Friday”). These rules appear to end any 

uncertainty over whether filings with the PSC can be accomplished via email.

CONCLUSION

Based on the file stamps, the motions for rehearing are presumed to have been filed with the PSC on July 23, 2018, and 

Windstream has not overcome that presumption. The motions 

therefore were not filed within 10 days of the effective date 

of the respective orders, and under § 75-134.02, they did not 

suspend the time for filing a notice of intention to appeal. 

Windstream’s notices of intention to appeal were filed with the 

PSC on September 13, which was beyond the 30-day time limit 

allowed under § 75-136(2) to perfect appeals from the July 10 

orders. We therefore lack jurisdiction and accordingly dismiss 

these appeals.

Appeals dismissed.

Heavican, C.J., participating on briefs.

Funke, J., not participating.

Papik, J., concurring.

Windstream’s appeals were timely filed only if its motions 

for reconsideration were filed by July 20, 2018. I agree with 

the majority opinion that, given the July 23 file stamp appearing on Windstream’s motions, it is appropriate to presume 

that the motions were not filed until then, in the absence of 

evidence to the contrary. I also agree that Windstream has not 

supplied us with evidence sufficient to rebut the presumption. 
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I write separately to make some observations about difficulties that can arise when, as here, the governmental entity 

with whom a motion is to be filed has no rules or regulations 

setting forth the method by which the motion is to be filed 

or the person or persons within the entity with whom it is to 

be filed.

If, at the time Windstream filed its motions, the Public 

Service Commission (PSC) had rules or regulations informing 

litigants as to how they were to file a document, the tasks of 

filing a motion and determining whether one was timely filed 

would both be relatively easy. In that scenario, a motion would 

be effectively filed as soon as the person at the PSC identified 

by rule actually received the motion by the prescribed method. 

See Creighton St. Joseph Hosp. v. Tax Eq. & Rev. Comm., 260 

Neb. 905, 920, 620 N.W.2d 90, 101 (2000) (interpreting “filed” 

to mean “‘in the possession of’ a particular person or agency, 

as the circumstance dictates”).

Here, however, the PSC had no rules or regulations setting 

forth how filing was to be accomplished. For this reason, it is 

not entirely clear to me how we can determine whether and 

when the right person received the motion by the appropriate 

method. Indeed, at oral argument, counsel for the PSC acknowledged that he did not know to whom at the PSC a filing must 

be delivered. This situation, it seems to me, places litigants in 

a very difficult position, particularly where, as here, appellate 

jurisdiction depends upon the timely filing of motions.

So what counts as a “filing” of a document with a governmental body if no direction is provided as to how that is to 

be accomplished? An Ohio appellate court wrestled with that 

question in Hanson v. Shaker Hts., 152 Ohio App. 3d 1, 786 

N.E.2d 487 (2003). It concluded that if no direction is provided 

in statute or regulation as to the method of filing, a party can 

use any method of delivery to effectively file a document so 

long as it is actually received. It also concluded that in the 

absence of specific direction as to the person within the governmental body with whom a document is to be filed, filing is 
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accomplished by actual delivery to personnel within the governmental body if delivery to that person or persons is “reasonably calculated to notify” the appropriate official or officials of 

the filing. Id. at 7, 152 Ohio App. 3d at 491.

As the majority notes, we have previously interpreted the 

word “filed” to mean “‘in the possession of’ a particular person 

or agency, as the circumstance dictates.” Creighton St. Joseph 

Hosp. v. Tax Eq. & Rev. Comm., 260 Neb. at 920, 620 N.W.2d 

at 101. I am open to the possibility that the Hanson court’s 

approach is consistent with our interpretation of the word 

“filed,” but would also prevent parties from being penalized 

for not being informed how or with whom a document is to 

be filed.

Here, however, I do not believe Windstream has shown that 

its motions for reconsideration were timely received by persons 

who were reasonably likely to notify the relevant officials at 

the PSC that a motion had been filed. There is no indication 

the hard copies Windstream mailed to the PSC were received 

by July 20, 2018. This leaves only the July 20 email sent by 

Windstream’s counsel. The sole affidavit Windstream offered 

in response to the jurisdictional order to show cause attached 

that email and asserted that the motions were attached thereto 

and that the email was sent to “the Nebraska Public Service 

Commission and its legal counsel.” No additional details were 

provided either in the affidavit or in the response to the order 

to show cause about the specific identity of the recipients, why 

the motions were emailed to them, or how sending the motions 

to the recipients was reasonably calculated to result in the 

appropriate officials at the PSC receiving notification of the filing. Nor did the record as a whole provide evidence sufficient 

to answer these questions without conjecture.

In fact, as the majority observes, it is not even clear that 

Windstream considered the email sent by its counsel to constitute a “filing.” The email was sent to counsel for the PSC and 

did not specifically request that the motions be filed. Instead, 

it stated, in relevant part, “Attached, please find motions for 
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rehearing filed on behalf of Windstream . . . . A hard copy 

of each motion has also been mailed to the [PSC].” This language and the fact it was sent to counsel suggests to me that 

Windstream intended for the mailed hard copy to be filed, and 

was merely serving opposing counsel via email. Windstream 

did nothing to counter that appearance on appeal. To the contrary, it seemed to confirm that reading, by arguing, with citation to a civil pleading rule regarding service of motions, that 

service of the motions was effective on July 20, 2018.

In the absence of evidence that the July 20, 2018, email 

attaching the motion for reconsideration was received by PSC 

personnel who were reasonably likely to notify the appropriate officials of the filing, Windstream could not overcome the 

presumption of regularity even if we were to adopt the Hanson

court’s approach to determining whether a motion was effectively filed.

Fortunately, as the majority notes, it does not appear this 

issue is likely to recur in the PSC context now that the PSC 

has amended its rules and regulations to clarify how filing is to 

take place. However, in the event that a question should arise 

in the future as to whether a party properly filed a document 

with another governmental entity with no rules or regulations 

setting forth how filing is accomplished, I would be open to 

considering whether a party may show that it effectively filed 

a document by making the showings discussed in the Hanson 

case summarized above.