No. 93-053

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

MCI TELECOMMUNICATIONS CORP.,

Petitioner and Appellant,

VS.

MONTANA DEPARTMENT OF PUBLIC SERVICE

REGULATION, PUBLIC SERVICE COMMISSION,

DANNY OBERG, JOHN DRISCOLL, ROBERT

ANDERSON, WALLACE MERCER and TED MACY,

Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis & Clark,

The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Leo Berry, Browning, Kaleczyc, Berry & Hoven,

Helena, Montana; Sue Weiske MCI Telecommunications

carp, Denver, Colorado

For Respondents:

Ivan C. Evilsizer, Montana Public Service

Commission, Helena, Montana: John Alke, Hughes,

Xellner, Sullivan & Alke, Helena, Montana; T. Larry

Barnes, AT&T Communications, Denver, Colorado:

Robert A. Nelson, Montana Consumer Counsel! Helena,

Montana: Mary Piper, Kansas City, Missouri; Dennis

R. Lopach, U.S. West Communications, Helena,

Montana; Mike Manion, Butte, Montana

Submitted on Briefs: May 27, 1993

Decided: August 26, 1993

Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

This is appeal by MCI Telecommunications Corp. (MCI) from the

order of the District Court of the First Judicial District, Lewis

and Clark County, which granted defendants' Motion to Dismiss

appellant's Petition for Judicial Review. The District Court

denied judicial review of the Public Service Commission's order on

the grounds that the District Court lacked jurisdiction over the

petition. We reverse.

The sole issue for our review is whether Rule 6(e),

M.R.Civ.P., applies to petitions in district courts for judicial

review of administrative decisions.

After several proceedings in this administrative action, the

Montana Public Service Commission (Commission) issued its Order No.

5548~ on May 18, 1992, which denied MCI's motion for

reconsideration of a Commission ruling. The Commission mailed a

copy of the order to MCI on May 19, 1992. MCI did not receive the

copy of the order until May 21, 1992. On June 19, 1992, MCI filed

its Petition for Judicial Review.

The Commission moved to dismiss MCI's petition on the grounds

that the District Court lacked jurisdiction over the petition,

claiming that the petition was filed 31 days after service. The

District Court granted the Commission's motion to dismiss and MCI

now appeals this dismissal.

Did the District Court err in dismissing appellant's petition

for judicial review because it was not timely filed?

Section 2-4-702, MCA, provides that a person may institute

2
proceedings for judicial review of an administrative decision after

all administrative remedies have been exhausted. This section,

part of the Montana Administrative Procedure Act (MAPA), further

provides in pertinent part:

(2) (a) Proceedings for review shall be instituted by

filing a petition in district court within 30 davs after

service of the final decision of the agency . . .

Section 2-4-702(2)(a), MCA (emphasis supplied). Noting that this

indeed produced a harsh result and that the court would rather see

every dispute decided after both sides are "fully and fairly

allowed to present their evidence and arguments to a court," the

District Court nevertheless determined that service was complete

when the Commission mailed a copy of the order to MCI on May 19,

1992 and that MCI's petition for judicial review was filed one day

too late.

An appeal filed after the time prescribed by statute is

ineffective for any purpose and thus fails to confer jurisdiction

upon the district court to review an administrative agency's

decision. State ex rel. Albrecht v. District Court (1952), 126

Mont. 178, 182, 246 P.2d 1035, 1037. The timely filing of a notice

of appeal is mandatory and jurisdictional. Albrecht, 126 Mont. at

180, 246 P.2d at 1036.

MCI contends that Rule 6(e), M.R.Civ.P., applies to this

administrative proceeding and that by applying Rule 6(e), its

petition for judicial review was filed on the 28th day after

service and was timely filed. Rule 6(e), M.R.Civ.P., provides:

Rule 6(e). Additional time after service by mail.

Whenever a party has the right or is required to do some

3
act or take some proceedings within a prescribed period

after the service of a notice or other paper upon the

party and the notice or paper is served upon the party by

mail, 3 davs shall be added to the prescribed period.

(Emphasis supplied.)

The Commission argues that Rule 6(e) does not apply because its

effect is to extend the jurisdiction of the district court beyond

thirty days, which is not allowed by Rule 82, M.R.Civ.P. Rule 82,

M.R.Civ.P., provides:

Rule 82. Jurisdiction and venue unaffected. Except

as provided in Rule 4 these rules shall not be construed

to extend or limit the jurisdiction of the district

courts of Montana or the venue of actions therein.

The commission argues that service of notice was complete on the

day it mailed a copy of the order to MCI.

The Commission relies on numerous cases from federal courts

and other states to support its argument that Rule 6(e) does not

apply in an appeal from an administrative agency decision to the

district court. We have reviewed these cases and found them

unpersuasive because they address the applicability of Rule 6(e) in

cases where statutes define service as either the date of mailing

or the date of receipt of notice. See, u, Ramsdell v. Ohio

Civil Rights Comm'n (Ohio 1990), 563 N.E.2d 285.

The district court's jurisdiction is controlled by the period

of time prescribed by the legislature and is limited to the time

provided by the applicable statute. The right to an appeal of an

administrative agency's ruling is created by statute and is limited

by the provisions of the statute as to the time within which the

right must be asserted. Zeller v. Folsom (N.D.N.Y. 1956), 150 F.

SUPP. 615, 617. Where the time for filing an appeal is dictated by

4
the statute which confers the right to appeal, Rule 6(e) cannot be

applied to extend the time for filing as this would be an extension

of the court's jurisdiction. In this case, the time to appeal is

not dictated by any statute which prescribes that service is

complete when placed in the mail as the Commission contends.

The 3-day extension applies only where the time period for

doing an act runs from the time of service of notice. This 3-day

period is computed separately and determines the date when the 30-

day time for appeal begins to run. The Wyoming Supreme Court

quoted the rationale for the 3-day extension in Rule 6(e) as

follows:

[T]he rule clearly is intended to protect parties who are

served notice by mail from suffering a systematic

diminution of their time to respond through the

application of Rule 5(b), which provides that service is

complete upon mailing, not receipt: the additional three

days provided by Rule 6(e) to the party being served

represent a reasonable transmission time, and a fair

compromise between the harshness of measuring strictly

from the date of mailing and the indefiniteness of

attempting to measure from the date of receipt, which in

many cases would be unverifiable.

Sellers v. Employment Sec. Comm'n of Wyo. (Wyo. 1988), 760 P.2d

394, 397 (quoting 4A C. Wright & A. Miller, Federal Practice and

Procedure: Civil 2d § 1171 at 514-15 (1987)). As in Sellers, the

appeal period in this case is triggered by sending notice in the

mail.

Neither MAPA nor the Commission rules define "service."

Section 2-4-106, MCA, provides:

Service. Except where a statute expressly provides

to the contrary, service in all agency proceedings

subject to the provisions of this chapter and in

proceedings for judicial review thereof shall be as

5
prescribed for civil actions in the district courts.

The Commission argues that § z-4-106, MCA, merely provides for the

manner of service to be the same as civil actions in the district

courts.

We have previously stated that "service" under MAPA is

governed by the Montana Rules of Civil Procedure unless a statute

expressly provides otherwise. Rierson v. State (1980), 188 Mont.

522, 527, 614 P.2d 1020, 1023 (citing 5 2-4-106, MCA). This is

consistent with the Ramsdell case cited above.

Our treatment of workers' compensation appeals to this Court

provides further persuasion for treating administrative agency

appeals to district courts in a manner similar to other

proceedings. In a workers' compensation case which challenged the

timeliness of an appeal to the district court, this Court noted

that proceedings in the Workers ' Compensation Court are governed by

MAPA and, therefore, § 2-4-623, MCA, applies to require service by

mail or personally. Dumont v. Wickens Bros. Constr. Co. (1979),

183 Mont. 190, 200, 598 P.2d 1099, 1105. We further stated:

[A] person who appeals from a final decision of the

Workers' Compensation Court should in all fundamental

fairness be given the same benefit of that provision of

Rule 5, M.R.App.Civ.P., which states that:

'1. . . except that in cases where service of notice

of entry of judgement is required by Rule 77(d) of the

Montana Rules of Civil Procedure the time shall be 30

days from the service of notice of entry of judgment."

This would mean, as is already the case where Rule

77 Cd) , M.R.Civ.P., is applicable, that when service of

the notice of the final decision of the Workers'

Compensation Court is made as mandated by section 2-4-623

MCA and that service was made by mail, the provisions of

Rule 21(c) M.R.App.Civ.P., are automatically put into

6
play adding three days to the prescribed 30-day time

limit for filing the notice of appeal.

. . . Rule 21(c) comes into play adding three days

to the prescribed period and the 33rd and final day for

filing the notice of appeal was November 2, 1978. Thus,

claimant's appeal was timely--not one day late as

respondent claims.

Dumont (1979), 183 Mont. 190, 200, 598 P.2d 1099, 1105.

The appeal in Dumont was from the Workers' Compensation Court

directly to the Montana Supreme Court and thus was governed by the

Rules of Appellate Procedure. Rule 21(c), M.R.App.P., is the

equivalent of Rule 6(e), M.R.Civ.P. The provision in 3 2-4-623,

MCA, requiring notice either personally or by mail is identical to

Rule 77(d), M.R.Civ.P., insofar as requiring notice of decisions in

workers' compensation cases. In Dumont, this Court interpreted 5

2-4-623, MCA, as requiring that 3 days be added to the prescribed

30-day time limit for filing a notice of appeal in the Supreme

Court for an appeal from the Workers' Compensation Court.

We conclude that there is a need for uniformity and fairness

in the application of rules relating to the time when an appeal

begins to run. The 30-day appeal period cannot begin to run until

the effective date of service. Section 2-4-106, MCA, of MAPA does

not define lVservice" but it provides that service in agency

proceedings be as prescribed for civil actions in the district

courts. Because MAPA uses the term V'.servicelt but does not define

when service is effective, 5 2-4-106, MCA, requires that Rule 6(e)

be applied to define when service by mail is complete for

administrative decisions. We conclude that service was not

effective upon MCI until May 22, 1992, three days after mailing

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notice of the Commission's order. We further conclude that the 30-

day period allowed for filing a petition for judicial review began

to run on May 23, 1992, the day following service by mail, that the

petition was filed within thirty days and that the District Court

had jurisdiction to hear this appeal.

We hold the District Court erred in dismissing appellant's

petition for judicial review for lack of jurisdiction.

Reversed and remanded.

8
August 26, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Leo Berry, Esq.

Browning, Kaleczyc, Berry & Hoven, P.C.

P.O. Box 1697

Helena, MT 59624

Sue E. Weiske

MCI Telecommunications Corp.

707-17th ST., Ste. 3900

Denver, CO 80202

Ivan C. Evilsizer, Esq.

Montana Public Service Commission

1701 Prospect Ave.

Helena, MT 59620-2601

John Alke, Esq.

Hughes, Kellner, Sullivan & AIke

P.O. Box 1166

Helena, MT 59624

T. Larry Barnes

AT&T Communications

1875 Lawrence St., Rm. 1575

Denver, CO 80202

Robert A. Nelson

Montana Consumer Counsel

34 W. 6th Ave.

Helena, MT 59620

Mary Piper

8140 Ward Pardway, 5E

Kansas City, MO 64114
Dennis R. Lopach

U.S. West Communications

560 N. Park Ave.

Helena, MT 59624

Mike Manion

40 E. Broadway

Butte, MT 59701

ED SMITH

CLERK OF THE SUPREME COURT

STATE, OF MONTANA