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Kunard v Hop In Food Stores, Inc 16.53

Section 32a

PROCEDURE, Timeliness of appeal to Referee

CITE AS: Kunard v Hop In Food Stores, Inc., Allegan Circuit Court, No. 93-16229-AE (March 14, 1994)

Appeal pending: No

Claimant: Penny Kunard

Employer: Hop In Food Stores, Inc

Docket No. B92-20344-122464W

CIRCUIT COURT HOLDING: The record must contain evidence of a timely appeal to the Referee before the Referee may exercise jurisdiction. Subject matter jurisdiction may be raised at any stage of the proceedings.

FACTS: The employer appealed to the Referee on March 13, 1992, from a redetermination issued February 11, 1992. The deadline for a timely appeal was March 12, 1992. At the Referee hearing the employer showed a copy of a redetermination issued February 12, 1992, however no evidence of a redetermination issued that date was included in the record. The only copy of the redetermination in the record showed a mailing date of February 11, 1992. By the time the matter was heard by the Circuit Court more than a year had passed since the issuance of the redetermination. Therefore, it was too late for the Commission to reconsider the redetermination.

DECISION: The employer's appeal of the redetermination was untimely. Therefore the Referee had no jurisdiction over the merits of the appeal. The redetermination holding claimant not disqualified became final.

RATIONALE: There was no evidence in the record to support the Referee's conclusion that the redetermination was issued February 12, 1992. Although the Referee indicated during the hearing that the employer had presented a copy of the redetermination dated February 12, 1992, that copy was not included in the record. The evidence in the record does not support a finding that the employer filed a timely appeal to the Referee.

"Therefore, the referee lacked jurisdiction and his reversal of the redetermination was without effect. Any right to appeal that Hop-In Food Store may have had was extinguished 30 days after the redetermination order was mailed by the MESC; therefore the redetermination order became final. Herman v Chrysler Corp, 106 Mich App 709, 719 (1981). Since lack of subject matter jurisdiction can be raised at any stage of the proceeding, this issue is properly before this court. Goodman v Bay Castings, 49 Mich App 611, 625 (1973)."


19, 17, d22: B

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