Mailing Date As Notice Date for Calculating Limitations Time
Ordinary mail service must meet the constitutional benchmark established by the United States Supreme Court; due process requires that notice must be reasonably calculated under the circumstances to appraise parties of the pendency of an action.
In In re Foreclosure of Liens for Delinquent Taxes (1980), 62 Ohio St.2d 333, 337, 16 O.O.3d 393, 405 N.E.2d 1030 (applying and following Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865), the statute provided that ordinary mail service be sent to the last known owner of property.
The court found that such written notice was reasonably calculated under the circumstances and, therefore, passed constitutional muster. While a state must follow these constitutional requirements, a state may add additional, non-conflicting safeguards to civil liberties. Michigan v. Long (1983), 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201.
R.C. 742.3715(B) is silent as to the manner of the Pension Fund's providing written notice to its members.
It merely requires that "not later than thirty days after December 21, 1998, the fund shall provide to all members described in this division."
It has long been established in Ohio that when a statute is silent as to how service is to be effectuated, written notice is deemed given only upon receipt. Moore v. Given (1884), 39 Ohio St. 661, 663, 1884 WL 62; See, also:
Edens v. Barberton Area Family Practice Ctr. (1989), 43 Ohio St.3d 176, 539 N.E.2d 1124;
State ex rel. Francu v. Windham Exempted Village School Dist. Bd. of Edn. (1986), 25 Ohio St.3d 351, 25 OBR 403, 496 N.E.2d 902;
State ex rel. Peake v. S. Point Local School Dist. Bd. of Edn. (1975), 44 Ohio St.2d 119, 73 Ohio Op. 2d 437, 339 N.E.2d 249;
Castellano v. Kosydar (1975), 42 Ohio St.2d 107, 71 Ohio Op. 2d 77, 326 N.E.2d 686.
Statutory notice provisions are mandatory to avoid "chaos." Lake Shore Elec. RR. Co. v. Pub. Util. Comm. (1926), 115 Ohio St. 311, 317, 4 Ohio Law Abs. 339, 154 N.E. 239, 241, 24 Ohio L. Rep. 451.
In State ex rel. Peake, supra, the court applied the Moore rule to the notice requirement of R.C. 3319.11. This statute required the board of education to send written notice by April 30 to any teacher whose contract would not be renewed.
The statute was silent as to the manner of the service.
By certified mail the board of education sent Peake written notice of its intent not to reemploy him; however, Peake did not receive the notice until May 2.
Though Peake attended the meeting on April 27 at which the board of education terminated his teaching contract, "neither the presence of Peake at the meeting nor the posting of the notice is sufficient to satisfy the demands of the statute." State ex rel. Peake, supra, at 122, 73 Ohio Op. 2d 437, 339 N.E.2d 249.
Reiterating that "Ohio has long followed the rule set forth in the second paragraph of the syllabus in Moore v. Given," the court determined that the board had not complied with the statutory notice requirement.
In Edens v. Barberton Area Family Practice Ctr., supra, at 178, 539 N.E.2d 1124, the Supreme Court rejected using the mailing date as the notice date for calculating time under the statute of limitations.
The court specifically rejected concerns about the variances generated by postal delivery and reaffirmed the Moore rule: when a statute is silent as to service, written notice is effected when that notice is received. Edens, supra, at paragraph one of the syllabus.