Stark v. Munce Bros. Transfer & Storage , 1990 S.D. LEXIS 155 ( 1990 )

HENDERSON, Justice

(dissenting).

This is another judicial jolt for the working people of South Dakota emanating from this Court, and more specifically, for Gerhardt Stark, one of their ranks. This decision is based upon a hypertechnical construction of one statute, involving an appeal rubric, which under close and fair examination, does not make sense.

True, it is settled law in South Dakota that failure to timely file a notice of appeal is a jurisdictional flaw requiring dismissal of the appeal. Kulesa v. Department of Public Safety, 278 N.W.2d 637 (S.D.1979); Madsen v. Preferred Painting Contractors, 89 S.D. 397, 233 N.W.2d 575 (1975). But — -these cases are patently distinguishable because: This case is not about the issue of timely filing the notice of appeal. Filing is an independent act and concept; giving notice thereof is a separate concept.

In the name of justice, should not the appellees (who were served within the statutory time limit and proper notice given unto them) be required to demonstrate how they are prejudiced by this de minimis error? Cannot the majority of this Court recognize that the Department of Labor is not an aggrieved party? Said Department has no standing to appeal and is not participating in this appeal. Rather, though the Department’s shoe is supposedly pinching, the appellees are hollering “ouch” for the Department. It is obvious that the functions of the Department of Labor are purely administrative. This working man, through his lawyer, timely filed his notice of appeal and served his statement of issues on appeal pursuant to SDCL 1-26 — 31.-4. Thereafter, he timely requested a transcript pursuant to SDCL 1-26-32.2. Error it was (of insignificant impact), but not such a damaging or prejudicial mistake that it should cause this working man an opportunity to appeal. The failure to notify the said Department was three (3) to six (6) days late, depending upon how the time is calculated. In my opinion, the decision of the circuit court and the Supreme Court of this state is acutely insensitive and harsh to this man. If the notice to the Department of Labor (not mind you, a substantive filing of his appeal) was 3, 4, 5 or 6 days late, so what? Our decision in this case is based upon administrative gobble-de-gook! A reading of this record discloses that prior to July 12, 1989, the Department of Labor had assembled and consecutively numbered the pages of all documents and prepared and attached an alphabetical and chronological index. Said Department filed it on July 12, 1989. Thus, the work was all done; the hay was in the barn; all systems were go. But — the circuit court camped down on a technicality. Opposing parties (appellees), have not demonstrated any prejudice whatsoever. It reminds me of the old “tee-hee” game we played as youngsters where we taunted “We gotcha!” Again, I repeat: This working man timely filed his appeal; he timely filed and served his statements of issue on appeal; he timely filed a request for transcript. Under SDCL 1-26-33 the administrative agency (the said Department) was able to do its required duty (and did). So, as we witnessed — on television in a famous advertisement: “Where’s the beef?” The answer is: It isn’t there.

A three to five day tardiness on notice (not filing) has cost this working man his appeal. This is absolutely vaulting form over substance. No prejudice or delay was occasioned in the appeal process. There is, simply, no fatal flaw. I would follow the reasoning in the Olson decision in Minnesota, cited by the majority and which the majority now dances with and does a deft sidestep to avoid its rationale. Moreover, in Olson, the appellant neglected to file a notice of appeal with the commissioner (liked unto the Department here). Yet, the Minnesota Supreme Court held that failure to do so did not warrant a dismissal of the appeal. The Minnesota Supreme Court held, inter alia:

The requirement that a copy of the notice of appeal be filed with the Commissioner simply assists the Commissioner in carrying out purely administrative functions. See Minn.Stat. § 175.101 (1982).

Not unlike Minnesota, the Department of Labor performed an administrative function also in assembling the record. All systems were go; all was ready. Justice was in gear. So — “Where’s the beef?” I would follow the Minnesota rationale. And say, what of the dozens of cases in this Court which held that Workmen’s Compensation statutes are to be construed liberally to effectuate the basic purpose of the legislative will? Seems to me that we have held that the Workmen’s Compensation Act is remedial, and should be liberally construed to effectuate its purposes, to aid the injured worker. See, for example, Schwan v. Premack, 70 S.D. 371, 17 N.W.2d 911 (1945). On this cardinal premise, we hunkered down for years. The cases are legion. Now, in this Court, read our recent compensation cases. You will see the winds of change blowing across the South Dakota prairie, from the borders of Minnesota and Iowa to the Black Hills adjacent to the Wyoming state line. See, for example, Lawler v. Windmill Restaurant, 435 N.W.2d 708 (S.D.1989), Henderson, J., dissenting.

Accordingly, I dissent.