{
  "id": 8526928,
  "name": "IN THE MATTER OF ROGER R. SMITH v. DANIELS INTERNATIONAL and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA",
  "name_abbreviation": "Smith v. Daniels International",
  "decision_date": "1983-10-04",
  "docket_number": "No. 8210SC1013",
  "first_page": "381",
  "last_page": "383",
  "citations": [
    {
      "type": "official",
      "cite": "64 N.C. App. 381"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "275 S.E. 2d 520",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1981,
      "pin_cites": [
        {
          "page": "521-22"
        }
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      "opinion_index": 0
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    {
      "cite": "51 N.C. App. 161",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        2643026
      ],
      "year": 1981,
      "pin_cites": [
        {
          "page": "163"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/51/0161-01"
      ]
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    {
      "cite": "1981 N.C. Sess. Laws 131",
      "category": "laws:leg_session",
      "reporter": "N.C. Sess. Laws",
      "opinion_index": 0
    }
  ],
  "analysis": {
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    "char_count": 4705,
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    "simhash": "1:f82e73a56af80d56",
    "word_count": 771
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  "last_updated": "2023-07-14T21:03:16.623003+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Johnson and Eagles concur."
    ],
    "parties": [
      "IN THE MATTER OF ROGER R. SMITH v. DANIELS INTERNATIONAL and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nThe issue is whether G.S. 1A-1, Rule 6(e) applies to appeals from an Employment Security Commission adjudicator, so as to give the appealing party, in addition to the ten-day period prescribed by G.S. 96-15(b)(2), three additional days within which to file an appeal. We hold that it does not.\nAn Employment Security Commission adjudicator found claimant disqualified for benefits because discharged for misconduct in connection with his work. The determination was mailed to claimant on 29 May 1981. It informed him that his appeal rights expired on 8 June 1981.\nClaimant filed a request for appeal on 10 June 1981. The appeals referee disallowed the request for untimely filing, and the Full Commission affirmed.\nThe superior court, on claimant\u2019s appeal, made the following finding:\nThe Court, having examined the record on appeal, finds that Rule 6(e) of the North Carolina Rules of Civil Procedure when construed with N.C.G.S. 9645(b)(2), so as not to be repugnant, applies to the Employment Security Commission and that three additional days shall be given a party to appeal when the decision of an Adjudicator is mailed.\nIt further found that claimant had \u201cappealed the decision within ten days plus three additional days from the date mailed.\u201d It accordingly reversed the Commission\u2019s decision and remanded for \u201cdecision on the issue of separation.\u201d\nG.S. 1A-1, Rule 1 provides: \u201cThese rules shall govern the procedure in the superior and district courts . . . except when a differing procedure is prescribed by statute.\u201d G.S. 1A-1, Rule 6(e) provides: \u201cWhenever a party has the right to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.\u201d Thus, unless \u201ca differing procedure is prescribed by statute,\u201d defendant had thirteen days within which to file his appeal; and the appeal was timely.\nG.S. 9645(b)(2) (1981), however, as in effect at the time in question, in pertinent part provided: \u201cUnless the claimant . . . within 10 days after notification of the conclusion of the adjudicator, whether the conclusion he delivered manually or mailed, files an appeal to such conclusion, the conclusion shall be final and benefits paid or denied in accordance therewith.\u201d (Emphasis supplied.) (This statute was amended by Act of April 1, 1981, ch. 160, \u00a7 27, 1981 N.C. Sess. Laws 131, 135, effective 1 July 1981.) The provision that the ten-day limit applies \u201cwhether the conclusion [is] delivered manually or mailed\u201d clearly indicates legislative intent to establish \u201ca differing procedure\u201d from that prescribed by G.S. 1A-1, Rule 6(e). G.S. 1A-1, Rule 1 thus precludes application of the three-day grace period provided by G.S. 1A-1, Rule 6(e) and dictates that the express ten-day limit of G.S. 9645(b)(2) controls.\nBecause the record conclusively discloses that claimant did not comply with the time limitation imposed by G.S. 9645(b)(2) in giving his notice of appeal, and because that limitation controls and excludes the grace period provided by G.S. 1A-1, Rule 6(e), the superior court had no authority to entertain the appeal and reverse the decision of the Commission. In re Browning, 51 N.C. App. 161, 163, 275 S.E. 2d 520, 521-22 (1981). Accordingly, its judgment is vacated, and the cause is remanded for entry of an order dismissing the appeal.\nVacated and remanded.\nJudges Johnson and Eagles concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "No brief filed for claimant appellee.",
      "C. Coleman Billingsley, Jr., for respondent appellant Employment Security Commission.",
      "No brief filed for respondent Daniels International"
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF ROGER R. SMITH v. DANIELS INTERNATIONAL and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA\nNo. 8210SC1013\n(Filed 4 October 1983)\nMaster and Servant \u00a7 111; Rules of Civil Procedure 8 6\u2014 mailing of decision of Employment Security Commission adjudicator \u2014 time for filing appeal\nG.S. 1A-1, Rule 6(e) does not apply to appeals from an Employment Security Commission adjudicator so as to give the appealing party, in addition to the 10-day period prescribed by G.S. 9645(b)(2), three additional days within which to file an appeal when the adjudicator\u2019s decision is mailed to the parties, since G.S. 9645(b)(2) expressly provides that the 10-day period applies \u201cwhether the conclusion be delivered manually or mailed,\u201d and G.S. 1A-1, Rule 1 thus precludes application of the 3-day grace period provided by G.S. 1A-1, Rule 6(e).\nAppeal by the Employment Security Commission from Smith (Donald LJ, Judge. Judgment entered 11 August 1982 in Superior Court, WAKE County. Heard in the Court of Appeals 24 August 1983.\nNo brief filed for claimant appellee.\nC. Coleman Billingsley, Jr., for respondent appellant Employment Security Commission.\nNo brief filed for respondent Daniels International"
  },
  "file_name": "0381-01",
  "first_page_order": 413,
  "last_page_order": 415
}