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HORTON v. HUIET, Commissioner.
Unemployment compensation. Fulton Superior Court. Before Judge Alverson.
Where a question of fact is raised as to the time when notice of an administrative order was mailed in making a determination of whether an appeal was timely filed, the finding on that issue by the administrative body to which the appeal was made, if supported by reliable, probative and substantial evidence, will not be disturbed.
Appellant, an employee in the Communication Center at Fort McPherson, resigned from her employment May 31, 1962. She was under the influence of intoxicants when she reported to work on that date and was informed that charges would be brought against her unless she wished to resign. After resigning she filed a claim for unemployment compensation with the Employment Security Agency of the Georgia Department of Labor. Upon that application she was awarded weekly compensation of $35 for 26 weeks. However, on December 31, 1962, an administrative determination was made that since she had not complied with the requirements of the Employment Security Law (Code Ann. 54-609) by registering, continuing to report at an employment office and in good faith seeking employment (having made only three contacts since her separation), she was ineligible for job insurance benefits under the Act and they were denied her as of August 5, 1962. On January 2, 1963, another administrative determination was made that appellant had been overpaid, because of her ineligibility as determined by the order of December 31, 1902, and she was requested to repay the sum of $525 within 10 days.
Copies of the orders on these two administrative determinations were mailed to appellant January 24, 1963. On February 2, she prepared and on February 3, mailed her appeal from those orders, which was received by the Agency on February 4. On February 13 an administrative determination was made that the appeal had been entered more than seven days after the mailing to appellant of the copies of the orders of December 31 and January 2, and for this reason the appeal should be dismissed. On February 21 appellant appealed that ruling to the Board of Review, contending that she had received the copies of the orders in an envelope bearing no postmark, that she had promptly delivered them to her attorney and that she believed he had entered her appeal within the time provided by law (Code Ann. 54-612).
Upon a hearing of that appeal an employee of the Agency, whose duty it was to mail the copies of the orders, testified that she personally placed them in the mail January 24, 1963, and made a record of the mailing at the time. She identified a record card showing the date of the mailing, opposite which were her initials. Appellant appeared and testified at the hearing, but did not testify as to the time of receiving the copies of the orders. The only contention concerning that, other than the assertion in her appeal, was in a letter addressed by her counsel to the Agency asserting that "I jotted down on my calendar the date of receipt and the last day for filing an appeal. And the last day was February 5, 1963." He neither offered testimony of his client nor of himself on this point.
The Appeals Referee found, from the evidence submitted, that the copies of the orders had been mailed January 24 and that the time of appeal thus expired January 31, 1963. The Board of Review on consideration of the record, affirmed, and appellant then appealed to Fulton Superior Court. A notice was served on the Commissioner of Labor calling upon him to produce at the hearing in the superior court all records as of February 13, 1963, "pertaining to and showing the number of Negro recipients on your list drawing unemployment compensation; the number of spot checks made in the matter as of said date and the out-come of each; the number of referrals made to other Negro recipients; the number of referrals made to plaintiff at any time the number of recipients drawing the maximum sum as of said date and the number of those who were spot checked, and the number of weeks each of the Negro recipients drew such sums and the total amounts gifted [sic] to each of them."
At the hearing the judge of the superior court refused to require production of the documents and records listed in the notice, and upon a consideration of the certified copy of the record from the Agency catered an order affirming the Board of Review in holding that appellant's appeal from the administrative orders had been properly disallowed or dismissed because entered too late. From that order or judgment appellant now appeals, enumerating as errors, (1) failure of the court to require production of the records and documents listed in the Notice to Produce, (2) sustaining two special demurrers striking as irrelevant and impertinent two paragraphs of the appeal to the superior court, and (3) the affirmance of the Board of Review sustaining the dismissal of the appeal of the two administrative orders because not timely filed.
1. A notice to produce may be served on the opposite party to any proceeding requiring the production of records, documents, books, etc. which contain evidence pertinent to the cause in question. Code 38-801. See also Code Ann. 38-2109. If it appears from an inspection of the notice that the records and documents sought are not relevant to the issues before the court it is not error to refuse an order for their production. E. Frederics, Inc. v. Felton Beauty Supply Co., 58 Ga. App. 320 (8) (198 SE 324). It is obvious that the records and documents listed in the notice here could have no relevancy on the question either of whether claimant had in good faith sought employment or of whether the appeal from the administrative order was timely. They would not have been admissible if produced. Gow v. Charlotte, Colombia &c. R. Co., 68 Ga. 54 (1). Moreover, the notice was couched in broad language, seeking the production of all records as of February 13, 1963, relating to Negroes who may have been drawing unemployment compensation. Since the Commissioner's jurisdiction extends throughout the State, this would obviously have included files and records from every county in the State, running into many thousands. Even if some of these may have been relevant (which we do not see), no court should impose upon the opposite party the onerous task of producing great quantities of records which have no relevancy. The notice should be specific enough in its demands to relate the documents sought to the questions at issue. While admissibility is a matter to be determined when records, documents, etc., are tendered in evidence and is not a test for determining whether an order requiring production should be entered, pertinence or relevance is. There was no error in the denial of an order requiring production under this notice. See Virginia-Carolina Chem. Co. v. Hollis, 23 Ga. App. 634 (2) (99 SE 154).
2. The paragraphs of the appeal to the superior court to which the two special demurrers were directed were no more than allegations that the Appeals Referee was without jurisdiction or authority to hear the appeal. The Act specifically provides that referees may be appointed to serve as the appeals tribunals for the hearing of appeals. Code Ann. 54-614. Since the allegations of these paragraphs were at variance with the law the sustaining of the demurrers was proper.
Section 6(b) of the Act (Code Ann. 54-612) provides that if a claimant wishes to contest an administrative determination of his claim, he shall file an appeal therefrom within seven days after the date of notification of the initial determination or after the date it was mailed to his last known address.
There is no question here that the notifications on the two orders were mailed. Claimant admits having received them. A question was raised in her appeal as to when the notices were mailed, but she offered no evidence whatever in support of her contention in that respect at the appeal hearing. The Agency introduced the testimony of the employee whose duty it had been to mail the notices and she testified positively that she personally mailed them January 24, 1963. The issue of fact raised in the appeal as to the date of the mailing of the notices was resolved adversely to claimant by the finding of the Appeals Referee upon the basis of the evidence submitted that the notices were mailed January 24. That finding was reviewed and affirmed by the Board of Review. Where there is reliable, probative and substantial evidence to support the findings of fact of an administrative body or trior of fact, they will not be disturbed. Code Ann. 3A-120 (II). Consequently, it must follow as a matter of law that the time for appeal expired January 31, 1963, and the filing of the appeal on February 3 was not timely.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.
Otis L. Hathcock, for appellee.
Oze R. Horton, for appellant.
Friday May 22 20:15 EDT

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