is an appeal before the Administrative Law Court (ALC) from an Order dated
October 21, 2008, issued by Robert F. Harley, Jr., an Administrative hearing
Officer of the Office of Motor Vehicle Hearings (OMVH).
appears from the Certificate of Service endorsed on the Order, the same was
served upon all parties by mail on October 21, 2008.
letter to the ALC and OMVH dated December 10, 2008, Appellant notified this
Court of receipt of two letters from the South Carolina Department of Motor
Vehicles (DMV) dated December 1, 2008, and asserting that the two letters were
the first notice he received which gave him notice of the order of October 21,
2008, abovementioned. Appellant’s letter to the Court also asserted that “we
wish to have another hearing to appeal the decision ….” The letter was not
sent to DMV.
was a party to the proceeding before OMVH.
letter of December 10, 2008, was accepted by the Clerk of the ALC as a Notice
of Appeal and it was assigned docket #08-ALJ-21-0555-AP.
December 31, 2008, DMV served Appellant with a Notice of Motion and motion to
Dismiss upon the ground that Appellant had not served DMV with a copy of the
Notice of Appeal within thirty (30) days of receipt of the decision from which
the appeal is taken.
December 10, 2008, Appellant clearly had notice of that an adverse decision had
been taken against him because he acknowledged the same in his letter to the
Court of that date. The record, however, reveals no service of the Notice of
Appeal upon DMV until January 26, 2009, or well more than thirty (30) days after
Appellant clearly had notice of the adverse decision appealed from.
17 of OMVH provides that decisions of OMVH may be appealed to the ALC “as
provided by law.”
S.C. Code Ann. § 1-23-660(D)
(Supp. 2007) provides that such appeals are governed by the ALC appellate rules
of procedure, i.e., ALC Rule 33:
The notice of appeal from the final decision of an
agency to be heard by the Administrative Law Court shall be filed with the
Court and a copy served on each party and the agency whose final decision is
the subject of the appeal within thirty (30) days of receipt of the decision
from which the appeal is taken.
Elam v. S.C. Department of Transportation, 361 S.C. 9, 15, 602 S.E. 2d
772, 775 (2004) stands for the proposition that:
of service of the notice of appeal is jurisdictional, i.e., if a party misses
the deadline, the appellate court lacks jurisdiction to consider the appeal and
has no authority or discretion to ’rescue’ the delinquent party by extending or
ignoring the deadline for service of the notice.
As a result, this
Court lacks jurisdiction over the appeal.
IS HEREBY ORDERED that this matter is DISMISSED for lack of
AND IT IS SO
February 9, 2009
John D. McLeod, Judge
S.C. Administrative Law Court