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Administrative — Judicial Review – Civil Practice – Service of Process – Subject Matter Jurisdiction – Labor & Employment

Isenberg v. North Carolina Department of Commerce (Lawyers Weekly No. 15-07-0399, 9 pp.) (Douglas McCullough, J.) Appealed from Guilford County Superior Court (A. Robinson Hassell, J.) N.C. App.

Holding: Since petitioner failed to serve her former employer with process within the 10 days provided by G.S. § 96-15(h), the superior court did not obtain jurisdiction to review the Employment Security Division’s decision that petitioner was disqualified from receiving unemployment insurance benefits.

We affirm the dismissal of the petition for judicial review.

While we acknowledge the short time period allowed for service of the petition under § 96-15(h) provides little room for mistakes in service, we are bound by the language of the statute, which supports the superior court’s determination that actual delivery, as required in N.C. R. Civ. P. 4, is required for service of the petition under § 96-15(h).

When a statute requires “certified mail, return receipt requested,” the emphasis is on actual delivery. Where the language in § 96-15(h) closely mirrors the language in Rule 4(j), actual delivery is required to accomplish service of the petition.

This holding guarantees that all parties to the Division proceedings have notice that a petition for judicial review of a final decision of the Division has been filed in superior court.

“The statutory requirements [for judicial review of an agency decision] are mandatory and not directory. They are conditions precedent to obtaining a review by the courts and must be observed. Noncompliance therewith requires dismissal.” In re State ex rel. Employment Security Commission, 234 N.C. 651, 68 S.E.2d 311 (1951).


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