ORDERS:
ORDER OF DISMISSAL
This
appeal is before the Administrative Law Court (“ALC” or “Court”) pursuant to the
Notice of Appeal filed by Donna Nelson, Director, and Kids Academy Christian
Preschool (“Appellant”) on July 1, 2008. On September 11, 2008, Respondent South
Carolina Department of Social Services (“Department”) filed a Motion to Dismiss
on the ground that Appellant failed to timely serve a copy of the Notice of
Appeal upon the Department. To date, Appellant has not filed a response to the
Department’s motion.
It
is a well-established rule of law that a court must
dismiss an appeal where the appellant fails to serve a party with the notice of appeal in a timely manner. See Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355 S.E.2d 535
(1987) (applying appellate court rules and dismissing appeal for failure to serve notice of intent to appeal in a timely manner); Mears v.
Mears, 287 S.C. 168, 169, 337 S.E.2d 206, 207 (1985) (dismissing appeal for
failure to timely serve notice of intent to appeal and holding that “[s]ervice
of the notice of intent to appeal is a jurisdictional requirement, and this
Court has no authority to extend or expand the time in which the notice of
intent to appeal must be served”); see also Elam v. S.C. Dep’t
of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004); Sadisco of Greenville,
Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 530 S.E.2d
383 (2000); Burnett v. S.C. State Highway Dep’t, 252 S.C. 568, 167
S.E.2d 571 (1969).
Furthermore, ALC Rule 33 requires that:
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, an 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.
ALC Rule 33 (emphasis added). Here, Appellant has not
established that it served the Department with its notice of appeal within
thirty days of its notice of the Department’s final decision. See Elam at 15, 602 S.E.2d at 775 ( “The requirement 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.”) (citing to Mears). Accordingly, this appeal must
be dismissed.
IT IS HEREBY ORDERED that
the Department’s motion to dismiss is hereby GRANTED.
AND IT IS SO ORDERED.
__________________________________
Marvin F.
Kittrell
Chief Judge
September 30, 2008
Columbia, South Carolina
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