                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Lisa Dillon, Petitioner                                                             FILED
                                                                                  January 14, 2013
vs) No. 11-1647 (Kanawha County 11-AA-79)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
WV Restaurant Management, LLC,
d/b/a Paula’s Casino, Respondent


                                 MEMORANDUM DECISION

       Petitioner Lisa Dillon appeals the Circuit Court of Kanawha County’s “Final Order”
entered on October 26, 2011, affirming the final order of the Board of Review of WorkForce
West Virginia ruling that she was disqualified for cause from receiving unemployment
compensation benefits. Petitioner is represented by attorney Lisa Furbee Ford. Respondent, WV
Restaurant Management, LLC d/b/a Paula’s Casino, is represented by David J. Mincer.

       This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

        Petitioner raises a single assignment of error arguing that the circuit court erred in finding
that petitioner was unable to prove that she had properly served a subpoena duces tecum upon
respondent. Upon a review of the briefs and record on appeal, we find no error. Petitioner
attempted to serve this subpoena duces tecum upon respondent on Friday, April 1, 2011, by
facsimile, by depositing it into the United States Mail, and by sending it via Federal Express
Delivery. The subpoena had a return date of Wednesday, April 6, 2011. However, the procedural
rules of WorkForce West Virginia require that administrative subpoenas “shall be served at least
(5) days before the return date thereof, either by personal service made by any person over
eighteen years of age or by registered or certified mail.” W.Va. C.S.R. § 96-2-7.2. This rule
further provides that “[i]f service is by mail, then the (5) day notice period shall not begin to run
until the date the subpoena or subpoena duces tecum is received by the person or entity subject
thereto[.]” Id. This rule does not provide for service by facsimile, and for purposes of service by
mail, the subpoena was not received more than five days before the return date. Accordingly, the
subpoena was not timely served.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.


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ISSUED: January 14, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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