                              No.    93-053
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1993


MCI TELECOMMUNICATIONS CORP.,
     Petitioner and Appellant,
     VS.


MONTANA DEPARTMENT OF PUBLIC SERVICE
REGULATION, PUBLIC SERVICE COMMISSION,
DANNY OBERG, JOHN DRISCOLL, ROBERT
ANDERSON, WALLACE MERCER and TED MACY,
     Defendants and Respondents.


APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis & Clark,
                The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:
           For Appellant:
                Leo Berry, Browning, Kaleczyc, Berry & Hoven,
                Helena, Montana; Sue Weiske MCI Telecommunications
                carp, Denver, Colorado
           For Respondents:
                Ivan C.      Evilsizer,   Montana  Public   Service
                Commission, Helena, Montana: John Alke, Hughes,
                Xellner, Sullivan & Alke, Helena, Montana; T. Larry
                Barnes, AT&T     Communications, Denver, Colorado:
                Robert A. Nelson, Montana Consumer Counsel! Helena,
                Montana: Mary Piper, Kansas City, Missouri; Dennis
                R.   Lopach,  U.S. West Communications,     Helena,
                Montana; Mike Manion, Butte, Montana

                                    Submitted on Briefs:    May 27, 1993
                                                Decided:   August 26, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

        This is appeal by MCI Telecommunications Corp. (MCI) from the
order of the District Court of the First Judicial District, Lewis
and Clark County,       which granted defendants' Motion to Dismiss
appellant's      Petition    for   Judicial   Review.   The District Court
denied judicial review of the Public Service Commission's order on
the grounds that the District Court lacked jurisdiction over the
petition.      We reverse.
        The    sole   issue for our review is whether Rule               6(e),
M.R.Civ.P., applies to petitions in district courts for judicial
review of administrative decisions.
        After several proceedings in this administrative action, the
Montana Public Service Commission (Commission) issued its Order No.
5548~     on    May 18,       1992,   which    denied   MCI's   motion     for
reconsideration of a Commission ruling.             The Commission mailed a
copy of the order to MCI on May 19, 1992.           MCI did not receive the
copy of the order until May 21, 1992.           On June 19, 1992, MCI filed
its Petition for Judicial Review.
        The Commission moved to dismiss MCI's petition on the grounds
that the District Court lacked jurisdiction over the petition,
claiming that the petition was filed 31 days after service.                The
District Court granted the Commission's motion to dismiss and MCI
now appeals this dismissal.
        Did the District Court err in dismissing appellant's petition
for judicial review because it was not timely filed?
        Section 2-4-702, MCA, provides that a person may institute

                                         2
proceedings for judicial review of an administrative decision after

all   administrative   remedies   have       been   exhausted.     This section,

part of the Montana Administrative Procedure Act (MAPA),                  further

provides in pertinent part:

      (2) (a)  Proceedings for review shall be instituted by
      filing a petition in district court within 30 davs after
      service of the final decision of the agency . . .

Section   2-4-702(2)(a), MCA (emphasis supplied).                Noting that this
indeed produced a harsh result and that the court would rather see

every dispute decided after both sides are                  "fully and fairly
allowed to present their evidence and arguments to a court," the
District Court nevertheless determined that service was complete

when the Commission mailed a copy of the order to MCI on May 19,

1992 and that MCI's petition for judicial review was filed one day
too late.

      An appeal filed after the              time   prescribed by statute is

ineffective for any purpose and thus fails to confer jurisdiction

upon the district court to review an administrative agency's

decision.    State ex rel. Albrecht v. District Court (1952), 126

Mont. 178, 182, 246 P.2d 1035, 1037.            The timely filing of a notice

of appeal is mandatory and jurisdictional.              Albrecht, 126 Mont. at

180, 246 P.2d at 1036.

      MCI contends that Rule 6(e), M.R.Civ.P., applies to this

administrative proceeding and that by applying Rule 6(e), its

petition for judicial review was               filed on the 28th day after

service and was timely filed.       Rule 6(e), M.R.Civ.P.,            provides:

           Rule 6(e). Additional time after service by mail.
      Whenever a party has the right or is required to do some

                                         3
        act or take some proceedings within a prescribed period
        after the service of a notice or other paper upon the
        party and the notice or paper is served upon the party by
        mail, 3 davs shall be added to the prescribed period.
        (Emphasis supplied.)
The Commission argues that Rule 6(e) does not apply because its

effect is to extend the jurisdiction of the district court beyond

thirty days, which is not allowed by Rule 82, M.R.Civ.P.           Rule   82,

M.R.Civ.P.,      provides:

             Rule 82. Jurisdiction and venue unaffected. Except
        as provided in Rule 4 these rules shall not be construed
        to extend or limit the jurisdiction of the district
        courts of Montana or the venue of actions therein.

The commission argues that service of notice was complete on the

day it mailed a copy of the order to MCI.
        The Commission relies on numerous cases from federal courts

and other states to support its argument that Rule 6(e) does not
apply in an appeal from an administrative agency decision to the

district    court.       We have reviewed these cases and found them

unpersuasive because they address the applicability of Rule 6(e) in

cases where statutes define service as either the date of mailing

or the date of receipt of notice.           See, u, Ramsdell       v. Ohio

Civil Rights Comm'n (Ohio 1990), 563 N.E.2d 285.

        The district court's jurisdiction is controlled by the period

of time prescribed by the legislature and is limited to the time

provided by the applicable statute.         The right to an appeal of an

administrative agency's ruling is created by statute and is limited

by the provisions of the statute as to the time within which the

right must be asserted.        Zeller v. Folsom (N.D.N.Y. 1956),    150 F.

SUPP.    615,   617.   Where the time for filing an appeal is dictated by

                                       4
the statute which confers the right to appeal, Rule 6(e) cannot be
applied to extend the time for filing as this would be an extension
of the court's jurisdiction.      In this case, the time to appeal is
not dictated by any statute which prescribes that service is
complete when placed in the      mail   as the Commission contends.
        The 3-day extension applies only where the time period for
doing an act runs from the time of service of notice.         This 3-day
period is computed separately and determines the date when the 30-
day time for appeal begins to run.            The Wyoming Supreme Court
quoted the rationale for the 3-day extension in Rule 6(e) as
follows:
        [T]he rule clearly is intended to protect parties who are
        served notice by mail from suffering a systematic
        diminution of their time to respond through the
        application of Rule 5(b), which provides that service is
        complete upon mailing, not receipt: the additional three
        days provided by Rule 6(e) to the party being served
        represent a reasonable transmission time, and a fair
        compromise between the harshness of measuring strictly
        from the date of mailing and the indefiniteness of
        attempting to measure from the date of receipt, which in
        many cases would be unverifiable.
Sellers v. Employment Sec. Comm'n of Wyo. (Wyo. 1988), 760 P.2d
394,    397 (quoting 4A C. Wright & A. Miller, Federal Practice and
Procedure: Civil 2d § 1171 at 514-15 (1987)). As in Sellers, the
appeal period in this case is triggered by sending notice in the
mail.
        Neither MAPA nor the Commission rules define "service."
Section 2-4-106, MCA, provides:
             Service. Except where a statute expressly provides
        to the contrary, service in all agency proceedings
        subject to the provisions of this chapter and in
        proceedings for judicial review thereof shall be as
                                        5
      prescribed for civil actions in the district courts.
The Commission argues that § z-4-106, MCA, merely provides for the
manner of service to be the same as civil actions in the district
courts.
      We have previously stated that "service" under MAPA is
governed by the Montana Rules of Civil Procedure unless a statute
expressly provides otherwise.       Rierson v. State (1980),   188 Mont.
522, 527, 614 P.2d 1020,      1023 (citing 5 2-4-106, MCA).      This is
consistent with the Ramsdell case cited above.
      Our treatment of workers' compensation appeals to this Court
provides   further   persuasion for treating administrative agency
appeals to     district    courts   in   a   manner   similar to     other
proceedings.   In a workers' compensation case which challenged the
timeliness of an appeal to the district court, this Court noted
that proceedings in the Workers ' Compensation Court are governed by
MAPA and, therefore, § 2-4-623, MCA, applies to require service by
mail or personally.       Dumont v. Wickens Bros. Constr. Co. (1979),
183   Mont. 190, 200, 598 P.2d 1099, 1105.      We further stated:
      [A] person who appeals from a final decision of the
      Workers' Compensation Court should in all fundamental
      fairness be given the same benefit of that provision of
      Rule 5, M.R.App.Civ.P., which states that:
           '1. . . except that in cases where service of notice
      of entry of judgement is required by Rule 77(d) of the
      Montana Rules of Civil Procedure the time shall be 30
      days from the service of notice of entry of judgment."
             This would mean, as is already the case where Rule
      77 Cd) , M.R.Civ.P., is applicable, that when service of
      the notice of the final decision of the Workers'
      Compensation Court is made as mandated by section 2-4-623
      MCA and that service was made by mail, the provisions of
      Rule 21(c) M.R.App.Civ.P., are automatically put into
                                     6
        play adding three days to the prescribed 30-day time
        limit for filing the notice of appeal.
              . . . Rule 21(c) comes into play adding three days
        to the prescribed period and the 33rd and final day for
        filing the notice of appeal was November 2, 1978. Thus,
        claimant's appeal was timely--not one day late as
        respondent claims.
        Dumont (1979), 183 Mont. 190, 200, 598 P.2d 1099, 1105.
        The appeal in Dumont was from the Workers' Compensation Court
directly to the Montana Supreme Court and thus was governed by the
Rules    of    Appellate   Procedure.         Rule 21(c), M.R.App.P.,    is the
equivalent of Rule 6(e), M.R.Civ.P.               The provision in 3 2-4-623,
MCA, requiring notice either personally or by mail is identical to
Rule 77(d), M.R.Civ.P., insofar as requiring notice of decisions in
workers' compensation cases.            In Dumont, this Court interpreted 5
2-4-623,      MCA, as requiring that 3 days         be   added to the prescribed
30-day time limit for filing a notice of appeal in the Supreme
Court for an appeal from the Workers' Compensation Court.
        We conclude that there is a need for uniformity and fairness
in the application of rules relating to the time when an appeal
begins to run.       The 30-day appeal period cannot begin to run until
the effective date of service.           Section 2-4-106, MCA, of MAPA does
not define       lVservice"   but it provides        that service in agency
proceedings be as prescribed for civil actions in the district
courts.       Because MAPA uses the term V'.servicelt        but does not define
when service is effective, 5 2-4-106, MCA, requires that Rule 6(e)
be applied to define when service by mail is complete for
administrative       decisions.     We conclude that service was not
effective upon MCI until May 22, 1992, three days after mailing
                                          7
notice of the Commission's order.       We further conclude that the 30-

day period allowed for filing a petition for judicial review began

to run on May 23, 1992, the day following service by mail, that the
petition was filed within thirty days and that the District Court

had jurisdiction to hear this appeal.
     We hold the District Court erred in dismissing appellant's

petition for judicial review for lack of jurisdiction.

     Reversed and remanded.




                                    8
                                         August 26, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Leo Berry, Esq.
Browning, Kaleczyc, Berry & Hoven, P.C.
P.O. Box 1697
Helena, MT 59624

Sue E. Weiske
MCI Telecommunications Corp.
707-17th ST., Ste. 3900
Denver, CO 80202

Ivan C. Evilsizer, Esq.
Montana Public Service Commission
1701 Prospect Ave.
Helena, MT 59620-2601

John Alke, Esq.
Hughes, Kellner, Sullivan & AIke
P.O. Box 1166
Helena, MT 59624

T. Larry Barnes
AT&T Communications
1875 Lawrence St., Rm. 1575
Denver, CO 80202

Robert A. Nelson
Montana Consumer Counsel
34 W. 6th Ave.
Helena, MT 5 9 6 2 0

Mary Piper
8140 Ward Pardway, 5E
Kansas City, MO 64114
Dennis R. Lopach
U.S. West Communications
560 N. Park Ave.
Helena, MT 59624

Mike Manion
40 E. Broadway
Butte, MT 59701

                           ED SMITH
                           CLERK OF THE SUPREME COURT
                           STATE, OF MONTANA
