The undersigned having reviewed the Order of Dismissal by William L. Haigh, the Order by Dianne C. Sellers, the record herein and hearing arguments of counsel for plaintiff and defendants, enter the following
FINDINGS OF FACT
1. An Order of Dismissal with prejudice was entered herein on 23 May 1994 for failure of plaintiff to appear and prosecute her claim.
2. Thereafter, counsel for plaintiff by letter dated 31 May 1994 requested the Industrial Commission to reverse or strike the Order of Dismissal on the ground that neither he nor his client received notice of the 18 May 1994 hearing. The Industrial Commission cannot verify that actual calendar notice was mailed to the plaintiff or her attorney.
3. Counsel for defendants objected to plaintiff's motion or request for an Order reversing or striking the Order of Dismissal, stating that plaintiff's only remedy would be to appeal to the Full Commission.
4. Chief Deputy Commissioner, Dianne C. Sellers, on 3 June 1994 entered an Order striking the Order of Dismissal by William L. Haigh and resetting the case for hearing in due course.
5. Defendants filed a Notice of Appeal on 14 June 1994 to the Full Commission from the Order of Dianne C. Sellers.
6. Defendants contend that plaintiff has not shown sufficient grounds under Rule 60 of the N.C. Rules of Civil Procedure nor the applicable law to justify vacating the Order of Dismissal and reinstating plaintiff's claim.
The undersigned CONCLUDE that defendants' argument is without merit; that sufficient grounds exist to justify reinstating plaintiff's claim; and further, that the Order of Chief Deputy Commissioner, Dianne C. Sellers reinstating plaintiff's claim was interlocutory and not immediately appealable.
IT IS THEREFORE ORDERED that the Order by Dianne C. Sellers, as Chief Deputy Commissioner entered on 3 June 1994 is hereby AFFIRMED and the Order of Dismissal with prejudice by William L. Haigh is VACATED and plaintiff's case is REINSTATED and RESET for an expedited hearing on the Brunswick/Bolivia docket.
Defendants shall pay the costs due this Commission.
This the ____ day of May 1995.
S/ _____________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/ _____________ THOMAS J. BOLCH COMMISSIONER
S/ _____________ COY M. VANCE COMMISSIONER
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