dissenting. The majority erroneously affirms the court of appeals’ decision granting summary judgment in favor of the relator. The majority bases its conclusion on the court’s decision in State, ex rel. Peake, v. Bd. of Edn. (1975), 44 Ohio St. 2d 119 [73 O.O.2d 437], which involved factual and legal issues similar to those in the instant case. The majority concedes that respondent timely raised the affirmative defense that relator avoided service of the notice of his non-renewal. Nevertheless, relying on Peake, the majority concludes that where relator receives notice prior to April 30 that he has received a certified letter, but does not pick up the.letter until after April 30, relator’s conduct does not constitute avoidance of notice.
I dissent from the majority’s holding because the decision in Peake was based on factual circumstances significantly different from those in the present case. In Peake, the board of education did not send the certified mail until April 29, 1974. The record in Peake does not disclose when the relator was notified that he had received a certified letter. The board of education chose to utilize mail service with the attendant risk of receipt after April 30. In the instant case, the postal notice to pick up certified mail was received on April 28, 1984. But relator did not choose to pick up his mail from the post office until four days later.
Another significant difference between Peake and the instant case is that the Peake court declined to consider the defense that relator attempted to avoid notice of his non-renewal because the defense was not timely asserted. The Peake court concluded that the board of education acted inexpediently to notify relator of the non-renewal of his contract. The court did not decide whether, under the circumstances, relator avoided notice of his non-renewal. However, in the instant case, the respondent timely raised this issue and should have been permitted to present evidence in support of its defense.
Relator alleges that he did not receive written notice of respondent’s intention to non-renew his contract on or before April 30, 1984. Respondent’s answer stated that relator intentionally and willfully avoided ser*355vice of the written notice and that but for this conduct he would have received notice within the statutory time period. A teacher’s deliberate evasion of the receipt of written notice of a school board’s intention to terminate his contract negates that teacher’s right pursuant to R.C. 3319.11 to receive actual notice of such intention on or before April 30. State, ex rel. Curry, v. Bd. of Edn. (1978), 54 Ohio St. 2d 67, 70 [8 O.O.3d 75]; State, ex rel. Scharlotte, v. Bd. of Edn. (1978), 63 Ohio App. 2d 1, 4 [17 O.O.3d 192]. In Curry, this court stated at 70:
“This court recognizes that the statutory protection afforded teachers under R.C. 3319.11 will not obtain in situations where a teacher is shown to have deliberately evaded receipt of the written notice of non-reemployment. Thus, before this court held, in Peake, that the teacher was automatically re-employed, we specifically noted that there was nothing either in the record or the agreed statement of facts to show that the teacher deliberately prevented delivery of the requisite notice.”
Relator testified that he was home when the mailman came to deliver mail on April 28, 1984. He stated that he did not go to the door to receive the mail, but later that day received a slip showing that there was a certified letter for him at the post office. Relator testified that he did not go to the post office to pick up his notice of non-renewal until May 2, 1984. This testimony raised a genuine issue of material fact before the court of appeals which should preclude relator from obtaining summary judgment.
For the foregoing reasons, I would reverse the judgment of the court of appeals.
Holmes, J., concurs in the foregoing dissenting opinion.