Virginia Retirement System v. Avery

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Whiting, S.J.

VIRGINIA RETIREMENT SYSTEM                   OPINION BY
                                  SENIOR JUSTICE HENRY H. WHITING
v.   Record No. 002253                   September 14, 2001

LINDA K. AVERY

                 FROM THE COURT OF APPEALS OF VIRGINIA

      In this case, we consider the effect of alleged

deficiencies in an appeal to the circuit court from the decision

of an administrative agency.

      On March 5, 1998, the Virginia Retirement System (VRS)

denied disability benefits to Linda K. Avery (Avery), an

employee of the Prince William County School Board, in a final

case decision.    Avery filed her notice of appeal with VRS under

the provisions of Rule 2A:2, one of the rules we promulgated

pursuant to Code § 9-6.14:16 to regulate appeals from the

decisions of administrative agencies under the Administrative

Process Act (APA).    Thereafter, Avery filed her petition for

appeal in the Circuit Court of Prince William County under Rule

2A:4, the following provisions thereof being pertinent to this

appeal:

           (a) Within 30 days after the filing of the notice of
      appeal, the appellant shall file his petition for appeal
      with the clerk of the circuit court named in the first
      notice of appeal to be filed. Such filing shall include
      all steps provided in Rules 2:2 and 2:3 to cause a copy of
      the petition to be served (as in the case of a bill of
      complaint in equity) on the agency secretary and on every
      other party.
     Although Avery mailed a "courtesy copy" of her petition for

appeal to the secretary of VRS within the 30-day period required

by Rule 2A:4(a), she did not expressly request that process

issue for service of a copy of her petition upon the secretary

of VRS.   No such process had been issued or served before VRS's

demurrer to Avery's petition for appeal raised this issue.      In

its demurrer, VRS asserted that Avery's failure "to meet the

procedural requirements for perfecting an appeal under the

Virginia Administrative Process Act" required the circuit court

to dismiss the appeal, because it lacked jurisdiction.

     After the court overruled the demurrer, Avery sent a copy

of a subpoena in chancery and her petition for appeal by an

express delivery service to the secretary of VRS and, in an

affirmative defense, VRS responded that this also was not a

proper service of process.     Following a hearing of Avery's

appeal on the merits, the circuit court ordered that Avery's

previously terminated disability benefits be reinstated and

remanded the case to VRS for further administrative proceedings.

VRS and Avery appealed the circuit court's judgment to the Court
              1
of Appeals.       Code § 17.1-405.




     1
       Avery's appeal of the circuit court's denial of attorney's
fees is not involved in this appeal.



                                     2
     A panel of that court affirmed the circuit court's judgment

that it had subject matter jurisdiction.   Avery v. Virginia

Retirement System, 31 Va. App. 1, 10, 16, 520 S.E.2d 831, 836,

839 (1999).   On VRS's petition, the Court of Appeals granted a

rehearing en banc, and later affirmed the panel's ruling.      Avery

v. Virginia Retirement System, 33 Va. App. 210, 217, 532 S.E.2d

348, 351 (2000).   Upon our determination that this ruling had

significant precedential value, see Code § 17.1-410(B), we

granted an appeal to VRS.

     VRS's first assignment of error is that Avery failed "to

perfect her Administrative Process Act . . . appeal to the

Prince William County Circuit Court."   This claim is

substantially the same as that raised in the circuit court.

     VRS contends here that the APA, Code §§ 9-6.14:1 through -

14:25, "constitutes the Commonwealth's waiver of its sovereign

immunity in a limited and circumscribed context," and therefore

the APA "statutes and rules must be strictly construed."

Accordingly, VRS maintains that compliance with the appellate

"conditions and restrictions" is a jurisdictional requirement,

and suggests that the issue is either one of subject matter

jurisdiction or a mandatory condition precedent to the

maintenance of the action.   VRS cites the following two cases:

Virginia Bd. of Medicine v. Virginia Physical Therapy Ass'n, 13

Va. App. 458, 465-66, 413 S.E.2d 59, 64 (1991), aff'd 245 Va.


                                 3
125, 126, 427 S.E.2d 183, 184 (1993) (circuit court has no

subject matter jurisdiction under the APA to hear appeal of de

facto administrative rule when appellate right is statutorily

limited to that of a promulgated rule); Sabre Construction Corp.

v. County of Fairfax, 256 Va. 68, 72, 501 S.E.2d 144, 147

(1998) (claim barred by failure to file administrative appeal

within specifically limited period, condition precedent to

maintenance of action, which is part of statute creating cause

of action).

     We disagree with VRS's argument, and conclude that neither

of the above-cited cases applies to the present appeal because

they applied limiting statutory provisions.   In contrast,

nothing in our rules promulgated pursuant to the APA indicates

that service of process upon an opposing party is a necessary

prerequisite to the perfection of an appeal of an administrative

agency decision.   Kessler v. Smith, 31 Va. App. 139, 144, 521

S.E.2d 774, 776 (1999).   Hence, we hold that the circuit court

had jurisdiction over the appeal because Avery had perfected it

by filing her notice of appeal and her petition for appeal

within the times specified by Rules 2A:2 and 2A:4.   Further,

Avery's alleged failure to have process properly served did not

divest the court of subject matter jurisdiction over the appeal.

See Hewitt v. Virginia Health Services Corp., 239 Va. 643, 645,

391 S.E.2d 59, 60 (1990) (failure to serve notice of tort claim


                                 4
properly is procedural violation not affecting trial court's

subject matter jurisdiction).

       We turn now to the remaining assignments of error dealing

with VRS's contentions that Avery was required to request that

process issue for service by a sheriff or private process server

and that the request and subsequent service must be within 30

days after Avery filed her notice of appeal.      For the reasons

that follow, we find no merit in any of these contentions.

       We consider first the following relevant provisions of Rule

2:2:

       It shall be sufficient for the prayer of the bill to ask
       for the specific relief sought, and to call for answer
       under oath if desired. Without more it will be understood
       that all the defendants mentioned in the caption are made
       parties defendant and required to answer the bill of
       complaint; that proper process against them is requested.

We agree with Avery that these plain provisions obviate such a

request for process to issue.    Kessler, 31 Va. App. at 144, 521

S.E.2d at 776.

       Although we do not agree with Avery's assertion that

process issued by the clerk, together with Avery's petition for

appeal, delivered by an express delivery service to VRS was a

proper service of process, 2 we agree with her that Code § 8.01-

288 cures the defective service.       That Code section provides:


       2
       The proceedings in this case, including the purported
service by express delivery carrier, took place prior to
amendment of Rule 1:12, effective February 1, 1999, authorizing

                                   5
          Except for process commencing actions for divorce or
     annulment of marriage or other actions wherein service of
     process is specifically prescribed by statute, process
     which has reached the person to whom it is directed within
     the time prescribed by law, if any, shall be sufficient
     although not served or accepted as provided in this
     chapter.

     There is no statute or rule specifically prescribing the

method for the service of process of a petition for the appeal

of an administrative ruling such as this one.   Such service is

governed by the earlier quoted provision of Rule 2A:4, which

incorporates the steps for service of process pursuant to the

equity rules.

     Additionally, Rule 2A:5 provides in pertinent part that

"[f]urther proceedings shall be held as in a suit in equity and

the rules contained in Part Two, where not in conflict with the

Code of Virginia or this part, shall apply."    In our opinion,

the curative provisions of Code § 8.01-288 apply not only to

service of process in equity suits, but also to petitions for

appeals of administrative rulings.

     VRS maintains, nevertheless, that Avery was required "to

request service of process on VRS within 30 days after filing

her notice of appeal."   We disagree.   Nothing in our rules

requires that Avery's request for service of process upon VRS be

made within 30 days of filing her petition for appeal, nor is


service of papers AFTER initial process through a "commercial
delivery service." The present opinion does not address the


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there any provision precluding the entry of a decree against an

administrative agency which has not been served within that 30-

day period.   Indeed, the only period stated that would preclude

the entry of a decree after delayed service upon an

administrative agency is the following one-year period stated in

Rule 2:4:   "No decree shall be entered against a defendant who

was served with process more than one year after the institution

of the suit against him."

     Rule 2:4 is not in conflict with the Code of Virginia or

the rules promulgated for APA appeals and is thus applicable

here under Rule 2A:5.   Because process reached VRS within that

one-year period, we reject the contention of VRS that such

service was required within the 30-day period.

     For these reasons, the judgment of the Court of Appeals

will be

                                                         Affirmed.




impact of the current Rule, if any, on these circumstances.

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