                     COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia


LEAH BENDELE, AN INFANT, BY HER
 NEXT FRIENDS AND PARENTS,
 BRUCE AND BARBARA BENDELE
                                                 OPINION BY
v.   Record No. 1219-98-4              JUDGE RUDOLPH BUMGARDNER, III
                                              MARCH 30, 1999
COMMONWEALTH OF VIRGINIA, DEPARTMENT
 OF MEDICAL ASSISTANCE SERVICES


               FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                      James W. Haley, Jr., Judge

           Daniel B. Streich for appellant.

           Brian M. McCormick, Special Counsel   (Mark L.
           Earley, Attorney General; Ashley L.   Taylor,
           Jr., Deputy Attorney General; Siran   S.
           Faulders, Senior Assistant Attorney   General,
           on brief), for appellee.


     Leah Bendele appealed to the circuit court an adverse

ruling by the Department of Medical Assistance Services.    The

circuit court dismissed the appeal because Bendele did not give

the agency sufficient notice of her filing of the petition for

appeal.   Bendele argues that the trial court erred when it held

that mailing a copy of the petition for appeal to the agency did

not satisfy the notice requirements of the Administrative

Process Act.    Concluding that the trial court did not err, we

affirm the dismissal.
     The Department of Medical Assistance Services administers

the state Medicaid program.    When it denied services to Bendele,

she gave notice of appeal to the agency and filed a petition for

appeal in the circuit court.    On the same day, she mailed a copy

of the petition by certified mail return receipt requested to

the agency.   The agency received it timely.   Bendele did not

request that the clerk issue process and did not request service

of process.   Bendele concedes that she did not comply with the

provisions of Rule 2A:4. 1   However, she asserts that Code

§ 8.01-288 2 cures that defect because the agency received a copy

of the petition within the time required.


     1
          Rule 2A:4. Petition for 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.
          (b) The petition for appeal shall designate
          the regulation or case decision appealed
          from, specify the errors assigned, state the
          reasons why the regulation or case decision
          is deemed to be unlawful and conclude with a
          specific statement of the relief requested.
     2
          § 8.01-288. Process received in time good
          though neither served nor accepted.--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



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The Administrative Process Act does not prescribe the procedure

for perfecting an appeal from the agency to the circuit court.

Code § 9-6:14:16 authorizes the Supreme Court to establish these

by rule, and they are contained in Part Two A, Appeals Pursuant

to the Administrative Process Act.       Rule 2A:2 provides that a

party shall file a notice of appeal with the agency secretary.

Rule 2A:4 provides that within 30 days of filing the notice, the

party shall file a petition for appeal with the clerk of the

circuit court.   The filing of the petition shall include all the

steps established in Rules 2:2 and 2:3 (the procedures for

initiating an equity bill of complaint and having the clerk

issue a subpoena in chancery).    Rule 2A:4 states that the

purpose of the procedure is to cause a copy of the petition to

be served on the agency secretary.

     Code § 8.01-288 cures defective service when process

actually reaches the necessary person within the prescribed time

limit.   This cure extends to actions unless the particular

statute specifically provides it will not apply.

                In our opinion, the emphasized language
           of Code § 8.01-288 evidences a legislative
           intent to exclude services of process from
           its saving provision only in certain limited
           instances. Such an intent is clearly
           established with respect to suits for


           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.



                                 - 3 -
          divorce and annulment, which are expressly
          excluded from the statute's saving
          provision. Code § 8.01-288. In other
          instances, the General Assembly has included
          the following sentence in statutes creating
          actions: "The provisions of § 8.01-288
          shall not be applicable to the service of
          process required in this subsection," or
          like language. See Code § 38.2-2206(E) and
          (F) (uninsured motorist actions); Code
          § 54.1-1120(1) (Contractor Transaction
          Recovery Fund claims); Code
          § 54.1-2114(A)(1) (Real Estate Transaction
          Recovery Fund claims).

Frey v. Jefferson Homebuilders, Inc., 251 Va. 375, 379-80, 467

S.E.2d 788, 790 (1996).

     In Broomfield v. Jackson, 18 Va. App. 854, 858, 447 S.E.2d

880, 882 (1994), this Court held:

          When the legislature has deemed it prudent
          to do so, it has made specific reference in
          the APA to selected provisions of Title
          8.01. See, e.g., Code § 9-6.14:5. From our
          review of the legislative policy statement
          in the APA, see Code § 9-6.14:3, we discern
          no legislative intent to supplement the
          provisions of an agency's basic laws and the
          APA with the general laws of the
          Commonwealth. See also Code § 9-6.14:4(C).
          The legislative policy statement is
          consistent with "[t]he general rule in other
          jurisdictions . . . that rules of civil
          procedure do not apply to administrative
          proceedings unless the rules specifically so
          provide." State Oil and Gas Bd. v. McGowan,
          542 So.2d 244, 247 (Miss. 1989).

     We need not decide if Bloomfield is distinguishable from

this case because the appellant’s actions did not bring her

within the provisions of Code § 8.01-288.   Bendele mailed a copy




                              - 4 -
of the petition for appeal that she had filed to the agency.

That was not process.   Process in this case would have been a

subpoena in chancery, which the clerk would have attached to a

copy of the filing.   Process is an official notice informing the

recipient of a pending action filed and advising when a response

is required.

     "Process to commence an action is normally an order

(summons) to a court official (sheriff) to notify (summon) a

defendant to answer the plaintiff’s complaint at a time and

place mentioned in the order."    Kent Sinclair & Leigh B.

Middleditch, Jr., Virginia Civil Procedure § 7.1, at 333 (3d ed.

1998).   When following the equity procedures incorporated by

Rule 2A:4, process would be the subpoena in chancery.    See id.

The clerk of the issuing court would attach process, the

subpoena in chancery, to a copy of the bill of complaint and

direct it to the sheriff of the bailiwick for service.       See id.

§ 7.3, at 335.   Under Rule 2A:4, the clerk would attach the

subpoena in chancery to a copy of the petition for appeal and

direct it to the sheriff for service.

     The formality of process serves a legitimate purpose.

Process is official notice which informs the opposing party of

the litigation and instructs the party when and where it must

respond.   Without this official notice, the recipient knows

neither if the action was filed nor when it was filed.   The



                                 - 5 -
party would not know when critical time limits expire.    Without

process a party would need to resort to other means to obtain

essential information.   The practical solution is to telephone

the clerk of court to ask if and when the action was filed.

However, a party relies on the informal information received

over the telephone at its own risk.     If the information is

incorrect, it acted at its own peril.    "But one who takes the

shortcut of asking the clerk's employees to examine the record

for him relies on the response at his peril."     School Bd. v.

Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319,

322 (1989).

     Cases that have applied Code § 8.01-288 involved process

received by means other than service.    In Frey, 251 Va. 375, 467

S.E.2d 788, process was issued by the clerk and delivered to the

defendant’s registered agent.    In Davis v. American

Interinsurance Exch., 228 Va. 1, 319 S.E.2d 723 (1984), copies

of the notice of motion for judgment, which did indicate the

return date, were only mailed but were received.

     Parker v. Prince William Cty., 198 Va. 231, 93 S.E.2d 136

(1956), dealt with a notice of disallowance rather than process.

The Supreme Court indicated that the saving provisions of Code

§ 8-53 (now Code § 8.01-288) applied when notice was actually

received though not served.     See id. at 234, 93 S.E.2d at 138.

The case did not deal with process because the statute



                                - 6 -
prescribed the form requirements for giving notice of actions

taken by the Board of Supervisors.     Code § 8.01-285(1) defines

"process" for purposes of interpreting the chapter concerning

process within Title 8.01 of the Code.    The term "shall be

deemed to include notice.”   However, if process includes notice,

it does not follow that any notice must constitute process.     If

a procedure requires that a party receive process, informal

notice will not necessarily meet the requirement for process.

     We conclude that the saving provisions of Code § 8.01-288

do not apply when the party mails a simple copy of the document

to the opposing party rather than follow the requirements of

Rule 2A:4.   Because Code § 8.01-288 does not apply and because

the appellant concedes that she did not comply with Rule 2A:4,

the circuit court did not have jurisdiction to hear this

administrative appeal.   See Mayo v. Dep't of Commerce, 4 Va.

App. 520, 358 S.E.2d 759 (1987).   We affirm the dismissal by the

trial court of the appeal.

                                                           Affirmed.




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