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 

of Appeals. 1 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 

6
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. 

7