COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

KEITH KESSLER 

 OPINION BY 

v. Record No. 2397-98-4 JUDGE CHARLES H. DUFF 

 DECEMBER 7, 1999 

DENNIS SMITH, DIRECTOR, 

 DEPARTMENT OF MEDICAL 

 ASSISTANCE SERVICES 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Herman A. Whisenant, Jr., Judge 

 Lewis E. Gelobter (Emily J. Kaufmann; Legal 

Services of Northern Virginia, Inc., Public 

Benefits Unit, on brief), for appellant. 

 Brian M. McCormick, Special Counsel for the 

Department of Medical Assistance Services 

(Mark L. Earley, Attorney General; Ashley L. 

Taylor, Jr., Deputy Attorney General; 

Siran S. Faulders, Senior Assistant Attorney 

General, on brief), for appellee. 

 Keith Kessler (appellant) appeals the trial court's 

decision dismissing his appeal of a decision of a hearing 

officer for the Department of Medical Assistance Services 

("DMAS"). Appellant contends the trial court erred in finding 

that the appeal was not properly filed. We agree with 

appellant, and we reverse and remand. 

FACTS

 Appellant filed an appeal with DMAS concerning services he 

receives from that agency. On May 5, 1998, the hearing officer 
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issued a decision, and on May 26, 1998, appellant filed a notice 

of appeal of that decision in the trial court. On June 25, 

1998, appellant filed a petition for appeal. DMAS concedes the 

notice of appeal and the petition for appeal were timely filed. 

Also, on June 25, 1998, appellant's counsel faxed and mailed a 

copy of the petition for appeal to the director of DMAS (the 

"Director"), the named respondent in the appeal. 

 On July 1, 1998, the trial court entered an order granting 

appellant permission to proceed in forma pauperis, thereby 

waiving the requirements that appellant pay the fees for filing 

the action and for service upon the Director. The Director 

filed a motion to dismiss on July 15, 1998, contending 

appellant's petition for appeal failed to conform to Rule 2A:4 

because the petition was not served on the Director as mandated 

by that rule. The Director contended that mailing the petition 

to him was insufficient to perfect service in accordance with 

the rules. 

 On August 21, 1998, the clerk of the circuit court issued a 

subpoena in chancery for the Director. On August 28, 1998, the 

trial court held a hearing on the Director's motion to dismiss. 

The trial court dismissed the case "for failure to perfect the 

appeal by a timely request for service on the Director as 

required by Rule 2A:4(a)." An executed proof of service form 

dated September 1, 1998 is in the record and is stamped as filed 
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in the trial court's record on September 9, 1998. The form 

indicates that the Director was served with the subpoena in 

chancery and a copy of the petition on September 1, 1998. 

ANALYSIS

 Rule 2A:4(a) provides: 

 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. 

 Thus, Rule 2A:4 required appellant to follow the steps 

provided in Rules 2:2 and 2:3 in order to have the petition 

served on the Director. 

 Rule 2:2 provides: 

 A suit in equity shall be commenced by 

filing a bill of complaint in the clerk's 

office. The suit is then instituted and 

pending as to all parties defendant thereto. 

The statutory writ tax and clerk's fees 

shall be paid before the subpoena in 

chancery is issued. 

 The bill shall be captioned with the 

name of the court and the full style of the 

suit. The requirements of Code § 8.01-290 

may be met by giving the address or other 

data after the name of each defendant. 

 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; 
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that proper process against them is 

requested; that answers under oath are 

waived, except when required by law; that 

all proper references, inquiries, accounts 

and decrees are sought; and that such other 

and further and general relief as the nature 

of the case may require and to equity may 

seem meet is prayed for and may be granted. 

No formal conclusion is necessary. 

 Appellant timely filed the petition for appeal as required 

by Rule 2A:4(a). The petition contained a certificate of 

service indicating the name and address of the Director and his 

attorney. Relying on the language in the second sentence of the 

last paragraph of Rule 2:2, "[w]ithout more it will be 

understood that all the defendants mentioned in the caption are 

made parties defendant and . . . that proper process against 

them is requested," appellant contends that nothing more was 

required of him in order to fulfill the requirements of the 

rules and to perfect service on the Director. Appellant argues 

that once the trial court entered the order granting him in

forma pauperis relief, the clerk of the circuit court should 

have completed the necessary paperwork and forwarded the 

documents to the sheriff for service. 

 However, the Director contends that, in accordance with 

Rules 2:2 and 2:3, an appellant was required to request that the 

clerk's office perfect service of the petition and to pay the 

service fee. The Director asserts that, even though appellant 

was proceeding in forma pauperis, he was nevertheless required 
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to request service of process from the trial court clerk's 

office, which appellant did not do until one month after the 

trial court entered the July 1, 1998 in forma pauperis order and 

after the Director filed the motion to dismiss. 

 Furthermore, the Director interprets Rule 2A:4(a) as 

requiring compliance with Rules 2:2 and 2:3 within the 

thirty-day time limit for filing a petition for appeal. In 

other words, the Director contends that in order to have 

perfected service of the petition on him, within thirty days of 

filing the notice of appeal, appellant had to have requested the 

clerk's office to perfect service on the Director. Moreover, 

the Director argues that the phrase in Rule 2:2 "[w]ithout more 

it will be understood . . . that proper service against them is 

requested" means that, once service is requested, it is 

requested against all of the named defendants. The Director 

contends that the phrase does not mean that the clerk's office 

will automatically issue process when a bill of complaint or 

petition for appeal is filed. 

 We agree with appellant's interpretation of Rule 2:2. 

 "Where the language of a [rule] is clear and unambiguous, 

we are bound by the plain statement of legislative intent." 

Commonwealth v. Meadows, 17 Va. App. 624, 626, 440 S.E.2d 154, 

155 (1994). "We must 'take the words as written . . . .'" 
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White v. Commonwealth, 26 Va. App. 410, 412, 494 S.E.2d 896, 897 

(1998) (citation omitted). 

 There are no ambiguities in the language of Rule 2:2. Rule 

2:2 clearly states that once the bill of complaint is filed in 

the clerk's office, the suit is then brought into existence and 

is continuing as to all named defendants. The rule further 

states: "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 . . . ." (Emphasis added.) 

Thus, the rule clearly provides that once the bill of complaint 

is filed, proper process "is requested" against the named 

defendants. The rule does not require that a party, after 

filing the bill of complaint, make a separate request for 

service of process. Indeed, the rule specifically states that 

nothing more than the filing of a bill of complaint is required 

in order to request service of process. Therefore, appellant 

complied with Rules 2:2 and 2A:4. Accordingly, the trial court 

erred in dismissing appellant's appeal. 

 Furthermore, the trial court's clerk's office issued the 

subpoena in chancery on August 21, 1998. "The process of the 

courts in equity suits shall be a subpoena in chancery . . . ." 

Rule 2:4. The record contains an executed proof of service form 

indicating that the Director was served with the subpoena in 
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chancery and a copy of the bill of complaint on September 1, 

1998. Rule 2:4 provides, in pertinent part, that "[n]o decree 

shall be entered against a defendant who was served with process 

more than one year after the institution of the suit against 

him . . . ." Because the suit was instituted on June 25, 1998, 

the Director was clearly served less than one year after the 

suit was instituted. Thus, the Director was properly served in 

accordance with the rules, although service was perfected after 

the trial court dismissed the case. 

 This case is distinguishable from Bendele v. Commonwealth, 

29 Va. App. 395, 512 S.E.2d 827 (1999). The sole issue 

presented in Bendele was whether "the trial court erred when it 

held that mailing a copy of the petition for appeal to the 

agency . . . satisf[ied] the notice requirements of the 

Administrative Process Act." Id. at 396, 512 S.E.2d at 828. In 

deciding that question we held as follows: 

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. 

Id. at 400, 512 S.E.2d at 829-30. Thus, we decide today an 

issue not resolved by Bendele. 
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 Because the trial court erred in dismissing appellant's 

appeal, we reverse the decision and remand the case to the 

circuit court for proceedings consistent with this opinion. 

 Reversed and remanded.