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 

§ 8.01-2882 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. 

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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 

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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 

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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 

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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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