Saltis, Matter of
| Decision Date | 24 December 1980 |
| Docket Number | No. 46911-3,46911-3 |
| Citation | 94 Wn.2d 889,621 P.2d 716 |
| Parties | In the Matter of the Industrial Insurance Claim of Joseph S. SALTIS, Petitioner. CITY OF SPOKANE, Petitioner, v. DEPARTMENT OF LABOR AND INDUSTRIES, Petitioner, and Robert A. Wilson, Respondent. |
| Court | Washington Supreme Court |
Springer, Norman & Workman, Chris A. Sternagel, Richard L. Norman, Longview, James C. Sloane, Corp. Counsel, Christine Cary, Asst. Corp. Counsel, Slade Gorton, Atty. Gen., Thomas R. Chapman, Asst. Atty. Gen., Spokane, for petitioner.
Studley, Purcell, Spencer & Roesch, Wayne D. Purcell, Longview, Thomas M. Smith, Spokane, for respondent.
This case consolidates review of two Court of Appeals decisions that considered the superior court's appellate jurisdiction to review decisions of the Board of Industrial Insurance Appeals. Spokane v. Department of Labor & Indus., 25 Wash.App. 1039 (1980), Division Three of the Court of Appeals held (in their unpublished opinion) that the superior court in that case lacked jurisdiction to review the Board's decision because there was no proof of service of the notice of appeal on the director of the Department of Labor and Industries, pursuant to RCW 51.52.110. In In re Saltis, 25 Wash.App. 214, 607 P.2d 316 (1980), Division Two of the Court of Appeals reached the opposite result in a similar case involving a self-insured employer. The only question raised by both cases regards the sufficiency of service of the notice of appeal. We will first consider the issue as raised in City of Spokane, and then apply our analysis to In re Saltis.
City of Spokane. Robert Wilson suffered an injury while employed by the City of Spokane. The Department of Labor and Industries awarded him 25 percent permanent disability. On review, the Board of Industrial Insurance Appeals found Wilson totally disabled. The City of Spokane appealed the Board's determination to the superior court. A jury reversed the Board and reinstated the Department's smaller award. Wilson appealed to the Court of Appeals on substantive grounds. The majority affirmed the trial court decision, and Wilson's motion for reconsideration was denied. Wilson then filed a second motion for reconsideration, raising for the first time the issue of proper service of the notice of appeal on the director of the Department.
The notice of appeal was directed on its face in the following manner:
TO: BOARD OF INDUSTRIAL INSURANCE APPEALS OF THE STATE OF WASHINGTON, AND DIRECTOR, DEPARTMENT OF LABOR AND INDUSTRIES
However, there was no evidence, such as an affidavit of mailing, that the director had been properly served. Attached to the second motion for reconsideration were affidavits purporting to demonstrate that there was no proof of proper service on the director. It seems beyond doubt that the Department had notice of the proceeding. The State briefed and argued the substantive issues appealed. On the basis of the second motion for reconsideration, however, Division Three withdrew its earlier opinion and dismissed the appeal to superior court because the court lacked jurisdiction. Besides the major issue of the adequacy of service upon the director, City of Spokane also raises issues regarding Wilson's ability to raise the issue of proper service for the first time in his second motion for reconsideration and regarding the propriety of the Court of Appeals' disposition of the factual question of service on the basis of affidavits attached to the motion for reconsideration.
Timeliness. The alleged existence of defects that will deprive the court of subject matter jurisdiction may be raised at any time. RAP 2.5(a)(1); Hunter v. Department of Labor & Indus., 19 Wash.App. 473, 576 P.2d 69 (1978). However, petitioners contend that the facts upon which the jurisdictional claim is made must appear from the record, and because it does not affirmatively appear from the record in this case that the director did not receive notice of appeal, Wilson's belated development of this issue is precluded. Suggested as analogous to the case at bar are several cases holding that a statute of limitation claim must appear in the record even though, as a jurisdictional matter, it may be raised for the first time on appeal. Williams v. Department of Labor & Indus., 45 Wash.2d 574, 277 P.2d 338 (1954); Wheaton v. Department of Labor & Indus., 40 Wash.2d 56, 240 P.2d 567 (1952); Gilbertson v. Department of Labor and Indus., 22 Wash.App. 813, 592 P.2d 665 (1979).
These cases are clearly distinguishable from the case at bar. Each considers the jurisdiction of the Department, not the superior court. In each of these cases, the superior court in its appellate function was limited to a review of the Department's fact-finding regarding its own jurisdiction. In making that determination of whether the statute of limitations had run, the superior court was limited to examination of those facts raised before and considered by the Department.
That is not the case here. The question of Superior Court subject matter jurisdiction may be raised at any time. RAP 2.5(a)(1). Thus, Wilson's subject matter jurisdiction claim is not untimely and must be considered on its merits.
Proper Service. RCW 51.52.110 provides the superior court with appellate jurisdiction over Board decisions (A) worker, beneficiary, employer or other person aggrieved by the decision and order of the board may appeal to the superior court.
... Such appeal shall be perfected by filing with the clerk of the court a notice of appeal and by serving a copy thereof by mail, or personally, on the director and on the board.
Except as provided in RCW 51.52.110, "all jurisdiction of the courts of the state over (workers' injuries is) abolished" by the Industrial Insurance Act. RCW 51.04.010 et seq.
In the past, we have required strict compliance with the elements of RCW 51.52.110 to provide the superior court with appellate jurisdiction. Lidke v. Brandt, 21 Wash.2d 137, 150 P.2d 399 (1944) (); Rybarczyk v. Department of Labor & Indus., 24 Wash.App. 591, 602 P.2d 724 (1979) (). We have refused to allow the superior court to exercise their special limited jurisdiction unless "the steps prescribed by the statute have been followed." MacVeigh v. Division of Unemployment Compensation, 19 Wash.2d 383, 385, 142 P.2d 900 (1943) (); Smith v. Department of Labor and Indus., 23 Wash.App. 516, 596 P.2d 296 (1979) (). Wilson, relying on the cases cited above, claims that the "prescribed steps" have not been followed because, according to his interpretation of the affidavits attached to his motion for reconsideration, service by mail was not made "on the director."
Each of the cases relied on by Wilson involved methods of service which were not likely to provide actual notice to the director of the Department and in which there was no evidence that the director had actually received notice of the intent to appeal. Lidke was a case of personal service on an individual in the Department's Spokane office, with no evidence that the notice has been forwarded to the director. Rybarczyk concerned a notice mailed to the wrong individual in the Department routing by name or title would have placed the notice in the Board's office. MacVeigh concerned only the failure to file a notice of appeal with the superior court; there is no indication that notice was not properly served. Smith involved an appeal in which notice was not filed on anyone in the Department, but instead on the independent Attorney General's Office.
We do not know in this case how the Notice of Appeal directed "To: ... Director, Department of Labor & Industries" was actually "served" by mail; we do not know if the director received notice. But we can state that, even if an appellant must strictly comply with the statute, service "by mail ... on the director" must be considered accomplished if there is evidence that the director actually received notice of appeal. The requirement of service "by mail ... on the director" does not mean that the envelope containing the notice of appeal must be addressed to the director. Service "on the director" could have been achieved in this case by mailing notice to the Department if, through routing within the Department, the director actually received notice of appeal.
Even if we did not consider the cases of Lidke, Rybarczyk, MacVeigh, and Smith distinguishable because of the clear evidence regarding actual notice to the director, we would warn against slavish adherence to the precedent they represent. The requirement of notice contained in RCW 51.52.110 is a practical one meant to insure that interested parties receive actual notice of appeals of Board decisions.
As noted by the Court of Appeals in In re Saltis, supra, 25 Wash.App. at 219, 607 P.2d 316, "the test for legal sufficiency ... is ... whether the notice was reasonably calculated to reach the intended parties." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1949); Thayer v. Edmonds, 8 Wash.App. 36, 42, 503 P.2d 1110 (1972). In cases considering the court's general jurisdiction, we have stated that "substantial compliance" with procedural rules is sufficient, because "delay and even the loss of lawsuits (should not be) occasioned by unnecessarily complex and vagrant procedural technicalities:"
(T)he basic purpose of the new rules of civil procedure is to eliminate or at least to minimize technical miscarriages of justice inherent in archaic procedural concepts once characterized by Vanderbilt as "the sporting theory of...
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