In Re Saltis

621 P.2d 716, 94 Wash. 2d 889
CourtWashington Supreme Court
DecidedDecember 24, 1980
Docket46911, 47007
StatusPublished
Cited by78 cases

This text of 621 P.2d 716 (In Re Saltis) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Saltis, 621 P.2d 716, 94 Wash. 2d 889 (Wash. 1980).

Opinion

94 Wn.2d 889 (1980)
621 P.2d 716

In the Matter of JOSEPH S. SALTIS.
THE CITY OF SPOKANE, Petitioner,
v.
THE DEPARTMENT OF LABOR AND INDUSTRIES, Petitioner, ROBERT A. WILSON, Respondent.

Nos. 46911, 47007.

The Supreme Court of Washington, En Banc.

December 24, 1980.

*891 Chris A. Sternagel and Richard L. Norman (of Springer, Norman & Workman), for petitioner Saltis.

James Sloane, Corporation Counsel, Christine Cary, Assistant, Slade Gorton, Attorney General, and Thomas R. Chapman, Assistant, for petitioners City of Spokane, et al.

Wayne D. Purcell (of Studley, Purcell, Spencer, Guinn & Roesch) and Thomas Milby Smith, for respondent.

HOROWITZ, J.

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. In Spokane v. Department of Labor & Indus., 25 Wn. App. 1039 (1980), Division Three of the Court of Appeals held (in their unpublished opinion) that the Superior Court in that case lacked jurisdiction to review the Board's decision because there was no proof of service of the notice of appeal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 Wn. 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 Spokane, and then apply our analysis to In re Saltis.

*892 I

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, 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.

*893 A

TIMELINESS

[1] 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 Wn. 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 Wn.2d 574, 277 P.2d 338 (1954); Wheaton v. Department of Labor & Indus., 40 Wn.2d 56, 240 P.2d 567 (1952); Gilbertson v. Department of Labor & Indus., 22 Wn. 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.

B

PROPER SERVICE

RCW 51.52.110 provides the superior court with appellate jurisdiction over Board decisions:

*894 [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.

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 Wn.2d 137, 150 P.2d 399 (1944) (personal service on Spokane office assistant supervisor was jurisdictionally faulty); Rybarczyk v.

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Bluebook (online)
621 P.2d 716, 94 Wash. 2d 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-saltis-wash-1980.