*1 appellant’s explain in The certifícate does not

any way respiratory how the cardiac and surgical

arrest that occurred in the room

ultimately caused decedent’s death.

Finally, my I wish to make clear firm

conviction that W.Va.Code 55-7B-6 is con- infringe The

stitutional. statute does not

upon rule-making power of this Court

because it does not conflict with of this

Court’s Our Rules of rules. Civil Procedure

“govern procedure in all trial courts actions, suits, judicial

record all or other of a

proceedings civil nature.” W.Va.R.Civ. According

Pro. 1. to Rule of Civil Procedure

3(a), by filing action civil is commenced “[a]

complaint Thus, with the court.” gov-

Court’s Rules Civil Procedure do

ern pre-filing certificate of merit because prior a certificate is filed the com-

mencing Hence, of a civil action. W.Va.Code legitimate is a 55-7B-6 addition to the

substantive law of this State. sum,

In would I affirm dismissal

appellant’s provide action below failure to appellees separate

each of with certifi- merit, majori-

cate of Iso dissent to the

ty’s disposition of ultimate this case. Howev-

er, I concur with the new law crafted

majority applies only the extent that it

alleged defects within the four of a corners concur, Accordingly,

certificate of merit. I dissent,

part, part.

618 S.E.2d 408

George B. SUMMERS Ronald

Fertile, Below, Petitioners

Appellants,

THE VIRGINIA WEST CONSOLIDATED BOARD, RETIREMENT

PUBLIC Below,

Respondent Appellee.

No. 32508.

Supreme Virginia. Appeals Court of of West

Submitted: June 2005. July

Filed: *3 Summers, Esq.,

William B. Parkersburg, Appellants. for Saxe, Esq., Susan B. Bowles Rice McDavid Love, Charleston, Appellee. Graff & for The Opinion of the Court was delivered PER CURIAM.

Justice STARCHER concurs and reserves concurring right opinion. to file a PER CURIAM. George

Appellants B. and Summers Ron- 16, 2004, ald appeal August Fertile order County Circuit Court Kanawha Appellants’ request denied lump- include payments sum for accumulated vacation average in the calculation of their final sala- determining ries for the their retirement benefits from the Teachers Re- System. tirement After careful consider- matter, ation of this we reverse. I.

FACTS George B. and Ron- Summers ald F. Fertile members of the are Teachers 5.4, employed by April became effective System and which were (here- provides: and County of Education Board the Wood “BOE”). County” or Mr. inafter “Wood lump in a paid sum for If member employee of the Wood Summers was accrued unused leave at conclusion of years, County approximately for BOE employment, the member’s shall employee approxi- Mr. Fertile was an payment as not consider the mately years. compensation computing salary. average member’s County 261-day contract affords its Mr. and Mr. Fertile both retired Summers employees right to accrue vacation time from the Wood month, per accumu- a rate two day employment their final was June *4 year days to carry up over 48 from late and lump payment Both 2002. received a sum for un- year. Employees paid are these to days for time 48 of unused vacation days lump upon in a sum ces- used vacation initially year’s to was added their final sala- time, County of At one Wood sation service. Board, ry. however, in- The Retirement system contributions withheld retirement County the to structed Wood deduct paid retiring it lump from the sums which to salary lump from payments the sum the com- 261-day employees for accrued va- contract $13,198.72 putations in a which resulted de- County reported The days. cation also salary in for crease for 2001-2 Mr. Summers to Public Retirement sums the Consolidated $10,965.68 Appellant and a decrease for Fer- part if of the Board as these sums were According Appellants, adjust- tile. to this salary year retiring employees’ their last for ment in an reduction of resulted estimated course, employment.1 the inclusion of Of per for Mr. Summers of $154.00 employ- in lump payments sum an vacation per month and of month for Mr. $135.00 year salary employ- ee’s final enhances the Fertile. ee’s retirement benefits. appeal, hearing On a officer of the Retire- 1999, Appellee Virginia In West Consoli- Appel- denial of ment Board recommended (hereinafter dated Retirement “the request lump payments lants’ to include sum Board”)2 object- Retirement Board” or “the days for accumulated vacation in the calcula- policy lump toed this and determined that tion of their retirement benefits. The Re- payments days for unused are sum adopted hearing tirement Board the officer’s pur- in salaries for the be included recommended decision. The Retirement computing poses of retirement benefits. subsequently affirmed Board’s decision was challenged by retiring employee a This was by County. Court of the Circuit Kanawha Virginia in and Kiser West Consolidated Appellants appeal the circuit court’s or- now (De- Board, No. 00-P-118 Public Retirement der. 2000), the Circuit Court of cember lump pay ruled that such sum for II. days unused vacation were to be included in employees’ salaries for the of calcu- STANDARD OF REVIEW lating retirement benefits. appeal On of an or administrative court, decision,

After Kiser the der from a circuit this Court is rule, by statutory § a 8- Board enacted new 162 C.S.R. bound standards con- 18-7A-26(a) (2002), According during years § five contained within his or 1. W.Va.Code Appellants in effect years at time retired: credit[.] her last fifteen of total service Upon eligibility April a was establishment retire- This code section amended effective allowance, granted be ment a member shall an 2005. annuity which be follow- shall the sum the ing: Virginia West Public The Consolidated Retire- (a) average percent of Two the member’s public Board administers all of the retire- ment salary multiplied by his her total service plans including the teachers ment State paragraph In credit as age teacher. "aver- § system. retirement See W.Va.Code 5-10D-1 average high- salary” shall mean the (2005). by est annual received the member salaries 29A-5-4(a) tained in and re- W.Va.Code missible use novo; presented questions

views of law de salary retiree’s final calculation look is to findings by of fact offi- administrative discrepancy year’s final cer are accorded deference unless the re- compared previous year’s salary. Un- findings viewing court believes be noticeable, less discrepancy probably is clearly wrong. $2,000, more likely ques- than it most is not ' Thus, Syllabus Cline, Point tioned. an employee only Muscatell v. who has (1996). W.Va. 474 S.E.2d 518 days few unused vacation included year’s salary likely get calculation will III. calculation, include those in the retirement while large those with a number of vacation DISCUSSION prevented like bewill from issue, legislative The rule at doing Again, Appellants, so. conclude two 8-5.4, promulgated C.S.R. by was the Re similarly classes of employees situated are approved by Legisla tirement Board and created. recognized ture. This “[a] regulation proposed agency is The Retirement Board that the counters approved by Legislature ‘legislative is a facially neither nor in *5 by rule’ as defined the State Administrative application equal protection prin- of violative 29A-l-2(d) Act, W.Va.Code, Procedures First, ciples. says Board, the Retirement no [1982], such legislative has rule the by offensive classification is created the 2002 5, Syllabus force and effect of Point law.” contrary, rule. applies To the the rule uni- Virginia Rights Smith v. West Human formly in participants to all the retirement Com’n, 2, (2004). 216 W.Va. 445 602 S.E.2d Second, system. suspect even if classifica- law, legislative Under our valid rule is “[a] created, tion constitutionally is it is not offen- by entitled to substantial deference the re reasonably sive it because is related the viewing properly promulgated court. As a legitimate achievement of the purposes state rule, legislative ignored only the can be rule controlling of providing costs and for ade- if agency the has exceeded its constitutional quate funding system. of the retirement or statutory authority arbitrary or is or ca pricious.” Syllabus 4, in part, Appalachian Point agree We with the Retirement Board Dept., Po wer Co. v. State Tax 195 that the 2002 rule at is uncon issue neither (1995). W.Va. 573, 466 424 Appel S.E.2d applied. stitutional on its face or as Assum lants do not contend that the wás im rule ing legislative that the rule at issue creates properly proposed approved, or or the classification, this held: ambiguous. Rather, they rule is challenge “ constitutionality. the rule’s rights concerned, ‘Where economic are we look to see whether the is classification Appellants argue first that the Retirement social, economic, a rational one on based legislative facially Board’s 2002 rule is both factors, geographic historic or it whether ap- unconstitutional and as unconstitutional relationship proper bears a reasonable to a plied. According Appellants, rule the vio- governmental purpose, and all whether protection equal principles lates in that it persons equal- are within class treated similarly results in employees being situated ly. Where such rational classification is unequally. Specifically, treated some retired requisite and bears the rela- reasonable system members of teacher’s retirement have, tionship, the statute not Sec- permitted lump does violate been to include sum Virginia payments tion 10 of Article III of West for unused in the Constitution, equal protection our which is calculation of retirement benefits oth- while ers, Syllabus 7, modified,] Further, Appellants, clause.’ Point [as as have not. assert Appellants, the Retirement Board’s Atchinson v. Erwin, ^[172] W.Va. [8], 172 (1983).” 8, application Syllabus arbitrary capri- the rule W.Va. 302 S.E.2d 78 is modified, Appellants 4, cious. explain that the Retire- Point as Hartsock-Flesher ment finding imper- Candy Board’s Wheeling Grocery method of Co. v. Wholesale

404

Co., ^[174] W.Va. [538], 174 W.Va. 538, 328 The Retirement Board responds principle in v. (1984). Booth detrimental reliance 144 S.E.2d First, says the applicable is not here. Sims 4, Dept. v. Syllabus Point W.Va. Gibson Board, system the retirement Retirement 214, 440 185 406 S.E.2d Highways, W.Va. plan any provisions to has never contained (1991). to us that the It is clear permit lump sum the inclusion reasonably designed to serve rule issue is salary for retire- calculations governmental purpose' of con legitimate Therefore, no purposes. there was ment paid in bene trolling the amounts retirement detrimentally rely. promise upon which ade thereby ensure continued fits and Second, indicates that evidence below funding of Teachers’ Retirement quate County began including Wood Therefore, System. find the to be we salary calculations sum vacation on its face. constitutional 1996-97, by Appellants time had been find that the rule is con likewise We County for more than employed Wood fair its applied. as statute on “[A] stitutional Third, years. commenced applied in a face administered or discrim but practice including lump payments equal pro inatory manner runs afoul of disclosing to calculations without of the Federal Constitution. tection clause of the Retirement Board true character purposeful equally But it settled that well reported calculations merely may be discrimination assumed purposes, and pension benefit proven.” v. but must be Brickhouse asserted po- eliciting the Retirement Board’s without Commonwealth, 159 S.E.2d 208 Va. Finally, legality practice. on the sition (citations (1968) quota internal prior to acknowledged that have omitted). Phillips See also tion marks retirement, requested re- they neither nor (8th Cir.2003) (ex Norris, F.3d from the Retire- *6 ceived benefit estimates allege not plaining that inmate did where anticipated their Board included ment which membership protected in or violation of class payments for unused vacation right, that prison he must fundamental show no Retire- days, inquiries and made the similarly treated situated classes of officials any leg- regarding the status of ment differing differently, treat and that inmates on the issue. islative intervention penal to rational interest ment unrelated was reli- analyzing Appellants’ In detrimental purposeful or discriminat and was intentional argument, Hearing the Examiner ance ion).3 case, the facts In the instant show and rea- agreed with the Retirement Board administratively an less- nothing more than soned as follows: system than-perfeet and do not rise to the proposi- for principally Booth stands the arbitrary intentional, purposeful, level away government tion that cannot take equal to the discrimination that is offensive af- promise pension benefits contractual protection clause. his employee an has relied thereon to ter detriment, being Finally, they such detrimental reliance Appellants contend that years of including presumed the after ten service while relied to their detriment on That year’s promise shall been made. pay in their final sala have unused vacation lacking present in circum- ry deciding to retire. base which when Sims, stance, least, promise on Booth v. W.Va. is the contractual this contention 323, (1995), by Legisla- in as enunciated statutes and S.E.2d 167 which defining Retire- [Teacher eliminate a tive rules Court held that the State cannot System] pension plan. There has expectancy just compen ment retirement without substantially promise upon just an never been such a which employee sation once All applicants have detriment. these could relied. relied on it to his or her lump-sum pay in finding vacation is included Despite our that the Retirement whether year salary We application employees’ calculations. of 162 C.S.R. final inconsistent Board’s § clause, adopt protection urge more effi- equal the Retirement Board to violate the 8-5.4 does not system application of by ensure uniform the Retirement cient this Court is troubled determining approach the rule. hit-and-miss Board's Commissioner, adoption of CSR tion that occurred with 140 W.Va. 86 S.E.2d (1955). § 162-8-5.4 was to render certain that legislative Because have rules promised had in the which never been first statutes, the force and effect of presump Booth, concluded, place. prop- it is has no prospective application tion of applies equally application er here. to such rules. Hearing that

We believe Examiner’s above, legislative As indicated analysis is Booth correct. concerned sub- rule at issue became April effective on provisions existing stantive amendments 2002. The record that reveals Mr. Fertile governing troopers’ pension system the state request made a for an estimate of retirement monthly payroll an as increase February 2002, benefits in applied salaries; from troopers’ deduction state retirement same month. prohibition ti-oopers’ on the use of accumulat- Therefore, this Court Fer believes that Mr. ed but unused annual sick as credit leave process progressed tile’s retirement had suf years determining eligi- toward of service ficiently far the time 162 C.S.R. 8-5.4 bility benefits; for retirement and a reduc- became effective that safety public tion in the retirement annual apply should not to the calculation his living adjustment. words, cost of In other retirement benefits. find the We same be promises actually of future benefits were al- true of Although Mr. Summers. Sum Mr. contrast, tered. In in the case instant apply mers did not for retirement benefits System Teacher pension plan 19, 2002, until April nine after 162 pi’ovision permitting never contained a effective, C.S.R. 8-5.4 became the record lump-sum inclusion of em- indicates that Mr. Summers filed a “Benefit ployees’ year calculations for the Request,” requested Estimate he determining retirement benefits. estimate of his retirement benefits from the Booth, Thus, unlike in the Teachers’ Retire- System, Teachers Retirement in December System ment promise had not made a on day and indicated that his last of em Therefore, which the had teachers relied. would be June 2002. Based on ployment principle the detrimental reliance set forth in this, we find that the Retirement Board must applicable present Booth is to the facts. lump-sum payments include for accumulated sum, In have determined we pay in Appellants’ the calculation of *7 provisions § the clear of C.S.R. 8-5.4 are salary average final determination of benefits constitutionally principal valid and that the of from System the Teachers Retirement detrimental set forth in reliance Booth does Virginia accord Kiser v. with West Consoli prevent application Appellants. not its Board, supra, dated Public Retirement However, we find that the rule should not be prior was law effect applied to Appellants for a different reason. Accordingly, § C.S.R. 8-5.4. the circuit 2-2-10(bb) According § (1998), to W.Va.Code contrary court’s order is reversed.4 presumed prospective “[a] statute is to be operation expressly its unless made retro IV. speetive[.]” This Court held that “[t]he presumption is that a statute is intended to CONCLUSION operate retrospective and prospectively, ly, by clear, above, it appears, strong unless For the reasons set forth imperative 16, 2004, necessary implica August words or reverses the order of the tion, Legislature give County, Circuit intended Coxxrt and we Kanawha Virginia statute retroactive force and effect.” direct the Public West Consolidated Syllabus 4, Taylor Compensa Point lump-sum pay- State Board to Retirement include calculations, During argument, up oral counsel for Retire- to the time of the Kiser decision possibility ment Board discussed adjusting for the benefits to accord investigation Board’s teacher retirement bene- Obviously, prospec- with 162 C.S.R. 8-5.4. fit determinations made from when the application tive of C.S.R. 162-8-5.4 forecloses began including lump-sum adjustment such retroactive of benefits. pay average employees' final in the

merits accumulated average salary Appellants’

calculation of from the Teachers of benefits

determination System.

Reversed.

STARCHER, J., concurring. holding majority’s

I concur with properly rule forbids inclu- year’s in a “last lump-sum

sion of

salary,” not constitution- and that this

ally offensive. questions allowing I about one

But have employees enjoy a group

small “wind- others, retired at same

fall”—-while who

time, may out have missed on same

benefits. really “changed regulation

If the new

law,” employees perhaps then all who retired regulation a

prior to are entitled to the new

recalculation. hesitantly

Accordingly, I concur.

618 S.E.2d WOOD, Virginia a resident

Mark West representative; Patricia class Virginia

Compton, resident and class Cecil, Virginia

representative; Jack representative;

resident and class Steve

Pierce, repre Ohio resident and class

sentative; Nash, Virginia resident Sid representative, Be Plaintiffs class

low, Appellants, VIRGINIA, INC., a

ACORDIA OF WEST Virginia corporation, Acordia

West d/b/a Acordia, Mid-Atlantic, Inc.; Inc., a corporation, Defendants Be

Delaware

low, Appellees.

No. 31863. Virginia.

Supreme Appeals West Feb. 2005.

Submitted: July

Filed: