“[I]f a party fails to properly raise a nonjurisdictional ‘defense during [an] administrative proceeding, that party waives the defense and may not raise it on appeal.’ ” (quoting Fruehauf Trailer Corp. v. Workers’ Comp. Appeal Bd., 784 A.2d 874, 877 (Pa. Cmwlth.2001))
How later courts described this case
- “[I]f a party fails to properly raise a nonjurisdictional ‘defense during [an] administrative proceeding, that party waives the defense and may not raise it on appeal.’ ” (quoting Fruehauf Trailer Corp. v. Workers’ Comp. Appeal Bd., 784 A.2d 874, 877 (Pa. Cmwlth.2001))
- “[A]n opening statement . . . , having no evidentiary value, cannot operate to place an issue in controversy.”
Written by the judges who cited it.
The opinion
STARCHER, Justice,
concurring.
I concur in the result reached by the majority opinion. I write separately to say why I do not concur in the majority opinion itself.
First, I do not think this case requires the creation of new syllabus points. I believe the Clark case, and our general law on jurisdiction, provide sufficient authority to decide the case. This is an example of our Court is unnecessarily making new law — a charge under which this Court too often suffers. In this case, stare decisis would suffice.
Second, I cannot subscribe to the reasoning of new Syllabus Point 3, which states:
Under W. Va.Code § 2-2-5 (2002), an administrative secretary is not an agent or deputy to whom authority may be delegated to sign a disciplinary complaint against *33 a physician under the West Virginia Medical Practice Act, W. Va.Code § 30-3-1 (2002), et seq.
My question is: how and where does this Court find any basis in law for saying that an administrative secretary cannot be designated as an agent to sign a complaint?
The Legislature clearly allows agents to sign documents. W.Va.Code, 2-2-5 [2002], Is the majority saying that the Legislature has said somewhere that an administrative secretary cannot be designated as an agent to sign a complaint? I cannot find that the Legislature has said this anywhere.
Or is the majority saying that as a matter of common law or constitutional law neither the Board or the Legislature can designate an administrative secretary as an agent to sign a complaint? On what legal basis can the majority premise such a conclusion? Nothing in the majority opinion addresses this issue.
In my view, neither of these two positions is tenable. My view is that the Board can authorize their administrative secretary to sign a complaint as their agent, exactly as the Legislature has authorized in W.Va.Code, 2-2-5 [2002],
However, because Dr. Hoover did not participate in the hearings below because there was an admitted uncertainty as to the complaint’s validity, I agree with the result of the majority opinion — that the case must be tried again.
Accordingly, I concur.