O'DONNELL v. City of Asheville , 113 N.C. App. 178 ( 1993 )

438 S.E.2d 422 (1993) 113 N.C. App. 178

Alan E. O'DONNELL, Plaintiff/Appellant,
v.
CITY OF ASHEVILLE and the Civil Service Board of the City of Asheville, Defendants/Appellees.

No. 9228SC1179.

Court of Appeals of North Carolina.

December 21, 1993.

Whalen, Hay, Pitts, Hugenschmidt, Master, Devereux & Belser, P.A. by Barry L. Master and David G. Belser, Asheville, for plaintiff, appellant.

Nesbitt & Slawter by William F. Slawter, and Associate City Atty. Martha Walker McGlohon, Asheville, for defendant, appellees.

ARNOLD, Chief Judge.

Plaintiff proceeds under 1953 Sess. Laws ch. 757 (the Act), and the amendments thereto, published at 1977 N.C.Sess.Laws ch. 415. Specifically, plaintiff refers to the following section:

Whenever any member of the classified service of the City of Asheville is discharged, suspended, reduced in rank, transferred against his or her will, or is denied any promotion or raise in pay which he or she should be entitled to, that member shall be entitled to a hearing before the Civil Service Board of the City of Asheville to determine whether or not the action complained of is justified.

1977 N.C.Sess.Laws ch. 415, § 1 (emphasis added). The Act further provides that "[w]ithin 10 days of the receipt of notice of the decision of the [B]oard, either party may appeal to the Superior Court ... for a trial de novo." Id. at § 6. In his order dismissing the petition, the superior court judge indicated that his decision was based upon plaintiff's failure to allege that he was "denied a promotion to which he would be entitled." Plaintiff contends that this is a "hypertechnical" defect in pleading and that the petition was erroneously dismissed because defendants had sufficient notice of the facts to allow them to answer and prepare for trial. We agree with defendants that the petition was properly dismissed.

Plaintiff's failure to allege that he is entitled to a promotion is more than a harmless technical error. Without that allegation, the petition does not vest subject matter jurisdiction in the superior court, and whenever the court does not have subject matter jurisdiction, the judge must dismiss. N.C.R.Civ.P. 12(h)(3).

The outcome of this case turns on the distinction between "entitled" and "eligible." The Act provides a right to a hearing, and the right to a trial de novo, to a person who is "entitled" to a promotion. Without that entitlement, plaintiff has no right to demand a hearing, regardless of his qualifications. Likewise, the superior court is powerless to act unless plaintiff is, and alleges that he is, "entitled" to a promotion. See Mullen v. Town of Louisburg, 225 N.C. 53, 61, 33 S.E.2d 484, 489 (1945) (court will not interfere with local administrative board's discretion until a complainant's legal right is infringed).

Plaintiff appears eligible for promotion, but there is no indication that he is entitled to promotion. It further appears from the record that the granting of promotions is a discretionary matter. The court will not interfere in a purely discretionary matter unless the administrative body involved violates the law. See, e.g., Wayne County Bd. of Educ. v. Lewis, 231 N.C. 661, 58 S.E.2d 725 (1950); Henry v. North Carolina Dept. of Transp., 44 N.C.App. 170, 260 S.E.2d 438 (1979), disc. review denied, 299 N.C. 330, 265 S.E.2d 396 (1980). Nothing in the record indicates that the City or the Board violated any law, so the superior court's decision is affirmed.

Affirmed.

WELLS and JOHNSON, JJ., concur.