Poret v. STATE PERSONNEL COM'N

328 S.E.2d 880 (1985)

Pat PORET, Evelyn Carroll, Stella Herndon, Christine McCallum, and Anita Riggsbee v. STATE PERSONNEL COMMISSION, E.R. Carraway, Chairman, Harold H. Webb, as State Personnel Director, and the Office of State Personnel.

No. 8410SC874.

Court of Appeals of North Carolina.

May 7, 1985.

*882 Beecher R. Gray, Chapel Hill, for petitioners.

Hafer, Hall & Schiller by Eugene Hafer and Marvin Schiller, Raleigh, for State Employees Ass'n of North Carolina, Inc.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Lennon, Raleigh, for the Office of State Personnel.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for State Personnel Com'n.

WELLS, Judge.

Neither side raises the issue, but we must first determine whether this case is presently appealable. In re Watson, 70 N.C.App. 120, 318 S.E.2d 544 (1984), disc. rev. denied, 313 N.C. 330, 327 S.E.2d 900 (1985). We conclude that the appeal is interlocutory and therefore must be dismissed.

The order of the superior court remanded the case for further hearing before the SPC. We have recently and expressly held that such an order by the superior court is interlocutory. Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777 (1983). Avoidance of a hearing does not affect a substantial right. Id. As in Blackwelder, there has been no hearing, and therefore no record has been created. Edwards v. Raleigh, 240 N.C. 137, 81 S.E.2d 273 (1954) is accordingly distinguishable. The appeal is thus interlocutory and subject to dismissal.

Respondents argue that the court erred in denying their motions to dismiss for lack of personal and subject matter jurisdiction. As to the motion to dismiss for subject matter jurisdiction, an appeal from a ruling denying such a motion is clearly interlocutory. Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982).

Denial of a motion to dismiss for lack of jurisdiction over the person does not give rise to an automatic right of appeal, despite statutory language appearing to have such effect. See Love v. Moore, 305 N.C. 575, 291 S.E.2d 141, reh'g denied, 306 N.C. 393 (1982), construing N.C.Gen.Stat. § 1-277(b) (1983). Rather, G.S. § 1-277(b) allows interlocutory appeals only where the authority of the court to exercise jurisdiction over the person is contested. Love v. Moore, supra. Merely making a motion to dismiss for lack of such jurisdiction will not ipso facto make an otherwise interlocutory order appealable; substance, not form, controls. Id.

Respondents contend that the doctrine of sovereign immunity in fact raises such a question, and precludes exercise of jurisdiction over this case. Regardless of whether sovereign immunity is a defense involving subject matter or personal jurisdiction, however, the state, by the enactment of the Administrative Procedure Act, N.C.Gen.Stat. § 150A-1 et seq. (1983), has consented to the supervisory jurisdiction by the General Court of Justice over appeals from administrative agencies.

*883 As the supreme court recognized in Employment Security Commission v. Lachman, 305 N.C. 492, 290 S.E.2d 616 (1982), the jurisdiction of the SPC is not limited to those cases described in N.C.Gen. Stat. §§ 126-35 and 126-37 (1981), but may also arise, as it does here, under N.C.Gen. Stat. § 126-34 (1981) ("grievance" procedure). Respondents contend that petitioners may not challenge management business decisions such as reclassification through grievances under G.S. § 126-34. Merely denominating a decision a "reclassification" does not insulate it from all scrutiny, however; facially neutral job classifications can be and are used for improper discriminatory purposes. See Armstrong v. Index Journal Co., 647 F.2d 441 (4th Cir.1981); Claiborne v. Illinois Cent. R.R., 583 F.2d 143, reh'g denied, 588 F.2d 828 (5th Cir.1978), cert. denied, 442 U.S. 934, 99 S. Ct. 2869, 61 L. Ed. 2d 303 (1979). Petitioners' case is essentially a discrimination case, that they were arbitrarily selected for a pay freeze and prevented from transferring to reclassified positions. See Dept. of Correction v. Gibson, 308 N.C. 131, 301 S.E.2d 78 (1983) (reasonable grounds for selection necessary). Since they did not allege one of the prohibited grounds of discrimination, they had to follow the G.S. § 126-34 grievance procedure, over which the SPC has jurisdiction. Employment Security Commission v. Lachman, supra. Appeal from the SPC lies by petition to the Superior Court of Wake County. G.S. § 150A-45. Whether the jurisdictional prerequisites of the Administrative Procedure Act, G.S. § 150A-43, have been met is not a question of personal jurisdiction, but one of the ripeness, on a case by case basis, of the subject matter of administrative decisions for judicial review. See Dyer v. Bradshaw, 54 N.C.App. 136, 282 S.E.2d 548 (1981); Orange County v. Dept. of Transportation, 46 N.C.App. 350, 265 S.E.2d 890, disc. rev. denied, 301 N.C. 94 (1980) (applying jurisdictional tests). Accordingly, no appealable question as to jurisdiction over the person is presented.

This appeal must therefore be and is hereby

Dismissed.

HEDRICK, C.J., and MARTIN, J., concur.