COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Humphreys
JOHN MILLS BARR,
COMMISSIONER OF LABOR AND INDUSTRY
OPINION BY
v. Record No. 1382-99-2 JUDGE ROBERT J. HUMPHREYS
DECEMBER 5, 2000
S. W. RODGERS COMPANY, INC.
UPON A REHEARING
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H. C. Taylor, Judge Designate
(Mark L. Earley, Attorney General; Ellen F.
Brown, Assistant Attorney General; John R.
Butcher, Assistant Attorney General, on
briefs), for appellant.
(Joseph H. Kasimer; Kasimer & Annino, P.C.,
on brief), for appellee.
The Commissioner of Labor and Industry ("Commissioner")
appealed the decision of the circuit court that dismissed the
bill of complaint filed against appellee for violations of the
Virginia Occupational Safety and Health ("VOSH") standards for
the construction industry.
For the reasons that follow, we affirm in part and reverse
1
in part.
1
A panel of this Court, with one judge dissenting in part
and concurring in part, reversed the decision of the circuit
court and remanded the matter for further proceedings consistent
with the Court's decision. We granted a petition for
reconsideration, from which this opinion follows.
I. BACKGROUND
On March 31, 1995, the Commissioner cited S. W. Rodgers
Company, Inc. ("Rodgers") for three violations of VOSH standards
for the construction industry. The alleged violations were
improper sloping of a trench, spoil piles of dirt located at the
edge of a trench, and the absence of a competent person to
inspect the trench. On April 4, 1995, Rodgers submitted a notice
of contest to the citation. On July 8, 1996, the Commissioner
filed a bill of complaint against Rodgers in the Circuit Court of
Hanover County ("trial court"). On July 29, 1996, Rodgers filed
a grounds of defense, alleging that the bill of complaint had not
been timely filed. The Commissioner responded that the reason
for the delay in filing the bill of complaint was that there had
been ongoing settlement negotiations between the parties.
On April 21, 1999, the trial judge heard the case. The
Commissioner called Compliance Officer Warren Rice, who testified
about conversations he had with Saul Kendall. Kendall had
identified himself to Rice as Rodgers' foreman and Rodgers'
"competent person" for the purpose of complying with the
trenching standard. When the Commissioner attempted to question
Rice regarding certain admissions Kendall had made, Rodgers
objected to the line of questions as calling for hearsay. Over
the Commissioner's objection, the trial court excluded the
statements as inadmissible hearsay.
At the conclusion of the Commissioner's case-in-chief,
Rodgers moved to strike on the basis that the bill of complaint
had not been timely filed. Rodgers presented no evidence in
support of this position. Rodgers also moved to strike on the
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ground that the Commissioner had failed to offer evidence that
an employee of Rodgers had been exposed to the condition which
was the subject of the citation. The trial court granted
Rodgers' motion to strike on the basis that the bill of complaint
had not been timely filed, but denied the motion to strike on the
issue of employee exposure.
II. ANALYSIS
Timeliness of Filing the Bill of Complaint
The Commissioner argues that Code § 40.1-49.4(E) merely
requires that the Commonwealth's Attorney be notified
"immediately" and that a fifteen-month delay in the filing of a
bill of complaint is not inherently unreasonable. 2 The
2
Code § 40.1-49.4(E) provides as follows:
Upon receipt of a notice of contest of
a citation, proposed penalty, order of
abatement or abatement time pursuant to
subdivision A 4 (b), subsection B or C of
this section, the Commissioner shall
immediately notify the attorney for the
Commonwealth for the jurisdiction wherein
the violation is alleged to have occurred
and shall file with the circuit court a bill
of complaint. Upon issuance and service of
a subpoena in chancery, the circuit court
shall promptly set the matter for hearing
without a jury. The circuit court shall
thereafter issue a written order, based on
findings of fact and conclusions of law,
affirming, modifying or vacating the
Commissioner's citation or proposed penalty,
or directing other appropriate relief, and
such order shall become final twenty-one
days after its issuance. The circuit court
shall provide affected employees or their
representatives and employers an opportunity
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Commissioner also contends that even if the statute contemplates
an immediate filing of a bill of complaint, Rodgers did not plead
or assert in the trial court that it was prejudiced by the
fifteen-month interval between the notice of contest and the
filing of the bill of complaint in this case. Rodgers argues
that the Commissioner is required to file a bill of complaint
"immediately" upon receipt of a notice of contest and that
failure to do so bars any action by the Commissioner.
We have not previously addressed the issue raised here. "A
primary rule of statutory construction is that courts must look
first to the language of the statute. If a statute is clear and
unambiguous, a court will give the statute its plain meaning."
Loudoun County Dep't of Social Servs. v. Etzold, 245 Va. 80, 85,
425 S.E.2d 800, 802 (1993). In this case, the plain meaning of
Code § 40.1-49.4(E) dictates that the only immediate action
required of the Commissioner is to notify the Commonwealth's
Attorney. The word "immediately" only modifies the phrase "shall
notify." The General Assembly did not repeat the word
"immediately" in the second portion of the sentence when
referring to the filing of a bill of complaint. By virtue of the
intervening "shall," the adverb "immediately" does not distribute
across the conjunction, "and," into the second part of the
sentence.
to participate as parties to hearings under
this subsection.
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In addition, we note that if the General Assembly had
intended to impose a narrow time limit, it could have done so as
it did in other sections of the statute. 3
Because Code § 40.1-49.4 is a remedial statute, it should be
"'construed liberally so as to suppress the mischief and advance
the remedy,' as the legislature intended." Board of Supervisors
v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897-98
(1989) (citation omitted). In addition, it is longstanding
public policy that state actors cannot waive the right to enforce
public health and safety laws. See Board of Supervisors v.
Norfolk & W. Ry. Co., 119 Va. 763, 790, 91 S.E. 124, 133 (1916);
Sink v. Commonwealth, 13 Va. App. 544, 547, 413 S.E.2d 658, 660
(1992). Therefore, we find that Code § 40.1-49.4(E) does not
impose upon the Commissioner the requirement that a bill of
complaint be filed contemporaneously with the notification of the
Commonwealth's Attorney.
In holding that the Commissioner was not required to file a
bill of complaint immediately upon receipt of a notice of
contest, we do not hold that the Commissioner has an unlimited
amount of time in which to do so. We turn now to the questions
of whether the fifteen-month delay in this case was inherently
prejudicial, and, if not, whether there was any actual prejudice
to Rodgers.
Although no statute of limitations applies to the
Commonwealth unless the statute expressly so provides, see Code
3
For example, Code § 40.1-49.4(A)(3) provides that "[n]o
citation may be issued under this section after the expiration
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§ 8.01-231, we note that fifteen months is well within the
statute of limitations for the filing of a civil action.
Therefore, we find no inherent prejudice in a delay of fifteen
months in filing a bill of complaint.
Here, Rodgers did not suggest or argue to the trial court
that it was prejudiced by the filing delay. To obtain a
dismissal for failure to file a bill of complaint within a
reasonable period of time, Rodgers must present credible evidence
that it was actually prejudiced by the length of the interval
between the notice of contest and the filing of the bill of
complaint. See Stewart v. Lady, 251 Va. 106, 114, 465 S.E.2d
782, 786 (1996) (burden of proving laches and prejudice is upon
litigant asserting the defense). Rodgers made no claim that such
prejudice existed.
of six months following the occurrence of any alleged
violation."
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Hearsay Objection
Rodgers also argues that the statements of its foreman were
inadmissible hearsay. In the alternative, it argues that the
Commissioner failed to object in proper form to the trial
court's finding on the hearsay issue and that the Commissioner
failed to proffer the statements he intended to elicit, thereby
failing to preserve the hearsay issue for purposes of appeal.
Declarations made by a party to litigation when offered
through someone other than the declarant, though hearsay, are
admissible in Virginia as party admissions. See Goins v.
Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 127 (1996). The
party admission rule includes not only statements made by the
party himself or herself, but also statements of other persons
who stand in close relationship to the party. See Charles E.
Friend, Law of Evidence in Virginia § 18-41 (5th ed. 1993).
Thus, an agent's statements may be admitted against his or her
principal if the agent made the statements while acting within
the scope of employment and the agent had authority to make such
statements on behalf of the principal. See id. Here, the record
indicates that Kendall was Rodgers' foreman, he was on the
worksite, and he had identified himself as the "competent person"
responsible for the trench. Under these circumstances, the trial
court erred when it ruled that Kendall's statements to Rice,
though hearsay, were inadmissible as party admissions.
As to Rodgers' second argument, the statement of facts
recites:
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[The Commissioner] questioned [Compliance
Officer] Rice about his conversation with
Saul Kendall concerning who was working in
the trench. [Rodgers] objected to this line
of questioning as hearsay. [The
Commissioner] argued that Kendall was the
company's management official at the jobs
[sic] site. Kendall's statements were
admissions against interest and therefore an
exception to the hearsay rule. Judge Taylor
disagreed and sustained the objection.
The requirement of noting a formal exception to the final
adverse ruling of the trial judge has been eliminated. See
Martin v. Commonwealth, 13 Va. App. 524, 414 S.E.2d 401 (1992).
"The primary function of Rule 5A:18 is to alert the trial judge
to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials." Martin, 13 Va.
App. at 530, 414 S.E.2d at 404 (citing Campbell v. Commonwealth,
12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc)).
Here, the parties concede in their statement of facts that
the Commissioner properly objected to the Court's ruling at
trial. Rodgers' argument that because the Commissioner failed
to note this objection once again in the trial court's final
order, ignores the longstanding proposition that "neither the
Code nor Rules of Court mandate a specific procedure to preserve
for appeal an issue objected to in the trial court." Lee v.
Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991).
Moreover, "endorsing a decree 'seen and objected to' does not
preserve an issue for appeal unless the record further reveals
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that the issue was properly raised for consideration by the
trial court." Konefal v. Konefal, 18 Va. App. 612, 615, 446
S.E.2d 153, 155 (1994).
However, we agree with Rodgers' argument that, based on the
statement of facts, it appears the Commissioner failed to
proffer the evidence he intended to elicit, thereby failing to
properly preserve this issue for purposes of appeal. See
Whitaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81
(1977) (we hold that a unilateral avowal of counsel, if
unchallenged, or a mutual stipulation of the testimony expected
constitutes a proper proffer and that absent such acquiescence
or stipulation, this Court will not consider an error assigned
to the rejection of testimony unless such testimony has been
given in the absence of the jury and made a part of the record
in the manner prescribed by the rules of Court).
We find it unfortunate that the parties chose to file a
statement of facts in lieu of a transcript in this case. The
statement of facts strongly suggests the Commissioner intended
to elicit the names of the persons who were working in the
trench. However, because of what appears to be inartful
wording, we cannot ascertain whether the Commissioner truly
proffered the evidence to the trial court and cannot make a
finding on this issue on the basis of the statement of facts
alone.
Employee Exposure
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Rodgers next argues on cross-appeal that the trial court
incorrectly denied his motion to strike on the issue of employee
exposure. We disagree.
"In reviewing a sufficiency challenge on appeal, we
consider the evidence in the light most favorable to the party
prevailing in the trial court." Rinaldi v. Dumsick, 32 Va. App.
330, 333-34, 528 S.E.2d 134, 136 (2000) (citation omitted). "We
will not reverse the trial judge's decision unless it is plainly
wrong." Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407
S.E.2d 47, 48 (1991)(citations omitted).
Here, the statement of facts establishes that Rodgers dug
the trench, Rodgers was at the site to hook up water lines, a
pipette was attached to a water pipe at the bottom of the
trench, the water pipe itself was clean, there was a footprint
in the dirt at the bottom of the trench, there was a ladder in
the trench, as well as an orange barricade around the trench,
and Kendall, Rodgers' foreman, filled in the trench while
Compliance Officer Rice was on the telephone with Rodgers'
Safety Director.
Although Compliance Officer Rice saw no employees in the
trench while he was present, and although Rodgers would not
claim responsibility for the trench and the items in and around
the trench, we cannot find, based on this evidence, that the
trial court's decision in this regard was "plainly wrong."
Accordingly, we affirm the trial court's denial of Rodgers'
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motion to strike on the basis of employee exposure. For the
reasons set forth above, we affirm in part and reverse in part
the decision of the trial court and remand for further
proceedings consistent with this opinion.
Affirmed in part,
reversed and
remanded in part.
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Benton, J., concurring and dissenting.
I concur in Part I and the portion of Part II holding that
the Commissioner was not required to file a bill of complaint
immediately upon notice of contest. Therefore, I would also
reverse and remand this matter to the trial judge.
I would not decide the issue of prejudice, however, because
the record does not establish that the parties had an
opportunity to litigate that issue in the circuit court. As the
majority notes, "we have not previously addressed" the meaning
of the statute. Moreover, nothing on the face of the statute
alerts the parties or the trial judge that prejudice is an
element. The statement of facts indicates that the trial judge
ruled at the conclusion of the Commissioner's case-in-chief that
the bill of complaint was not timely filed. Thus, the judge had
no occasion to address the issue of whether Rodgers was
prejudiced by the delay of fifteen months. Because the issue of
prejudice encompasses factual determinations, see Niese v. Klos,
216 Va. 701, 704, 222 S.E.2d 798, 801 (1976), I would direct the
trial judge to consider on remand that issue.
Likewise, the statement of facts establishes only that
"Kendall [was] . . . the foreman on site." The record does not
contain any further evidence upon which we might conclude that
the trial judge erred in excluding Kendall's out-of-court
statements. I find no evidence in the record to support a
conclusion that Kendall was authorized to speak for the
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corporation. See Monacan Hills v. Page, 203 Va. 110, 116, 122
S.E.2d 654, 658 (1961) (holding that statements of an agent are
admissible only if evidence proves the agent has authority to
bind the corporation and the agent is speaking in respect to
matters within the agent's scope of authority). I agree with
the majority opinion that the statement of facts does not
contain a proffer of the excluded testimony. Therefore, we have
no basis upon which to conclude that the trial judge erred in
sustaining the objection.
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