Barr v. S.W. Rodgers Co.

HUMPHREYS, Judge. The Commissioner of Labor and Industry (“Commissioner”) appeals 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 reverse the decision of the circuit court. I. BACKGROUND On March 31, 1995, the Commissioner cited the appellee, the 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 with respect to the dimensions of the trench, 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 [277] support of this position. The trial court granted Rodgers’ motion to strike on the basis that the bill of complaint had not been timely filed. 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.1 The 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, [278] 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. 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.2 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 long standing 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. [279] Although no statute of limitations applies to the Commonwealth unless the statute expressly so provides, see Code § 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. Hearsay Objection 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. [280] For these reasons, we reverse the decision of the trial court and remand for further proceedings consistent with this opinion. Reversed and remanded. Footnotes [1] 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 to participate as parties to hearings under this subsection. [2] For example, Code § 40.1-49.4(A)(3) provides that ‘‘[n]o citation may be issued under this section after the expiration of six months following the occurrence of any alleged violation.”