                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


MALCOLM A. AGNEW
                                                 MEMORANDUM OPINION *
v.   Record No. 1004-97-2                            PER CURIAM
                                                  FEBRUARY 10, 1998
BAKER ROOFING COMPANY, INC.
AND
VIRGINIA EMPLOYMENT COMMISSION


             FROM THE CIRCUIT COURT OF HANOVER COUNTY
                    Richard H. C. Taylor, Judge
           (Marian K. Agnew, on briefs), for appellant.

           (Robert J. Barry; Kaufman & Canoles, P.C., on
           brief), for appellee Baker Roofing Company,
           Inc.

           (Richard Cullen, Attorney General; Lisa J.
           Rowley, Assistant Attorney General, on
           brief), for appellee Virginia Employment
           Commission.



     Malcolm A. Agnew appeals the decision of the circuit court

dismissing his petition for review of the determination of the

Virginia Employment Commission ("commission") that he was

ineligible for unemployment benefits.   Agnew contends that (1)

the commission erred in ruling that he received fair and

reasonable notice of the hearing before the appeals examiner, (2)

the commission erred by endorsing the decision of the appeals

examiner based on testimony given by Baker Roofing Company, Inc.

("Baker") when Agnew was unable to examine and cross-examine

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Baker's witnesses, (3) the commission erred in endorsing the

decision of the special examiner, who violated the commission's

rule for granting a new evidentiary hearing by refusing to take

Agnew's proffered evidence of Baker's intrinsic and extrinsic

fraud, and (4) the circuit court erred in failing to reverse the

commission's ruling on the basis that Agnew failed to appear at

the appeals examiner's hearing.

        Upon reviewing the record and briefs of the parties, we

conclude that this appeal is without merit.     Accordingly, we

summarily affirm the decision of the trial court.      See Rule

5A:27.

                                 Facts

        Agnew was discharged from his employment with Baker.   Agnew

applied for unemployment compensation benefits, and a claims

deputy awarded benefits to Agnew.      Baker appealed the award, and

the commission mailed a Notice of Appeal to Agnew on December 7,

1995.    By letter dated December 13, 1995, the commission informed

Agnew that the appeals hearing was scheduled for December 28,

1995.    Agnew acknowledges that he received the December 7, 1995

Notice of Appeal, but asserts that he was out of town for part of

December 1995, and that when he returned to his residence on

December 27, 1995, he "ignored the mountain of accumulated mail,"

including the notice of the December 28, 1995 hearing date.

Agnew neglected to open the notice until December 28, 1995, after

the hearing had already taken place.     Therefore, Agnew failed to



                                   2
appear at the hearing.    However, Baker appeared at the hearing

and presented evidence.

     By decision dated January 4, 1996, the appeals examiner

reversed the decision of the claims deputy and disqualified Agnew

from benefits due to misconduct connected to his work.

     On January 18, 1996, Agnew appealed the appeals examiner's

decision and, on March 18, 1996, Agnew's attorney noted her

appearance.   On April 9, 1996, the commission issued a Notice of

Commission Hearing.   The notice stated "[t]estimony and evidence

is limited to whether the commission should direct the taking of

additional testimony and evidence.    Oral argument will be

permitted on all issues."
     By letter dated April 9, 1996, the special examiner

explained to Agnew the guidelines for determining whether the

commission would accept additional evidence.   She further advised

Agnew that, if she "decide[d] that additional evidence should be

taken, then [she would] set aside the Appeals Examiner's decision

and remand the case to the Appeals Examiner for that purpose."

     On June 5, 1996, the hearing was conducted before the

special examiner, and, by decision dated August 23, 1996, the

commission affirmed the appeals examiner's disqualification of

unemployment benefits.    Agnew filed an Objection and Notice of

Appeal, which the commission treated as a request for

reconsideration.   In this document, Agnew alleged that he was

denied due process by the special examiner's decision not to




                                  3
allow him to present additional evidence.      He further alleged

that the findings of fact by the appeals examiner were "based on

extrinsically fraudulent evidence easily refuted when Mr. Agnew

is permitted to present testimony at a new hearing."

     By letter dated September 3, 1996, the commission denied

Agnew's request for reconsideration, stating that the findings of

fact were supported by the evidence in the record and that the

law was properly applied to the facts.      The commission disagreed

that Agnew was denied due process or that the findings of the

appeals examiner were procured by extrinsic fraud.
     Agnew next filed a Petition for Judicial Review in the

Circuit Court of Hanover County.       Baker filed a demurrer, and the

trial court sustained the demurrer and dismissed the case.      Agnew

filed a motion for reconsideration, which the trial court also

denied, holding that no new issues were raised by the motion.

                         Notice of Hearing

     Agnew first challenges the sufficiency of the notice of the

appeals examiner's December 28, 1995 hearing.      Code § 60.2-620

provides that an appeal tribunal, "after affording the claimant

and any other parties reasonable opportunity for a fair hearing,

shall have jurisdiction to consider all issues with respect to

the claim . . . ."   Agnew admits that he received the December 7,

1995 Notice of Appeal from the commission when Baker appealed the

claims deputy's award for benefits.      This notice advised Agnew

that "in the near future" he would receive notice of a hearing



                                   4
before an appeals examiner and that the purpose of the hearing

was to "receive evidence from the parties to make a decision with

respect to the issues involved in the appeal."      The notice

further provided that "[t]his may be the only hearing at which

you can give evidence.    If there are further appeals those

appeals may only be a review of the evidence given at this

hearing."

        Despite receiving this notice, Agnew left his residence for

several weeks without advising the commission of where he could

be reached and without having someone monitor his mail.      When he

returned to his residence on December 27, 1995, he "ignored the

mountain of accumulated mail," which included a notice from the

commission, dated December 13, 1995, advising him that the

hearing before the appeals examiner would be held on December 28,

1995.
        Agnew asserts that he expected to be notified by registered

mail or personally served with a notice of the hearing date and

that he did not receive reasonable notice of the December 28,

1995 hearing.    However, there is no statutory or regulatory

requirement that such notice must be provided by registered mail

or personal service.    Code § 60.2-620 requires only a "reasonable

opportunity for a fair hearing."       Further, the regulations of the

commission provide that "[t]he Office of First Level Appeals

shall endeavor to schedule hearings as soon as possible in the

order in which appeals are received.      Special requests regarding




                                   5
dates or times of hearings will be given consideration; however,

they need not always be honored."   16 VAC 5-80-20(C).   Nothing in

the record intimates that Agnew advised the commission of his

impending absence during mid-December or that he made any special

requests regarding hearing dates that accommodated his travel or

work schedule.

     Further, when the commission mailed the notice fifteen days

before the date of the hearing, Agnew received the notice, yet he

declined to read the notice until December 28, 1995.     Therefore,

nothing in the record indicates that the commission failed to

give Agnew a reasonable opportunity for a fair hearing.    Instead,

the record indicates that Agnew did not timely learn of the

hearing date through his own negligence in disregarding his mail.

Therefore, on these facts, we cannot say that the commission

failed to provide Agnew with reasonable notice of the hearing.

     Agnew's Ability to Examine and Cross-Examine Witnesses

     Agnew next alleges that the commission erred in endorsing

the decision of the appeals examiner based on hearsay testimony

presented by Baker when Agnew was "unable to examine and

cross-examine Baker's witnesses."

     The regulations for the commission provide that, at the

appeals examiner's hearing, "the parties, counsel, or duly

authorized representatives shall be given an opportunity to

cross-examine witnesses, to inspect documents, and to offer

evidence in explanation and rebuttal."   16 VAC 5-80-20(F)(4).



                                6
However, Agnew failed to appear at the appeals examiner's

hearing.   Agnew's failure to appear at the appeals examiner's

hearing was the result of his own failure to read his mail.      And,

as discussed above, the December 7, 1995 Notice of Appeal from

the commission advised Agnew that the appeals examiner's hearing

"may be the only hearing at which [he could] give evidence."

Therefore, because Agnew was at fault for failing to appear at

the appeals examiner's hearing, he cannot now complain that he

was "unable to examine and cross-examine Baker's witnesses."
     Further, 16 VAC 5-80-20(F) provides that "[t]he appeals

examiner shall conduct the hearing in such a manner as to

ascertain the substantive rights of the parties without having to

be bound by common law, statutory rules of evidence, or technical

rules of procedure."   Therefore, Baker's evidence, even if

hearsay, as Agnew alleges, was admissible into evidence at the

appeals examiner's hearing.   Moreover, it was within the appeals

examiner's discretion to determine the probative weight, if any,

to be given to hearsay evidence.       See American Furniture Co. v.

Graves, 141 Va. 1, 16, 126 S.E. 213, 217 (1925).      We cannot say

that the commission erred in endorsing the decision of the

appeals examiner for this reason.

    Commission's Refusal to Accept Agnew's Proffered Evidence

     Agnew contends that the commission erred by endorsing the

decision of the special examiner, who, Agnew alleges, violated

the commission's rules for granting a new evidentiary hearing by



                                   7
refusing to accept Agnew's proffered evidence of "Baker's

intrinsic and extrinsic fraud."   Essentially, Agnew argues that

Baker's witnesses perjured themselves at the appeals examiner's

hearing and that, when Agnew appealed to the commission, the

commission erred in refusing to accept Agnew's evidence as proof

that these witnesses testified falsely.

     The commission's regulations provide that the commission, in

its discretion, may direct the taking of additional evidence

provided:
            1. It is shown that the additional evidence
            is material and not merely cumulative,
            corroborative or collateral, could not have
            been presented at the prior hearing through
            the exercise of due diligence, and is likely
            to produce a different result at a new
            hearing; or

            2. The record of the proceedings before the
            appeals examiner is insufficient to enable
            the commission to make proper, accurate, or
            complete findings of fact and conclusions of
            law.


16 VAC 5-80-30(B).

     The special examiner held a hearing to consider whether

Agnew's evidence would be accepted, and she heard Agnew's

arguments for presenting additional evidence.   The special

examiner found that Agnew received the notice of the appeals

examiner's hearing prior to December 28, 1995; however, he did

not open the notice to determine the time and date of the hearing

until the date of the hearing.    At the special examiner's

hearing, Agnew also contended that, although he received the




                                  8
notice and returned to his residence prior to December 28, 1995,

"he was preoccupied with a project on which he was working."      The

commission did not find that this explanation was sufficient to

allow the admission of additional evidence, "particularly in

light of the fact that [Agnew] could have retained counsel

earlier than March 18, 1996, in order to receive notice of the

hearing and coordinate an appearance on his behalf."      The

commission was also satisfied that the record was sufficient to

allow it to make accurate findings of fact and conclusions of

law.
       On this record, we cannot say that the commission abused its

discretion in refusing to direct the taking of Agnew's evidence.

Agnew failed to show that the evidence could not have been

presented at the prior hearing through the exercise of due

diligence.   Some of the evidence Agnew sought to admit was

information from his own computer and personal files.      This

material was available to Agnew and could have been presented at

the December 28, 1995 hearing.   Agnew also asserts that he could

not obtain pertinent information from one of his roofing projects

involving Mary Washington College because the college was closed

for the Christmas holidays.   However, Agnew did not show that he

even attempted to obtain this information prior to the December

28, 1995 hearing.   In fact, it is unlikely that he did attempt to

do so given the fact that he was unaware of the December 28, 1995

hearing until after it occurred.       Because the evidence supports




                                   9
the commission's findings, we hold that the commission did not

abuse its discretion in refusing to accept additional evidence.

                        Extrinsic Fraud Claim

     Agnew next argues that the trial court erred in denying

Agnew due process when it affirmed the commission's decision

"based on improper testimony and facts not in evidence

solely . . . because Agnew had not appeared at the December 28,

1995 hearing . . . ."   Agnew alleges that the trial court erred

in refusing to remand the case to the commission for a hearing on

his claim of extrinsic fraud.   Agnew's basis for the extrinsic

fraud claim is that the commission failed to afford him a fair

hearing by denying him a new hearing and opportunity to present

his evidence.   He further asserts that the commission's decision

was procured by extrinsic fraud based on a record that was

"replete with Baker's uncontested contentions and allegations

taken as fact by the Appeals Examiner . . . ."
     "Extrinsic fraud is 'conduct which prevents a fair

submission of the controversy to the court.'"    Wells Fargo Alarm

Servs., Inc. v. Virginia Employment Comm'n, 24 Va. App. 377, 386,

482 S.E.2d 841, 846 (1997) (quoting Jones v. Willard, 224 Va.

602, 607, 299 S.E.2d 504, 508 (1983)).

     In Jones, the Court held that
          when a party aggrieved by a decision of the
          Virginia Employment Commission alleges in his
          petition for review that the decision was
          procured by extrinsic fraud committed by the
          successful party and submits with the
          petition a proffer of proof, verified by
          affidavits of witnesses, the circuit court



                                 10
          shall remand the cause to the Commission for
          a hearing on the issue if, upon review of the
          proffer and argument by counsel, the court
          finds the proffer sufficient as a matter of
          law to establish a prima facie case of such
          fraud.


Jones, 224 Va. at 608, 299 S.E.2d at 508.

     In Jones, the alleged extrinsic fraud involved the

petitioner's belief that she was threatened by her former

employer regarding her unemployment compensation claim, causing

her to "avoid" the appeals examiner's hearing.       Id. at 605, 299

S.E.2d at 506-07.   In Wells Fargo, the alleged extrinsic fraud
involved the concealment of records by the discharged employee in

an alleged plan to deceive corporate officials.       Wells Fargo, 24

Va. App. at 386, 482 S.E.2d at 846.      Thus, extrinsic fraud

involves behavior or actions committed by a party that prevents

"a fair resolution of the case."       Id. at 387, 482 S.E.2d at 846.

     Agnew's affidavits merely allege facts rebutting the

evidence presented by Baker.    Thus, Agnew failed to establish a

prima facie case of extrinsic fraud.      Rather, Agnew's proffered

evidence went to the issue of witness credibility or whether

Baker's witnesses committed perjury.      Such allegations constitute

a claim of intrinsic fraud, not extrinsic fraud.       See Jones, 224

Va. at 607, 299 S.E.2d at 508 (Intrinsic fraud involves "perjury,

forged documents, or other incidents of trial related to issues

material to the judgment.").    Therefore, Agnew's affidavits

failed to show that Baker engaged in conduct that prevented "a

fair resolution of the case."    Id.    Accordingly, because Agnew's



                                 11
proffer to the trial court was insufficient to establish a prima

facie case of extrinsic fraud, the trial court did not err in

refusing to remand the case to the commission.

     For the foregoing reasons, the opinion of the trial court is

affirmed.

                                                       Affirmed.




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