Opinion
Record No. 2123-91-2
July 20, 1993
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE JAY T. SWETT, JUDGE.
Margaret McLeod Cain for appellant.
John B. Sternlicht, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee Virginia Employment Commission.
(James E. Treakle, Jr., on brief), for appellee Lewis Glaser, Inc.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Estelle T. Long (Long) appeals from a decision of the Circuit Court of the City of Charlottesville dismissing her petition for review of the Virginia Employment Commission's (commission) determination that she was ineligible for unemployment benefits. She contends that the circuit court (1) erred in not remanding the matter to the commission, (2) erroneously relied upon Jones v. Willard, 224 Va. 602, 299 S.E.2d 504 (1983), and (3) erred in failing to apply Code § 8.01-428(C). For the reasons that follow, we find no error and affirm.
The parties are familiar with the facts of the case. Accordingly, we restate only those facts necessary to explain our holding. Long was discharged from her employment with Lewis Glaser, Inc. Upon Long's application for unemployment benefits, the commission found that Long was discharged for misconduct connected with work and denied her claim. Long filed a petition for review in the circuit court alleging that the commission's finding was not supported by the evidence and that employer had submitted fraudulent evidence to the commission. Relying onJones v. Willard, the circuit court dismissed Long's petition.
Long's assignments of error require us to determine the effect of Jones v. Willard in this case. In Jones, the Virginia Supreme Court differentiated between intrinsic and extrinsic fraud for purposes of determining how a judgment procured by fraud may be challenged. The Court stated that intrinsic fraud includes "perjury, forged documents, or other incidents of trial related to issues material to the judgment." 224 Va. at 607, 299 S.E.2d at 508. On the other hand, extrinsic fraud is "conduct which prevents a fair submission of the controversy to the court." Id. Essentially, Long alleges that a Glaser employee, Nancy Floyd, perjured herself before the commission. TheJones Court clearly defined perjury as intrinsic fraud. Thus, Long's allegation, if believed, constitutes intrinsic fraud.
Long first claims that the circuit court erred in dismissing her petition rather than remanding it to the commission pursuant to Code § 60.2-625. A decision of the commission becomes final within ten days from the date of notification or mailing. Code § 60.2-622 (B)(1). "If the Commission's decision was procured by intrinsic fraud, its decision is voidable until it becomes final. If the Commission's decision was procured by extrinsic fraud, then its decision is void" and subject to attack at any time.Jones, 224 Va. at 607-608, 299 S.E.2d at 508. The commission's decision, which was mailed on January 4, 1989, became final on January 14, 1989, under the provision of Code § 60.2-622. Having alleged perjury, which is intrinsic fraud, Long was required to attack the commission's judgment before it became final. However, the petition was filed on January 24, 1989, after the commission's decision became final.
Moreover, contrary to the mandate of Jones, Long failed to submit with the petition a proper proffer of proof with affidavits showing fraud of any kind.
[W]hen 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 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.
Id. at 608, 299 S.E.2d at 508 (footnote omitted). The record reflects that the affidavits were filed almost ten months after the petition was filed. Therefore, the circuit court properly dismissed Long's petition.
Long also contends that the circuit court erred in relying onJones because that case was wrongly decided and should be overturned. We do not have the authority to overturn Supreme Court precedent. Moreover, our review of the record shows that the circuit court properly applied Jones in ruling that perjury constitutes intrinsic fraud.
Finally, Long contends that the circuit court erred in applying Code § 60.2-625 rather than Code § 8.01-428(C). Long failed to raise this issue before the circuit court and, therefore, is procedurally barred from raising it for the first time on appeal. See Rule 5A:18. In any event, appeals of unemployment compensation decisions are governed solely by Title 60.2. Thus, Code § 60.2-625, rather than Code § 8.01-428, is the controlling statute in this matter.
For these reasons, the decision of the circuit court dismissing Long's petition for review is affirmed.
Affirmed.