COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Bray and Annunziata 

DEBRA C. JONES 

v. Record No. 0717-95-4 MEMORANDUM OPINION*

 PER CURIAM 

VIRGINIA EMPLOYMENT COMMISSION AUGUST 29, 1995 

AND 

CREATIVE PLAY SCHOOL, INC. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jack B. Stevens, Judge 

 (Claude D. Convisser, on brief), for appellant. 

 (James S. Gilmore, III, Attorney General; Paul S. 

Stahl, Assistant Attorney General; Lisa J. Rowley, 

Assistant Attorney General; John B. Sternlicht; 

Assistant Attorney General, on brief), for appellee 

Virginia Employment Commission. 

 No brief for appellee Creative Play School, Inc. 

 Debra C. Jones appeals the decision of the circuit court 

granting the motion of the Virginia Employment Commission (VEC) 

to dismiss her appeal. Jones contends that the circuit court 

erred when it ruled that she had failed to file an appeal 

satisfying the requirements of Code § 60.2-625. 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. Rule 5A:27. 

 "On appeal, the judgment of the trial court is presumed 

correct. The burden is on the party who alleges reversible error 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

to show by the record that reversal is the remedy to which he is 

entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 

S.E.2d 384, 387 (1991). The judgment of the trial court will not 

be disturbed on appeal unless it is plainly wrong or without 

evidence to support it. Box v. Talley, 1 Va. App. 289, 293, 338 

S.E.2d 349, 351 (1986). 

 Code § 60.2-625(A) provides, in pertinent part, as follows: 

 Within ten days after the decision of 

the [VEC] upon a hearing pursuant to 

§ 60.2-622 has become final, any party 

aggrieved who seeks judicial review shall 

commence an action in the circuit court of 

the county or city in which the individual 

who filed the claim was last employed. In 

such action against the [VEC], the [VEC] 

and any other party to the administrative 

procedures before the [VEC] shall be named 

a defendant in a petition for judicial 

review. 

When, as here, "the legislature has prescribed limitations within 

which the right of appeal may be exercised, such limitations are 

exclusive, and the court cannot modify or enlarge them without 

express statutory authority." Blankenship v. Virginia 

Unemployment Compensation Comm'n, 177 Va. 250, 254, 13 S.E.2d 

409, 411 (1941). "It is well settled that '[w]hen the word 

"shall" appears in a statute it is generally used in an 

imperative or mandatory sense.'" Mayo v. Commonwealth, 4 Va. 

App. 520, 523, 358 S.E.2d 759, 761 (1987) (citation omitted). 

Thus, Jones was required to name her former employer, who had 

been a "party to the administrative procedures before the [VEC]," 

as a defendant in her appeal to the circuit court. 
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 In an affidavit submitted to the circuit court in support of 

her Motion for Reconsideration, Jones alleged that she had 

"caused to be submitted . . . a petition" naming her former 

employer as a defendant. The affidavit, however, purported to 

describe what was said to and by Jones' agent and therefore was 

hearsay. "[H]earsay affidavits are not admissible in support of 

a motion for a new trial." Commercial Union Ins. Co. v. 

Moorefield, 231 Va. 260, 265, 343 S.E.2d 329, 333 (1986). 

 Legal evidence is that statement made under 

oath before a properly constituted tribunal 

or officer. The affidavit . . . related to 

matters not in evidence, or of record in 

the case. It had no evidential value, save 

to serve notice of the possible existence 

of the matters alleged. . . . In such a 

hearing hearsay evidence in the form of an 

affidavit is no more admissible than in a 

trial of the case itself. 

Kearns v. Hall, 197 Va. 736, 741, 91 S.E.2d 648, 652 (1956). 

 Although Jones submitted the affidavit in conjunction with a 

motion for reconsideration rather than a motion for a new trial, 

the principle espoused in Moorefield and Kearns is nonetheless 

applicable. Thus, Jones' affidavit was insufficient evidence 

before the circuit court to support Jones' contention that she 

filed a petition satisfying the requirements of Code § 60.2-622. 

 Therefore, we cannot say that the trial court's decision 

that Jones failed to file an appeal satisfying the requirements 

of Code § 60.2-622 was plainly wrong or without evidence to 

support it. Accordingly, the decision of the circuit court is 

summarily affirmed. 
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 Affirmed.