COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Overton 

Argued at Richmond, Virginia 

VIRGINIA EMPLOYMENT COMMISSION 

 OPINION BY 

v. Record No. 1373-97-2 JUDGE LARRY G. ELDER 

 APRIL 21, 1998 

PORTER-BLAINE CORPORATION 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 John B. Purcell, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellant. 

 Thomas F. Hennessy, III (SuAnne L. Hardee; 

Hardee & Hennessy, P.C., on brief), for 

appellee. 

 The Virginia Employment Commission ("Commission" or "VEC") 

appeals the circuit court's orders (1) overruling its motion to 

dismiss Porter-Blaine Corporation's petition for judicial review 

and (2) reversing its decision that the service performed for 

Porter-Blaine Corporation by several drywall installers 

constituted "employment" under Code § 60.2-212. The Commission 

contends the circuit court erred when it (1) concluded that 

Porter-Blaine Corporation's service of its petition for judicial 

review upon the Commissioner of the VEC satisfied the "service" 

requirement of Code § 60.2-500(B) and (2) concluded that 

Porter-Blaine Corporation had met its burden of proof to qualify 

for the exemption from tax liability found in Code § 60.2-212(C). 

 For the reasons that follow, we reverse and remand. 
 2 

 I. 

 FACTS 

 Porter-Blaine Corporation ("Porter-Blaine") is in the 

business of installing drywall for general contractors engaged in 

the construction of residential and commercial buildings. It has 

twenty-eight employees, including "laborers, secretarial staff, 

superintendents, [and] repair people." In some of its 

residential projects, Porter-Blaine uses between twenty and 

thirty workers on a job-by-job basis to hang and finish drywall 

boards and to apply plaster to walls ("drywall installers"). 

Porter-Blaine considered these drywall installers to be 

independent contractors. As such, it excluded the remuneration 

paid to these workers from its calculation of its tax liability 

under the Unemployment Compensation Act ("Act"). 

 In 1994, the Commission conducted an audit of 

Porter-Blaine's payroll for the years 1991, 1992, and 1993. On 

November 10, 1994, the Commission determined that the work 

performed by the drywall installers was "employment" under Code 

§ 60.2-212 and that Porter-Blaine was required to pay taxes on 

the remuneration it paid to these workers. Porter-Blaine 

appealed this determination. Following a hearing, a special 

examiner made extensive factual findings and concluded that the 

service performed by the drywall installers for Porter-Blaine was 

"employment" under Code § 60.2-212. Specifically, the special 

examiner concluded that Porter-Blaine failed to prove that the 
 3 

drywall installers were either free from its control as required 

by Code § 60.2-212(C)(1) or independently established businesses 

under Code § 60.2-212(C)(2). Regarding the issue of control, the 

special examiner found that Porter-Blaine possessed the right to 

terminate the services of drywall installers "at will." 

 On June 13, 1996, Porter-Blaine filed a timely petition for 

judicial review of the special examiner's decision. The petition 

contained a certificate of service signed by Porter-Blaine's 

counsel stating that "two copies of the [petition were] sent via 

overnight delivery, this 12th day of June, 1996 to Dr. Thomas J. 

Towberman, Commissioner, Virginia Employment Commission . . . ." 

 (Emphasis in original). The Commission concedes that the 

Commissioner received these copies of the petition within the 

statutorily prescribed time period. On August 13, William D. 

Hester, Sr., who was an authorized process server, personally 

delivered two copies of Porter-Blaine's petition to the 

Commission. On October 3, the Commission moved to dismiss 

Porter-Blaine's petition for judicial review on the ground that 

Porter-Blaine had failed to comply with the "service" requirement 

of Code § 60.2-500(B)(1). The circuit court overruled the 

Commission's motion. 

 The circuit court then reversed the decision of the special 

examiner. It first concluded that "all of the Commission's 

findings of fact are supported by the record." However, it then 

held that the special examiner's legal analysis was erroneous. 
 4 

 

The circuit court concluded that the evidence offered by 

Porter-Blaine was sufficient as a matter of law to prove that "it 

[did] not control the installers in their performance of their 

work" and that the drywall installers were engaged in 

independently established businesses. 

 II. 

"SERVICE" UNDER CODE § 60.2-500(B)(1) 

 The Commission first contends the circuit court erred when 

it refused to dismiss Porter-Blaine's petition for judicial 

review due to insufficient service. It argues that 

Porter-Blaine's mailing of two copies of its petition to the 

Commissioner, although timely, was not sufficient to effect 

"service" under Code § 60.2-500(B)(1). It also argues that, 

although it was eventually served with two copies of the petition 

by a statutorily authorized process server, this personal service 

was untimely because it was effected more than two months after 

Porter-Blaine filed its petition with the circuit court. Because 

two copies of Porter-Blaine's petition reached the Commissioner 

within the time prescribed by law, we conclude that the circuit 

court did not err when it denied the Commission's motion to 

dismiss for insufficient service. 

 Under Code § 60.2-500(B)(1), an employer may seek judicial 

review of a determination by the Commission regarding the 

employer's tax liability for particular services.1

 Because the 

 1Code § 60.2-500(B)(1) states in relevant part: 
 5 

proceedings for judicial review of the Commission's decisions are 

governed by statute, the mandatory requirements for perfecting a 

judicial review must be met in order to confer jurisdiction upon 

the circuit court. See 73A C.J.S. Public Administrative Law and 

Procedure § 208 (1983); cf. Mayo v. Dept. of Commerce of the 

Commonwealth, 4 Va. App. 520, 522-23, 358 S.E.2d 759, 761 (1987). 

 Regarding the requirement for service of an employer's 

petition upon the Commissioner, Code § 60.2-500(B)(1) does not 

prescribe any particular method of delivery. Instead, the 

statute merely states that "[s]ervice of two copies of such 

petition upon the Commissioner shall be deemed completed 

service . . . ." Code § 60.2-500(B)(1). Moreover, the language 

of the statute regarding the service requirement is ambiguous. 

That statute refers only to "service," a term that is capable of 

 

 Judicial review of [the Commission's 

decisions regarding the tax liability of an 

employer] may be initiated within thirty days 

after mailing notice of such findings and 

determination to the employing unit or, in 

the absence of mailing, within thirty days 

after delivering such notice and 

determination, in the Circuit Court of the 

City of Richmond. Such judicial review shall 

be commenced by the filing of a petition, 

which need not be verified but which shall 

state the grounds upon which a review is 

sought. Service of two copies of such 

petition upon the Commissioner shall be 

deemed completed service and such petition 

shall be filed with the clerk of the court 

within five days after service thereof. 

(Emphasis added). 
 6 

being reasonably understood as permitting various modes of 

delivery. See Black's Law Dictionary 1368-69 (6th ed. 1990) 

(stating that, in the procedural context, "service" can refer to 

personal service, substituted service, service by publication, or 

service by mail). 

 Although Code § 60.2-500(B)(1) does not prescribe the 

permissible methods for serving petitions for judicial review 

upon the Commissioner, Code § 8.01-287 does. Code § 8.01-287 

states that "[u]pon commencement of an action, process shall be 

served in the manner set forth in [Chapter 8 of Title 8.01 of the 

Code] and by the Rules of the Supreme Court." (Emphasis added). 

 The General Assembly defined "action" when used in Title 8.01 to 

"include all civil proceedings whether at law, in equity, or 

statutory in nature and whether in circuit courts or district 

courts." Code § 8.01-2 (emphasis added). Petitions for judicial 

review under Code § 60.2-500(B) are statutory creations and, as 

such, they are included among the "actions" covered by Code 

§ 8.01-287. Thus, the "service" of a petition for judicial 

review under Code § 60.2-500(B)(1) must comply with the 

requirements of Chapter 8 of Title 8.01 of the Code and Rule 2A 

of the Rules of the Supreme Court. 

 Although Chapter 8 of Title 8.01 imposes restrictions upon 

how personal service of civil proceedings may be validly 

effected, the Chapter also contains a "curing statute." Garritty 

v. Virginia Dept. of Soc. Services, 11 Va. App. 39, 42 n.2, 396 
 7 

S.E.2d 150, 151 n.2 (1990) (citing Code § 8.01-288). Code 

§ 8.01-288 states: 

 [e]xcept for process commencing actions for 

divorce or annulment of marriage or other 

actions wherein service of process is 

specifically prescribed by statute, process 

which has reached the person to whom it is 

directed within the time prescribed by law, 

if any, shall be sufficient although not 

served or accepted as provided in this 

chapter. 

(Emphasis added). Code § 8.01-288 applies to the service of 

petitions for judicial review under Code § 60.2-500(B)(1) 

because, as previously discussed, Code § 60.2-500(B)(1) does not 

"specifically prescribe" a particular method of service. 

 Applying these principles to this case, we hold that the 

circuit court did not err when it denied the Commission's motion 

to dismiss Porter-Blaine's petition for judicial review due to 

insufficient service. Although Porter-Blaine's service of its 

petition upon the Commissioner by overnight mail failed to comply 

with the requirements for personal service set forth in Chapter 8 

of Title 8.01, the Commission conceded in its brief that the 

Commissioner actually received the two copies of the petition "by 

mail within the time limits prescribed by law." Thus, because 

the two copies of Porter-Blaine's petition reached the 

Commissioner in a timely fashion, its service of the petition was 

"sufficient" under Code § 8.01-288.2

 

 2Because we hold that Porter-Blaine effected sufficient 

service of its petition upon the Commissioner in June 1996, we 

need not address whether the personal service of the petition by 
 8 

 III. 

"EMPLOYMENT" UNDER CODE § 60.2-212 

 The Commission contends the circuit court also erred when it 

concluded that the work performed by the drywall installers for 

Porter-Blaine was not "employment" under Code § 60.2-212(C). We 

agree. 

 A. 

 Code § 60.2-212(C) delineates the services that are 

considered "employment" for the purpose of calculating an 

employer's tax liability under the Act. Code § 60.2-212(C) 

states that: 

 Services performed by an individual for 

remuneration shall be deemed to be employment 

subject to this title unless: 

 1. Such individual has been and will 

continue to be free from control or direction 

over the performance of such services, both 

under his contract of service and in fact; 

and 

 2. Such service is either outside the usual 

course of the business for which such service 

is performed, or such service is performed 

outside of all the places of business of the 

enterprise for which service is performed; or 

such individual, in the performance of such 

service, is engaged in an independently 

established trade, occupation, profession or 

business. 

Service that satisfies both Code § 60.2-212(C)(1) and (C)(2) does 

not constitute "employment" under the Act, and employers are not 

 

an authorized process server more than two months after it was 

filed in the circuit court was "untimely." 
 9 

required to include the remuneration paid for such service as 

"wages payable for employment" when calculating their tax 

liability to the Unemployment Compensation Fund. 

 In a proceeding to determine whether particular service 

performed by an individual is "employment" for tax purposes under 

the Act, the burden is initially on the Commission to prove that 

service was performed for remuneration. See Virginia Employment 

Comm'n v. Thomas Regional Directory, Inc., 13 Va. App. 610, 612, 

414 S.E.2d 412, 414 (1992). Once the Commission satisfies this 

burden, the burden shifts to the alleged employer to prove that 

the service falls outside the statutory definition of employment. 

See id.; Life & Casualty Ins. Co. of Tennessee v. Unemployment 

Compensation Comm'n, 178 Va. 48, 57, 16 S.E.2d 357, 361 (1941). 

The alleged employer must "establish that it meets both the 

criteria of subsections (C)(1) and one of the three exceptions of 

subsection (C)(2)." Thomas Regional Directory, Inc., 13 Va. App. 

at 612, 414 S.E.2d at 414. If the employer fails to meet this 

burden of proof, then "an 'employment' relationship exists." Id.

at 612, 414 S.E.2d at 414-15. 

 On appeal, the Commission's findings of fact are conclusive 

"if supported by the evidence and in the absence of fraud." Code 

§ 60.2-500(B)(1). In addition, we view the evidence in the light 

most favorable to the findings made by the Commission. See

Virginia Employment Comm'n v. Peninsula Emergency Physicians, 

Inc., 4 Va. App. 621, 626, 359 S.E.2d 552, 554 (1987). Unless 
 10 

the Commission's factual findings are erroneous, our jurisdiction 

is confined to questions of law. Code § 60.2-500(B)(1). 

 In considering whether Code § 60.2-212 was correctly applied 

in a particular case, we are guided by several well established 

tenets of our jurisprudence under the Act. First, because the 

Act is a public welfare measure intended "to assure a measure of 

security against the hazard of unemployment in our economic 

life," it is liberally construed. Unemployment Compensation 

Comm'n v. Collins, 182 Va. 426, 438, 29 S.E.2d 388, 393 (1944). 

In accordance with this rule of construction, employment is found 

to exist in "borderline cases," id., and "[e]xemptions in the Act 

should be strictly construed against the alleged employer." 

Virginia Employment Comm'n v. A.I.M. Corp., 225 Va. 338, 346, 302 

S.E.2d 534, 539 (1983). Second, the statutory definition of 

employment under the Act is "broader and more inclusive than in 

the common-law context of master and servant." Id. (citing 

Life & Casualty Co., 178 Va. at 57, 16 S.E.2d at 361). Finally, 

whether a particular relationship constituted employment is 

determined more from the actual practice of the parties in their 

day-to-day interactions than by any formal understanding between 

them. Collins, 182 Va. at 434, 29 S.E.2d at 391. "[T]he 

individual's status in relation to the alleged employer is to be 

determined from all the facts and circumstances adduced by the 

evidence, including the provisions of any written agreement." 

A.I.M. Corp., 225 Va. at 347, 302 S.E.2d at 539. 
 11 

 B. 

 Turning to the facts of this case, we hold that the circuit 

court erred when it concluded that the evidence offered by 

Porter-Blaine was sufficient as a matter of law to prove that the 

service performed by the drywall installers fell outside the 

statutory definition of "employment." Specifically, 

Porter-Blaine's evidence did not prove that the work performed by 

the drywall installers was free from its control or direction. 

See Code § 60.2-212(C)(1). 

 In determining whether an alleged employer has proven that 

an alleged employee is "free from control or direction" under 

Code § 60.2-212(C)(1), we consider whether the alleged employer 

had either "actual" or "potential" power of control over the 

performance of the services. A.I.M. Corp., 225 Va. at 347, 302 

S.E.2d at 539-40. Under the statute, an alleged employer had the 

"right of control" and an alleged employee was not "free" from 

control if the evidence regarding the parties' contract or their 

daily interactions indicates that the alleged employer had both

(1) the power to specify the result to be accomplished and (2) 

power "over the performance" of the work. See id. at 347, 302 

S.E.2d at 540 (quoting former version of Code § 60.2-212(C)(1)); 

see also Brothers Constr. Co. v. Virginia Employment Comm'n, 26 

Va. App. 286, 295, 494 S.E.2d 478, 483 (1998). Because the 

result to be accomplished is specified in most contracts, the 

power over how the work is performed is frequently the 
 12 

dispositive element. 

 If the party for whom the work is to be done 

has the power to direct the means and methods 

by which the other does the work, an 

employer-employee relationship exists; if the 

latter is free to adopt such means and 

methods as he chooses to accomplish the 

result, he is not an employee but an 

independent contractor. 

A.I.M. Corp., 225 Va. at 547, 302 S.E.2d at 540 (citing Richmond 

Newspapers, Inc. v. Gill, 224 Va. 92, 93, 294 S.E.2d 840, 843 

(1982)). An alleged employee is not "free from control or 

direction over the performance of such services" if the record 

indicates that the alleged employer may instruct the alleged 

employee regarding the means and methods chosen to accomplish the 

result and such instructions "have to be obeyed." Id. at 547, 

302 S.E.2d at 540 (citing Texas Co. v. Zeigler, 177 Va. 557, 565, 

14 S.E.2d 704, 707 (1941)). Similarly, if the alleged employer 

had the power to discharge the alleged employee from its service 

because of disobedience, then the alleged employer had the legal 

right of control and the service is "employment" under the 

statute. See Zeigler, 177 Va. at 569, 14 S.E.2d at 709 (citation 

omitted). 

 The evidence offered by Porter-Blaine was insufficient as a 

matter of law to prove that it was completely without power to 

designate the manner in which the drywall installers performed 

their work. Although Samuel L. Porter, the president of 

Porter-Blaine, testified that Porter-Blaine had no "right to 

direct the manner or the [means] in which the [drywall installer] 
 13 

performs his services," the evidence in the record regarding the 

day-to-day interactions between Porter-Blaine and the drywall 

installers proved otherwise. The Commission expressly found that 

Porter-Blaine possessed the right to terminate the services of 

drywall installers "at will," and the evidence in the record, 

when viewed in the light most favorable to the Commission, is 

sufficient to support this finding. Porter testified that 

Porter-Blaine told at least one drywall installer that "he didn't 

. . . need [to] finish" a particular project because he "wasn't 

doing a good job." Because, in practice, Porter-Blaine had the 

potential right to discharge installers for disobedience with the 

company's standards while work was in progress, it legally had 

the "right to control" the performance of the drywall installers' 

work. See Zeigler, 177 Va. at 569, 14 S.E.2d at 709. 

 On the issue of control, this case is virtually 

indistinguishable from Brothers Constr. Co., a case decided after 

the circuit court reviewed the Commission's decision in this 

case. Like the alleged employer in Brothers Constr. Co., 

Porter-Blaine had the power to terminate the drywall installers 

at will, dictated the materials they used, and retained authority 

after the job was finished to scrutinize the quality of the work 

and require improvements. See Brothers Constr. Co., 26 Va. App. 

at 296, 291, 494 S.E.2d at 483, 481 (applying Code § 60.2-212(C) 

to arrangements between a company who obtained contracts to 

install siding on buildings and "siding installers" who performed 
 14 

the actual installation). The dispositive element in both of 

these cases is the potential power to terminate the installers 

prior to the completion of the work that was the subject of the 

parties' contract, which is a mechanism that has the effect of 

regulating the performance of the installers' work. As the 

Supreme Court stated in Zeigler, "'[the] power of discharge made 

obligatory any instructions given, for it gave to [the employer] 

the power to require obedience to those instructions and insured 

their being carried out.'" See Zeigler, 177 Va. at 565, 14 

S.E.2d at 707 (citations omitted). 

 Because Porter-Blaine failed to prove as a matter of law 

that the drywall installers were "free from [its] control or 

direction," the service performed by these installers was within 

the Act's definition of employment, and Porter-Blaine was 

required to pay taxes on the remuneration it paid to them. For 

this reason, we need not consider whether Porter-Blaine proved 

that these installers were independently established businesses 

under Code § 60.2-212(C)(2). 

 For the foregoing reasons, we reverse the order of the 

circuit court reversing the Commission's decision and remand for 

further proceedings consistent with this opinion. 

 Reversed and remanded.