Opinion
No. CV 03-0521915S
December 28, 2004
MEMORANDUM OF DECISION ON MOTION TO DISMISS
I. FACTS
On July 1, 2003, the plaintiff, Angelina Roldan, filed a five-count complaint against her former employer, the defendant, Avanti Screw, Inc. (Avanti) and Randall Mola for alleged discriminatory and retaliatory behavior. Count one alleges discrimination in violation of General Statutes §§ 46a-58a, 46a-60(a)(1)(8); count two, retaliation in violation of General Statutes § 46a-60(a)(1)(4); count three claims a hostile work environment, and counts four and five assert claims of intentional and negligent infliction of emotional distress, respectively.
On August 22, 2003, the defendants filed a motion to dismiss the first, second and third counts of the plaintiff's complaint on the ground that this court lacks subject matter jurisdiction over these counts because the plaintiff failed to commence this action within ninety days of her receipt of a release of jurisdiction from the Connecticut commission on human rights and opportunities (CHRO), as mandated by General Statutes § 46a-101(e). On September 11, 2003, the plaintiff filed an objection to the defendants' motion to dismiss accompanied by the affidavit of State Marshal Joseph Antinerella, who avers that the writ in this matter came into his hands on June 16, 2003. State Marshal Michael Pane's return recites that the defendants were served on June 25, 2003 and his January 21, 2004 affidavit indicates he received the papers from Marshal Antinerella's office on June 23, 2003.
lnitially, Mola also moved to dismiss these three counts on the ground that "he was not a named Respondent in the action commenced by the Plaintiff before [CHRO] and thus, the Plaintiff has failed to exhaust her administrative remedies." The parties, however, later reached an agreement that the plaintiff would amend her complaint "to eliminate the Defendants' argument that the claims against Mr. Mola as an individual should be dimissed." Defendants' Supplemental Memorandum, dated September 14, 2004.
General Statutes § 46a-101 provides in relevant part: "(e) Any action [in the superior court] brought by the complainant [before the CHRO] in accordance with Section 46a-100 shall be brought within ninety days of the receipt of the release from the commission.
II. DISCUSSION A. CT Page 19606
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn 46, 51, 794 A.2d 498 (2002). "A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004).
The defendants argue that as plaintiff received the release from the CHRO on March 25, 2003, she was required to serve the complaint in the present action no later than June 23, 2003. Furthermore, the defendants argue that the savings statute, General Statutes § 52-593a, cannot preserve this action because Pane failed to comply with § 52-593a(b) which states that "[t]he state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section." The defendants further contend that the plaintiff should not be allowed to supplement Pane's original return of record with his affidavit attesting to the relevant information required by § 52-593a(b).
The defendant has submitted a copy of the certified mail return receipt of the release sent to the plaintiff by the CHRO in support of this argument.
General Statutes § 52-593a states:
(a) Except in the case of an appeal from an administrative agency governed by Section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within fifteen days of the delivery.
(b) In any such case the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section.
The plaintiff maintains that her action is saved by § 52-593 based upon the affidavits of both state marshals involved with this case. Antinerella's affidavit states that he received the writ in-hand on June 16, 2003; yet, a portion of his deposition, submitted by the defendants, states that he did not, in fact, have personal knowledge of the statement in his affidavit that the writ came into his hands on June 16, 2003. The plaintiff submitted the affidavits of two employees of her attorney who state that they are responsible for arranging the pick-up of writs to be served as well as compiling office records of such arrangements and that Antinerella or someone acting on his behalf picked up the summons in the present case on June 16, 2003. Pane's affidavit states that he received the writ from Antinerella's office on June 23, 2003 and his return indicates that he served the papers on June 25, 2003. As noted, the plaintiff received the release from CHRO on March 25, 2003 and, pursuant to § 46a-101(e), the plaintiff had to file her complaint within ninety days of the release or by June 23, 2003. The plaintiff argues, however, that, as the writ and summons were not only received by Marshal Antinerella on June 16 but transferred to Marshal Pane on June 23, 2003, and served within fifteen days of either date, the right of action was not lost. This court agrees.
B.
Various courts have reached different conclusions regarding compliance with § 52-593a(b). Some courts have required a party to strictly comply with subsection (b) to save an action. See Cazimovski v. Retro Clubs, Inc., Superior Court, judicial district of Waterbury, Docket No. 130900 (May 28, 1996, Pellegrino, J.); Renz Construction Corp. v. Kirschner, Superior Court, judicial district of Bridgeport, Docket No. 0329403 (July 15, 1996, Moran, J.) ( 17 Conn. L. Rptr. 205).
Other courts, however, have held that strict compliance is not necessary for a party to avail themselves of the saving statute; see Allen v. Chelednik, Superior Court, judicial district of Danbury, Docket No. 321475 (August 16, 1996, Moraghan, J.) ( 17 Conn. L. Rptr. 427); Viderman v. Pastore, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 0149646 (April 12, 1996, Ryan, J.) ( 16 Conn. L. Rptr. 543). Such courts hold that the law should not be applied "in such a hypertechnical manner so as to elevate form over substance." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004); River Bend Associates Inc. v. Zoning Commission, 271 Conn. 1, 38, 856 A.2d 973 (2004). Rather, these courts believe that the court's discretion should be exercised "in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Citations omitted, internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2000). "The design of our rules of practice is for the Superior Court to facilitate business and to advance justice. Practice Book § 1-8. The rules are to be interpreted liberally when a strict adherence to them would work surprise or injustice. Practice Book § 1-8." Pavone v. West, 82 Conn.App. 623, 627 (2004). "The termination of proceedings without a determination of the merits of the controversy is not favored, especially where that determination can be brought about consistent with the necessary rules of procedures . . . Thus, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of [a matter]." (Citation omitted, internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 307, 763 A.2d 1055 (2001).
The defendant argues that No. 03-154 of the 2003 Public Acts, reestablishing the plain meaning rule for statutory interpretation, "effectively legislatively overrules" those trial court decisions that have broadly interpreted § 52-593 a to permit a plaintiff to supplement a marshal's return with an affidavit or other evidence to demonstrate compliance with the directive of subsection (b). The defendants argue that these cases "precede the legislative enactment reminding courts that the language of the statute itself should be examined to ascertain the intent of the statute." (Defendants' Supplemental Reply Memorandum, p. 6).
"Statutory construction is a question of law . . ." State v. Murray, 254 Conn. 472, 487, 757 A2d. 578 (2000). "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." Id., 489.
The facts in Brown v. Brookville Transport Ltd., Superior Court, judicial district of New Haven, Docket No. 392820 (January 4, 2001, Blue, J.) (28 Court. L. Rptr. 662) are similar to the facts of the present case. In Brown, the sheriff's return stated the date and manner of service but did not state the date of delivery of the process, an omission that the plaintiff belatedly rectified by filing affidavits supplying the missing information. Recognizing that "the belated affidavits . . . do not comport with the literal requirements of § 52-593a(b) that the officer making the service endorse the date of delivery on his return," the court noted that "the question that now arises is whether a technical noncompliance of this description is fatal." Id., 664.
Applying the test set forth in Murray, the court in Brown noted that "[u]nder this test, the requirement of § 52-193a(b) that the officer making the service endorse the date of delivery on his return is plainly directory. The requirement is not the essence of the thing to be accomplished. The thing to be accomplished is the accurate determination of the date of delivery. The requirement in question relates to a matter of convenience. The provision is designed to secure order, system and dispatch in the proceedings. It is also a requirement stated in affirmative terms unaccompanied by negative words. For these reasons, the requirement that the date of delivery be endorsed upon the return is directory rather than mandatory. Neither the defendant nor the administration of justice is harmed in any way by the establishment of the date of delivery by means of subsequent affidavits. Under these circumstances, Brown may appropriately invoke the protection of § 52-593a." Id.
This court adopts Judge Blue's reasoning and for the reasons stated above, this court denies the defendants' motion. As the plaintiff has substantially complied with § 52-593a, the court has subject matter jurisdiction over this matter.
Berger, J.