text:
    New England Savings Bank v. LWJ Corporation et al.
    (11180)
    Foti, Lavery and Landau, Js.
    Argued October 28
    decision released November 17, 1992

      Paul R. Kraus, for the appellants (named defendant et al.).

      Christine M. Gonillo, for the appellee (named plaintiff).

      Gale S. Kosto, for the appellee (plaintiff Federal Deposit Insurance Corporation).
   Per Curiam.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Essex Savings Bank v. Martin Frimberger et al.
    (11091)
    O’Connell, Foti and Cretella, Js.
    Argued September 28
    decision released November 17, 1992

      John T. O'Reilly, pro se, the appellant (defendant).

      John S. Bennet, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    People’s Bank v. Daniel Portanova et al.
    (11319)
    O’Connell, Freedman and Schaller, Js.
    Argued November 2
    decision released November 24, 1992

      Valerie A. Finney, for the appellants (defendant Ian P. Green et al.).

      Edward P. McCreery III, with whom, on the brief, was David Medina, for the appellee (substitute plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Connecticut National Bank v. J. Scott Broder et al.
    (11287)
    La very, Heiman and Schaller, Js.
    Argued November 3
    decision released November 24, 1992

      Matthew B. Woods, for the appellant (named defendant).

      William Vishno, with whom, on the brief, was Sean O. LeBas, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded with direction to set new law days.


text:
    First Trust National Association v. Andrew Daruka et al.
    (11006)
    Lavery, Freedman and Schaller, Js.
    Argued November 4
    decision released November 24, 1992

      Noel R. Newman, for the appellant (defendant Ann Daruka).

      Stephen R. Griffin, for the appellee (plaintiff).
   Per Curiam.

We have carefully reviewed the records and briefs in this matter and after having heard oral argument we are of the opinion that the trial court’s action striking both the special defense and the amended special defense filed by the defendant Ann Daruka was proper.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    Romaine Scaffone v. Orlando G. Annulli and Sons, Inc., et al.
    (11116)
    Lavery, Heiman and Schaller, Js.
    Argued November 3
    decision released November 24, 1992

      F. Woodward Lewis, Jr., for the appellant (plaintiff).

      David L. Grussak, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    John Salafia et al. v. Salvatore Salafia et al.
    (10785)
    Daly, Foti and Heiman, Js.
    Submitted on briefs October 30
    decision released November 24, 1992

      Stephen T. Gionfriddo filed a brief for the appellants (plaintiffs).

      John L. Boccalatte filed a brief for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Hospitality Associates v. S.I.C.O. Portable Dance Floor Company
    (11101)
    Foti, Landau and Freedman, Js.
    Argued November 3
    decision released November 24, 1992

      Thomas E. Stevens, for the appellant (plaintiff).

      Donna R. Zito, for the appellee (defendant).
   Per Curiam.

This matter is controlled by Protter v. Brown Thompson & Co., 25 Conn. App. 360, 593 A.2d 524, cert. granted, 220 Conn. 910, 597 A.2d 335 (1991), appeal withdrawn (1992).

The judgment is affirmed.


text:
    Norman Gavin v. Abacus Transfer and Storage Corporation
    (10915)
    O’Connell, Landau and Schaller, Js.
    Argued October 29
    decision released November 24, 1992

      Barbara E. Crowley, for the appellant (defendant).

      Laura N. Zullo, with whom, on the brief, was James F. McCann, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    New Haven Savings Bank v. Edward F. Allen
    (10857)
    Daly, Foti and Heiman, Js.
    Submitted on briefs October 30
    decision released November 24, 1992

      Edward F. Allen, pro se, the appellant (defendant), filed a brief.

      William J. Sarris filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Alicia M. Cavanagh v. Lawrence Cavanagh, Executor (Estate of Alicia L. Cavanagh), et al.
    (9856)
    Daly, Foti and Schaller, Js.
    Argued November 5
    decision released December 1, 1992

      Joseph P. Secola filed a brief for the appellant (plaintiff).

      David D. Legere, with whom, on the brief, were Shelley R. Halber, Robert P. Dolian and William H. Narwold, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Rose Ella Monahan v. John J. Loeper
    (10719)
    Daly, Foti and Heiman, Js.
    Argued November 5
    decision released December 1, 1992

      Charles M. Tighe, for the appellant (defendant).

      Adam J. Olshan, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Patricia Anton v. Leonard Rich et al.
    (10077)
    Daly, Foti and Schaller, Js.
    Argued November 5
    decision released December 1, 1992

      Laurence V. Parnoff, with whom, on the brief, was Kathryn L. Braun, for the appellant (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Roger D. Cawthra
    (10596)
    Dupont, C. J., Daly and Foti, Js.
    Argued December 2
    decision released December 22, 1992

      Helena P. Walton, with whom were William H. Narwold and William H. Bright, Jr., for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Joan Alexander, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The state concedes and we agree that the instructions of the trial court constitute reversible error.

The judgment is reversed and the case is remanded for a new trial.


text:
    Claire Friedlander v. Henry Friedlander
    (10789)
    Dupont, C. J., Daly and Foti, Js.
    Argued December 2
    decision released December 22, 1992

      Henry Friedlander, pro se, the appellant (defendant).

      Saul Kwartin, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Kathy Weydig et al. v. Andrew La Bella et al.
    (10586)
    Foti, Heiman and Freedman, Js.
    Argued December 1
    decision released December 22, 1992

      Cheryl L. Hoppenstein, pro se, the appellant (defendant), filed a brief.

      Valerie Boylan, with whom was Frank A. Johnson, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Susan L. Wilson v. Robert J. Overton
    (10939)
    O’Connell, Lavery and Schaller, Js.
    Argued December 2
    decision released December 22, 1992

      Barbara J. Hampton, for the appellant (plaintiff).

      Robert P. Hanahan, with whom, on the brief, was Brian A. Barnes, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Virginia Birdsall et al. v. Fernando Saucier et al.
    (11288)
    Lavery, Freedman and Schaller, Js.
    Argued December 4
    decision released December 22, 1992

      Timothy Brignole, with whom, on the brief, was Michael E. Grossman, for the appellants (plaintiffs).

      James P. Connolly, with whom, on the brief, was Suzanne M. Gordon, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Josephine Volpe v. Carmine Volpe
    (10929)
    O’Connell, Foti and Heiman, Js.
    Argued December 7
    decision released December 29, 1992

      Helen C. Brum, with whom, on the brief, was Paul J. Pacifico, for the appellant (plaintiff).

      Joy Kony Peshkin, with whom, on the brief, was Mitchell A. Dinkin, law student intern, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Lewis A. Lizotte v. Rick C. Welker et al.
    (11244)
    Daly, O’Connell and Foti, Js.
    Argued December 7
    decision released December 29, 1992

      James W. Sherman, for the appellant (plaintiff).

      Stuart G. Blackburn, with whom was Martin B. Margulies, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Vito DiLustro v. John S. Horvat, Sr., et al.
    (10961)
    Daly, Lavery and Schaller, Js.
    Argued December 3
    decision released December 29, 1992

      Laurence P. Nadel, for the appellant (plaintiff).

      Michael P. Foley, Jr., for the appellee (named defendant).

      Michael R. Caporale, Jr., for the appellee (defendant Harbor National Bank).
   Per Curiam.

The judgment is affirmed.


text:
    James Packard v. Department of Motor Vehicles
    (10681)
    Landau, Heiman and Schaller, Js.
    Argued December 4
    decision released December 29, 1992

      Raymond T. Trebisacci, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Fleet Bank of Connecticut v. Allan J. Breed et al.
    (10873)
    E. Y. O’Connell, Landau and Heiman, Js.
    Argued December 4
    decision released December 29, 1992

      Richard P. Weinstein, for the appellants (defendants).

      Anne R. Hoyt, with whom, on the brief, was Claudia M. Sklar, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Myrna LaBow v. Ronald LaBow
    (10887)
    Daly, Heiman and Schaller, Js.
    Argued December 9, 1992
    decision released January 5, 1993

      Myrna LaBow, pro se, the appellant (plaintiff).

      Alexander H. Schwartz, for the appellee (defendant Robert Rubin).
   Per Curiam.

The judgment is affirmed.


text:
    Joseph P. Purcell v. Orvel Black et al.
    (10874)
    Dupont, C. J., Heiman and Schaller, Js.
    Argued December 9, 1992
    decision released January 5, 1993

      Ridgely W. Brown, with whom, on the brief, was Heather M. Brown, for the appellant (plaintiff).

      Dion W. Moore, for the appellee (named defendant).

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Daniel M. McCabe, corporation counsel, for the appellee (defendant city of Stamford et al.).
   Per Curiam.

The judgment is affirmed.


text:
    Kathleen B. Borkowski v. John J. Borkowski
    (10882)
    O’Connell, Foti and Freedman, Js.
    Argued December 9, 1992
    decision released January 5, 1993

      Alexandra Davis, with whom was Wesley W. Horton, for the appellant (defendant).

      Averum J. Sprecher, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Linda Palermo v. Bridgeport Hospital et al.
    (10385)
    Foti, Lavery and Freedman, Js.
    Argued December 8, 1992
    decision released January 5, 1993

      Linda Palermo, pro se, the appellant (plaintiff).

      Thomas J. Byrne, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Old Stone Bank v. Barbara Ann Murray et al.
    (10886)
    Foti, Lavery and Freedman, Js.
    Argued December 8, 1992
    decision released January 5, 1993

      Barbara A. Murray, pro se, the appellant (named defendant).

      William K. Eisenman, with whom, on the brief, was John P. Fahey, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


author: Borden, J.

text:
    Town of Manchester v. Manchester Police Union, Local 1495, Council 15, AFSCME, et al.
    (2449)
    Hull, Borden and Daly, Js.
    Argued October 10
    decision released December 4, 1984

      Edward T. Lynch, Jr., for the appellants (named defendant and intervening defendant).

      Barry W. Botticello, for the appellees (plaintiff and third party defendants).
   Borden, J.

This appeal involves the issue of whether, under the town of Manchester code, a police officer is entitled to take early retirement at age forty-four with seventeen years of service. The trial court held in effect that he is not so entitled. We also hold that he is not so entitled, but for reasons other than those used by the trial court.

In 1980, Raymond Mazzone, who was age forty-four and had served as a Manchester police officer for seventeen years, filed a request with the town pension board for early retirement and immediate payment of pension benefits based on § 13-41 (b) of the town code and article XV.C.l. of the town personnel rules. He had been employed as a police officer since January 6,1963. He claimed that his normal retirement date, for purposes of calculating early retirement, was January 6, 1988, twenty-five years from his initial employment, and that the early retirement provisions of the code applicable to him permitted him to take early retirement after at least ten years of service and within ten years of his normal retirement date. The board denied his request, claiming that his normal retirement date for purposes of calculating early retirement was age sixty, and that the code contained no provision for a police officer to receive pension benefits prior to age fifty with twenty-five years of service.

Manchester Police Union, Local 1495, Council 15, AFSCME, which is the collective bargaining agent for all interested police officers under a collective bargaining agreement with the town, sought to arbitrate the dispute. The town as plaintiff brought this action against the union to enjoin the arbitration. Mazzone intervened as a party defendant. The union abandoned its efforts to have the issue arbitrated, summoned the board and the town treasurer as third party defendants, and asserted a counterclaim against the plaintiff and a cross complaint against the third party defendants. The counterclaim and cross complaint, which mirror each other, sought a declaratory judgment that age fifty is the normal retirement date for police officers, that police officers are eligible for early retirement ten years before that date in accordance with § 13-41 (b) of the code, and that benefit calculations be based on age fifty as the normal retirement date.

The trial court agreed with the plaintiff that the normal retirement date of a police officer is age sixty and that a police officer was eligible for early retirement benefits at age fifty with twenty-five years of service, and rendered a declaratory judgment accordingly. The defendants appeal. We disagree with both the plaintiff and the defendants. We conclude that a police officer’s normal retirement date is the first day of the month following his fiftieth birthday, and that he is eligible for what may be called early retirement benefits on that date, with less than twenty-five years of service, pursuant to § 13-41 (e) (2) of the Manchester code.

Chapter 13 of the code governs pensions and retirement of town employees. Article III of chapter 13, entitled “Supplemental Pension Plan,” contains the critical sections of the town’s pension plan applicable to this case. They are § 13-41 (a), entitled “Normal retirement”;* *** § 13-41 (b), entitled “Early retirement”;

and §§ 13-41 (e) (1) and 13-41 (e) (2), entitled “Retirement for policemen.”

The defendants argue that a police officer’s normal retirement date is age fifty with twenty-five years of service, and that, by virtue of subsection (b) of § 13-41 of the code, he is entitled to take early retirement after ten years of service and within ten years of his normal retirement date. Indeed, their entire position in this ease is premised on the applicability of § 13-41 (b) to police officers; Mazzone specifically made his request for early retirement pursuant to that subsection. The defendants point to evidence of the intent of their negotiators involved in collective bargaining with the town in 1974. That bargaining, which dealt with pensions for police officers, resulted in agreements which were subsequently approved by the town and reflected in amendments to the code. Suffice it to say that we have examined that evidence and find it unpersuasive. We conclude, instead, that § 13-41 (b) does not apply to police officers.

The principles of construction of state statutes apply equally to local ordinances. Duplin v. Shiels, Inc., 165 Conn. 396, 399, 334 A.2d 896 (1973). One of the most basic of those principles is that “[w]here the meaning of [an ordinance] is clear and the language unambiguous, the enactment speaks for itself and leaves no room for construction by the court.” Breen v. Department of Liquor Control, 2 Conn. App. 628, 631, 481 A.2d 755 (1984). The last sentence of subsection (b) of § 13-41, in clear and unambiguous language, the meaning of which is not open to question, provides that “this subsection shall not apply to members eligible for benefits provided by paragraph (e) (1) of this section.” See footnote 6, supra. Paragraph (e) (1) “of this section” is the part of § 13-41 which provides for retirement by police officers. See footnote 7, supra.

It is quite clear, therefore, that, for purposes of the issues raised in this case, retirement of police officers is governed, not by §§ 13-41 (a) and 13-41 (b), which apply to other town employees, but by §§ 13-41 (e) (1) and (2), and, more specifically, that the early retirement provisions of § 13-41 (b) do not apply to police officers. Section 13-41 (e) carves out of the general pension provisions of the code special rules which apply only to police officers. This reading is buttressed by the following introductory language of § 13-41 (e) (1): “Any provisions of this article to the contrary notwithstanding . . . .”

Under § 13-41 (a), a town employee who is not a police officer has a normal retirement date of the first day of the month following his sixty-fifth birthday. See footnote 5, supra. Under § 13-43 (b), if he has thirty years of service he receives an annual pension of fifty percent of his final annual average wage or salary; if he has less than thirty years of service, his annual pension is reduced proportionately. Under § 13-41 (b), he may take early retirement at age fifty-five with ten years of service, at a reduced pension. See footnote 6, supra. Under § 13-41 (c), he may take “deferred retirement” and continue to work beyond age sixty-five, with the approval of the town’s general manager, given on a year to year basis.

Under § 13-41 (e) (1); see footnote 7, supra; a police officer may retire at age fifty with twenty-five years of service; he may continue to work after age fifty-five with the approval of the town’s general manager, given on a year to year basis; and he must retire at age sixty. If he has twenty-five years of service his annual pension is fifty percent of his final average annual wage or salary; if he has more than twenty-five years of service, his pension is increased by two percent of that wage or salary, for each year of service beyond twenty-five to a maximum of sixty-six and two-thirds percent of his final average annual wage or salary.

This analysis leaves for consideration subsection (2) of § 13-41 (e), which provides for a proportionately reduced “monthly pension payable to a policeman or police officer who retires on his normal retirement date with less than twenty-five (25) years of service . . . .” (Emphasis added.) See footnote 7, supra. Although, unlike § 13-41 (b) applicable to other town employees, this paragraph does not use the term “early retirement,” it is this paragraph and its use of the term “normal retirement date” which governs the request for a declaratory judgment in this case.

The trial court concluded, and the plaintiff urges us to conclude, that “normal retirement date” here means age sixty, and that any retirement prior to that point in time is early retirement. We disagree. We hold that a police officer’s “normal retirement date” under § 13-41 (e) (2) means the first day of the month following his fiftieth birthday, and that, under that paragraph, he may retire on that date without regard to his years of service and receive a proportionately reduced pension calculated in accordance with that paragraph.

First, we note that unlike §§ 13-41 (a) and (b), which apply to other town employees but not to police officers, § 13-41 (e) (2) does not define the term “normal retirement date.” We also note that, where the term is defined albeit not with respect to police officers, the definition is cast in terms of the employee’s age, by reference to the first day of the month following a particular birthday and without reference to his years of service. See footnote 5, supra. Thus, it is reasonable to read the term “normal retirement date” as synonymous with the term “normal retirement age.” This reading is consistent with the language of § 13-41 (e) (2), which couples the use of the phrase “his normal retirement date” with a subsequent reference to the length of years of service. It is apparent, therefore, that “normal retirement date” in § 13-41 (e) (2) is used to locate an age of the police officer without reference to his years of service.

Second, where a statute uses a technical term associated with a particular trade or business, that term “should be accorded the meaning which [it] would convey to an informed person in the . . . trade or business.” Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 475, 217 A.2d 698 (1968); General Statutes § 1-1. We have not been pointed to any particular meaning of “normal retirement date” in pension parlance, but the synonymous term, “normal retirement age,” while not having a universally accepted definition, does have a commonly accepted meaning which it would convey to an informed person in the pension field. “The normal retirement age has traditionally been considered to be the earliest age at which eligible participants are permitted to retire with full benefits.” McGill, Fundamentals of Private Pensions, (4th Ed. 1979) p. 113. “Normal retirement age is the lowest age specified in a plan at which the employee has the right to retire without the consent of the employer and receive retirement benefits based on service to date of retirement at the full rate for such service set forth in the plan (i.e., without actuarial or similar reduction because of retirement before some later specified date).” Rev. Rul. 71-446, § 2.08,1971-2 C.B. 187,188, quoted in McGill, supra, 113 n.l. By these definitions, a police officer’s normal retirement age or date, under § 13-41 (e) (1) of the code, is the first day of the month following his fiftieth birthday. See footnote 7, supra.

Third, article XV.C.l. of the town personnel rules, in effect since June 13,1978, provides that “[t]he normal retirement age of Police personnel is fifty.” Thus, the town, at least since 1978, has been construing its own code as setting a normal retirement age of fifty for police officers, and has been holding out that construction to those officers. This is persuasive evidence of the meaning of the term. Breen v. Department of Liquor Control, supra, 634.

There is error, the judgment is set aside and the case is remanded with direction to render a judgment declaring that § 13-41 (b) of the Manchester code does not apply to policemen and officers of the police department, that the normal retirement date, under § 13-41 (e) (2) of the code, for a policeman or officer is the first day of the month following his fiftieth birthday, and that he may retire on that date and receive a pension calculated according to that paragraph.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Because the third party defendants are allied in interest with the plaintiff, our references herein to the plaintiff include them.

       The counterclaim and cross complaint also alleged violations of the collective bargaining agreement and of the defendants’ constitutional rights, and sought injunctive and monetary relief. Since the case was tried and decided in the trial court, however, as a declaratory judgment action, we consider it in that posture. Trivalent Realty Co. v. Westport, 2 Conn. App. 213, 215 n.4, 477 A.2d 140 (1984).

       Although the trial court used the term “normal retirement age” rather than “normal retirement date,” and although the parties differ here on whether those terms have different meanings, it is clear that what the trial court meant was normal retirement date. We conclude, moreover, that the two terms are used synonymously in the Manchester code.

       Section 13-41 (a) reads in pertinent part as follows:
      “(a) NORMAL retirement. Each member of the plan shall normally retire and commence to receive pension payments in accordance with these supplemental pension ordinances on his normal retirement date, which shall be the first day of the month following attainment of the sixty-fifth (65) anniversary of his date of birth .... The member shall be required to make written application for retirement to the pension board at least thirty (30) days prior to his normal retirement date.”

       Section 13-41 (b) reads in pertinent part as follows:
      “(b) early retirement. A member who has completed at least ten (10) years of service with the town may, with the approval of the board of directors, request, by written application to the pension board, that pension payments be commenced to him in a reduced amount prior to his normal retirement date. Pension payments shall, upon receipt by the pension board of such application, be commenced on an early retirement date which shall be the first day of any month specified in the member’s application which is within ten (10) years before the member’s normal retirement date. The monthly amount of early retirement benefit payable to a member retiring on his early retirement date shall be determined by the pension board in the same manner as his normal retirement benefit as outlined in section 13-43 (b), based on his service to his early retirement date, and reduced 0.4167 per cent for each full month by which the date he retires precedes his normal retirement date. The member’s employment shall cease on or prior to the commencement of pension payments, and no further contributions shall be made to the plan with respect to said member. Application for early retirement shall be made at least thirty (30) days before pension payments are to commence to the member and, after the request has been granted, no change in the member’s retirement date may be made without consent of the pension board, 'provided, however, this subsection shall not apply to members eligible for benefits provided by paragraph (e) (1) of this section." (Emphasis added.)

       Sections 13-41 (e) (1) and 13-41 (e) (2) read in pertinent part as follows:
      “(e) retirement by policemen. (1) Any provisions of this article to the contrary notwithstanding, the policemen and officers of the police department may retire and receive pension payments provided they shall have completed at least twenty-five (25) years of service in the police department and have met the age requirement on the appropriate effective dates listed below: . . . (c) Effective July 1,1976 and thereafter, attained age fifty (50).
      “Policemen and officers may retire and receive a pension commencing the first day of the month following the completion of the above requirements. Effective July 1,1975, each policeman and officer will be required to take a physical examination, as determined by the general manager, once he attains his fifty-third (53rd) birthday. Beginning July 1,1976, such physical examination will be required after each policeman’s and officer’s fiftieth (50th) birthday. Once a policeman and officer attains his fifty-fifth (55th) birthday, he must, by written application, request that the general manager extend his period of employment on a year to year basis beyond such policeman’s and officer’s fifty-fifth (55th) birthday, and, if such application is approved by said general manager, said general manager shall notify the pension board, in writing, of such approval; however, each policeman and officer must retire at age sixty (60). . . . The monthly amount of pension payable to a policeman or police officer who retires under this paragraph on and after July 1,1970, with at least twenty-five (25) years of service shall be an amount equal to one-twelfth of fifty (50) per cent of his final average annual wage or salary. If a policeman or police officer shall complete in excess of twenty-five (25) years of service in the police department, he shall be entitled to an additional two (2) per cent of his final average annual wage or salary for each full year and fractions thereof to the nearest completed month of such service in excess of twenty-five (25) years. The maximum pension payable under this plan shall be sixty-six and two-thirds (66-%) per cent of a policeman’s and officer’s final average annual salary.
      “(2) The monthly pension payable to a policeman or police officer who retires on his normal retirement date with less than twenty-five (25) years of service shall be computed as above, and shall be multiplied by a fraction, the numerator of which shall be the number of full years of service and fractions thereof to the nearest completed month completed prior to his normal retirement date, and the denominator of which shall be twenty-five (25).”
      Paragraph (3), not quoted here, defines the term “final average annual wage or salary.”

       The defendant’s argument based on that evidence is without merit for another reason. The argument amounts to a claim that, because those agreements conflicted with § 13-41 (b) of the code, the terms of the agreements approved by the town prevail over the code by virtue of General Statutes § 7-474 (f), which is part of the municipal collective bargaining statutes; General Statutes §§ 7-467 through 7-477. General Statutes § 7-474 (f) provides, in general terms, that in case of conflict between a collective bargaining agreement approved by a town and local enactments, the agreement prevails. There is no showing here, however, that before it approved the agreements the town was apprised of that conflict, as is required by General Statutes § 7-474 (b). See Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 191, 425 A.2d 1247 (1979).


author: Spallone, J.

text:
    James L. Strickland et al. v. Annie M. Vescovi et al.
    (2427)
    Dupont, C.P.J., Spallone and Daly, Js.

      Argued October 10
    decision released December 4, 1984

      Joseph E. Moukawsher, with whom, on the brief, was Elissa T. Wright, for the appellants (plaintiffs).

      Gregory A. Benoit, for the appellee (named defendant).

      Albert E. Goring, Jr., for the appellee (defendant Michael Stern).
   Spallone, J.

This is an appeal by the plaintiffs from the judgment of the trial court granting the defendants’ motions for judgment of dismissal for failure of the plaintiffs to make out a prima facie case.

The trial court could reasonably have found the following facts based upon the evidence presented by the plaintiffs. In 1978, the plaintiffs, James and Dolores Strickland, desired to purchase a two-family house which they could use as an owner-occupied rental unit upon their retirement. Mr. Strickland contacted Stern Realty, a real estate agency owned by the defendant Michael Stern, where Lillian Fedus, a real estate agent employed by that agency, told him about a house in New London which she described as a two-family residence. This information had been supplied to Stern Realty by the owner of the property, the defendant Annie Vescovi. Both the listing agreement and the multiple listing service book characterized the property as a “Type: 2-family.”

The structure appeared from the exterior to be a single unit dwelling. The interior layout, however, was that of a two-family house, with a separate unit on each of the structure’s two floors. There was a single common entrance at the front of the house and no separate exterior entrance leading to the second floor. When Fedus first showed the property to Mr. Strickland, Vescovi and the tenants who occupied the building’s two units were present. At that time, Vescovi and Fedus described the house as a two-family dwelling. At a later showing with Mrs. Strickland present, the plaintiffs discussed with Vescovi and Fedus their specific desire to purchase a two-family home.

Prior to signing the contract of sale, the plaintiffs were careful to apprise the defendants that, in order to finance the purchase, the rental unit would need to generate a certain minimal income. In agreeing to purchase the property for $65,000 with Vescovi taking back a first mortgage at 8V4 percent, the plaintiffs anticipated that the income from the rental unit would cover the resulting monthly mortgage payments of $300. The plaintiffs’ understanding that the house could be used as a two-family dwelling was reinforced by Fedus’ statement at the closing that she might be able to refer some prospective tenants to the plaintiffs.

Soon after the closing, the plaintiffs rented both units of the dwelling. Approximately two months later, a cease and desist order from the city of New London, addressed to Vescovi, was forwarded to them. The order stated that the use of the house as a two-family dwelling was in violation of the city’s housing code. Upon receipt of the document, the plaintiffs stopped using the property as a two-family residence and successfully appealed to the New London tax review board to have the assessment on the dwelling, which had been based on a two-family use, reduced. Subsequently, upon the advice of their attorney, they resumed a two-family use of the property and brought the present action to recover damages for alleged misrepresentation in the sale of the realty.* *

After the plaintiffs rested their case at trial, the defendants moved for a judgment of dismissal pursuant to Practice Book § 302. The trial court granted the motions, and the plaintiffs now appeal. On appeal, the plaintiffs claim that the trial court erred (1) in granting the defendants’ motions for judgment of dismissal when the evidence presented was sufficient to support an inference that the defendants represented to them that the two-family use of the residence was legal, and (2) in its application of the test for determining a motion for judgment of dismissal for failure to make out a prima facie case.

We concur with the trial court’s reasoning that any alleged misrepresentations by the defendants could not be as a result of negligence, fraud or other manner of wilful tort, but if any misrepresentations occurred, they were actionable on the basis of “legal fraud.” Under this theory, an innocent or mistaken representation would allow the plaintiffs to recover. Johnson v. Healy, 176 Conn. 97, 101-102, 405 A.2d 54 (1978).

We disagree, however, with the trial court’s conclusion that the plaintiffs failed to establish a prima facie case and with its consequent granting of the defendants’ motions for judgment of dismissal. “ ‘When such a motion has been granted, the question is whether sufficient facts were proved to make out a prima facie case. Pignatario v. Meyers, 100 Conn. 234, 239-40, 123 A. 263 (1924). To state it another way, a judgment of dismissal is only proper “when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff.” Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 230, 120 A.2d 924 (1956). The evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor. Ace-High Dresses, Inc. v. J.C. Trucking Co., 122 Conn. 578, 579, 191 A. 536 (1937).’ ” (Citations omitted.) Falker v. Samperi, 190 Conn. 412, 418-19, 461 A.2d 681 (1983), quoting Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 547-48, 447 A.2d 406 (1982).

In considering a motion for judgment of dismissal under Practice Book § 302, a trial court is mandated to consider as true the evidence offered by the plaintiff and to draw all favorable and reasonable inferences from such evidence. When ruling on such a motion, the trier’s discretion is limited and the parameters within which it may act are narrowed to the extent that it must consider the plaintiff’s evidence as true and draw all reasonable inferences in the plaintiffs favor. These constraints are removed, of course, when the trial court is passing upon the merits of a case. “Once a case is ultimately presented to the factfinder for final decision, an entirely different analysis is applied. Rather than being required to take as true the evidence offered by the plaintiff, the trier of fact can disbelieve any evidence, even if uncontradicted.” (Citations omitted.) Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983).

The central question in this case is aptly stated in the plaintiffs’ brief as follows: “What would be the logical inference that an ordinary person buying real property and looking for a two-family residence would draw when told by the seller and real estate agents that a house was a two-family dwelling.” They submit that such a buyer would reasonably infer that the two-family use is a permitted or legal use. We agree. The logic toward such an inference is compelling and to infer otherwise would be unreasonable. Taking the plaintiffs’ evidence as true and viewing in their favor all reasonable inferences that can be drawn from that evidence, we hold that the “relatively low standard”; Hinchcliffe v. American Motors Corporation, 184 Conn. 607, 620, 440 A.2d 810 (1981); necessary to withstand the defendants’ § 302 motion was met.

As to the plaintiffs’ second claim on appeal, we agree that the trial court erred in stating that, in ruling on a § 302 motion, it was required to draw a conclusion that a misrepresentation was made. The test was not whether the plaintiffs’ evidence would support a “conclusion” that a misrepresentation occurred. Rather, it was whether their evidence, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in their favor. Minicozzi v. Atlantic Refining Co., supra. A party has the same right to submit a weak case as he has to submit a strong one; Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 548; and the plaintiffs in this appeal were entitled to have the factfinder pass upon the merits of their case. Berchtold v. Maggi, supra, 271.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Lillian Fedus, Margaret Holt (another real estate agent employed by Stern Realty) and the city of New London were also named as defendants. The case was withdrawn as to all three in the trial court.

       After this action was instituted, the plaintiffs appealed the cease and desist order to the zoning board of appeals. The appeal was denied. After receiving a second cease and desist order, the plaintiffs changed the dwelling back to a one-family house.

       Practice Book § 302 provides:
      “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”
      The motion to dismiss for failure to establish a prima facie case under Practice Book § 302 has taken the place of the former motion for nonsuit. Logan v. O’Neill, 187 Conn. 721, 728, 448 A.2d 1306 (1982).


text:
    Elizabeth W. Todd v. Geraldine Malafronte et al.
    (2198)
    Hull, Borden and Spallone, Js.
    Argued October 12
    decision released December 4, 1984

      PaulM. Tymniak, with whom, on the brief, was Vicki D. Henry, for the appellants (defendants).

      Daniel D. Skuret, with whom, on the brief, was Ronald T. Stankye, for the appellee (plaintiff).
   Spallone, J.

The plaintiff, Elizabeth W. Todd, operated a dog kennel business on her property in Beacon Falls. Her home was on the same parcel of land, approximately two hundred feet from the kennel. It was her custom to hire a part-time summer employee to work approximately twenty hours or less per week in the kennel.

In June of 1975, the defendant George Linardos, an insurance agent employed by the defendants Gerald Malafronte and Thomas Keegan, when discussing with the plaintiff her insurance needs, advised her that she did not need to purchase workers’ compensation insurance for her part-time summer employee and sold her other insurance. Prior to the plaintiff’s renewal of that insurance in 1976 and 1977, the defendant Karen Voos, another insurance agent employed by Malafronte and Keegan, also represented to the plaintiff that workers’ compensation insurance was not necessary. In 1977, a part-time summer employee was injured on the plaintiff’s property and filed a workers’ compensation claim. The claim was ultimately settled by stipulation under which the plaintiff paid the employee $2000.

The plaintiff instituted the present suit to recover that amount as well as $3000 in attorney’s fees which she incurred in defending the claim. The complaint alleges that the representations by the defendants that the plaintiff did not need workers’ compensation insurance were inaccurate and false, and that, in reliance on those representations, the plaintiff did not purchase workers’ compensation coverage. Although the complaint sounds in misrepresentation, the case was tried and decided on the theory of negligence. We therefore review this case on the basis on which it was tried and decided. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280, 471 A.2d 651 (1984).

After a jury trial, a general verdict was returned in favor of the plaintiff in the amount of $5318. Thereafter, the trial court denied the defendants’ motion to set aside the verdict. This appeal followed. The defendants claim (1) that the trial court erred in failing to set aside the verdict because neither a standard of care nor a breach of that standard of care were proved by the defendants, (2) that the trial court erred in refusing to set aside the verdict because the plaintiff did not require workers’ compensation coverage, and (3) that the trial court erred in excluding evidence concerning the plaintiff’s recovery under a commercial liability policy for the same loss.

The defendants initially argue that the trial court erred in sustaining the verdict in the absence of expert testimony to establish the existence of a standard of care which applied to them. They contend that, as insurance agents, their conduct must conform to a professional standard. Relying on the fact that insurance agents receive extensive training and must pass a state licensing examination, they argue that questions of professional competence were raised and that expert testimony was necessary to establish the proper standard of care against which to measure their actions.

A conclusion of negligence is ordinarily one of mixed law and fact, involving the determination of the standard of care required and its application to the facts of the particular case. Marley v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296 (1947). “In the ordinary action for negligence the jury can apply, unaided by experts, the standard of care of the reasonably prudent person under the circumstances.” Levett v. Etkind, 158 Conn. 567, 573, 265 A.2d 70 (1969). This standard does not apply to an action where laymen cannot be expected to know the requirements of proper care in the usual case. Id., 573-74.

Insofar as the sale of insurance requires specialized knowledge, we agree that this case differs from the ordinary negligence action since matters within that specialized body of knowledge are crucial to the determination of the issues raised. Our review of the testimony adduced at trial, however, leads us to conclude that the requirements of proper care applicable to insurance agents were adequately established for the guidance of the jury. The transcript reveals that the defendant Linardos testified that it is the responsibility of the insurance agent to make sure of the fact that the potential insured has the proper coverage. This testimony, while sparse, was sufficient to amount to an opinion by one with special knowledge of the sale of insurance on the standard of care to which an insurance agent is held. See Nielson v. D’Angelo, 1 Conn. App. 239, 246, 471 A.2d 965 (1984).

While the requirements of proper care in a case such as this are a matter of specialized knowledge, the determination of the facts concerning the conduct under consideration is, as always, for the jury. See Levett v. Etkind, supra, 575; Snyder v. Pantaleo, 143 Conn. 290, 295, 122 A.2d 21 (1956). Here, the plaintiffs evidence was not so lacking in testimony on the standards applicable to insurance sales as to defeat her recovery. See Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927). Linardos himself provided evidence sufficient to support a verdict. Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982); Console v. Nickou, 156 Conn. 268, 274, 240 A.2d 895 (1968); Slimak v. Foster, supra.

To address the defendants’ next argument that no evidence was presented to show that they breached this standard of care, we must also consider their claim that the plaintiff did not require workers’ compensation coverage. The defendants contend that no coverage was necessary because the plaintiff’s part-time worker was not an employee as that term is defined in the Workers’ Compensation Act. General Statutes § 31-275. That statute provides in part: “(5) ‘Employee’ means any person who has entered into or works under any contract of service or apprenticeship with an employer . . . but said term shall not be construed to include . . . (D) any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week . . . .” The defendants argue that the plaintiffs employee, who worked twenty hours or less per week, came within the exception set forth in subsection (5) (D) of General Statutes § 31-275. We do not agree.

The fact that the plaintiff operated a commercial dog kennel on her property was not in dispute. It was established that, while the business was located on the same property as the plaintiffs home, the business and the dwelling were separated by at least two hundred feet, that the plaintiff purchased homeowners' insurance for the house and a separate policy of liability insurance for the dog kennels, that the part-time employee’s duties consisted of cleaning the kennels, grooming the animals and answering the telephone, and that the part-time employee was paid by checks from the business, rather than by the plaintiff’s personal checks. The defendants furthermore admitted in their answer that the plaintiff hired part-time summer employees to clean the kennels.

“In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .” General Statutes § 1-1 (a). “Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct.” Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980), quoted in Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 135, 479 A.2d 231 (1984). We conclude that the individual whom the plaintiff employed to clean the kennels, groom the animals and answer the telephone had not been engaged to work “in or about a private dwelling” as required by subsection (5) (D) and thus fell within the definition of “employee” set forth in General Statutes § 31-275. The clear mandate of General Statutes § 31-284, which requires that employers secure workers’ compensation for their employees, and Linardos’ testimony that it is the agent’s responsibility to make sure that the potential insured has proper coverage constituted sufficient evidence to show that the defendants breached the standard of care to which they were held. There was no need for a specific expression of opinion that the conduct of the defendants was negligent. See Slimak v. Foster, supra.

The care which an insurance broker must exercise in ensuring that the buyer has proper coverage was described in Ursini v. Goldman, 118 Conn. 554, 173 A. 789 (1934), as the “exercise [of] reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on [the insurance broker’s] part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss. . . . Where he undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed, and he may be held liable for loss properly attributable to his default.” Id., 559. (Citation omitted. Emphasis added.) We believe that this standard applies as well to insurance agents.

“Our review of a trial court’s refusal to set aside a jury verdict is limited. Tf, on the evidence, the jury could reasonably have decided as they did, we will not find error in the trial court’s acceptance of the verdict.’ ” Frankovitch v. Burton, 185 Conn. 14, 15, 440 A.2d 254 (1981). Applying the principle that the evidence must be given the most favorable construction to which it is reasonably entitled in support of the verdict; Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983); we find that the court did not abuse its discretion in sustaining the verdict.

The defendants’ final claim of error is that the court improperly excluded testimony that the plaintiff received payment in connection with the incident under a commercial liability policy covering her business. We see no merit in this attack on the collateral source rule, “which provides that benefits received by a plaintiff from a source wholly collateral to and independent of the tortfeasor will not diminish the damages otherwise recoverable. 22 Am. Jur. 2d, Damages, § 206.” Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 579, 271 A.2d 94 (1970); see also Apuzzo v. Seneco, 178 Conn. 230, 233, 423, A.2d 866 (1979); Healy v. White, 173 Conn. 438, 448, 378 A.2d 540 (1977).

There is no error.

In this opinion the other judges concurred.

       The defendants Malafronte and Keegan comprised a partnership doing business as New Haven County Real Estate and Insurance Company and Fairfield County Real Estate and Insurance Company.
      The defendant Gerald Malafronte was substituted for Geraldine Malafronte. There appears to be no Geraldine Malafronte connected with this case.

       The defendants raised no claim with regard to the instructions to the jury which, at oral argument before this court, they conceded were correct.

       In such case, “[tjhe testimony of an expert may be dispensed with only where there is such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence.” Levett v. Etkind, 158 Conn. 567, 574, 265 A.2d 70 (1969).

       General Statutes § 31-284 provides in pertinent part: “(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”

       General Statutes § 38-69 defines “insurance agent” and “insurance broker” as follows:
      “ ‘Insurance agent’ means a person authorized in writing, by any insurance company authorized to transact business in this state, to solicit, negotiate or effect contracts of insurance or surety, or any member of a copartnership or association or any stockholder, officer or agent of a corporation authorized to solicit, negotiate or effect such contracts, when such copartnership, association or corporation holds a direct agency appointment from an insurance company; it shall not include persons acting as executive officers or traveling salaried employees of an insurance company authorized to transact business in this state; ‘insurance broker’ means any person, partnership, association or corporation who or which, for compensation, acts or aids in any manner in negotiating such contracts, or in placing risks or soliciting or effecting insurance as agent for a person other than himself, and not as an officer, traveling salaried employee or licensed agent of an insurance company.”


text:
    State of Connecticut v. Eleanor Duhan
    (3511)
    Dupont, C.P.J., Hull and Borden, Js.
    Decision released December 4, 1984
   Per Curiam.

The defendant was convicted on one count of disorderly conduct, one count of interfering with a police officer and one count of criminal mischief in the third degree. From the judgment rendered, she appealed to the Appellate Session of the Superior Court. That court set aside the judgment and remanded the matter to the trial court with direction to render a judgment of not guilty on the first count and for a new trial on the remaining two counts. On the granting of certification, the state appealed to the Supreme Court, challenging the Appellate Session’s decision with respect to the first count only.

On August 28, 1984, the Supreme Court held that the Appellate Session was in error when it ordered the entry of a judgment of not guilty on the first count. State v. Duhan, 194 Conn. 347, 481 A.2d 48 (1984). The Supreme Court set aside the judgment of the Appellate Session on that count and remanded the case to this court with direction to remand to the trial court for a new trial on count one.

Pursuant to the Supreme Court’s directive in State v. Duhan, supra, this case is remanded to the Superior Court for a new trial on count one.

       The trial court granted defendant’s motion for judgment of acquittal on a fourth count.

       The Appellate Session’s remand order requiring a new trial on counts two and three was not before the Supreme Court and has, accordingly, not been affected by further proceedings in the Supreme Court and this court.

       Appeals formerly filed in the Appellate Session of the Superior Court have been transferred to the Appellate Court by Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3, which amended General Statutes § 51-197a.


author: Daly, J.

text:
    Paul J. Szilagyi v. Irene H. Szilagyi
    (2408)
    Hull, Borden and Daly, Js.
    Argued October 9
    decision released December 4, 1984

      Murray J. Kessler, for the appellant (plaintiff).

      Robert J. Guendelsberger, for the appellee (defendant).
   Daly, J.

In this appeal from the judgment dissolving the marriage of the parties, the plaintiff asserts an abuse of judicial discretion by the trial court relative to its awards of alimony, real and personal property and attorney’s fees.

The plaintiff instituted this action on February 9, 1981, seeking a dissolution of the parties’ nine year marriage on the basis of irretrievable breakdown. The defendant filed a cross complaint alleging irretrievable breakdown of the marriage on the grounds of adultery and physical abuse. A full hearing on the merits was held before Horn. Robert A. Wall, state trial referee, sitting as the trial court. The court concluded that the marriage of the parties had broken down irretrievably, and entered, inter alia, the following orders: (1) that the plaintiff convey his interest in the marital residence to the defendant; (2) that the defendant recover of the plaintiff a judgment in the sum of $4400 for unpaid alimony pendente lite; (3) that the plaintiff pay to the defendant as alimony the amount of $200 per week; (4) that attorney’s fees in the sum of $1200 be paid to the defendant by the plaintiff; and (5) that certain articles of personalty, awarded to the defendant, be transferred to the plaintiff as the defendant deemed feasible. A motion to open the judgment and reargue was denied on September 1, 1982.

The plaintiff has appealed from said judgment and raised the following issues: (1) whether the court erred in not modifying the alimony pendente lite award; (2) whether the court erred in awarding the plaintiffs interest in the marital residence, permanent alimony and counsel fees to the defendant; and (3) whether the court erred in awarding personal property of the plaintiff to the defendant.

The plaintiff has claimed that the alimony pendente lite order of $200 per week should have been modified on the basis of his reduced earnings and unemployment. “Connecticut unequivocally follows the widely established rule that no modification of alimony or support is to be granted unless there has been a showing of a substantial change in the circumstances of either party.” Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1976); see General Statutes § 46b-86; Practice Book § 464.

The trial court declined to believe the plaintiffs representations that his earnings as a consultant and senior vice president of Rubicán International, Ltd., were negligible. The trial court concluded that the plaintiff, holder of three academic degrees, remained at his present employment where he was in a position as a “consultant” to sequester his commissions with a view to avoid payment of alimony to the defendant. The appellant apparently believes that it is incumbent upon the trier of fact to find uncontroverted testimony persuasive. Uncontradicted testimony does not have to be accepted. Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983); Taylor v. Corkey, 142 Conn. 150, 154, 111 A.2d 925 (1955); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 125 (a).

An examination of the record indicates questionable stamp sales and Internal Revenue Service returns, and a refund check forgery by the plaintiff. Since the trier of fact is the ultimate judge of the credibility of witnesses, we may not pass upon the credibility of witnesses. State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984); Holden & Daly, supra.

The plaintiff next challenges the trial court’s award of his interest in the marital residence, permanent alimony and counsel fees to the defendant. At the time of entering a decree dissolving a marriage, the trial court may assign to either party all or any part of the estate of the other and may order either to pay alimony to the other. General Statutes §§ 46b-81 (a), 46b-82. In fixing the nature and value of the property assigned, and in determining whether alimony shall be awarded, and the duration and amount of the award, the court shall consider the length of the marriage, the causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. General Statutes §§ 46b-81 (c), 46b-82; McPhee v. McPhee, 186 Conn. 167, 170-71, 440 A.2d 274 (1982). “ ‘The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.’ ” McPhee v. McPhee, supra, 177.

Whether to award counsel fees in matters involving a dissolution of marriage is within the discretion of the trial judge. General Statutes § 46b-62. “In ordering either spouse to pay counsel fees, the court must consider the respective liabilities of each and the statutory criteria for awarding alimony.” Weiman v. Weiman, 188 Conn. 232, 236, 449 A.2d 151 (1982). The court is not obligated, however, to make express findings on each of these statutory criteria. Id., 234.

The memorandum of decision indicates that the trial court properly considered and weighed the factors set forth in the aforesaid statutes in determining the property division, the duration and amount of the alimony award and the granting of attorney’s fees. Holley v. Holley, 194 Conn. 25, 31-32, 478 A.2d 1000 (1984). “As we have repeatedly held, the trial court’s orders in matrimonial matters will be presumed correct because the trial court is in a clearly advantageous position to assess all of the circumstances surrounding a dissolution action, in which personal factors such as the demeanor and the attitude of the parties are so significant.” Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982).

The plaintiff also challenges the court’s actions regarding his personal property. The trial court is accorded wide discretion in allocating property. Carpenter v. Carpenter, 188 Conn. 736, 742, 453 A.2d 1151 (1982). Awarding certain items of the plaintiff’s personal property to the defendant, to be released at her pleasure, was not an abuse of the trial court’s discretion in this case. The plaintiff apparently now lives outside Connecticut, and his past conduct indicated some disregard for orders of the court. This award is obviously designed to encourage the plaintiff’s compliance with the trial court’s judgment.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The motion to modify alimony pendente lite was agreed to be heard at the time of the final hearing.


text:
    In re Juvenile Appeal (84-7)

    (2795)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued October 3
    decision released December 4, 1984

      John C. Wirzbicki, for the appellant (mother of the minor children).

      Judith M. Earl, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (commissioner of the department of children and youth services).

      Anne R. Hoyt, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book S 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

The respondent in this action has appealed from the judgment terminating her parental rights in regard to her four year old daughter, E, and her six year old daughter, M.

The trial court found that the children had been committed to the department of children and youth services (DCYS) from October 20, 1981, (first commitment) until October 18, 1983, with the exception of a five month period from July 6,1982, to December 21,1982 (second commitment). The trial court further found that there was clear and convincing evidence that, since the time of the first commitment, the respondent, who is only able to read to a very limited degree, had failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date she could assume a responsible position in the children’s lives, and also that, by reason of continuing mental deficiency, she had been, and for such a period of time as would be foreseeable, would be unable to provide them with the care, guidance, and control necessary to their physical, educational, moral and emotional well-being. Hence the respondent’s parental rights were terminated.

In her appeal, the respondent claims that the trial court erred (1) in taking judicial notice of the file in the commitment hearing which included allegations that she had abused her children, (2) in finding that the respondent had failed to achieve any such reasonable degree of rehabilitation as would reasonably encourage the belief that at some future time she could assume a responsible position in her children’s lives when the respondent had complied with the requirements of an agreement entered into between her and DCYS, and (3) in terminating the parental rights of the respondent without making a finding as to whether there existed realistic prospects for the children in question to find adoptive homes.

Even if we assume, arguendo, that the trial court improperly took judicial notice of the file in the second commitment proceeding, there was independent evidence that the respondent had abused her children. A DCYS social worker was called to the New London police department and saw bruises on M’s eye, cheek and throat. The social worker testified that M maintained that the respondent had hit her. Additionally, M’s foster mother indicated at trial that M pointed out places to her where M had been struck by the respondent and also alleged that the respondent had thrown her from a toy wagon. Although the trial court did not mention the matter of these beatings in its memorandum of decision, the evidence about them was known to it. We conclude, therefore, that any impropriety in the taking of judicial notice of the same type of material was harmless error. See State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979); Anonymous v. Norton, 168 Conn. 421, 429-30, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975).

There was evidence adduced at trial from a New London policewoman, a DCYS social worker, and a psychologist, Robert Meier, to satisfy the requirements of General Statutes § 17-43a (a), which provides in part: “The superior court upon hearing and notice . . . may grant such petition if it finds, upon clear and convincing evidence, that over an extended period of time . . . (2) the parents have failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child’s life; or (3) the parents, by reason of continuing physical or mental deficiency have, and for such period of time as will be detrimental to the best interest of the child, will be unable to provide him with the care, guidance and control necessary to his physical, educational, moral and emotional well-being . . . .”

We have concluded that the evidence does support the adjudicatory portion of the termination order on either of the above grounds.

The respondent claims that the trial court must make a finding of adoptability before removing her as a parent. She relies on In re Juvenile Appeal (83-BC), 189 Conn. 66, 79, 454 A.2d 1262 (1983), which states that “[ojrdinarily the only purpose served by such a termination is to make a child available for adoption. . . . Unless there is a realistic prospect for adoption of T, it would make no sense to sever his existing tie to his mother and set him adrift as a permanent ward of the state.” The referee in that case recommended that the decree terminating parental rights not enter until the petitioner had satisfied the court that T could be placed in adoption. The basis for the recommendation was that T was a three year old with severe developmental problems.

With respect to a finding of adoptability by the trial court, this court will not consider claimed error on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the court adversely to the appellant’s claim. Practice Book § 3063; Holden & Daly, Connecticut Evidence (Sup. 1983) § 13, pp. 37-38. The respondent did not raise this issue at the trial court level.

Furthermore, In re Juvenile Appeal (83-BC), supra, is distinguishable from this case in that the children here were normal, and the foster mother was willing to adopt them although she felt younger adoptive parents would be in their best interest.

There is no error.

In this opinion the other judges concurred.

       The father’s parental rights were also terminated, but he has not appealed.

       A review of the file indicates that the actual date of the first commitment was October 7, 1981.


text:
    James Greene v. Thomas F. Scott
    (2459)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued October 5
    decision released December 11, 1984

      Phillip F. Spillane, for the appellant (defendant).

      Nanette Bracken, for the appellee (plaintiff).
   Daly, J.

This is an action by the plaintiff to recover monies paid to the defendant in anticipation of purchasing real property located in the city of Danbury. The defendant appeals from the judgment of the trial court for the plaintiff allowing the recovery of a portion of the money paid for the purchase of the realty.

The trial court could readily have found the following facts: On February 17, 1979, the parties entered into a written contract for the sale of certain real estate in the city of Danbury. The contract provided for a purchase price of $35,900 with a 10 percent deposit of $3590, which was paid at the time the contract was signed. The contract provided for a closing date of March 15, 1979. It further provided that any modification would have to be in writing, and contained a default clause which stated that “all monies paid by the purchaser hereunder” would be retained as liquidated damages in the event of the purchaser’s default. The plaintiff, who was the purchaser in this case, was unable to obtain a mortgage and hence was unable to close by March 15, 1979.

The plaintiff claimed that between the date of the execution of the contract and the closing date, an oral agreement was entered into whereby the defendant would convey to the plaintiff a one-half interest in the property upon payment by the plaintiff of 50 percent of the equity in the property. The defendant contended that an additional $8500 paid by the plaintiff was for an extension of time on the closing date. No interest in the property was ever transferred. The plaintiff instituted this action seeking to recover the downpayment of $3590, plus the additional $8500 which he had paid to the defendant.

The trial court found that there had been no valid modification of the original contract; hence, its provisions remained in effect. Thus, the defendant was entitled to retain the deposit of $3590 as liquidated damages pursuant to the terms of the agreement. Without such modification of the original contract, however, the plaintiff was entitled to the return of the $8500, paid after the original contract was terminated, on the ground of unjust enrichment.

The defendant first claims that the trial court erred in permitting the plaintiff to testify concerning an alleged oral agreement whereby the defendant was to convey a 50 percent interest in the real estate to the plaintiff on the basis that the testimony was in violation of (1) the parol evidence rule, and (2) the statute of frauds.

We consider the parol evidence argument first. The parol evidence rule is a rule of substantive law which provides that “[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” 3 Corbin, Contracts § 573. “It is, however, well settled that the parol evidence rule does not have any application to subsequent agreements.” Calamari & Perillo, Contracts (2d Ed.) § 3-6. The contract in question specifically indicates that the agreement constituted the entire agreement between the parties, and the oral agreement alleged was subsequent to the execution of this agreement. In this instance, therefore, the parol evidence rule is inapposite.

We now consider the statute of frauds argument. If an agreement falls within the statute of frauds; General Statutes § 52-550; there are certain conditions which must be met before oral testimony will be allowed as to the agreement. There must be preliminary proof establishing that there was some agreement in pursuance of which the plaintiff has acted in part performance before the court will accept oral testimony as to what the nature and terms of that agreement were. Verzier v. Convard, 75 Conn. 1, 7, 52 A. 255 (1902). This preliminary evidence generally is that of conduct. Id. “Under the rule well established by the authorities, it must appear that these acts are of such a character that they can be reasonably and naturally accounted for in no other way than that they were performed in pursuance of a contract between the parties, and though they cannot indicate all the terms of the agreement, they must be in conformity with its provisions. Van Epps v. Redfield, 69 Conn. 104, 110, 36 Atl. 1011 [1897]; Verzier v. Convard, 75 Conn. 1, 7, 52 Atl. 255 [1902], and cases cited.” Santoro v. Mack, 108 Conn. 683, 691, 145 A. 273 (1929). “Whenever acts of part performance are made out which thus point to a contract, the door is opened, and the plaintiff may introduce additional parol evidence directed immediately to the terms of the contract relied upon . . . .’’Andrews v. Babcock, 63 Conn. 109, 122, 26 A. 715 (1893).

In this case, it is illogical to assume that the plaintiff would have paid an additional $8500 to the defendant to extend the contract when he could not obtain financing to complete the original contract. Hence, the statute of frauds objection has been overcome and the evidence was properly admitted.

The defendant next claims that the trial court erred in holding that the defendant’s agreement to extend the closing date was not a valid modification of the real estate contract. The defendant’s contention that the $8500 was paid to extend the closing date and not for the purchase of a 50 percent interest in the realty poses a question of fact for the trier to decide. The trial court heard testimony from both the defendant and the plaintiff on this issue. It is axiomatic that it is in the province of the trial court to assess the credibility of witnesses. State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984); Damora v. Christ-Janer, 184 Conn. 109, 112-13, 441 A.2d 61 (1981). Holden & Daly, Connecticut Evidence (Sup. 1983) § 125 (a), pp. 449-50. The trier is privileged to adopt whatever testimony it reasonably believes to be credible. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974).

From reading the memorandum of decision, it appears that the trial court did not resolve this factual dispute in favor of either party, apparently not finding either witness sufficiently credible. The trial court concluded only that there was no valid modification of the real estate sales contract. It was not necessary to make a finding beyond this. We will not reverse the decision of the trial court unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221,435 A.2d 24 (1980).

The defendant further claims that the trial court erred in ruling that the defendant’s damages for breach were limited to the initial 10 percent deposit pursuant to the liquidated damages clause in the contract. Since the trial court found that the contract terminated on March 15, 1979, due to the plaintiff’s failure to comply with its conditions, it properly awarded the defendant the 10 percent down payment of $3590 as liquidated damages in accordance with the contract terms; amounts paid after termination of the contract were not paid under the contract and were not covered by the agreement’s liquidated damages provision. A party may provide for the retention of a deposit as liquidated damages for the purchaser’s failure to perform. Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 75, 394 A.2d 191 (1978); Frank Towers Corporation v. Laviana, 140 Conn. 45, 53-54, 97 A.2d 567 (1953).

The defendant’s final contention is that the trial court erred in ruling that the defendant had been unjustly enriched to the extent that he had received monies over and above the initial 10 percent deposit. The trial court concluded that because no valid modification of the sales agreement occurred, the plaintiff was entitled to the amount he paid to the defendant after March 15, 1979, i.e., $8500. “The purchaser’s right to recover in restitution requires the purchaser to establish that the seller has been unjustly enriched.” Vines v. Orchard Hills, Inc., 181 Conn. 501, 510, 435 A.2d 1022 (1980). “[A] purchaser whose breach is not willful has a restitutionary claim to recover moneys paid that unjustly enrich his seller.” Id., 509; see Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 460 A.2d 1297 (1983).

Here, the defendant retained, in addition to the liquidated damages of $3590 as spelled out in the contract, the amount of $8500. We see no reason to disturb the trial court’s conclusion that the defendant, as a seller, has been unjustly enriched to the extent he received monies over and above the liquidated damages provided in the written contract.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Paragraph two of the contract provides in part as follows: “This contract constitutes the entire agreement between the parties and may not be changed except by a contract in writing signed by the party or parties against whom enforcement of any waiver, change, modification, extension, estoppel, or discharge is sought.”


text:
    Clara Greene, Administratrix (Estate of Everett Greene, Jr.) v. The Metals Selling Corporation et al.
    (2472)
    Hull, Borden and Daly, Js.
    Argued October 9, 1984
    decision released December 11, 1984

      Edmund T. Grady, Jr., with whom was Marcia Winn, for the appellant (plaintiff).

      James L. Pomeranz, with whom, on the brief, was Douglas L. Drayton, for the appellees (defendants).
   Daly, J.

The plaintiff, as administratrix of the estate of her late husband, instituted an action in four counts for the wrongful death of her husband. The first two counts were directed against the defendant corporation, The Metals Selling Corporation (corporation), which had employed the plaintiffs decedent. The first count alleges wilful and wanton violations of the federal Occupational Safety and Health Act (OSHA), and its Connecticut counterparts. The second count alleges intentional acts and omissions of the corporation in violation of the same federal and state statutes. The third count alleges negligence against individual officers of the corporation, Raymond Rosenfield and Norman Rosenfield. The fourth count claims a loss of consortium by the plaintiff individually.

The facts alleged are that the corporation was in the business of processing metal and that the plaintiffs decedent, while in the corporation’s employ, was engaged in processing or transferring magnesium material which ignited, thus causing his death. The defendants filed a motion to strike, claiming that the provisions of the Workers’ Compensation Act precluded any recovery by the plaintiff. The trial court granted the motion to strike, ruling that the action was barred by the Workers’ Compensation Act and that there was no basis for the loss of consortium claim. The plaintiff did not plead over. She appealed from the judgment rendered striking the complaint.

We first must examine the applicable standard of review on a motion to strike. The motion to strike; Practice Book § 151; replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading. Practice Book § 152. The motion to strike, like the demurrer, admits all facts well pleaded. The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; if facts provable under the allegations would support a defense or a cause of action, the motion to strike must fail. Alarm Application Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). A motion to strike admits facts only. It does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965). We must examine the complaint, assuming the truth of all well-pleaded facts, to determine whether the plaintiff, under each count, has stated a legally sufficient cause of action.

The issues raised by this appeal are (1) whether the plaintiff may pursue a common law action for the wrongful death of her husband through the alleged wilful and wanton misconduct of the defendant corporation; (2) whether the plaintiff has a cause of action against the defendant corporate executives individually; and (3) whether the plaintiff’s action for loss of consortium can be sustained.

The complaint alleges that the incident in question arose out of and in the course of the decedent’s employment with the coiporation. General Statutes § 31-284 (a) specifically provides: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter . . . .”

It is, of course, well settled that where there exists the relationship of employer and employee within the terms of the Workers’ Compensation Act, the employer has no common law liability to his employee. Crisanti v. Cremo Brewing Co., 136 Conn. 529, 531, 72 A.2d 655 (1950). If the corporation was the employer of the plaintiff’s decedent, the plaintiff is relegated to the remedies afforded by the Workers’ Compensation Act. Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 376, 423 A.2d 77 (1979). As long as the employer and the alleged tortfeasor are one, the plaintiff is limited to the benefits provided by workers’ compensation. Id., 377.

The plaintiff alleges certain violations of the federal Occupational Safety and Health Act; 29 U.S.C. § 651 et seq.; and the Connecticut Occupational Safety and Health Act; General Statutes § 31-367 et seq.; as the basis for her complaint. The language in General Statutes § 31-369 (b), “[n]othing in this chapter shall be construed to supersede or in any manner affect any workers’ compensation law or to enlarge, diminish or affect in any manner common law or statutory rights, duties or liabilities of employers or employees, under any law with respect to injuries, diseases or death of employees arising out of and in the course of employment,” is almost identical to the language in 29 U.S.C. § 653 (b) (4).

“It seems clear that Congress did not intend OSHA to create a new private cause of action, but, on the contrary, intended private rights to be unaffected thereby.” Jeter v. St. Regis Paper Co., 507 F.2d 973, 977 (5th Cir. 1975); see Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974). The fourth circuit has refused to imply a private action against the employer where state workers’ compensation was the exclusive remedy of the injured employee. Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974).

The plaintiff has alleged in her first count wilful and wanton violations of both the state and federal OSHA legislation by the corporation. The plaintiff relies heavily on the language in Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), wherein our Supreme Court stated that “[w]here such wilful or serious misconduct is engaged in by an employer, as identified by the standard we set forth today, then a plaintiff may pursue common-law remedies.” (Emphasis added.) Id., 221. That “standard,” however, does not help the plaintiff here. “An intentional tort committed upon one employee by another, which causes personal injury arising out of and in the course of his employment, is covered by the compensatory provisions of the Workmen’s Compensation Act. Willis v. Taylor & Fenn Co., 137 Conn. 626, 627-28, 79 A.2d 821 (1951); 82 Am. Jur. 2d, Workmen’s Compensation § 330. Unless the defendant employer intentionally directed or authorized [the fellow employee] to strike the plaintiff, the employer has a right to view the incident as an injury arising out of and in the course of employment, another ‘industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.’ 2A Larson, Workmen’s Compensation (1976) § 68.21, p. 13-11.” Id., 218. There is no allegation in this complaint comparable to the limited exception recognized in Jett v. Dunlap, supra.

Wilful misconduct must be either intentional misconduct, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to him who is guilty of it. Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 415, 200 A. 324 (1938). Wilful and serious misconduct means something more than ordinary negligence. Ordinary negligence could never be even serious misconduct, much less wilful misconduct, and, although gross negligence might present an instance of serious misconduct, it could never present a case of wilful misconduct, as our definition of wilful misconduct clearly indicates and as the authorities so hold. No misconduct which is thoughtless, needless, inadvertent or of the moment, and none which arises from an error of judgment can be wilful and serious misconduct. Gonier v. Chase Companies, Inc., 97 Conn. 46, 56, 115 A. 677 (1921).

Our Supreme Court has consistently held that where a worker’s personal injury is covered by workers’ compensation, statutory compensation is the sole remedy and recovery in common law tort against the employer is barred. “This well-established principle is not eroded when the plaintiff alleges an intentional tort by his supervisor.” Jett v. Dunlap, supra, 217. The same is true when the plaintiff alleges wilful and wanton misconduct. Where a fellow employee engages in wilful and wanton misconduct resulting in personal injury or death to a plaintiff, which arises out of and in the course of a plaintiff’s employment, then a plaintiff’s remedy lies within the Workers’ Compensation Act. Where such wilful and wanton misconduct is engaged in by an employer (e.g., directing another employee to strike a fellow employee) then a plaintiff may pursue common law remedies. Id., 220-21.

The facts pleaded herein do not fall within the Jett exception.

“Since the enactment of the first state workmen’s compensation act in New York in 1910, the clear trend in the development of compensation law in the United States has been to limit common-law tort actions for injuries arising out of and in the course of employment and to satisfy as many claims as possible under the compensation act. Prosser, Torts (4th Ed., 1971) § 80. The decisions of this court are consistent with this trend.” Jett v. Dunlap, supra, 222.

We find no error in the striking of the first count.

The third count alleges negligence on the part of the defendants Raymond and Norman Rosenfield as secretary and treasurer respectively of the corporation. General Statutes § 31-293a provides: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee except for negligence in the operation of a motor vehicle . . . or unless such wrong was wilful or malicious.” If the individual defendants are considered to be fellow employees of the plaintiff’s decedent, then she has failed to allege a cause of action against them as required by the aforesaid statute.

In a suit against a corporate president, the court in Neal v. Oliver, 438 S.W.2d 313, 319 (Ark. 1969), held that “[i]f the corporation was the employer and [the defendant] was the mere president, he was not personally liable in tort or under the compensation act for injuries sustained by corporate employees who are injured on defective corporate owned and maintained machines and equipment. If [the defendant] was the actual employer, his corporate title made no difference. His business was within the provisions of the Workmen’s Compensation Law, the [plaintiff’s] injury was compensable under the compensation law, and her rights thereunder are exclusive.”

Other courts have rejected a private right of action by an employee against the executive officer of the employer. See Jeter v. St. Regis Paper Co., supra, 977. The same rationale should apply to the secretary and treasurer in this case.

“Neither statutory provision [of OSHA] nor legislative history has been cited to support the chimerical proposition that Congress intended either to create a duty on other employees of the same employer (even though they are executives) or to give injured workers a private civil remedy against such other employees, albeit executives.” Skidmore v. Travelers Ins. Co., 356 F. Sup. 670, 672 (E.D. La. 1973).

Wé find no error in the striking of the third count.

A consortium action is derivative of the injured spouse’s cause of action. Hopson v. St. Mary’s Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). The plaintiff conceded in oral argument that, if the decedent would not have a cause of action, she has none. This disposes of the third issue raised on appeal, i.e., whether the plaintiff’s action for loss of consortium, alleged in the fourth count, can be sustained.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The plaintiff did not raise any issue as to the striking of the second count, which alleged intentional acts and omissions. Since it was not briefed, it must be considered abandoned. Pappas v. Pappas, 164 Conn. 242, 243, 320 A.2d 809 (1973).

       In oral argument in this court the plaintiff conceded, as she must, that OSHA does not create a separate cause of action. See Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 177-81, 439 A.2d 954 (1981). She claimed, however, that her reference to OSHA and its Connecticut counterpart were merely aimed at invoking those statutes as evidence of the applicable standard of care. Id., 181. This is a disingenuous reading of the complaint. It is clear that the complaint’s entire basis of liability was the violations of OSHA, both federal and state.


text:
    Yvonne Torsiello v. Zoning Board of Appeals of the City of Milford
    (2118)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued October 11
    decision released December 11, 1984

      Bruce L. Levin, for the appellant (defendant).

      Leo P. Carroll, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from a judgment of the trial court sustaining the plaintiff’s appeal from a decision of the defendant zoning board denying a special exception. We find error.

The plaintiff sought a special exception to allow a building to be placed on a nonconforming lot under § 6.4.2 of the Milford zoning regulations. A public hearing was held at which evidence was presented in support of and in opposition to the plaintiffs application. Also, some members of the board visited the site. The defendant denied the application on the basis that the lot in question had merged with the adjacent lot and that, therefore, the requirements of subsection (3) of § 6.4.2 had not been met. The plaintiff appealed the denial to the trial court. The trial court found that the evidence of merger was insufficient and that the board acted arbitrarily and in abuse of its discretion, and sustained the appeal. The board appealed, claiming that the court erred in its findings. We agree.

“Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . ‘Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.’ ” (Citations omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). Since the “credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency”; Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980); the court must determine the correctness of the conclusions from the record on which they are based. Housatonic Terminal Corporation v. Planning & Zoning Board, 168 Conn. 304, 306, 362 A.2d 1375 (1975). That record includes knowledge acquired by board members through personal observation of the site. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983).

Where a zoning authority has stated the reasons for its action, a reviewing court may only determine if the reasons given are supported by the record and are pertinent to the decision. Goldberg v. Zoning Commission, 173 Conn. 23, 25-26, 376 A.2d 385 (1977). “The [zoning board’s] action must be sustained if even one of the stated reasons is sufficient to support it.” Id., 26; Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1984). The decision of a zoning authority will only be disturbed if it is shown that it was arbitrary, illegal or an abuse of discretion. Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444, 418 A.2d 82 (1979).

The board stated in effect that its reason for denying the plaintiff’s application was a merger under § 6.4.2. (3). The trial court exceeded the scope of its judicial review when it determined that the evidence of merger was insufficient. All it was permitted to do was determine whether the board’s finding of merger was reasonably supported by the record and whether this was a pertinent basis on which to deny the plaintiff’s application. Instead, the trial court weighed the evidence and determined the issues of fact involved. In effect, the court impermissibly substituted its judgment for that of the zoning board. Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190 413 A.2d 817 (1979).

The board’s decision was reasonably supported by the record. The evidence of merger presented at the public hearing was that the lot was initially purchased as a yard for the adjacent lot, that it was originally woods but was cleared and made part of the lawn of the house on the adjacent lot, and that it was mowed, raked and kept up as part of the lawn until the plaintiff decided to seek this special exception. See Schultz v. Zoning Board of Appeals, 144 Conn. 332, 339, 130 A.2d 789 (1957). Furthermore, the board members could have used the knowledge acquired by their personal observation of the site. The action of the board was not arbitrary, illegal or an abuse of discretion.

There is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the appeal.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c). At the time this appeal was taken, litigants in zoning cases had an unfettered right to appeal to that court. Public Acts 1981, No. 81-416, § 3. Such appeals are now subject to a grant of certification by this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 13.

       The 1981 Milford zoning regulations received with the return of record do not include a section numbered 6.4.2. The pertinent section of those regulations, § 6.4.1, was apparently a revision of § 6.4.2, deleting the subparagraph on merger, on which this case revolves. The parties, however, do not dispute the wording of the applicable regulation and agree that it provided as follows:
      “A zoning permit may be issued subject to a Special Exception granted by the Zoning Board of Appeals for an allowable use on a lot which does not meet the standards for lot area and/or width of the particular zone in which said lot is located if:
      “(1) The present owner or his predecessors in title did not illegally create this non-conforming lot and that the lot was of legal size when it was created as a lot.
      “(2) The present owner or his predecessors in title, as determined by an attorney, do now or have owned adjacent land since the time the lot was caused to become non-conforming by virtue of a revised zoning regulation.
      “(3) Since the time the lot was caused to become non-conforming by virtue of a revised zoning regidation, the lot has never been utilized in com

        junction with adjacent property so that the identity of the lot in question has not merged with adjacent property. [Emphasis added.]
      “(4) All yard setback, coverage and other zone requirements can be met; and further provided the owner or his agent presents satisfactory evidence of compliance -with this Section.
      “(5) The lot was never sold by the City of Milford with any stipulation that would prohibit its use as a separate building lot.
      “(6) Notice Upon application for a zoning permit under this Section 6.4.2, a Special Exception application shall be made to the Zoning Board of Appeals in accordance with the requirements of Section 9.2.3 Special Exceptions. (Effective 11/10/80).”

       See footnote 2, supra.