author: SCHALLER, J. LAVERY, J.,

text:
    TOWN OF STRATFORD v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, LOCAL 998
    (AC 16764)
    Lavery, Schaller and Hennessy, Js.
    Argued December 1, 1997
    officially released June 2, 1998

      J. William Gagne, Jr., for the appellant (defendant).

      Richard J. Buturla, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, the International Association of Firefighters, AFL-CIO, Local 998 (union), appeals from the judgment of the trial court vacating an arbitration award. The principal issue in this appeal is whether the trial court improperly vacated the arbitration award on the ground that the arbitration panel failed to apply the doctrine of collateral estoppel with respect to a prior arbitration award on the same issue. We reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. The plaintiff, town of Stratford, and the union at all relevant times were parties to a collective bargaining agreement (agreement) that contained an arbitration clause. Under the arbitration clause, the parties agreed to submit unresolved grievances to the state board of mediation and arbitration (board). The parties further agreed that an arbitration decision by the board would be final.

On December 12, 1991, the date on which the grievances involved in this appeal were filed, article I of the agreement provided that “the positions of assistant fire prevention chief, assistant fire chief, deputy fire chief and chief are not members of the union bargaining unit.” Section one of article XXII of the agreement, however, provided that " all promotions in the Fire Department shall be made from eligibility lists for each promotional classification, which lists shall be established through competitive merit examinations . . . .” (Emphasis in original.) The agreement also provided that when a vacancy occurred, it was to be filled by one of the three highest ranking candidates and that subsequent appointments were to be generated in the order of standing on the list. Moreover, the agreement provided that when an eligibility list expired, a new list had to be established within ninety days.

In 1991, the eligibility lists for the positions of assistant fire chief and lieutenant in the fire prevention bureau expired, and replacement lists were not created within ninety days. On December 12, 1991, the union filed a class action grievance against the town, no. 91-04, on behalf of the firefighters seeking positions in the fire prevention bureau. The grievance alleged that the town had violated the agreement because it had failed to establish new examinations and eligibility lists for the positions of assistant fire chief and lieutenant for the fire prevention bureau.

On December 12, 1991, the union also filed grievance no. 91-03, which was submitted to the board to determine if it was arbitrable. As did grievance no. 91-04, which was filed on the same day, no. 91-03 alleged that the town had violated article XXII, § 1, of the agreement. This grievance concerned the following events, which had occurred earlier in 1991. In April, 1991, the town administered a promotional examination for the position of assistant fire chief in the fire suppression division. On May 30, 1991, the results of the examination were posted and a list was established with eight individuals, ranked one through eight, with the candidate receiving the highest score ranked as number one. On or about June 3, 1991, the town interviewed the first three candidates on the eligibility list for a vacancy for the position of assistant fire chief in the fire suppression division. This vacancy was filled by the candidate who was ranked first. On or about December 11, 1991, the town interviewed the candidates ranked two through four for the assistant fire chief position, and the town selected the third ranked candidate over the second ranked candidate. On or about January 4, 1993, the town interviewed the remaining candidates for the assistant fire chief position for two additional vacancies in the fire suppression division. The town again selected lower ranked candidates over individuals with higher ranks. The union’s ground for grievance no. 91-03 was that the town had failed to promote employees on the eligibility list to assistant fire chief vacancies in the fire suppression division in the manner in which firefighters are to be selected from such lists as provided by § 1 of article XXII.

On December 28, 1993, a panel of arbitrators of the board issued an award in grievance no. 91-04, holding that article XXII of the agreement did not apply. The board found that the grievance was not arbitrable because the promotions clause of the agreement did not apply to promotions to jobs outside of the bargaining unit, including promotions to the position of assistant fire prevention chief. A unanimous panel rejected the union’s contention that the parties had agreed orally in the 1987 negotiations to continue to apply article XXII to the assistant fire chief position.

On March 17, 1994, a different panel of arbitrators issued an award holding that grievance no. 91-03 was arbitrable, which was inconsistent with the earlier decision. This second panel also decided that the issue to be decided was whether article XXII applies to employee promotions to the assistant fire chief position. The subject matter of this grievance thereafter proceeded on the merits before a third panel of arbitrators.

On May 25, 1995, the third panel of arbitrators addressed the merits of no. 91-03 and issued an award holding that article XXII, § 1, did apply to promotions to the position of assistant fire chief and that the town had violated this provision. The two panels of arbitrators deciding aspects of grievance no. 91-03, therefore, reached conclusions on the issue of arbitrability that were at odds with the prior arbitration award, namely, that article XXII applies to promotions to the assistant fire chief position.

On February 22, 1996, the town filed an application to vacate the May 25, 1995 arbitration award in grievance no. 91-03 pursuant to General Statutes § 52-418 (a) (4). The town argued that the arbitrators in no. 91-OS had incorrectly decided the award by failing to apply the doctrine of collateral estoppel to preclude relitigation of the interpretation of the agreement. The town argued that the decision of the panel in no. 91-04 controlled the contractual interpretation issue regarding the applicability of article XXII, § 1. A hearing was held on August 19,1996, and on August 27,1996, the Superior Court vacated the May 25, 1995 arbitration award in case no. 91-03. The union filed this appeal challenging the trial court’s decision to vacate the arbitration award in case no. 91-03.

The union claims that the trial court improperly vacated the award in case no. 91-03 on two grounds. The union contends that because the submission of the parties pertaining to grievance no. 91-03 was unrestricted, the award in that case was final and binding and cannot be reviewed for errors of law or fact. The union contends, moreover, that even if the submission of an unrestricted arbitration award is reviewable for errors of law or fact, arbitrators in general are not bound by the decisions of other arbitrators. In this respect, the union argues that the trial court improperly applied the doctrine of collateral estoppel to vacate the award in case no. 91-03. The town claims that the trial court correctly vacated the arbitration award because the arbitrators exceeded their powers under § 52-418 (a) (4) and because the award violates clear public policy in that the arbitration board did not apply the doctrine of collateral estoppel.

“At the outset, we note that as a reviewing court we afford great deference to arbitrators’ decisions . . . .” Greater Bridgeport Transit District v. Amalgamated Transit Union, Local 1336, 28 Conn. App. 337, 341, 610 A.2d 1324 (1992), citing Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985), and Board of Education v. Hartford Federation of School Secretaries, 26 Conn. App. 351, 352, 600 A.2d 1053 (1992). The reason for this deference is that the scope of our review is expressly limited by § 52-418 and by the terms of the parties’ agreement. Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 118, 676 A.2d 825 (1996). It is well settled law in Connecticut that “[a]ny challenge to an award on the ground that the arbitrator exceeded his powers is . . . properly limited to a comparison of the award with the submission.” (Internal quotation marks omitted.) Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). “Where the submission is unrestricted, ‘the award is . . . final and binding and cannot be reviewed for errors of law or fact.’ Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980).” Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 19, 453 A.2d 1158 (1983). “Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved.” (Internal quotation marks omitted.) Caldor, Inc. v. Thornton, supra, 340-41. “Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992).

In the present case, the parties concede that both of the awards, the “first grievance decided” and the “second grievance decided,” arose out of unrestricted submissions. Even though both grievances were unrestricted and our review is limited accordingly, “we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy ... or (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” (Citations omitted.) Id., 6. The town challenges the award on the basis of the latter two grounds.

“In spite of the general rule that challenges to an arbitrator’s authority are limited to a comparison of the award to the submission, an additional challenge exists . . . when the award rendered is claimed to be in contravention of public policy. . . . This challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them. . . . When a challenge to the arbitrator’s authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator’s decision, but with the lawfulness of enforcing the award. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [a collective bargaining agreement] is limited to situations where the contract as intepreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated.” (Citations omitted; internal quotation marks omitted.) Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339-40, 555 A.2d 406 (1989). Therefore, given the narrow scope of the public policy limitation on arbitrators’ authority, the trial court’s determination to vacate the award will stand only if the town can demonstrate that the board’s award clearly violates an established public policy mandate.

“We have historically construed narrowly the two common law grounds for vacating an arbitration award. We denominate the constitutionality and public policy exceptions as common law grounds although we have, on occasion, implied that the basis for these grounds is to be found within the statutory scheme of § 52-418 (a) (4). ... It is more appropriate to recognize that the power to determine the constitutionality of a statute and the power to strike an arbitration ruling as violative of public policy exist apart from any particular grant of authority from the legislative branch. Because of the multiple sources authorizing judicial review of arbitration awards, we therefore deem inaccurate the implication in these earlier cases that § 52-418 (a) (4) is the sole source of the court’s power of review.” (Citations omitted; emphasis in original.) Garrity v. McCaskey, supra, 223 Conn. 6.

The town acknowledges that in deciding whether arbitrators have exceeded their powers under § 52-418 (a) (4), courts have generally compared the award with the submission to determine if the award exceeds the scope of the submission. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988); Board of Education v. AFSCME, supra, 195 Conn. 271. The town argues, however, that this general analysis is not appropriate to determine whether the doctrine of collateral estoppel should be applied to preclude the arbitrator from deciding the same issue of contractual interpretation again. We are not persuaded. In this case, the town and the union submitted to the arbitrator the question of whether the grievance was arbitrable. The award was issued stating that “[t]he matter is arbitrable and the employees are entitled to know whether or not article XXII will be operative should an employee choose to aspire to the position of Assistant Fire Chief.” Therefore, in comparing the award with the submission, the arbitrators did not exceed their powers under § 52-418 (a) (4).

In addition, the town argues that although the submission in this case was unrestricted, courts have the authority to vacate an award pursuant to § 52-418 (a) (4) when it violates clear public policy. The town maintains that the second arbitration board failed to apply the doctrine of collateral estoppel and, therefore, did not adhere to the public policy consideration that requires giving collateral estoppel effect to prior arbitration awards in subsequent arbitrations. The town argues that “ [conflicting contractual interpretation awards are repugnant to the fundamental policy underlying the doctrines of res judicata and collateral estoppel that a multiplicity of the same disputes should be avoided.” The town asserts, therefore, that the trial court was justified in vacating the arbitration award at issue.

We acknowledge that the doctrine of collateral estop-pel is based and enforced on the ground of public policy. Brady v. Anderson, 110 Conn. 432, 435, 148 A. 365 (1930). “To prevent a multiplicity of actions, equity will enjoin further litigation of a cause of action which has already been adjudicated. A final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved. If the same cause of action is again sued on, the judgment is conclusive with respect to any claims relating to the cause of action which were actually made or might have been made. . . . Collateral estoppel is that aspect of res judicata which is concerned with the effect of a final judgment on the subsequent litigation of a different cause of action involving some of the issues determined in a former action between the parties.” (Citations omitted.) Corey v. Avco-Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). As stated previously, the narrow exception that allows an award involving an unrestricted submission to be vacated by a court is premised on the fact that the parties cannot expect an arbitration award approving conduct that is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.

Although it can be said that collateral estoppel is a public policy notion in a general sense by virtue of its being well established in the law, we conclude that the failure of an arbitration board to apply this doctrine does not violate a well defined and dominant public policy in the sense that gives rise to the narrow exception. In the few cases where courts have vacated arbitration awards on public policy grounds, those awards contravened a well defined public policy mandate. See Board of Trustees v. Federation of Technical College Teachers, 179 Conn. 184, 195, 425 A.2d 1247 (1979). Other cases have held similarly. In State v. Connecticut Council 4, CEU, AFSCME, 7 Conn. App. 286, 290, 508 A.2d 806 (1986), awards were set aside pursuant to § 52-418 (a) (4) because they were found to be in direct conflict with the policy of the state and the legislative intent that was clearly expressed in provisions of a state statute. In International Brotherhood of Police Officers v. Windsor, 40 Conn. Sup. 145, 148, 483 A.2d 626 (1984), an arbitration award that upheld the disciplining of a police officer for refusing to falsify an arrest warrant was set aside. Another example where a court vacated an arbitration award that contravened a well defined and specific public policy occurred in Avco Corp. v. Preteska, 22 Conn. Sup. 475, 174 A.2d 684 (1961). In Avco, the court held that the arbitration board exceeded its authority when the award was found to contravene public policy because it called for the reinstatement of an employee who had been convicted under a state statute for gambling on his employer’s premises. Id., 477-81. We conclude that rendering two inconsistent opinions in the context of arbitration proceedings is not a violation of a well defined and dominant public policy, and does not warrant court-ordered application of collateral estoppel.

Accordingly, we conclude that the trial court improperly interpreted the public policy exception as a basis for vacating the arbitration award as to grievance no. 91-03.

The judgment is reversed and the case is remanded with direction to render judgment denying the application to vacate the arbitration award.

In this opinion HENNESSY, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion, which reinstates the arbitration award vacated by the trial court. The issues in both arbitrations no. 91-03 and no. 91-04 were identical. The parties, the town and the union were also identical.

The issue to be decided in both arbitrations was whether article XXII of the agreement applies to promotions outside of the bargaining unit, i.e., the assistant fire chief. The decision in grievance no. 91-04, that article XXII was not arbitrable because the promotions clause of the agreement did not apply to promotions to jobs outside of the bargaining unit, including promotion to the position of assistant fire prevention chief, was binding on the decision in no. 91-03, the subject of this appeal.

I agree with the trial court’s determination that the first arbitration award should be accorded res judicatacollateral estoppel effect and in its citing of Corey v. Avco-Lycoming Division, 163 Conn. 309, 319, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). In Corey, the court held that res judicata-collateral estoppel applied to the award of an arbitration panel in bar of subsequent litigation on the same claim.

In Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 674 A.2d 1290 (1996), our Supreme Court stated: “[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage. ... In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action.” (Citations omitted; internal quotation marks omitted.) Id., 589-90.

In this case, both arbitrations included the same parties, the plaintiff town and the defendant union. The issue was also the same in both arbitrations, that is, whether the promotion clause for the collective bargaining agreement applied to promotions to the nonbar-gaining unit position of assistant fire chief or assistant fire prevention chief. Although the first arbitration was for the position of assistant fire prevention chief and the second was for the position of assistant fire chief, both positions were out of the bargaining unit and the issue or claim is the same.

Once the arbitrator found that the promotions clause of the collective bargaining agreement did not apply to promotions to a nonbargaining unit position, it became part of the contract and bound both parties. International Assn. of Firefighters v. Las Vegas, 107 Nev. 906, 823 P.2d 877 (1991). “Those courts that have considered the issue [of the applicability of collateral estoppel to arbitration awards] have held the doctrine to be applicable, especially in the context of labor arbitration. E.g., Todd Shipyards Corp. v. Industrial U. of Marine & Ship Wkrs., 242 F. Sup. 606, 611 (D.N.J. 1965) . . . Cleveland v. Ass’n of Cleveland Fire Fighters, [20 Ohio App. 3d 249, 254, 485 N.E.2d 792 (1984)] (arbitration award has the same preclusive effect as a court judgment). In these jurisdictions, the party seeking to avoid issue preclusion has the burden of showing that the arbitrators did not decide the issue. Id.

“Policy considerations underlie our conclusion that the doctrine of collateral estoppel should apply to arbitration. The harmony sought by arbitration as a substitute for work stoppage and elimination of strife between labor and management could be jeopardized if repetitive submission to arbitration of the same issue was permitted. Todd Shipyards Corp., [supra] 242 F. Supp. at 611. Here, the prior decision involves the interpretation of the identical contract provision between the same employer and union. In such cases, every principle of common sense, policy, and labor relations demands that [the decision] stand until the parties annul it by a newly worded contract provision. F. Elkouri and E. A. Elkouri, How Arbitration Works, 426 (4th ed. 1985) (quoting Pan Am. Ref. Corp., 2 ALAA ¶ 67, 937, p. 69, 464 [1948]). Moreover, unless there is finality to an arbitration award, there is no inducement for parties to accept a provision for arbitration in the labor agreement.” (Internal quotation marks omitted.) International Assn. of Firefighters v. Las Vegas, supra, 107 Nev. 911-12.

The Nevada court found that the prior award construing the collective bargaining agreement became part of the agreement and that in contradicting the interpretation of the prior awards, the arbitrator contradicted the agreement and exceeded his authority.

I agree with the reasoning of the Nevada Supreme Court and I would uphold the trial court’s decision.

       Although the trial court employed the term “res judicata” in its memorandum of decision, it is undisputed that issue preclusion rather than claim preclusion is involved and, therefore, collateral estoppel is the appropriate doctrine.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The union also claims that the trial court improperly vacated the award because arbitration awards do not have the same stare decisis effect as court judgments, and the fact that inconsistencies exist between prior arbitration awards in itself is not a basis to vacate an award. Furthermore, the union claims that the trial court improperly relied on Corey v. Avco-Lycoming Division, 163 Conn. 309, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973), which is inapposite to this case. Finally, the union claims that the trial court cannot vacate an arbitration award that draws its essence from the collective bargaining agreement. We need not address these claims in view of our determination on the inapplicability of collateral estoppel.

       An unrestricted submission has been characterized as follows: “The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Bic

        Pen Corporation v. Local No. 134, 183 Conn. 579, 584-85, 440 A.2d 774 (1981); Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 106-107, 438 A.2d 1171 (1981).” Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992).

       The town also claims that the doctrines of res judicata and collateral estoppel apply to arbitration awards. See Corey v. Avco-Lycoming Division, 163 Conn. 309, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903,34 L. Ed. 2d 699 (1973). The town argues that the trial court was correct in vacating the second arbitration panel’s award because under the doctrine of collateral estoppel, the issue had already been decided in a previous proceeding. Furthermore, the town claims that the trial court properly considered Corey to be analogous and on point. We find the decision in Corey to be distinguishable. In Corey, the court determined the question of whether the decision of an arbitration panel precluded a hearing tribunal or another agency from deciding the same issue. Upon reviewing the same grievance the arbitration panel had already decided, the hearing tribunal reached a different result. In reaching its decision, the court in Corey held that a prior arbitration award was binding and conclusive on the hearing tribunal under the doctrines of collateral estoppel and res judicata. In the present case, however, the conflicting decisions involve two arbitration panels acting on an unrestricted submission.

       The dissent fails to address the unrestricted nature of the submissions and the consequent limitations on our review.

       In support of its argument, the town cites International Assn. of Firefighters v. Las Vegas, 107 Nev. 906, 823 P.2d 877 (1991). Furthermore, the town rests this claim on the doctrine that an award interpreting a collective bargaining agreement becomes a binding part of the agreement. Fournelle v. National Labor Relations Board, 670 F.2d 331, 344 (D.C. Cir. 1982) citing F. Elkouri & E. Elkouri, How Arbitration Works (1973) p. 377. While that doctrine is cited in Fournette and Elkouri, no Connecticut authority is cited nor have we found any such case. Moreover, the doctrine appears to relate principally to the filling in of gaps “by reference to the practices of the particular industry and of the various shops covered by the [collective bargaining] agreement.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960).

       Although the dissent purports to extend our Supreme Court’s decision in Corey to cover the situation presented in the case at hand, we have previously noted in footnote five that Corey is factually distinguishable from the present case.

       Citing a Nevada case, International Assn. of Firefighters v. Las Vegas, 107 Nev. 906, 823 P.2d 877 (1991), the dissent relies on the proposition that an arbitrator’s interpretation of the collective bargaining agreement becomes part of the contract and binds both parties. That proposition has not been adopted in Connecticut.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    CHESTER OLKOWSKI ET AL. v. JUSTIN DEW ET AL.
    (AC 16945)
    Landau, Hennessy and Dupont, Js.
    Argued February 18
    officially released June 2, 1998

      Campbell D. Barrett, with whom, on the brief, was G. Michael Budlong, for the appellants (named plaintiff et al.).

      William J. Melley III, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiffs appeal from the judgment of the trial court, rendered in favor of the defendants after a juiy trial, in this negligence action brought by the plaintiffs for injuries suffered when the car in which they were riding was struck by a car driven by the named defendant, Justin Dew. On appeal, the plaintiffs claim that the trial court improperly (1) failed to charge the jury that the defendants “take the plaintiffs as they find them,” and (2) admitted evidence that the named plaintiff physically abused the plaintiff Raymond Olkowski. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 20, 1992, at approximately 5:55 p.m., the plaintiffs Chester Olkowski and his son Raymond Olkowski were traveling east in a van on Thompson-ville Road in Suffield. At the same time the defendant Justin Dew was also traveling east on that road in a pickup truck, registered and maintained in the names of his parents, the defendants John Dew and Beatrice Dew. As the plaintiffs’ vehicle stopped for a red light at the intersection of Thompsonville Road and Route 159, the defendants’ vehicle collided with the rear of the plaintiffs’ vehicle.

The plaintiffs alleged that as a result of the collision, they suffered mental and physical injuries, and that the collision was a result of Justin Dew’s negligence. Particularly, the plaintiff Chester Olkowski alleged extensive injuries to his neck and back, and the plaintiff Raymond Olkowski alleged, among other things, headaches, mental distress, anxiety, shock and nervousness. The defendants denied that any negligence on their part was the proximate cause of the plaintiffs’ injuries. A trial was held in this matter on various dates between January 2 and January 8,1997. No interrogatories were submitted to the jury. After hearing the evidence, the jury returned general verdicts in favor of the defendants against both plaintiffs. On January 21, 1997, the plaintiffs filed a motion to set aside the verdict and for a new trial based on the same claims that are raised in this appeal. The trial court heard oral argument by the parties on February 10, 1997, and denied the plaintiffs’ motions.

I

The plaintiffs first claim that the trial court improperly failed to charge the jury that the defendants “took the plaintiffs as they found them.” At trial, both parties offered evidence that the plaintiff Chester Olkowski had suffered various injuries to his neck and back both prior to and soon after the accident.

In light of the evidence relating to Chester Olkowski’s prior neck and back injuries, the plaintiffs requested that the trial court charge the jury that the defendants must “take their victims as they find them” and that the defendants are responsible for all the injuries proximately caused by their negligence, even if the plaintiffs had preexisting conditions that would cause them to be more severely injured by the defendants’ conduct. The trial court refused to provide the jury with the requested charge reasoning that “the eggshell plaintiff instruction was not given because there was no allegation that the plaintiffs had any sort of preexisting injury . . . .” Instead, the court delivered to the jury an extensive charge regarding causation in negligence actions, and directed the jury that the defendants are responsible for all of the damages occasioned by their negligence, even those that were not reasonably anticipated.

The trial court has wide discretion in charging a jury. “It is not error for a trial court to charge the jury in language other than that submitted by the parties. . . . A charge must be read as a whole; the test is not whether it is exhaustive, letter perfect or technically accurate . . . but whether the charge as a whole fairly presented the case so that no injustice was done.” (Citations omitted; internal quotation marks omitted.) Rogers v. Del-fino, 13 Conn. App. 725, 728, 539 A.2d 156 (1988); see Kelley v. Bonney, 221 Conn. 549, 584, 606 A. 2d 693 (1992).

“Claims of error addressed to the [jury] charge are tested by the pleadings and by the evidence . . . .” Tierney v. American Urban Corp., 170 Conn. 243, 250, 365 A.2d 1153 (1976). “The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence.” (Citations omitted; internal quotation marks omitted.) Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993).

In this case, the plaintiffs concede that the aggravation of a preexisting injury was not a theory of the amended complaint, but rely on the case of Bruneau v. Quick, 187 Conn. 617, 633, 447 A.2d 742 (1982), in support of the position that they were entitled to the preexisting injury charge despite the fact that the aggravation of a preexisting injury was not a theory of the case. In Bruneau, the defendant claimed that the trial court improperly provided the jury with a preexisting injury or “take the plaintiff as you find him” charge because the aggravation of a preexisting injury was not a theory of the plaintiffs case and there had been “ ‘absolutely no testimony which suggested that this condition . . . had been aggravated.’. . .” Id. In Bru-neau, the trial court determined and our Supreme Court affirmed that there was, in fact, evidence from which the jury reasonably “ ‘could find or infer that the effect on this particular [p]laintiff of some of the claimed injuries may be different in degree because she had a [preexisting] condition than if she didn’t.’ ” Id., 634.

In the present case, on the other hand, the trial court properly determined, and the plaintiffs in fact concede, that there was absolutely no evidence presented that Chester Olkowski’s preexisting back and neck injuries were aggravated or that they had any effect on the claimed injuries from the accident. The plaintiffs offer no support for the claim that the introduction of evidence regarding the existence of prior injuries, without evidence regarding the effect on or connection to the claimed injuries, warrants a preexisting injury charge. See Rubano v. Koenen, 152 Conn. 134, 136, 204 A.2d 407 (1964) (preexisting injury charge appropriate where claim of aggravation of preexisting injury not raised by plaintiff, but trial court heard expert testimony that plaintiff had sustained back injury in accident “with probable aggravation of a preexisting disc pathology at the lumbosacral level”); Parker v. Supermarkets General Corp., 36 Conn. App. 647, 651, 652 A.2d 1047 (1995) (proper for trial court to submit to jury issue of permanency of aggravation of preexisting injury absent medical testimony on subject “as long as the nature and scope of the preexisting injury is revealed to the jury through testimony at trial”).

The evidence presented in this case concerned only the existence of some preexisting injuries to Chester Olkowski’s neck and back, and related primarily to his credibility and to his failure to disclose the existence of any prior injuries to his own physicians or to the defendants during discovery. We conclude, therefore, that the trial court did not abuse its discretion in determining that there was no evidence offered that reasonably would support a finding that a preexisting condition was in fact aggravated by the automobile accident, and that the plaintiffs were not, therefore, entitled to an “eggshell plaintiff’ charge.

The court’s extensive charge on causation included references to the required cause and effect relationship between the accident and the claimed injuries, and a statement regarding the defendant Justin Dew’s responsibility for all injuries proximately caused by his negligence, even unforeseeable injuries. Accordingly, the court’s charge more than adequately apprised the jury of the issues to be determined by them, and the legal guidelines to be applied in making those determinations.

II

The plaintiffs next claim that the trial court improperly admitted evidence of instances of alleged physical abuse by the plaintiff Chester Olkowski against the plaintiff Raymond Olkowski.

On cross-examination, the defendants elicited testimony from the plaintiffs’ witness, Debra LaScala, regarding instances in which Chester Olkowski inflicted physical abuse on Raymond Olkowski near the time of the accident. Specifically, the defense elicited testimony from LaScala regarding physical blows to the head that Raymond suffered at the hands of his father, as well as headaches and other stress-related symptoms Raymond suffered prior to the accident as a result of the physical abuse by his father. The plaintiffs objected to the admission of this evidence on the ground that its prejudicial effect substantially outweighed any probative value it might have. After hearing argument outside the presence of the jury, the court recognized that the evidence was prejudicial to Chester Olkowski, but determined that the evidence was relevant and that its prejudicial effect did not warrant exclusion.

“The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion. . . . The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992).

It is axiomatic that otherwise relevant evidence may be excluded if its prejudicial effect outweighs its probative value. Grayson v. Wofsey, Rosen, Kweskin & Kuri-ansky, 231 Conn. 168, 193, 646 A.2d 195 (1994). As we have previously stated, however, “[ejvidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. ... All evidence adverse to a party is, to some degree, prejudicial. . . . Thus, [t]o be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 806, 614 A.2d 414 (1992).

In response to the plaintiffs’ motion to set aside the verdict, the trial court provided the following reasoning for its admission into evidence of the testimony regarding the alleged physical abuse: “The plaintiff Raymond Olkowski was claiming emotional injuries as well as one of—the only physical permanent injury was persistent headaches. I think the evidence was that his father had physically abused him, including blows to the head. I thought that was certainly relevant to the defendants’ defense, and that’s why I allowed it.” The trial court concluded, therefore, that the probative value of this evidence with respect to causation and damages exceeded its prejudicial impact. We cannot conclude, on the facts of this case, that the conclusion reached by the trial court was improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The matter was withdrawn before trial as to a third occupant, the plaintiff Debra Bolduc. We refer in this opinion to Chester Olkowski and Raymond Olkowski as the plaintiffs.

       A review of the plaintiffs’ claims is not precluded by the general verdict rule. Blancato v. Randino, 33 Conn. App. 44, 46-47, 632 A.2d 1144, cert. denied, 228 Conn. 916, 636 A.2d 846 (1993).

       The defendants elicited a variety of evidence through both cross-examination of Chester Olkowski and direct examination of Joseph Schlaffer, a chiropractor who treated Chester Olkowski, that Chester Olkowski had received medical treatment for injuries to his neck and back that occurred prior to the automobile accident. Specifically, the defendants produced evidence that Chester Olkowski was injured lifting a snowmobile sometime in the late 1970s, moving a refrigerator in 1980 or 1981, in an accident at work where a file cabinet fell on him in 1989 and moving tables for a Christmas party at work in 1990. The defendants also elicited evidence that Chester Olkowski was treated for an injury to his neck in an accident involving a horse soon after the automobile accident.
      In addition, the plaintiffs introduced into evidence a letter dated April 19, 1994, from John Rayeroft, one of Chester Olkowski’s physicians, stating that 5 percent of Chester Olkowski’s 15 percent permanent partial disability to his neck was a result of preexisting cervical spondylosis.

        On direct examination, Chester Olkowski acknowledged that he did not disclose his prior treatment, lor his neck and back conditions during discovery.

       The plaintiffs provided the court with the following request to charge: “The plaintiffs are entitled to recover full and complete compensation for all of their injuries and damages, and the effects caused by or proximately resulting from the defendants’ negligence. The defendants take plaintiffs, Chester A. Olkowski and Raymond Olkowski, as they find them. The defendants are chargeable with all of the results of the injuries proximately caused by their negligence, and the defendants cannot now excuse these results by saying that the plaintiffs had preexisting conditions, which would make them suffer more and longer or cause them to be more severely injured, than they would otherwise have been. . . . The defendants must take the victims as they find them. . .

       The court’s charge to the jury regarding causation stated in part: “It is elementary that in a negligence case such as this one, the causal relation between the defendant’s alleged wrongful conduct and the plaintiffs’ injuries must be established in order for the plaintiffs to recover damages. . . . [I]f you find that the accident was a substantial factor in bringing about the injuries to the plaintiffs, then you will find that the accident was a proximate cause of those injuries. . . . The plaintiffs are entitled to recover for all damages proximately caused by the defendants’ wrongful acts, whether or not the results were reasonably to be anticipated from such wrongful acts. . . .”

       LaScala, whose last name was Bolduc at the time of the accident, is the mother of Raymond Olkowski and the former wife of Chester Olkowski. She was a passenger in Chester Olkowski’s vehicle at the time of the accident and was a plaintiff in the original action. See footnote 1.

       LaScala testified that Raymond suffered physical abuse by his father on many occasions in the year prior to the accident. She stated that Raymond was hit in the face, chest and head. She further testified that she was aware of the stress in Raymond’s life prior to the accident, that she had taken him to see a physician regarding headaches prior to the accident, and that approximately two months before the accident Raymond spent time at the Elmcrest Psychiatric Institute.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ARTHUR LUSTER
    (AC 17120)
    Foti, Lavery and Schaller, Js.

      Argued March 16
    officially released June 2, 1998

      Deborah Krauss Snyder, special public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Mary H. Lesser, former assistant state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Arthur Luster, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a) and assault of a victim sixty years of age or older in the third degree in violation of General Statutes § 53a-61a. On appeal, the defendant claims that the trial court improperly (1) admitted evidence of his prior felony convictions and (2) denied him his right to a unanimous verdict on the charge of burglary in the first degree. The defendant also claims that the evidence was insufficient to sustain his conviction of unlawful restraint in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 6,1996, the victim, a seventy year old woman, lived with her granddaughter in an apartment at 84B Brookside Avenue in New Haven. The defendant, who is the victim’s son-in-law and the stepfather of her granddaughter, entered the victim’s home unlawfully at approximately 3 a.m., proceeded to the victim’s bedroom and jumped on her. The defendant pulled and hit the victim, who screamed and defended herself with her hands and legs. The defendant was still on top of the victim when the victim’s granddaughter entered the bedroom holding a broom handle and knife. The victim’s granddaughter recognized the defendant as her stepfather and exclaimed “Oh, daddy.” When the defendant saw hér, he got off the victim and left the apartment. The defendant exited the apartment through the kitchen door located at the rear of the apartment, which had been locked when the victim had gone to bed. After the defendant left the apartment, the victim discovered that a window in the kitchen, which had been closed but not locked when the victim had gone to bed, was open. The defendant, who had never been to the victim’s apartment prior to February 6, 1996, had known the victim for approximately eighteen years.

I

The defendant first claims that the trial court improperly admitted into evidence, for purposes of impeachment, two prior larceny convictions that were over ten years old. The defendant argues that the prior larceny convictions were seventeen years old and should have been excluded on the basis of remoteness and because the prejudicial effect of this evidence greatly outweighed its probative value as to the defendant’s credibility.

The facts relevant to this claim are as follows. Prior to trial, the defendant filed a motion in limine seeking to preclude the state from introducing evidence of his prior felony convictions for impeachment purposes. In his motion, the defendant claimed that his convictions of larceny in the second degree in 1979, and of assault in the second degree and larceny in the second degree in 1980, were remote in time and that “[g]iven the age of the defendant at the time they lack any probative value as to truthfulness at this trial.” The trial court granted the defendant’s motion as to the assault conviction but denied the motion as to the larceny convictions. On direct examination, the defendant admitted that he had been convicted of larceny in 1979 and 1980, and stated that he was presently thirty-five years old. The state, on cross-examination, elicited testimony from the defendant that both convictions were felonies. The state did not mention the defendant’s prior convictions during its initial or rebuttal closing arguments to the juiy. The defendant’s counsel, however, referred to the convictions during his final argument to the jury. The trial court properly instructed the jury that they could consider the defendant’s prior convictions only for the purpose of determining the defendant’s credibility.

“The credibility of a witness may be attacked by introducing the witness’ conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one year. See General Statutes § 52-145 (b); State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). . . . Three factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time. State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). We will not disturb the trial court’s determination as to the admissibility of a prior conviction to impeach a witness absent an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Webb, 37 Conn. App. 722, 731-32, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 357 (1995).

We have held that it is within the trial court’s discretion to admit a prior conviction that is more than ten years old where the conviction has special significance on the issue of the defendant’s veracity. See State v. Irving, 27 Conn. App. 279, 290-91, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992). Crimes that by their very nature indicate dishonesty or the tendency to make false statements fall within a category of prior convictions admissible for impeachment purposes. State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984). Crimes involving larcenous intent “obviously bear heavily on the credibility of one who has been convicted of them. The probative value of such convictions, therefore, may often outweigh any prejudice engendered by their admission.” Id. “[T]he primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion . . . or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Faria, 47 Conn. App. 159, 173, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998).

“[I]t was 'within the discretion of the trial court to admit the defendant’s prior convictions because it determined that their probativeness as to the defendant’s veracity sufficiently outweighed any prejudice.” State v. Webb, supra, 37 Conn. App. 732. Clearly, the two prior convictions admitted by the trial court in this case reflected crimes of larcenous intent and were probative of the defendant’s veracity. In addition, the prior convictions involved crimes that significantly differed from the crimes charged and bore heavily on the defendant’s credibility. See id.

We conclude that the trial court did not abuse its discretion in admitting evidence of the defendant’s two larceny convictions that were more than ten years old.

II

The defendant next claims that the trial court improperly refused to instruct the jury that to convict the defendant of burglary in the first degree, it must unanimously agree that the defendant intended to commit either assault or sexual assault when he unlawfully entered the victim’s building.

In the first count of the information, the defendant was charged with burglary in the first degree in violation of § 53a-101 (a) (2). The state alleged that “on or about the 6th day of February, 1996, at approximately 3:15 a.m., at 84B Brookside Avenue, the said [defendant] entered unlawfully in a building with intent to commit a crime therein (to wit: assault or sexual assault), and in the course of committing the offense, the said [defendant] knowingly inflicted or attempted to inflict bodily injury on another person . . . .”

The defendant filed a written request to charge in which he asked the court to instruct the jury as follows: “When the State charges a theory of the commission of a crime in any of several alternatives as it has done in the first count, then it is required that the jury reach a unanimous verdict on at least one of those alternatives. In the first count, an element is that the defendant unlawfully entered a building with intent to commit a crime therein. The alleged crime is assault or sexual assault. In order to find the defendant guilty of this charge you must unanimously agree on one or the other of these alternatives. If you cannot, then your verdict should be not guilty.”

The court did not give the instruction requested by the defendant, but rather, read both the information and the first degree burglary statute and then instructed the jury as to the three elements the state had to prove beyond a reasonable doubt. The court charged that the state must prove beyond a reasonable doubt that the defendant (1) entered unlawfully into a building, (2) had, at the time of his unlawful entry into a building, the intent to commit a crime in that building, in this case an assault or a sexual assault and (3) in the course of committing the offense of burglary, knowingly inflicted or attempted to inflict bodily injury on the victim. The corut also instructed the jury that the state had to prove beyond a reasonable doubt that the defendant had the intent to commit one or both of the offenses of sexual assault or assault.

Our review of the trial court’s instruction leads us to conclude that it did not sanction a nonunanimous verdict simply because the jury was not required to agree unanimously as to the nature of the crime the defendant intended to commit at the time he entered unlawfully into the victim’s building. “In situations where ‘the alternatives of the mens rea [intent] component give rise to the same criminal culpability, it does not appear critical that the jury may have reached different conclusions regarding the nature of the defendant’s intent if such differences do not reflect disagreement on the facts pertaining to the defendant’s conduct.’ State v. Suggs, 209 Conn. 733, 763, 553 A.2d 1110 (1989). Here, the precise nature of the defendant’s intent does not implicate any lack of unanimity regarding the defendant’s conduct.” State v. Marsala, 43 Conn. App. 527, 539, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).

In the present case, the alternatives (i.e., intent to commit assault or intent to commit sexual assault) refer to the mens rea component of the offense of burglary in the first degree, and either alternative gives rise to the same criminal culpability. It does not matter, therefore, that the jury may have reached different conclusions regarding the nature of the defendant’s intent at the time he entered unlawfully into the victim’s building. We conclude that because the alternatives relied on by the state to satisfy the mens rea component of the offense of burglary in the first degree give rise to the same criminal culpability, unanimity regarding the defendant’s intent was not required and the trial court properly instructed the jury.

Ill

The defendant’s final claim is that the evidence was insufficient to sustain his conviction of unlawful restraint in the first degree.

We employ a two part analysis when reviewing sufficiency of the evidence claims. “First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citation omitted; internal quotation marks omitted.) State v.Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

“Persons are ‘restrained’ when their movements are intentionally restricted so as substantially to interfere with their liberty, either (1) by moving them from one place to another, or (2) by confining them either to the place where the restriction commences or to the place where they have been moved without their consent. General Statutes § 53a-91 (1).” State v. Sinchak, 47 Conn. App. 134, 139, 703 A.2d 790 (1997), cert. granted on other grounds, 243 Conn. 964, 707 A.2d 1266 (1998).

The defendant argues that because the victim “was able to resist [the defendant], to push him away some, and to jump, stand or sit up . . . [she] was not confined, and there was no unlawful restraint.” The defendant claims that “evidence of restriction of movement . . . does not exist in this case.” We do not agree.

The record contains evidence that the elderly victim struggled with and resisted the defendant, who was on top of her and using force to keep her in the bed. Furthermore, the evidence presented during the trial ■ clearly demonstrated that it was only when the defendant voluntarily removed himself from the victim, after his stepdaughter entered the bedroom, that the victim was freed of her restriction on the bed. The jury, therefore, reasonably could have concluded that the victim was restricted in her movements in a manner that interfered with her liberty. We conclude that the evidence was sufficient to support the defendant’s conviction of unlawful restraint in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1).

       Although the .jury was unanimous in convicting the defendant of assault of a victim sixty years of age or older in the third degree and acquitting him of attempted sexual assault in the first degree, the defendant’s claim would require that the jury also be unanimous as to the defendant’s intent at the time he entered unlawfully into the victim’s building.

       In support of his unanimity claim, the defendant argues that to satisfy the mens rea component of the offense of burglary in the first degree, the state presented evidence that, the defendant (1) assaulted the victim and (2) attempted to assault her sexually. This argument is without merit. Although the state presented evidence that the defendant assaulted the victim and that he attempted to assault her sexually, this evidence was offered as to the separate offenses of assault in the third degree of a victim sixty years of age or older and attempted sexual assault in 1he first degree, rather than to satisfy the mens rea component of the offense of burglary in the first degree.

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”


author: Per Curiam.

text:
    MARIA LUCY KREHO v. ANTHONY J. FERNANDES
    (AC 17151)
    Lavery, Sullivan and Daly, Js.
    Argued February 19
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    AFSCME, COUNCIL 4, LOCAL 1716, AFL-CIO v. CITY OF HARTFORD
    (AC 17088)
    Landau, Hennessy and Dupont, Js.
    Argued February 18
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    PAUL LUSH v. DENISE LUSH
    (AC 16893)
    Foti, Lavery and Spear, Js.
    Argued February 17
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    SEAN DOYLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
    (AC 17006)
    Foti, Lavery and Spear, Js.
    Argued February 17
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    LOUISE D. ROBINSON v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES
    (AC 17117)
    O’Connell, C. J., and Schaller and Daly, Js.
    Argued February 17
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    KATRINA PETERS, EXECUTRIX (ESTATE OF JOHN E. PETERS) v. ANDREW WILSON
    (AC 16428)
    Landau, Schaller and Hennessy, Js.
    Argued February 20
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    THEODORE N. LENCZYK v. MICHAEL A. GEORGETTI, ADMINISTRATOR D.B.N. (ESTATE OF THEODORE D. LENCZYK)
    (AC 16903)
    Foü, Hennessy and Stoughton, Js.
    Argued February 19
    officially released March 10, 1998
   Per Curiam.

The judgments are affirmed.


text:
    JOSEPH K. MIMMS v. DARIEN CAPITAL MANAGEMENT, INC., ET AL.
    (AC 16769)
    Landau, Schaller and Sullivan, Js.
    Argued February 20
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DESI ARNEZ MORTON
    (AC 16391)
    Landau, Schaller and Sullivan, Js.
    Argued February 20
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    ADVANCED INTERIORS, INC. v. REDSTONE DEVELOPMENT CORPORATION ET AL.
    (AC 17068)
    Lavery, Hennessy and Cretella, Js.
    Argued February 18
    officially released March 10, 1998
   Per Curiam.

The judgment is affirmed.


text:
    ROGER ROY v. UNITED TECHNOLOGIES CORPORATION, PRATT AND WHITNEY AIRCRAFT DIVISION, ET AL.
    (AC 17230)
    Landau, Schaller and Freedman, Js.
    Argued February 26
    officially released March 24, 1998
   Per Curiam.

This case is controlled by Pereira v. State, 228 Conn. 535, 543 n.8, 637 A.2d 392 (1994).

The decision of the workers’ compensation review board is affirmed.


text:
    DANBURY MALL ASSOCIATES LIMITED PARTNERSHIP v. FAIR HAIR DESIGN ET AL.
    (AC 16909)
    Lavery, Spear and Dupont, Js.
    Argued February 26
    officially released March 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT WHITNEY ET AL. v. JOAN BOTCHIS, ADMINISTRATRIX (ESTATE OF JOSHUA SCRIBNER), ET AL.
    (AC 17167)
    Foti, Lavery and Shea, Js.
    Argued February 25
    officially released March 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. EDDIE RODRIGUEZ
    (AC 16548)
    O’Connell, C. J., and Dupont and Healey, Js.
    Argued February 23
    officially released March 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    JEROME L. KLEIN ET AL. v. JOHN P. TESEI ET AL.
    (AC 17082)
    Spear, Hennessy and Sullivan, Js.
    Argued February 24
    officially released March 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    JEWETT CITY SAVINGS BANK v. JOHN W. SCOTT, SR., ET AL.
    (AC 17200)
    Lavery, Landau and Schaller, Js.
    Argued March 2
    officially released March 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WAYNE SMITH
    (AC 17142)
    Lavery, Schaller and Sullivan, Js.
    Argued March 2
    officially released March 24, 1998
   Per Curiam.

See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990); State v. Boisvert, 40 Conn. App. 420, 671 A.2d 834, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996).

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. FRANKLYN PEREZ
    (AC 16274)
    Foti, Lavery and Spear, Js.
    Argued March 3
    officially released March 24, 1998
   Per Curiam.

This is an appeal from the judgment of conviction, rendered after a court trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b).

The defendant claims that the trial court improperly denied his motion for judgment of acquittal based on insufficiency of the evidence. After a review of the briefs, record, transcripts and the findings of the trial court, we conclude that there is sufficient evidence to support the finding of guilty beyond a reasonable doubt.

The judgment is affirmed.


text:
    REMINGTON INVESTMENTS, INC. v. PATRICIA E. AVERY ET AL.
    (AC 16953)
    Foti, Landau and Hennessy, Js.
    Submitted on briefs March 4
    officially released March 24, 1998
   Per Curiam.

The judgment is affirmed.


text:
    PAUL GILBERTO, JR. v. COLONIAL SANITATION
    (AC 17158)
    Foti, Landau and Hennessy, Js.
    Argued March 4
    officially released March 24, 1998
   Per Curiam.

The decision of the workers’ compensation commissioner is affirmed.


text:
    JAMES BOSWORTH, JR. v. FORESTER MASON
    (AC 17273)
    Laveiy, Schaller and Dupont, Js.
    Submitted on briefs March 5
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM VERCH v. DELAPHINE E. HATCH ET AL.
    (AC 17207)
    Lavery, Schaller and Dupont, Js.
    Submitted on briefs March 5
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    KATHLEEN MCLEAN v. BRIAN L. DURYEA ET AL.
    (AC 17161)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Submitted on briefs March 5
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    NATHANIEL MESHEKOW ET AL. v. RAYMOND MUSCARELLA ET AL.
    (AC 17275)
    Foti, Landau and Sullivan, Js.
    Submitted on briefs March 5
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    PHILIP TRAFICONDA v. COMMISSIONER OF CORRECTION
    (AC 16947)
    Foti, Lavery and Spear, Js.
    Argued March 16
    officially released March 31, 1998
   Per Curiam.

We find that the trial court did not abuse its discretion by denying the petitioner certification to appeal. We find that the petitioner did not meet his burden of showing that there was a clear abuse of discretion or that an injustice was done. See Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994); Stovall v. Commissioner of Correction, 43 Conn. App. 552, 684 A.2d 731 (1996), cert. denied, 239 Conn. 958, 688 A.2d 329 (1997).

The appeal is dismissed.


text:
    AMERSIG GRAPHICS, INC. v. RENT MOTHER NATURE, INC.
    (AC 16631)
    Foti, Lavery and Spear, Js.
    Argued March 16
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    EDWARD M. BOMBACI v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17208)
    Landau, Schaller and Sullivan, Js.
    Argued March 17
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    DOUGLAS BUSTER v. COMMISSIONER OF CORRECTION
    (AC 17374)
    Spear, Hennessy and Shea, Js.
    Argued March 17
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH A. PRANULIS v. TOWN OF PROSPECT ET AL.
    (AC 17162)
    Foti, Hennessy and Stoughton, Js.
    Argued March 18
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS J. WALCZYK v. BARBERINO REALTY AND DEVELOPMENT CORPORATION ET AL.
    (AC 17055)
    Foti, Hennessy and Stoughton, Js.
    Submitted on briefs March 18
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    LARONE HINES v. COMMISSIONER OF CORRECTION
    (AC 17314)
    O’Connell, C. J., and Lavery and Landau, Js.
    Argued March 19
    officially released March 31, 1998
   Per Curiam.

The judgment is affirmed.


text:
    MARY J. SCRIVANI v. PETER SCRIVANI
    (AC 17149)
    Foti, Landau and Sullivan, Js.
    Submitted on briefs March 5
    officially released April 14, 1998
   Per Curiam.

The judgment is affirmed.


author: . Per Curiam.

text:
    CITY OF STAMFORD v. LJUBICA RADULOVIC ET AL.
    (AC 16672)
    Spear, Hennessy and Sullivan, Js.
    Argued March 19
    officially released April 14, 1998
   . Per Curiam.

The judgment is affirmed.


text:
    PAUL S. MOYNIHAN v. ESTATE OF JOHN MOYNIHAN
    (AC 17034)
    O’Connell, C. J., and Foti and Lavery, Js.
    Argued March 23
    officially released April 14, 1998
   Per Curiam.

The judgment is affirmed.


text:
    JANICE A. GERROW v. ELLINGTON DRYWALL, INC.
    (AC 17217)
    Landau, Schaller and Hennessy, Js.
    Argued March 24
    officially released April 14, 1998
   Per Curiam.

The judgment is affirmed.


text:
    MARY L. MORGAN v. JAMES W. MORGAN
    (AC 17109)
    O’Connell, C. J., and Lavery and Spear, Js.
    Argued March 24
    officially released April 14, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOHN JOHNSON
    (AC 16098)
    O’Connell, C. X, and Schaller and Healey, Js.
    Argued March 30
    officially released April 14, 1998
   Per Curiam.

The judgment is affirmed.


text:
    HERBERT FRANKEL ET AL. v. P. F. HOLDING CORPORATION, INC., ET AL. HERBERT FRANKEL ET AL. v. ERIC A. LAWRENCE ET AL.
    (AC 16814)
    O’Connell, C. J, and Foti and Schaller, Js.
    Argued March 30
    officially released April 14, 1998
   Per Curiam.

The judgments are affirmed.


text:
    THOMAS TSIMBIDAROS v. UPSTATE DENTAL HEALTH SERVICES, P.C.
    (AC 17522)
    O’Connell, C. J., and Lavery and Schaller, Js.
    Argued March 31
    officially released April 28, 1998
   Per Curiam.

The judgment is affirmed.


text:
    B AND D ASSOCIATES ET AL. v. BOARD OF EXAMINERS FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS
    (AC 17484)
    O’Connell, C. J., and Lavery and Hennessy, Js.
    Argued March 31
    officially released April 28, 1998
   Per Curiam.

The judgment is affirmed.


text:
    SAMI MIKHAEL v. ROBERT BOTELHO ET AL.
    (AC 17395)
    Lavery, Landau and Daly, Js.
    Argued April 1
    officially released April 28, 1998
   Per Curiam.

The judgment is affirmed.


text:
    DAVID W. CUMMINGS v. TWIN TOOL MANUFACTURING COMPANY ET AL.
    (AC 17477)
    Foti, Schaller and Sullivan, Js.
    Argued April 1
    officially released April 28, 1998
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    DAVID W. CUMMINGS v. TWIN TOOL MANUFACTURING COMPANY ET AL.
    (AC 17517)
    Foti, Schaller and Sullivan, Js.
    Argued April 1
    officially released April 28, 1998
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    KATHLEEN CHRISTENSEN v. KENT MANAGEMENT, INC.
    (AC 17241)
    Foti, Lavery and Landau, Js.
    Submitted on briefs April 2
    officially released April 28, 1998
   Per Curiam.

The judgment is affirmed.


text:
    CROMWELL HILLS CONDOMINIUM ASSOCIATION #1, INC. v. GEORGE V. LAWLER
    (AC 17455)
    O’Connell, C. J., and Hennessy and Sullivan, Js.
    Submitted on briefs April 2
    officially released April 28, 1998
   Per Curiam.

The judgment is affirmed.


text:
    COONEY AND BAINER, P.C. v. JOHN E. MILUM, SR.
    (AC 17253)
    Foti, Hennessy and Stoughton, Js.
    Argued March 18
    officially released April 28, 1998
   Per Curiam.

The defendant appeals from the summary judgment rendered in favor of the plaintiff on the defendant’s counterclaim. Having heard oral arguments and reviewed the record, transcripts and briefs, we conclude that the trial court acted in accordance with applicable law and that the granting of summary judgment was proper. We find the defendant’s claims to be without merit.

The judgment is affirmed.


text:
    LUBA N. HILL v. JAMES T. HILL
    (AC 16808)
    Spear, Hennessy and Daly, Js.
    Argued April 27
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    JOANNE MARANDINO v. MARANDINO’S ET AL.
    (AC 17060)
    O’Connell, C. J., and Hennessy and Sullivan, Js.
    Argued April 30
    officially released May 19, 1998
   Per Curiam.

The decision of the compensation review board is affirmed.


text:
    DONALD MARZI v. DORISLEE CARPENTER ET AL.
    (AC 17330)
    Foti, Schaller and Dupont, Js.
    Argued April 27
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. THEODORE PEDEMONTI
    (AC 16169)
    Foti, Schaller and Dupont, Js.
    Argued April 27
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    ESSEX SAVINGS BANK v. JEFFREY NAVIN ET AL.
    (AC 17051)
    O’Connell, C. J., and Foti and Lavery, Js.
    Argued April 30
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    HECTOR SOTO v. COMMISSIONER OF CORRECTION
    (AC 16881)
    Foti, Lavery and Dupont, Js.
    Argued April 30
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    HERTZ CORPORATION v. AMICA MUTUAL INSURANCE COMPANY ET AL.
    (AC 17247)
    Lavery, Spear and Sullivan, Js.
    Argued April 28
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM C. BIELUCH, JR., ET AL. v. HUGH MCMANUS ET AL.
    (AC 17364)
    Hennessy, Sullivan and Dupont, Js.
    Argued April 28
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    VICTOR CUBANO v. COMMISSIONER OF CORRECTION
    (AC 17040)
    Schaller, Hennessy and Dupont, Js.
    Argued April 28
    officially released May 19, 1998
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. ISSAC COUNCIL
    (AC 17281)
    Foti, Lavery and Sullivan, Js.
    Argued April 29
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    RICHARD B. CRAFTS v. COMMISSIONER OF CORRECTION
    (AC 16969)
    O’Connell, C. J., and Hennessy and Daly, Js.
    Argued May 4
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    LEVISLES CARPENTER v. COMMISSIONER OF CORRECTION
    (AC 17043)
    O’Connell, C. J., and Sullivan and Daly, Js.
    Argued May 5
    officially released May 19, 1998
   Per Curiam.

The appeal is dismissed.


text:
    HEYWOOD HEIGHTS CONDOMINIUM ASSOCIATION, INC., ET AL. v. CITY OF STAMFORD
    (AC 17384)
    O’Connell, C. J., and Sullivan and Daly, Js.
    Argued May 5
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WAYNE D. HALL
    (AC 16537)
    Lavery, Schaller and Spear, Js.
    Argued May 5
    officially released May 19, 1998
   Per Curiam.

The judgment is affirmed.


text:
    IN RE DALILAH N.

    (AC 16767)
    Hennessy, Sullivan and Dupont, Js.
    Argued April 30
    officially released May 19, 1998

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book (1998 Rev.) § 79-3, 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.

   Per Curiam.

The judgment is affirmed.


author: FOTI, J. SPEAR, J.,

text:
    HENRY KUDLACZ v. LINDBERG HEAT TREATING COMPANY ET AL.
    (AC 17337)
    Foti, Landau and Spear, Js.
    Argued February 23
    officially released June 9, 1998

      Jacek I. Smigelski, for the appellant (plaintiff).

      Richard S. Bartlett, for the appellees (named defendant et a!.).
   Opinion

FOTI, J.

The plaintiff, Henry Kudlacz, appeals from the decision of the compensation review board (board) of the workers’ compensation commission dismissing his appeal to that board. The plaintiff appeals to this court pursuant to General Statutes § 31-SOlb. The plaintiff claims that the board improperly determined that he failed to file a timely appeal pursuant to General Statutes § 31-301 (a).

The following facts are relevant to this appeal. The plaintiff claimed to be injured on May 29, 1992, in the course of his employment as a delivery driver, and on June 4, 1992, in the course of his employment as a package sorter handler. In considering the evidence and testimony presented, the workers’ compensation commissioner (commissioner) concluded that the plaintiff was not credible and that he “was not injured at either [employment] as he alleged and, to the extent he may have had a repetitive trauma injury to his back at [the second employment], there was no resulting permanent disability and no compensable period of temporary disability since the [plaintiff] continued to work after the injury . . . .” The commissioner vacated a voluntary agreement issued by the first employer and its insurance carrier based on mutual mistake of fact, and dismissed all claims for compensation and medical treatment presented by the plaintiff.

The plaintiff filed his petition for review of the commissioner’s decision on August 21, 1996. The board determined that meaningful notice of the commissioner’s decision was sent to the parties on August 8, 1996, and, therefore, the petition should have been filed by Monday, August 19, 1996. The board concluded that it lacked jurisdiction over a petition for review not timely filed and dismissed the plaintiffs appeal.

“Section 31-301 (a) provides that ‘[a]t any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board,’ and General Statutes § 31-300 provides that ‘[i]f no appeal from [the commissioner’s] decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment in the superior court.’ This court [has] held that the ten day appeal period set forth in § 31-301 (a) ‘begins to run on the day on which the party wanting to appeal is sent meaningful notice of the commissioner’s decision.’ Conaci v. Hartford Hospital, 36 Conn. App. 298, 303, 650 A.2d 613 (1994). In Conaci, the appellants challenged the board’s finding that their appeal was jurisdictionally defective because the appellants had allegedly failed to file their appeal with the board within the time prescribed by § 31-301 (a). We remanded Conaci for a determination of the date on which notice of the commissioner’s decision was sent to the parties and, based on that finding, a proper assessment of whether the appeal was timely.” Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720, 667 A.2d 76 (1995). We recently reaffirmed our decision in Conaci that the ten day appeal period begins to run on the day that the party wanting to appeal is sent meaningful notice of the commissioner’s decision. See Vega v. Waltsco, Inc., 46 Conn. App. 298, 301, 699 A.2d 247 (1997); Cyr v. Domino’s Pizza, 45 Conn. App. 199, 203-204 n.5, 695 A.2d 29 (1997).

“Once the board determines that an appeal is untimely it no longer has jurisdiction to address any remaining substantive claim. Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 648, 363 A.2d 1085 (1975); Chzrislonk v. New York, N. H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924) (action dismissing untimely workers’ compensation appeal); Wheeler v. New York, N. H. & H. R. Co., 71 Conn. 270, 282, 41 A. 808 (1898) (cited in Chzrislonk). In Chieppo, the appellant erroneously brought its appeal from a commissioner’s award to the Superior Court rather than the Court of Common Pleas resulting in a late filing of the appeal. Chieppo v. Robert E. McMichael, Inc., supra, 648. As a result of the error, the Court of Common Pleas dismissed the appeal for lack of jurisdiction. Id. Our Supreme Court affirmed that decision. Id., 654.” Freeman v. Hull Dye & Print, Inc., supra, 39 Conn. App. 720-21.

We cannot conclude that the board’s finding that meaningful notice of the commissioner’s decision was sent to the parties on August 8,1996, and that the plaintiffs petition for review should have been filed by Monday, August 19, 1996, is clearly erroneous. The plaintiff argues, however, that a distinction should be made between this case, where he might be able to prove that he received notice of the commissioner’s decision after the ten day period had expired, and all of the other cases, including those decided by the board, that assume by implication that the party who wants to appeal has actual or constructive notice of the commissioner’s decision on the day the notice is mailed. We decline to adopt the position argued by the plaintiff. As we stated in Conaci, a holding that the appeal period commences when notice of the appealable decision is received “would create undue delay and difficulties in proving receipt by the party wanting to appeal.” Conaci v. Hartford Hospital, supra, 36 Conn. App. 303. In determining when the appeal period commences, we rely, rather, on the records of the commissioner as to when notice is sent. Id., 304. As we have recently stated, “This court must construe [§ 31-301 (a)] as it finds it without reference to whether we feel that the law might be improved .... [We] cannot rewrite a statute to accomplish a particular result. That is the function of the legislature.” (Citation omitted; internal quotation marks omitted.) Vega v. Waltsco, Inc., supra, 46 Conn. App. 304.

The decision of the compensation review board is affirmed.

In this opinion LANDAU, J., concurred.

SPEAR, J.,

dissenting. I respectfully disagree with the majority’s conclusion that dismissal is required here because of our prior holdings with respect to when the ten day appeal period set forth in General Statutes § 31-301 begins to run. Basic principles of due process compel a reversal of the board’s decision because the board found as a fact that the plaintiff did not receive notice of the commissioner’s decision until after the ten day appeal period had expired. The majority makes no mention of this critical finding that distinguishes the present case from those on which the majority relies.

I first address the defendants’ assertion that we should not consider the plaintiffs constitutional claim because it was not raised before the board and is not properly briefed before this court. I do not view the failure to raise this claim before the board as a bar to our now addressing this issue. In Hurtado v. Hurtado, 14 Conn. App. 296, 299-300, 541 A.2d 873 (1988), we held that we may consider unpreserved constitutional claims in a civil case pursuant to the principles of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Here, the record is adequate for our review, and the fact that the notice that triggered the right to appeal was received beyond the appeal period unquestionably presents a claim of constitutional dimension.

The briefing claim is more problematic. It is true that the plaintiff makes only two very scant references to “due process” in his brief and relies specifically on article first, § 10, of the constitution of Connecticut. Although we may treat inadequately briefed claims as abandoned; State v. Silva, 43 Conn. App. 488, 494, 684 A.2d 725 (1996), cert. denied, 239 Conn. 956, 688 A.2d 329 (1997); DiBartolomeo v. Hill, 41 Conn. App. 355, 361, 675 A.2d 1373 (1996); Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996); I have found no cases that require us to do so. Because of the severe deprivation of due process that is occasioned by the lack of notice here, I would review this claim despite the inadequate briefing.

The board dismissed the appeal as untimely in reliance on our language in Conaci v. Hartford Hospital, 36 Conn. App. 298, 650 A.2d 613 (1994). When Conaci was before the board, the boar d opined that the ten day appeal period could be extended only if notice of the decision was received beyond the ten day period. When Conaci reached us on appeal from the board, we emphatically rejected this statement, stating: “Nor do we agree with the compensation review board that the ten day appeal period in General Statutes § 31-301 (a) is tolled only if notice to the party wanting to appeal is received later than, ten days from the date of the decision. Such a holding would create absurd results. According to the review board, a party receiving notice of a decision nine days after its entry has only one day in which to appeal, while a party receiving notice on the eleventh day has ten days in which to appeal. We find such a rule inconsistent and unreasonable. Such a bizarre result could not have been intended by the legislature. The law favors a rational statutory construction and we presume that the legislature intended a sensible result.” (Internal quotation marks omitted.) Conaci v. Hartford Hospital, supra, 304. In Conaci, neither the board nor this court was faced with a situation where the board found as a fact that notice of the commissioner’s decision was received after the ten day appeal period had expired, and none of the cases cited by the majority involves such a finding by the board. The majority’s holding is also contrary to the due process reasoning of our decisions regarding the commencement of the statutory four month period for opening judgments. In those cases discussed in the following paragraphs, we have held that the receipt of the notice, rather than its sending, triggers the four month period in question.

Our Supreme Court has held that the due process clause of the United States constitution protects a party’s right to pursue a tort claim because such a claim rises to the level of a property interest. “A right of action, including one for personal injuries, is a vested property interest, before as well as after judgment.” (Internal quotation marks omitted.) Worsham v. Greifenberger, 242 Conn. 432, 438, 698 A.2d 867 (1997). “Our due process inquiry takes the form of a two part analysis. [W]e must determine whether [the plaintiff] was deprived of a protected interest, and, if so, what process was his due.” (Internal quotation marks omitted.) Id. For due process purposes, I discern no reason to treat the workers’ compensation claim here differently from a tort claim.

With respect to procedural due process, this court has stated: “When determining what procedures are constitutionally required, we must bear in mind that [t]he essence of due process is the requirement that a person in jeopardy of a serious loss [be given] notice of the case against him and [an] opportunity to meet it. . . . In other words, due process requires notice and proceedings . . . adequate to safeguard the right for which the constitutional protection is invoked.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 41 Conn. App. 255, 263, 675 A.2d 887 (1996), rev’d on other grounds, 242 Conn. 523, 700 A.2d 14 (1997). In Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979), our Supreme Court stated that “ [fundamental tenets of due process, moreover, require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses. . . . Dohany v. Rogers, 281 U.S. 362, 369, 50 S. Ct. 299, 74 L. Ed. 904 (1930) . . . .” (Citations omitted; emphasis added.) Moreover, “[t]he guarantee of procedural due process requires that persons whose rights are to be affected have a right to notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Langan v. Weeks, 37 Conn. App. 105, 118, 655 A.2d 771 (1995).

We have adhered to these due process principles in cases where parties who did not receive timely notice have sought to open judgments that were more than four months old. In Morelli v. Manpower, Inc., 34 Conn. App. 419, 642 A.2d 9 (1994), an action was dismissed for the plaintiffs failure to prosecute diligently, pursuant to Practice Book § 251, now Practice Book (1998 Rev.) § 14-3. The action was dismissed on June 28, 1991, but the plaintiff did not file a motion to open the judgment until November 21, 1991. The trial court denied the motion, stating that the court had no jurisdiction because more than four months had elapsed between the date of the judgment and the motion to open. On appeal, we stated that “ ‘[i]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. . . .’ [A] notation [that the clerk’s office has sent notice to all parties of record] raises a presumption that notice was sent and received in the absence of a finding to the contrary. . . . Because the presumption is rebuttable, it follows that the plaintiff is entitled to a hearing to have an opportunity to present such rebuttal evidence.” (Citations omitted.) Morelli v. Manpower, Inc., supra, 423. In Habura v. Kochanowicz, 40 Conn. App. 590, 591-92, 672 A.2d 512 (1996), we held that where the defendants received notice of a judgment against them by way of a letter from the plaintiffs counsel that was received six months after the judgment was rendered, the four month period began to run from the date that the defendants received the letter.

More recently, in Handy v. Minwax Co., 46 Conn. App. 54, 56-59, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997), we held that where the plaintiff did not have actual or constructive notice of the judgment dismissing his action until he received a letter from the defendant’s counsel almost fourteen months after the date of the judgment, the four month time period was triggered by the plaintiffs receipt of the letter. The motion to open the judgment, filed one week after receipt of the letter, was timely, and the court, therefore, had jurisdiction to open the judgment.

I see no reason to treat this workers’ compensation case differently from the judgment cases. Although the four month statute does not present precisely the same jurisdictional bar as does § 31-301, in each instance the jurisdiction of the tribunal is constrained by a statutory time limit. The Conaci decision envisions an “absurd” result where a party who receives notice on the ninth day after the notice was sent would have only one day to appeal, whereas a party who receives notice on the eleventh day would have ten days to appeal. Conaci v. Hartford Hospital, supra, 36 Conn. App. 304. When we apply that reasoning to the judgment cases, the same “absurd” result could occur. A party who receives notice of the judgment one day before the four month period expires would have only one day to file a motion to open the judgment, whereas a person who receives notice one day after the time period expired would have four months from that date to file such a motion.

In the judgment cases, we were not concerned with the reductio ad absurdum that was feared by the Conaci court. Speculation about such possibilities would not be useful in assessing whether a party’s due process rights to notice and an opportunity to be heard have been violated. There is no logic to the notion that the plaintiff, who received no notice during the ten day period, should lose his right to appeal because of the possibility that a case may arise in the future where notice is received so late in the ten day period that the time to appeal is severely compressed. Such a case can be addressed if and when it arises.

Finally, the majority correctly states that we must construe § 31-301 as we find it without regard to whether the law might be improved. The construction that I advocate does not change § 31-301 in any way. It simply requires that the applicable time period be construed in a manner that is consistent with constitutional due process. “It is a fundamental rule that, if its language permits, a statute will be construed so as to render it constitutionally valid.” Grega v. Warden, 178 Conn. 207, 210, 423 A.2d 873 (1979). Our Supreme Court, in reliance on Grega, later stated that “[a] court is justified in holding that a statute was intended to be subject to constitutional requirements, and that those requirements are to be considered as embodied in the statute, if its terms do not exclude such requirements.” (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). I see nothing in § 31-301 that would preclude us from construing it so that the plaintiff, who acted promptly after receiving notice, is not barred from pursuing his appeal. I conclude that the appeal was timely filed.

Because of the violation of the plaintiffs basic due process rights to notice and an opportunity to be heard, I would reverse the decision and remand the case to the board for a determination of the merits of the appeal.

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in .the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.”

       General Statutes § 31-301 (a) provides: “At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.”

       The plaintiff claims that the first iqjury was to his head and neck, and the second was to his back. The plaintiff sought benefits from his employers, the defendants Lindberg Heat Treating Company and United Parcel Service, Inc., and their respective insurance carriers, the defendants Crawford and Company and Liberty Mutual Insurance Company.

       The record discloses that the address for the plaintiffs attorney is a post office box and not a street address.

       General Statutes (Rev. to 1972) § 31-301 provided that parties appeal commissioner’s awards to the Court of Common Pleas. Public Acts 1979, No. 79-540, § 3, amended § 31-301 to provide that appeals be taken to the compensation review division and Public Acts 1991, No. 91-339, § 20, amended § 31-301 to its current state, which provides that appeals be taken to the board.

       The dissent makes much of the “critical finding” that only the plaintiff failed to “receive” notice within the ten day appeal period. Query: Was the purpose of that “finding” merely to point out that the other parties did receive notice within the appeal period, and that it was only the plaintiff who claimed that he did not receive notice? Is this a “finding” that the plaintiff did not receive notice because it was not delivered during the appeal period, or, rather, that notice was delivered during the appeal period but that the plaintiff did not “receive” it because he neglected to pick up his mail at his post office box? The dissent would have a party defeat the requirements for filing a timely appeal pursuant to § 31-301 (a) by simply neglecting to pick up his mail or refusing to sign for a certified letter.

       The board has consistently held that the ten day appeal period begins to run on the day that meaningful notice is sent to the parties, rather than when such notice is received by the parties. See Schreck v. Stamford, 3322 CRB-7-96-4 (September 23, 1997); Vega v. Waltsco, Inc., 15 Conn. Workers’ Comp. Rev. Op. 307 (June 21, 1996); Cyr v. Domino’s Pizza, 15 Conn. Workers’ Comp. Rev. Op. 151 (January 26, 1996).

       See footnote 2 of the majority opinion.

       The board’s opinion states: “Only the [plaintiff] failed to receive notice within the ten-day period.” The majority, inexplicably, refers to this case as one where the plaintiff “might be able to prove that he received notice of the commissioner’s decision after the ten day period had expired . . . .”

       The majority fails to address the plaintiffs constitutional claim, and does not say whether it declines to do so for either or both of the reasons advanced by the defendants.

        State v. Golding, supra, 213 Conn. 239-40, provides: “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

       Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       In Conaci, the trial commissioner’s decision was entered on July 15, 1991, and the board found that the claimant received notice of the decision on July 23, 1991. The claimant, therefore, necessarily received notice within ten days after it was sent. The issue on remand became whether she appealed within or beyond ten days of the sending of notice. Conaci v. Hartford Hospital, supra, 36 Conn. App. 304.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law . . . a civil judgment . . . may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered . . . .The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .” We have held that “[w]hen the motion to open is not timely and the time limitation has not been waived, however, the trial court lacks jurisdiction to open the judgment.” Ziruk v. Bedard, 45 Conn. App. 137, 139, 695 A.2d 4 (1997).

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law . . . .”

       We note that § 31-301 implicates subject matter jurisdiction; Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 283, 695 A.2d 1051 (1997); whereas General Statutes § 52-212a, by its own terms, does not. In re Baby Girl B., 224 Conn. 263, 288, 618 A.2d 1 (1992).