text:
    Roger Lubesky v. George Bronson, Warden
    (13650)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued October 6
    decision released November 28, 1989

      Martin Zeldes, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (petitioner).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Bradford J. Ward, assistant state’s attorney, and, on the brief, John Connelly, state’s attorney, for the appellee (respondent).
   Covello, J.

This is an appeal from a decision of the trial court denying the petitioner’s application for a writ of habeas corpus and rendering judgment for the respondent. The dispositive issue is whether the state deliberately concealed an eyewitness-victim during the presentation of the petitioner’s defense at his trial for murder. We conclude that the habeas court did not err in finding that the petitioner had not met his burden of proof on this claim.

On September 1, 1979, at approximately 1:45 a.m., someone entered the Waterbury apartment shared by Thomas Radke and Patricia Reagan and shot them both in the head. Reagan died as a result and Radke sustained five bullet wounds in the head and neck.

On November 20,1979, a grand jury returned a true bill on a two-part information charging Roger Lubesky with murder in the first degree in violation of General Statutes § 53a-54a and assault in the first degree in violation of General Statutes § 53a-59 (a) (l).1 The petitioner was tried and found guilty by a jury of twelve. The petitioner was also convicted of being a persistent felony offender in violation of General Statutes § 53a-40 (a). On August 15, 1980, the trial court, Stoughton, J., sentenced the petitioner to an effective term of imprisonment of forty years to life.

On March 19, 1985, on direct appeal to this court, the judgment of the trial court was affirmed in State v. Lubesky, 195 Conn. 475, 488 A.2d 1239 (1985). At that time we declined, for lack of an adequate record, to review the claim now raised by the petitioner that a due process violation had occurred because the state had deliberately concealed the eyewitness-victim Radke when defense counsel sought to recall him to the witness stand as a defense witness. State v. Lubesky, supra, 480. On May 20,1985, the petitioner filed a petition for a writ of habeas corpus, which was later amended on September 5, 1985.

The amended petition alleged, inter alia, that the petitioner’s constitutional right to due process under the fifth, sixth and fourteenth amendments to the United States constitution and under article first, § 8 of the Connecticut constitution had been violated by the state’s misleading statements regarding the whereabouts of Radke during the petitioner’s trial, by the state’s failure to disclose to the petitioner, at or before his trial, the fact of Radke’s pending application to the federal witness protection program, and by the state’s making Radke unavailable or concealing Radke from the petitioner during the trial.

Between February 4 and February 8,1988, the petition was tried before the habeas court, Barry, J. On July 26,1988, the habeas court dismissed the amended petition. On August 30,1988, the habeas court granted the petition for certification to appeal, limited to the deliberate concealment claim. On November 7, 1988, the petitioner filed the instant appeal in the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

At the criminal trial, the case against the petitioner was largely circumstantial and was primarily, albeit not exclusively, dependent upon the testimony of the surviving victim, Thomas Radke. At that trial Radke testified that it was the petitioner who had entered the apartment and fired the shots that killed Reagan and wounded him. He testified that he and Reagan were together in the bedroom of the basement apartment they shared. Reagan was watching television while Radke was in bed, sleeping with a pillow wrapped around his head to drown out the noise of the television. Radke testified that he was awakened by the familiar sound of the petitioner’s voice. He testified that he heard the petitioner say “turn down the t.v.” and then “somebody told about the Mancione score.” Radke testified that almost immediately thereafter he heard three shots fired from a gun. He then testified that he started to get up but lost consciousness. When he regained consciousness the pillow was stuck to the left side of his head. Radke further testified that he tried to arouse Reagan, who was lying on the floor, but that she did not move. Radke testified that he then dressed and walked to a nearby cafe to summon help. He was thereafter hospitalized and treated for five bullet wounds to his neck and head. A forensic expert determined that the bullets removed from Reagan and Radke were fired from the same gun, a weapon that was never located.

On June 24, 1980, two days prior to Radke’s testimony at trial, assistant state’s attorney Walter Scan-lon sent a letter to Harold Pickerstein, chief assistant United States attorney, seeking to place Radke in the federal witness protection program. On June 25,1980, Pickerstein sent a letter to Scanlon acknowledging receipt of Scanlon’s June 24 letter. During Radke’s testimony on June 26 and 27 he maintained that there had been no promises, threats or deals made with or to him by the state in exchange for his testimony against the petitioner. Radke did acknowledge that he hoped that some consideration would be given for his testimony, i.e., that he would receive little or no punishment for the larceny and forgery charges to which he had recently pled guilty.

Radke was cross-examined for the better part of two days and concluded his testimony on June 27,1980. At that time the petitioner’s trial counsel, Michael C. Hag-strom, did not indicate to the trial court that Radke would be required to testify again, nor did he request the trial court to order Radke back at any specific time. On June 27, 1980, Radke had not yet been approved to enter the federal witness protection program and neither Radke nor the state mentioned the pending efforts to place him in the program.

After the conclusion of Radke’s trial testimony, Hag-strom learned that Radke had been the primary informant with respect to a search warrant issued in New Haven against Peter Pepe. Hagstrom contacted the attorneys for Pepe who confirmed that Radke was scheduled to testify against Pepe in his upcoming trial on larceny charges. Hagstrom then decided that it was necessary to bring Radke back into court to testify during the presentation of the petitioner’s case. Hagstrom believed that the Pepe information revealed that Pepe had as much if not more of a motive to harm Radke as did the petitioner, and that the defense was unable to explore the matter at the time of trial because the information was not available when Radke was on the witness stand. A subpoena was issued that the sheriff unsuccessfully attempted to serve on Radke over the weekend of June 28-29. On July 2, 1980, the sheriff returned the unserved subpoena to Hagstrom with an attached note indicating his inability to find Radke.

On the previous day, July 1, 1980, Hagstrom happened to be outside the state’s attorney’s office when he observed Radke inside with several other persons. Radke was there to meet with the United States marshal’s service, the administrator of the federal witness protection program. On July 3,1980, after learning of the sheriff’s inability to find Radke and serve him with the subpoena, Hagstrom sought an order requiring the state to disclose Radke’s whereabouts. Hagstrom stated his belief that Radke either was being held in protective custody or had left the jurisdiction in order to avoid further testimony. In response, Scanlon represented to the trial court that Radke was not in protective custody and that he did not know Radke’s whereabouts. The court granted the motion “for what it’s worth.” Scanlon then stated that in the event he learned where Radke was, he would produce Radke in lieu of disclosing his whereabouts. After further colloquy the court paraphrased Scanlon’s statement to Hag-strom as follows: “What he is saying is, as I understand it, you want Thomas Radke, you want the State’s help in trying to locate him, if they can find him, they will get him here, that is what he is saying.” Hagstrom affirmatively accepted Scanlon’s representation, indicating that the state’s production of Radke in court was acceptable.

On July 9,1980, trial testimony was concluded. Hag-strom made no request for a continuance for the purpose of looking further for Radke, or to have the state describe what efforts had been made to locate him. No further reference of any kind was made during the trial concerning Radke’s testifying for the defense. On July 11, 1980, the verdict was reached.

On August 15, 1980, at the sentencing hearing, the petitioner filed a motion to dismiss. Hagstrom claimed that on August 11, 1980, after acceptance of the verdict, he discovered that Radke had entered the federal witness protection program. He contended that the state both knew of Radke’s whereabouts when it denied such knowledge on July 3,1980, and in fact had assisted Radke’s entrance into the witness protection program. Hagstrom claimed that after the conclusion of his cross-examination of Radke, he uncovered the new information regarding the statement Radke had given to the New Haven police concerning the forgery and larceny charges previously pending against Radke that implicated Pepe. Hagstrom argued that the state had “sequestered” Radke and as a result the petitioner had lost his right to confront Radke and contradict his earlier testimony.

The state denied hiding Radke or misrepresenting his whereabouts. The state contended that it notified the United States attorney’s office before trial of Radke’s desire to enter the witness protection program, and that the state was then told that Radke would be interviewed by the appropriate federal agency. The state was told that from that point on it would be excluded from the matter. Radke did not obtain approval to enter into the program until July 11,1980, and the state did not learn of this until a later date. Radke remained in the program until July 24,1980. The trial court denied the petitioner’s motion, stating that the court did not know when Radke had entered the program or when the state had become aware of it. The trial court also noted that Radke had undergone extensive and vigorous cross-examination and that there had been no request for a continuance.

On direct appeal to this court, the petitioner raised several issues, including a claim that the state’s alleged concealment of Radke’s whereabouts violated the petitioner’s rights under the compulsory process and due process clauses of the federal and state constitutions. We rejected the petitioner’s compulsory process claim, noting that Radke testified as a witness for the state, that he was subjected to grueling cross-examination, that at the end of his testimony he was excused and neither party indicated that he would be called again as a witness, and that Radke would have had no reason at that time to think he might be called as a witness again. State v. Lubesky, 195 Conn. 475, 479-80, 488 A.2d 1239 (1985). Due to these circumstances, and the fact that the petitioner at no time either requested a continuance or moved for a mistrial, we rejected the claim that the petitioner’s right to compulsory process was violated. Id., 480.

We declined, however, to review then the claim that the petitioner raises in the instant proceeding, i.e., that a due process violation occurred because the state deliberately concealed Radke when the petitioner sought to recall him as a defense witness. Id. While agreeing that the deliberate concealment of an eyewitness in order to prevent his testifying at trial constitutes a prima facie violation of due process, we noted that “[t]he parties are clearly at odds over whether the state deliberately concealed the whereabouts of Radke from the [petitioner]. Absent an evidentiary hearing on this issue, the claim is extremely difficult to review. The [petitioner] has failed to show on this record that the state knew anything more than he did as to Radke’s whereabouts. We therefore find no error.” Id., 480. We went on to note that “[t]his holding, however, does not preclude the [petitioner] from pursuing his claim in an appropriate collateral action in which he will have an opportunity to develop a complete factual record at an evidentiary hearing.” Id., 480 n.l.

On May 20, 1985, the petitioner commenced this habeas action to challenge the due process implications arising from the state’s alleged concealment of Radke’s whereabouts. At the habeas hearing Radke testified that when he left the trial courtroom on June 27,1980, he was “on his own.” He further testified that between Friday evening, June 27, 1980, and Sunday night, June 29,1980, he stayed at a Danbury motel and that the lodgings were arranged and paid for by the state. Scanlon and inspector Thomas Bouley both testified that they felt sympathy for Radke and agreed to put him up in the motel over the weekend and that Radke chose Danbury because he wanted to be near Reagan’s parents.

During the habeas hearing Radke further testified that on Sunday, June 29, 1980, he slipped and fell in the shower of the motel and was taken to the Danbury hospital emergency room He was released on Monday, June 30, 1980, and went from there to the Reagan home. On that day Bouley and inspector Donald Rice, also a member of the state’s attorney’s office, went to visit Radke at the Reagan home after learning that Radke had been injured and had left the motel. Bouley testified that they wanted to investigate whether Radke’s injury was accidental or whether someone had hurt him. Rice testified that Radke said “he was perfectly capable of taking care of himself and he was all set; that he needed no assistance from us.” Bouley testified that Radke also stated that .he planned to stay with the Reagans. The petitioner failed to elicit any specific testimony from Bouley indicating whether the inspector knew that Radke planned to stay with the Reagans for the entire week, and if so, whether he reported this fact to Scanlon.

On July 1,1980, Radke went to Scanlon’s Waterbury office for an interview with Dennis Barry of the United States marshal’s service. Radke testified at the habeas hearing that he had stayed at the Reagan home for about one week, from June 30 until July 8 or 9, 1980. At that time Radke left the Reagan home and with his new girlfriend returned to Waterbury to stay with her parents. During this period the United States marshals knew where to contact Radke, although Radke testified that he did not know how to reach them. Radke testified that on July 10, 1980, he was notified of his formal acceptance into the witness protection program and that on July 11,1980, a marshal picked up Radke at the Waterbury home of his girlfriend’s parents. Radke was taken to an airport where he was flown to an unspecified location.

At the habeas hearing Radke further testified that between June 27 and July 11,1980, he came and went as he pleased, was essentially on his own, had no contact with anyone in the Waterbury state’s attorney’s office, and was not told by anyone in that office to make himself scarce or hide himself. He testified that if he had been contacted after June 26 and 27,1980, to come back to the trial court, he would readily have done so. Radke also testified that during this period his bondsman knew where he was. Scanlon, Rice and Bouley all testified that they did not know where Radke was between July 3 and July 11,1980, and that they did not conceal his whereabouts. Scanlon testified that when he represented to the court on July 3, 1980, that he would produce Radke if he learned of his whereabouts, he had not seen Radke since June 27, 1980, and that he did not conceal Radke’s location. He testified that he knew Radke had been lodged in a motel on June 28 and 29, 1980, at state expense, but that this was done because Radke was without funds. Scanlon testified that he was not present at the July 1, 1980 interview between Radke and the federal marshals held in Scan-lon’s Waterbury office, although the federal government record of the interview indicates he was present. He further testified that he was aware that the state would need to pay the costs of Radke’s initial entrance into the witness protection program, but that those expenses would be small. Scanlon testified that he did not know whose idea it was to place Radke in the witness protection program, but admitted that he made the initial contact with the United States attorney’s office in order to gain Radke’s admission into the program. He testified that Radke was placed in the federal witness protection program because there was a fear for his life.

Michael Hagstrom, the petitioner’s trial counsel, also testified at the habeas hearing. He testified that while he was “looking like crazy” for Radke, he did not contact either Radke’s bondsman or attorney. Hagstrom also testified that he did not ask to recall Radke when Radke concluded his direct and cross-examination testimony and left the stand, or to have Radke made available at some time in the future.

At the conclusion of the hearing the habeas court found that the petitioner had not sustained his burden of proving that the state had deliberately concealed Radkd in order to prevent him from returning to the witness stand. Although it concluded that the state had knowledge of Radke’s whereabouts through June 30, 1980, and that Scanlon might have seen Radke on July 1,1980, the habeas court found that neither Scan-lon nor any member of the state’s attorney’s office knew where Radke was between July 1 and July 11, 1980, concluding that “[t]he record is devoid, however, of any evidence that Mr. Scanlon or any member of his office knew of the whereabouts of Radke between July 1,1980 and his entry into the witness protection program on July 11, 1980.” The habeas court noted that Radke’s testimony to the effect that no one suggested he hide or absent himself from the area was consistent with the testimony of Scanlon, Bouley and Rice.

The deliberate concealment of an eyewitness in order to prevent his testifying at trial constitutes a prima facie deprivation of due process. Hernandez v. Estelle, 674 F.2d 313, 315 (5th Cir. 1981); Ashley v. Wainwright, 639 F.2d 258, 261 (5th Cir. 1981); Lockett v. Blackburn, 571 F.2d 309, 311 (5th Cir.), cert. denied, 439 U.S. 873, 99 S. Ct. 207, 58 L. Ed. 2d 186 (1978); State v. Lubesky, supra, 480. A showing of deliberate concealment ripens into constitutional error if the witness’ testimony would have been material, i.e., upon a showing that the missing witness’ testimony, when evaluated in the context of the entire record, would create a reasonable doubt of guilt that would not otherwise exist. Lockett v. Blackburn, supra, 314. Courts have found deliberate concealment where the state affirmatively encourages and assists the witness’ disappearance from the jurisdiction despite the knowledge that the witness is under a subpoena or is otherwise a necessary defense witness. Hernandez v. Estelle, supra, 315-17; Clark v. Blackburn, 632 F.2d 531, 534 (5th Cir. 1980); Freeman v. Georgia, 599 F.2d 65, 68-71 (5th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 641 (1980); Lockett v. Blackburn, supra, 311, 313-14.

The state has no obligation, however, to locate defense witnesses or to secure their presence at trial in the absence of a showing that the witness is under the state’s custody or control; Guaraldi v. Cunningham, 819 F.2d 15, 19 (1st Cir. 1987); Jacobson v. Henderson, 765 F.2d 12, 16 (2d Cir. 1985); or that the witness’ unavailability was caused by the state’s suggestion or procurement; United States v. Ballesteros-Acuna, 527 F.2d 928, 930 (9th Cir. 1975); or by the state’s unilateral, overt action. United States v. Gonzales, 617 F.2d 1358, 1363 (9th Cir.), cert. denied sub nom. Patel v. United States, 449 U.S. 899, 101 S. Ct. 268, 66 L. Ed. 2d 129 (1980); United States v. Hernandez-Gonzalez, 608 F.2d 1240, 1244 (9th Cir. 1979). Courts will reject claims of deliberate concealment where the witness leaves the jurisdiction on his own volition or initiative or where, for other reasons, the defendant’s inability to locate the witness is not attributable to the state. United States v. Layton, 855 F.2d 1388,1408 (9th Cir. 1988), cert. denied, 489 U.S. 1046, 109 S. Ct. 1178, 103 L. Ed. 2d 244 (1989); United States v. Guzman, 852 F.2d 1117, 1122 (9th Cir. 1988).

The petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof. Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759 (1984). The habeas court’s findings regarding deliberate concealment are reviewed as questions of fact and are subject to reversal only if they are clearly erroneous. Hernandez v. Estelle, supra, 315; Myers v. Manson, supra, 391. The record of the habeas proceeding does not warrant a conclusion that the habeas court’s finding that the state did not deliberately conceal Radke was clearly erroneous. Radke voluntarily went to Danbury upon the conclusion of his trial testimony. At that time there was no suggestion or indication that the petitioner would seek to recall Radke as a defense witness. The petitioner did not seek to recall Radke as a defense witness until July 3. Thus, Scanlon’s actions in facilitating Radke’s entrance into the federal witness protection program, which began with a letter to the United States attorney’s office on June 24, cannot reasonably be said to have been motivated by any desire to prevent Radke from testifying for the petitioner. Moreover, Scanlon had no input or influence on the decision of the federal government to enter Radke into the witness protection program. The mere fact, standing alone, that Scanlon initiated the application on Radke’s behalf, is insufficient to constitute a deliberate attempt at concealment.

Although the habeas court record shows that Bouley and Rice were in contact with Radke between June 27 and June 30, they, like Scanlon, had no reason to believe that he would be wanted by the defense for further testimony. While their actions might have contributed to Radke’s absence from Waterbury in the days following his testimony, in light of the record before us they cannot reasonably be said to have deliberately concealed Radke to prevent his testifying for the defense. See, e.g., Ashley v. Wainwright, supra, 261.

The record adequately supports the habeas court’s finding that neither Scanlon, Bouley nor Rice knew Radke’s whereabouts between July 3, when Hagstrom moved to disclose his whereabouts, and July 11, when the verdict was reached. The record further supports the finding that as of July 3 neither Scanlon nor the two inspectors were in contact with Radke and that Radke was not in the state’s custody or control, but rather was “his own man” who came and went at his pleasure. As factfinder, the habeas court was entitled to credit Scanlon’s testimony that on July 1 he was present only momentarily when the federal authorities arrived to interview Radke and that he left soon thereafter without seeing or speaking with Radke. See, e.g., State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984). The habeas court was also entitled to credit Scanlon’s testimony that on July 3, when the petitioner made his motion for disclosure, Scanlon knew only that Radke was not in protective custody. In light of the record, as a whole, the habeas court’s finding that the state did not know Radke’s whereabouts during the period in question and did not deliberately conceal him from the petitioner is not clearly erroneous.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1979) § 53a-54a provided: “murder defined. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony unless it is a capital felony and the death penalty is imposed as provided by section 53a-46a.”

       General Statutes (Rev. to 1979) § 53a-59 (a) (1) provided: “assault in the first degree: class B felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.”

       General Statutes (Rev. to 1979) § 53a-40 (a) provided: “persistent OFFENDERS: DEFINITIONS; DEFENSE; AUTHORIZED SENTENCES, (a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault, in the first or third degree, sexual assault in the first or third degree with a firearm, robbery in the first or second degree, or assault in the first degree; and (2) has been, prior to the commission of the present crime, convicted and imprisoned, under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution for any of the following crimes: (A) The crimes enumerated in subdivision (1), the crime of murder, or an attempt to commit any of said crimes or murder; or (B) prior to October 1, 1975, any of the crimes enumerated in sections 53a-72, 53a-75 or 53a-78 of the general statutes, revision of 1958, revised to 1975, or prior to October 1,1971, in this state, assault with intent to kill under section 54-117, or any of the crimes enumerated in sections 53-9, 53-10, 53-11, 53-12 to 53-16, inclusive, 53-19, 53-21, 53-69, 53-78 to 53-80, inclusive, 53-82, 53-83, 53-86, 53-238 and 53-239 of the general statutes, revision of 1958, revised to 1968, or any predecessor statutes in this state, or an attempt to commit any of said crimes; or (C) in any other state, any crimes the essential elements of which are substantially the same as any of the crimes enumerated in subdivision (1) or (2).”

       The petitioner received a sentence of twenty-five years to life on the murder charge, and a consecutive sentence of fifteen years to life on the assault in the first degree charge, for a total effective sentence of forty years to life.

       On July 16,1980, Radke signed a memorandum of understanding with the marshal’s service. This memorandum listed Walter Scanlon as the sponsoring agent and Donald Rice as- the case agent.

       On July 11, 1980, at Scanlon’s behest, the bonds in two of Radke’s pending cases were lowered or changed to promises to appear as a prerequisite for his entering the witness protection program.

       Because we find that the habeas court record, considered as a whole, provides no evidence to support a showing of deliberate concealment by the state, we need not address the materiality question.

       Cf. Ashley v. Wainwright, 639 F.2d 258 (5th Cir. 1981) (no deliberate concealment where government bought informant plane ticket to California because defendant had not yet requested informant’s presence at trial).

       In Ms appellate brief, the petitioner argues for the first time that the state failed to fulfill a promise, made by Scanlon to the trial court on July 3, that it would look for Radke and, if possible, produce him in court. The petitioner apparently contends that the breach of this promise amounted to a due process violation.
      This is the first time, however, that this claim has been raised in the instant proceeding. The amended petition contains no reference to the July 3 “promise” by Scanlon, either as related to the deliberate concealment claim or as an independent ground for relief. No testimony concerning the efforts made by Scanlon to locate Radke was elicited at the habeas proceeding. The habeas court did not rule upon or even refer to a claim relating to a promise made by Scanlon to the trial court. Moreover, the habeas court did not certify such an issue for review. See General Statutes § 52-470 (b).
      Whether the state violates the due process provisions of the state and/or federal constitutions when it makes a representation in open court, on the record, that it will produce a witness in lieu of disclosing his whereabouts, is a separate question. The record of the habeas proceeding is wholly inadequate to constitute the proper factual record necessary for this court to consider that question. A crucial question would be whether it was reasonable for the defense to rely upon the representation as formulated to the court. Also, such a representation may affect the state’s duty vis-a-vis the law of deliberate concealment, as well as its general duty to the court. See, e.g., State v. Williams, 203 Conn. 159, 169, 523 A.2d 1284 (1987).


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Tower Business Park Associates Number One Limited Partnership v. Water Pollution Control Authority of the Town of Simsbury
    (13762)
    Healey, Shea, Callahan, Glass and Hull, Js.

      Argued October 12
    decision released November 28, 1989

      Charles L. Howard, with whom, on the brief, was Timothy J. Covello, for the appellant (defendant).

      Elliott B. Pollack, with whom was Linda M. Wilder-Curtis, for the appellee (plaintiff).
   Shea, J.

This is an appeal authorized by General Statutes § 7-250 from a supplemental sewer assessment levied against property on Hopmeadow Street in Sims-bury owned by the plaintiff Tower Business Park Associates Number One Limited Partnership. The assessment was imposed by the defendant Water Pollution Control Authority of Simsbury after the plaintiff had converted a factory building on the property at the time it was purchased in 1984 into a two story office building. As its authority for the supplemental assessment, the defendant relied upon General Statutes § 7-249,* which provides that “[benefits to buildings or structures constructed or expanded after the initial assessment may be assessed as if the new or expanded buildings or structures had existed at the time of the initial assessment.” The trial court rendered judgment for the plaintiff, thus invalidating the assessment, “because it was not determined on the basis of the actual benefit to the subject property adjusted to the time of the initial assessment.” The defendant has appealed, claiming that the court erred in finding that the plaintiffs evidence was sufficient to overcome the presumption of the validity of the supplemental assessment. We conclude that the evidence presented was insufficient as a matter of law to overcome this presumption and therefore find error.

The subordinate facts are undisputed. In 1977 the defendant levied a special benefit assessment of $29,672.15 upon the property involved, which was then owned by Hartford Special Machinery Company (Hartford Special), a manufacturer. This assessment resulted from the construction of sanitary sewers in Simsbury to which the property had access. Hartford Special paid the assessment and used the sewers in conjunction with the operation of its factory until 1984, when the property was sold to the plaintiff.

During 1984 and 1985 the plaintiff renovated the large one story factory building, converting it into a two story office building and thereby adding 25,657 square feet of interior floor space above the 92,417 square feet contained in the original building. Two smaller buildings were removed from the property. Based on the 1974 valuations in effect when the initial sewer assessment was levied, the assessed value of the property as of that year would have increased from $650,000 to $3,141,310 as a result of the renovations. Calculating the sewer assessment at the rate of $44.50 per $1000 of assessed value and deducting the initial assessment, which had been paid, the defendant imposed a supplemental assessment of $110,116.14 on the plaintiffs property.

In addition to assessments for the cost of installing sanitary sewers, the defendant also charges property owners for the use of the sewers. Because the plaintiff has decreased its use of the sewers as compared with Hartford Special, the defendant has granted the plaintiff’s request for a reduction in the sewer use charge.

I

As the trial court recognized, there is a presumption as to the “regularity, validity and correctness” of a special benefit assessment that imposes on one challenging the assessment the burden of proof. Katz v. West Hartford, 191 Conn. 594, 602, 469 A.2d 410 (1983); see Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985). “An appellant may overcome this presumption by introducing competent evidence that the assessment is greater than the increase in the market value of the property due to the improvement.” Katz v. West Hartford, supra, 602-603. Section 7-249 expressly provides that “[t]he sum of initial and subsequent assessments shall not exceed the special benefit accruing to the property.”

The trial court concluded that the plaintiff had produced sufficient countervailing evidence to overcome the presumption of the validity of the assessment. The memorandum of decision does not specifically identify the evidence relied upon, but the plaintiff, in support of the court’s conclusion, refers to the testimony of his expert witnesses that the use of the sewer had decreased since the factory building had been converted into an office building and that no additional benefit from the sewer had resulted simply from the conversion. The plaintiff claims that this evidence, which the court apparently credited, satisfies the standard of “competent evidence that the assessment is greater than the increase in the market value of the property due to the improvement,” which is necessary to overcome the presumption of the validity of an assessment. Katz v. West Hartford, supra, 603.

Section 7-249 provides that supplemental assessments for benefits to new or expanded buildings “may be assessed as if the new or expanded buildings or structures had existed at the time of the initial assessment.” The plaintiff does not claim that this prescribed method for calculating the amount of a special assessment has not been followed by the defendant. It maintains, nevertheless, that the application of the statutory formula to its property has resulted in an excessive assessment.

The evident purpose of this provision of § 7-249 is to allow a municipality to impose a supplemental assessment for new or improved buildings in an amount that, together with the initial assessment, will equal the assessment that would have been made if these improvements had existed at the time of the initial assessment. In order to defeat the supplemental assessment that has been imposed on its property, therefore, the plaintiff must prove that, together with the initial assessment, it exceeds the benefit that access to the sewers would have conferred upon the property as a whole at the time of the initial assessment if the present office building had then been erected. “The monetary value of the special benefit conferred upon a piece of property by the presence of a sewerage system must be calculated by the difference between the market value of the realty with and without the sewerage system, even though such a measurement may mean that the cost of the sewerage system cannot be fully recouped by the town.” Bridge Street Associates v. Water Pollution Control Authority, 15 Conn. App. 140, 144, 543 A.2d 1351 (1988).

The plaintiff does not claim to have presented evidence of the market value of its office building property as of the time of the initial assessment either with or without sewer access. The real estate appraiser who testified in its behalf admitted that he had made no comparison of the value of the property with and without sewers. Thus, it is clear that, under this standard method of determining the benefit that has accrued to property from the installation of sewers, the plaintiff has not sustained its burden.

The fallacy of the plaintiffs analysis, which rests upon the undisputed fact that the volume of sewage generated by the office building is less now than when the former factory building was in operation, is that, by concentrating exclusively on the comparative use made of the facility, it wholly ignores the increase in the market value of property that ordinarily results from access to a sewerage system. See Katz v. West Hartford, supra, 603. Many authorities have rejected current actual use as a determinative factor in the assessment of benefits, since it often is unrelated to market value and fails to reflect the increase in market value resulting from the installation of sewers. 14 E. McQuillin, Municipal Corporations (3d Ed.) § 38.33.20; see Mobil Oil Corporation v. Westport, 182 Conn. 554, 559-60, 438 A.2d 768 (1980). If the benefit to property from sewer access were to be measured by actual use rather than by its impact on market value, an assessment for benefits under § 7-249 would be a virtual duplication of the charges made by the defendant for use of the sewers as authorized by General Statutes § 7-255.

The plaintiff’s argument that whatever benefit sewer access may have provided to its property occurred at the time the installation was made and did not increase when the building was enlarged overlooks the fact that in Simsbury special benefit assessments are based upon grand list values. Section 7-249 provides for supplemental assessments upon new construction “as if the new or expanded buildings or structures had existed at the time of the initial assessment.” The plaintiff does not claim that the sum of the initial and supplemental assessments for its property exceeds the amount of the assessment that would have been imposed under the Simsbury formula if the converted office building had existed when the sewers were installed. Although the benefit of sewer access, in a physical sense, may be said to accrue when a building is connected, it is not inappropriate, when grand list values are the measure of that benefit, to increase the initial assessments as those values increase because of new construction on the property.

Because the plaintiff produced no evidence that the total assessment, both initial and supplemental, exceeds the difference in the market value of its property with and without sewers as of the time of the original assessment, the presumption of the validity of the assessment has not been overcome and the trial court’s conclusion to the contrary was clearly erroneous.

II

The plaintiff has advanced four alternative grounds for affirming the judgment: (1) the conversion of the factory into an office building did not constitute an expansion within the intent of § 7-249; (2) the supplemental benefit assessment is unconstitutional because it is not based on any increase in sewer use; (3) the assessment has resulted in imposing on its property a disproportionate share of the cost of a public improvement in violation of its constitutional right to equal protection of the laws; and (4) the provision of § 7-249 requiring that caveats for deferred assessments filed in the land records for the anticipated development of land other than commercial land also creates an unconstitutional disparity in the treatment of some property owners as compared with others.

A

A supplemental assessment under § 7-249 may be imposed only when “buildings or structures” are “constructed or expanded after the initial assessment.” The defendant claims that the present office building constitutes an expansion of the original factory building because 25,657 square feet of floor space have been added by the construction of a second story to the building. The plaintiff maintains that this addition does not constitute an expansion as contemplated by § 7-249 because the word “expanded” must be taken to refer to an increase in sewer use in order to justify a supplemental assessment.

We agree with the trial court that the addition of a second story to the factory building was an expansion. Vertical as well as horizontal enlargements of a building are encompassed by the word “expanded” as used in § 7-249. The plaintiffs interpretation of the term as applying only to construction resulting in increased sewer use is unsupported by the language of the statute and is at variance with the legislative intention expressed in § 7-255 (a) to allow separate charges for sewer use in addition to assessments for installation of the sewerage system. It is also inconsistent with the reference in § 7-249 to “grand list valuation” as one of the “relevant factors” in making assessments.

B

It is well established that if an assessment for benefits from a public work is imposed on a property likely to use the facility, the amount thereof cannot exceed the particular benefit conferred without trespassing on constitutional rights. Norwood v. Baker, 172 U.S. 269, 279, 19 S. Ct. 187, 43 L. Ed. 443 (1898); Connecticut Ry. & Lighting Co. v. Waterbury, 127 Conn. 617, 620, 18 A.2d 700 (1941); Anderson v. Litchfield, supra, 29. The plaintiff claims that, because sewer use has declined since the factory building has been converted into offices, the assessment must necessarily exceed the value of the benefit presently resulting from the availability of a sewer system.

This constitutional claim is predicated upon the plaintiff’s insistent contention that the volume of waste passing from the building into the sewerage system is the only measure of benefit that can be properly utilized. We have previously discussed and rejected this argument which overlooks the specification in § 7-249 of “grand list valuation” as a relevant factor in making an assessment. It is clear that no evidence of the valuation of the property as presently improved with and without sewers has been presented in the trial court. The plaintiff, therefore, has not proved the factual predicate upon which this constitutional claim rests, i.e., that the assessments, both initial and supplemental, exceed any increase in value that has resulted from the sewer installation.

c

The United States Supreme Court has recently-applied the equal protection principle to invalidate increases in assessments of properties that recently have been sold based upon the current selling price, when no appropriate adjustment has been made in the assessment of properties not recently transferred and gross disparities in assessments of comparable properties have resulted from this practice. Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, 488 U.S. 336, 109 S. Ct. 633, 102 L. Ed. 2d 688 (1989). The plaintiff relies upon this decision in claiming that its assessment, because of the substantial grand list valuation of its property, is disproportionate as compared to property owners with lower valuations who make the same use of the sewer and thus receive the same benefit.

Once again the plaintiff attempts to focus solely upon the physical use of the sewer by each property owner rather than upon the increase in market value of the properties resulting from sewer access. No claim is made that the valuation of the plaintiffs property that served as the basis for the supplemental assessment was disproportionate in relation to those used in assessing comparable properties, as in Allegheny Pittsburgh Coal Co. Section 7-249 plainly authorizes the use of grand list valuation as an alternative to area and frontage in making sewer assessments. We are not aware of any authority holding that there is a violation of equal protection when public improvement assessments are based upon the values of the properties benefited, subject to the limitation that no assessment may exceed the benefit conferred.

D

Section 7-249 requires that a caveat be placed on the land records “in each instance where assessment of benefits to anticipated development of land zoned for other than business, commercial or industrial purposes or land classified as farm land, forest land or open space land has been deferred.” This requirement corresponds to another provision of § 7-249 that defers assessments for benefits to “anticipated development of land zoned for other than business, commercial or industrial purposes or land classified as farm land, forest land or open space land . . . until such construction or expansion or development is approved or occurs.” Prior to 1973, when the provisions excluding from the benefit of an assessment deferral land zoned for “business, commercial or industrial purposes” were inserted; Public Acts 1973, No. 73-523; the statute provided that benefits for anticipated development of any land could not be assessed “until such development is approved or occurs.” General Statutes (Rev. to 1972) § 7-249. The legislative history of the 1973 amendment indicates that the purpose of that enactment was to discourage speculation in commercial land by removing such land from the assessment deferral provision. The legislators believed that such deferrals were inducing owners to hold vacant commercial land without developing it. Apparently they did not perceive similar evils with respect to land zoned for residences or land classified as farm, forest or open space land.

It appears that in challenging the exemption of commercial property from the requirement of a caveat for a deferred assessment the plaintiff is implicitly attacking the validity of the exclusion of commercial property from the assessment deferral provision of § 7-249. If commercial property is not entitled to a deferral of a sewer assessment, it obviously would not be entitled to the same treatment with respect to the need for a caveat as properties where the assessments had been deferred. Thus, it is too plain for argument that the exclusion of commercial property from the caveat requirement, which is the sole ground of the plaintiffs equal protection claim, rests upon a rational basis so long as the separate classification of such property for the purpose of an assessment deferral remains.

Because the plaintiff in neither its complaint nor its brief has expressly challenged the validity of the exclusion of commercial property from the assessment deferral provision of § 7-249 in accordance with the 1973 amendment, it would be inappropriate to consider that subject in this appeal. Furthermore, the record before us contains insufficient facts to indicate whether, absent the exclusion for commercial property created by the amendment, the plaintiffs property, upon which a factory building existed at the time of the initial assessment, would then have qualified for an assessment deferral, which is available only with respect to “anticipated development of land.” It is also unclear how the assessment deferral provision is applied with respect to supplemental assessments resulting from new construction or expansion of existing buildings, since the duration of any such deferment under § 7-249 lasts only “until such construction or expansion or development is approved or occurs.” We leave these problems, which have not been briefed by the parties, to another time.

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

In this opinion the other justices concurred.

       General Statutes § 7-250 provides in part: “No assessment shall be made until after a public hearing before the water pollution control authority at which the owner of the property to be assessed shall have an opportunity to be heard concerning the proposed assessment. . . . Any person aggrieved by any assessment may appeal to the superior court for the judicial district wherein the property is located and shall bring any such appeal to a return day of said court not less than twelve nor more than thirty days after service thereof and such appeal shall be privileged in respect to its assignment for trial. Said court may appoint a state referee to appraise the benefits to such property and to make a report of his doings to the court. The judgment of said court, either confirming or altering such assessment, shall be final. No such appeal shall stay proceedings for the collection of the particular assessment upon which the appeal is predicated but the appellant shall be reimbursed for any overpayments made if, as a result of such appeal, his assessment is reduced.”

       “[General Statutes] Sec. 7-249. assessment of benefits. At anytime after a municipality, by its water pollution control authority, has acquired or constructed, a sewerage system or portion thereof, the water pollution control authority may levy benefit assessments upon the lands and buildings in the municipality which, in its judgment, are especially benefited thereby, whether they abut on such sewerage system or not, and upon the owners of such land and buildings, according to such rule as the water pollution control authority adopts, subject to the right of appeal as hereinafter provided. Benefits to buildings or structures constructed or expanded after the initial assessment may be assessed as if the new or expanded buildings or structures had existed at the time of the initial assessment. Such benefits and benefits to anticipated development of land zoned for other than business, commercial or industrial purposes or land classified as farm land, forest land or open space land on the last completed grand list of the municipality in which such land is located, pursuant to the provisions of sections 12-107a to 12-107e, inclusive, shall not be assessed until such construction or expansion or development is approved or occurs. In case of a property so zoned or classified which exceeds by more than one hundred per cent the size of the smallest lot permitted in the lowest density residential zone allowed under zoning regulations or, in the case of a town having no zoning regulations, a lot size of one acre in area and one hundred fifty feet in frontage, assessment of such excess land shall be deferred until such time as such excess land shall be built upon or a building permit issued therefor or until approval of a subdivision plan of such excess property by the planning commission having jurisdiction, whichever event occurs first at which time assessment may be made as provided herein. No lien securing payment shall be filed until the property is assessed. The sum of initial and subsequent assessments shall not exceed the special benefit accruing to the property. Such assessment may include a proportionate share of the cost of any part of the sewerage system, including the cost of preliminary studies and surveys, detailed working plans and specifications, acquiring necessary land or property or any interest therein, damage awards, construction costs, interest charges during construction, legal and other fees, or any other expense incidental to the completion of the work. The water pollution control authority may divide the total territory to be benefited by a sewerage system into districts and may levy assessments against the property benefited in each district separately. In assessing benefits against property in any district the water pollution control authority may add to the cost of the part of the sewerage system located in the district a proportionate share of the cost of any part of the sewerage system located outside the district but deemed by the water pollution control authority to be necessary or desirable for the operation of the part of the system within the district. In assessing benefits and apportioning the amount to be raised thereby among the properties benefited, the water pollution control authority may give consideration to the area, frontage, grand list valuation and to present or permitted use or classification of benefited properties and to any other relevant factors. The water pollution control authority may make reasonable allowances in the case of properties having a frontage on more than one street and whenever for any reason the particular situation of any property requires an allowance. Revenue from the assessment of benefits shall be used solely for the acquisition or construction of the sewerage system providing such benefits or for the payment of principal of and interest on bonds or notes issued to finance such acquisition or construction. No assessment shall be made against any property in excess of the special benefit to accrue to such property. The water pollution control authority shall place a caveat on the land records in each instance where assessment of benefits to anticipated development of land zoned for other than business, commercial or industrial purposes or land classified as farm land, forest land or open space land has been deferred.”

       General Statutes § 7-255 (a) provides in part: “The water pollution control authority may establish and revise fair and reasonable charges for connection with and for the use of a sewerage system. The owner of property against which any such connection or use charge is levied shall be liable for the payment thereof. ... In establishing or revising such charges the water pollution control authority may classify the property connected or to be connected with the sewer system and the users of such system, including categories of industrial users, and may give consideration to any factors relating to the kind, quality or extent of use of any such property or classification of property or users including, but not limited to, (1) the volume of water discharged to the sewerage system, (2) the type or size of building connected with the sewerage system, (3) the number of plumbing fixtures connected with the sewerage system, (4) the number of persons customarily using the property served by the sewerage system, (5) in the case of commercial or industrial property, the average number of employees and guests using the property and (6) the quality and character of the material discharged into the sewerage system. The water pollution control authority may establish minimum charges for connection with and for the use of a sewerage system. Any person aggrieved by any charge for connection with or for the use of a sewerage system may appeal to the superior court for the judicial district wherein the municipality is located and shall bring any such appeal to a return day of said court not less than twelve or more than thirty days after service thereof. The judgment of the court shall be final.”

       In the House of Representatives, Representative Morton J. Blumenthal explained the purpose of the 1973 amendment as follows: “Yes, Mr. Speaker. Basically, this statute amends Sec. 7-249 of our General Statutes and the problem with the present definition is it reads as such — land used for other than business, commercial or industrial purposes. In other words if the land is owned for business, commercial, industrial but is not being used as such, under the present law they are entitled to an exemption from the sewer assessment just because of the fact that the land is vacant. This, of course, is inappropriate because this type of land is commercial, speculative type land and the statute and the intent of this bill is to allow the deferment of assessment for land that’s used for open space, forest land or agricultural purposes. . . . It’s a good bill and it ought to pass.” 16 H.R. Proc., Pt. 11, 1973 Sess., p. 5401.
      In the Senate, Senator Richard C. Bozzuto remarked upon the proposed amendment as follows: “Yes, Mr. President. The basic purpose for the proposed bill is to provide an accurate and workable definition of the land entitled to deferred assessments proposed to read as follows: Lands owned for other than business, commercial or industrial purposes, or land classified as farm-land, forest-land, etc., etc.
      “Basically, the problem with the present statute is that lands zoned for business, commercial or industrial purposes, but which are not being used as such, are entitled to the exemption from sewer assessment, because of the fact that it is being used as open space or vacant land. This is particularly inappropriate because this type of land usually is the most expensive and valuable and desirable land in a town which is being sold at huge prices, and yet the owners are entitled to sewer assessment deferment. The proposed change would simply allow assessment of land zoned for business, commerical or industrial uses, unless it is classified as farm, forest, or open-space land, by the assessor pursuant to the applicable statutes. I move its passage on the Consent Calendar.” 16 S. Proc., Pt. 8, 1973 Sess., pp. 3897-98.


author: Covello, J.

text:
    Nancy Sobocinski v. Freedom of Information Commission
    (13703)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued October 11
    decision released November 28, 1989

      Lawrence Russ, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellant (intervening defendant).

      Bruce Levin, with whom, on the brief, was Robert C. Pinciaro, for the appellee (plaintiff).

      Victor Perpetua, commission counsel, for the appellee (defendant).
   Covello, J.

This is an appeal from a decision of the Superior Court which held that the defendant freedom of information commission (FOIC) erred in dismissing the plaintiffs complaint. The dispositive issue is whether the Freedom of Information Act, in General Statutes § l-19b (b), prohibits disclosure of information or documents to parties involved in pending litigation with the state or its agencies. As the issue has become moot while the appeal here was pending, we order that appeal dismissed and the judgment of the Superior Court vacated, and we remand the case to that court with direction to render a judgment of dismissal of the appeal from the FOIC’s decision.

The relevant facts are undisputed. On or about July 7, 1986, the plaintiff, Nancy Sobocinski, pursuant to General Statutes § 13a-144, filed suit against the intervening defendant, J. William Burns, commissioner of transportation, in connection with a motor vehicle collision. In her suit the plaintiff alleged, inter alia, that the overhead traffic control signals at the intersection of the Boston Post Road and Lambert Road in Orange were not functioning and that the state knew or should have known that the signals were not operating and should have taken corrective measures.

By interrogatories and requests for production dated September 11, 1986, the plaintiff requested the commissioner to produce copies of all documents relating to failures or malfunctions of the overhead traffic signals at the Boston Post Road and Lambert Road intersection between August 1,1974, and August 1,1984. The plaintiff also submitted an interrogatory asking whether on August 1, 1984, the commissioner or any department of transportation agents, servants or employees had any procedure in place whereby they would be notified if there were malfunctions of traffic control signals over which they had control and maintenance responsibility.

On September 23,1986, the commissioner filed notice in the trial court of his objections to the plaintiffs September 11 interrogatories and requests for production. On October 13, 1986, the plaintiff made a written request to the commissioner, pursuant to the Freedom of Information Act (FOIA), General Statutes § l-18a et seq., requesting essentially the same documents the plaintiff had requested in her September 11 discovery requests.* * On November 7, 1986, the commissioner filed a motion for a protective order with the trial court, seeking to be relieved of the obligation to produce the documents requested in the plaintiff’s September 11 discovery request. On November 24,1986, the motion was argued and denied. The trial court found that there was no need for a protective order since there had been no hearing on the commissioner’s objections and thus he was as yet under no obligation to comply with the plaintiff’s discovery requests.

On November 12,1986, on the advice of counsel, the commissioner denied the plaintiff’s October 13 request, made pursuant to the FOIA, on the ground that the request referred to pending litigation. On December 8, 1986, the plaintiff filed a complaint against the commissioner with the FOIC challenging the commissioner’s denial of her request for the documents and seeking to compel their production. On February 26, 1987, a full contested hearing on the matter was conducted before the FOIC. On April 8, 1987, the FOIC dismissed the plaintiff’s complaint, concluding that the commissioner’s failure to produce the records sought by the plaintiff in her October 13,1986 request did not violate General Statutes §§ 1-15 or 1-19 (a),* ** and that he was exempted from disclosing the requested documents under § l-19b (b) since the production of the records requested would affect the rights of litigants under the laws of discovery of this state.

On April 22, 1987, pursuant to General Statutes §§ l-21i (d) and 4-183, the plaintiff appealed the decision of the FOIC to the Superior Court. The commissioner intervened in the administrative appeal as an additional defendant. On December 7, 1988, the trial court ruled that granting the plaintiffs request would not affect the rights of the litigants under the state’s discovery laws. The court concluded that the FOIC had erred in dismissing the plaintiff’s complaint, and remanded the case for further proceedings consistent with its decision. On January 13, 1989, the defendant commissioner appealed to the Appellate Court. We then transferred the matter to ourselves pursuant to Practice Book § 4023. On October 3,1989, while this appeal was pending, the plaintiff withdrew her underlying civil action against the commissioner.

Where the actions of the parties themselves cause a settling of their differences, the case becomes moot. See, e.g., Heitmuller v. Stokes, 256 U.S. 359, 362-63, 41 S. Ct. 522, 65 L. Ed. 990 (1921); Nader v. Altermatt, 166 Conn. 43, 56, 347 A.2d 89 (1974); Southbury v. American Builders, Inc., 162 Conn. 633, 634, 295 A.2d 566 (1972). Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 181, 527 A.2d 688 (1987). It is well settled that the existence of an actual controversy is an essential requisite to appellate jurisdiction. See State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985); State v.Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982); Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249, 440 A.2d 310 (1982); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17,19, 411 A.2d 1 (1979); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. Southbury v. American Builders, Inc., supra, 634. This court will not decide moot questions where there is no actual controversy or where no actual or practical relief can follow from their determination. Shays v. Local Grievance Committee, supra, 571; Waterbury Hospital v. Connecticut Health Care Associates, supra, 249-50; Scalo v. Mandanici, 179 Conn. 140, 146-47, 425 A.2d 1272 (1979); Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 (1974).

The plaintiff argues, however, that the instant proceeding involves a moot question that is “capable of repetition, yet evading review.” See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); CEUI v. CSEA, 183 Conn. 235, 249, 439 A.2d 321 (1981). In Delevieleuse v. Manson, 184 Conn. 434, 437, 439 A.2d 1055 (1981), we stated that this principle was not the sole justification for reviewing an admittedly moot case but was merely one factor to be considered when faced with a potentially moot matter. We identified other relevant factors, including: (1) the public importance of the question presented; (2) whether an ongoing program of the state’s penal or civil system is affected; and (3) whether the plaintiff could be affected similarly in the future. Id.; see also Shays v. Local Grievance Committee, supra, 572-73; Waterbury Hospital v. Connecticut Health Care Associates, supra, 253 n.5.

After considering these factors we are not persuaded that this case merits review. Since this action involves a now-withdrawn personal injury claim arising out of a single discrete automobile accident we are unable to discern any ongoing program that is affected. Because of the nature of the cause of action, we are further unable to discern how the plaintiff herself could be affected similarly in the future, and there is nothing in the record to suggest that its repetition in the future would be probable. We conclude, therefore, that the question raised does not fall within the exception articulated in Delevieleuse v. Manson, supra.

The commissioner’s appeal is dismissed, the judgment of the trial court is vacated and the case is remanded to that court with direction to dismiss the plaintiff’s appeal for mootness.

       General Statutes (Rev. to 1987) § l-19b (b) provided: “Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be deemed in any manner to affect the status of judicial records as they existed prior to October 1, 1975, nor affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state.”

       General Statutes (Rev. to 1985) § 13a-144 provided: “damages for injuries SUSTAINED ON STATE HIGHWAYS OR sidewalks. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. Such action shall be tried to the court or jury, and such portion of the amount of the judgment rendered therein as exceeds any amount paid to the plaintiff prior thereto under insurance liability policies held by the state shall, upon the filing with the comptroller of a certified copy of such judgment, be paid by the state out of the appropriation for the commissioner for repair of highways; but no costs or judgment fee in any such action shall be taxed against the defendant. This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim. The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway. The requirement of notice specified in this section shall be deemed complied with if an action is commenced by a writ and complaint setting forth the injury and a general description of the same and of the cause thereof and of the time and place of its occurrence, within the time limited for the giving of such notice.”

       Specifically, the plaintiff requested that the commissioner provide her with copies of: (a)“All documents relating to failures or malfunctions of the overhead traffic control signals at the intersection of the Boston Post Road and Lambert Road . . . between August 1, 1974 and August 1, 1984”; and (b)“Documents, inter-office memos, policy statements or any writings related to the method or procedure for traffic control in the event of an electrical power failure to overhead traffic control signals controlled by [the commissioner], including but not limited to the traffic control signals at the intersection of the Boston Post Road and Lambert Road . . . in 1984.”

       General Statutes (Rev. to 1987) § 1-15 provided: “application for copies OF public records, certified copies, fees. Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with this section and sections l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall not exceed twenty-five cents per page. If any copy provided in accordance with said sections requires a printout or transcription, or if any person applies for a printout or transcription of a public record, the fee for such printout or transcription shall not exceed the cost thereof to the public agency. A public agency may require the prepayment of any fee required or permitted under this chapter if such fee is estimated to be ten dollars or more. The sales tax provided in chapter 219 shall not be imposed upon any transaction for which a fee is required or permissible under this section or section l-21c. The public agency shall waive any fee provided for in this section when (1) the person requesting the records is an indigent individual, (2) the records located are determined by the public agency to be exempt from disclosure under subsection (b) of section 1-19, or (3) in its judgment, compliance with the applicant’s request benefits the general welfare. Except as otherwise provided by law, the fee for any person who has the custody of any public records or files for certifying any copy of such records or files, or certifying to any fact appearing therefrom, shall be for the first page of such certificate, or copy and certificate, one dollar; and for each additional page, fifty cents. For the purpose of computing such fee, such copy and certificate shall be deemed to be one continuous instrument.”
      General Statutes (Rev. to 1987) § 1-19 (a) provided: “access to public records, exempt RECORDS, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.”

       General Statutes (Rev. to 1987) § 1-211 (d) provided: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. Notwithstanding the provisions of section 3-125, legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation affecting said commission. Notwithstanding the provisions of subsection (b) of section 4-183 and section 52-64, all process shall be served upon said commission at its office. Any appeal taken pursuant to this section shall be privileged in respect to its assignment for trial over all other actions except writs of habeas corpus and actions brought by or on behalf of the state, including informations on the relation of private individuals. Nothing in this section shall deprive any party of any rights he may have had at common law prior to January 1,1958. If the court finds that any appeal taken pursuant to this section or section 4-183 is frivolous or taken solely for the purpose of delay, it shall order the party responsible therefor to pay to the party injured by such frivolous or dilatory appeal costs or attorney’s fees of not more than one thousand dollars. Such order shall be in addition to any other remedy or disciplinary action required or permitted by statute or by rules of court.”
      General Statutes (Rev. to 1987) § 4-183 provided: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
      “(b) Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.
      “(c) The filing of the petition does not of itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.
      “(d) Within thirty days after the service of the petition, or within such further time as may be allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the agency’s findings of fact and conclusions of law, separately stated. By stipulation of all parties to such appeal proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
      “(e) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
      “(f) The appeal shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
      “(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
      “(h) Upon all such appeals which are denied, costs may be taxed in favor of the prevailing party at the discretion of the court, but no costs shall be taxed against the state.
      “(i) In any case in which an aggrieved party claims that he cannot pay the costs of an appeal under this section and will thereby be deprived of a right to which he is entitled, he shall, within the time permitted for filing the appeal, file with the clerk of the court to which the appeal is to be taken an application for waiver of payment of such fees, costs and necessary expenses, including the requirements of bond, if any. The application shall conform to the requirements of section 28A of the Practice Book. After such hearing as the court determines is necessary, the court shall enter its judgment on the application, which judgment shall contain a statement of the facts the court has found, with its conclusions thereon. The filing of the application for the waiver shall toll the time limits for the filing of an appeal until such time as a judgment on such application is entered.”


author: Peters, C. J.

text:
    General Motors Corporation v. Teresa M. Martine
    (13646)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued October 11
    decision released December 5, 1989

      Daniel L. FitzMaurice, with whom was Deborah S. Chang, for the appellant (plaintiff).

      Garry Desjardins, assistant attorney general, with whom were William M. Rubenstein, assistant attorney general, and, on the brief, ClarineNardi Riddle, attorney general, and Robert M. Langer, assistant attorney general, for the appellee (intervening defendant).
   Peters, C. J.

At issue in this reservation from the Superior Court is the constitutional and statutory validity of the decision of an arbitration panel, acting pursuant to General Statutes §§ 42-181 through 42-184 (Lemon Law II), that awarded the purchaser of a defective motor vehicle a refund of the purchase price without allowing the manufacturer an offset to reflect damage that the vehicle had sustained in an accident caused by its defective condition. The plaintiff, General Motors Corporation, initiated this action to vacate the arbitrators’ award to the defendant, Teresa M. Mar-tine. Thereafter, the department of consumer protection (department) intervened as a party defendant. At the request of all the parties, the trial court, Ryan, J., granted a motion for reservation upon stipulated facts for the advice of the Appellate Court on three questions of law concerning the validity of the arbitration panel’s action. We transferred the case to ourselves pursuant to Practice Book § 4023, and answer each of the reserved questions in the negative.

The defendant purchased a 1987 Buick Skyhawk from Minchin Buick, Inc., in Stamford on November 21, 1986. Over the next several months, she returned the vehicle to the dealer on four occasions in an attempt to deal with engine hesitation and surging. Each of these attempts to repair the problem proved unsuccessful. On March 21,1987, the vehicle was involved in an accident when the defendant was unable to avoid colliding with the vehicle in front of her after the engine hesitated and then surged. The estimated damage to the vehicle was between $2000 and $2500. The vehicle that the defendant’s car struck also sustained an unspecified amount of damage in the accident.

The defendant filed a request for arbitration with the department, demanding a full refund of the purchase price or replacement with a comparable new car, plus compensation for damage incurred by the other car in the March 21,1987 accident and reimbursement for the arbitration filing fee. In response, the plaintiff filed a manufacturer’s statement requesting that the arbitrators take no action on the case or, in the alternative, that the arbitrators allow the plaintiff an opportunity to make further repairs to the vehicle. The plaintiff additionally objected to the arbitration process on due process and equal protection grounds.

Following a hearing, the departmental panel of arbitrators issued a decision finding that the engine hesitation and surging was a defect that had substantially impaired the use, safety and value of the vehicle. The arbitrators also found, on the basis of the defendant’s testimony, that the engine hesitation and surging directly caused the March 21,1987 accident. Accordingly, the arbitrators ordered the plaintiff to refund “the full contract price of the vehicle, including charges for undercoating, dealer preparation and transportation and installed options; all collateral charges, including sales tax, license and registration fees and similar government charges; reduced by the mileage deduction computed pursuant to the statutory formula.” The arbitrators further ordered the plaintiff to reimburse the defendant for finance charges pursuant to General Statutes § 42-179 (d) and for the $50 lemon law arbitration filing fee. Finally, the arbitrators refused to allow the plaintiff to adjust the refund amount to reflect the damage resulting from the March 21,1987 accident. No award was made for damage to the other vehicle.

This appeal involves a threefold attack on the arbitration panel’s order. First, the plaintiff argues that the arbitration process violated its right to a jury trial as guaranteed by article first, § 19 of the Connecticut constitution, since the relief requested and granted in this case was legal rather than equitable in nature. Second, the plaintiff contends that the arbitration panel’s refusal to allow the plaintiff a reduction from the refund for the damage sustained by the vehicle in the March 21,1987 accident amounted to an award of consequential damages that, according to the plaintiff, Lemon Law II does not authorize. Third, the plaintiff claims that, even if the award of a refund did not alone violate its right to a jury trial, it was entitled to a jury trial in defending against the claim for consequential damages.

I

The first reserved question is whether the arbitrators’ refund order unconstitutionally deprived the plaintiff of a jury trial as guaranteed by article first, § 19 of the Connecticut constitution. The plaintiff argues that it is entitled to a jury trial in this case because the defendant’s claims are the functional equivalent of an action for breach of warranty and revocation of acceptance, a proceeding that has historically been characterized as legal rather than equitable. We are not persuaded.

This issue was fully decided in Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 212 Conn. 83, 91, 561 A.2d 917 (1989) (Motor Vehicle Manufacturers Assn. II), in which we concluded that claims brought to arbitration panels pursuant to Lemon Law II are essentially equitable, and thus do not warrant a jury trial. We did not intend to invite a case-by-case analysis as to whether individual cases were essentially equitable or legal in nature. Moreover, the facts of this case fully support our conclusion in Motor Vehicle Manufacturers Assn. II, since the arbitration pleadings reveal that both the defendant in her request for arbitration and the plaintiff in its response to the request asked the arbitrators to fashion an equitable remedy. In the pleadings, the defendant sought, inter alia, an order requiring the plaintiff to provide a new car, while the plaintiff responded by indicating that the only appropriate action would be an order to make further repairs. That the arbitrators ultimately opted for the defendant’s alternative request for a refund of the vehicle purchase price does not alter the equitable nature of an action instituted at least in part as an action for specific performance.

II

The second issue in this reservation is whether the arbitration panel exceeded its authority under Lemon Law II by refusing to adjust the refund order to reflect the damage that the vehicle had sustained in the March 21, 1987 accident. The plaintiff contends that the order was invalid because it was in effect an award of consequential damages, a remedy that Lemon Law II does not authorize. We disagree.

Our analysis must begin with the well established proposition that any deviation from the conditions attached by the legislature to a statutorily compelled arbitration would furnish grounds for vacating the arbitral decision. Chrysler Corporation v. Maiocco, 209 Conn. 579, 591, 552 A.2d 1207 (1989); see Carafano v. Bridgeport, 196 Conn. 623, 637, 495 A.2d 1011 (1985). It bears equal emphasis, however, that we have interpreted the provisions of Lemon Law II as affording arbitration panels “wide-ranging discretion to fashion ‘appropriate remedies . . . .’ ” Motor Vehicle Manufacturers Assn. of the United States v. O'Neill, 203 Conn. 63, 78, 523 A.2d 486 (1987) (Motor Vehicle Manufacturers Assn. I).

Comparison of the arbitral decision in this case with the statutory formula for calculating refunds as set forth in General Statutes § 42-179 (d) demonstrates that the decision falls squarely within the remedial framework of Lemon Law II. Under the statutory formula, arbitration panels are directed to include three specific categories of expenses in a refund order: (1) the full contract price for the vehicle, including charges for such items as undercoating, dealer preparation, transportation and installed options; (2) all collateral charges such as sales tax and license and registration fees; and (3) all finance charges incurred by the consumer after the defect was reported to the dealer. The refund order includes each of these expenses. The statute next authorizes arbitration panels to include reimbursement for incidental damages. Pursuant to this provision, the arbitrators ordered the plaintiff to pay the defendant’s $50 arbitration filing fee.

Finally, § 42-179 (d) directs the arbitrators to deduct from the award a reasonable allowance for the consumer’s use of the vehicle, and defines reasonable use according to the mileage driven. Here again, the arbitration panel followed the terms of the statute precisely. Since the statute makes no reference to any other deductions from refund orders, and since the arbitration panel carefully tracked each of the other provisions of the statutory formula, we conclude that the arbitral decision did not exceed the scope of Lemon Law II.

Our conclusion is further supported by the fact that the arbitrators’ refusal to allow an adjustment for damage to the vehicle does not implicate the usual concerns associated with consequential damages. The damages in this award are not too speculative in their calculation nor does their amount involve an assessment that is disproportionate to the contract price. See, e.g., West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 320-21, 514 A.2d 734 (1986); Tomkins, Inc. v. Bridgeport, 94 Conn. 659, 684-85, 110 A. 183 (1920); see also Hadley v. Baxendale, 156 Eng. Rep. 145 (1854); J. White & R. Summers, Uniform Commerical Code (3d Ed. 1988) § 10-4.

III

Our conclusions as to the first and second issues fully resolve the third and final question, namely, whether the arbitrators’ refusal to adjust the refund order to reflect the damage to the vehicle entitles the plaintiff to a jury trial. Since we have decided that the arbitral order in this case did not constitute an award of consequential damages and that all arbitration actions pursuant to Lemon Law II are essentially equitable, it necessarily follows that the plaintiff’s claim that it is entitled to a jury trial insofar as the arbitrators’ order included an award for consequential damages is without merit.

We answer no to all three of the questions reserved by the trial court.

No costs shall be taxed to either party.

In this opinion the other justices concurred.

       The named defendant has not filed a brief in this court, but the department, as an intervening defendant, has assumed responsibility for her interests.

       The parties reserved the following three questions of law: “(1) Did the Department arbitration proceeding in Martine v. General Motors, (Case No. 87-0160), in which the Respondent requested and was awarded a refund of the full contract price of the vehicle pursuant to Conn. Gen. Stat. § 42-181, violate Petitioner’s right to a trial by jury as guaranteed by Article First, Section 19 of the Connecticut Constitution? (2) If the answer to Question 1 is no, did the arbitration panel which heard and decided Martine v. General Motors exceed its statutory authority by awarding a full refund without a deduction for existing physical damage to the vehicle incurred in an accident? (3) If the answers to the preceding questions are no, did the award of the arbitration panel which heard and decided Martine v. General Motors violate Petitioner’s right to a jury trial as guaranteed by Article First, Section 19 of the Connecticut Constitution insofar as the panel awarded a full refund without a deduction for existing physical damage to the vehicle incurred in an accident?”

       Although a serious question concerning the propriety of deciding a challenge to a statute might arise where, as in the present case, that statute has already been declared unconstitutional on other grounds; see Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 212 Conn. 83, 561 A.2d 917 (1989); we need not address that question in this case since the lemon law arbitration process continues in operation by virtue of an agreement under which the plaintiff has consented to participate in automobile arbitrations until the statute can be rewritten to eliminate its constitutional infirmities. While this agreement does not by its terms apply to the present case, we feel that it is nevertheless appropriate to address the plaintiff’s claims in order to facilitate arbitrations under the agreement. We note finally that the plaintiff in this case has concededly never relied, in its motion to vacate the arbitration award herein, on the issue of fair access to the coruts which underlay our holding of unconstitutionality.

       Although the plaintiff does challenge, as a matter of law, the authority of the arbitrators to refuse to allow an offset for the damage to the vehicle, it does not challenge the arbitrators’ factual finding as to the cause of the accident.

       Article first, § 19 of the Connecticut constitution provides: “The right of trial by jury shall remain inviolate.”

       Although General Statutes § 42-179 (d) is technically a provision of Lemon Law I, the subsection is adopted by § 42-181 (c) (2) of Lemon Law II for purposes of calculating refunds.

       General Statutes § 42-179 (d) provides in pertinent part: “new motor VEHICLE WARRANTIES. LEASED VEHICLES. . . .
      “(d) . . . the manufacturer shall . . . refund to the consumer, lessor and lienholder, if any, as their interests may appear, the following: (1) The full contract price including, but not limited to charges for undercoating, dealer preparation and transportation and installed options, (2) all collateral charges, including, but not limited to, sales tax, license and registration fees, and similar government charges, (3) all finance charges incurred by the consumer after he first reports the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is out of service by reason of repair, and (4) all incidental damages as defined in section 42a-2-175, less a reasonable allowance for the consumer’s use of the vehicle. ... A reasonable allowance for use shall be that amount obtained by multiplying the total contract price of the vehicle by a fraction having as its denominator one hundred thousand and having as its numerator the number of miles that the vehicle traveled prior to the manufacturer’s acceptance of its return.”
      The arbitrators’ order provides in pertinent part: “The manufacturer shall refund to the consumer the full contract price of the vehicle, including charges for undercoating, dealer preparation and transportation and installed options; all collateral charges, including sales tax, license and registration fees and similar government charges; reduced by the mileage deduction computed pursuant to the statutory formula. The manufacturer shall also reimburse the consumer for (1) finance charges as specified in Section 42-179 (d), (2) the $50.00 filing fee. . . . The manufacturer shall not make any deduction of reimbursement to the consumer because of [damage] to the consumer’s vehicle sustained in the accident of 3-21-87.”

       We note that this case gives us no occasion to decide the extent to which lemon law arbitration panels have the authority to decide a case involving consequential damages such as might be involved in a claim for personal injuries or for damage to property other than the defective motor vehicle. The relationship between Lemon Law II and the Products Liability Act; General Statutes §§ 52-572m through 52-572r; is a complicated one which we will examine only in a factually appropriate case.