author: Glass, J.

text:
    William C. Carbone, Jr. v. Atlantic Richfield Company
    (13120)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued June 3
    decision released July 21, 1987

      Carter LaPrade, with whom, on the brief, was Stanley E. Parese, for the appellant-appellee (defendant).

      Thomas DeMatteo, with whom, on the brief, were Vincent R. Falcone and Daniel H. Cohen, law student intern, for the appellee-appellant (plaintiff).
   Glass, J.

The plaintiff, William C. Carbone, Jr., brought this action in three counts against the defendant, Atlantic Richfield Company (ARCO), claiming that he had been wrongfully discharged by the defendant. In the first count of the amended complaint, Carbone alleged that ARCO breached its oral contract and the implied covenant of good faith and fair dealing by discharging the plaintiff. In the second count, Carbone alleged that his discharge was malicious and improper. In the third count, he alleged that ARCO, by dismissing him for the reasons that it did, breached an implied contract to discharge him only for cause. The case was tried to a state trial referee, who found for ARCO on the first and third counts and for Carbone on the second count. ARCO has appealed and Carbone has filed a cross appeal. We find error on the appeal but no error on the cross appeal.

I

The state trial referee, exercising the powers of the Superior Court, found the following facts: Carbone was hired by ARCO on March 13,1978, under an oral contract of employment. He had an at will agreement, terminable at any time by him or ARCO. He was discharged by ARCO on September 16, 1982. At the time of his discharge and for some time prior to the date of his discharge, ARCO had employed him as a marketing representative in the New Haven area.

As a marketing representative his duties included servicing ARCO’s independent retail service station operators and reporting regularly to ARCO’s regional office the retail gasoline prices of selected competing service stations. These reports, known as “competitor price surveys,” aid ARCO in determining the price of gasoline that ARCO charges its retail operators and help ARCO determine whether it may grant price adjustments to its retail operators so that they may meet local competition. Under federal antitrust laws; see 15 U.S.C. §§ 13 through 13b, and 21a; a wholesaler is prohibited from charging different prices to similarly situated retail dealers. A wholesaler may nonetheless charge a particular dealer a lower price if it is necessary to compete with local prices. If, however, these price reductions, known in the gasoline service station business as “temporary voluntary allowances” (TVA), are granted without justification, the wholesaler may be in violation of antitrust laws.

ARCO, concerned with potential antitrust liability and with its overall pricing strategy, developed a policy governing the reporting of competitor price surveys. Carbone acknowledged that he had read and understood ARCO’s corporate and marketing department’s antitrust and legal policies on several occasions between 1978 and 1981. Thus, there is no claim that he was unaware of the importance of accurate competitor price survey reports. Prior to Carbone’s termination, an interoffice memorandum concerning ARCO’s pricing policy and certain procedures was sent to William J. Donovan, Carbone’s regional supervisor, in Syracuse, New York. Shortly thereafter, Donovan received another internal communication notifying him that these procedures were being implemented and that “any employee who deliberately manipulates competitive price information is subject to disciplinary measures, including termination.” Neither of these communications was intended for Carbone. Additionally, on the day he was terminated, an interdepartmental memorandum was sent to Carbone, notifying him of this policy, instructing him that pricing was to be accurate and truthful, and cautioning that “discrepancies between survey prices and audit prices [could] result in serious consequences if the responsibilities of field personnel have not been carried out as instructed, and according to this letter.” Because of his dismissal, Carbone did not receive this memorandum.

On September 8,1982, Carbone conducted a competitor price survey of various service stations in the New Haven area. An independent survey revealed different prices from those reported by Carbone. When these discrepancies came to the attention of ARCO’s regional office in Syracuse, Carbone was asked to, and did, repeat his survey. Subsequently, another survey conducted by an employee of ARCO again revealed price discrepancies.

On September 13, 1982, Carbone was called to a meeting at the regional office to account for the alleged discrepancies. At the meeting, Carbone challenged the findings of the other surveys, and maintained that his surveys were accurate. He refused, however, to discuss the claimed discrepancies which appeared on his list. After the meeting, Carbone returned home but three days later, on September 16,1982, he was asked to return to Syracuse, apparently to be formally dismissed. Carbone, who refused to attend that meeting, was discharged as of that date. ARCO cited Carbone’s submission of incorrect price information as the grounds for his discharge.

Having found these facts, the referee then addressed Carbone’s legal arguments. In addressing the first count, namely that ARCO breached an implied covenant of good faith and fair dealing by dismissing Carbone, the trial referee first found that Carbone was an at will employee and as such had assumed the risk of termination without cause. Relying primarily upon Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984), the referee reasoned that an employee may sustain a cause of action for breach of an implied covenant of good faith and fair dealing only when that person has been discharged in violation of some important public policy. Noting that Carbone did not claim that he had been discharged because he had refused to violate any antitrust law, the referee held that “the requirement of . . . accuracy in the plaintiff s reporting of the competitor prices is a requirement of internal management . . . and is not seen as one affecting public policy in . . . that it is injurious to the public or against the public good, but rather subserves these purposes,” and concluded that Carbone’s dismissal did not constitute a violation of public policy.

The referee, in considering Carbone’s third count, i.e., that ARCO breached an implied contract established in part by ARCO’s employment manual, first recognized that an employment manual may provide terms of an employment contract under the appropriate circumstances. The referee, however, concluded that under the circumstances of the present case, the terms of the manual did not become part of Carbone’s contract of employment. Although ARCO maintained a manual that pertained to the policy of employment and separation of employees, the referee reasoned that because the manual was not intended nor maintained for every employee, and because Carbone had no knowledge of the manual or its provisions, it could not constitute part of his employment contract. Accordingly, the referee found for ARCO on count three also.

The referee, however, found for Carbone on the second count of his amended complaint, which alleged that his discharge had been malicious and improper. In addressing this count, the referee again noted that Car-bone, as an at will employee, could be terminated without cause. Nonetheless, the referee reasoned that because ARCO had stated a cause for the discharge, it was required to carry out the procedure in a reasonable manner. Reviewing the circumstances surrounding Carbone’s dismissal, the referee concluded that ARCO had exercised its right of discharge “in an unreasonable and unnecessarily abusive manner and in abuse of discretion,” thus entitling Carbone to damages and attorney’s fees.

On appeal, ARCO claims that the referee erred in: (1) concluding that it was liable for the manner in which it dismissed the plaintiff; (2) awarding damages based on the plaintiff’s lost earnings notwithstanding the defendant’s right to discharge the plaintiff; and (3) awarding attorney’s fees. The plaintiff has cross appealed, claiming that the trial referee erred in: (1) rendering judgment in favor of the defendant on counts one and three of his complaint; and (2) in calculating his damages. We find error on the defendant’s first claim, but find no error with respect to the plaintiff’s claims on the cross appeal. Accordingly, we need not consider any of the ancillary claims concerning damages.

II

In addressing ARCO’s first claim, we find two of our cases, Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), and Morris v. Hartford Courant Co., 200 Conn. 676, 513 A.2d 66 (1986), to be of assistance. In Sheets v. Teddy’s Frosted Foods, Inc., supra, 475, we recognized a common law cause of action in tort for the discharge of an at will employee “if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original.) Acknowledging that courts should not lightly intervene to impair the exercise of managerial discretion, we nonetheless recognized that employees who are discharged for reasons that violate public policy are entitled to a modicum of judicial protection. Id., 477. Accordingly, we held that where an employee alleged that he had been discharged in retaliation for his insistence that his employer comply with the requirements of the state Food, Drug and Cosmetic Act, he had stated a valid cause of action. Id., 480.

Recently, in Morris v. Hartford Courant Co., supra, we examined whether the cause of action alleged therein was within the narrow public policy exception to the general rules governing the termination of at will employment relationships. In Morris, the wrongful discharge claim was based upon the allegation that the employer had “ ‘falsely charged] the [plaintiff] with criminal conduct,’ ” and that the “[employer] negligently investigated the matter.” Id., 679-80. In addressing the employee’s claim, we stated: “This public policy exception to the employment at will rule carved out in Sheets attempts to balance the competing interests of employer and employee. Under the exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy. The employer is allowed, in ordinary circumstances, to make personnel decisions without fear of incurring civil liability. Employee job security, however, is protected against employer actions that contravene public policy.” Id., 679. We concluded that “[a] false but negligently made accusation of criminal conduct as a basis for dismissal is not a ‘demonstrably improper reason for dismissal’ (emphasis in original) and is not ‘derived from some important violation of public policy.’ Sheets v. Teddy’s Frosted Foods, Inc., supra, 475.” Morris v. Hartford Courant Co., supra, 680.

There is no allegation in the amended complaint nor any finding by the state trial referee that ARCO’s action in discharging Carbone violated any public policy. Specifically, the trial referee found that “[i]n the present case the requirement of [the] defendant of accuracy in the plaintiff’s reporting of the competitor prices is a requirement of internal management of the defendant and is not seen as one affecting public policy in the sense that it is injurious to the public or against the public good, but rather subserves these purposes.”

The trial referee nonetheless concluded that ARCO had exercised its right to dismiss Carbone in an unreasonable and unnecessarily abusive manner and in abuse of discretion because ARCO: (1) had found that the inaccuracies in Carbone’s surveys had been intentionally and deliberately made; (2) had maligned Carbone who had otherwise been an employee of “good name and integrity”; and (3) had unfairly documented his employment record which might adversely affect his future employment opportunities. Significantly, Carbone does not claim that these reasons cited by the referee contravened public policy, either by violating an explicit statutory or constitutional provision or by transgressing judicially conceived notions of public policy. Accord Morris v. Hartford Courant Co., supra, 680; see generally Sheets v. Teddy’s Frosted Foods, Inc., supra, 474 n.3, 476, 480. ARCO therefore claims that the referee was incorrect in imposing upon it liability for the manner in which it dismissed Carbone.

Any termination of an at will employment relationship can generate a question regarding the manner of discharge. In the present case, however, we conclude that there is no material difference between the reasons for a discharge, as alleged in Morris v. Hartford Courant Co., supra, and the manner of discharge as claimed here.

In Morris, the employee alleged that the employer had failed to investigate its charges reasonably and adequately. Id., 680. Thus, the employee’s claim that his discharge was based on a violation of public policy because the employer falsely charged him with criminal conduct was premised solely upon the negligent manner in which the employer investigated the accusation. See id. In that case, we held that such allegations did not fall within the necessary parameters for an actionable wrongful discharge claim. Id., 681.

Carbone attempts to distinguish Morris, by claiming that “[t]he Morris court’s analysis focused on the reason for the discharge. The manner of the discharge was not raised and therefore was not considered. In [this] case, both the trial court and the plaintiff focused on the manner of the discharge.” We find his argument unpersuasive. Here, Carbone claims that the manner in which ARCO ultimately discharged him is actionable. Unless there is an expansion of the Sheets requirement or an additional exception to the traditional common law employment at will discharge rules, the reason for or the manner of discharge must be not only demonstrably improper, but the impropriety must be derived from some important violation of public policy. Under the allegations of the present amended complaint and the findings of the trial referee we find it unnecessary, at this time, to articulate precisely the difference, if any, between the reason for discharge and the manner of discharge in an at will employment relationship. We adhere to our statement in Morris v. Hartford Courant Co., supra, 679 n.2: “In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984), we expressly refused to enlarge the circumstances under which an employee at will may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety derived from some important violation of a public policy.”

Accordingly, we conclude that the trial referee erred in holding ARCO liable for the manner in which it discharged the plaintiff.

Ill

Carbone, on cross appeal, first argues that the referee erred in finding that ARCO had not breached an implied covenant of good faith and fair dealing in its oral contract by dismissing the plaintiff. Claiming that such a covenant “should be interpreted as a standard of behavior which governs the conduct” of the contracting parties, Carbone contends that the referee should have determined that the defendant, by its behavior and conduct in performing the contract, breached this implied covenant. We disagree.

Recently we have stated that although we endorse the principle of good faith and fair dealing in employment contracts, the purpose of such an implied covenant is to fulfill the reasonable expectations of the parties. Magnan v. Anaconda Industries, Inc., supra. Where an employment contract is clearly terminable at will, however, a party cannot ordinarily be deemed to lack good faith in exercising this right. Id. Thus, absent a showing that the discharge involves an impropriety which contravenes some important public policy, an employee may not challenge a dismissal based upon an implied covenant of good faith and fair dealing. Id. In the present case, the trial referee found that the plaintiffs dismissal was not based on some impropriety involving a violation of public policy, a finding which the plaintiff does not challenge. Accordingly, his dismissal did not breach an implied covenant of good faith. We therefore find no error.

IV

Carbone also complains that the trial referee erred in holding that ARCO did not breach an implied contract to dismiss the plaintiff only for cause. Reasoning that evidence, was introduced at trial that the defendant had an employment manual establishing a policy to terminate an employee only for cause, the plaintiff contends that the manual became part of his employment contract thereby “transforming] the employment contract from one terminable at will to one terminable only for cause.” Carbone claims that because good cause was not shown the referee should have found that ARCO had breached the implied terms of the contract.

In determining the terms of a contract, the intentions of the parties, manifested by their words and actions, are essential. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 652, 353 A.2d 714 (1974); see J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 2-1, p. 25. While we have recognized that, under appropriate circumstances, the terms of an employment manual may give rise to an express or implied contract between employer and employee; see Finley v. Aetna Life & Casualty Co., supra, 198-99; Magnan v. Anaconda Industries, Inc., supra, 565; in the absence of definitive contractual language, the question of whether the parties intended the manual to constitute part of the contract is a question of fact to be determined by the trier of fact. Finley v. Aetna Life & Casualty Co., supra, 199; see generally Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981).

In the present case, the referee concluded that ARCO’s employment manual did not constitute part of the employment contract between ARCO and Car-bone. The referee found that the manual was not intended or maintained for all employees, but it was distributed only to supervisory personnel, of which Car-bone was not one. Moreover, the referee found that Carbone was not aware of the manual before or during his employment, and therefore did not rely on its provisions at any time. The referee thus held that the manual was not part of the employment contract. Because the question of whether an employment manual constitutes part of an employment contract is a question of fact, and the referee found that under these circumstances the manual was not part of the contract, we conclude that the referee did not err in his ruling.

There is error on ARCO’s appeal, the judgment on count two is set aside and the case is remanded with direction to render judgment for ARCO on count two of the amended complaint. There is no error on Car-bone’s cross appeal.

In this opinion the other justices concurred.

       15 U.S.C. § 13 (a) provides in part: “Price; selection of customers
      “It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination maybe substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination

       15 U.S.C. § 13 (b) provides: “Burden of rebutting prima-facie case of discrimination
      “Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, that nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.” (Emphasis in original.)

       At trial, Carbone withdrew any claim that he was discharged because of animosity on the part of his supervisors. We therefore need not consider whether such a claim would establish a viable cause of action under this public policy exception. See Morris v. Hartford Courant Co., 200 Conn. 676, 680, 513 A.2d 66 (1986). Additionally, Carbone does not claim that he suffered emotional distress as a result of his discharge.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Elsie Sanchez
    (12690)
    Peters, C. J., Healey, Callahan, Borden and Fracasse, Js.

      Argued April 2
    decision released July 21, 1987

      Laura A. Ingersoll, certified legal intern, with whom were Todd D. Femow and, on the brief, Michael R. Sheldon and Thomas G. Merrill, certified legal intern, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, and James G. Clark, assistant state’s attorney, with whom, on the brief, was Peter Ponziani, deputy assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

On November 11,1984, the defendant, Elsie Sanchez, was convicted by a jury of the crime of perjury in violation of General Statutes § 53a-156 (a). The defendant appeals from the judgment of conviction claiming that the trial court erred in: (1) denying her motion for judgment of acquittal; (2) directing the jury to find that the statements made in the prior judicial proceeding were material; and (3) instructing the jury that it could infer the existence of disputed elements of the charged offense by a preponderance of the evidence. The defendant also claims that she was deprived of her right to a fair trial when the assistant state’s attorney was allowed to prosecute her for perjury after he had tried the case in which she allegedly committed the charged offense.

The perjury charge arose from the defendant’s alibi testimony in the prior trial of her boyfriend, Marcos DeJesus. DeJesus had been charged with the crimes of burglary in the first degree, assault in the second degree and larceny in the second degree in connection with an incident which occurred on May 22, 1982. At DeJesus’ trial, the defendant testified that at approximately 2 p.m. on May 22, 1982, she and DeJesus had left East Hartford to drive to her godmother’s home in Norwood, Massachusetts, to pick up the defendant’s daughter, Angelica Haley. She testified that they had left Norwood at 10:30 that night and had returned home about 1:30 a.m. The defendant testified that she was sure they had been in Massachusetts on that date because she had taken her daughter out of school May 17 through May 21 and had dropped her off in Norwood on May 16. She testified that she had taken Angelica out of school and had taken her to Norwood “because she [had been] giving [the defendant] trouble in school.” The jury found DeJesus not guilty and judgment was rendered accordingly.

In support of its claim that the defendant testified falsely at the DeJesus trial, the state presented three sets of school attendance records tending to show that, during the week of May 17-21,1982, Angelica had been recorded as having been absent only on May 18. The records were presented through Hope Labet, Angelica’s 1981-82 school year homeroom teacher, and Devon Delk, former supervisor of pupil accounting for the East Hartford board of education. From this testimony, the jury could reasonably have found the following: Attendance of the sixteen to eighteen fourth graders was taken each morning at 8:15 and transcribed on daily attendance sheets. If a child was absent, his or her name was recorded on the daily attendance sheet. These sheets were sent to the office each morning between 8:18 and 8:20. When a child was tardy, he or she had to go to the office and obtain a classroom pass. If that child had been marked absent on the daily attendance sheet, a single line was drawn through his name and a “T” for tardy was marked next to it by either the teacher, if he or she had the sheet, or by the office. Each day, the teacher copied each student’s statistics from the daily attendance sheets onto white cards which, in turn, were used at the end of each marking period to prepare the student’s report card attendance summary.

The daily attendance sheets for the 1981-82 school year showed that during the week of May 17-22,1982, Angelica had been absent only on May 18, 1982. The daily sheets showed that during the entire month of May, Angelica had been absent four times and tardy twice. The white card also showed that during the month of May, Angelica had been absent four times and tardy twice. Angelica’s June, 1982 report card, however, showed that she had been absent three times and tardy three times.

Labet explained that the discrepancy was the result of an error in transposing the figures to the report card. She testified that the daily sheets were accurate and that it is not likely that she had made an error on the daily sheets or white card “because those are the original things that I would write every day and [the report card] is something I copied over from a white sheet and I’m copying seventeen, eighteen per marking period.”

Angelica Haley was the only witness to testify for the defense. She testified, inter alia: that during the week in question she had been in Norwood with her mother’s godmother; that she had been sent there as punishment for playing hooky from school; and that her mother and DeJesus had picked her up and had taken her home. Angelica also testified that she could not remember how many times she had been absent during April, May or June in the sixth grade or how many times she had been absent during the total year of sixth, fifth or fourth grade.

I

The defendant’s first claim of error is that the trial court erred in failing to grant each of her motions for judgment of acquittal on the ground that the state had failed to prove a prima facie case of falsity.

In support of this claim of error, the defendant, pointing to the common law “two witness rule,” argues that in order to support a charge of perjury, the prosecution must provide at least two independent sources of evidence as to the falsity of the allegedly perjured statement. The defendant maintains that in this case the state offered only a single set of attendance records to establish falsity and that this evidence falls short of the requisite degree of proof necessary to support a conviction of perjury. The defendant argues that one piece of uncorroborated documentary evidence is not enough to sustain a conviction for perjury.

Simply stated, the two witness rule is a quantitative rule of evidence which provides that a person may not be convicted of perjury upon the testimony of a single witness as to the falsity of the statement made. 7 J. Wigmore, Evidence (Chadbourn Rev.) § 2040; note, “Perjury and the Quantitative Evidence Rule,” 36 Mo. L. Rev. 544 (1971). Originally, the rule required that in order to sustain a conviction for perjury, the falsity of the defendant’s oath had to have been proven by the sworn testimony of two or more live witnesses. Over the years, however, the rule has been modified to permit a conviction upon the sworn testimony of one live witness if that testimony is supported by proof of corroborative circumstances, the so-called “one-witness-plus-corroboration” rule. State v. Campbell, 93 Conn. 3, 12, 104 A.2d 653 (1918); see 2 F. Wharton, Criminal Evidence (13th Ed. Torcia) § 488. It has been said that “[t]he rule of evidence in perjury cases presents an almost unique exception to the general rule that evidence which is sufficient to convince the jury of the defendant’s guilt beyond a reasonable doubt is sufficient to sustain a conviction.” United States v. Palese, 133 F.2d 600, 602 (3d Cir. 1943). This “special rule” is “deeply rooted in past centuries.” Weiler v. United States, 323 U.S. 606, 608-609, 65 S. Ct. 548, 89 L. Ed. 495 (1945). The drafters of the Model Penal Code explain this evidentiary requirement as “a special gloss on ‘reasonable doubt.’ ” Model Penal Code § 241.1, p. 141 (1980). The two witness rule is contrary to the principle followed in our justice system that the “ultimate measure of testimonial worth is quality and not quantity.” Weiler v. United States, supra, 608.

It has been said that “[t]he rule has value in safeguarding witnesses in official proceedings from harassment by disappointed litigants. It also protects them from their own or another’s good-faith mistakes.” Commonwealth v. Robinson, 332 Pa. Super. 147, 150, 480 A.2d 1229 (1984); see United States v. Nessanbaum, 205 F.2d 93, 95 (3d Cir. 1953). “ ‘The ground of the rule is a suspicion of fraud.’ ” United States v. Wood, 39 U.S. 430, 443, 10 L. Ed. 527 (1840). In affirming the viability of the rule, Justice Hugo Black stated: “[Ijmplicit in its evolution and continued vitality has been the fear that innocent witnesses might be unduly harassed or convicted in perjury prosecutions if a less stringent rule were adopted. Whether it logically fits into our testimonial pattern or not, the government has not advanced sufficiently cogent reasons to cause us to reject the rule.” Weiler v. United States, supra, 609. The Second Circuit Court of Appeals has stated: “The purpose of the rule [is] to prevent ill-founded retaliatory attack by perjury prosecution upon a witness on no more than the contrary oath of another.” United States v. Collins, 272 F.2d 650, 652 (2d Cir. 1959), cert. denied, 362 U.S. 911, 80 S. Ct. 681, 4 L. Ed. 2d 619, reh. denied, 362 U.S. 957, 80 S. Ct. 859, 4 L. Ed. 2d 874 (1960).

Unlike perjury statutes in other states that have either expressly rejected or adopted the common law two witness rule; see, e.g., State v. Farrington, 411 A.2d 396, 401 (Me. 1980); State v. Storey, 148 Minn. 398, 182 N.W. 613 (1921); our perjury statute, § 53a-156, does not by its terms require a particular quantum of evidence as to falsity in order to support a conviction under that statute. In fact, the legislature in promulgating § 53a-156 was silent on the question of whether the one-witness-plus-corroboration rule would remain the law of this state after the effective date of § 53a-156. We have said on other occasions, however, that “ ‘[n]o statute is to be construed as altering the common law, farther than its words import [and that a statute] is not to be construed as making any innovation upon the common law which it does not fairly express.’ Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L. Ed. 892 [1879].” Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951); Stolberg v. Caldwell, 175 Conn. 586, 607, 402 A.2d 763 (1978); 2A J. Sutherland, Statutory Construction (Sands 4th Ed.) § 50.05. Furthermore, there is no evidence in the legislative history or our subsequent construction of § 53a-156 that the statute is anything but a direct codification of the common law crime of perjury. The most reasonable construction of that statute, therefore, is that the legislature intended to carry forward the common law one-witness-plus-corroboration rule into § 53a-156.

While the state does not dispute that the one-witness-plus-corroboration rule remains part of our jurisprudence, it does argue that the defendant’s claim is without merit because the one-witness-plus-corroboration rule does not apply to cases in which the state relies on documentary evidence to establish falsity. The state maintains that the rule is limited to situations in which the state relies solely on the live testimony of a single witness to prove falsity. The issue before this court, therefore, is the quantum of the evidence of falsity necessary to sustain a conviction of the crime of perjury in violation of § 53a-156 in cases where the state relies solely on documentary evidence to establish falsity.

Although the case law is not always consistent; see 88 A.L.R.2d 847; courts have held that the one-witness-plus-corroboration rule does not prevent a conviction based on circumstantial evidence alone. See, e.g., Boney v. United States, 396 A.2d 984 (D.C. App. 1979); Brown v. State, 225 Md. 610, 171 A.2d 456 (1961), and cases cited therein. Similarly, some courts have held that the rule does not preclude a conviction where the only proof of falsity is documentary evidence. United States v. Wood, supra, 444; United States v. Collins, supra; United States v. Flores-Rodrigues, 237 F.2d 405 (2d Cir. 1956); People v. Fueston, 717 P.2d 978 (Colo. App. 1985); Commonwealth v. Robinson, supra; but cf. People v. Di Giacomo, 193 Cal. App. 2d 688, 14 Cal. Rptr. 574 (1961). Some courts have held that the state is not obligated to present live testimony. See, e.g., United States v. Wood, supra, 440; United States v. Spaeth, 152 F. Sup. 216 (N.D. Ohio 1957), aff'd, 254 F.2d 924 (6th Cir. 1958), cert. denied, 358 U.S. 831, 79 S. Ct. 52, 3 L. Ed. 2d 69 (1958); comment, “Proof of Perjury: The Two Witness Requirement,” 35 S. Cal. L. Rev. 86, 92 (1961).

When documentary evidence is substituted for the testimony of a live witness, however, that evidence must be of a highly reliable order and the necessity for corroboration is not eliminated. 70 C.J.S. §§ 60, 68, citing Hammer v. United States, 271 U.S. 620, 626, 46 S. Ct. 603, 70 L. Ed. 1118 (1926); United States v. Nessanbaum, supra; United States v. Palese, supra; see United States v. Bergman, 354 F.2d 931, 934 (2d Cir. 1966); United States v. Collins, supra. The corroboration requirement is satisfied only with evidence that is independent of the principal evidence which it corroborates. “ ‘When the courts speak of corroborative evidence they mean evidence aliunde—evidence which tends to show perjury independently.’ ” United States v. Neff, 212 F.2d 297, 307 (3d Cir. 1954); United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981); United States v. Rose, 215 F.2d 617, 625 (3d Cir. 1954). One court put it this way: “[T]he corroborative evidence must be inconsistent with the innocence of the accused and must tend to show the perjury independently of the testimony which it is intended to corroborate.” United States v. Forrest, supra.

A careful review of the evidence introduced in this case reveals that the documentary evidence that the defendant testified falsely in the Dejesus trial was not independently corroborated, so that it cannot be said that the state discharged its burden of proof beyond a reasonable doubt on this essential element of the crime charged. The only evidence introduced by the state to show that the defendant “lied” in the prior trial was an array of school attendance records. Although the records showed that Angelica had not been recorded as absent on three or four of the days during the week that the defendant testified that Angelica was in Massachusetts, the state concedes that because these documents emanate from only one source, Labet, they constitute only one piece of evidence tending to prove falsity. The state provided no evidence corroborating these records, choosing instead to rely solely on the attendance records to establish falsity. Because Labet testified that she had no personal recollection of whether Angelica had been in or out of school during the week of May 17-21, 1982, she provided no independent corroboration of the records. The state’s witness Delk did not work at the school where Labet made the original records and also had no independent knowledge of the information they purported to contain. We conclude, therefore, that the state failed to meet its burden of proof as to the falsity of the defendant’s testimony because a single uncorroborated piece of documentary evidence, under the circumstances of this case, is legally insufficient to establish the essential element of falsity.

In arguing that the one-witness-plus-corroboration rule does not apply to cases in which the state relies upon documentary evidence to establish falsity, the state relies heavily on the United State Supreme Court’s opinion in United States v. Wood, supra. In Wood, the defendant was charged with having sworn falsely to the United States customs department about the price of goods he had imported. To show the falsity of the oath, the government presented an invoice book belonging to the defendant’s father and business partner, and letters written by the defendant to his father describing the intended fraud. The state fails to acknowledge that in Wood the United States Supreme Court carefully limited its holding to a case where the “documentary or written testimony spring[s] from [the defendant] himself . . . .” Id., 441. We note also that in Wood the evidence consisted of two entirely independent pieces of documentary evidence, the letters written by the defendant himself and the invoice books of his father. Under the circumstances of this case, Wood cannot avail the state.

In support of its argument, the state also relies upon the case of Commonwealth v. Robinson, supra. In Robinson, the defendant was charged with three counts of perjury. The charges arose from the testimony of the defendant given at a bail revocation hearing. At that hearing, the defendant testified that he had not been present for a hearing on October 4, 1980, because on that date, he had been incarcerated in prison out of state. He testified also that he had been unable to appear for a hearing on March 31, 1978, because he was then a patient at the Medical College of Pennsylvania. Finally, he testified that he was an employee of Budd Company, having worked for that company for a period of four years. In order to show the falsity of the defendant’s testimony, the Commonwealth relied upon the records of the prison, the hospital and the Budd Company. The respective records showed that on the dates in question the defendant had not been a prisoner, a patient or an employee. A careful review of the documentary evidence in that case reveals, however, that as to each instance of perjury, the Commonwealth relied on more than a single uncorroborated document to establish falsity. See id., 153. Robinson, therefore, is not dispositive of the state’s position.

The trial court erred in denying the defendant’s motion for judgment of acquittal. See State v. Gray, 200 Conn. 523, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

There is error, the judgment is set aside and the matter is remanded with direction that a judgment of acquittal be rendered.

In this opinion the other justices concurred.

       General Statutes § 53a-156 (a) provides: “perjury: class d felony. (a) A person is guilty of perjury if, in any official proceeding, he intentionally, under oath, makes a false statement, swears, affirms or testifies falsely, to a material statement which he does not believe to be true.”

       At trial, the state, after an offer of proof in the absence of the jury, introduced the relevant portions of the tape and transcript of the defendant’s testimony at the DeJesus trial. The defendant objected to admitting any of the tape on the grounds that it violated her fifth amendment rights. The trial court ruled “that so much of the tape that pertains to why this defendant went to Massachusetts, when she went to Massachusetts regarding the party and matters of that type may be admitted.” The defense counsel then suggested that he and the state’s attorney go over the transcript and stipulate to the appropriate pages.

       Angelica’s name appeared on the May 18, 1982 sheet as absent and next to it appeared the notation: “If Mrs. Sanchez [does not] call, please call her . . . .” Labet testified that the notation had been written in response to a request from the defendant that if Angelica is not in school and the defendant does not call, then the school should call her.

       Labet examined each daily sheet for May in order to total the number of times Angelica had been absent. Initially, at the trial, she counted five absences, but immediately corrected the number to four.

       At the close of the state’s case, the defendant moved to strike Labet’s testimony as not credible. The trial court denied the motion.

       On November 13,1983, before commencement of the trial, the defendant asked for a judgment of acquittal on the ground that the state could not establish a prima facie case. The trial court denied the motion as premature. At the close of the state’s case, the defendant again moved for a judgment of acquittal. The trial court denied the motion.

       We must note that this rule had been subject to much criticism. See, e.g., Cohen v. United States, 27 F.2d 713 (2d Cir. 1928); Hourie v. State, 452 A.2d 440 (Md. App. 1982); State v. Storey, 148 Minn. 398, 402-403, 182 N.W. 613 (1921); 7 J. Wigmore, Evidence (Chadbourn Rev.) § 2043; see also United States v. Collins, 272 F.2d 650, 652 (2d Cir. 1959).

       This concept has been articulated by different courts in various ways: “Brightman v. United States, 386 F.2d 695, 697 (1st Cir. 1967) (‘the corroboration must be of a substantial nature .... “It is sufficient if the corroborating evidence tends to establish the defendant’s guilt, and if such evidence together with the direct evidence is inconsistent with the innocence of the defendant.” ’ [emphasis original; citation omitted]). United States v. Collins, 272 F.2d 650, 652 (2d Cir. 1959), cert. denied, 362 U.S. 911 [805 S. Ct. 681, 4 L. Ed. 2d 619] (1960) (‘The test should be rather whether the evidence is of a quality to assure that a guilty verdict is solidly founded .... [Here,] the testimony, although in a sense circumstantial, is absolutely inconsistent with Collins’ innocence.’). United States v. Bergman, 354 F.2d 931, 934 (2d Cir. 1966) (‘circumstantial evidence of a highly reliable order’). United States v. Maultasch, 596 F.2d 19, 25 n.9 (2d Cir. 1979) (‘other evidence of independent probative value, circumstantial or direct, that is “of quality to assure that a guilty verdict is solidly founded” ’ [citation omitted]). United States v. Neff, 212 F.2d 297, 306-307 (3d Cir. 1954) (‘strong, clear, convincing and direct’). United States v. Rose, 215 F.2d 617, 621 (3d Cir. 1954) (same). Allen v. United States 194 F.2d 664, 668 (4th Cir. 1912) (‘to convict of perjury the government must produce testimony of a more direct and positive character than is required to justify a verdict of guilty of other offenses’). Van Liew v. United States, 321 F.2d 674, 679 (5th Cir. 1963) (‘the Government had the burden of proving by clear, convincing and direct evidence to a moral certainty and beyond a reasonable doubt that the [defendant . . . purposefully misstated that fact. . . .’). United States v. Forrest, 639 F.2d 1224, 1226 (5th Cir. 1981) (‘ . . . the evidence must be strong, clear, convincing and direct. Where the government seeks to establish perjury by the testimony of one witness and corroborating evidence, the latter must be independent of the former and inconsistent with the innocence of the defendant.’) United States v. Edwards, 443 F.2d 1286, 1294 (8th Cir.), cert. denied, 404 U.S. 944 [92 S. Ct. 295, 30 L. Ed. 2d 259] (1971) (‘substantial evidence excluding every other hypothesis than that of guilt’). United States v. Koonce, 485 F.2d 374, 381 (8th Cir. 1973) (‘clear, convincing and direct evidence’). United States v. Armillo, 705 F.2d 939, 941 n.5 (8th Cir.), cert. denied, [464 U.S. 891, 104 S. Ct. 235, 78 L. Ed. 2d 227] (1983) (‘This “clear, convincing and direct evidence” language does not articulate a standard for weighing the evidence, but requires that the government present particular kinds of evidence . . . .’). Hart v. United States, 131 F.2d 59, 61 (9th Cir. 1942) (‘clear, convincing, and direct’).” Commonwealth v. Coleman, 20 Mass. App. 541, 557-58 n.21, 481 N.E.2d 532 (1985).

       There are a few limited exceptions to the one-witness-plus-corroboration rule, none of which is applicable in this case. For example, the corroboration requirement has been held not to apply where the falsity of the oath is established by documentary evidence or written testimony springing from the defendant himself. See, e.g., United States v. Wood, 39 U.S. 430, 443, 10 L. Ed. 527 (1840); United States v. Collins, 272 F.2d 650, 652 (2d Cir. 1959); United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956); Phair v. United States, 60 F.2d 953 (3d Cir. 1932). A second situation where it has been held that corroboration is not required is where the falsity of the oath is established by public record known to the defendant when he took the oath. See, e.g., United States v. Flores-Rodriguez, supra.

       We point out that requiring the evidence in cases where there is no live witness, to be of a highly reliable order, does not articulate a standard for weighing the evidence but it does require that the state present a particular kind of evidence on the element of falsity. The evidence presented by the state in a perjury prosecution must, of course, be such as to convince the jury beyond a reasonable doubt. In other words, the evidence the state is required to present on the issue of falsity must qualitatively be of a highly reliable order. This requirement is not at all any qualification of the reasonable doubt rule.

       These records were “layered” in the sense that they all depended upon original daily records which were, in turn, transposed by hand onto successive sets of attendance records. Cross-examination disclosed that such transpositions were not entirely accurate.


author: Spallone, J.

text:
    Julian R. Skitromo v. Meriden Yellow Cab Company, Inc., et al.
    (12946)
    Peters, C. J., Healey, Callahan, Spallone and Spear, Js.
    Argued May 5
    decision released July 28, 1987

      P. Bryden Manning, for the appellants (defendants).

      Kenneth G. Bartlett, for the appellee (plaintiff).
   Spallone, J.

The sole issue in this appeal is whether an employer who is obligated to pay workers’ compensation benefits to an injured employee may credit against its future compensation liability the amount recovered by that employee in a third party action despite the employer’s failure to intervene in the third party proceedings in the manner prescribed by General Statutes § 31-293. We hold that the employer’s failure to intervene in the third party action deprived it of any interest in the employee’s third party recovery, and that the employer, therefore, is not entitled to credit that recovery against its future workers’ compensation liability. Since the compensation review division reached the same conclusion, we find no error.

The facts in this case are not in dispute. The plaintiff, Julian R. Skitromo, was employed as a cab driver by the named defendant, Meriden Yellow Cab Company, Inc. On August 13, 1979, while driving a cab in the course of his employment, the plaintiff was struck from the rear by another vehicle. The plaintiff was severely injured and subsequently made a workers’ compensation claim against his employer. The plaintiff was awarded benefits and received a total of $41,331, including $14,208 in medical payments, between August 13, 1979, and October, 1982. These benefits were paid by the codefendant Travelers Insurance Company, the employer’s insurer.

By writ, summons and complaint returnable May 6, 1980, the plaintiff commenced a common law negligence action against the third party tortfeasor. On October 31, 1980, a certified letter was sent to the named defendant notifying it of the pending court proceedings. The letter was received on November 1,1980. On January 14, 1981, the named defendant filed a motion to intervene in the suit. The motion was denied by the trial court because it had been filed beyond the thirty day period provided in General Statutes § 31-293. In October, 1982, the plaintiff settled his third party action for $90,000 from which he, after paying certain fees and expenses, netted $56,610.80.

After the plaintiff settled his third party action, the defendants terminated the plaintiffs workers’ compensation benefits, claiming that they had a right to offset their inchoate future liability to the plaintiff against his net recovery in the third party settlement. The plaintiff thereafter initiated workers’ compensation proceedings to compel the defendants to restore the benefits.

By finding and award dated May 18,1984, the workers’ compensation commissioner found that the defendants were obligated to pay to the plaintiff all benefits due him pursuant to the provisions of the Workers’ Compensation Act, without any deductions or credits for the plaintiff’s third party settlement. The defendants appealed the commissioner’s decision to the compensation review division, which affirmed the commissioner. The defendants then filed this appeal.

The defendants concede that because they failed to intervene in a timely fashion in the third party action, they have no right to reimbursement of the $41,331 already paid to the plaintiff in benefits. They contend, however, that they may credit the net amount received by the plaintiff in the third party settlement against their future workers’ compensation liability. The defendants rely on a series of cases discussing the right of an employer to set off amounts received by an employee in third party actions against the employer’s workers’ compensation liability. See Stavola v. Palmer, 136 Conn. 670, 680, 73 A.2d 831 (1950); Mickel v. New England Coal & Coke Co., 132 Conn. 671, 678, 47 A.2d 187 (1946); United States Fidelity & Guaranty Co. v. New York, N.H. & H. R. Co., 101 Conn. 200, 203,125 A. 875 (1924); Rosenbaum v. Hartford News Co., 92 Conn. 398, 400-403, 103 A. 120 (1918).

These cases, however, establish only that an employer has a general right to be reimbursed from a third party tortfeasor for benefits paid to an employee for injuries caused by the third party. This right is established by General Statutes § 31-293, which allows both employers and employees to bring an action against a third party who is allegedly responsible for the employee’s injury. By allowing either an employer or an employee to bring an action, the law seeks to vindicate both the employee’s interest in receiving the full scope of tort damages that remain uncompensated by a workers’ compensation award and the employer’s interest in being reimbursed for payments made because of the third party’s malfeasance. See DeSantis v. Gaudioso, 39 Conn. Sup. 222, 223, 476 A.2d 149 (1983); 2A A. Larson, Workmen’s Compensation Law § 71.20.

The issue in the present case, however, is not whether an employer generally has the right to be reimbursed from a third party tortfeasor for workers’ compensation benefits paid to an injured employee. As § 31-293 and the cases cited by the plaintiff establish, our workers’ compensation law clearly provides an employer with the means to enforce his right to reimbursement from a third party tortfeasor. Instead, the issue is whether an employer forfeits his right to reimbursement when he fails to act to enforce those rights in the manner prescribed by statute.

In the present case, although the plaintiff notified the defendant employer by certified mail that he had initiated a third party action, the employer did not move to intervene until approximately two and one-half months later. General Statutes § 31-293 (a) provides that if an employer or employee who is properly notified of a third party action fails to intervene in the action as a party plaintiff within thirty days from notification, “his right of action against such third person shall abate.” Because the defendants in this case failed to file a timely motion to intervene in the third party action, they lost any right they may have had in the plaintiffs third party recovery. General Statutes § 31-293; Ricard v. Stanadyne, Inc., 181 Conn. 321, 323, 435 A.2d 352 (1980); Olszewski v. State Employees’ Retirement Commission, 144 Conn. 322, 325, 130 A.2d 801 (1957).

The defendants attempt to circumvent the requirements of General Statutes § 31-293 by characterizing their claim not as a right to reimbursement from the third party tortfeasor, but as a right to reduce their future payments owed to the injured employee. The defendants, however, have no such right against an employee either by statute or common law. Norwalk v. Van Dyke, 33 Conn. Sup. 661, 666, 366 A.2d 554, cert. denied, 172 Conn. 681, 364 A.2d 864 (1976). Their sole means to assert any right against the plaintiffs third party recovery was by way of the procedure set forth in § 31-293. By failing to comply with the statutory procedure, any right of the defendants to the plaintiffs third party recovery, including the alleged right to credit that recovery against its future liability, was extinguished.

The defendants argue that such a result would contravene the legislative intent against permitting double recovery for the same injury. Any unfairness, however, is due to the defendants’ own failure to comply with the statutory timetable. “Although one purpose of § 31-293 is to avoid double recovery, it does not protect those who are less than vigilant in safeguarding their own legal rights. The imperfection is not in the statute which provides a simple means of effectuating the rights created, but in those who fail to avail themselves of its benefits for no justifiable reason.” Norwalk v. Van Dyke, supra, 667.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 31-293 (a) provides in part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person, but such injured employee may proceed at law against such person to recover damages for such injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate.”


author: Peters, C. J.

text:
    Charles J. Mozzochi v. Bruce S. Beck et al.
    (13118)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued June 3
    decision released July 28, 1987

      John R. Williams, for the appellant (plaintiff).

      Joseph F. Shelley, Jr., with whom, on the brief, was Carl F. Yeieh, for the appellees (defendants).
   Peters, C. J.

The principal issue in this case is whether a cause of action for abuse of process may be brought to recover damages from attorneys who allegedly pursued litigation despite their discovery that their client’s claim lacked merit. The plaintiff, Charles J. Mozzochi, filed a five count complaint charging the defendants, attorneys Bruce S. Beck and Kathleen Eldergill and the law firm of Beck & Pagano, with unlawful conduct in the nature of vexatious litigation, abuse of process and malpractice. The trial court, concluding that the plaintiff had failed to state any cause of action, granted the defendants’ motion to strike the complaint and subsequently, at the plaintiff’s request, rendered judgment in favor of the defendants. The plaintiff’s appeal to the Appellate Court was transferred to this court. We find no error.

In an appeal challenging a ruling on a motion to strike, we must take the facts to be those alleged in the plaintiff’s complaint, and must construe the complaint in the manner most favorable to the plaintiff. Verdon v. Transamerica Ins. Co., 187 Conn. 363, 365, 446 A.2d 3 (1982); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980). According to the complaint, at some time prior to May 7, 1982, the defendants instituted an action on behalf of Walter Muszynski against the present plaintiff. An amended complaint in the Muszynski action, filed on August 13, 1982, alleged that the plaintiff had falsely and maliciously accused Muszynski of having falsified his original job application with the Glastonbury police department and of having been arrested by federal agents for a felony. A subsequent amendment to the Muszynski complaint alleged that the plaintiff had falsely and maliciously accused Muszynski of having wrongfully obtained unemployment compensation benefits. The defendants persisted in filing these amended complaints and otherwise continued to pursue the Muszynski action despite the fact that they had learned that the plaintiffs statements about Muszynski were true and that the Muszynski action was without merit. The defendants pursued this course of conduct for the unlawful, ulterior purpose of inflicting injury upon the plaintiff and enriching themselves and their client, Muszynski.

The trial court determined that these allegations did not suffice to state a cause of action. With respect to a possible claim for vexatious litigation, the court determined that the complaint was defective for failure to allege that the underlying action “was initiated maliciously, without probable cause, and terminated in the plaintiffs favor.” Blake v. Levy, 191 Conn. 257, 263, 464 A.2d 52 (1983); Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). The court held that the complaint did not state a claim for abuse of process because it failed to allege that the defendants had engaged in overt acts for a collateral purpose unrelated to the lawsuit that they were prosecuting. Varga v. Pareles, 137 Conn. 663, 667, 81 A.2d 112 (1951). Finally, the court concluded that the plaintiffs complaint could not support an action for legal malpractice grounded in the provisions of the Code of Professional Responsibility, because it did not allege that the plaintiff had ever been the foreseeable beneficiary of the legal services rendered by the defendants for their client, Muszynski.

The plaintiffs appeal does not contest the trial court’s ruling on vexatious litigation. The plaintiff maintains, however, that the trial court erred in holding that his complaint failed to state a claim either for abuse of process or for legal malpractice. These claims of error warrant separate consideration.

I

The plaintiff asserts that he has stated a cause of action for abuse of process by alleging, in his complaint, that the defendants: (1) filed amendments to the pleadings in the Muszynski action when the defendants knew that the allegations of those amendments were false; and (2) refused to withdraw the Muszynski action after learning that it was utterly without merit. This conduct constituted abuse of process, according to the plaintiff, because it was allegedly undertaken for “an unlawful ulterior purpose, to wit: to inflict injury upon the plaintiff and to enrich themselves and their said client although they knew that their said lawsuit was without merit.”

In our assessment of the viability of this complaint, it is useful to note at the outset what the complaint does not allege. There is no claim that the defendants undertook any action outside of the normal course of proceedings in the Muszynski case itself. For example, there is no claim that the defendants used the pleadings or the process in the Muszynski case as leverage to coerce the plaintiff to pay a debt or surrender property unrelated to that litigation. Similarly, there is no claim that the defendants used unreasonable force, excessive attachments or extortionate methods to enforce the right of action asserted in the Muszynski case. Finally, there is no claim that the defendants’ purpose in pursuing the Muszynski case was to gain any collateral advantage extraneous to its merits. The only injury of which the plaintiff complains is that the defendants improperly continued to pursue the Muszynski case in order to enrich themselves and Muszynski at the plaintiff’s expense.

An action for abuse of process lies against any person using “a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.” Varga v. Pareles, supra, 667; Schaefer v. O. K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of “a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . . ” (Emphasis added.) Comment b to § 682 explains that the addition of “primarily” is meant to exclude liability “when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.” See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121.

We have not previously considered the scope of the potential liability of an attorney for abuse of process arising out of the attorney’s professional representation of the interests of his or her clients. Such a cause of action must be reconciled with our responsibility to assure unfettered access to our courts. Because litigants cannot have such access without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings. Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986); see 2 F. Harper, F. James & O. Gray, supra, § 5.22, esp. pp. 191-92; 3 Restatement (Second), Torts § 586 (1977); R. Mallen & Y. Levit, supra, § 65; W. Prosser & W. Keeton, supra, § 114. For other causes of action, however, the exigencies of the adversary system have not been deemed to require absolute immunity for attorneys. We have assumed, without discussion, that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation. Vandersluis v. Weil, supra, 361. Other courts have held that immunity from libel actions should not carry over to provide an attorney with an absolute defense to liability for abuse of process. See, e.g., Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal. 3d 1157, 1169, 728 P.2d 1202, 232 Cal. Rptr. 567 (1986); Hoppe v. Klapperich, 224 Minn. 224, 243, 28 N.W.2d 780 (1947); Peerman v. Sidicane, 605 S.W.2d 242, 245 (Tenn. App. 1980). Accordingly, we conclude that an attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process. In permitting such a cause of action, we must, however, take care “not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues.” Morowitz v. Marvel, 423 A.2d 196, 197-98 (D.C. App. 1980); Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978); Spencer v. Burglass, 337 So. 2d 596, 601 (La. App. 1976), writ of review denied, 340 So. 2d 990 (La. 1977).

State courts in other jurisdictions have undertaken the process of balancing these competing interests, principally in cases arising out of medical malpractice litigation. The factual setting of these cases is a suit by a physician seeking vindication from an attorney after a malpractice claim brought on behalf of the physician’s patient has ended in withdrawal, dismissal or settlement. Courts have struggled to determine under what circumstances such a complaint states a cause of action for abuse of process. The existing case law demonstrates that there is no bright line that clearly distinguishes between the ends ordinarily associated with litigation and the ulterior purpose that the tort of abuse of process is intended to sanction. Much turns on the specificity of the pleadings. In many of the cases, the complaints have alleged generally that a physician has incurred costs to defend against the underlying malpractice suit, or that the malpractice suit has injured his professional reputation, or that the malpractice suit was initiated in the hopes of procuring a favorable settlement. Ruling in favor of the attorney defendants, courts have held such complaints to be legally insufficient because they do not allege conduct showing the use of process to accomplish a purpose for which it was not designed. Morowitz v. Marvel, supra; Brody v. Ruby, supra, 905-906; Friedman v. Dozorc, 412 Mich. 1, 30-31, 312 N.W.2d 585 (1981); Drago v. Buonagurio, 61 App. Div. 2d 282, 285, 402 N.Y.S.2d 250, rev’d on other grounds, 46 N.Y.2d 778, 386 N.E.2d 821, 413 N.Y.S.2d 910 (1978); Martin v. Trevino, 578 S.W.2d 763, 769 (Tex. Civ. App. 1978). When, however, such allegations are buttressed by specific claims of egregious misconduct, such as utter failure to investigate the validity of the underlying action, or unwarranted pursuit of inappropriate motions, some courts have sustained liability for abuse of process. Nienstedt v. Wetzel, 133 Ariz. 348, 353-54, 651 P.2d 876 (1982); Bull v. McCuskey, 96 Nev. 706, 709, 615 P.2d 957 (1980); Peerman v. Sidicane, supra, 243-45; see S. Birnbaum, “Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions,” 45 Fordham L. Rev. 1003, 1014-20, 1033-42 (1977); note, “Abuse of Process,” 33 S.C.L. Rev. 331 (1981).

Accordingly, we conclude that although attorneys have a duty to their clients and to the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise to a third party action for abuse of process unless the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney’s primary duty of robust representation of the interests of his or her client.

Our appraisal of the plaintiff’s complaint in light of this holding leads us to conclude that the complaint does not state a cause of action for abuse of process. Its key allegation is that the defendants continued to pursue litigation “for an unlawful ulterior purpose, to wit: to inflict injury upon the plaintiff and to enrich themselves and their said client although they knew that their said lawsuit was without merit.” So general an allegation of abuse does not satisfy the requirement of showing the use of legal process “primarily to accomplish a purpose for which it is not designed . . . .” (Emphasis added.) 3 Restatement (Second), supra, § 682. The complaint in no way distinguishes between the costs and benefits ordinarily associated with the pursuit of litigation and the burdens that the defendants in this case allegedly improperly inflicted upon the plaintiff. We agree with the trial court that the plaintiff failed to state a cause of action for abuse of process.

II

The plaintiffs alternate claim is that the trial court erred in its ruling that the fifth count of the plaintiff’s complaint does not state a claim for legal malpractice. The fifth count relies on the provisions of the Code of Professional Responsibility and asserts that the code defines legal obligations that an attorney owes, not only to his or her own client, but also to another party to the litigation. In instituting the Muszynski litigation against the plaintiff, the defendants allegedly undertook certain duties to the plaintiff: (1) to treat the plaintiff with consideration; (2) to refrain from the knowing pursuit of this litigation “merely to harass or to maliciously injure [the plaintiff]”; and (3) to refrain from the knowing pursuit of this litigation when it was “unwarranted under existing law.” The complaint further alleges that, in endeavoring to carry out these duties to the plaintiff, the defendants “failed to exercise the degree of skill or care ordinarily exercised by attorneys in their profession in this state and elsewhere.” The complaint finally alleges that the plaintiff has suffered damages proximately resulting from the defendants’ alleged negligence and malpractice.

The trial court held that this pleading was legally insufficient for two reasons. It concluded, broadly, that violations of the Code of Professional Responsibility do not give rise to any private cause of action for legal malpractice by anyone, including an attorney’s client. More narrowly, it concluded that even if a client could bring such an action to enforce code obligations, this plaintiff could not bring such a suit because he had not alleged circumstances that would make him the foreseeable beneficiary of the legal services rendered by the defendants to Muszynski. We agree with the trial court’s narrower disposition of the plaintiff’s complaint and hence do not reach the broader one.

The plaintiff maintains that the Code of Professional Responsibility confers upon him the status of a foreseeable beneficiary of the obligations that the code imposes upon the defendants by operation of law. The trial court’s ruling to the contrary, according to the plaintiff, improperly relies on the absence of privity of contract as a defense to malpractice actions. Since courts generally now permit actions for professional malpractice without reference to privity, so long as the plaintiff is the intended or foreseeable beneficiary of the professional’s undertaking; see, e.g., Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 435-42, 551 P.2d 334, 131 Cal. Rptr. 14 (1976); Rosenblum v. Adler, 93 N.J. 324, 352-53, 461 A.2d 138 (1983); the plaintiff contends he should be allowed to proceed to trial on his complaint.

The plaintiff misreads the ruling of the trial court and the prevailing case law. The trial court did not exclude the possibility that, under some circumstances, a third party might be able to recover for the legal malpractice of an attorney. For example, the named beneficiary of a will invalidated because of an attorney’s faulty draftsmanship has been held to have a cause of action. Lucas v. Hamm, 56 Cal. 2d 583, 588-91, 364 P.2d 685, 15 Cal. Rptr. 821 (1961), cert. denied, 368 U.S. 987, 82 S. Ct. 603, 7 L. Ed. 2d 525 (1962). Counsel for a receiver has been held liable to a creditor for advice that resulted in misallocation of receivership assets. Prescott v. Coppage, 266 Md. 562, 574, 296 A. 2d 150 (1972); see generally R. Mallen & V. Levit, supra, § 79, pp. 152-54. The plaintiff in this case, however, has not alleged the existence of a relationship with Muszynski by virtue of which he would be the foreseeable beneficiary of the legal services rendered by the defendant to Muszynski.

We are left therefore with the question of whether, in the absence of a specific relationship that would make it reasonable for the defendants to foresee the plaintiff’s reliance on their conduct, the plaintiff as a third party may recover damages for malpractice from the defendants. Every court that has examined this question has concluded that the Code of Professional Responsibility does not, per se, give rise to a third party cause of action for damages. See, e.g., Bickel v. Mackie, 447 F. Sup. 1376, 1383 (N.D. Iowa), aff’d, 590 F.2d 341 (8th Cir. 1978); Noble v. Sears, Roebuck & Co., 33 Cal. App. 3d 654, 658-59, 109 Cal. Rptr. 269 (1973); Myers v. Cohen, 687 P.2d 6, 16 (Hawaii App. 1984), rev’d on other grounds, 67 Hawaii 389, 688 P.2d 1145 (1984); Brody v. Ruby, supra, 907-908; Young v. Hecht, 3 Kan. App. 2d 510, 515, 597 P.2d 682 (1979); Hill v. Willmott, 561 S.W.2d 331, 333-35 (Ky. App. 1978); Spencer v. Burglass, supra, 600-601; Sullivan v. Birmingham, 11 Mass. App. 359, 368-69, 416 N.E.2d 528 (1981); Fried man v. Dozorc, supra, 24; Drago v. Buonagurio, supra, 778-79; Martin v. Trevino, supra, 770; see also R. Mallen & V. Levit, supra, § 67; contra C. Wolfram, “The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation,” 30 S.C.L. Rev. 281, 310-14 (1979). In arriving at this unanimous conclusion, the courts have noted the absence of any express indication, in the text or history of the code, of an intent to establish rules that would be actionable as malpractice. The courts have declined to infer such an intent because of concern for the chilling effect of third party intrusion into an attorney’s primary duty of loyalty to the best interests of his or her client. As did the trial court, we find this reasoning fully persuasive. Accordingly, we hold that the plaintiff’s complaint did not state a cause of action for legal malpractice.

There is no error.

In this opinion the other justices concurred.

       One such restraint is the requirement that the action that is the subject of the vexatious litigation suit have terminated in the plaintiff’s favor. See Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978).

       Our conclusion that the viability of an abuse of process claim turns on the specificity of its allegations accords with our holdings in other areas involving collateral attacks on the validity of proceedings. For example, we have held that to obtain an evidentiary inquiry into competence, for the purposes of challenging the voluntariness of a guilty plea, a defendant must make specific allegations that, if true, would constitute substantial evidence of mental impairment. See State v. Watson, 198 Conn. 598, 605, 504 A.2d 497 (1986).

       The Code of Professional Responsibility was redesignated the Rules of Professional Conduct in 1986. For purposes of the plaintiffs claim, the relevant rules are identical.

       At the time of the underlying action, the Code of Professional Responsibility EC 7-10 provided: “The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.”

       At the time of the underlying action, the Code of Professional Responsibility DR 7-102 (A) (1) provided: “representing a client within the BOUNDS OP THE LAW.
      “(A) In his representation of a client, a lawyer shall not: (1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.”

       At the time of the underlying action, the Code of Professional Responsibility DR 7-102 (A) (2) provided: “In his representation of a client, a lawyer shall not ... (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.”

       We recognize that the rules of practice and the codes adopted by the judges of the Superior Court have the force of law. See State v. Cook, 183 Conn. 520, 521-22, 441 A.2d 41 (1981). Courts in other jurisdictions have refused to interpret statutes that govern attorney conduct so as to give rise to actions of malpractice. See, e.g., Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318, 337, 630 P.2d 840 (1981). Despite its legally binding status in this state, we conclude that the Code of Professional Responsibility does not of itself give rise to a third party cause of action.

       In 1986, the Code of Professional Responsibility was amended in this state to include a preamble that clarifies this issue. The new preamble now states: “Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” Practice Book, Rules of Professional Conduct, Preamble (1986).


author: Covello, J.

text:
    Edith Liscio, Administratrix (Estate of Paul E. Liscio) v. Dina Liscio
    (13135)
    Peters, C. J., Healey, Shea, Callahan, Covello, Js.
    Argued June 4
    decision released July 28, 1987

      Laurence V. Pamoff for the appellant (plaintiff).

      Ralph F. Scofield, for the appellee (defendant).
   Covello, J.

The plaintiff, administratrix of her husband’s estate, alleged in the first count of her complaint that the defendant had obtained a quitclaim deed of certain real property on Huntington Turnpike, Trumbull, from the decedent through undue influence. The plaintiff claimed in a second count that her deceased husband, Paul F. Liscio, had paid the purchase price for this property and she sought, therefore, the impression of a resulting and constructive trust.

In its charge to the jury, the trial court directed a verdict in favor of the defendant on the first count, which alleged undue influence, and the jury accordingly returned such a verdict. The court ruled that an earlier quitclaim deed in the decedent’s chain of title executed by only one of two joint tenants was a nullity, and could not act to sever a joint tenancy. The jury also returned a defendant’s verdict on the second count. The plaintiff appeals from the judgment in its entirety. We disagree with the trial court’s direction of the verdict as to the first count and order a new trial. We affirm the judgment on the second count.

The jury could reasonably have found that John Liscio and the defendant Dina Liscio were husband and wife and that the plaintiff’s decedent, Paul F. Liscio, was their son. The jury could further have found that the following events occurred in the sequence indicated:

May 4, 1942—Dina Liscio acquired the premises at 1329 Huntington Turnpike, Trumbull;

September 13, 1947—Dina Liscio quitclaimed her interest in 1329 Huntington Turnpike to Kenneth J. Zarilli;

September 13,1947—Kenneth J. Zarilli quitclaimed his interest in 1329 Huntington Turnpike to John Liscio and Dina Liscio “and unto the survivor of them and unto such survivor’s heirs and assigns forever;”

November 4, 1968—John Liscio quitclaimed any interest he had in 1329 Huntington Turnpike to Arthur T. Fattibene;

November 4,1968—Arthur T. Fattibene quitclaimed any interest he had in 1329 Huntington Turnpike back to John Liscio;

November 4,1968—John Liscio executed his will in which he devised “all of my interest . . . in 1329 Huntington Turnpike” to his son, Paul F. Liscio;

1970—John Liscio died;

December 12, 1972—The Trumbull Probate Court issued a certificate of devise setting out from the estate of John Liscio a one half interest in 1329 Huntington Turnpike to Paul F. Liscio;

June 30,1980—Paul F. Liscio quitclaimed his interest in 1329 Huntington Turnpike to Dina Liscio;

August 2, 1980—Paul F. Liscio died.

In its charge to the jury, the court declared that John Liscio and Dina Liscio owned the Huntington Turnpike property in survivorship by reason of the 1947 deed from Kenneth Zarilli. The court further charged that since this was the case, upon John Liscio’s death in 1970, “the entire fee [passed to Dina Liscio] by operation of law, and there was no one-half interest or any interest in said premises to pass under his will.” This is simply not so.

While there is common law authority for the proposition that certain survivorship interests in real property are indestructible absent the voluntary act of both joint tenants, this is clearly no longer so in Connecticut. General Statutes § 47-14a provides in relevant part that “[a] conveyance of real estate . . . by deed . . . to two or more natural persons . . . in such form that the conveyance runs unto the grantees . . . and unto the survivor of them . . . and unto the last survivor’s heirs and assigns . . . create[s] a joint tenancy in fee simple with right of survivorship added and the tenants . . . shall be known as joint tenants.” (Emphasis added.) In addition, General Statutes § 47-14c provides that “a conveyance of any interest ... in any joint tenancy by less than all of the joint tenants to a person . . . other than one of the remaining joint tenants severs the joint tenancy as to the interest . . . so conveyed and the grantee . . . shall hold the interest as tenant . . . in common with the remaining joint tenant or tenants.” These provisions apply to deeds existing on June 29, 1959, and those executed thereafter unless a claim to the contrary was recorded upon the land records within one year from June 29,1959. General Statutes § 47-14k.

Based on these statutes, it is evident that the 1968 quitclaim deed from John Liscio to Arthur T. Fattibene extinguished the existing joint tenancy between John Liscio and his wife and passed an undivided one half interest in the property to Arthur Fattibene who then held the property with Dina Liscio as tenants in common. When Arthur Fattibene quitclaimed the interest back to John Liscio, the latter thereafter had a sever-able interest in the property which passed by his will to his son, Paul F. Liscio, at the time of his death in 1970. The trial court’s erroneous instruction concerning the effect of the 1968 quitclaim deed foreclosed the jury from considering the circumstances surrounding the 1980 deed. The plaintiff is therefore entitled to a new trial to consider her allegations that the transfer by Paul F. Liscio to Dina Liscio should be set aside because of the exercise of undue influence.

The plaintiff further claims error in the trial court’s refusal to admit into evidence Dina Liscio’s will. She claims that this refusal impacted adversely upon the jury’s consideration of both counts of the complaint. We note that this claim of error is the only claim relating to the second count. Since this claim involves an evidentiary ruling likely to recur at the new trial, we would ordinarily address such an issue. Examination of the record, however, discloses that the will was never produced at trial, was never offered in evidence, nor was any motion made to quash the subpoena duces tecum which the plaintiff issued for its production. There was simply no ruling on the matter and therefore there is no appellate issue for us to address. There was a ruling on the admissibility of testimony concerning the content of the will. This matter, however, was not adequately briefed and we therefore decline to address it. See Practice Book § 4065; Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 496, 208 A.2d 748 (1965).

The plaintiff has further asserted claims concerning the court’s failure to give certain requested jury instructions. Again, these claims have not been fully developed and supported in her appellate brief and therefore we do not examine them. Practice Book § 4065; Petrizzo v. Commercial Contractors Corporation, supra.

There is error in part, the judgment is set aside as to the first count and the case is remanded for a new trial on that count. The judgment on the second count is affirmed.

In this opinion the other justices concurred.

       In the course of its charge, the court stated: “I further charge you that because of the status of the title, the claims made in the first count of the complaint are without merit and I charge you, that if you so find this to be so, you should return a verdict for the defendant.”
      The parties dispute whether this charge constitutes a direction of the verdict on the first count. The line between a direction of a verdict and an instruction to the jury is often difficult to draw. “When the jury is told that only one verdict is open, the instructions take the form of direction of a verdict.” E. Stephenson, Connecticut Civil Procedure § 193 (e). Based on our examination of the court’s entire charge, we are satisfied that the jury was essentially instructed that only one verdict was open to them on the first count, and that the court therefore directed a verdict.

       This is the transfer out of which the plaintiff claimed the resulting trust.

       This is the deed which the court ruled a nullity.

       This is the deed that the plaintiff claims was the product of undue influence.

       See cases cited in E. Stephenson, “Survivorship Deeds Under the Statute,” 34 Conn. B.J. 15, 16 (1960).

       The defendant-appellee argued in her brief and at oral argument that if General Statutes § 47-14a et seq. permit a joint tenant with a right of survivorship unilaterally to sever the survivorship, then those provisions are unconstitutional. We decline to address this issue, however, as the defendant failed to file a statement under Practice Book § 4013 presenting for review alternate grounds upon which the judgment may be affirmed. We note that the record does contain a § 4013 statement, but the statement only requests a new trial, should error be found. While we have occasionally overlooked a failure to file a statement setting forth alternate grounds; see DiSesa v. Hickey, 160 Conn. 250, 262-63,278 A.2d 785 (1971); we are unable to do so in this case because the constitutional issues were not fully briefed and argued, and because the plaintiff would be likely to suffer prejudice.