author: Palmer, J.

text:
    Derrick C. Quire et al. v. City of Stamford
    (14940)
    Peters, C. J., and Borden, Berdon, Katz and Palmer, Js.

      Argued September 22
    decision released November 22, 1994

      Maureen E. Driscoll, with whom, on the brief, was James D. Moran, Jr., for the appellant (intervening plaintiff United Parcel Service).

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Daniel M. McCabe, corporation counsel, for the appellee (defendant).
   Palmer, J.

The issue presented by this appeal is whether an employer who properly intervenes pursuant to General Statutes § 31-293 (a) in an action brought by its employee against a municipality under General Statutes § 13a-149,* the “highway defect” statute, may obtain reimbursement from the municipality for workers’ compensation payments made to the employee for injuries suffered by the employee as a result of a defective highway. The defendant, the city of Stamford, moved for summary judgment on the complaint of the intervening plaintiff, United Parcel Service (UPS), and the trial court granted the defendant’s motion. UPS thereafter appealed the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The relevant undisputed facts and procedural history are as follows. On May 18, 1987, while acting in the course of his employment with UPS, the named plaintiff, Derrick C. Quire (plaintiff), came to stand on the curb portion of a catch basin located on the westerly side of Greenwich Avenue in Stamford. The catch basin collapsed, causing the plaintiff to fall and suffer injuries to his neck, back and knee. The plaintiff timely served on the defendant a written statement describing the accident and his injuries as required by § 13a-149. The plaintiff thereafter brought an action against the defendant under § 13a-149, alleging that his injuries were the result of the defendant’s failure to maintain the curb and catch basin in a safe condition. UPS filed a motion to intervene pursuant to § 31-293 (a), seeking reimbursement for benefits it had paid or had become obligated to pay to the plaintiff under the Workers’ Compensation Act, and the trial court, Hickey, J., granted the motion.

The defendant moved for summary judgment against UPS, alleging that only a “traveler” may maintain an action under § 13a-149 and, in the alternative, that UPS had failed to file with the defendant the notice required by § 13a-149. The trial court, Dean, J., granted the defendant’s motion for summary judgment on the ground that UPS itself could not maintain its action against the defendant in view of the fact that UPS was not a “traveler” on the allegedly defective road.

UPS claims that the trial court improperly granted the defendant’s motion for summary judgment because § 31-293 (a), not § 13a-149, defines an employer’s right to join in its employee’s action against a third party tortfeasor to obtain reimbursement for workers’ compensation payments made to its employee. UPS concedes that only a “traveler” may recover damages against a municipality under § 13a-149. See, e.g., Sanzone v. Board of Police Commissioners, 219 Conn. 179, 199, 592 A.2d 912 (1991); Aerotec Corp. v. Greenwich, 138 Conn. 116, 119, 82 A.2d 356 (1951). UPS contends, however, that having properly joined in the plaintiff’s action, it may maintain a derivative claim against the defendant under § 13a-149, solely to obtain reimbursement for workers’ compensation benefits, because it has complied with the requirements of § 31-293 (a) and the injured employee has complied with the requirements of § 13a-149. We agree.

Section 31-293 (a) authorizes an employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor and, in so doing, implements the public policies of preventing double recovery by an injured employee; Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779-80, 610 A.2d 1277 (1992); and thereby containing the cost of workers’ compensation insurance. In accomplishing these objectives, the statute unconditionally and unambiguously authorizes reimbursement to the employer when the employer properly intervenes in the employee’s action against the third party tortfeasor and damages are recovered. Id., 780. There is no suggestion either in the plain language of § 31-293 (a) or in its legislative history that the legislature sought to limit the subrogation rights of an employer who otherwise complies with the requirements of that statute.

Moreover, “[w]e have repeatedly observed that our [Workers’ Compensation Act] represents a complex and comprehensive statutory scheme balancing the rights and claims of the employer and the employee arising out of work-related personal injuries. Because of the comprehensive nature of the act, the responsibility for carving out exceptions from any one of its provisions belongs to the legislature and not to the courts.” Dur-niak v. August Winter & Sons, Inc., supra, 222 Conn. 781. In the absence of such express legislative intervention, we will not assume that the legislature intended to create an exception for actions brought under the “highway defect” statute. See id.

Similarly, there is no support for the defendant’s claim that the legislature intended § 13a-149 to serve as a bar to an employer’s right to reimbursement pursuant to § 31-293 (a) in connection with a claim by an injured employee against a municipality under the “highway defect” statute. In no respect is the right of UPS under § 31-293 (a) to obtain reimbursement from the defendant inconsistent with the requirement that only the plaintiff, as the injured “traveler,” may recover damages under § 13a-149. The employer’s claim against a municipality under § 13a-149, brought solely for the purpose of obtaining reimbursement for the payment of workers’ compensation benefits under § 31-293 (a), is derived entirely from the plaintiff’s right to recover damages against the municipality under § 13a-149. The injured “traveler,” therefore, retains the exclusive right to recover damages against a municipality for injuries sustained by virtue of a defective highway.

Contrary to the defendant’s arguments, moreover, our decision in Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179, does not suggest a different result. We concluded in Sanzone that the spouse of an injured “traveler” may not maintain a loss of consortium claim against a municipality under § 13a-149, noting that such a claim under the “highway defect” statute is implicitly barred by General Statutes § 52-557n. Id., 200. There is, however, no comparable statutory prohibition against an employer’s seeking reimbursement for workers’ compensation benefits paid to an employee who has initiated an action against a third party tortfeasor under § 13a-149. Indeed, § 31-293 (a) expressly affords an employer the right to do so. Moreover, unlike the spouse who seeks damages for loss of consortium, the employer who intervenes in its employee’s action as authorized by § 31-293 (a) does not enlarge the amount of the recovery against the municipality. Rather, the employer may only obtain reimbursement for workers’ compensation benefits paid to its employee from any damages recovered by the employee. We conclude, therefore, that § 13a-149 does not bar UPS from seeking reimbursement from the defendant under § 31-293 (a).

The defendant maintains, as an alternative basis upon which to affirm the judgment; see Practice Book § 4013 (a); that the trial court properly granted the defendant’s motion for summary judgment because UPS failed to provide notice of its claim against the defendant pursuant to § 13a-149. Although the defendant does not dispute that the plaintiff properly filed the notice mandated by § 13a-149, it argues that UPS was required to file a notice of its own. This claim also lacks merit.

The plaintiff, as the injured “traveler” alleging a violation of § 13a-149, had an obligation under that statute to file with the defendant a proper description of the accident and his injuries within ninety days from the date of the accident. The plaintiff having done so, the defendant received in a timely manner the information to which it was entitled under § 13a-149. Because the statute requires nothing more, UPS was under no obligation to provide any additional notice to the defendant.

The judgment of the trial court is reversed and the case is remanded for further proceedings in accordance with this opinion.

       General Statutes § 31-293 (a) provides: “When any injury for which compensation is payable under the provisions of [the Workers’ Compensation Act] has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury, 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 the injured employee against the third person, but the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in the action, the employer may join as a party plaintiff in the action. The bringing of any action against an employer shall not constitute notice to the employer within the meaning of this section. If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys’ fees, incurred by the employee in effecting the recovery. The rendition of a judgment in favor of the employee or the employer against the third party shall not terminate the employer’s obligation to make further compensation which the commissioner thereafter deems payable to the injured employee. If the damages, after deducting the employee’s expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with the third person by either the employer or the employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. The word ‘compensation,’ as used in this section, shall be construed to include incapacity payments to an injured employee, payments to the dependents of a deceased employee, sums paid out for surgical, medical and hospital services to an injured employee, the burial fee provided by subdivision (1) of subsection (a) of section 31-306, payments made under the provisions of sections 31-312 and 31-313, and payments made under the provisions of section 31-284b in the case of an action brought under this section by the employer or an action brought under this section by the employee in which the employee has alleged and been awarded such payments as damages.”

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1,1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written 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, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The complaint also contained counts alleging loss of consortium and nuisance. The trial court granted the defendant’s motion to strike the nuisance count, as well as its motion for summary judgment on the loss of consortium count. The plaintiff has not appealed with respect to those counts.

       General Statutes § 31-275 et seq.

       At the conclusion of the hearing on the defendant’s motion for summary judgment, the trial court granted the motion without explanation, and UPS thereafter filed a motion for articulation. At a hearing on the motion for articulation, the trial court stated that the defendant was entitled to summary judgment against UPS because UPS was not a “traveler” as required by § 13a-149.

       General Statutes § 52-557n provides in relevant part: “(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149.”

       Practice Book § 4013 (a) provides in relevant part: “At the time the appellant sends a copy of the endorsed appeal form and the docket sheet to the appellate clerk, the appellant shall also send the appellate clerk an original and one copy of the following:
      “(1) A preliminary statement of the issues intended for presentation on appeal. If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.”

       As we have noted, “[t]he statutory notice assists a town in settling claims promptly in order to avoid the expenses of litigation and encourages prompt investigation of conditions that may endanger public safety, as well as giving the town an early start in assembling evidence for its defense against meritless claims.” Sanzone v. Board of Police Commissioners, supra, 219 Conn. 198; see also Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993).

       Indeed, to require the intervening employer to file its own notice of claim pursuant to § 13a-149 would, in some instances at least, give the employee the power to preclude the employer’s right to recover under the statute, by allowing the injured employee to delay notifying his employer of the injury until the ninety day period for notice under § 13a-149 had passed. This would arguably allow the employee to gain the double recovery that § 31-293 (a) aims to prevent.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Advanced Business Systems, Inc. v. Allan A. Crystal, Commissioner of Revenue Services
    (14950)
    Peters, C. J., and Callahan, Norcott, Katz and Palmer, Js.
    Argued October 26
    decision released November 29, 1994

      Kenneth R. Wolfe, with whom were Edward Kano-witz and, on the brief, Marc J. Grenier, for the appellant (plaintiff).

      Christopher L. Levesque, assistant attorney general, with whom were Ann O’Leary, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The dispositive issue in this tax appeal is whether the plaintiff taxpayer has established its entitlement to a sales and use tax exemption pursuant to General Statutes § 12-412 (8) or (24). The plaintiff, Advanced Business Systems, Inc., installs and maintains coin-operated photocopying machines in public libraries for the use of patrons of the library and the general public. The defendant, Allan A. Crystal, the commissioner of revenue services, after auditing the plaintiffs tax returns for the years 1988, 1989 and 1990, found the plaintiff liable for an additional sales and use tax assessment, as well as a penalty and interest. The plaintiff filed an appeal to the trial court pursuant to General Statutes § 12-422. In light of the stipulated facts and the governing law, the trial court rendered a judgment dismissing the plaintiffs appeal. The plaintiff thereafter filed a further appeal in the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts are not disputed. The plaintiff retained exclusive control of, as well as responsibility for, the operation of its photocopying machines. It received and retained all the revenues generated by the machines with the exception of a commission paid to the public libraries in which the machines were installed. Although the public libraries concededly qualify as tax exempt organizations pursuant to § 12-412, the plaintiff has not claimed that it has a tax exempt status except insofar as its transactions with the public libraries qualify for an exemption pursuant to subsections (8) or (24) of § 12-412.

A taxpayer bears the burden of proving the impropriety of an adverse assessment concerning a tax exemption. United Illuminating Co. v. Groppo, 220 Conn. 749, 752-53, 601 A.2d 1005 (1992); Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990). The trial court carefully examined the record before it and concluded that the plaintiff had failed to establish that its sales of photocopies to the general public qualified for an exemption either as sales “to charitable and religious organizations,” pursuant to § 12-412 (8), or as sales “by public libraries,” pursuant to § 12-412 (24). The thoughtful and comprehensive memorandum of decision filed by the trial court thoroughly canvassed the applicable statutory language, its legislative history and relevant case holdings. See Advanced Business Systems, Inc. v. Crystal, 43 Conn. Sup. 253, 650 A.2d 641 (1994). Because that memorandum of decision fully states and meets the arguments raised in the present appeal, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Van Dyck Printing Co. v. DiNicola, 231 Conn. 272, 273-74, 648 A.2d 877 (1994); Connecticut Resources Recovery Authority v. Refuse Gardens, 229 Conn. 455, 458-59, 642 A.2d 697 (1994); Daw’s Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993).

The judgment is affirmed.

       General Statutes § 12-412 provides in relevant part: “exemptions. Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items ....
      “(8) charitable and religious organizations. Sales of tangible property or services to charitable and religious organizations. . . .
      “(24) MUNICIPAL PUBLICATIONS, SALES BY PUBLIC LIBRARIES OR BY municipal auction. Sales of municipal publications such as information booklets and zoning regulations, tangible personal property sold by public libraries and the sale of any property at auction by a municipality, whenever the sale of any such foregoing item is in an amount of less than five dollars. . . .”


author: Callahan, J. Berdon, J.,

text:
    RK Constructors, Inc. v. Fusco Corporation et al.
    (14997)
    Peters, C. J., and Callahan, Borden, Berdon and Dupont, Js.
    Argued September 22
    decision released December 6, 1994

      Stephen J. Sinatro, for the appellant (plaintiff).

      Matthew G. Conway, for the appellee (named defendant).
   Callahan, J.

The principal issue in this appeal is whether an employer may maintain a common law negligence action against a third party tortfeasor to recover for economic loss in the form of increased workers’ compensation premiums and lost dividends arising out of the tortfeasor’s negligence. The plaintiff, RK Constructors, Inc., brought this action against the defendant Fusco Corporation (Fusco) after Fusco’s agent negligently injured the plaintiff’s employee on a construction job site. The plaintiff claimed that as a result of Fusco’s negligence, the plaintiff’s workers’ compensation experience modification rating was reduced, which, in turn, caused the plaintiff’s insurance premiums to increase and a potential dividend to be lost. Fusco filed a motion to strike the first and third counts of the plaintiff’s complaint for failure to state a cognizable cause of action and, after a hearing, the trial court, Koletsky, J., granted its motion. The plaintiff thereafter appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts may be summarized briefly as follows. On October 24, 1989, Richard M. Aldrich, an employee of the plaintiff, was working as a carpenter at a construction site in Hartford known as the Goodwin Square Building. Fusco was the general contractor on the project, and had leased a crane from the S.G. Marino Crane Service Corporation in order to move materials to and from various floors of the Goodwin Building. While the crane was in the process of lowering a load of lumber from the thirty-first floor of the building, several planks fell from the sling that held them and struck Aldrich, who was working on the ground below. Because of the accident, the plaintiff incurred a reduced workers’ compensation experience modification rating, and, as a result, suffered an increase in its insurance premiums and lost an anticipated dividend that it claims it otherwise would have received.

The plaintiff’s sole contention is that the trial court incorrectly struck counts one and three of its complaint in which it sought to recover its economic losses for failure to state a cause of action against Fusco. Specifically, the plaintiff argues that the court misconstrued the origin or cause of the injuries and relied upon inappropriate case law to justify its decision. We disagree.

“The motion to strike . . . replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading.” (Citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). In reviewing the granting of a motion to strike, we construe the facts alleged in the complaint in a light most favorable to the pleader. If facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied. Id. “In order to reverse the judgment of the trial court, therefore, this court must find that the allegations of the plaintiffs complaint, if proven, would constitute negligence of the defendant.” Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 111, 585 A.2d 1263 (1991).

The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 30, pp. 164-65. Our analysis in this case begins and ends with the first element, duty.

“The existence of a duty is a question of law and ‘[o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.’ ” Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. Thus, “we must determine whether the [trial] court’s conclusion that [Fusco] owed no duty to the plaintiff with respect to [causing an increase in workers’ compensation insurance premiums] was ‘legally and logically correct.’ ” Id., 383.

Duty is a “legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.” 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7. Although it has been said that “no universal test for [duty] ever has been formulated”; W. Prosser & W. Keeton, supra, § 53, p. 358; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. “The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” (Citation omitted; internal quotation marks omitted.) Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981); Noebel v. Housing Authority, 146 Conn. 197, 200-201, 148 A.2d 766 (1959); Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941). Thus, initially, if it is not foreseeable to a reasonable person in the defendant’s position that harm of the type alleged would result from the defendant’s actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.

A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally “foreseeable,” yet for pragmatic reasons, no recovery is allowed. See, e.g., Maloney v. Conroy, 208 Conn. 392, 400-401, 545 A.2d 1059 (1988) (looking beyond foreseeability, this court imposed limitations on the right of a bystander to recover for emotional distress that allegedly resulted from medical malpractice of doctors in their treatment of the plaintiffs deceased mother). A further inquiry must be made, for we recognize “that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” W. Prosser & W. Keeton, supra, § 53, p. 358. “While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the rip-plings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” (Internal quotation marks omitted.) Maloney v. Conroy, supra, 401-402. The final step in the duty inquiry, then, is to make a determination of “the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” W. Prosser & W. Keeton, supra, § 43, p. 281.

Although this court has never examined the precise issue of duty presented by this appeal, we conclude that the trial court correctly cited Steele v. J & S Metals, Inc., 32 Conn. Sup. 17, 335 A.2d 629 (1974), in support of its holding. In Steele, an employer had brought a negligence action against a third party tortfeasor who had injured the employer’s key employee. The employer claimed that the injury to its employee caused its business to lose profits, and that the defendant was responsible to the employer for those damages. The defendant demurred, alleging that the plaintiff failed to state a viable cause of action. Despite the obvious foreseeability of the plaintiffs lost profits, the court nevertheless dismissed the plaintiff’s complaint.

The plaintiff in the present case argues that Steele is inapposite for two primary reasons. First, it argues that the holding in Steele was premised upon the fact that the employer’s damages resulted directly from the injuries suffered by the employee, whereas in the present case, the plaintiff’s damages flowed from the accident itself. Second, the plaintiff argues that because Fusco, as an employer, must have been aware of the effects an accident would have upon the plaintiff’s workers’ compensation premiums and policy dividends, foreseeability existed and created a duty that may not be present in other contexts. We are unpersuaded.

Although it may have been foreseeable to Fusco that by causing an accident to the plaintiff’s employee, the plaintiff’s workers’ compensation premiums would increase, this fact alone does not conclude our inquiry. We must proceed to make the further policy determination of whether Fusco’s responsibility for its negligent conduct should extend to these particular consequences and this particular plaintiff. It is irrelevant to this determination whether the plaintiff’s damages flowed from the accident itself or from the resulting injuries to its employee. We fail to see the distinction. What is relevant, rather, is the measure of attenuation between Fusco’s conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand. The Steele court concluded that when a defendant injures a plaintiffs employee, the nexus between that act and the plaintiff and its lost profits is simply too tenuous to impose liability for such collateral consequences. The factors in the present case are nearly identical. The defendant is a third party who caused physical injury, not to the plaintiff itself, but to the plaintiff’s employee. Moreover, the alleged damages to the plaintiff that resulted from the physical injury to its employee are purely economic in nature. In the absence of a controlling statute or overriding public policy consideration, we conclude that the economic harm to the plaintiff in the form of increased premiums and lost dividends is simply too remote to be chargeable to the defendant third party tortfeasor, Fusco.

Although the plaintiff cites an Ohio case and a workers’ compensation treatise as support for its proposed cause of action, we note that our decision follows those of numerous jurisdictions that have previously addressed the issue. Accordingly, we conclude that the trial court correctly granted Fusco’s motion to strike counts one and three of the plaintiff’s complaint for failure to state a cause of action.

The judgment is affirmed.

In this opinion Peters, C. J., and Borden and Dupont, Js., concurred.

Berdon, J.,

concurring. I agree that the doors to the court should not be opened to allow a plaintiff employer to recover from the defendant tortfeasor damages in the form of increased premiums resulting from workers’ compensation payments made to the injured employee. However, I agree not because, as the majority finds, the nexus between the conduct of the tortfeasor and the employer’s economic injury is “too tenuous to impose liability.” Rather, I agree because the legislature has already provided a statutory remedy for the employer in such a case. This statutory remedy provides the exclusive remedy that a plaintiff employer may seek from the third party tortfeasor and, as a practical matter, serves to make whole the employer so that it need not pursue additional, unenumerated remedies.

First, the legislature has already provided and defined the exclusive remedy for the plaintiff employer. The Workers’ Compensation Act (act); General Statutes § 31-291 et seq.; grants the employer of the injured employee the right to bring an action against the tort-feasor to recover workers’ compensation benefits paid to its injured employee. General Statutes § 31-293 (a). Similarly, the act grants the employer the right to intervene as a plaintiff in an action brought by the injured employee against the tortfeasor, and further provides that the employer shall take precedence over the injured employee in recovering any damages awarded. Id. In either case, the legislature allows the employer to recover from the liable third party tortfeasor “(1) the amount of any compensation which he has paid on account of the injury . . . and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury. . . .” General Statutes § 31-293 (a).

This statutory itemization indicates that the legislature intended these workers’ compensation remedies to be the only ones available to a plaintiff employer in an action against a third party tortfeasor. See Panaro v. Electrolux Corp., 208 Conn. 589, 605, 545 A.2d 1086 (1988); State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982); see also Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 562 A.2d 517 (1989) (remedy provided by state products liability act bars action seeking additional damages). In such a situation, “[a] damage suit as an alternative or additional source of compensation, becomes permissible only by carving a judicial exception in an uncarved statute. ...” (Internal quotation marks omitted.) Panaro v. Electrolux Corp., supra, 605. This the court should not do.

Second, as a practical matter, the statutory remedy provided by the legislature should prevent an employer’s workers’ compensation premiums from increasing. The statutory remedy, in essence, allows the employer to recover amounts it has paid or will become obligated to pay to the employee as a result of the injury caused by the liable third party tortfeasor. If the employer, and the employer’s insurer as a result of its subrogation rights, are thereby made whole for the workers’ compensation benefits it paid out, the employer should not experience any change in its workers’ compensation loss ratio. As a result, the employer should not suffer any significant increases in its workers’ compensation premiums or costs.

Accordingly, I concur in the result.

       The plaintiff's revised complaint was in four counts. Counts one and three set forth causes of action against Fusco, while counts two and four alleged causes of action against the S.G. Marino Crane Service Corporation, which is not a party to this appeal.

       As Fusco noted in its brief, for the purpose of a motion to strike, the moving party admits all facts well pleaded. Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).

       The plaintiff repeatedly indicated before the trial court that this case does not involve any claims under the Workers’ Compensation Act, General Statutes § 31-275 et seq. As stated by the plaintiff’s counsel, “[t]he way I would have the Court look at it is it’s just a regular tort damage . . . .” Although Fusco argues that the Workers’Compensation Act provides the exclusive remedy for an injured employer against a third party tortfeasor, in light of our conclusion that the plaintiff has not stated a common law negligence cause of action, we need not address that issue.

       This inquiry is quite similar to the analysis that we engage in with respect to the third element of negligence, proximate causation. Indeed, as Professors Prosser and Keeton have noted, “[t]he question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff s benefit. Or, reverting again to the starting point, whether the interests of the plaintiff are entitled to legal protection at the defendant’s hands against the invasion which has in fact occurred. Or, again reverting, whether the conduct is the ‘proximate cause’ of the result. The circumlocution is unavoidable, since all of these questions are, in reality, one and the same.” W. Prosser & W. Keeton, supra, § 42, p. 274; see also id., § 53, p. 358.

        Ledex, Inc. v. Heatbath Corp., 10 Ohio St. 3d 126, 461 N.E.2d 1299 (1984).

       2B A. Larson, Workmen’s Compensation (1993) §§ 77.30 and 77.31, pp. 14-1022-26.

       See, e.g., Continental Casualty Co. v. P.D.C., Inc., 931 F.2d 1429 (10th Cir. 1991); Erie Castings Co. v. Grinding Supply, Inc., 736 F.2d 99 (3d Cir. 1984); Crab Orchard Improvement Co. v. Chesapeake & O. Ry. Co., 115 F.2d 277 (4th Cir. 1940); Zawadzki v. Checker Taxi Co., 539 F. Sup. 207 (N.D. Ill. 1982); Fischl v. Paller & Goldstein, 231 Cal. App. 3d 1299, 282 Cal. Rptr. 802 (1991); Unique Paint Co. v. Wm. F. Newman Co., 201 Ga. App. 463, 411 S.E.2d 352 (1991); North Georgia Electric Membership Corp. v.
        Thomason & Holsomback Construction Co., 157 Ga. App. 719, 278 S.E.2d 433 (1981); Northern States Contracting Co. v. Oakes, 191 Minn. 88, 253 N.W. 371 (1934); Flying Scotsman, Inc. v. Leach, 53 Or. App. 14, 630 P.2d 900 (1981); Whirley Industries, Inc. v. Segel, 316 Pa. Super. 75, 462 A.2d 800 (1983); see also W. Prosser & W. Keeton, supra, § 129, p. 998 (“[rjecovery has also been denied for damages other than the value of the services themselves, as for example ... an increased workmen’s compensation insurance premium resulting from the injury”).
      Moreover, the plaintiff’s reliance upon the Larson treatise is misplaced. Although Professor Larson indeed makes a case for allowing an employer to maintain a negligence cause of action against a third party tortfeasor for increased compensation premiums and lost dividends, he specifically limits this argument to cases in which the employer has no subrogation rights under the applicable workers’ compensation third party statute. 2B A. Larson, supra, § 77.30, p. 14-1022. In the present case, the applicable workers’ compensation statute allows an employer to assert subrogation rights to recover benefits paid to its employee; General Statutes § 31-293 (a); and the plaintiff in fact exercised those rights. See Aldrich v. Fusco Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 91-0503285 S (action withdrawn May 31, 1994).

       would not reach the issue of whether the nexus between the conduct of the tortfeasor and the injury in this case is too tenuous to impose liability.


author: Borden, J.

text:
    State of Connecticut et al. v. State Employees’ Review Board et al.
    (14999)
    Borden, Berdon, Norcott, Katz and Palmer, Js.

      Argued September 29
    decision released December 6, 1994

      Maria C. Rodriguez, assistant attorney general, with whom were Laurie Adler, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellants (plaintiffs).

      David A. Zipfel, for the appellee (defendant Daniel Cawley).
   Borden, J.

The dispositive issue in this appeal is whether the trial court properly determined that a decision of the defendant state employees’ review board (review board) was not a final decision for the purposes of appeal under the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4-166 through 4-189. The plaintiffs, the state of Connecticut, the state department of public safety (public safety) and the state department of administrative services (administrative services), appeal from the judgment of the trial court, rendered after a hearing and submission of posthear-ing memoranda, sustaining the decision in part and modifying the review board order. Specifically, the trial court: (1) determined that the decision of the review board was not final; and (2) nonetheless, sustained the decision in part, and modified it by adding to it a provision for the review board to retain jurisdiction over the matter. The plaintiffs claim that the trial court: (1) improperly determined that the review board’s decision was not final for the purposes of the UAPA; and (2) improperly modified the review board’s decision to cause the review board to retain jurisdiction over the matter. We reverse the judgment of the trial court.

The factual findings of the review board as set forth in its decision and order, and the procedural history of this case, are not disputed for purposes of this appeal. The defendant Daniel Cawley was hired by public safety in May, 1986, as a data processing manager 3 (DPM 3). At that time, he supervised approximately thirty employees as well as the activities of the data processing unit. Over the next several years, Cawley’s supervisory responsibilities diminished until November 30, 1990, when those responsibilities were completely terminated. Instead, public safety assigned him to special projects that he conducted independently. Public safety gave Cawley’s supervisory responsibilities to a DPM 1, a position of lower rank and salary than a DPM 3. This shift in duties was intended to be, and was, permanent.

Early in 1990, a classification specialist from administrative services advised public safety to make changes in the data processing unit. Specifically, administrative services advised public safety to “red-circle” the DPM 3 position, and to abolish or reclassify it to a non-managerial level once it had been vacated. Despite the administrative services directive, when Cawley was permanently reassigned to a nonsupervisory position in November, 1990, public safety did not review the classification of his position. Rather, Cawley remained a DPM 3. Cawley continued to draw pay as a DPM 3 after his reassignment until public safety laid him off on May 31, 1991.

Cawley appealed to the review board pursuant to General Statutes § 5-202, seeking a determination as to whether his layoff was in accordance with General Statutes § 5-241, which requires layoffs by seniority within a position classification selected for layoff. The review board determined that because Cawley’s position had not been reviewed pursuant to the administrative services recommendation, neither his proper position classification nor his relative seniority within that classification could be determined. Therefore, the review board concluded, the layoff was improper as “arbitrary or taken without reasonable cause.” See General Statutes § 5-202 (b). Thereafter, the review board ordered public safety, with the assistance of administrative services, to “review the position classification of Daniel Cawley’s [DPM 3] position, as of the time when he was assigned to new duties, November 30,1990, and, based on such duties, determine the appropriate classification of his position.” The review board’s order also directed public safety, upon completion of the classification review, to follow its normal procedures in determining which positions should have been abolished and which employees occupying those positions should have been laid off. The review board ordered that if the result of the analysis indicated that Cawley was wrongfully laid off, he was to be reinstated and awarded appropriate back pay, seniority and other benefits. The review board made clear that it was not ordering the state to review the classification of all red-circled positions, but rather that its decision required review as follows: “if a position has been red-circled and if a permanent vacancy has occurred therein, and such position [has been] considered for layoff, the classification of such position must be reviewed and decided before a layoff decision affecting such position can be made.” The review board did not retain jurisdiction over the dispute.

The plaintiffs appealed to the trial court pursuant to General Statutes §§ 5-202 (Z) and 4-183 claiming that they were aggrieved by the review board’s decision and that the decision exceeded the review board’s statutory authority. The trial court first determined that the review board decision was not a final decision within the meaning of § 4-183, and therefore was not appeal-able to the trial court because Cawley’s right to reinstatement had not been finally determined by the review board. Having reached that conclusion, however, the trial court recognized that it was faced with a conundrum, namely, that: (1) lack of a final decision would “ordinarily” require dismissal of the appeal; but (2) if the appeal were dismissed, it was possible, depending upon the outcome of the future proceedings ordered by the review board, that public safety would be deprived of an opportunity to challenge the validity of the administrative regime mandated by the review board decision, which public safety claimed to be beyond the authority of the review board.

In order to resolve this conundrum, the trial court determined that the review board should have retained jurisdiction over Cawley’s appeal “for the purpose of ultimately rendering a final decision after [public safety] had resolved the contingencies as directed by the order.” How to implement that determination produced a second conundrum, however, because a determination that there had been no final decision necessarily would have required the trial court to dismiss the appeal for lack of subject matter jurisdiction. Nonetheless, the trial court rendered judgment sustaining the appeal in part, and ordering a modification of the review board decision, requiring the review board to retain jurisdiction over Cawley’s appeal and to permit further appeal by any party. In the trial court’s view, this order solved the conundrum because it gave public safety an avenue of further access to the review board and, thereby, to the trial court, for the purpose of later challenging the authority of the review board to order the position classification review process at issue in this case. The trial court also noted that its decision would enable the review board to monitor the compliance with its order by public safety and administrative services.

The trial court identified two sources of authority to support its ordering the review board to retain jurisdiction, despite the court’s determination that there had been no final decision for purposes of appeal pursuant to § 4-183. The first source was § 4-183 (k). The trial court’s reliance on this provision is misplaced, however, because the trial court’s power to modify an agency’s decision follows the court’s decision to sustain the appeal, which can only be done if the trial court had subject matter jurisdiction over the appeal.

The second source was by analogy to the federal administrative law doctrine of primary jurisdiction. The trial court relied on United States v. Michigan National Corp., 419 U.S. 1, 6, 95 S. Ct. 10, 42 L. Ed. 2d 1 (1974), for the proposition that “[wjhere suit is brought after the first administrative decision and stayed until remaining administrative proceedings have concluded, judicial resources are conserved and both parties fully protected.” The difficulty with this source of authority, however, is that the federal doctrine of primary jurisdiction presupposes that both the federal court and the administrative agency have concurrent subject matter jurisdiction. See, e.g., Pan American World Airways v. United States, 371 U.S. 296, 83 S. Ct. 476, 9 L. Ed. 2d 325 (1963). Thus, its use in this context would be inconsistent with our jurisprudence that a trial court has subject matter jurisdiction over an administrative appeal only if the administrative agency has rendered a final decision. Indeed, there are instances under federal administrative law, analogous to our law, in which the federal court must dismiss an action because an administrative agency has exclusive jurisdiction to consider the complaint. See, e.g., United States v. Michigan National Corp., supra, 5 n.2.

Thus, the trial court’s analysis, although a creative attempt to surmount the jurisdictional hurdles that it accurately perceived, itself engendered other insurmountable jurisdictional hurdles. Having determined, therefore, that the trial court’s analysis cannot stand, we turn to the plaintiffs’ claim that the trial court’s initial conclusion, namely, that the review board decision was not final, was flawed.

The plaintiffs claim that the review board’s decision is final because, under the UAPA, it is an agency determination in a contested case. They argue that the test for finality of an agency decision under the UAPA is whether: (1) judicial review would effect the orderly process of adjudication of the case; (2) obligations or legal consequences would flow from the agency decision; and (3) the agency intended to render a final decision. The plaintiffs contend that under this test, the review board’s decision is final. The plaintiffs also claim that the review board has no statutory authority to maintain jurisdiction over an appeal once it has rendered a decision. We agree with both claims.

In determining whether an administrative decision is “final” for the purposes of § 4-183 (a), we look first to our statutes governing such determinations. General Statutes § 4-166 (3) states that a final decision is an “agency determination in a contested case,” but the term “does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration.” A contested case is further defined as “a proceeding . . . in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . .” General Statutes § 4-166 (2); see footnote 11.

“The considerations underlying the requirement of finality of an agency decision as a prerequisite to judicial review are akin to those involved in the ripeness doctrine as applied to administrative rulings. [I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). The cases dealing with judicial review of administrative actions have interpreted the finality element in a pragmatic way. Id., 149. [T]he relevant considerations in determining finality are whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action. Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 27 L. Ed. 2d 203 (1970).” (Internal quotation marks omitted.) New Haven v. New Haven Police Union Local 530, 210 Conn. 597, 604, 557 A.2d 506 (1989). Another significant consideration is whether the agency intended its decision to be final. We have stated that “[s]o long as the agency intends to render a final decision and the person taking the appeal is aggrieved by the decision rendered, the fact that other related issues are reserved for later adjudication does not necessarily detract from its finality.” Id., 606.

We conclude that the review board decision in this case satisfies the criteria for a final decision of an agency as set forth in New Haven. First, because no further administrative proceedings before the review board were contemplated, an appeal to the trial court would not “ ‘disrupt the orderly process of adjudication.’ ” Id., 604. It is true, as the trial court noted, that considering this review board decision to be nonfinal would avoid “piecemeal” appeals in that Cawley’s ultimate right to future employment would thereby be fully determined prior to judicial review of the review board decision. Under the UAPA, however, that does not necessarily detract from the finality of the review board decision. See id., 606. In this case, despite the possibility of a subsequent appeal, specific legal duties have been imposed on public safety and administrative services and, therefore, this appeal is not an “abstract [disagreement] over administrative policies.” Id., 604.

Second, the review board order directing public safety and administrative services to review the classification of Cawley’s DPM 3 position immediately affected the administration of both agencies. As a direct result of the review board decision, both public safety and administrative services are required to undergo an administrative process of reviewing classifications in a certain class of cases. Thus, the “legal rights, duties or privileges of a party”; General Statutes § 4-166 (2); namely, public safety and administrative services, have been determined, and “ ‘legal consequences will flow from the agency action.’ ” New Haven v. New Haven Police Union Local 530, supra, 210 Conn. 604.

It is not dispositive that, as the review board characterized it, its “decision is a very narrow one, and should not seriously impact the State.” The review board has directed public safety, with the assistance of administrative services, to review the classification of Cawley’s DPM 3 position and to apply the results of that review to Cawley’s layoff. Under § 5-202 (d), public safety must within ten days “take such measures as are necessary to comply with the remedial action directed by the hearing panel.”

If public safety were required to adhere to the review board order, its effects would be “ ‘felt in a concrete way by the challenging parties.’ ” New Haven v. New Haven Police Union Local 530, supra, 210 Conn. 604. The fact that in the present case such an order might not be difficult to carry out does not change the analysis. The ease with which public safety could comply with the order does not make it less concrete. Two state agencies have been ordered to undertake specific administrative actions. These actions, although purportedly unobtrusive, are, according to the plaintiffs, illegally ordered. Although the review board decision may leave open final resolution of Cawley’s rights with respect to his employment, certain obligations of public safety and administrative services have been finally resolved and concrete legal responsibilities have been placed upon these agencies. This takes the review board decision out of the realm of the abstract and creates a finality for which the UAPA provides an appellate process.

Moreover, as the plaintiffs argue, the statutes governing the review board contain no provision for the review board to retain jurisdiction and monitor compliance with its orders. “An administrative agency, as a tribunal of limited jurisdiction, must act strictly within its statutory authority. Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). [An administrative agency] possesses no inherent power. Its authority is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function. Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 537-38, 79 A.2d 350 (1951); General Statutes § 19a-10. Absent a grant of authority, any sanction meted out by the board is necessarily void. Newington v. Mazzoccoli, 133 Conn. 146, 156, 48 A.2d 729 (1946).” (Internal quotation marks omitted.) Stern v. Medical Examining Board, 208 Conn. 492, 498, 545 A.2d 1080 (1988). Thus, the trial court’s attempt to cure the problem that it perceived as a result of a lack of finality by ordering the review board to retain jurisdiction over Cawley’s appeal imposed an authority on the review board that its governing statutes do not contemplate. This highlights another reason, rooted in the language of § 4-183, why the review board decision was a “final decision of the agency.”

The review board, as the sole agency from which any party to this litigation could appeal, cannot retain jurisdiction over an appeal after it has decided that appeal. Thus, any further proceedings at the public safety or administrative services level will not result in a final decision of an “agency.” As the trial court noted, if public safety and administrative services comply with the review board order and, as a result, Cawley is satisfied, Cawley will have no reason to appeal. In that case, administrative services and public safety could not appeal to the review board because appeals to that agency are limited to “employees.” Any attempted appeal from such reinstatement by either public safety or administrative services directly to the trial court under § 4-183 would necessarily fail because that reinstatement action would not be a final decision of an agency. The review board’s decision in this case is the only decision of an agency in a contested case from which these plaintiffs could appeal.

Finally, it is apparent from the text and the surrounding circumstances of the review board decision that the review board intended it to be a final decision. The trial court noted that “[i]t is not clear whether the review board intended to render a final decision, because its decision is not so labeled. Whether or not it intended to do so, however, the finality of a decision must be determined on the basis of its terms.” Although we agree that the label of an administrative decision is not dispositive of the agency’s intent, we do not agree that finality may be determined irrespective of the intent of the agency issuing the order. In New Haven, we stated that “our statutes . . . giv[e] an agency discretion to limit in a practical way the scope of an administrative proceeding . ... So long as the agency intends to render a final decision and the person taking the appeal is aggrieved by the decision rendered, the fact that other related issues are reserved for later adjudication does not necessarily detract from its finality.” (Emphasis added.) New Haven v. New Haven Police Union Local 530, supra, 210 Conn. 606.

Even in the absence of a label by the review board, a review of its decision indicates that it intended to render a final decision. First, the review board was fully cognizant of § 5-202 (b), which requires “a decision within sixty calendar days from the date of the conclusion of the hearing.” The review board rendered its decision without reserving any issue or ordering further evidence. Without some indication to the contrary, we presume that the review board intended to comply with the statute. Second, the review board determined that it no longer had any responsibility for the case, stating: “However, our responsibility is not to see that [Cawley] is either reinstated or laid off, but only to insure that the classification and layoff process is legally sufficient. In making our decision, we have considered and rejected [Cawley’s] theory that, because [administrative services] pays no attention to position classifications when it assigns data processing managerial duties, we should do the same, and compare employees for layoff purely on seniority.” Having rendered its decision, the review board had completed its duty as it saw fit and terminated the proceeding.

Cawley argues, however, that this case is not governed by the criteria set forth in New Haven. He asserts that the trial court properly distinguished New Haven when it stated that “[i]n that case the state board of labor relations had rendered a final decision determining the unfair labor practice claims against the city by issuing a cease and desist order and granting other relief, but had reserved jurisdiction with respect to the amount of compensation due to the many police officers. The court found that ‘[s]uch a reservation was appropriate in this instance because the time required of adjudication of the numerous claims of the individual officers might well have delayed enforcement of the cease and desist order .’. . .No such exceptional circumstances, however, are presented in this case.” (Citation omitted.) We are not persuaded by this distinction. In New Haven, we did not determine that the labor board’s decision was final because of the jurisdictional reservation, but rather in spite of it. The labor board’s cease and desist provision was final because it “would have become effective immediately in the absence of an appeal.” New Haven v. New Haven Police Union Local 530, supra, 210 Conn. 605. As with the case now before us, the agency’s decision finalized rights and obligations of two of the parties, and would have become effective immediately in the absence of an appeal.

Cawley also argues that because “[t]he remand by [the review board] clearly calls for the State to exercise judgment,” the review board’s decision was not final. In this respect, Cawley relies on our decisions in Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990), and Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 588 A.2d 194 (1991). These cases are distinguishable. Both Szudora and Cleveland involved decisions by the workers’ compensation review division, which is not governed by the UAPA. In those cases, we held that decisions of the review division are not appealable to the Appellate Court unless they meet the criteria for finality of court judgments for purposes of appeal. Cleveland v. U.S. Printing Ink, Inc., supra, 185; Szudora v. Fairfield, supra, 556. Although there are certainly similarities between the criteria for finality of court judgments for purposes of appeal to our appellate courts and the criteria for determining whether an agency decision is final for purposes of appeal to the trial court under the UAPA, those respective criteria are not necessarily the same. That is reflected by the fact that the formulations of the respective criteria differ. Compare, e.g., State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), with New Haven v. New Haven Police Union Local 530, supra, 210 Conn. 597.

The judgment is reversed, and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The named defendant, the review board, is the only other defendant. The review board was represented by an assistant attorney general, but took no position and filed no briefs in the trial court or before this court.

       The job description for a DPM 3 requires that the employee direct a major data processing installation and supervise an assigned staff of managers, supervisors, technical and clerical personnel.

       By the spring of 1990, Cawley supervised only approximately twenty employees.

       The review board made a finding of fact that red-circling a position is a method adopted by administrative services for carrying out its statutory mandate to review periodically work performed by employees in order to determine whether their job classifications are correct. It involves designating a position for formal review if and when a permanent vacancy develops. The decision to red-circle a position involves an informal finding that such position is probably misclassified.

       The maximum annual salary for a DPM 3 is approximately $81,000, which exceeds the maximum annual salary for a DPM 1 by nearly $21,000. The maximum annual salary for a nonmanagerial data processing specialist is less than that of a DPM 1.

       General Statutes § 5-202 provides: “appeal by employee, (a) Any employee who is not included in any collective bargaining unit of state employees and who has achieved a permanent appointment as defined in subsection (r) of section 5-196 may appeal to the employees’ review board if he or she receives an unsatisfactory performance evaluation or is demoted, suspended or dismissed, or is aggrieved as a result of alleged discrimination, or unsafe or unhealthy working conditions or violations involving the interpretation and application of a specific state personnel statute or regulation. Such employee must have complied with preliminary review procedures, except as otherwise provided in subsection (k) of this section. Such an appeal shall be submitted to the board within ten days of the completion of the final level of the preliminary review procedure, provided the first level of the procedure shall have been initiated no later than thirty calendar days from the date of the alleged violation, except that in cases of dismissal, demotion or suspension the grievance must be submitted directly to the third level of the procedure within twenty-one calendar days of the effective date of such action.
      “(b) Upon receiving an appeal, the board shall assign a time and place for a hearing and shall give notice thereof to the parties concerned. The hearing panel shall not be bound by technical rules of evidence prevailing in the courts. If, after hearing, a majority of the hearing panel determines that the action appealed from was arbitrary or taken without reasonable cause, the appeal shall be sustained; otherwise, the appeal shall be denied. The hearing panel shall have the power to direct appropriate remedial action and shall do so after taking into consideration just and equitable relief to the employee and the best interests and effectiveness of the state service. The hearing panel shall render a decision within sixty calendar days from the date of the conclusion of the hearing.
      “(c) The employee in any such case shall be furnished, upon his request, with a copy of the transcript of the proceedings before the board. The chairman of the board shall establish a fair and reasonable fee per page to be charged for such transcript which fee shall not exceed the fee per page for a transcript charged by court reporters for the judicial district of Hartford-New Britain.
      ‘ ‘(d) Within ten days of the issuance date of a decision by a hearing panel sustaining an appeal, the appointing authority of the employee shall take such measures as are necessary to comply with the remedial action directed by the hearing panel.
      “(e) An employee laid off or dismissed by reason of economy, lack of work, insufficient appropriation, change in departmental organization or abolition of position may file an appeal with the board only on the grounds that the order of layoff or dismissal has not been determined in accordance with the provisions of section 5-241, provided such employee has initiated the third level of the preliminary review procedure within twenty-one calendar days of the effective date of such layoff or dismissal.
      “(f) All matters involving examination, including application rejection, type of examination or results, compensation for class or classes or duties, establishment of a new class' or classes, occupational group or career progression level, compliance with health and safety standards and the Connecticut Occupational Safety and Health Act or alleged discrimination in cases where an appeal has been filed with the human rights commission, shall not be appealable under this section.
      “(g) The first level of the preliminary review procedure preparatory to the filing of an appeal from an alleged grievable action other than dismissal, demotion or suspension shall be the aggrieved employee’s supervisor or department chief or other employee as designated by the employee’s appointing authority. Such aggrieved employee shall present his grievance in writing on a form developed by the commissioner of administrative services and the employee review board which form shall contain a statement of the date the alleged violation occurred and the relief sought in answer to the grievance. The first level designee shall give his answer to such employee within seven calendar days from the date the grievance is submitted to him or within seven days from the date of a meeting convened for the purpose of reviewing the grievance, in which case such meeting shall be convened within seven calendar days from the date the grievance is submitted.
      “(h) The second level of the preliminary review procedure preparatory to the filing of an appeal from an alleged grievable action other than dismissal, demotion or suspension shall be the aggrieved employee’s appointing authority or designated representative. Such employee, upon receiving a response at the first level which he deems to be unsatisfactory, may proceed to this level by presenting the same form containing the first level answers within seven calendar days from the date the answer was given at the first level. The appointing authority or designated representative shall answer such employee within seven calendar days from the date the grievance is received or within seven calendar days from the date of a meeting convened for the purpose of reviewing such grievance, in which case such meeting shall be convened within seven calendar days from the date such grievance is received.
      “(i) The third level of the preliminary review procedure preparatory to the filing of an appeal from an alleged grievable action including dismissal, demotion or suspension shall be the commissioner of administrative services or his designated representative. The employee, upon receiving a response at the second level which he deems to be unsatisfactory, may proceed to this level by presenting the same form containing the first and second level answers within seven calendar days from the date the answer was given at the second level, except in the case of a dismissal, demotion or suspension in which case such employee must present the form, completed but without answers at lower levels within twenty-one calendar days of the effective date of such action. The commissioner of administrative services or his designated representative shall reply to such employee within thirty calendar days from the date such grievance is received or within fifteen calendar days from the date of a meeting convened for the purpose of reviewing such grievance, in which case such meeting shall be convened within thirty calendar days from the date such grievance is received.
      “(j) Employees shall be entitled to have representation of their own choosing at any or all levels of the review or appeal procedure. No verbatim records shall be required in the preliminary procedure and no oaths or affirmations shall be administered.
      “(k) Any state officer or employee, as defined in section 4-141, or any appointing authority shall not take or threaten to take any personnel action against any state employee in retaliation for such employee’s filing of an appeal with the employees’ review board or a grievance with any level of the preliminary review procedure pursuant to this section. An employee alleging that such action has been threatened or taken may file an appeal directly with the board within thirty days of knowledge of the specific incident giving rise to such claim.
      “(l) Either the state or any employee aggrieved by a decision of the employees’ review board may appeal therefrom in accordance with section 4-183. Any employee who prevails in a decision of the employees’ review board shall be entitled to recover court costs and reasonable attorney’s fees if such decision is appealed by the state and affirmed by the court in such appeal.”

       General Statutes § 5-241 provides in pertinent part: “order of LAYOFFS. NOTICE. PLACEMENT ON REEMPLOYMENT LIST, (a) No employee in the classified service . . . shall be dismissed or laid off from his position ... if any other employee in the same classification performing comparable duties with less state service is to be retained in the same department, agency or institution. . . .”

       General Statutes § 5-202 (b) provides in pertinent part: “If, after hearing, a majority of the hearing panel determines that the action appealed from was arbitrary or taken without reasonable cause, the appeal shall be sustained . . . See footnote 7.

       See footnote 7 for the text of § 5-202 (l).

       General Statutes § 4-183 provides in relevant part: “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 may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”
      General Statutes § 4-166 provides in pertinent part: “definitions. As used in this chapter . . .
      “(2) ‘Contested case’ means a proceeding, including but not restricted to rate-making, price fixing and licensing, in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held, but does not include proceedings on a petition for a declaratory ruling under section 4-176 or hearings referred to in section 4-168;
      “(3) ‘Final decision’ means (A) the agency determination in a contested case, (B) a declaratory ruling issued by an agency pursuant to section 4-176 or (C) an agency decision made after reconsideration. The term does not include a preliminary or intermediate ruling or order of an agency, or a ruling of an agency granting or denying a petition for reconsideration . . .
      “(8) ‘Party’ means each person (A) whose legal rights, duties or privileges are required by statute to be determined by an agency proceeding and who is named or admitted as a party, (B) who is required by law to be a party in an agency proceeding or (C) who is granted status as a party under subsection (a) of section 4-177a . . . .”

       The trial court reasoned that if Cawley were dissatisfied with the results of the position classification review process ordered by the review board, he could appeal again to the review board and that, in the course of that appeal, public safety could challenge the authority of the review board to have ordered that process. Under that scenario, the trial court reasoned, if public safety were dissatisfied with the result of Cawley’s second appeal to the review board, public safety could then appeal further to the trial court pursuant to § 4-183.
      Absent a second appeal to the review board by Cawley, however, either because, for example, he was satisfied by the result of the process mandated by the review board or because he felt that a further appeal would be fruitless, there would be no opportunity for public safety to challenge the authority of the review board to have ordered public safety and administrative services to undergo that administrative process. This would have been so because only an employee may appeal to the review board pursuant to § 5-202 (a). Thus, as the trial court perceived, without the right of further access to the review board by public safety, the review board would have no occasion to render a “final decision” within the meaning of § 4-183 and, therefore, there would be no opportunity for an appeal by public safety to the trial court.

       Our well established case law interpreting the UAPA requires, with certain exceptions not applicable here; see, e.g., General Statutes § 4-183 (b); a “final decision” in a contested case as a prerequisite to subject matter jurisdiction over an appeal. See, e.g., Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 811-12, 629 A.2d 367 (1993). Lack of subject matter jurisdiction requires that the court dismiss the appeal, and strips the court of any residual power to enter further orders. See Practice Book § 145; Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993); Ertel v. Carothers, 34 Conn. App. 18, 21-22, 639 A.2d 1055 (1994); see also Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 629-30 n.1, 563 A.2d 293 (1989); Cole v. Planning & Zoning Commission, 30 Conn. App. 511, 513 n.1, 620 A.2d 1324 (1993).

       General Statutes § 4-183 (k) provides: “If a particular agency action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the agency decision, orders the particular agency action, or orders the agency to take such action as may be necessary to effect the particular action.”

       The plaintiffs argue, in the alternative, that the review board order was an appealable interlocutory order. Because we conclude that the review board decision was final, we need not address this claim.

       Our decision in Connecticut Bank & Trust Co. v. Commission on Human Rights & Opportunities, 202 Conn. 150, 520 A.2d 186 (1987), is not to the contrary. In that case, we held that an appeal from an agency order determining that an employer had discriminated against the complainant because of her gender and awarding her back pay was not final because the precise amount of the award had not been established until a subsequent agency order was issued two months latel. In that case, however, because the damages had not yet been calculated, the effects of the commission decision had not been felt by the defendant in a concrete way.

       The review board was established pursuant to General Statutes § 5-201, which provides in pertinent part: “employees’ review board, (a) There shall be an employees’ review board consisting of seven members ....
      “(b) The board shall hear and act upon appeals filed with it in accordance with section 5-202. The board, or any three of its members designated by the board, may serve as a hearing panel and render a decision. . . .”
      The scope of the review board’s authority is governed by § 5-202. See footnote 7. There is no provision in that statute explicitly giving the review board the authority to retain jurisdiction over an appeal to it after it has rendered a decision therein, and we cannot conclude that such authority is necessary for the review board to function lawfully. Indeed, two subsections of § 5-202 strongly suggest the absence of such authority. Subsection (b) requires the review board hearing panel to render a decision within sixty days of the conclusion of the hearing, and subdivision (d) requires that the employee’s appointing authority comply with any remedy ordered within ten days of the issuance of the review board hearing panel’s decision.

       Aggrievement by a final decision of an agency is an essential predicate to review by the Superior Court. See footnote 11. Although public safety and administrative services are both state agencies in a general sense, for the purpose of the UAPA they are not the “agency” rendering a final decision in a contested case. The review board is that agency, and public safety and administrative services are contestants before that agency. Hence, despite the trial court’s creative attempt to avoid the conundrum it perceived, if Cawley were reinstated or otherwise satisfied as a result of the ordered position classification review process, there would never be a final decision of an agency that would trigger the plaintiffs’ right to appeal.

       See footnote 7 for the text of § 5-202.

       Cawley’s reliance on Lieberman v. State Board of Labor Relations, 216 Conn. 253, 579 A.2d 505 (1990), is similarly misplaced. The issue in Lieberman was whether a trial court remand to the state board of labor relations was a final judgment, and not whether a decision of an agency was a final decision under the UAPA.


text:
    State of Connecticut v. Paul B. Wohler
    (14798)
    Peters, C. J., and Callahan, Borden, Berdon and Katz, Js.
    Argued September 22
    decision released December 6, 1994

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Mark Stabile, supervisory assistant state’s attorney, for the appellant (state).

      Arthur P. Meisler, for the appellee (defendant).
   Callahan, J.

The defendant, Paul B. Wohler, who was employed as an assistant superintendent of the Wil-limantic water works by the Windham water department, was convicted after a court trial of one count of larceny in the fifth degree in violation of General Statutes §§ 53a-125a (a) and 53a-119 (7) (F). The defendant’s conviction resulted from his use of water department employees and equipment to assist a water department customer, Dominic Shirghio, to replace a water line running from the water department’s connection at the curb into Shirghio’s residence at 76-82 South Street in Willimantic. The defendant appealed his conviction to the Appellate Court.

The state charged the defendant by means of a short form information. Thereafter, in a statement of essential facts; see Practice Book § 625; the state alleged that the defendant had violated the applicable statutes in the following manner. “On or about October 12, 1990, the defendant PAUL B. WOHLER, Assistant Superintendent of the Windham Water Department, while having control over the labor, equipment and facilities of the town of Windham Water Department, knowing that he was not entitled to the use of same, and with the intent to derive a benefit to himself and another, did use or divert the use of said labor, equipment and facilities in order to install a water line hookup into 76/82 South Street in Willimantic, Connecticut and received monetary gain for himself and another, with the value of said gain between $250 and $500.” (Emphasis added.)

The Appellate Court first noted that the state, in its statement of essential facts, had elected to charge the defendant in the conjunctive (alleging a “benefit to himself and another”), rather than in the disjunctive wording of § 53a-119 (7) (F) (requiring merely a “benefit for himself or a third person”). (Emphasis added.) State v. Wohler, 30 Conn. App. 571, 576, 621 A.2d 751 (1993). The court then held that, as a result, the state was required to prove that the defendant had the intent to benefit and had benefited both himself and another person. The court determined, however, that the record was “abundantly clear” that the defendant had derived no benefit or gain to himself as a result of his activities in assisting Shirghio. Id. It also determined that the evidence was insufficient to have permitted the trial court reasonably to have inferred from the facts found that the defendant had possessed the requisite intent to benefit himself. Id., 577. The Appellate Court, therefore, reversed the trial court’s judgment and remanded the case with instructions to render a judgment of acquittal. Id.

We granted certification limited to the following question: “When a charging document conjunctively alleges a crime to have been committed in more than one way, must the state prove commission of both methods?” State v. Wohler, 226 Conn. 914, 628 A.2d 986 (1993). We reverse the judgment of the Appellate Court.

The statement of essential facts filed by the state charged the defendant with the single offense of larceny in the fifth degree committed conjunctively in two different ways. See State v. Edwards, 163 Conn. 527, 532-33, 316 A.2d 387 (1972). Such a method of charging is sanctioned by Practice Book § 618 and gives a defendant adequate notice of the offense with which he is charged. State v. Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Edwards, supra, 534. A charging document may properly allege, conjunctively, in one count, several statutory methods of committing a single offense. Practice Book § 618; State v. Hufford, 205 Conn. 386, 397, 533 A.2d 866 (1987); State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972); State v. Edwards, supra, 533-34; see J. Bruckman, G. Nash & J. Katz, Connecticut Criminal Case Law Handbook (1989) p. 4. To provide adequate notice to the defendant that the state intends to prove that the offense was committed in one or more alternate ways, a charging document “must charge in the conjunctive, even if a statute is drawn in the disjunctive.” United States v. Vickerage, 921 F.2d 143, 147 (8th Cir. 1990); State v. Chapman, 229 Conn. 529, 543, 643 A.2d 1213 (1994).

Where a charging document alleges, in the conjunctive, that an offense has been committed in more than one way, a guilty finding may stand if the evidence supports a conviction based upon any one of the statutory alternatives. State v. Eason, 192 Conn. 37, 42, 470 A.2d 688 (1984). “[Wjhere the state charges that a defendant has committed a crime in more than one way, and those ways are charged in the conjunctive, as they must be, and the trial court instructs, as it must, that the state need only prove one of its allegations, and not all, the verdict must be upheld so long as there is sufficient evidence under any of the allegations. See, e.g., Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970); State v. Eason, [supra, 42]; State v. Torres, 24 Conn. App. 316, 588 A.2d 232 (1991); State v. Lode, 36 Conn. Sup. 603, 609, 421 A.2d 880 (1980).” State v. Chapman, supra, 229 Conn. 543.

Because the state properly charged the defendant in the conjunctive with two ways of committing a single offense, it was entitled to a conviction if it had proved beyond a reasonable doubt either alleged mode of committing that offense. The Appellate Court therefore was incorrect when it reversed the trial court and ordered a judgment of acquittal because the state had failed to prove that the defendant had intended to benefit and had benefited both himself and a third person by diverting the water department’s resources.

The issue upon which the Appellate Court decided this case was not raised by the defendant in his appeal to that court. In the Appellate Court the defendant claimed that there had been insufficient evidence for the trial court to have concluded that the defendant had not been entitled to the use of the labor and equipment employed to replace the water service at 76-82 South Street or that he had acted with the intent to benefit Shirghio. Because the Appellate Court did not address those issues, the case must be remanded to that court for their resolution.

The judgment of the Appellate Court is reversed and the case is remanded to that court for disposition of the issues raised by the defendant in his appeal.

In this opinion, Peters, C. J., and Borden and Katz, Js., concurred.

Berdon, J.,

concurring. Although I agree with the remainder of the court’s analysis, I am troubled that the majority puts its stamp of approval on the sweeping language of State v. Chapman, 229 Conn. 529, 543, 643 A.2d 1213 (1994)—that is, if the defendant is charged in the conjunctive and the jury is instructed “that the state need only prove one of its allegations, and not all, the verdict must be upheld so long as there is sufficient evidence under any of the allegations.” In other words, according to Chapman, even if the jury is instructed in the disjunctive, a guilty verdict may stand if any of the allegations are supported by sufficient evidence.

Under these circumstances, we would never know whether the jury predicated its finding of guilty on an alternative for which there was insufficient evidence. Indeed, this is precisely the distinction pointed out in State v. Reid, 193 Conn. 646, 667 n.22, 480 A.2d 463 (1984). Justice Shea in Reid cautioned against allowing the jury to consider an “improper basis for a conviction under circumstances where it is impossible to tell whether the conviction rests upon the impermissible ground.” Id.; see also Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957) (verdict must be “set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected”).

This concern disappears, however, when, as in the present case, the jury is instructed in the conjunctive— that is, when the jury is told that it must find that the defendant committed all, rather than one, of the alternatives charged in order to return a verdict of guilty. Even if the evidence is insufficient for one of the alternatives, or if one of the alternatives is unconstitutional or otherwise legally defective, the guilty verdict may stand. A simple example is a sexual assault case. “[I]f the jury is erroneously instructed in the conjunctive— for example, it is instructed that in order to find the defendant guilty it must find both a threat and the use of force, and the evidence supports a conviction solely on the basis of the use of force—on a verdict the court can nevertheless be assured that the jury predicated its decision on an alternative for which there was evidence and the alternative for which there is no evidence becomes superfluous.” State v. Chapman, supra, 229 Conn. 551-52 (Berdon, J., dissenting).

Accordingly, I concur in the result.

       General Statutes § 53a-125a (a) provides: “A person is guilty of larceny in the fifth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds two hundred fifty dollars.”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . .
      “(7) Theft of services. A person is guilty of theft of services when . . . (F) obtaining or having control over labor in the employ of another person, or of business, commercial or industrial equipment or facilities of another person, knowing that he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such labor, equipment or facilities.”

       The replacement of the water line from the street to the house was Shirghio’s responsibility as the homeowner. Shirghio had contracted with the defendant and a fellow water department employee, Derek Dimmock, to replace the water line from Shirghio’s residence to the water department connection at the curb. The defendant and Dimmock worked together on such endeavors after hours, on their own time, to earn extra income.

       “[Practice Book] Sec. 625.--bequest by defendant foe essential FACTS
      “Whenever the information charges the offense only by referring to the statute which is alleged to have been violated, the prosecuting authority, upon written request of the defendant, shall as of course amend the information by adding or annexing thereto a statement of the essential facts claimed to constitute the offense charged. Such request shall be made within ten days following arraignment.”

       “[Practice Book] Sec. 618. —form
      “The information shall be a plain, concise and definite written statement of the offense charged. The information need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed the offense by one or more specified means. The information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. The information shall also contain:
      “(1) The name of the court in which it is filed;
      “(2) The title of the action;
      “(3) The name of the defendant;
      “(4) A statement that such crime was committed in a particular judicial district or geographical area, or at a particular place within such judicial district or geographical area; and
      “(5) A statement that such crime was committed on, or on or about, a particular date or period of time.”

       The Appellate Court relied principally upon State v. Hahn, 207 Conn. 555, 541 A.2d 499 (1988), for its conclusion that the state was required to prove both ways of committing larceny in the fifth degree alleged in the statement of essential facts. Hahn, however, is distinguishable. In Hahn, we concluded that the state had simply failed to prove the crime charged in the long form information. Id., 563. In this case, the Appellate Court reversed the trial court because it determined that the state was required to prove both methods of committing a single crime that had been properly charged in the conjunctive.