author: Hull, J.

text:
    Local 218 Steamfitters Welfare Fund et al. v. Cobra Pipe Supply and Coil Company, Inc., et al.
    (13298)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued April 15
    decision released May 31, 1988

      Martin A. Gould, with whom, on the brief, was Alfred J. Garofolo, for the appellants (plaintiffs).

      Bernard E. Francis, with whom, on the brief, was Lisa A. Kovalsky, for the appellee (defendant Peter S. Antink, Jr.).
   Hull, J.

The narrow issue in this case is whether, in an action against a corporate officer, pursuant to General Statutes § 31-89a, the officer is relieved of liability if, prior to the accrual of the cause of action, the officer tenders his resignation to the corporation, but fails to file notice of this fact with the Secretary of State, as required under General Statutes § 33-319a.1 We agree with the trial court that such a failure did not vitiate the instantaneous effectiveness of the officer’s resignation so as to extend his possible liability under § 31-89a beyond the date of his resignation, and find no error.

The plaintiffs, the Local 218 Steamfitters Welfare Fund, the National Pension Fund and the Local Pension Fund, brought an action against the defendants in two counts. The first count, against the named defendant, claimed that from September 1,1985, through March 31, 1986, it was obligated to pay the fund $14,329.41 for employer contributions due the fund under the applicable collective bargaining agreement. Count two made the same claims against Robert A. Krasnow and Peter S. Antink, Jr., as directors and/or officers of Cobra Pipe and Supply Company, Inc. (Cobra). The Cobra corporation, and Krasnow individually, admitted the allegations of the complaint while Antink denied them. Judgment by stipulation was rendered against Cobra and Krasnow. The trial court stated that the only issue in the case was the effect of Antink’s alleged resignation “as an officer and/or director of the defendant corporation.”

The court found the following undisputed facts: Prior to June 10,1985, Antink was vice president and secretary of the defendant corporation and he delivered a written resignation from these offices to the corporation on that date. His reason for resigning was that in a similar matter, a lien had been placed against his house and he had come to realize that, as an officer, he was subject to personal liability. His resignation letter was an attempt to divest himself immediately of any corporate obligation or liability from that time. The last corporation report was filed with the Secretary of State on August 1, 1984. Antink never filed with the Secretary of State a notice that he had resigned.

The trial court concluded that Antink’s resignation was effective immediately despite the lack of statutory notice to the Secretary of State. The court rendered judgment for the plaintiffs against Cobra and Krasnow and for the defendant Antink. The plaintiffs appealed from the judgment for Antink claiming that in an action against the corporate officer pursuant to General Statutes § 31-89a, the trial court erred in concluding (1) that the officer is relieved of liability under the statute if, prior to the accrual of the cause of action, the officer tenders his resignation to the corporation but nevertheless fails to file or have filed the notice required under General Statutes § 33-319a (a); and (2) that in such an action the plaintiffs must allege and prove that they were misled by or relied to their detriment upon the state of the record of the Secretary of State.

We summarily dispose of the second claim of error. The trial court stated that the “[plaintiffs seek] that Peter S. Antink, Jr., be estopped from asserting his resignation from the defendant corporation.” The court further stated, however, that “[t]here is no claim or evidence that the plaintifffs] [were] misled by or relied on the state of the record of the Secretary of State in any way which contributed to [their] damage.” Thus, the court’s decision did not depend to any degree on a theory of detrimental reliance, which was neither pleaded nor proven in the case. This claim of error, therefore, raises an issue which is not involved in the case and we do not consider it further.

We turn now to the sole issue in the case. The trial court summarized its views as follows: “ ‘In the absence of charter or statutory provisions to the contrary, the resignation of a corporate officer becomes complete, and his office becomes vacant the moment the resignation is made to the proper officer or body, which is usually the officer or body which appointed him, and it is not necessary that the resignation be accepted or that it be entered on the corporate minutes or that someone be elected to take his place, in order to make the resignation effective . . . .’[2 W. Fletcher, Cyclopedia of the Law of Private Corporations (Perm. Ed. 1982) § 349, p. 146]. ( . . . ‘Connecticut. See Conn. Gen. Stats. Ann. § 33-317 (b) providing that a director shall cease to be in office upon, inter alia, his resignation, which shall be effective immediately upon receipt by the corporation if no time is specified, or at such later date as he may specify.’) (Emphasis added.) [2 W. Fletcher, Cyclopedia of the Law of Private Corporations (1981 Cum. Sup.) § 349, p. 28.] There is no statutory provision, in Connecticut, to the contrary. Certainly, § 33-319a, plainly read, is not to the contrary. Additionally, it would appear incongruent for the legislature to provide in its statutory scheme to declare a director’s resignation to be effective immediately upon being given; see § 33-317 (b); and disallow the same as to an officer.

“In any event, the legislature could easily have provided in Sec. 33-319a that an officer’s resignation would be effective immediately subject to statutory notice to the Secretary of State, had it so intended.”

The plaintiffs concur with the “general proposition of law stated by the court” but insist that the provisions of § 33-319a alter the effect of this general rule. They proffer no case directly on point nor do they cite any treatise or other authority to buttress this claim. They point out that the enactment of § 33-319a provided that an officer or director who ceased to be in office may file a notice with the Secretary of State. Public Acts 1967, No. 30, § 4. In 1983, § 33-319a was amended to its present form by Public Acts 1983, No. 83-545, § 5 (a), changing the word “may” to “shall.” Public Acts 1983, No. 83-545, § 1, provided also for biennial, instead of annual, filing of notice of the names and addresses of officers and directors of corporations. The plaintiffs cite the following memorandum before the Judiciary Committee from Attorney Ruth Lifshitz, Staff Attorney for the Secretary of State:

“First, [House Bill No.] 6957 would change the reporting requirement for stock corporations, both domestic and foreign, from annual to biennial. In order to preserve the integrity of the reporting system generally, and to ensure that information on file in the Secretary of the State’s office is as up-to-date as possible, several changes are proposed to the acts which correspond with the change from annual to biennial reports. Notification of changes of officers and directors, which is permissive under the current annual reporting system, would be mandatory under the proposed biennial reporting system. If reports are submitted biennially, it will be very important to require notification to the Secretary of the State’s office of changes in officers and directors. Names of officers and directors supplied to the public must, when litigation is contemplated or consumer complaints are involved, be as up-to-date as possible.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1983 Sess., p. 912. From these and similar comments before the legislature the plaintiffs make the giant leap to the conclusion that if an officer resigns and fails to file statutory notice, his liability under § 31-89a is not terminated. We conclude to the contrary.

We note that the purpose of House Bill No. 6957 is stated to be “[i]n order to preserve the integrity of the reporting system generally.” This purpose is of a housekeeping or administrative nature. It falls far short of revealing an intention to extend the liability of a resigned officer under § 31-89a. The statute does not include any penalty for noncompliance, nor does it state that an officer’s resignation is effective only after it has been filed with the Secretary of State. Most significantly, it makes no reference to the continuation of a resigned officer’s liability under § 31-89a, in the event of lack of such notification, in contravention of the long accepted general rule that a corporate officer’s resignation is effective on delivery. “The use of [certain words] cannot, without other apparent intention in the statute, be a basis for abolishing a long-established common-law rule wholly unrelated to the central thrust of the entire act. Courts should not read into clearly expressed legislation provisions which do not find expression in its words. Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975). ‘In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.’ Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954).” (Emphasis added.) Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979). “We are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained.” Schurman v. Schurman, 188 Conn. 268, 273, 449 A.2d 169 (1982). Nor can we engraft language not clearly intended by its enactment onto legislation. See Zapata v. Burns, 207 Conn. 496, 503-504, 542 A.2d 700 (1988).

Finally, the plaintiffs rely on the fact that under General Statutes § 33-317 (b) (2) a director’s resignation shall be effective immediately upon receipt by the corporation, while there is no such statutory provision concerning an officer. We have been unable to find any stated reason for such a distinction. We are, however, unpersuaded that the distinction is sufficient to evince a legislative intent to overturn the generally accepted rule that either an officer or a director may resign effective immediately. “A director or other officer of a corporation may resign at any time and thereby cease to be an officer, subject, of course, to any express charter or statutory provisions to which he had expressly or impliedly assented in accepting office .... As some courts express it ‘as a general rule, such officers may resign at will.’ ” 2 W. Fletcher, Cyclopedia of the Law of Private Corporations (Perm. Ed. 1982) § 345, p. 141. “In the absence of statutory provisions or mandatory requirements of articles of incorporation or bylaws, a resignation [of officers or directors] is effective immediately unless made conditional.” 18B Am. Jur. 2d 315, Corporations § 1423.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 31-89a provides: “civil action to collect past due payments to funds, penalty, (a) Payments to employee welfare funds, as defined in subsection (h) of section 31-53, which are past due under the terms of a written contract or rules and regulations adopted by the trustees of such funds shall be considered as wages for the purpose of section 31-72.
      “(b) Any proprietor or partner who fails to pay the contributions when due to an employee welfare fund, as defined in said subsection, under the terms of a written contract or rules and regulations adopted by the trustees of such funds, or any officer, director or employee of any corporation who has been made responsible by the corporation for payment of such contributions which have not been paid when due, shall be fined not more than two hundred dollars or imprisoned not more than thirty days or both for each week of nonpayment. In addition, any proprietor or partner who fails to pay such contributions when due, and the officers or directors of any corporation which fails to pay such contributions when due, whether or not such officers or directors were made responsible by the corporation for the payment of such contributions, shall be personally liable in a civil action for payment of the amounts due such fund, as well as costs and reasonable attorney’s fees.”

       General Statutes § 33-319a provides: “filing of notice that director OR OFFICER HAS CEASED TO BE IN OFFICE OR HAS BEEN APPOINTED OR elected to office, (a) When a director or directors, or officer or officers, or both, of a domestic corporation required to file a biennial report under section 33-298 have ceased to be in office, the director or officer or the corporation shall file as a matter of public record, within ninety days following the date of such cessation, a notice to that effect with the secretary of the state, except that when the corporation’s biennial report is due within ninety days following the date of such cessation, such cessation may be reported in the corporation’s biennial report. The notice shall be executed and filed as provided in section 33-285 and shall set forth: (1) The name of the corporation; (2) the names of the individuals; (3) their respective former offices; and (4) the respective dates when they ceased to be in office.
      “(b) When an individual or individuals have been appointed or elected to fill a vacancy in the board of directors or a vacant office, or to hold a position on the board of directors or an office, such corporation shall file as a matter of public record, within ninety days following the date of such appointment or election, a notice to that effect with the secretary of the state, except that when the corporation’s biennial report is due within ninety days following the date of such appointment or election, such appointment or election may be reported in the corporation’s biennial report. The notice shall be executed and filed as provided in section 33-285 and shall set forth: (1) The name of the corporation; (2) the names of the individuals; (3) the respective offices to which they have been appointed or elected; and (4) the respective dates of their appointments or elections.”

       Neither the memorandum of decision nor the record indicates whether Antink was a director of the corporation.


source: Caselaw Access Project

author: Covello, J. Arthur H. Healey, J., Shea, J.,

license: Public Domain

text:
    State of Connecticut v. Bruce E. Rodgers
    (13062)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      (One justice dissenting)

    Argued February 2
    decision released May 31, 1988

      Denise Dishongh, special public defender, with whom was Louis S. Avitabile, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Christopher Malany, deputy assistant state’s attorney, and Peter D. Markle, former assistant state’s attorney, for the appellee (state).
   Covello, J.

The defendant, Bruce E. Rodgers, appeals, after a jury trial, from a judgment of conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a. The judgment appealed from was rendered following the defendant’s second trial on these charges, pursuant to our reversal of his prior conviction and order for a new trial. State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985). The defendant claims that: (1) the trial court erred in admitting testimony under the constancy of accusation exception to the hearsay rule; (2) the trial court erred in allowing expert testimony on the issue of penetration; (3) the prosecutor committed reversible error in his argument to the jury; and (4) there was insufficient evidence to support his convictions. We find no reversible error.

The jury could reasonably have found that, during the evening of August 14,1980, the defendant agreed to give the victim a ride home in his car, after visiting several bars together. The victim, a fifteen year old female, fell asleep during the ride. She awoke in the car to find the defendant with his hands around her throat, choking her. She thereafter lost consciousness. When the victim regained consciousness, she was alone on the ground in a rocky area that appeared to be a dump. Her neck and rectum were very sore, and her shoes and underpants had been removed and were on the ground nearby. The victim hitchhiked home, arriving at approximately 5:30 a.m., August 15, 1980. She slept throughout much of the day. Thereafter, friends took her to the hospital at approximately 9 p.m. that evening.

Medical experts testified that the victim had sustained a permanent injury to her third cervical vertebra, more commonly known as a broken neck. The injury was consistent with manual strangulation, and was further evidenced by the victim’s bruised and bloodshot eyes. Further medical testimony revealed that the victim had sustained a midline fissure in the area between her vagina and anus, which extended into the anus. The injury was consistent with rape by rectal penetration.

I

The defendant claims on appeal that the trial court erred in permitting Detective Howard Jones of the Waterbury police department to testify to the details of the incident as related to him by the victim. The court admitted this testimony, over the defendant’s objection, under the “constancy of accusation” exception to the hearsay rule.

“This court has recently reaffirmed the traditional rule in this jurisdiction that a witness to whom the victim of a sex-related offense has complained may testify not only to the fact that the complaint had been made but also to its details.” State v. Pollitt, 205 Conn. 61, 76, 530 A.2d 155 (1987). Such testimony is permitted, under this evidentiary rule, to corroborate the victim’s prior in-court testimony concerning the facts of the alleged sexual offense and “to show constancy in the victim’s declarations.” Id.; State v. Dobkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986).

The defendant claims that this exception is inapplicable in the present case because the victim did not directly and expressly testify to the acts perpetrated on her that constituted the sexual assault. Having been strangled to the point of unconsciousness prior to the alleged sexual attack, the victim was able to testify only to the strangulation and to her experience upon regaining consciousness. Specifically, the victim testified that she fell asleep while riding in the defendant’s car with him, that she awoke to find the defendant with his hands around her throat, choking her, and that she eventually lost consciousness. When she regained consciousness she was alone on the ground in an area that appeared to be a dump. Her underpants had been removed and were on the ground nearby, and she was experiencing severe pain in her rectum.

The victim’s testimony was necessarily limited to a recital of the facts as she experienced them prior to and immediately after her period of unconsciousness. Her inability to describe the events occurring during the interval of unconsciousness, and her concomitant inability, therefore, to articulate a formal accusation of a sexual assault would, according to the defendant’s rationale, deprive the state of the right to present corroborative testimony of what she told others under the constancy of accusation rule. Such a policy would confer a benefit on defendants who render their victims unconscious during sexual assaults, and this act would thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault.

Our review of the victim’s testimony convinces us that she did present strong circumstantial evidence that she had been the victim of a sexual assault. “The law makes no distinction as to the probative effect of direct and circumstantial evidence.” State v. Rodgers, supra, 58. We conclude that the victim’s testimony as to the facts of this alleged incident created a strong inference that she had been the victim of a recent sexual assault. Therefore, the trial court properly permitted the introduction of her statements to Detective Jones, even though there was no direct testimony by her of the assault itself.

II

The defendant next claims that the trial court erred in allowing expert testimony on an essential element of the crime that was properly an issue for the jury’s determination. An obstetrician-gynecologist who examined the victim when she was taken to the hospital was allowed to testify, over the defendant’s objection, to his opinion as to the cause of the victim’s injury. The doctor testified that the fissure suffered by the victim was probably caused by a sharp or quick blow to the rectum and was consistent with rape by rectal penetration. During cross-examination, the doctor conceded that it was possible for such an injury to occur other than by penetration, such as by falling forcefully on a sharp rock or against a small, sharp table corner.

“There is no doubt that penetration is an element of the crime of sexual assault in the first degree . . . .” State v. Artis, 198 Conn. 617, 621, 503 A.2d 1181 (1986); see General Statutes § 53a-65 (2). Whether penetration did occur is a question of fact for the jury, and the state is required to establish penetration beyond a reasonable doubt. State v. Artis, supra.

As to the admissibility of the doctor’s expert opinion on this issue, “[t]he trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.” State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” Id. The doctor’s opinion testimony readily meets this test. First, as a specialist in obstetrics and gynecology, he possessed a knowledge and skill directly relevant to the anatomical area of the injury. Second, the probable cause of a perineal fissure is not obvious as a matter within the common knowledge of the average person. Expert testimony as to the degree of force and the nature of the object required to bring about such a fissure assisted the jury in intelligently assessing the ultimate issue as to whether a sexual assault had occurred. This is precisely the evidentiary circumstance in which we have recently reaffirmed that experts can “ ‘give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass. State v. Johnson, 140 Conn. 560, 563, 102 A.2d 359 (1954). Geraty v. Kaufman, 115 Conn. 563, 572, 162 A. 33 (1932). . . ” State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988).

Further, the doctor’s testimony that the injury was consistent with rape by rectal penetration did not usurp the factfinding function of the jury. See State v. Kemp, supra, 477-78. Although the doctor expressed his opinion as to the most likely cause of the victim’s injury, he also testified on cross-examination that the medical evidence did not conclusively establish that rape by rectal penetration had occurred. Moreover, he conceded that the injury could have been inflicted as a result of falling or being thrown forcefully against a small hard object such as a rock or table corner. Thus, it was left to the jury to determine whether penetration had indeed occurred; General Statutes § 53a-65 (2); whether it had been achieved by the use of force or the threat of the use of force; General Statutes § 53a-70; and whether the defendant was the perpetrator.

We conclude, therefore, that the doctor’s testimony was admissible as expert opinion testimony, that it did not invade the province of the jury to determine the ultimate issue and that the trial court properly admitted the challenged testimony.

Ill

The defendant next claims that the prosecutor’s argument to the jury constituted misconduct and deprived him of his right to a fair trial. Specifically, the defendant claims that the prosecutor: (1) expressed his personal opinion as to the defendant’s guilt; (2) expressed his personal opinion as to the victim’s truthfulness; and (3) appealed to the jury’s sympathy for the victim.

The state argues that the defendant’s claim is not reviewable because it has not been properly preserved for appellate review. We agree.

The defendant “took none of the appropriate measures to alert the trial court to a potential problem . . . .” State v. Williams, 204 Conn. 523, 535, 529 A.2d 653 (1987). At trial, the defendant did not object to the remarks now complained of nor did he move for a mistrial on the basis of these remarks. The defendant concedes that this claim was not properly preserved for appeal, but nonetheless seeks review of this issue under the “exceptional circumstances” doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), or the “plain error” rule of Practice Book § 4185.

The defendant relies on a line of cases where we have reviewed claims of prosecutorial misconduct under State v. Evans, supra. In those cases where we have engaged in Evans review, the record has disclosed a pattern of repeated, strident and serious misconduct. “In the cases in which we have denied Evans review, the claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial. Moreover, the misconduct was not blatantly egregious.” State v. Williams, supra, 537; see State v. Chace, 199 Conn. 102, 107-108, 505 A.2d 712 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 672-74, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Lubesky, 195 Conn. 475, 483-84, 488 A.2d 1239 (1985).

The record in this case does not adequately support a claim of a clear deprivation of the right to a fair trial. The challenged remarks did not rise to the level of character assassination and vitriolic personal attacks that we have held to constitute a denial of the constitutional due process right to a fair trial. We conclude, therefore, that the remarks of the prosecutor as set forth in the record do not constitute the “exceptional circumstance” contemplated in State v. Evans to warrant review of these unpreserved claims. For similar reasons, we conclude that these remarks do not warrant review as plain error.

IV

The defendant’s final claim is that the evidence presented at trial was legally insufficient to support his convictions. This claim includes two separate challenges: (1) that the evidence of penetration was insufficient to sustain his conviction of sexual assault in the first degree; and (2) that under the facts of this case, the same use of force could not form the basis of charges of both first degree sexual assault and attempted murder.

The defendant presented both of these claims in his appeal of his first convictions. State v. Rodgers, supra, 60-67. We reviewed both of these claimed errors at that time and decided both of them against the defendant. Id. As to the first issue, the defendant contends that our prior holding is not dispositive of this appeal. The defendant asserts that the expert testimony on the issue of penetration presented in his second trial “was very different” from that presented at his first trial. Our review of the record convinces us otherwise. The same experts, a gynecologist and a forensic toxicologist, testified at both trials. While they did not present a verbatim reiteration of their previous testimony, the material elements of their testimony at the first and second trials were essentially the same. We conclude, therefore, that our resolution of the sufficiency of the evidence claim in the defendant’s earlier appeal disposes of the claim here as well.

The second aspect of this claim stems from the unique factual circumstances of this case. The defendant contends that the same application of force cannot be relied on to support convictions for both attempted murder and sexual assault. The defendant bases this claim on his assertion that he could not simultaneously have possessed the requisite intent to kill his victim and also to compel her to submit to sexual intercourse.

We first observe that the defendant did not raise this claim at trial. The defendant argues that this issue was “brought to the attention of the trial court at sentencing,” but, recognizing that this is insufficient to preserve the claim for substantive appellate review, seeks review instead under the “exceptional circumstances” doctrine of State v. Evans.

Even were we to grant the review the defendant seeks, our resolution would be governed by our prior ruling in State v. Rodgers, supra. The defendant raised this identical issue in his earlier appeal, and we stated: “Even if we were to accept the defendant’s argument that in strangling his victim he could not simultaneously have intended to commit both murder and sexual assault in the first degree, he would not prevail. On the facts of this case, it was not necessary that the defendant intended to sexually assault his victim as he strangled her. It is enough that after having caused her to lose consciousness by breaking her neck, he did commit the sexual assault. We conclude that the trial court properly refused to instruct the jury that the defendant could not be found guilty of both attempted murder and sexual assault in the first degree.” Id., 63. The “logic of Rodgers” was recently reaffirmed in State v. Usry, 205 Conn 298, 317, 533 A.2d 212 (1987). The defendant concedes that guilt of both offenses arising from a single act of force is “established law” in this state, but asks us to speculate about the legal effect of other, distinctly different hypothetical circumstances. This we decline to do.

There is no error.

In this opinion, Peters, C. J., and Callahan, J., concurred.

Arthur H. Healey, J.,

dissenting in part. I disagree with part I of the opinion and would order a new trial on the charge of sexual assault in the first degree. See General Statutes § 53a-70 (a).

The defendant’s claim on the issue raised in part I is that the trial court “erred in allowing [the] ‘constancy of accusation’ testimony in this case where the alleged victim of the sexual assault had no personal knowledge whatsoever of the alleged sexual assault and did not in fact ever make any accusations of sexual assault.”

There appears to be no real question about the following evidence. On the night of the alleged attack, the victim performed as a dancer at a stag party to which she had been taken by her employer, his wife and another man. After that party, she went to a bar in Plymouth with her employer, his wife and the other man. In that bar, she had several drinks with the defendant whom she said she had not previously met. About one hour later, she and the defendant left to go to a bar in Southington where they had some more drinks. At closing time, they left that bar as the defendant had offered to give her a ride home. Because it was raining and the pair had been using the defendant’s motorcycle for transportation, they stopped by the defendant’s home to get his car. As the victim was riding in the front seat of the defendant’s car, she fell asleep while leaning against the defendant.

The next thing the victim said that she remembered was that she had been awakened by the defendant strangling her and that the defendant had asked her where her friends were and how were they going to help her. She then lost consciousness. When she awoke later, she found herself outside somewhere, alone. Her neck and rectum were very sore. She found her shoes, purse and underwear a few feet away. She put her underwear back on and then tried to find help and find her way home.

Although she saw two individuals walking by, she did not tell them what had happened but did ask them for directions. She hitchhiked a ride, told the unidentified driver what had happened and she received a ride home.

Upon ariving home at 5:30 a.m., she removed her clothes and went to bed. She did not think to go to the hospital, she did not bathe or shower and she did not think to awaken her roommate to tell her what had happened. Upon awakening at about 11 a.m., she talked to her roommate but did not tell her what had happened at that point. She went back to sleep and awoke later in the afternoon. When she awoke again, her roommate’s brother was there and he asked her what had happened when he saw her “injuries.” She told him and went back to sleep again. She awoke again about dinner time, and her roommate, who was there, said they were going to the hospital. They went to the hospital about 9 p.m. Upon her arrival at the hospital, she gave a false name and an incorrect age.

At the hospital, she told the people there what had happened to her. She testified at trial that she never told the people at the hospital or anyone else that she had been sexually assaulted. She also testified that she had no personal knowledge of whether she had been sexually assaulted or what caused her rectal pain. While in the hospital, the police interviewed the victim three times over a two day period. Detective Howard Jones was the officer who had interviewed the victim those three times in the hospital and who took her written statement.

The state presented the testimony of three doctors at the trial. One was an orthopedic surgeon whose testimony did not involve the alleged sexual assault but dealt with her strangulation. Another was a gynecologist who had examined her in the emergency room. During his rectal examination, he discovered a fissure about one half centimeter deep and three and one-half centimeters long which extended for about one centimeter into the anus. He testified that in his opinion the fissure would “probably come from a very sharp or rather quick punch or blow” and that the injury was consistent with rape, specifically with rectal penetration. The third doctor was a neurosurgeon who had not examined the victim but who had reviewed her medical records. His testimony concerned her neck injury and did not concern the alleged sexual assault.

Detective Jones testified for the state and his testimony was allowed over objection on the ground that it was admissible specifically on the constancy of accu - sation exception. His testimony included the details stated to him by the victim during each of his three interviews with her.

The state’s brief states that “[t]he defendant correctly notes that the victim did not expressly accuse the defendant of ‘sexual assault.’ Nor was she able to testify that she saw the defendant as he sexually assaulted her. Having been choked to unconsciousness by the defendant prior to being sexually assaulted, the victim could hardly have made such an accusation or provided such testimony. This only means that the victim’s testimony contained no direct evidence of sexual assault.” It argues that the evidence compels the inference that she was the victim of a sex-related offense and it should not matter that she was unable to provide direct, personal knowledge of the sexual assault where there was compelling circumstantial evidence of its occurrence. It then correctly points out the general rule that the law makes no distinction as to the probative effect of circumstantial as opposed to direct evidence.

To accept the defendant’s claim of error here, the state argues, would mean that victims of sexual assault, who are rendered unconscious just prior to the offensive act, could never utilize the constancy of accusation exception to rebut the suggestion of recent fabrication. In my view, the trial court erred when it admitted this testimony in this case under the constancy of accusation exception to the hearsay rule.

“In sex-related crime cases, we have long recognized that a witness, to whom a victim has complained of the offense, could testify ‘not only to the fact that a complaint was made but also to its details.’ State v. Segerberg, 131 Conn. 546, 549, 41 A.2d 101 (1945). See State v. Greene, 161 Conn. 291, 294, 287 A.2d 386 (1971); State v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971); State v. Purvis, 157 Conn. 198, 207, 251 A.2d 178 (1968), cert. denied, 395 U.S. 928, 89 S. Ct. 1788, 23 L. Ed. 2d 246 (1969); State v. Dziob, 133 Conn. 167, 169, 48 A.2d 377 (1946); State v. Orlando, 115 Conn. 672, 677, 163 A. 256 (1932); State v. Sebastian, 81 Conn. 1, 5, 69 A. 1054 (1908); State v. Byrne, 47 Conn. 465, 466 (1880); State v. Kinney, 44 Conn. 153, 155-57 (1876); State v. De Wolf, 8 Conn. 93, 99 (1830). ‘Such testimony is admitted . . . when the complainant first has testified, in court, to the facts of the alleged occurrence, in order to corroborate her testimony. State v. Orlando, supra, [677]. She is then permitted to state that she made complaint to some other person. Thereupon, the person to whom she complained, out of court and in the absence of the defendant is permitted to testify . . . .’ State v. Segerberg, supra, 549. The corroborating statements are ‘received to shew [sic] constancy in the declarations of the witness.’ (Emphasis in original.) State v. De Wolf, supra, 100; see State v. Orlando, supra. ‘It is manifest that the rule of “constancy of accusation” applies only when the complainant has testified.’ State v. Segerberg, supra, 549.” State v. Brice, 186 Conn. 449, 453-54, 442 A.2d 906 (1982); see State v. Ouellette, 190 Conn. 84, 92-93, 459 A.2d 1005 (1983). As our previous opinions indicate, the reason for permitting such statements to come into evidence has been rationalized as follows: “ ‘ “If a female testifies that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her . . . friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it ... . [S]uch a course [of conduct] would be natural if the crime had been committed, but very unnatural if it had not been.” ’ (Citations omitted.)” State v. Ouellette, supra, 99, quoting State v. Segerberg, supra.

In this case, the victim never complained to anyone of being sexually assaulted and she did not so testify. It was therefore error to admit, in contravention of our decided cases, this testimony on the ground of constancy of accusation. Moreover, to do so in this case was reversible error, not only because of its admission, but also because such inadmissible evidence greatly strengthened her credibility which was critical. Despite evidence that others had seen the defendant with the victim in the bars referred to, she was the only person whose testimony suggested that the defendant was the one who sexually assaulted her. When she first testified in this case in 1982, she acknowledged that she had criminal charges pending against her for carrying a dangerous weapon and attempted larceny; she conceded that both of these charges had been nolled about two weeks after she had testified in the earlier proceeding.

I disagree with the majority’s view that this victim’s inability to describe the events that occurred during the interval of her unconsciousness and her concomitant inability “to articulate a formal accusation” would, if the defendant’s claim prevailed, “deprive the state of the right to present corroborative testimony.” The majority goes on to state: “Such a policy would confer a benefit on defendants who render their victims unconscious during sexual assaults, and this act would thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault.” I cannot accept this position of the majority. What testimony of the victim as to the outrage allegedly committed upon her by this defendant, which is the predicate of our constancy of accusation rule under our decisions, is there in this case? The majority points to none because there is none. Next, with reference to the “policy” that we would be announcing, it seems to me that the state has no right to submit any such evidence under this exception unless we are henceforth assuming that where such a victim cannot testify so as to lay the foundation for the constancy exception, such evidence will come in accordance with the revision of the constancy rule announced today. The charged crime of sexual assault in the first degree is a heinous, outrageous and degrading offense. But to justify upholding the conviction on this charge in this case against the defendant’s challenge to it on the constancy of accusation ground batters home the aphorism that hard cases made bad law. I fully understand that the constitution guarantees a fair trial and not a perfect trial. See United States v. Hasting, 461 U.S. 499, 508-509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). I agree with the defendant that insofar as the sexual assault charge is concerned, this guarantee did not occur.

Therefore, I dissent and would order a new trial only on the charge of sexual assault in the first degree.

Shea, J.,

dissenting in part. Although I agree with the remainder of the opinion, I disagree with the view of the majority expressed in the second portion of part IV of the opinion that the evidence in this case was sufficient to sustain the defendant’s conviction for both attempted murder and first degree sexual assault.

The failure of the defendant seasonably to raise his claim of insufficiency does not preclude review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because we have held that such a claim involves a fundamental constitutional right and, therefore, falls within the exception. State v. Maselli, 182 Conn. 66, 70, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981).

On the merits of the claim, I continue to adhere to the belief that a defendant who uses force upon a victim for the purpose of murdering her, as required for attempted murder, cannot concurrently intend to use such force in order to compel the victim to have sexual intercourse with him as required for first degree sexual assault. “A person who renders his victim unconscious and then has sexual intercourse with her in that condition commits sexual assault in the first degree, provided that he had such a purpose in mind at the time he was using force on the victim. He would have then compelled ‘another person to engage in sexual intercourse by the use of force against such other person’ in violation of General Statutes § 53a-70. If the use of force was with the intention of killing the victim, however, as required for a conviction of attempted murder under General Statutes §§ 53a-49 and 53a-54a, the actor could not simultaneously have harbored the purpose of having intercourse with a living victim, as is essential for first degree sexual assault. The concurrent intention he might have entertained could have been only to have sexual contact with a dead body, involving the crime of sexual assault in the fourth degree. General Statutes § 53a-73a (a) (3). In this case, therefore, the jury could not reasonably have found that the defendant, while he was using force, intended both to kill the victim and to have intercourse with her while she was alive, given the sequence that the sexual assault followed the attempt to murder, as the evidence unquestionably established.” State v. Rodgers, 198 Conn. 53, 67-68, 502 A.2d 360 (1985) (Shea, J., dissenting).

State v. Usry, 205 Conn. 298, 533 A.2d 212 (1987), upon which the majority opinion relies, is distinguishable because there the defendant was convicted of capital felony by virtue of “murder committed in the course of the commission of sexual assault in the first degree” in violation of General Statutes § 53a-54b (7), felony murder “when . . . he committed] . . . sexual assault in the first degree . . . and, in the course of and in furtherance of such crime or of flight therefrom, he . . . cause[d] the death of a person” in violation of General Statutes § 53a-54c, and murder “when, with intent to cause the death of another person, he cause[d] the death of such person” in violation of General Statutes § 53a-54a. With respect to the defendant’s claim in that case that the jury should have been instructed that, if the victim was dead before sexual intercourse occurred, the predicate offense of sexual assault in the first degree would not have been committed, this court held that the trial court properly refused such an instruction. I agree with that holding because “[a] person who renders his victim unconscious for dead] and then has sexual intercourse with her in that condition commits sexual assault in the first degree, provided that he had such a purpose in mind at the time he was using force on the victim. ” (Emphasis added.) State v. Rodgers, supra, 67. The request in Usry was properly refused, therefore, because it did not relate to the intention of the defendant in using force upon the victim but only to the sequence of the sexual assault and her death.

In the present case the evidence that the defendant choked the victim until she became unconscious with the intention of murdering her, as the jury found, is consistent only with an intention to have intercourse with her dead body, constituting the crime of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (3).

Accordingly, I dissent from the portion of the judgment convicting the defendant of sexual assault in the first degree.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . . .”

       General Statutes § 53a-49 (a) (2) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-54a provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person. . . .”

       “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973).

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       In State v. Williams, 204 Conn. 523, 544 n.7, 546, 529 A.2d 653 (1987), the assistant state’s attorney referred to the defendant in a child abuse case as a “savage,” “baby-beater,” “infant-thrasher,” and “drunken drug-user, convicted felon, child beater.” These quotations are only examples of the misconduct. Flagrant, severe misconduct in this vein occurred throughout the cross-examination and closing arguments in this case. Id., 541-44 n.7.
      In State v. Pelletier, 196 Conn. 32, 490 A.2d 515 (1985), a companion case to State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), the prosecutor’s summation included repeated references to one or both of the defendants as “despicable coward[s],” “murderous fiends,” “rats,” “utterly merciless killers,” and “inhumane, unfeeling and reprehensible creatures.” State v. Couture, supra, 561 and n.17.

       The following is a sampling of the challenged remarks, characterized by the defendant as: (1) the prosecutor’s expression of his personal opinion of the defendant’s guilt: “[the victim] and the facts point to the defendant’s guilt because he is guilty and for no other reason”; “The proof in this case and everyone in this case points to the defendant, the fact that the defendant is guilty for the sole reason that the defendant is, in fact, guilty”; “So, we know, from those facts, proven beyond a reasonable doubt, that the defendant is, in fact, guilty of sexual assault in the first degree . . . ”; “I think the evidence is overwhelming that the defendant is guilty of both of these counts”; (2) the prosecutor’s expression of his personal opinion of the victim’s truthfulness: “And, there was no coloring of the truth by [the victim]. You look at the photographs of her and you will see that there is no doubt and based on the doctor’s testimony, that she suffered a horrendous attack at the hands of this defendant”; (3) an appeal to the jury’s sympathy for the victim: “She was in a state of shock after going through what the defendant put her through. She wanted the security of her own house. She crawled into bed, were her own words exactly, the feeling that we all know after having a horrendous night. Fortunately, none of us have ever had a night like [the victim] because of this defendant. But, we all can sympathize with that kind of a feeling, after having a bad day or night, you do just want to be home, away from strangers, by yourself, you want to be in the security of your own bed. And, you hope, even though you know it’s not going to come true, that the injuries will go away, that the night was not real, it just didn’t happen. But, you know, [the victim] knows and everyone in this case confirmed that these acts did occur and that they were, in fact, perpetrated by this defendant, Bruce Rodgers.”

       The defendant was convicted not only of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) but also of the crime of attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a (a). He was sentenced to a term of ten to twenty years on each count to be served consecutively for an effective sentence of imprisonment of not less than twenty years and not more than forty years.


author: Glass, J.

text:
    Robert J. Ash v. Town of New Milford
    (13348)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.

      Argued April 6
    decision released May 31, 1988

      Ted D. Backer, for the appellant (defendant).

      D. Randall DiBella, for the appellee (plaintiff).
   Glass, J.

This is an appeal by the town of New Milford (town) from a decision of the compensation review division (review division) affirming an award of the workers’ compensation commissioner (commissioner) for the seventh district. The claimants are Regina Gallo Ash and Robert J. Ash, the widow and minor child, respectively, of the decedent, Robert M. Ash, who were awarded workers’ compensation benefits.

On the basis of stipulated facts, exhibits and testimony given, the commissioner made the following findings that are pertinent to this appeal: Robert M. Ash, the decedent, was employed by the town on May 25, 1984, as a regular member of its municipal police department, having been so employed since September 30, 1968. Prior to commencing his employment, the decedent had successfully passed a physical examination, which failed to reveal any evidence of hypertension or heart disease. On May 25,1984, the decedent suffered a ruptured abdominal aortic aneurysm which resulted in his death. The decedent and Regina Gallo Ash were married on April 5, 1981, and were married and living together on the date of the decedent’s death. The decedent had been married previously to Joanne Ash, whom he married on August 11,1966, and from whom he was divorced on July 11,1980. Robert J. Ash, claimant and issue of the decedent’s first marriage, was born on March 24, 1969.

The claimant widow sent written notice of a claim for benefits, pursuant to General Statutes § 7-433C, to the town and the commissioner on June 4, 1984, and June 6, 1984, respectively. On July 10, 1984, the town filed a “Notice to Compensation Commission and Employee of Intention to Contest Liability to Pay Compensation.” On July 17,1984, the claimant widow filed a motion to preclude the town from contesting her right to receive benefits. She claimed that she was the presumptive dependent spouse of the decedent and was entitled to benefits pursuant to § 7-433c, and that the town was precluded from contesting liability or the extent of disability by virtue of General Statutes § 31-297 (b).

Written notice of a claim for dependency benefits in accordance with General Statutes §§ 7-433c and 31-306 (a), was given by the minor son on July 18, 1984. Pursuant to § 31-297 (b), “A Notice of Intention to Contest Liability to Pay Compensation” was sent by the town on July 24,1984, and received by the commissioner on July 25, 1984. The basis for the contest was that the decedent’s cause of death was not within the scope of § 7-433c because the decedent had died as a result of a ruptured abdominal aortic aneurysm, and not from “heart disease or hypertension” as required by the statute.

The commissioner found that the notice to contest the minor son’s claim was timely filed, but that the notice to contest the widow’s claim was not filed in a timely manner. The commissioner determined that in accordance with § 31-297 (b) the town was conclusively presumed to have accepted the compensability of her claim, and thereafter had no right to contest the presumptive widow’s claim to receive compensation as a result of her husband’s death. The commissioner also found that the preclusion available to the widow established the compensability of her claim as a dependent pursuant to § 31-306 (a) (1). Further, the commissioner found that when a claim is determined to be compensable, all eligible claimants may receive benefits based upon such compensability. On the basis of these findings, the commissioner awarded compensation benefits to the widow and minor son of the decedent.

The town appealed to the review division, claiming that the commissioner erred in: (1) precluding the town from contesting compensability as to the decedent’s minor son since he never moved to preclude the town from contesting his claim; and (2) failing to find that the decedent did not suffer a condition or impairment of health caused by heart disease or hypertension resulting in his death. The review division affirmed the finding and award of the commissioner and dismissed the appeal. Thereafter, the town appealed to the Appellate Court and, pursuant to Practice Book § 4023, the appeal was transferred to this court. On appeal, the town claims that the review division erred in holding that the granting of a motion to preclude an employer from contesting compensability of a claim as against one claimant barred an employer from contesting the compensability of a claim made by any other person arising from the same injury, where the employer filed a timely notice to contest the claim. We find no error.

The essence of the town’s claim is that because the town filed a timely notice to contest the decedent’s son’s claim, the commissioner and the review division erred in holding that the town was barred from contesting the decedent’s son’s claim simply because it was precluded from contesting the widow’s claim. The town argues that the son never filed a motion to preclude the town from contesting his claim, and that because the town’s notice to contest compensability of the son’s claim was timely filed, it was error for the commissioner to ignore the notice given by the town and to rely on a motion to preclude granted in another case on behalf of a different claimant. In support of this argument the town relies on General Statutes § 31-294 which provides in pertinent part: “[A] dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation .... Such notice may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom . . . and the name and address of the employee and of the person in whose interest compensation is claimed.” (Emphasis added.) The town contends that because the decedent’s widow filed a claim in her own behalf, under the statute her claim could not be used to claim compensation in the interest of any other person.

The validity of this argument depends upon the scope of General Statutes § 31-297 (b). Under § 31-297 (b), the commissioner determined and the review division agreed that unless an employer timely files a notice to contest a workers’ compensation claim, there is an irrebuttable presumption that the claim is compensable. Specifically, § 31-297 (b) provides in pertinent part: “If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” (Emphasis added.) Thus, under § 31-297 (b) the employer’s failure to provide a timely notice contesting liability triggers the conclusive presumption of acceptance of compensability for the employee’s injury or death. General Statutes § 31-306 sets forth the various persons “conclusively presumed to be wholly dependent” upon the employee. We do not find any language in § 31-297 (b) indicating that the injury or death of the employee must be determined separately or independently by each “conclusively presumed” dependent designated in § 31-306.

We recently interpreted § 31-297 (b) in Castro v. Viera, 207 Conn. 420, 430-31, 541 A.2d 1216 (1988), where, quoting Menzies v. Fisher, 165 Conn. 338, 343, 334 A.2d 452 (1973), we stated: “ ‘The object which the legislature sought to accomplish [was] plain. . . . [It] was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claims. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested.’ ” We have also stated that “[w]e are mindful of the principles underlying Connecticut practice in workmen’s compensation cases: that the legislation is remedial in nature; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375, 94 A. 372 (1915); and that it should be broadly construed to accomplish its humanitarian purpose. DeCarli v. Manchester Public Warehouse Co., 107 Conn. 359, 364, 140 A. 637 (1928).” Adzima v. UAC/Norden Divi sion, 177 Conn. 107, 117, 411 A.2d 924 (1979). To require each conclusively presumed dependent to prove separately that the injury or death of the employee was compensable would frustrate the legislative objective of § 31-297 (b).

The presumptive dependents’ claims emanate from the death of the decedent employee. The decedent’s cause of death giving rise to the presumptive dependent widow’s claim is the same cause of death that the defendant employer seeks to contest, and from which the presumptive dependent son’s claim is derived. It would be irrational and incongruous to hold that a contest of the presumptive dependent widow’s claim is barred because of preclusion and at the same time, another presumptive dependent’s claim, the son’s, derived from the same death, is open for contest. The commissioner’s decision, affirmed by the review division, properly determined that the preclusion that applied to bar the contestability of the decedent’s presumptive dependent widow’s claim also applied equally to bar the contestability of the decedent’s presumptive dependent son’s claim.

Our disposition of the preclusion issue renders it unnecessary to consider the town’s claim that the decedent’s cause of death was not within the purview of General Statutes § 7-433c, the Heart and Hypertension Act. Moreover, neither the commissioner nor the review division addressed the issues relating to the cause of death in the finding and award. “[0]nce the commissioner found statutory preclusion of any defense to compensability, ‘he was no longer permitted to make any factual exploration or finding concerning such a potential question.’ [The employer’s] threshold failure to contest liability foreclosed any further inquiry [not involving jurisdiction of the Workers’ Compensation Act].” Bush v. Quality Bakers of America, 2 Conn. App. 363, 373-74, 479 A.2d 820, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984); see Castro v. Viera, supra.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 7-433c. benefits for policemen or firemen DISABLED OR DEAD AS A RESULT OF HYPERTENSION OR HEART DISEASE. In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       General Statutes § 31-297 (b) provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.”

       General Statutes § 31-306 (a) provides: “death RESULTING FROM accident OR OCCUPATIONAL DISEASE. DEPENDENTS. COMPENSATION, (a) The following-described persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee and are referred to hereinafter as presumptive dependents: (1) A wife upon a husband with whom she lives at the time of his injury or from whom she receives support regularly; (2) a husband upon a wife with whom he lives at the time of her injury or from whom he receives support regularly; (3) any child under the age of eighteen years, or over said age but physically or mentally incapacitated from earning, upon the parent with whom he is living or from whom he is receiving support regularly, at the time of the injury of such parent; (4) any unmarried child who has attained the age of eighteen but has not attained the age of twenty-two and who is a full-time student, upon the parent with whom he is living or from whom he is receiving support regularly, provided that any such child who has attained the age of twenty-two while a full-time student but has not completed the requirements for, or received, a degree from a postsecondary educational institution shall be deemed not to have attained such age until the first day of the first month following the end of the quarter or semester in which he is enrolled at such time, or if he is not enrolled in a quarter or semester system, until the first day of the first month following the completion of the course in which he is enrolled or until the first day of the third month beginning after such time, whichever occurs first. In all other cases where there is no presumptive dependent, questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury. Such other dependents are referred to hereinafter as dependents in fact.”

       As noted earlier, Regina Gallo Ash, the widow of Robert M. Ash, filed a workers’ compensation claim. The appeal in that related case, Regina Ash v. New Milford, Docket No. 13347, has been withdrawn, leaving the commissioner’s preclusion determination in her favor and the compensability of her claim and award standing.


text:
    Stephen M. Donis v. Connecticut Board of Examiners in Podiatry
    (13346)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued April 14
    decision released June 7, 1988

      William J. Tracy, Jr., with whom, on the brief, was Timothy W. Furey, for the appellant (plaintiff).

      William J. McCullough, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Richard J. Lynch and Susan Brooks Flanders, assistant attorneys general, for the appellee (defendant).
   Hull, J.

The sole issue in this case is whether the department of health services (department) was a party of record to the administrative proceeding which is the subject of this appeal, so that the plaintiffs failure to cite and serve the department, as required by General Statutes § 4-183 (b) of the Uniform Administrative Procedure Act (UAPA), rendered his appeal to the Superior Court jurisdictionally defective. We agree with the court that the department was a party of record to the administrative proceeding involved and find no error in the trial court’s dismissal of the plaintiff’s appeal for lack of jurisdiction.

On September 7,1984, the department presented the Connecticut board of examiners in podiatry (board), established under General Statutes § 20-51, with a statement of charges against the plaintiff, Stephen M. Donis, a podiatrist, seeking disciplinary action against him for actions constituting a violation of General Statutes § 20-59. A hearing on the charges was conducted by the board as a contested case pursuant to General Statutes §§ 4-166 through 4-189. The department was represented by a department attorney, and Donis was represented by counsel. On June 24, 1985, the board issued its memorandum of decision and order dismissing four of the seven counts the department had brought against Donis. The board, however, found that Donis had violated § 20-59 (4), as charged, assessed civil penalties of $2000 and suspended his license to practice podiatry for ninety days.

On July 12,1985, the plaintiff appealed to the Superior Court from the board’s decision, summoning only the board, and not the department, to court. The board moved to dismiss the action on the ground of lack of jurisdiction because the plaintiff had failed to summon and serve the department, a party of record, to appear before the court. The trial court concluded that the department was a party of record because it had prosecuted the case against the plaintiff and that the failure to cite and serve the department as such a party rendered the action jurisdictionally defective and subject to dismissal.

The plaintiff appealed to the Appellate Court, claiming that the trial court erred in concluding that the department was a party of record. This court transferred the appeal to itself, pursuant to Practice Book § 4023.

We must first describe the administrative matrix of this case and the relationship between the department and the board. The department is a supervisory umbrella agency. The commissioner of health services is charged by General Statutes § 19a-5 with administering the health law and the public health code. He is also given the responsibility for the overall operation and administration of the department. Pursuant to General Statutes § 19a-14 (a) (8), (10) and (11), the department processes complaints against persons licensed by it. These powers apply to the board of examiners in podiatry; General Statutes § 19a-14 (b) (14); and fifteen other boards. “ ‘Complaint’ means a formal statement of charges issued by the department of health services.” General Statutes § 19a-13 (6). Concerning nine professions licensed or regulated by the department for which no board exists, the department has the same broad overall administrative functions and responsibilities as it does concerning the professional boards and commissions listed in § 19a-14 (b). Section 19a-14 (c) states that “[n]o board shall exist for the following professions which are licensed or otherwise regulated by the department of health services,” listing a potpourri of callings totally under the wing of the department. Subsection (c) goes on to state that “[t]he department shall assume all powers and duties normally vested with a board in administering regulatory jurisdiction over said professions. The uniform provisions of this chapter and chapters 368v, 369 to 381, inclusive, 383 to 388, inclusive, 393a, 395, 398 and 399, including but not limited to standards for entry and renewal; grounds for professional discipline; receiving and processing complaints; and disciplinary sanctions shall apply, except as otherwise provided by law, to the professions listed in this subsection.” Finally, General Statutes § 19a-17 provides that each board or commission established by statute, upon “finding the existence of good cause,” may impose a civil penalty up to $1000 and suspend a practitioner’s license.

This statutory framework reveals a two-tier system concerning the administration and discipline of those licensed by the department: (1) independent professional boards or commissions listed in § 19a-14 (b) consisting primarily of health care professionals, plus opticians, barbers, embalmers and funeral directors, and hypertrichologists; and (2) the nine boardless professions listed in § 19a-14 (c).

This distinction, which illuminates this case, was articulated in Board of Education v. Department of Education, 198 Conn. 445, 503 A.2d 1147 (1986). Board of Education involved two appeals taken under the UAPA from decisions of hearing boards appointed, pursuant to General Statutes § 10-76h (c), by the state department of education. We concluded that it was not necessary in an appeal under General Statutes § 4-183 (b) that the hearing board be named and served as a defendant, holding that such a hearing board is not an agency for purposes of such an appeal. Each case was heard by a different hearing officer who constituted the hearing board. Id., 448. We found that such a hearing officer was not a “state board” or state “officer” under the definition of an “agency” in General Statutes § 4-166 (1). We noted that the hearing board’s existence and function were limited to hearing and deciding a particular contested case; id., 452; and did not gain status independent of the department which established it. The board was truly “ad hoc.” Id., 453. “Once the board has made its determination, its existence, for all intents and purposes, is over, its raison d’etre is satisfied, and it is for the department to undertake any further action to enforce its ruling.” Id., 453-54. In Catholic Family & Community Services v. Commission on Human Rights & Opportunities, 3 Conn. App. 464, 489 A.2d 408 (1985), the Appellate Court reached a similar conclusion in considering whether the hearing officer appointed by the defendant commission should have been served in an administrative appeal to the trial court. That court concluded that the hearing officer did not “gain status independent of the commission.” Id., 467.

In contrast to the hearing officers involved in the two cases described above, the board of examiners in podiatry is a separate agency created by General Statutes § 20-51. It has specific regulatory and policy making authority. General Statutes § 20-51 et seq. It is charged with the responsibility of regulating the practice of podiatry. General Statutes §§ 19a-10, 19a-ll. It may apply directly to the Superior Court for enforcement of its orders. General Statutes § 19a-ll. It may take direct action against a podiatrist and is authorized to impose sanctions set out in General Statutes § 19a-ll, as the sole disciplinary authority in this field.

The plaintiff deduces from these broad independent powers of the board that the department lacks regulatory authority over podiatrists and is given only investigatory and administrative authority. The plaintiff points out that this “limited authority” contrasts sharply with the authority given the department over professions not regulated by a board or commission by General Statutes § 19a-14 (c). Thus, he argues, “[t]he department acts on behalf of the board.” The defendant, to the contrary, claims that the department acted as a prosecutor while the board’s role was adjudicatory. We agree with the defendant.

At the administrative hearing in this case, the department presented evidence and cross-examined the plaintiff and the one witness he called. The department’s attorney did not move to have the department admitted as a party. Nor did the board specifically designate the department as a party in this case.

General Statutes § 4-166 (5) provides: “ ‘Party’ means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.” The pertinent regulations provide as follows: (1) Regulations of Connecticut State Agencies, § 19-2a-36 (a): “Designation as party. The presiding officer shall admit as a party any applicant, petitioner, licensee or respondent in the contested case. In addition, the presiding officer shall consider all petitions filed in accordance with subsections (b) and (c) below and shall admit as a party any other person whose participation as a party is necessary to the proper disposition of such case and who will be substantially and specifically affected by the proceeding;” (2) Regulations of Connecticut State Agencies, § 19-2a-36 (b): “Filing of petition. Any person that proposes to be admitted as a party to any proceeding shall file a written petition to be so designated not later than five (5) days before the date of the hearing of the proceeding as a contested case;” and (3) Regulations of Connecticut State Agencies, § 19-2a-38 (c): “Each person, or their duly authorized representative, authorized to participate in a contested case as a party or as an intervenor shall file a written notice of appearance with the presiding officer.”

Under § 19-2a-36 (a), the presiding officer shall admit as a party any applicant, petitioner, licensee or respondent in the contested case. Therefore, in this case, the department, as petitioner, and the respondent (the plaintiff Donis) were automatically “admitted” as parties. By contrast, the second sentence of subsection (a) concerns the consideration of all petitions filed in accordance with subsections (b) and (c) of the regulation. Thus, the filing of a petition under subsection (b) and the filing of a written notice of appearance under subsection (c) concern only non-automatic parties as described in subsection (a). This is consonant with the definition of a party in § 4-166 (5). Neither the department nor Donis was required to seek permission to be a party of record in this case or to file a notice of appearance. Both became parties of record by operation of the statute and regulations in this case.

The plaintiff relies principally on the case of Nanavati v. Department of Health Services, 6 Conn. App. 473, 506 A.2d 152 (1986). In that case the plaintiff appealed to the Superior Court under General Statutes § 4-183 from a decision of the board of veterinary registration and examination. The board moved to dismiss the appeal on the ground that the appeal named the department of health services as defendant, rather than the board, which was the agency whose decision was being appealed. Id., 473. The Appellate Court upheld the trial court’s judgment dismissing the appeal for lack of subject matter jurisdiction. Id., 474. It concluded that the board is an agency within the meaning of the UAPA and its appeal provisions. Id. The Nanavati court further stated: “[I]t is the board that has the power to discipline the veterinary profession. The board’s actions, therefore, are reviewable under the UAPA but the appeal must cite it, and not its supervisory umbrella department.

“The board being an agency within the meaning of General Statutes § 4-166 (1), separate from the department of health services, held the disciplinary hearings involved in this case. Because the board was the sole agency that took the action by which the plaintiff claims to be aggrieved, it and not the department of health services, was the proper party defendant.” Id., 475.

We agree with Nanavati that the board in this case is the “agency” upon which the appeal must be served under § 4-183. The board of examiners in podiatry is an independent agency, separate from the department of health services. The department acted as the prosecutor in this case under the statutory scheme described above. The board conducted the disciplinary proceedings in this case and issued the orders from which the plaintiff has appealed. It was necessary for the plaintiff to cite and serve that agency, as he did, in order for the trial court to have subject matter jurisdiction of this case.

We do not agree, however, with the plaintiff’s claim that Nanavati stands for the proposition that the board is the only proper defendant. The issue in Nanavati was whether the board of veterinary registration and examination or the department was the proper defendant as the agency rendering the disputed decision. That case did not involve the question in this case of whether the department, not required to be served as the agency, was nevertheless required to be served as a party of record. .

We conclude, in this appeal, that both the adjudicatory agency, the board, and the prosecutory body, the department, as a party of record, were required to be cited and served as defendants. “We have held that ‘[a] statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.’ Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979). ‘The appeal provisions of the statute are jurisdictional in nature, and, if not complied with, render the appeal petition subject to dismissal.’ Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985); Minichino v. Freedom of Information Commission, 6 Conn. App. 148, 149, 503 A.2d 1189 (1986); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 419, 488 A.2d 1286 (1985).” Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 326-27, 533 A.2d 852 (1987).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 4-183 (b) provides: “Proceedings for such appeal [from a decision of an agency] shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”
      General Statutes § 4-166 provides: “ ‘Agency’ means each state board, commission, department or officer, other than the legislature, courts, judicial review council, council on probate judicial conduct, governor, lieutenant governor, attorney general or town or regional boards of education, authorized by law to make regulations or to determine contested cases.”

       General Statutes § 19a-14 (8), (10) and (11) provide: “(8) Develop and perform all administrative functions necessary to process complaints against persons licensed by the department. . . .
      “(10) Conduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters. . . .
      “(11) Conduct any necessary investigation and follow-up in connection with complaints regarding persons subject to regulation or licensing by the department.”

       See Hillcroft Partners v. Commission on Human Rights & Opportunities, 205 Conn. 324, 533 A.2d 852 (1987). There, we upheld the dismissal of an appeal from the commission on human rights and opportunities (CHRO) where the complainant, who had instituted the CHRO proceedings against the plaintiff, was not cited and served as a defendant in the appeal. We concluded that the CHRO named the complainant as a party of record by “designating” her in various documents in the record. “We conclude, however, that the record sufficiently establishes that the complainant was ‘named’ as a party during the CHRO proceeding and thus became a party of record under the first alternative of the definition contained in [General Statutes] § 4-166 (5). The first letters sent by the CHRO to each plaintiff bore references to docket numbers of proceedings entitled ‘Margaret M. Schifini v. Hillcroft Partners’ and ‘Margaret M. Schifini v. Schlesinger Management Corp.’ Copies of the sworn complaints enclosed with the letters bore a caption as follows: ‘Commission on Human Rights and Opportunities on the Complaint of Margaret M. Schifini, Complainant vs. (each plaintiff) Respondent.’ A letter of the plaintiffs responding to the complaints as well as the affidavits submitted therewith had the reference or caption ‘Margaret M. Schifini vs. (each plaintiff).’ The notice of public hearing referred to the complaints by the same title. The brief filed with the hearing officer by the attorney general, as well as that of the plaintiffs, bore the caption, ‘C.H.R.O. ex rel. Margaret Schifini, Complainant v. Hillcroft Partners and Schlesinger Management Corp., Respondents.’ The same caption appears on the final decision issued by the CHRO. The record of the proceeding, therefore, indicates that the complainant was named in the pleadings and other documents filed either as the sole party pursuing the claim against the plaintiffs or as a relator at whose behest the CHRO had instituted the proceedings.” Id., 328-29.

        Hillcroft Partners represents an unusual factual pattern not present in this case.

       We note that the legislature has addressed this issue with the enactment of Public Acts 1988, No. 88-317. The act requires that an agency state in its final decision the name and most recent mailing address of each party or his authorized representative. Public Acts 1988, No. 88-317, § 17 (c), amending General Statutes § 4-180. It further provides that the person appealing need serve only those parties named in the decision. Public Acts 1988, No. 88-317, § 23 (c), amending General Statutes § 4-183. These changes will not be effective, however, until July 1, 1989. In view of our decision in this case, presiding officers in administrative appeals may consider applying Public Acts 1988, No. 88-317, § 17 (c), immediately.