author: Callahan, J.

text:
    American Totalisator Company, Inc. v. Orest T. Dubno, Commissioner of Revenue Services DTP Royalty, Inc. v. John G. Groppo, Commissioner of Revenue Services GTECH Corporation v. John G. Groppo, Commissioner of Revenue Services
    (13408)
    (13410)
    (13411)
    (13412)
    Peteks, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued December 16, 1988
    decision released March 14, 1989

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Antoinette M. Tease, legal intern, for the defendant, commissioner of revenue services.

      Scott P. Moser, with whom, on the brief, were James Sicilian and H. Douglas Bailey, for the plaintiff American Totalisator Company, Inc.

      George C. Hastings, with whom was Richard W. Torneo, for the plaintiffs DTP Royalty, Inc., and GTECH Corporation.
   Callahan, J.

These consolidated appeals and cross appeals were brought to this court from judgments rendered in the Superior Court on appeals brought by the plaintiffs pursuant to General Statutes § 12-422 from deficiency assessments of use taxes, penalties and interest by the defendant commissioner of revenue services (commissioner). The trial court upheld the commissioner’s assessment of taxes as to all the plaintiffs but determined that they were not liable for penalties and interest. We find no error.

The essential facts are not in dispute. The plaintiffs American Totalisator Company, Inc. (AmTote), DTP Royalty, Inc. (DTP), and GTECH Corporation (GTECH), at various times contracted with the state of Connecticut acting through the division of special revenue (state) to provide personal property, training, personnel and services to establish systems to enable the state to conduct its lottery, teletrack and off-track betting enterprises. In order to accomplish that purpose the plaintiffs, during the years for which deficiencies were assessed, purchased or leased computers, computer components, computer terminals, paper stock and other tangible items on which they paid no sales tax. Subsequent to conducting audits, the defendant commissioner assessed use tax deficiencies, penalties and interest against all the plaintiffs, reasoning the various items purchased were not acquired for resale but were retail purchases of equipment and material used by the plaintiffs to discharge their contractual obligations with the state. The plaintiffs disagreed with the commissioner’s assessments and argued that their purchases were not retail sales as defined by General Statutes § 12-407 (3). They claimed instead that the personal property involved had been purchased for resale and consequently was not subject to the imposition of a use tax under General Statutes § 12-411.

I

A conclusion as to whether the personal property in question was acquired by the plaintiffs for their own use in fulfilling their agreements with the state and therefore subject to a use tax or was purchased for resale to the state and consequently not subject to the imposition of a use tax requires a determination of the true object of the contracts between the parties. Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 609-10, 410 A.2d 457 (1979); United Aircraft Corporation v. Connelly, 145 Conn. 176, 184-85, 140 A.2d 486 (1958); United Aircraft Corporation v. O’Connor, 141 Conn. 530, 537-38, 107 A.2d 398 (1954); White v. Storer Cable Communications, Inc., 507 So. 2d 964, 968 (Ala. Civ. App. 1987); Culligan Water Conditioning, Etc. v. State Board of Equalization, 17 Cal. 3d 86, 96, 550 P.2d 593, 130 Cal. Rptr. 321 (1976). “The court must look to the intention of the parties to the contract to determine whether the items in a contract are held for resale or were purchased for a different purpose.” White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 422, 503 A.2d 582 (1986). “That intention is to be ascertained from the language used, interpreted in the light of the situation of the parties and the circumstances surrounding them.” United Aircraft Corporation v. O’Connor, supra, 538.

A careful reading of the contracts in question leads to the inescapable conclusion that the intention of the parties in contracting and the true object of each of the contracts was the furnishing by the plaintiffs, and the retention by the state, of the plaintiffs’ expertise and services to establish, implement and operate the various systems of wagering desired by the state. Nowhere in any of the contracts are the words “lease” or “rental” mentioned in relation to personal property and nowhere, other than in certain clauses giving the state the option to purchase various items at set periods, are the words “sale,” “sell,” or “purchase” mentioned in regard to personal property. Further, other than in the option clauses, nowhere in any of the contracts is there a price or rental figure established for the purchase or lease of any particular piece of equipment or any commodity. Rather, the contracts stipulate that the plaintiffs are to be compensated by the payment of a fee based on a percentage of the revenues generated by the particular system of wagering with which they are affiliated. See U-Need-A-Roll-Off Corporation v. New York State Tax Commission, 67 N.Y.2d 690, 691, 490 N.E.2d 840, 499 N.Y.S.2d 921 (1986); Greene & Kellogg, Inc. v. Chu, 134 App. Div. 2d 755, 756, 521 N.Y.S.2d 571 (1987).

As might be expected, the involvement of the state in gaming required that it maintain significant control over its operation. The extent of that control is reflected in the contractual provisions for such things as mandated licensing requirements, placement of terminals, and security procedures. The presence of state control, however, does not convert contracts for the establishment and operation of wagering systems into contracts for the sale or lease of the personal property used in operating those systems. White Oak Corporation v. Department of Revenue Services, supra, 423. Nor does the fact that agents or licensees of the state, after training by the plaintiffs, dispensed tickets and collected money alter our view that the true object of the contracts and the primary purpose of the personal property employed was to implement the systems the plaintiffs had contracted to provide, not to effect a resale.

In short, we believe that the language of the agreements between the state and the plaintiffs compel a determination that the computers, computer terminals, computer components, paper stock and other personal property that the plaintiffs claim were purchased or leased for resale, although not inconsequential in utility or cost, were incidental to the primary purpose of the contracts which was to provide the state with wagering systems. White Oak Corporation v. Department of Revenue Services, supra, 422; see Black’s Law Dictionary (5th Ed.) p. 686. It is the primary purpose for which the personal property was purchased and put to use that controls the determination of the property’s taxability. Dresser Industries, Inc. v. Lindley, 12 Ohio St. 3d 68, 69, 465 N.E.2d 430 (1984); Fliteways, Inc. v. Lindley, 65 Ohio St. 2d 21, 25, 417 N.E.2d 1371 (1981). Where, as here, the primary function and purpose of the taxpayers was to provide wagering systems and the ownership, use and maintenance of certain personal property and equipment were necessary to enable them to furnish those systems, those taxpayers, not the state, were the ultimate users or consumers of that property and equipment within the meaning of the sales and use tax statutes. White Oak Corporation v. Department of Revenue Services, supra, 423; Boise Bowling Center v. State, 93 Idaho 367, 369-70, 461 P.2d 262 (1969); Appeal of AT&T Technologies, Inc., 242 Kan. 554, 561-62, 749 P.2d 1033 (1988); Southwestern Bell Telephone Co. v. State Commission, 168 Kan. 227, 232, 212 P.2d 363 (1949); Nashville Mobilephone Co. v. Woods, 655 S.W.2d 934, 937 (Tenn. 1983).

We conclude, therefore, that the plaintiffs did not purchase or lease to resell to the state the personal property for which a use tax was assessed. Rather, the property was purchased or leased for use in delivering to the state the gaming systems the plaintiffs had contracted to provide. The plaintiffs’ lease or purchase of the property in question therefore was subject in each case to a use tax deficiency as determined by the commissioner and affirmed by the Superior Court. There is no error as to the use tax assessments against the plaintiffs.

II

The trial court determined, however, that “each of the plaintiffs had a firm and reasonably held belief in the correctness of its legal position and that none of them brought suit for delay.” The trial court, therefore, rendered judgment that the defendant commissioner collect the use tax assessments against the plaintiffs without penalty or interest. The commissioner appeals that determination of the trial court.

The defendant commissioner does not contend that the trial court lacked authority to forgo penalties against the plaintiffs. He does contend, however, that the trial court lacked authority to relieve the taxpayers of their obligations to pay the statutory interest due on their assessments. The commissioner’s position is that the imposition of interest on delinquent taxes is not punitive but compensatory in nature, and that the trial court had no authority to waive it. We disagree.

General Statutes § 12-422 provides in pertinent part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418,12-421 or 12-425 may . . . take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain.... Said court may grant such relief as may be equitable . ” (Emphasis added.) That broad statutory grant of equitable powers has been interpreted by this court to authorize the Superior Court to set aside an assessment of interest. “We agree with the plaintiff that it was within the trial court’s province to consider whether to set aside the interest imposed as part of its review of the deficiency assessment; see Duval v. Brown, [31 Conn. Sup. 373, 377, 333 A.2d 63 (1974)]; Bowne v. Brown, [30 Conn. Sup. 309, 316, 313 A.2d 426 (1973)]; but we also consider the resolution of that issue to be within the court’s sound discretion.” H. B. Sanson, Inc. v. Tax Commissioner, 187 Conn. 581, 587-88, 447 A.2d 12 (1982); New England Yacht Sales, Inc. v. Commissioner, 198 Conn. 624, 637, 504 A.2d 506 (1986). “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” Allen v. Nissley, 184 Conn. 539, 546, 440 A.2d 231 (1981). The defendant in this instance has not persuaded us that the trial court’s exercise of its discretion was clearly erroneous. H. B. Sanson, Inc. w. Tax Commissioner, supra, 588.

The defendant also argues that an interpretation of § 12-422 that would allow a court to waive the commissioner’s assessment of interest would be unconstitutional because it would constitute a delegation of the commissioner’s administrative function to the judiciary. We find the defendant’s reasoning in this regard difficult to follow, and we also find inapposite the case of Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49 (1968), on which it primarily relies.

Article XX of the amendments to the Connecticut constitution expressly provides that the jurisdiction of the courts shall be defined by law. In effectuating that constitutional mandate, the legislature has promulgated General Statutes § 52-1, which expressly gives the Superior Court the power to “administer legal and equitable rights and apply legal and equitable remedies.” That general grant of equitable powers has been further enhanced and defined by § 12-422, the statute pursuant to which these appeals were taken, which provides that the court “may grant such relief as may be equitable.” The statute does not exclude assessments of interest from its equitable ambit. Since under § 12-422, the trial court was exercising de novo jurisdiction over the taxpayers’ appeals and was not bound by the commissioner’s previous rulings; Kimberly-Clark Corporation v. Dubno, 204 Conn. 137, 143-45, 527 A.2d 679 (1987); its determination did no more than carry out its constitutional and statutory mandates by affording equitable relief where that court deemed it appropriate.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 12-422. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       See General Statutes § 12-415.

       The plaintiffs, DTP Royalty, Inc., and GTECH Corporation, also claimed refunds of sales taxes imposed on rental payments they had made to lease equipment used in pursuance of their contracts with the state. The commissioner, in assessing additional taxes, denied both requests.

       AmTote originally contracted with the state as to teletrack and off-track betting in 1973 and as to the daily lottery in 1977. DTP Royalty, Inc., took over the lottery from AmTote in 1980. GTECH (formerly Gaming Systems Corporation) succeeded DTP by virtue of an assignment from DTP in 1981 and subsequently by an agreement with the state in 1983. Because we believe that all the contracts have the same legal effect and lead to the same result as far as the issue in dispute is concerned, it is not necessary to treat each plaintiff or contract separately.

       The leasing or rental of tangible personal property is a “sale” under General Statutes § 12-407 (2) (j).

       General Statutes § 12-407 (3) provides in pertinent part: “definitions. Whenever used in this chapter ... (3) ‘Retail sale’ or ‘sale at retail’ means and includes a sale for any purpose other than resale in the regular course of business of tangible personal property or a transfer for a consideration of the occupancy of any room or rooms in a hotel or lodging house for a period of thirty consecutive calendar days or less, or the rendering of any service described in any of the subdivisions of subsection (2) of this section. The delivery in this state of tangible personal property by an owner or former owner thereof or by a factor, if the delivery is to a consumer pursuant to a retail sale made by a retailer not engaged in business in this state, is a retail sale in this state by the person making the delivery. He shall include the retail selling price of the property in his gross receipts.”

       “[General Statutes] Sec. 12-411. the use tax. (1) imposition and rate. An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state or the acceptance or receipt of any services constituting a sale in accorance with subdivision (i) of subsection (2) of section 12-407, at the rate of seven and one-half per cent of the sales price of the property or the consideration paid for any such services.
      “(2) liability FOR tax. Every person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer is liable for the tax. His liability is not extinguished until the tax has been paid to this state, except that a receipt from a retailer engaged in business in this state or from a retailer who is authorized by the commissioner, under such regulations as he may prescribe, to collect the tax and who is, for the purposes of this chapter relating to the use tax, regarded as a retailer engaged in business in this state, given to the purchaser pursuant to subsection (3) of this section is sufficient to relieve the purchaser from further liability for the tax to which the receipt refers.
      “(3) collection by retailer. Every retailer engaged in business in this state and making sales of services or of tangible personal property for storage, acceptance, consumption or any other use in this state, not exempted under this chapter, shall, at the time of making a sale or, if the storage, acceptance, consumption or other use is not then taxable hereunder, at the time the storage, acceptance, consumption or use becomes taxable, collect the use tax from the purchaser and give to the purchaser a receipt therefor in the manner and form prescribed by the commissioner. For the purpose of uniformity of tax collection by the retailer the tax brackets set forth in subsection (3) of section 12-408 pertaining to the sales tax shall be employed in the computation of the tax imposed by this section. . . .
      “(9) presumption of purchase for use; resale certificate. For the purpose of the proper administration of this chapter and to prevent evasion of the use tax and the duty to collect the use tax, it shall be presumed that services or tangible personal property sold by any person for delivery in this state is sold for storage, acceptance, consumption or other use in this state until the contrary is established. The burden of proving the contrary is upon the person who makes the sale unless he takes from the purchaser a certificate to the effect that the property is purchased for resale. . . .
      . “(13) presumption of purchase from retailer. It shall be presumed that tangible personal property shipped or brought to this state by the purchaser was purchased from a retailer for storage, use or other consumption in this state.”

       If, as the plaintiffs claim, the items in question were resold to the state, an exempt entity under General Statutes § 12-412 (1), such sales would not be subject to the imposition of a sales tax.

       The various contracts are replete with phraseology that leads to this conclusion. To repeat it all in this opinion is impossible but representative clauses from each contract are cited as examples.
      (1) From AmTote’s contract with the state concerning off-track betting and teletrack:
      (a) “WHEREAS, the Company and the State desire to provide for mutually acceptable terms and conditions concerning the establishment and operation of such a system of off-track betting, as hereinafter set forth”;
      (b) “Section 4.3. As and for a continuing fee for the establishment and opening of the System and the operation thereof, all to the extent provided by this Agreement, the Company shall, in addition to the revenues provided in Section 4.1, be entitled to receive a percentage of the aggregate Handle during each Operating Year which percentage shall be calculated as follows: The percentage shall be 7.5% at an annual aggregate Handle level of $50 million and shall be reduced by .034% for each full $1 million by which such annual aggregate Handle exceeds that level but does not exceed $100 million, and shall be further reduced by .019% for each full $1 million by which such annual aggregate Handle exceeds $100 million but does not exceed $300 million.”
      (2) From AmTote’s contract with the state concerning the daily lottery:
      (a) “WHEREAS, the Company and the State desire to provide for mutually acceptable terms and conditions concerning the establishment and operation of such a Daily Lottery, as hereinafter set forth”;
      (b) “Section 3.03. (a) In consideration of the services to be performed hereunder, the State shall pay the Company a weekly fee which shall be a percentage of the Gross Dollar Volume for such week, which percentage shall be determined as follows”;
      (3) From DTP’s (formerly Datatrol) contract with the state concerning the lottery games:
      (a) “3.01 Datatrol shall provide, implement, operate, maintain and otherwise deliver the System for the Term and/or any Renewal Term of this Agreement, and shall do all things necessary to effectuate the terms of this Agreement as hereinafter provided.”
      (b) “3.09 Datatrol shall assume full responsibility to the Division for all financial transactions and for the operation of the System including, but not limited to, validations, cancellations, calculations, collections, adjustments, and payouts made by the Terminal Agents; provided, however, that notwithstanding the foregoing Datatrol shall not be responsible for any mispayments caused solely by the error or fraud of a Terminal Agent or an employee or agent of the State.”
      (4) From GTECH’s (formerly Gaming Systems Corporation) contract with the state concerning the lottery games:

        (a) “3.01 GSC shall provide, implement, operate, maintain and otherwise deliver the System for the Term and/or any Renewal Term of this Agreement, and the parties shall each do all things necessary to fulfill their respective obligations hereunder.”
      (b) “3.09 GSC shall assume full responsibility to the Division for all financial transactions and for the operation of the System, including, but not limited to, validations, cancellations, calculations, collections, adjustments and payouts made by the Terminal Agents; provided, however, that notwithstanding the foregoing, GSC shall not be responsible for any Terminal Agent delinquency or for any damages or mispayments caused solely by the error or fraud of a Terminal Agent or an employee or agent of the State.”

       There is nothing in the record to indicate that the state ever exercised an option to purchase or that a purchase was ever considered a viable alternative by the state. Further, an option to purchase does not convert a service contract into a lease. It is the primary purpose for which the property is held that determines its taxability. Dresser Industries, Inc. v. Lindley, 12 Ohio St. 3d 68, 69, 465 N.E.2d 430 (1984).

       The plaintiffs place a great deal of reliance on the case oí Randall Park Jockey Club, Inc. v. Peck, 162 Ohio St. 245, 122 N.E.2d 787 (1954), as holding that possession and control of personal property by the state compels a finding that the property was leased or sold to the state. We find Randall Park Jockey Club, Inc., distinguishable from the present case. In Randall Park Jockey Club, Inc., the court was interpreting a different statute and the degree of the appellant’s possession and control of the vital computer functions of the track was considerably greater than that exercised by the state’s agents here. Further, insofar as that case may indicate that possession and control are the determinants of taxability, we reject it.

       Nor are the plaintiffs DTP and GTECH entitled to a refund on sales taxes previously paid.

       See General Statutes § 12-415 (4) and (5).

       In Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49 (1968), this court considered the constitutionality of 1967 legislation applicable to probate court administration.

       Article XX of the amendments to the constitution of Connecticut provides: “(COURTS.)
      “Section 1. Section 1 of article fifth of the constitution is amended to read as follows:
      “The judicial power of the state shall be vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.
      “(SUPREME, APPELLATE AND SUPERIOR COURT JUDGES, APPOINTMENT, TERMS, REMOVAL.)
      “Sec. 2. Section 2 of article fifth of the constitution is amended to read as follows:
      “The judges of the supreme court, of the appellate court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment. The governor shall also remove them on the address of two-thirds of each house of the general assembly.”

       “[General Statutes] Sec. 52-1. administration of legal and equitable rights. The superior court may administer legal and equitable rights and apply legal and equitable remedies in favor of either party in one and the same civil action so that legal and equitable rights of the parties may be enforced and protected in one action. Whenever there is any variance between the rules of equity and the rules of the common law in reference to the same matter, the rules of equity shall prevail.”


source: Caselaw Access Project

license: Public Domain

text:
    American Totalisator Systems, Inc. v. Orest T. Dubno, Commissioner of Revenue Services
    (13409)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued December 16, 1988
    decision released March 14, 1989

      Richard K. Greenberg, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, former attorney general, for the appellant (defendant).

      Scott P. Moser, with whom, on the brief, was H. Douglas Bailey for .the appellee (plaintiff).
   Callahan, J.

This case is one of four related appeals from sales and use tax assessments that were consolidated for trial in the Superior Court and subsequently appealed to this court. The other three appeals were decided on this same date. See American Totalisator Co. v. Dubno, 210 Conn. 401, 555 A.2d 414 (1989). As did the first of those appeals, this appeal arises out of contracts between American Totalisator Company, Inc. (AmTote), and the state of Connecticut. These contracts provided that AmTote establish and operate the state’s initial teletrack, off-track betting and daily lottery ventures. This case is addressed separately because it concerns personnel services rather than personal property and because the trial court reached a different result in this case than in the others.

The basic facts are not in dispute. The plaintiff in this case, American Totalisator Systems, Inc. (Systems), and AmTote are both wholly owned subsidiaries of General Instrument Corporation. In 1973, AmTote entered into a contract with the state to establish and operate the state’s teletrack and off-track betting systems. In 1977, it contracted with the state to establish and operate the daily lottery. Because AmTote did not directly employ sufficient personnel to render all the services required by its contracts with the state, it used employees of Systems, its sister corporation, to fulfill its contractual obligations. The arrangement between Systems and AmTote arose out of considerations of business policy and convenience; Systems did not hold itself out, advertise or operate as a personnel agency in the public domain and it supplied employees only to AmTote and to no other entity. Systems was reimbursed for its employees’ services to AmTote by a fee equal to 100 percent of its employees’ salaries plus 5 percent for overhead expenses.

In 1982, the commissioner of revenue services (commissioner) assessed a sales tax deficiency against Systems in the amount of $283,080.98 for the period January 1, 1976, through February 28, 1982. That assessment was based on a determination by the commissioner that Systems was an agency providing personnel services at retail within the meaning of General Statutes § 12-407 (2) (i) (C) and (3). Systems petitioned for a reassessment of the sales tax deficiency under General Statutes§ 12-418 (l) and requested an oral hearing under General Statutes § 12-418 (2). After the oral hearing, the commissioner confirmed the assessment against Systems. Subsequently, Systems appealed to the Superior Court, pursuant to General Statutes § 14-422.

The Superior Court determined that sales tax deficiencies were incorrectly assessed against Systems because Systems’ transactions with AmTote were not retail sales as defined by § 12-407 (3). The court found instead that the services of Systems’ employees were purchased by AmTote for “resale” to the state, thus taking the transactions out of the definition of retail sales. The trial court consequently determined that the transactions were not subject to the imposition of a sales tax. The commissioner, however, contends that AmTote did not resell the services of Systems’ employees to the state but rather used those services itself to fulfill its teletrack, off-track betting and daily lottery contracts. We agree with the commissioner and conclude that the sales of Systems’ employees’ services to AmTote were not sales for resale but rather retail sales subject to the imposition of a sales tax.

Our conclusion is based on the same rationale that underlay our holding in American Totalisator Co. v. Dubno, supra, that is, that the intention of both the state and AmTote, as manifested by their contracts, was that AmTote provide the state with equipment and personnel to establish and operate the state’s embryonic wagering systems. The agreements clearly indicate that the state did not contract with AmTote to purchase personnel services per se. See Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 601, 362 A.2d 847 (1975). Instead, it contracted to have AmTote initiate and operate the wagering systems it desired and AmTote, under the contracts, was obligated to supply the necessary personnel to do so. “The court must look to the intention of the parties to the contract to determine whether the items in a contract are held for resale or were purchased for a different purpose.” White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 422, 503 A.2d 582 (1986). “That intention is to be ascertained from the language used, interpreted in the light of the situation of the parties and the circumstances surrounding them.” United Aircraft Corporation v. O’Connor, 141 Conn. 530, 538, 107 A.2d 398 (1954). The personnel services furnished by Systems to AmTote, while necessary, were incidental to the primary purpose of AmTote’s contracts with the state and were utilized by AmTote, itself, in performing those contracts. White Oak Corporation v. Department of Revenue Services, supra, 422-23; Dresser Industries, Inc. v. Lindley, 12 Ohio St. 3d 68, 69, 465 N.E.2d 430 (1984). The services were not purchased from Systems and then “resold” to the state by AmTote as Systems contends. Consequently, the sale of Systems’ personnel services to AmTote was a “retail sale” as defined by § 12-407 (3). White Oak Corporation v. Department of Revenue Services, supra, 423.

Systems has, however, urged an alternate ground for sustaining the judgment of the trial court. It argues that it is not an “[agency] providing personnel services” as contemplated by § 12-407 (2) (i) (C) and is, therefore, not subject to the imposition of a sales tax on the sale of its employees’ services to AmTote. It contends that the “agencies” intended by the legislature to be subject to sales taxes for “providing personnel services” are those “agencies” that advertise and hold themselves out to the public to be in the business of placing their employees with other businesses and industry. Systems claims that the statute was never intended to include within its parameters the sale of the services of employees of one wholly owned subsidiary of a parent corporation to another. We disagree.

Absent a specific exemption, transactions between affiliated corporations are subject to the imposition of a sales tax. Ex Parte Capital City Asphalt, Inc., 437 So. 2d 1291 (Ala. 1983); Superior Coal Co. v. Department of Finance, 377 Ill. 282, 291, 36 N.E.2d 354 (1941); Hilton Hotels Corporation v. Traigle, 360 So. 2d 245, 246-47 (La. App. 1978); Central Cooling & Supply Co. v. Director of Revenue, 648 S.W.2d 546, 548 (Mo. 1982); Prospect Dairy, Inc. v. Tully, 53 App. Div. 2d 755, 384 N.Y.S.2d 264 (1976); 68 Am. Jur. 2d, Sales and Use Tax § 97; see also annot., 64 A.L.R.2d 769. Therefore, if Systems was an “[agency] providing personnel services” its transactions with AmTote were taxable despite the affiliation of the two corporations unless there exists an applicable exemption. There is no definition of the word “agency” in either the statutes concerning the sales and use tax or the regulations. The Random House Dictionary of the English Language (2d Ed.)p. 37, however, defines “agency” as: “An organization, company, or bureau that provides some service to another.” Systems in its relations with AmTote fits within that definition. Moreover, we can find nothing in the statutes or the regulations that would dictate reading § 12-407 (2) (i) (C) to require that Systems has held itself out to the public as a personnel agency before its transactions with AmTote were subject to the imposition of a sales tax.

Systems argues further, however, that the commissioner’s own regulations support its contention that its transactions with AmTote were not taxable because those regulations define personnel services to mean “furnishing temporary or part-time help to others by means of employing such temporary or part-time help directly.” Regs., Conn. State Agencies § 12-426-27 (b) (3) (c). Systems claims that its employees worked for AmTote “on an exclusive, permanent, full time and ongoing basis” and hence that it did not supply AmTote with “personnel services” as envisioned by § 12-407 (2) (i) (C) or the regulations. The problem with this argument is that the trial court specifically found that Systems’ employees “were not to be permanent” and that its agreement with AmTote “was to provide temporary help.” Other than the assertion to the contrary in its brief, Systems has not challenged that finding on appeal. Its argument in this regard is therefore without merit.

Finally, Systems contends that the enactment of Public Acts, Spec. Sess., July, 1987, No. I, was a clear signal from the legislature that it never intended that sales taxes be levied on transactions relating to business services between wholly owned subsidiaries of the same parent corporation. That act did, in fact, create such an exemption from the sales and use tax for corporations so affiliated and made that exemption retroactive to July 1, 1982. Although Systems recognizes that its transactions with AmTote predated July 1, 1982, it argues that it should have the benefit of the exemption because the legislative history of the act reveals that the commissioner has all along been misinterpreting § 12-407 (2) (i) (C) by applying it to corporations affiliated as are Systems and AmTote. Further, it contends that the July 1, 1982 cutoff date was only arrived at because of misinformation supplied to the legislature by the commissioner.

That argument has some facial appeal. Public Acts, Spec. Sess., July, 1987, No. 1, however, by its terms applies only to transactions between wholly owned subsidiaries of a parent corporation that are “for purposes of expense allocation and not for purposes of profit for the company rendering such services.” In this case the trial court explicitly found that: “The contract between AmTote and Systems appears to provide that Systems make a profit, albeit small .... The court cannot find that the transaction between AmTote and Systems was rendered [sic] for purposes of expense allocation and not for purposes of profit to Systems.” (Emphasis added.) The basis of that factual finding has not been questioned on appeal. Therefore, even if we were inclined to construe the act as requested, it would be of no moment to Systems.

There is error in the trial court’s conclusion that the transactions between Systems and AmTote were not subject to the imposition of a sales tax, and the matter is remanded to the trial court for further proceedings.

In this opinion the other justices concurred.

       The commissioner also assessed a penalty in the amount of $28,453.31.

       General Statutes (Rev. to 1987) § 12-407 (2) (i) (C) provides in pertinent part: “(2) ‘Sale’ and ‘selling’ mean and include . . . (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . . . (C) services by collection agencies, employment agencies and agencies providing personnel services. ...”

       General Statutes § 12-407 (3) provides: “definitions. Whenever used in this chapter ....
      “(3) ‘Retail sale’ or ‘sale at retail’ means and includes a sale for any purpose other than resale in the regular course of business of tangible personal property or a transfer for a consideration of the occupancy of any room or rooms in a hotel or lodging house for a period of thirty consecutive calendar days or less, or the rendering of any service described in any of the subdivisions of subsection (2) of this section. The delivery in this state of tangible personal property by an owner or former owner thereof or by a factor, if the delivery is to a consumer pursuant to a retail sale made by a retailer not engaged in business in this state, is a retail sale in this state by the person making the delivery. He shall include the retail selling price of the property in his gross receipts.”

       General Statutes § 12-418 (1) provides: “reassessment. (1) petition for reassessment. Any person against whom an assessment is made under section 12-415 or 12-416 or any person directly interested may petition for a reassessment within thirty days after service upon such person of notice thereof. If a petition for reassessment is not filed within the thirty-day period, the assessment becomes final at the expiration of the period.”

       General Statutes § 12-418 (2) provides: “oral hearing. If a petition for reassessment is filed within the thirty-day period, the commissioner shall reconsider the assessment and, if the person has so requested in his petition, shall, in his discretion, grant the person an oral hearing and shall give him ten days’ notice of the time and place of the hearing. The commissioner may continue the hearing from time to time, as may be necessary, and may assign the conduct of such hearing to his representative.”

       “[General Statutes] Sec. 12-422. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418,12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee apppointed by it. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       If, as the plaintiff claims, the personnel services were then “resold” to the state, an exempt entity under General Statutes § 12-412 (1), such sale would not be subject to the imposition of a sales tax.

       Systems cites no authority for this proposition other than the legislative history of Public Acts, Spec. Sess., July, 1987, No. 1. Footnote 10, infra.

       The Regulations of Connecticut State Agencies, § 12-426-27 (b) (3) (c) provides: “ enumerated services. ... (3) Collection services; employment and personnel services. . . . (c) Personnel services mean and include furnishing temporary or part-time help to others by means of employing such temporary and part-time help directly.”

       Public Acts, Spec. Sess., July, 1987, No. 1, §§ 1 and 2, provide: “July Special Session, Public Act No. 87-1
      “AN ACT ESTABLISHING (1) EXEMPTION FROM SALES TAX FOR CERTAIN SALES OF SERVICES BETWEEN PARENT COMPANIES AND WHOLLY-OWNED SUBSIDIARIES, (2) A RESIDENTIAL PROPERTY TAX REVALUATION RELIEF FUND AND (3) A PROGRAM ALLOWING GRADUAL INCREASES IN ASSESSED VALUES FOLLOWING REVALUATION.
      “Section 1. Section 12-412 of the general statutes is amended by adding subsection (59) as follows:
      “(NEW) (59) Subject to the provisions of section 2 of this act, sales of any of the services enumerated in subdivision (i) of subsection (2) of section 12-407, in the period July 1, 1987 to June 30, 1988, inclusive, which are rendered for a corporation affiliated with the corporation rendering such service in such manner that (1) either corporation in such transaction owns or controls either directly or indirectly not less than one hundred per cent of the capital stock of the other corporation or (2) either corporation in such transaction is owned or controlled either directly or indirectly by interests which own or control either directly or indirectly not less than one hundred per cent of the capital stock of the other corporation, provided any such transaction is rendered for purposes of expense allocation and not for purposes of profit for the company rendering such service.
      “Sec. 2. (NEW) (a) The exemption from sales tax allowed in accordance with section 1 of this act shall be applicable to sales of certain services as provided in said section 1, in the period July 1,1987 to June 30,1988, inclusive, and additionally, with respect to such sales of services rendered in the period July 1, 1982 to June 30, 1987, inclusive.
      “(b) Any sales tax which has been paid to the state as a result of such sales of services rendered in said period July 1,1982 to June 30,1987, inclusive, shall be subject to refund to the corporation from which such payment was received. The commissioner of revenue services shall establish a procedure for submission of claims related to such refunds, including preparation of a form appropriate for inclusion of such information as may be necessary in determining the validity of such claim. When such form is available for distribution the commissioner shall implement a notification procedure for corporations that may be eligible for such refund. Such notification shall include dates for commencement and termination of a period, not exceeding ninety days as established by the commissioner, during which such claims for refund may be submitted. The commissioner shall notify each applicant for refund by mail as to approval or disapproval of such claim. Refund of tax to any taxpayer whose application is approved shall be made not later than June 30, 1988. Any taxpayer whose application for refund has been disappproved may apply to the commissioner for a hearing in the manner allowed under section 12-421 of the general statutes for any taxpayer aggrieved by action of the commissioner in fixing the amount of any tax.”

       See 30 S. Proc., Pt. 16, 1987 Spec. Sess., pp. 45-78; 30 H.R. Proc., Pt. 37, 1987 Spec. Sess., pp. 129-211.

       Systems refers to the following:
      “REP. [Thomas D.] RITTER: (2nd)
      “One small question about legislative intent, also. Whether it is in his opinion . . . will it tend to treat tax payers equitably with respect to tax years open to assessments of tax prior to July 1, 1982, but for which no tax has been paid?
      “Through you, Mr. Speaker . . .
      “REP. [Ronald L.] SMOKO: (91st)
      “Through you, Mr. Speaker. We picked July 1, ‘82 because Revenue Services has indicated that their records only go back to July 1, ‘82. If there are any audits in existence that would be called into question by the interpretation we take here, it will be my opinion that they would be rendered moot, as this Legislature has made its position very clear through the action we will be taking today, under retroactive application of the business services tax in instances like this.
      “I would say that if there exist any audits prior to July 1,1982, that are in question, that if I was Commissioner of Revenue Services, I would say that the Legislature didn’t intend it to be interpreted this way, so we are not going to pursue it anymore. . . .” 30 H.R. Proc., Pt. 37,1987 Spec. Sess., pp. 147-48.


text:
    Harold J. Collins v. City of West Haven et al.
    (13465)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued January 4
    decision released March 21, 1989

      Edward Gallant, with whom were Keith Bradoc Gallant and, on the brief, Betty G. Levy, for the appellant (named defendant).

      W. Paul Flynn, with whom, on the brief, were Charles L. Flynn and Howard A. Lawrence, for the appellee (plaintiff).
   Callahan, J.

The named defendant, the city of West Haven (city), appeals from the decision of the compensation review division of the workers’ compensation commission dismissing its appeal and denying its motion to open and modify the award of the workers’ compensation commissioner for the third district in favor of the plaintiff, Harold J. Collins. The sole issue on appeal is whether the commissioner had jurisdiction to award the plaintiff compensation benefits under General Statutes § 7-433C. Because the plaintiff’s notice satisfied the requirements of § 31-294, we conclude that the commissioner had jurisdiction to award such benefits. There is, therefore, no error.

This case revolves around the interrelationship of the Workers’ Compensation Act; General Statutes, tit. 31, c. 568; and General Statutes § 7-433c. The Workers’ Compensation Act was enacted to “provide compensation for any injury 'arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.’ Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968).” Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984). Heart disease and hypertension are just some of the many ailments compensable under the act. See, e.g., McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 111-16, 527 A.2d 664 (1987). In order to recover under chapter 568, however, “ ‘[t]he employee has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment.’ McNamara v. Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979).” Bakelaar v. West Haven, supra, 67. Section 7-433c, on the other hand, was enacted to provide “special compensation” to qualifying policemen and firemen who die or become disabled as a result of hypertension or heart disease. Id. It requires the employer to pay compensation to those officers “who have successfully passed a physical examination which failed to reveal any evidence of hypertension or heart disease and who subsequently die or are disabled as a result of such conditions” whether or not the “ ‘disease resulted from the employee’s occupation or . . . occurred in the line and scope of his employment.’ ” Id., 68-69; Plainville v. Travelers Indemnity Co., 178 Conn. 664, 670, 425 A.2d 131 (1979). An employee may, if the facts so warrant, elect to proceed under either chapter 568 or § 7-433c. Bakelaar v. West Haven, supra.

It is undisputed in the present case that the plaintiff was a regular, paid, uniformed member of the West Haven police department. Upon entry into the service of the city, the plaintiff underwent a physical examination that failed to reveal any evidence of hypertension or heart disease. On May 2, 1973, while off duty, the plaintiff suffered a heart attack and has since been totally disabled.

On July 6,1973, the plaintiff filed a “Form for Notice of Claim for Compensation” with the commissioner. The notice, which is a standardized form provided by the workers’ compensation commission, required the plaintiff to fill in basic identification information and to state the nature of his injury. This line of the form reads: “Notice is hereby given that the undersigned, who while in the employ of.....(Name of Employer).....at ... (Town) ... on the .... day of.......19 . . . sustained injuries arising out of and in the course of his employment as follows: (State nature of injury in ordinary language).” The plaintiff in this case typed the following response: “Acute myocardial infarction — hypertension, heart disease.” A copy of the plaintiff’s notice form was sent to the city and to its insurance carrier, Commercial Union Insurance Company (Commercial Union), with whom the city had contracted to insure itself against workers’ compensation claims. The city was self-insured for claims brought under § 7-433c. See Plainville v. Travelers Indemnity Co., supra.

It was not until July 16,1975, that a hearing was held before the commissioner on the matter. At this hearing Commercial Union contested its liability to pay compensation under chapter 568 because it considered it doubtful that the plaintiffs illness resulted from his employment. At that hearing the city did not make an appearance to contest its liability under § 7-433c and, therefore, the commissioner decided to delay the rendering of an award. The commissioner rescheduled a hearing for January 21, 1976, to address the claim under § 7-433c and notified the city that it should attend. After the hearing the commissioner issued a finding in favor of the plaintiff awarding him benefits under § 7-433c. In limiting its award to such benefits, the commissioner refused to make a ruling as to the responsibility of Commercial Union under chapter 568.

The city appealed the commissioner’s award to the Court of Common Pleas in April, 1976. Prior to a decision by the court, the plaintiff filed a motion to remand the matter to the commissioner for further proceedings. The plaintiff’s motion was granted by the court on December 22,1977. The remand remained pending before the commissioner until November 30, 1981, when the city filed a motion to open and modify the commissioner’s award pursuant to General Statutes § 31-315 “to eliminate all references to § 7-433c, and to provide for liability, if any, based solely on Chapter 568.” On April 23,1986, the commissioner denied the city’s motion.

On April 30, 1986, the city filed a petition with the compensation review division for reconsideration of the commissioner’s denial of its motion. The review division refused to find that the commissioner had abused her discretion and upheld her decision denying the city’s motion stating that “the use by Claimant of the words ‘heart’ and ‘hypertension’ in his own description of his injury certainly justified the Commissioner’s interpretation of that choice [of remedies] to be one under Sec. 7-433c.” It thereafter dismissed the city’s appeal. On April 22,1988, the city filed an appeal from the review division’s decision in the Appellate Court. We transferred the matter to ourselves, pursuant to Practice Book § 4023.

On appeal, the city argues that the review division erred in refusing to find that the commissioner had abused her discretion when she denied its motion to open and modify the 1976 award in favor of the plaintiff. According to the city, the commissioner lacked subject matter jurisdiction to award the plaintiff benefits under § 7-433c because the plaintiff had failed specifically to notify the city of his intent to proceed under that section within one year from the date of the accident as required by § 31-294. Although the plaintiff filed a notice within weeks of his injury, the city contends that notice was notice only of a workers’ compensation claim. The city argues that because “§ 7-433c” was not typed in the notice and not adverted to until the hearing before the commissioner in 1976, there was no timely notice of the § 7-433c claim. We disagree.

As we have stated on numerous occasions, while the Workers’ Compensation Act and § 7-433c are separate pieces of legislation, “[t]he procedure for determining recovery under § 7-433c is the same as that outlined in chapter 568, presumably because ‘the legislature saw fit to limit the “procedural avenue” for bringing claims under § 7-433c to that already existing under chapter 568 rather than require the duplication of the administrative machinery available [under the Workers’ Compensation Act] and further burden the courts and the municipalities [with additional litigation from claims by firemen and policemen pursuant to this legislation].’ ” Bakelaar v. West Haven, supra, 68, quoting Plainville v. Travelers Indemnity Co., supra, 671-72; see Grover v. Manchester, 165 Conn. 615, 617-18, 353 A.2d 719 (1973); Cuccuro v. West Haven, 6 Conn. App. 265, 267, 505 A.2d 1 (1986); Janco v. Fairfield, 39 Conn. Sup. 403, 405, 466 A.2d 1, cert. denied, 199 Conn. 805, 508 A.2d 31 (1983). Section 7-433c, therefore, directs claimants to the provisions of the Workers’ Compensation Act; General Statutes, tit. 31, c. 568; to determine how to proceed with a claim for compensation.

Section 31-294 states that “[n]o proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . .” That section also requires that a claimant’s form of notice “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.) Compliance with § 31-294 is essential to maintaining a claim for compensation under chapter 568 and therefore under § 7-433c because timely notice is a jurisdictional requirement that cannot be waived. Cuccuro v. West Haven, supra; Janco v. Fairfield, supra, 406; see also Walsh v. Waldron & Sons, 112 Conn. 579, 584, 153 A. 298 (1931).

The plaintiff in the present case provided the city with written notification of his intent to seek compensation within weeks of his injury as required by § 31-294 and his form of notice contained all of the information required by that section. Indeed, the notice form he used was created by the workers’ compensation commission to conform with provisions of § 31-294. Having complied with the procedures of the Workers’ Compensation Act, the plaintiff simultaneously raised a § 7-433c claim, and accordingly the commissioner had jurisdiction to award him benefits under that section.

The city’s argument that it was misled by the plaintiff’s use of a workers’ compensation notice form that contained language normally associated with such claims is without merit. No separate form of notice for § 7-433c liability exists, nor is such a form necessary, as the procedures for claims under that section and chapter 568 are the same. Further, as noted by the review division, the words “hypertension” and “heart disease” used by the plaintiff in his own description of his injury were sufficient to alert the city of a § 7-433c claim.

The city argues that even if the plaintiff was authorized to use the workers’ compensation form, he should have explicitly stated on that form that he was proceeding under § 7-433c. Section 31-294, however, does not contain such a requirement. Rather, the statute, by providing that a claimant should state the nature of his injury in “simple language,” suggests that the legislature intended the average lay person to be able to give notice of his claim without citing specific statutory provisions that would require substantial legal advice. The argument posed by the city would require otherwise. Moreover, the form of notice, created by the workers’ compensation commission, tracking the language of § 31-294, did not require the plaintiff to provide such information.

Accordingly, since the plaintiff filed notice of his intent to seek compensation within one year of his heart attack, meeting all of the requirements of § 31-294, the commissioner had jurisdiction to award compensation under § 7-433c. Therefore, the review division did not err in upholding the commissioner’s decision denying the city’s motion to open and modify the award and in dismissing its appeal.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1972)] 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 examinalion 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. 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.”

       Genera! Statutes (Rev. to 1972) § 31-294 provides in relevant part: “notice of injury and of claim for compensation. Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing him, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure; but the burden of proof with respect to such prejudice shall rest upon the employer. No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death whichever is later. Such notice may be given to the employer or the commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting therefrom, or the date of the first manifestation of a symptom of the occupational disease and the nature of such disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. If there has been a hearing or a written request for a hearing or an assignment for a hearing within said one-year period from the date of the accident or from the first manifestation of a symptom of the occupational disease, as defined herein, as the case may be, or if a voluntary agreement has been submitted within said period of one year, or if within said period of one year an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as hereafter provided in this section, no want of such notice of claim shall be a bar to the maintenance of proceedings and in no case shall any defect or inaccuracy of such notice of claim be a bar to the maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning such personal injury and was prejudiced by the defect or inaccuracy of such notice. . . .”

       Commercial Union initially notified the commissioner and the plaintiff of its intent to contest liability to pay compensation under chapter 568 on July 10, 1973.

       The city’s motion to reargue the judgment of the review division was denied by the division on May 9, 1988.

       General Statutes § 31-294 sets out four exceptions where written notice of a claim is unnecessary. These exceptions are not applicable in the present appeal.


author: Per Curiam.

text:
    David Ilvento et al. v. Eugene Frattali et al.
    (13535)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued February 1
    decision released March 21, 1989

      Frank N. Eppinger, with whom, on the brief, was Mark Oberlatz, for the appellants (plaintiffs).

      Susan G. Nelson, with whom were Timothy D. Bates and, on the brief, Robert A. Avena, for the appellees (defendant planning and zoning commission of the city of Groton et al.).

      Joseph E. Moukawsher, for the appellee (named defendant).
   Per Curiam.

This is an appeal from the action of the planning and zoning commission of the city of Groton approving the application of the named defendant, Eugene Frattali, for a site plan approval and special permit. The trial court dismissed the plaintiffs’ appeal for lack of jurisdiction because of their failure to cite the chairman or clerk of the commission in their appeal. The plaintiffs did, however, cite the commission, and the sheriff did, in fact, leave a “true and attested copy” of the appeal with its chairman, as required by statute, although not specifically directed to do so. General Statutes § 8-28 (a). All other necessary parties were properly cited and served.

The legislature, when it enacted Public Acts 1988, No. 88-79, in response to our decisions in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988), clearly expressed an intention that appeals from the decisions of planning and zoning commissions be heard and decided on their merits and not be invalidated for technical defects in service. Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 487, 547 A.2d 528 (1988). With that in mind we conclude that the citation and service in this case substantially complied with § 8-28 (a) and were sufficient to ensure that the commission received adequate notice of the plaintiffs’ appeal. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 151, 543 A.2d 1339 (1988).

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings.

       General Statutes § 8-28 (a) provides in pertinent part: “appeal from PLANNING COMMISSION TO SUPERIOR COURT. REVIEW BY APPELLATE COURT, (a) Notice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Except as provided in section 8-30, any person aggrieved by an official action or decision of a planning commission, including a decision to take no action, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of a planning commission, may appeal therefrom, within fifteen days from the date when notice of such action or decision was so published, to the superior court for the judicial district within which the municipality with such planning commission lies. In those situations where the approval of the planning commission must be inferred because of the failure of the commission to act on an application, any person aggrieved by such approval, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in such approval, may appeal therefrom within twenty days after the expiration of the period prescribed in section 8-26d for action by the commission to the superior court for the judicial district within which the municipality with such planning commission lies. Notice of such appeal shall be given by leaving a true and attested copy thereof with, or at the usual place of abode of, the chairman or clerk of said commission, and by serving a true and attested copy upon the clerk of the municipality, provided service upon the clerk of the municipality shall be for the purpose of providing additional notice of such appeal to said commission and shall not thereby make such clerk a necessary party to such appeal. The commission shall return either the original papers acted upon by it and constituting the record of the case appealed from or certified copies thereof. There shall be no right to further review except upon certification for review to the appellate court in the manner provided in section 8-8. . . .”


author: Glass, J.

text:
    In re Steven G.

    (13437)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 3
    decision released March 21, 1989

      Shelley A. White, for the appellant (respondent).

      Cathleen Mulligan Edwards, state’s advocate, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Supreme Court.
      Reporter of Judicial Decisions

   Glass, J.

The state brought a petition to adjudicate the respondent, Steven G., a juvenile delinquent on the basis of a charge of criminal liability for robbery in the second degree. General Statutes §§ 53a-8 and 53a-135. After the trial had commenced, the trial court permitted the state, pursuant to Practice Book § 1029, to amend its petition to add four additional charges arising out of the same incident. Subsequently, the respondent was adjudicated a delinquent. On appeal, the Appellate Court upheld the trial court’s allowance of the amendment on the ground that, in juvenile proceedings, a standard of “fundamental fairness” governs midtrial amendments rather than the stricter provisions applicable to adult proceedings. In re Steven G., 14 Conn. App. 205, 210, 540 A.2d 107 (1988). We granted the respondent’s petition for certification limited to the following issue: “In juvenile delinquency proceedings, what standard governs the authority of the state, after the commencement of trial, to amend the petition to include additional charges?” We conclude that the Appellate Court correctly applied the appropriate standard, and we therefore affirm its judgment.

The facts of this case are fully set forth in In re Steven G., supra. We summarize only those facts pertinent to the certified issue. On February 3, 1986, the respondent was charged with criminal liability for robbery in the second degree. On July 9, 1986, the trial commenced. The complainant testified that she was working alone in a natural food store in New Haven on January 18, 1986, when two boys came into the store. One boy went to the rear of the store and engaged the complainant in conversation. The other boy went to the front of the store and put his hand on the cash register and pushed the buttons. When the complainant went to the front of the store, she was ordered by the boy there to “open the drawer,” which she did because she felt “threatened.” While at the front of the store, the complainant paid no attention to the boy at the back of the store, and consequently was unable to testify about what he did. She also was unable to make any identification of the respondent “with certainty.” She testified that after the money was taken from the cash register by one of the boys, both boys “flew” out of the store. She also testified that she did not observe the boy who had gone to the back of the store take money from the register.

The state then called the co-respondent, Ted F., as its next witness. Ted testified that on January 18,1986, he and the respondent were walking around the State Street area of New Haven “[planning] to go rob a store.” As they came upon the complainant’s store, they decided to put their plan into action. Ted testified that he and the respondent entered the complainant’s store and that the respondent went to the back of the store while Ted went to the cash register and “tapped some buttons.” Ted testified further that the complainant came to the front of the store and opened the cash register. He stated that the respondent “snatched money first” from the register, and that he himself then took the rest.

Shortly after the beginning of the cross-examination of Ted, the respondent’s counsel requested a recess, which the trial court granted. On the date that the trial resumed, July 16, 1986, the state filed a motion to amend the petition against the respondent to add four additional charges arising out of the same incident. The respondent and his mother were provided with notice of the amended petition on that date. The four additional charges in the amended petition were: (1) conspiracy to commit robbery in the second degree; General Statutes §§ 53a-48 and 53a-135; (2) larceny in the sixth degree; General Statutes § 53a-125b; (3) conspiracy to commit larceny in the sixth degree; General Statutes §§ 53a-48 and 53a-125b; and (4) criminal liability for larceny in the fifth degree; General Statutes §§ 53a-8 and 53a-125a. The respondent’s counsel objected to the added charges claiming that they violated the respondent’s right to notice of the charges against him, his right to counsel and to present a defense, and that the added charges prejudiced the respondent. The state argued that an amendment was proper under Practice Book § 1029, claiming that the additional charges were brought because it had been “surprised” by Ted’s testimony. The trial court, pursuant to Practice Book § 1029, permitted the amended petition, and continued the case for one week until July 23, 1986, for completion of the trial.

On July 21, 1986, the respondent filed a motion to dismiss the four additional charges. The trial court denied the motion on July 23, 1986. Thereafter, pursuant to General Statutes § 54-94a, the respondent entered a plea of nolo contendere to a reduced charge of conspiracy to commit robbery in the third degree. The respondent’s plea was conditioned on his right to appeal the denial of his motion to dismiss. The respondent subsequently was adjudicated a delinquent child and was committed to the department of children and youth services for a period not to exceed two years.

The respondent argues that juveniles charged with delinquency offenses have a right to the same standard of fair and adequate notice of the charges against them in advance of trial as is constitutionally mandated for adult criminal defendants. He claims that the addition of four new and different charges against him after the commencement of trial, made possible by Practice Book § 1029, violated rights secured to him by the sixth and fourteenth amendments to the United States constitution and also article first, § 8 of the Connecticut constitution. In support of this claim the respondent relies principally on In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), and Practice Book § 624.

“There is no doubt that the Due Process Clause is applicable in juvenile proceedings. ‘The problem,’ we have stressed, ‘is to ascertain the precise impact of the due process requirement upon such proceedings.’ In re Gault, [supra, 13-14]. We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See [id., 31-57] (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975) (double jeopardy). But the Constitution does not mandate elimination of all differences in the treatment of juveniles. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) (no right to jury trial). The State has ‘a parens patriae interest in preserving and promoting the welfare of the child,’ Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance—to respect the ‘informality’ and ‘flexibility’ that characterize juvenile proceedings, In re Winship, [supra, 366], and yet to ensure that such proceedings comport with the ‘fundamental fairness’ demanded by the Due Process Clause. Breed v. Jones, [supra, 531]; McKeiver [v. Pennsylvania, supra, 543] (plurality opinion).” Schall v. Martin, 467 U.S. 253, 263, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984).

In In re Gault, the United States Supreme Court ruled that although a juvenile delinquency hearing need not “ ‘conform with all the requirements of a criminal trial or even of the usual administrative hearing, [such a] hearing must measure up to the essentials of due process and fair treatment.’ ” In re Gault, supra, 30, quoting Kent v. United States, 383 U.S. 541, 562, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). The right to adequate notice of the charges is among the essentials of due process and fair treatment that the In re Gault court held applicable to juvenile delinquency proceedings. In re Gault, supra, 33. Notice must be given to “the child and his parents or guardian ... in writing ... at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation” and must contain “the specific charge or factual allegations to be considered at the hearing.” Id.

Despite the state’s assertions to the contrary, there can be no question that a midtrial amendment to an information adding different charges in an adult criminal proceeding is violative of due process. See Practice Book § 624; State v. Jacobowitz, 182 Conn. 585, 590-91, 438 A.2d 792 (1981). “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U.S. Const., amend. VI; Conn. Const., art. I, § 8.” State v. Jacobowitz, supra, 590. In re Gault, however, did not address the issue of midtrial amendments to charges in juvenile delinquency proceedings.

In our view the Appellate Court did not err in applying a “fundamental fairness” analysis. Schall v. Martin, supra, 263; see McKeiver v. Pennsylvania, supra, 543 (“the applicable due process standard in juvenile proceedings, as developed by Gault and Winship, is fundamental fairness”); Carrillo v. State, 480 S.W.2d 612, 615 (Tex. 1972) (applying fundamental fairness analysis to midtrial amendment in juvenile delinquency proceeding); see also In re Appeal in Maricopa County, 111 Ariz. 103, 106, 523 P.2d 1304 (1974) (amendment at close of juvenile delinquency proceeding under rule providing for amendment at any time permissible if parties afforded sufficient opportunity to meet new allegations). Although we are mindful that In re Gault requires juvenile delinquency proceedings to meet the “essentials” of due process and fair treatment, we also recognize that the United Stated Supreme Court did not hold that a juvenile delinquency proceeding must conform in all particulars to the requirements of an adult criminal trial. In re Gault, supra, 30. The court’s desire to refrain from establishing such a requirement stems from its recognition of the need to balance the state’s essentially nonpunitive objectives in juvenile delinquency proceedings with the fundamental demands of due process. Schall v. Martin, supra. The procedural protections accorded alleged juvenile offenders appropriately may differ from those accorded alleged adult offenders because of the differing societal interests at stake. Santana v. Collazo, 714 F.2d 1172, 1177 (1st Cir. 1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2352, 80 L. Ed. 2d 825 (1984). In its most recent decisions, in fact, the United States Supreme Court has emphasized the state’s legitimate parens patriae interest in juvenile proceedings. Schall v. Martin, supra; Santosky v. Kramer, supra; McKeiver v. Pennsylvania, supra.

Although some criminal trial standards have been implemented in juvenile delinquency proceedings, the public policy of Connecticut as expressed in the General Statutes contemplates a distinction between juvenile matters and criminal matters. See and compare General Statutes, c. 815t, Juvenile Matters, and c. 950, Penal Code: General Provisions. A further manifestation of this distinction is indicated specifically in General Statutes § 46b-145, which provides: “No child shall be prosecuted for an offense before the superior court, nor shall the adjudication of such court that a child is delinquent in any case be deemed a conviction of crime except as provided in sections 46b-126 and 46b-127.” Like our General Statutes, the Connecticut Rules of Practice contemplate a distinction between criminal matters and juvenile matters. Compare procedure in criminal cases, chapters 22 through 30, with procedure in juvenile matters, chapters 31 through 40. We note particularly that a juvenile delinquency hearing is circumscribed by Practice Book § 1034 (1), which provides: “The hearing shall not be conducted as a criminal trial; the proceedings shall be at all times as informal as the requirements of due process and fairness permit.”

In synthesizing the “fundamental fairness” analysis applicable to juvenile proceedings with the language of In re Gault pertinent to the sixth amendment right to notice, we conclude that the Appellate Court did not err in upholding the trial court’s allowance of the amended petition. As we noted above, In re Gault, supra, 33, requires that “notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation.” In the present case, the respondent, his attorney and his mother had known of the incident underlying the charges in both the original and the amended petitions since February 3, 1986. The state claims that Ted’s “surprise” testimony on the first day of the hearing prompted it to add the additional charges. The respondent has not challenged the state’s motives for adding the new charges, nor has he suggested that the additional charges resulted from bad faith on the part of the state. Further, the trial court continued the case for one week after allowing the amendment. Since the state had presented its witnesses’ testimony and the respondent had begun his cross-examination of the corespondent before the continuance, the continuance allowed the respondent to consider the scope of his further cross-examination of the co-respondent, and to investigate the new charges. Moreover, the continuance also allowed him to consider calling witnesses on his own behalf, and otherwise to challenge the evidence presented against him. The respondent has not claimed that the continuance did not provide adequate time to prepare a defense against the additional charges.

Finally, the record discloses that the respondent entered a plea of nolo contendere to the charge of conspiracy to commit robbery in the third degree. This charge was obviously a compromise, resulting from a plea bargain in which the respondent chose to plead guilty to the less serious charge. There is no claim that the plea was coerced or in any way involuntary. The record does not indicate any effort by the state to rush the respondent to judgment or to deprive him of the opportunity to be heard or to assert any desired defense to the charges. Because Practice Book § 1029 requires a continuance if the new allegations justify additional time for preparation, and because the trial court ordered a continuance, we conclude that the respondent was given notice “at the earliest practicable time . . . sufficiently in advance of” the scheduled court proceedings. In re Gault, supra, 33. Nothing in In re Gault establishes a per se rule forbidding a midtrial amendment to a petition of delinquency adding substantively different charges arising out of the same incident. We conclude that the respondent’s federal and state constitutional rights were not violated. It follows that the provisions of Practice Book § 624, which are inapplicable to juvenile delinquency proceedings, do not apply to the present case by reason of constitutional mandate.

We affirm the judgment of the Appellate Court.

In this opinion the other justices concurred.

       General Statutes § 46b-120 (c) provides in pertinent part: “[A] child may be found ‘delinquent’ (1) who has violated any . . . state law . . . ."

       “[General Statutes] Sec. 53a-135. robbery in the second degree: class c felony, (a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.
      “(b) Robbery in the second degree is a class C felony.”
      “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Practice Book § 1029 provides: “A petition may be amended at any time by the court on its own motion or in response to the motion of any interested party prior to the final adjudication of delinquency or neglect. When an amendment has been so ordered, a continuance shall be granted whenever the court finds that the new allegations in the petition, as amended, justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”

       The conditional plea of nolo contendere was based on General Statutes (Rev. to 1985) § 54-94a, which provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       “[General Statutes] Sec. 53a-136. robbery in the third degree: CLASS D FELONY, (a) A person is guilty of robbery in the third degree when he commits robbery.
      “(b) Robbery in the third degree is a class D felony.”
      “[General Statutes] Sec. 53a-48. CONSPIRACY. RENUNCIATION, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       See footnote 9, infra.

       The exceptions refer to transfers to the regular criminal docket of the Superior Court from the docket for juvenile matters.

       The respondent has cited a number of decisions from other jurisdictions to support his claim that a petition in a juvenile delinquency proceeding cannot be amended at midtrial to add different offenses under In re

        Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). None of these cases, however, involved midtrial amendments. See D.L., Jr. v. State, 491 So. 2d 1243, 1244 (Fla. App. 1986) (no amendment issue); D.P. v. State, 129 Ga. App. 680, 681, 200 S.E.2d 499 (1973) (receiving stolen goods not lesser included offense of burglary; no amendment issue); In re Interest of Bryant, 18 Ill. App. 3d 887, 892, 310 N.E.2d 713 (1974) (defective original petition); Interest of Korkosz, 393 So. 2d 332, 333 (La. App. 1980) (issue is whether state proved alleged offense beyond reasonable doubt).
      The respondent also cites the Arizona Court of Appeal’s opinion In re Appeal in Maricopa County, 21 Ariz. App. 542, 543, 521 P.2d 641, vacated, 111 Ariz. 103, 523 P.2d 1304 (1974), which only addressed the issue whether trespass is a lesser included offense of burglary. In that case, the juvenile was charged with burglary. Based on the evidence at trial, however, the trial court found that the juvenile had committed a trespass, and entered an adjudication of delinquency. The Court of Appeals reversed the trial court’s decision, on the basis that trespass was not a lesser included offense of burglary. Id. That decision, however, was subsequently vacated by the Arizona Supreme Court. In re Appeal in Maricopa County, 111 Ariz. 103, 523 P.2d 1304 (1974). The court first determined that the Court of Appeals was correct in concluding that trespass was not a lesser included offense of burglary. Id., 106. The court, however, reversed the lower court upon the following ground: “Nevertheless the adjudication of delinquency may still be upheld. Rule 4 (b), Rules of Procedure for the Juvenile Court, 17A A.R.S. provides that ‘A petition may be amended by order of the court at any time on its own motion or in response to the motion of any interested party before an adjudication; provided the parties are notified and granted sufficient time to meet the new allegations.’. . . It is apparent from the foregoing that the court had in effect amended the petition alleging acts of delinquency on the part of the juvenile. . . . However it appears from the record that the court should have permitted the parties sufficient opportunity to meet the new allegations. Therefore it is necessary to remand the case to the juvenile court in order to permit the parties an opportunity to address themselves to the allegation that the juvenile had committed trespass.” Id. A number of cases the respondent fails to cite, although arguably more on point, are ultimately distinguishable from the present case. In In re Roy C., 169 Cal. App. 3d 912, 915, 215 Cal. Rptr. 513 (1985), the court held that the trial court erred in allowing the state, after it had rested its case, to amend the petition to include another offense that was not a lesser included offense of the original charge. In that case, however, “no continuance was offered to prevent prejudice to [the juvenile].” Id. The court noted that, “given adequate time,” the juvenile could have developed a defense to the new charge. Id., 918; see also In Interest of Becker, 370 Pa. Super. 487, 496, 536 A.2d 1370 (1988) (holding that amendment at close of commonwealth’s case alleging new charge violated due process; no discussion of effect of possible continuance); In Interest of Bonner, 301 Pa. Super. 431, 435-36, 447 A.2d 1043 (1982) (invalidating midtrial “amendment” naming new defendant); cf. In re Man J., 149 Cal. App. 3d 475, 480, 197 Cal. Rptr. 20 (1983) (upholding midtrial amendment supplementing factual allegations of original charge).