author: Shea, J.

text:
    Claris Haylett v. Commission on Human Rights and Opportunities et al.
    (13331)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued March 2
    decision released May 24, 1988

      Nancy B. Alisberg, with whom was Ira Horowitz, for the appellant (plaintiff).

      Charles Krich, staff attorney, with whom was Philip Murphy, Jr., commission counsel, for the appellee (named defendant).

      Sharon M. Geanuracos, for the appellee (defendant Hebrew Home and Hospital).
   Shea, J.

The only issue in this appeal is whether the trial court erred in determining that General Statutes § 52-49 required the plaintiff, Claris Haylett, to designate a return date in her appeal to the Superior Court, which had been taken as authorized by General Statutes §§ 46a-95 (j) and 4-183 (a), within sixty days from the date when the defendant commission on human rights and opportunities (CHRO) mailed its adverse decision to her. We conclude that the specification in § 52-49 that appeals “from orders of commissioners and other administrative officers shall be taken to á return day of the superior court within sixty days after their allowance” is no longer operative and has been superseded by the general return day limitation of “two months after the date of the process” contained in General Statutes § 52-48 (b). Accordingly, we find error in the granting of the defendant’s motion to dismiss the appeal for lack of subject matter jurisdiction and remand the case to the trial court with direction to deny that motion.

The complaint alleges that, after the Hebrew Home and Hospital (Hebrew Home), a defendant in this case, had discharged the plaintiff, she filed with the CHRO on March 24, 1981, an age discrimination complaint against her employer. An investigator for the agency initially determined that there was reasonable cause for her charges against the Hebrew Home. After some unsuccessful conciliation efforts, however, the legal division of the CHRO, in reviewing the file before certification to a public hearing, concluded that her case was not “litigation worthy.” The CHRO ultimately dismissed the complaint filed with it and notified the plaintiff of this action on March 28,1985. She requested that the CHRO reconsider its dismissal of her complaint. On March 26,1986, the agency notified her by mail that this request had been denied.

On April 17, 1986, the plaintiff commenced her appeal of the CHRO’s dismissal of her complaint against the Hebrew Home, as authorized by § 46a-95 (j), by service of process. The return day upon which the defendants were summoned to appear in the Superior Court was June 3, 1986. After the CHRO had moved to dismiss the appeal for lack of subject matter jurisdiction, the trial court granted the motion on the ground that the return date specified in the complaint “was more than 60 days beyond March 26, 1986, the date of the . . . decision . . . .” The court concluded, therefore, that the complaint did not comply with the requirement of § 52-49 that appeals from administrative officers “shall be taken to a return day of the superior court within sixty days after their allowance.”

The practice of “allowing” appeals has ancient roots. Prior to the enactment of the appeals statute in 1882, chapter 50 of the 1882 Public Acts, there were no appeals as of right in this state. State v. Caplan, 85 Conn. 618, 622-24, 84 A. 280 (1912). “The writ of error is the common-law method, and formerly the only method in this State, of carrying up a cause from an inferior to a higher court for the revision of questions of law.” Id., 622. A party bringing a writ of error to a higher court first had to obtain an allowance of the writ. “Writs of error shall be allowed and signed, by the judges of the court, to which they are returnable . . . .” General Statutes (1821 Rev.) § 2-72. Out-present statutes relating to writs of error still contain the provision that “[a]ll writs of error shall be allowed and signed by a judge of the superior court or by the clerk of the court . . . .” General Statutes § 52-275. Our rules of practice have recently been amended to make it clear that the writ, “if in proper form, must be allowed.” (Emphasis added.) Practice Book § 4114 (a).

The practice of allowing appeals has been followed in the courts of probate since colonial times; Orcutt’s Appeal from Probate, 61 Conn. 378, 382, 24 A. 276 (1892); and is recognized by General Statutes § 45-294, which prescribes that a Probate Court “in allowing an appeal, shall make such order of notice to persons interested as it deems reasonable.” See George v. St. Ann’s Church, 182 Conn. 322, 324, 438 A.2d 97 (1980). Probate Court judges do not possess the discretionary authority to refuse to allow review by a higher court. A party cannot appeal directly from a refusal to allow an appeal, but may apply to a higher court for a writ of mandamus to compel the Probate Court to allow the appeal. Williams v. Cleaveland, 76 Conn. 426, 430, 56 A. 850 (1904); Orcutt’s Appeal from Probate, supra.

Section 52-49 has its origin in a statute regulating appeals from justices of the peace and other inferior courts. “Appeals from judgments of justices of the peace and from other inferior tribunals shall be taken to the return day of the appellate court next after their allowance . . . .” General Statutes (1918 Rev.) § 5588. A provision for allowance of an appeal from a justice of the peace had been contained in an earlier statute; General Statutes (1866 Rev.) c. 5, § 88, p. 19; and the allowance had been deemed a mere “clerical” act of the justice court. Spencer v. Broughton, 77 Conn. 38, 41, 58 A. 236 (1904). In 1925, § 5588 was amended to include appeals from “orders of commissioners and other administrative officers.” Public Acts 1925, No. 201. There is no recorded legislative history concerning this amendment nor can it be ascertained how the allowance of an appeal from “commissioners and other administrative officers” could be obtained. In 1959 an act deleted reference to appeals from justices of the peace and other inferior tribunals, thus leaving only appeals from administrative officials within its scope. Public Acts 1959, No. 28, § 106.

The CHRO contends that § 52-49 requires that, before a party whose complaint has been dismissed by the agency may appeal to the Superior Court, the agency must “allow” the appeal. The CHRO acknowledges that historically the allowance of appeals has been a judicial function. Brown v. McConnell, 124 U.S. 489, 490, 8 S. Ct. 559, 31L. Ed. 495 (1888). It argues, however, that the legislature must have intended that administrative agencies assume this judicial function because the 1925 amendment to the statutory predecessor of § 52-49 referred to appeals from administrative officers along with those from justices of the peace. Public Acts 1925, No. 201. The CHRO.concedes, however, that there is no authority or other evidence indicating that administrative agencies ever have exercised the function of “allowing” an appeal as a discrete act. It maintains, nevertheless, that mailing the notice of its final order dismissing the complaint constituted an allowance of the appeal by the agency because, only at that point, does the statute permit the appeal to be instituted.

To treat the mailing of the notice of decision, which marks the start of the period for taking an appeal, as also being the allowance of the appeal has the effect of removing the requirement for any separate act of allowance from § 52-49 and renders that provision of the statute largely superfluous. Such a view, attributing virtually no significance to the reference to an allowance of the appeal except in limiting the return day for the appeal, cannot be reconciled with the intention of the legislature in originally establishing this requirement for appeals from justices of the peace and other inferior courts, at a time when the term “allowance” referred to a specific act of such a court as a condition precedent to an appeal. The term “allowance” continues to be used in that sense in the context of writs of error as well as probate appeals. General Statutes §§ 52-275 and 45-294. To regard the mailing of the notice of decision as also an allowance of the appeal presents the paradox of an agency allowing an appeal from every one of its decisions, whether any such appeal is even contemplated. If we were to agree with the defendant’s argument that mailing of the notice of decision is also the allowance of the appeal, we would have to depart significantly from the well established meaning of that term as it has been used in our statutes and decisions.

Our conclusion that the allowance of an appeal referred to in § 52-49 cannot be equated with the start of the period for taking an appeal that is triggered by mailing the notice of decision leaves unresolved the determination of the point in time from which the sixty day period for the designation of a return day in taking an appeal after its allowance should be measured. The parties appear to agree that the CHRO has no mechanism for allowing appeals in the usual sense of that term. The statutes neither prescribe the procedure for allowing an administrative appeal nor designate the authority that is to perform that function. We are faced with the conundrum that in referencing the sixty day return day limitation to the allowance of an administrative appeal, § 52-49 points to a procedural event that no longer can occur in bringing such an appeal, whether or not it ever did.

We now conclude that whatever problems may have been created by the reference in § 52-49 to the allowance of appeals from administrative agencies without any prescribed procedure for such allowance have been resolved by the enactment of § 4-183 (b) and related provisions of our Uniform Administrative Procedure Act. The statute authorizing the present appeal, § 46a-95 (j), requires only that such an appeal be brought “in accordance with section 4-183,” except for a different venue provision. Section 4-183 (b) provides that appeals from administrative agencies “shall be instituted by filing a petition in superior court . . . within forty-five days after mailing of the notice of the final decision of the agency . . . .” It is undisputed that the plaintiff filed her petition on April 22, 1986, twenty-seven days after the CHRO mailed notice of its final decision on March 26,1986, and, therefore, complied with this requirement of § 4-183 (b). It is also uncontroverted that copies of the plaintiffs appeal were served within thirty days after the notice of the final decision of the agency had been mailed, as § 4-183 (b) further requires.

No reference to a return day is contained in § 4-183 (b). We do not view this omission as any indication that there should be no restriction upon the plaintiffs choice of date for the defendant to appear in response to an administrative appeal. The provisions of § 4-183 entitling a person “aggrieved by a final decision” to judicial review and prescribing the procedure for an administrative appeal also contain no reference to the allowance of such an appeal. Because the provision of § 52-49 for such an allowance is inoperative, as we have determined, and there is no precise point in our present procedure for an administrative appeal corresponding to the act of allowance, from which that statute measures its return day limitation, we conclude that the only effective limitation is the broadly applicable provision of General Statutes § 52-48 (b).

Section 52-48 (b) provides that “[a]ll process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.” Although we have been unable to identify in our present administrative appeal procedure any step corresponding to the allowance of an appeal, it appears that the date of the process would usually conform closely to the date on which an appeal is allowed where that practice is still followed. See General Statutes §§ 52-275 and 45-294. The “date of the process,” of course, refers to the date of the writ of summons or attachment which must be accompanied by the complaint. General Statutes §§ 52-45a and 52-45b.

The writ of summons in this appeal is dated April 15, 1986, and therefore the plaintiff’s designation of the “3th day of June, 1986,” as the return day complied with the two month limitation of § 52-48 (b). Accordingly, we conclude that the trial court erred in dismissing the appeal for failure to comply with § 52-49, which we conclude no longer has any legal force.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to deny the defendant’s motion to dismiss.

In this opinion the other justices concurred

       “[General Statutes] Sec. 52-49. appeals prom administrative officers, when returnable. Appeals from orders of commissioners and other administrative officers shall be taken to a return day of the superior court within sixty days after their allowance; but nothing contained in this section shall be construed to change the time which may be expressly prescribed by statute in any particular case for taking an appeal.”

       General Statutes § 46a-95 (j) provides: “The commission, any respondent or any complainant aggrieved by a final order of a hearing officer or any complainant aggrieved by the dismissal of his complaint by the commission may appeal therefrom in accordance with section 4-183, except venue for such appeal shall be in the judicial district where the discriminatory practice is alleged to have occurred or in the judicial district in which such person resides or transacts business. The court on appeal shall also have jurisdiction to grant to the respondent or complainant such temporary relief or restraining order as it deems just and suitable, and in like manner to make and enter a decree enforcing or modifying and enforcing as so modified or setting aside, in whole or in part, the order sought to be reviewed.”

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in case of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

       General Statutes § 52-48 (b) provides: “All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”

       General Statutes § 4-183 (b) provides: “Proceedings for such appeal shall be instituted by filing a petition in superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the aggrieved person resides or if such person is not a resident of this state to the court for the judicial district of Hartford-New Britain within forty-five days after mailing of the notice of the final decision of the agency or, if a rehearing is requested, within forty-five days after mailing of the notice of the decision thereon. Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice or, if a rehearing is requested, within thirty days after mailing of the notice of the decision thereon, except that service upon an agency may be made by the appellant mailing a copy of the petition by registered or certified mail, postage prepaid, without the use of a sheriff or other officer, to the office of the commissioner of the agency or to the office of the attorney general in Hartford.”

       In this case the plaintiff obtained a waiver of fees and costs because of her indigency, the order of waiver also being dated April 15,1986. Service of the appeal documents was not completed until April 17, 1986.

       The printed record in this case contains a typographical error, as it indicates that the writ of summons called for the defendants to appear in court on the “30th day of June, 1986.” The original complaint designates the return day as the “3th day of June, 1986.” The appearance forms filed by the defendants also state a return date of “June 3, 1986.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. Ray David Hahn
    (13324)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued April 14
    decision released May 24, 1988

      Michael J. McClary, with whom, on the brief, was John J. Keefe, Jr., for the appellant (defendant).

      James A. Kitten, deputy assistant state’s attorney, with whom, on the brief, were John J. Kelly, chief state’s attorney, Domenick Galluzzo, deputy chief state’s attorney, James G. Clark, assistant state’s attorney, Cathryn Krinitsky, deputy assistant state’s attorney, and Jack Fischer, legal intern, for the appellee (state).
   Peters, C. J.

The dispositive issue in this appeal is whether improper notarization of an incomplete mortgage deed constitutes forgery in the second degree, as defined by General Statutes § 53a-139 (a) (l), in light of an information charging the defendant with false completion of a mortgage deed. The state alleged that the defendant, Ray David Hahn, with intent to defraud, deceive or injure Peter T. Dallicker, Martha H. Dallicker and Gerda Larras, had falsely completed their mortgage deed to the Dartmouth Plan, Inc. (Dartmouth Plan), by having added his name as notary and having falsely acknowledged that these individuals had personally appeared before him to execute this written instrument. After a jury verdict finding the defendant guilty as charged, the defendant unsuccessfully moved the trial court for a new trial or a judgment of acquittal. The defendant has appealed from the trial court’s judgment of conviction. We find error.

The jury could reasonably have found the following facts. The defendant was employed as the credit manager of East Coast Siding Company (East Coast Siding), a contracting firm engaged in making home improvements. He had become a notary public at his employer’s request. As credit manager, he processed credit applications submitted by the company’s sales representatives. For mortgage financing, East Coast Siding relied upon the Dartmouth Plan. Such mortgages were initiated by having a sales representative ask his customers to sign a form denominated “Mortgage Deed” that designated the Dartmouth Plan as mortgagee. After notarization of the customers’ signatures by the defendant, and the addition of the signatures of one or more witnesses, the mortgage was then forwarded to the Dartmouth Plan, which undertook to make the relevant credit checks of prospective mortgagors. Upon approval of credit, the Dartmouth Plan inserted the description of the mortgaged property in the mortgage deed and saw to its recordation.

The underlying transaction that led to the charges against the defendant arose out of a home improvement contract entered into in early September, 1985, between East Coast Siding and Peter and Martha Dallicker, and their son, Peter Dallicker, Jr. The Dallickers had contacted Sears, Roebuck and Company (Sears) in response to a Sears advertisement, and Sears, in accordance with prior arrangements of which the Dallickers were unaware, had forwarded their call to East Coast Siding. As the result of negotiations with an East Coast Siding sales representative, the Dallickers agreed to purchase windows and gutters to be installed at their New Fairfield family home, of which Gerda Larras was a co-owner. Although the Dallickers had expected financing for this acquisition to be arranged in accordance with their unsecured Sears line of credit, they unwittingly signed a document entitled “Mortgage Deed” that named the Dartmouth Plan as mortgagee.

The East Coast Siding sales representative forwarded a bundle of papers signed by the Dallickers to the East Coast Siding home office. There, the mortgage deed bearing their signatures, and that of Gerda Larras, was “witnessed” by Mark Scafariello, East Coast Siding’s general manager, and then forwarded to the Dartmouth Plan. Because the mortgage deed did not then contain the requisite notarization, an employee of the Dartmouth Plan, Nancy Perretta, asked the defendant to come to the Dartmouth Plan office in Rocky Hill on September 3,1985, to remedy this omission. In Perretta's presence, the defendant added his name as notary public in the acknowledgement portion of the mortgage deed. None of the mortgagors whose signatures he was acknowledging was then present. Thereafter Perretta signed her name to the deed as a witness to the signatures of the mortgagors, although at trial she testified that she was witnessing the defendant’s notarization. No description whatsoever of the Dallicker property was on the deed at that time. At some time thereafter, that information was inserted into the mortgage deed and it was recorded by the town clerk in New Fairfield on November 23, 1985.

On this factual showing, the defendant was convicted of forgery in the second degree. In this appeal, the defendant claims the trial court erred: (1) in denying his motions for acquittal; (2) in charging the jury about various allegedly irrelevant aspects of the forgery statute; and (3) in denying his motion for a mistrial. Since we agree with the first claim of error, we need not address the latter two.

The defendant claims that the trial court should have ordered his acquittal because the evidence was insufficient to prove the charge against him, namely that he had falsely completed an incomplete mortgage deed with intent to defraud, deceive or injure, in violation of General Statutes § 53a-139 (a) (1). In assessing this claim, we need to refer to the precise contours of the charge against the defendant, which the state amplified in a long form information filed in response to a court order by Geen, J., granting the defendant’s motion for a bill of particulars and for a statement of essential facts. The state accused the defendant of having “falsely completed said written instrument [the mortgage deed from Peter T. Dallicker, Martha H. Dallicker and Gerda Larras] when he added/inserted his name as Notary and he acknowledged that Peter T. Dalliker [sic], Martha H. Dalliker [sic] and Gerda Larras personally appeared before him in the County of Fairfield, Connecticut and that they executed said instrument on September 3,1985, thereby transforming an incomplete written instrument into a complete mortgage deed without the authority of anyone entitled to grant it, so that such complete mortgage deed appeared on said land records and purported to be in all respects an authentic creation of or fully authorized by Peter T. Dalliker [sic], Martha H. Dalliker [sic], and Gerda Larras, its ostensible makers, in violation of Connecticut General Statutes Section 53a-139.” (Emphasis added.)

The defendant maintains that the evidence adduced at trial did not prove, beyond a reasonable doubt, either that he had “falsely completed” the Dallicker mortgage or that he had possessed the requisite criminal intent to defraud, deceive or injure. On appeal, our review of such a claim of error involves a two step process. We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found “ ‘upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .’ ’’(Citations omitted.) State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Cavallo, 200 Conn. 664, 673, 513 A.2d 646 (1986).

The evidence in this case would have permitted the jury to find that the defendant intentionally notarized a false acknowledgement on a mortgage deed. There was, however, no evidence before the jury that the mortgage deed, at the time of the defendant’s improper notarization, contained any description whatsoever of the mortgaged property. To the contrary, evidence from the state’s own witness indicated that the deed contained only the signatures of the intended mortgagors, the name of the intended mortgagee, and Scafariello’s signature as witness.

The question before us is whether this evidence establishes guilt beyond a reasonable doubt of the crime of forgery in the second degree as that crime was particularized in a long form information that repeatedly emphasized the defendant’s wrongful completion of a mortgage deed. Once a detailed information has been filed, “the state is limited to proving that the defendant has committed the offense in substantially the manner described.” State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Eason, 192 Conn. 37, 40-41, 470 A.2d 688 (1984); State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983).

In approaching this question, we are aided by the provisions of the penal code that provide definitions for forgery and related offenses. “Complete written instrument” is defined in General Statutes § 53a-137 (2) as “one which purports to be a genuine written instrument fully drawn with respect to every essential feature thereof.” Consistently, an “incomplete written instrument,” under § 53a-137 (3), “requires additional matter in order to render it a complete written instrument.” A person “falsely completes” a written instrument, according to § 53a-137 (5), when he “transforms an incomplete written instrument into a complete one, without the authority of anyone entitled to grant it, so that such complete instrument appears or purports to be ... fully authorized by its ostensible maker

Applying these definitions in the present circumstances, we must decide whether a mortgage deed that contains no description of the mortgaged property can reasonably be held to be “fully drawn with respect to every essential feature thereof.” We conclude that it cannot. Whether we turn to the requirements of our recordation statutes; General Statutes §§ 47-5, 47-10 and 47-36c; or to those of the statute of frauds; General Statutes § 52-550; it is evident that a mortgage is unenforceable without identification of the mortgaged property. “[Contracts for the sale of real estate must contain with certainty, without regard to parol proof, at least the essentials which describe the subject of the sale, its terms, and the parties to the contracts, thereby furnishing evidence of a complete agreement.” Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 11, 420 A.2d 1142 (1979); Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 485-86, 460 A.2d 1297 (1983). In this state, mortgages are conveyances of legal title; Conference Center Ltd. v. TRC, 189 Conn. 212, 218, 455 A.2d 857 (1983). Accordingly, we conclude that there was insufficient evidence to support the defendant’s conviction for forgery insofar as he was accused of having falsely completed the Dallicker mortgage.

The state argues that the defendant’s conviction can, however, be sustained on an alternate ground, that the defendant falsely completed not the mortgage deed itself but the acknowledgement portion of the deed. The state concedes, as it must, that the long form information charged the defendant only with false completion of the Dallicker mortgage deed. Nonetheless, the state maintains that it can rely on a theory of variance to invoke that part of § 53a-137 (2)’s definition of a “complete written instrument” that states that “[a]n endorsement, attestation, acknowledgement or other similar signature or statement is deemed both a complete written instrument in itself and a part of the main instrument in which it is contained or to which it attaches.” The evidence at trial, according to the state, would support a conviction on this latter basis, the defendant having admitted the signature on the acknowledgement portion of the mortgage deed to be his. Arguing that, on this record, an amendment at trial to conform the information to the proof would have been permitted, the state urges us to hold that the defendant was on notice of his potential culpability for his false acknowledgement of the Dallicker mortgage. We are unpersuaded.

This court has, in limited circumstances, permitted a criminal conviction to be grounded on a variance from the precise contours of the crime that the information charged the defendant with having committed. When a defendant at trial has acquiesced in enlargement of the crime charged to include an alternative method of committing it, we have held that a deviation between the pleadings and the proof “does not rise to the level of a constitutional violation unless the record establishes a lack of proper notice or prejudice to the defendant.” State v. Franko, 199 Conn. 481, 493, 508 A.2d 22 (1986); State v. Scognamiglio, 202 Conn. 18, 21-25, 519 A.2d 607 (1987). In those cases, the predicated acquiescence was found in the defendant’s failure to object to the admission of evidence on, and instructions to the jury about, the alternative method of committing the crime charged.

In this case, the record at trial demonstrates no acquiescence in enlargement of the crime charged. The defendant took vigorous exception, throughout, to the introduction of evidence unrelated to his allegedly felonious completion of a mortgage deed. He similarly excepted to those portions of the trial court’s instructions to the jury that went beyond the specific aspects of the statute that he had been charged with having violated, and continued, indeed, to press this issue in his claims of error on appeal to this court. Furthermore, even the state at trial explicitly justified its evidentiary proffers as consistent with the crime as charged in the long form information. In this vein, the state defended one of its requests for a jury instruction by stating: “One of the elements of the crime is falsely completing a written instrument in order for it to be a deed.” On this record, the defendant had fair notice only of a charge of false completion of a mortgage deed and not of false completion of an acknowledgement.

In the absence of evidence sufficient to support the only crime with which the defendant was charged, his conviction of forgery in the second degree cannot stand. The trial court was in error in denying his motions for acquittal.

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

In this opinion the other justices concurred.

       General Statutes § 53a-139 (a) (1) provides: “forgery in the second degree: class d felony, (a) A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed: (1) A deed, will, codicil, contract, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status.”

       The Dallickers’ complaint about their home improvement contract was limited to its financial aspects. Although the work done by East Coast Siding was acceptable, and although they had expected to incur finance charges to pay for the work, they had not understood that the Dartmouth Plan would assume the status of a secured creditor with a mortgage on their home. The identity of the Dartmouth Plan became known to them upon the receipt of payment notices, but they learned of the recordation of the mortgage only when they decided to sell their property.

         The record reveals that the statement of essential facts as well as the bill of particulars in this case are identical with the long form information that the state supplied to the defendant.

       “[General Statutes] Sec. 47-5. conveyances to be in writing and acknowledged. All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances or, if the grantor is a corporation or partnership,’ subscribed by a duly authorized person; (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands.”
      “[General Statutes] Sec. 47-10. deeds to be recorded. No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies. When a conveyance is executed by a power of attorney, the power of attorney shall be recorded with the deed, unless it has already been recorded in the records of the town in which the land lies and reference to the power of attorney is made in the deed.”
      “[General Statutes] Sec. 47-36c. statutory forms for deeds. The forms set forth in this section may be used and are sufficient for their respective purposes. They shall be known as ‘Statutory Form’ and may be referred to as such. Nothing in this chapter precludes the use of any other legal form of deed or mortgage. . . .
      MORTGAGE DEED
      ... of ... to secure payment of . . . dollars with interest payable as provided in a certain, promissory note dated . . . with final maturity on . . . grant to . . . of . . . with mortgage covenants . . .
      (Description and Encumbrances, if any and any additional provisions)
      This mortgage is made upon the statutory condition
      Signed this . . . day of . . . , 19 . . .
      Witnessed by:
      (Acknowledgment)’ ’

       “[General Statutes] Sec. 52-550. statute of frauds; written agreement or memorandum, (a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; or (5) upon any agreement that is not to be performed within one year from the making thereof.
      “(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.”

       The state argues that parol evidence is always admissible between the immediate parties to a real property transaction. The cases upon which the state relies for this novel proposition are, however, distinguishable because they involve the use of parol evidence not to establish missing property descriptions but to interpret ambiguous property descriptions in the context of boundary disputes. F. & AK, Inc. v. Sleeper, 161 Conn. 505, 510-11, 289 A.2d 905 (1971); Fogg v. Wakelee, 40 Conn. Sup. 272, 283, 492 A.2d 843 (1983), aff'd, 196 Conn. 287, 492 A.2d 511 (1985). These cases do not persuade us that a mortgage deed that lacks a property description can properly be characterized as a “complete written instrument.”

       We recognize that the defendant does not concede that his false acknowledgement suffices to prove his guilt of this alternate method of committing forgery in the second degree. At trial, the defendant vigorously resisted efforts by the state to explore the particulars of the acknowledgement. Mark Scafariello, the defendant’s superior at East Coast Siding, testified that part of the acknowledgement was handwritten by someone other than the defendant. In light of our disposition of the defendant’s appeal, we need not explore the further ramifications of this argument.


text:
    Frederick Payne v. Carl Robinson, Warden
    (13177)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.

      Argued April 6
    decision released May 24, 1988

      John F. Kavanewsky, Jr., with whom, on the brief, was James V. Guarino, for the appellant (petitioner).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, were Robert O’Brien and James G. Clark, assistant state’s attorneys, for the appellee (respondent).
   Peters, C. J.

We granted certification of the petitioner’s appeal from the Appellate Court to consider the following issue: Under what circumstances, if any, does the exclusionary rule of the fourth amendment apply to probation revocation hearings? The petitioner, Frederick Payne, sought a writ of habeas corpus, alleging that the revocation of his probation violated due process. After the trial court’s denial of his petition, the petitioner appealed to the Appellate Court, which upheld the trial court’s decision. Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987).

The record discloses the following facts: On January 27, 1982, the petitioner was on probation. Early that morning, police officer Joseph Greene received information from a complainant that the petitioner had threatened him with a gun. Shortly thereafter, Greene stopped the petitioner in his automobile. After requesting that the petitioner get out of the car and frisking him, Greene conducted a search of the car and found a small loaded revolver under the driver’s seat. The police subsequently arrested the petitioner on charges of threatening in violation of General Statutes § 53a-62, and carrying a dangerous weapon in a motor vehicle in violation of General Statutes § 29-38.

While these charges were pending, the state charged the petitioner with violating the conditions of his probation pursuant to General Statutes § 53a-32. During the subsequent probation revocation hearing, the petitioner did not question, either by a motion to suppress or by an objection, the admission of the gun into evidence. The trial court, McKeever, J., found that the petitioner had been arrested while having in his possession a loaded revolver for which he did not have a permit. The petitioner had thereby violated that condition of his probation that required him to obey the laws of the state. The trial court consequently granted the state’s request to revoke the petitioner’s probation.

The petitioner thereafter sought a writ of habeas corpus challenging the trial court’s revocation of his probation on several grounds, including its failure to suppress the gun. The habeas court, Corrigan, J., denied the petition, holding that even if the petitioner had made a timely suppression motion at the revocation hearing, the warrantless search of the car had been reasonable under the circumstances, because the police had had probable cause to believe that the car contained evidence pertaining to a crime. See State v. Reddick, 189 Conn. 461, 467, 456 A.2d 1191 (1983). On appeal, the Appellate Court affirmed the judgment of the trial court on a different ground, concluding that the exclusionary rule of the fourth amendment did not apply to the probation revocation proceedings at issue. Payne v. Robinson, supra, 400. We granted certification to consider the issue of the applicability of the exclusionary rule to probation revocation proceedings. We now affirm the judgment of the Appellate Court.

I

Prior to turning to the merits, we must determine whether the petitioner’s claim is properly before us. Two circumstances potentially impede our review: the petitioner’s failure directly to appeal the revocation of his probation; see State v. Roberson, 165 Conn. 73, 81-82, 327 A.2d 556 (1973); and his failure timely to move for suppression of the gun or to object to its admission.

We have often reiterated that habeas corpus may not be used as an alternative to a direct appeal. See, e.g., Galland v. Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). In order to obtain review of a constitutional claim in a collateral proceeding, therefore, a petitioner must first allege and prove by a preponderance of the evidence that he did not deliberately bypass the orderly process of direct appeal. Galland v. Bronson, supra. Here the petitioner alleged that he had not deliberately bypassed a direct appeal. During the hearing, he testified that his attorney had informed him that he would file an appeal but that none was ever filed. In its memorandum of decision the trial court simply stated that “[t]he respondent does not contest that the record before this court does not show a deliberate bypass.” On this basis, we conclude that the petitioner sustained his burden of proving that he did not deliberately bypass a direct appeal.

We turn next to the petitioner’s failure at the revocation proceeding either to move to suppress the gun or to object to its admission. On direct appeal, we will review claims that were not properly preserved at trial when they facially implicate fundamental constitutional rights and are adequately supported by the record. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We perceive no reason why the same rule should not apply to constitutional claims raised for the first time in a collateral proceeding so long as they are not barred by the petitioner’s deliberate bypass of a direct appeal. Cf. State v. Barrett, 205 Conn. 437, 443-44, 534 A.2d 219 (1987). In the case at hand, the petitioner’s claim implicates his right to be free from unreasonable searches, guaranteed by the fourth and fourteenth amendments to the United States constitution. In addition, the record is adequate to support review of his claim. See State v. Williams, 205 Conn. 456, 460, 534 A.2d 230 (1987); State v. McIver, 201 Conn. 559, 563, 518 A.2d 1368 (1986). Accordingly, we turn to the merits.

II

Whether the exclusionary rule of the fourth amendment to the United States constitution applies to probation revocation hearings requires us to explore the rule’s underlying purpose. In United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974), the United States Supreme Court observed: “The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim .... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures . . . .” Application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered. Id., 348. Under this approach, we “must weigh the potential injury” to the probation revocation process from the exclusion of relevant evidence “against the potential benefits of the rule as applied in this context.” Id., 349; see also United States v. Janis, 428 U.S. 433, 447, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976).

The purpose of probation revocation proceedings is to determine whether a probationer is complying with the conditions of his probation. United States v. Winsett, 518 F.2d 51, 55 (9th Cir. 1975); see also Griffin v. Wisconsin, 483 U.S. 868, 874-75, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987). In such proceedings, the government has an interest in accurate factfinding that is likely to be impaired when otherwise reliable and relevant evidence is excluded from the proceeding. United States v. Winsett, supra. Against this interest, we must balance the deterrent effect that may result from applying the exclusionary rule to probation hearings under the facts of this case.

We conclude that application of the rule would at best achieve only a marginal deterrent effect. Illegally obtained evidence is inadmissible in a criminal trial. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961). Where, as here, there is no evidence that the police officer was aware that the suspect is on probation, further exclusion of such evidence in a probation revocation hearing would not appreciably enhance the deterrent effect already created by the inadmissibility of the evidence at trial. Since the use of evidence in a probation revocation hearing “falls outside the offending officer’s zone of primary interest”; United States v. Janis, supra, 458; exclusion of such evidence will not significantly affect a police officer’s motivation in conducting a search. Accordingly, we agree with the Appellate Court’s view that the balance of interests does not favor the application of the exclusionary rule to a probation hearing in these circumstances. Accord United States v. Bazzano, 712 F.2d 826, 832-33 (3d Cir. 1983), cert. denied sub nom. Mollica v. United States, 465 U.S. 1078, 104 S. Ct. 1439, 79 L. Ed. 2d 760 (1984); United States v. Vandemark, 522 F.2d 1019, 1020 (9th Cir. 1975); United States v. Winsett, supra, 54; United States v. Hill, 447 F.2d 817, 818 (7th Cir. 1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1164 (2d Cir. 1970); Ex parte Caffie, 516 So. 2d 831, 835-36 (Ala. 1987); State v. Sears, 553 P.2d 907, 913 (Alaska 1976); State v. Alfaro, 127 Ariz. 578, 579-80, 623 P.2d 8 (1980) (en banc); People v. Ressin, 620 P.2d 717, 720 (Colo. 1980); Thompson v. United States, 444 A.2d 972, 974 (D.C. App. 1982); People v. Dowery, 62 Ill. 2d 200, 204-206, 340 N.E.2d 529 (1975); Kain v. State, 378 N.W.2d 900, 901-902 (Iowa 1985); State v. Davis, 375 So. 2d 69, 74-75 (La. 1979); State v. Caron, 334 A.2d 495, 499 (Me. 1975); State v. Thorsness, 165 Mont. 321, 326-27, 528 P.2d 692 (1974); Stone v. Shea, 113 N.H. 174, 176-77, 304 A.2d 647 (1973); State v. Lombardo, 306 N.C. 594, 600, 295 S.E.2d 399 (1982); State v. Nettles, 287 Or. 131, 139, 597 P.2d 1243 (1979); State v. Spratt, 386 A.2d 1094, 1095 (R.I.1978); Gronski v. State, 700 P.2d 777, 780 (Wyo. 1985); contra Adams v. State, 153 Ga. App. 41, 42, 264 S.E.2d 532 (1980); State v. Burkholder, 12 Ohio St. 3d 205, 206-207, 466 N.E.2d 176, cert. denied, 469 U.S. 1062, 105 S. Ct. 545, 83 L. Ed. 2d 432 (1984); Michaud v. State, 505 P.2d 1399, 1402-1403 (Okla. Crim. App. 1973).

The petitioner nonetheless argues that the protection of judicial integrity is a distinct purpose of the exclusionary rule that warrants application of the rule to this case. We are not persuaded. While the exclusionary rule of the fourth amendment may originally have had an independent basis in concern for judicial integrity; see, e.g., Elkins v. United States, 364 U.S. 206, 222-23, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960); over time this interest has been subordinated to the courts’ focus on deterrence. See United States v. Janis, supra, 458-59 n.35; Tirado v. C.I.R., 689 F.2d 307, 309-10 n.3 (2d Cir. 1982), cert. denied, 460 U.S. 1014, 103 S. Ct. 1256, 75 L. Ed. 2d 484 (1983). We therefore perceive no need to consider judicial integrity as an independently significant factor.

Finally, we emphasize that in holding that the exclusionary rule does not apply to this case, we do not reach the question of whether the exclusionary rule would apply in probation revocation proceedings when the police officer who had conducted the search was aware or had reason to be aware of the suspect’s probationary status. If illegally obtained evidence was admissible in such circumstances, the police officer might very well discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation. Application of the exclusionary rule to the probation hearing might therefore contribute significantly to the deterrence of illegal searches. See United States v. Bazzano, supra, 833 n.1; United States v. Rea, 678 F.2d 382, 389-90 (2d Cir. 1982); United States v. Workman, 585 F.2d 1205, 1211 (4th Cir. 1978); United States v. Winsett, supra, 54 n.5; Ex parte Caffie, supra, 836; State v. Sears, supra, 914; People v. Ressin, supra, 720-21; Thompson v. United States, supra, 974; Kain v. State, supra, 902; State v. Davis, supra, 75.

Ill

The petitioner’s final contention is that failure to apply the exclusionary rule to probation revocation hearings violates his right to equal protection of the law. The petitioner does not argue that distinguishing between trials and probation revocation hearings for the purposes of the rule creates an invidious classification warranting strict scrutiny. See Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063 (1975). He maintains, however, that because failure to apply the rule in probation revocation hearings impinges on a fundamental right, his right to liberty, it must be justified by a compelling state interest. See id. We are not persuaded. While the loss of liberty resulting from the revocation of probation is a serious deprivation requiring that the probationer be accorded due process of law; Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480-84, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); the liberty interest at stake is not absolute, but conditioned on compliance with the terms of probation. It therefore does not rise to the level of a. fundamental right triggering strict scrutiny analysis. See Morrissey v. Brewer, supra, 480; see also Griffin v. Wisconsin, supra; cf. Laden v. Warden, supra, 544.

Under these circumstances, the appropriate inquiry is whether there is a rational basis for the admission of evidence in probation revocation hearings that would be subject to the exclusionary rule in criminal trials. See State v. Davis, 190 Conn. 327, 342-43, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983); Liistro v. Robinson, 170 Conn. 116, 124, 365 A.2d 109 (1976); Laden v. Warden, supra, 543. As we noted above, the state has a legitimate interest in accurate factfinding in probation revocation proceedings. This interest is clearly furthered by the admission of all reliable evidence, even that which is arguably obtained in violation of the fourth amendment. In addition, the state has an interest in deterring illegal searches and seizures. This interest, however, is not served by the exclusion of illegally seized evidence in probation revocation proceedings when the offending officer was unaware of the suspect’s probationary status. We conclude that failure to apply the exclusionary rule in such circumstances is rationally related to legitimate state interests.

Accordingly, we affirm the judgment of the Appellate Court.

In this opinion the other justices concurred.

       Alternatively, we may construe this record to demonstrate that the state effectively waived any claim that the petitioner deliberately bypassed a direct appeal. While we have often characterized the question of deliberate bypass as “jurisdictional”; e.g., Galland v. Bronson, 204 Conn. 330, 336, 527 A.2d 1192 (1987); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979); and thus arguably not waivable; see State v. Kelley, 206 Conn. 323, 332, 537 A.2d 483 (1988); the rule is rather a prudential limitation on the right to raise constitutional claims in collateral proceedings. See Vena v. Warden, 154 Conn. 363, 366-67, 225 A.2d 802 (1966); see also Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
      Due to our limited grant of jurisdiction, we hold in abeyance the question whether the holding in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), that claims under the exclusionary rule of the fourth amendment may not normally be raised in federal habeas corpus proceedings applies equally to state habeas corpus proceedings. This issue must await proper briefing in another case.

       During his closing argument, counsel for the petitioner argued that the gun should have been suppressed because it was seized illegally. Throughout the proceeding, the petitioner’s principal defense was that the gun did not belong to him.

       In his brief, defense counsel referred to article first, § 7, of the Connecticut constitution. Nevertheless, at oral argument, he conceded that only the exclusionary rule of the fourth amendment to the United States constitution is at issue. Accordingly, we do not consider whether the Connecticut constitution compels a different result.

       During the probation revocation hearing, Greene testified that he knew the petitioner from previous incidents and had seen his car numerous times. The petitioner, however, did not introduce any evidence at this hearing or during the habeas corpus proceedings indicating that Greene was or should have been aware of his probationary status.

       Although Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), dealt with the revocation of probation, “revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole.” Gagnon v. Scarpelli, 411 U.S. 778, 782 n.3, 83 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).


author: Arthur H. Healey, J.

text:
    Barbara Beaudoin v. Town Oil Company, Inc.
    (13296)
    Peters, C. J., Healey, Callahan, Glass and Covello, Js.
    Argued March 8
    decision released May 24, 1988

      William J. Melley III, with whom were Richard W. Gifford and, on the brief, Paul B. Groobert, for the appellant (plaintiff).

      Jack G: Steigelfest, with whom, on the brief, were Robert P. Volpe and Constance L. Epstein, for the appellee (defendant).
   Arthur H. Healey, J.

This appeal arises out of an action for indemnification filed by the plaintiff, Barbara Beaudoin, against the defendant, Town Oil Company, Inc. (Town Oil). This claim arises out of another action in which the plaintiff attempted to implead the defendant via a third party complaint requesting indemnification, but the trial court, Kelly, J., granted the defendant’s motion to strike the third party complaint. The plaintiff then filed the instant independent action on the same theory of indemnification and the court, Kelly, J., granted a motion to strike that complaint. The plaintiff’s appeal on the latter motion to strike is before us on this appeal. We find no error.

It is appropriate to set out the facts and procedural history as revealed by the pleadings in this case. The plaintiff and her former husband, Ronald Stavens, owned a house in Vernon in 1976, in which the defendant, pursuant to a contract signed by it and Stavens, installed urea formaldehyde foam insulation (UFFI). The defendant represented in the terms of the contract that the insulation was nontoxic, harmless and safe. Stavens subsequently transferred his interest in the property to the plaintiff incident to a divorce settlement. On September 23, 1983, the plaintiff sold the house to Thomas and Barbara Shubbuck. The Shubbucks filed an action against the plaintiff and other parties on April 9,1985. In the first count of their third amended complaint, the Shubbucks alleged that Marilyn Kuhnly, individually and d/b/a Century 21, acted as the agent in the 1983 sale of the property and, during the negotiations, had stated falsely “that the residence was insulated with a safe material and did not contain urea formaldehyde foam insulation.” The second count, also against Kuhnly individually and d/b/a Century 21, alleged that Kuhnly’s conduct had constituted an unfair trade practice prohibited by General Statutes § 42-110b. The third count against Barbara Beaudoin alleged that she and her former husband falsely or without knowing either the truth or falsity, while falsely assuming knowledge, had stated that the home had been insulated with materials other than UFFI. The fourth count, against Kuhnly individually and d/b/a Century 21, alleged that Kuhnly’s false representations had been made wilfully or wantonly in reckless disregard of the rights of the Shubbucks.

In that action, Beaudoin moved to implead Town Oil as a third party defendant pursuant to General Statutes § 52-102a. The court, Kelly, J., granted Town Oil’s motion to strike the third party complaint because the “ ‘plaintiff’s [Shubbucks’] claim against’ the defendant seller [Beaudoin] is one for misrepresentation of a material fact, while [Beaudoin’s] claim against the third-party defendant [Town Oil] is one for a defective product. None of the allegations of the third-party complaint supports a claim that the third-party defendant is somehow liable for all or part of the seller’s misrepresentation of material faet. Each claim is entirely independent of the other.” Beaudoin’s motion for permission to amend the third party complaint was denied by the trial court, which then rendered judgment for Town Oil. Beaudoin has filed a timely appeal of this decision. The Shubbucks have also filed an independent action against the defendant Town Oil, seeking damages caused by the installation of UFFI.

The plaintiff then commenced the instant action by filing a six count complaint against the defendant alleging that it was liable on the basis of the product liability act; General Statutes § 52-572m et seq.; strict liability, express and implied warranties, negligence and false representations. The plaintiff claimed indemnity for all or part of the damages alleged by the Shubbucks, including the expenses incurred by her in defending the action by the Shubbucks.

The defendant then filed a motion to strike this action on the ground that the complaint failed “to state claims upon which relief may be granted in that [it fails] to state cognizable claims for indemnification and for the further reason that the Plaintiff should be collaterally estopped from claiming otherwise.” The trial court, Kelly, J., granted the motion to strike. The plaintiff filed a motion for articulation and the trial court’s memorandum opined that the plaintiff had not made out a legally sufficient claim for indemnification for an exception to the general rule that there is no right to indemnity between joint tortfeasors, as outlined in Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 782 (1965). The conclusory memorandum did not point out which part of the four part Kaplan test that the plaintiff had failed to meet. Judgment was rendered for the defendant and this appeal followed.

The plaintiff claims on appeal that the trial court erred in holding that her complaint was legally insufficient to support an action for indemnification. Specifically, the plaintiff claims that: (1) the plaintiff and the defendant are not joint tortfeasors, and thus the general rule against indemnification does not apply; (2) even if the plaintiff and the defendant are joint tortfeasors, there are other applicable exceptions to the Kaplan rule, such as the one outlined in § 886B (2) of the Restatement (Second) of Torts; (3) the active/passive distinction under the Kaplan test is not applicable to an indemnity claim based on products liability; and (4) even if the active/passive distinction under Kaplan applies, the plaintiff could be held liable for misrepresentations by Kuhnly, her former husband Stavens, and the defendant, thus making her conduct passive. In its brief, the defendant counters the plaintiffs arguments on indemnification and also asserts that the plaintiff should be collaterally estopped from relitigating the claim of indemnification since the issue was resolved by the trial court, Kelly, J., when it dismissed the previous third party complaint. Although more properly understood as the “prior pending action doctrine” rather than collateral estoppel; see Halpern v. Board of Education, 196 Conn. 647, 652, 495 A.2d 264 (1981); we agree with the defendant that the trial court properly dismissed the plaintiffs complaint claiming indemnification.

“It has long been the rule that when two separate lawsuits are ‘virtually alike’ the second action is amenable to dismissal by the court. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981).” Solomon v. Aberman, 196 Conn. 359, 382, 493 A.2d 193 (1985); Halpern v. Board of Education, supra. The prior pending action doctrine has evolved as “a rule of justice and equity”; Hatch v. Spofford, 22 Conn. 485, 494 (1853); and retains its vitality in this state in which “joinder of claims and of remedies is permissive rather than mandatory.” Solomon v. Aberman, supra.

This rule of justice and equity is always applicable when two suits are virtually alike and are brought in the same jurisdiction. Halpern v. Board of Education, supra, 652-53; Henry F. Raab Connecticut, Inc., supra, 112; Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 392, 185 A. 82 (1936); Hatch v. Spofford, supra. We have explained the doctrine as follows: “ Tt is so, because there cannot be any reason or necessity for bringing the second [lawsuit], and, therefore, it must be oppressive and vexatious.’ ” Dettenborn v. Hartford-National Bank & Trust Co., supra, quoting Hatch v. Spofford, supra. “ ‘The rule forbidding the second action is not, however, one “of unbending rigor, nor of universal application, nor a principle of absolute law . . . .” Hatch v. Spofford, [supra].Farley-Harvey Co. v. Madden, 105 Conn. 679, 682, 136 A. 586 (1927); see Brochin v. Connecticut Importing Co., 137 Conn. 350, 352, 77 A.2d 336 (1950); Dettenborn v. Hartford-National Bank & Trust Co., supra, 393.” Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., supra, 113; Halpern v. Board of Education, supra, 653. “We must examine the pleadings to ascertain whether the actions are ‘virtually alike.’ See Solomon v. Aberman, supra, 383.” Halpern v. Board of Education, supra.

In the third party complaint to implead the defendant in the original action brought by the Shubbucks, the plaintiff alleged a product liability claim under General Statutes § 52-572m et seq. The complaint alleged that: the third party defendant (defendant) had failed to warn the third party plaintiff (plaintiff) about the defective insulation; the defendant had misrepresented the insulation’s safety to the plaintiff and general public; the defendant had failed to disclose the dangerousness of the insulation; the defendant had been negligent in failing properly to test it; the defendant had installed the insulation in a defective manner; the defendant had continued to distribute the insulation although it knew or should have known of its dangerous characteristics; the defendant had breached an implied warranty of merchantability; and the defendant had breached its express warranties. The relief requested by the third party plaintiff Beaudoin entails indemnification for all liability incurred by her in the action by the Shubbucks (the plaintiffs in that case) and the costs of defending that action.

In the instant action, the plaintiff filed a six count complaint against the defendant which asserted the following theories of liability: product liability, strict liability, breach of express warranty, breach of implied warranty, negligence and illegal representations. The plaintiff sought money damages, punitive damages and reasonable attorney’s fees.

The complaint in the instant case appears at first glance to allege a different action, as the theories of liability do not contain verbatim allegations. On closer examination, however, the pleadings in each case request the same relief on the same underlying facts. The only difference is the precise wording of the theories of liability under which the defendant would be liable to the plaintiff for her own potential liability in the action by the Shubbucks. The crux of the plaintiff’s claim, as outlined in both complaints, is that any damages that she is liable to pay the Shubbucks and the costs of defending the action are the direct result of the installation of the allegedly defective insulation by the defendant. The variations in the allegations of the theories of liability are merely different ways to characterize how the defendant’s actions resulted in liability to the plaintiff. The modern trend, which is followed in Connecticut, is to construe “pleadings broadly and realistically, rather than narrowly and technically.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390, 494 A.2d 1222 (1985); see also Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985); Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978). In Burgess v. Vanguard Ins. Co., 192 Conn. 124, 126, 470 A.2d 244 (1984), when discussing a claim that a cause of action be divided into two counts, this court said that if “the plaintiff’s claims for relief grow out of a single occurrence or transaction or closely related occurrences or transactions they may be set forth in a single count and it does not matter that the claims for relief do not have the same legal basis.” The same reasoning applies in this context. Whether the counts are listed separately or are subsumed under the product liability count is immaterial. All of the issues raised in this appeal of the trial court’s ruling were raised in the previous third party complaint that was stricken by the trial court and already preserved for appeal.

The policy behind the “prior pending action doctrine” is to prevent unnecessary litigation that places a burden on our state’s already crowded court dockets. See Dettenborn v. Hartford-National Bank & Trust Co., supra, 392. We have described the policy behind the impleader statute, General Statutes § 52-102a, in a similar fashion: “The purpose of § 52-102a, like that of [Federal] Rule 14 (a), is clearly to obviate the multiplicity of actions. 3 Moore, Federal Practice (2d Ed.), f 14-04.” Senior v. Hope, 156 Conn. 92, 96, 239 A.2d 436 (1968). This court has also noted: “ ‘The object of the [impleader] rule was to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense of many suits and many trials. . . .’ Jordan v. Stephens, 7 F.R.D. 140, 142 [1945].” Schurgast v. Schumann, 156 Conn. 471, 485, 242 A.2d 695 (1968). If litigants ignore the benefits of the impleader statute and courts refuse to encourage its use, the goal of efficient administration of justice will be injured. “ ‘Parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings.’ Hillyer v. Winsted, 77 Conn. 304, 306, 59 A. 40 (1904).” Friedlander v. Friedlander, 191 Conn. 81, 89, 463 A.2d 587 (1983).

Despite these principles of policy, the plaintiff, at oral argument, asserted that considerations of judicial economy cut the other way and she urges this court to decide the issue of whether the defendant is liable to the plaintiff under indemnity principles on this appeal, rather than wait for a final judgment below and the appeal at that time. We disagree. First of all, a favorable outcome to the plaintiff in the trial court would render her appeal of the striking of the third party complaint moot. More important, even though a judicial “shortcut” can be tempting in a case such as this, the implications of such an action and the message it would send to this state’s litigants would be unfortunate. Any party that lost a motion in the trial court would be tempted and encouraged to file separate lawsuits on the same legal theory rather than to wait for the orderly process of appeal. The plaintiff conceded at oral argument that there were no issues presented on this appeal that could not be raised in an appeal of an adverse judgment below. We conclude that all the policy reasons for the prior pending action doctrine apply in this case and the trial court therefore did not err in dismissing the action. The plaintiff had the opportunity, of which she availed herself, to protect her rights by a timely filing of her notice of intent to appeal the striking by the trial court of her earlier motion to implead Town Oil in the original action instituted by the Shubbucks.

We find no error.

In this opinion the other justices concurred.

       General Statutes § 52-102a provides in part: “impleading of third PARTY BY DEPENDANT. RIGHTS AND REMEDIES OF THIRD-PARTY DEFENDANT. (a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded.”

       The six count complaint alleged:
      “complaint
      “first count
      “1. By writ, summons and complaint returnable April 9,1985, Thomas Shubbuck and Barbara Shubbuck commenced an action in the Superior Court for the Judicial District of New London against the plaintiff and others which action was later transferred to the Judicial District of Tolland. The third count thereof was directed against the plaintiff. Copy of said writ, summons and complaint is annexed hereto as Exhibit A.
      “2. At all times relevant, the defendant, Town Oil Company, Inc., has been a corporation organized and existing under the laws of the State of Connecticut, with a principal place of business at 786 Silas Deane Highway, Wethersfield, Connecticut.
      “3. The Shubbucks have alleged in the third count that the house that they purchased from the plaintiff on September 23, 1983, was insulated with urea formaldehyde foam insulation which they claim is defective, unreasonably dangerous and unhealthy and that as a result thereof, they have sustained damages.
      “4. The insulation complained of by the Shubbucks was sold to the plaintiff, Barbara Beaudoin, and her then husband, Ronald Stavens, by the defendant, Town Oil Company, Inc,, and installed by defendant, Town Oil Company, Inc., all pursuant to a contract dated September 7, 1976.
      “5. The defendant, Town Oil Company, Inc., is a product seller within the meaning of Sec. 52-572m (a) of the C.G.S.
      “6. If said insulation is defective as has been alleged by the Shubbucks in their complaint, then said insulation was defective within the meaning of Sec. 52-572[m] et seq. in one or more of the following respects, in that:
      “(a) It contained dangerous or unhealthy ingredients as alleged by the Shubbucks which rendered it unreasonably dangerous to the plaintiff;
      “(b) It was not accompanied by adequate warnings or instructions within the meaning of Sec. 52-572[m] sufficient to prevent the harm alleged by the Shubbucks or otherwise alert users or consumers of the product of its dangerous and unhealthy propensities;
      “(c) As has been alleged by the Shubbucks, said insulation was in a defective and unreasonably dangerous condition and could not be used without unreasonable risk of injury to persons coming into contact with it. Said insulation was expected to and did reach the plaintiff without substantial change in the condition from which it was manufactured and sold;
      “(d) The defendant failed to warn or instruct the plaintiff that said insulation was dangerous and unhealthy as has been alleged by the Shubbucks;
      “(e) The defendant, Town Oil Company, Inc., misrepresented to the plaintiff and the general public that the insulation in question was safe for use;
      “(f) The defendant, Town Oil Company, Inc., failed to disclose to the plaintiff or the general public the dangerous propensities of said insulation as has been alleged by the Shubbucks;
      “(g) The defendant, Town Oil Company, Inc., was negligent in that it failed to properly and adequately test said insulation prior to marketing it; in that said insulation was installed in a defective manner; in that it knew or should have known of the dangerous characteristics of said insulation yet continued its sale and distribution; in that it used improper materials in the composition of said insulation;
      “(h) The defendant breached an implied warranty of merchantability in that said insulation was not of merchantable quality and fit for its intended purpose;
      “(i) The defendant breached its express warranties that said insulation was safe and effective for its intended use.
      “7. The insulation in question was not altered or modified in any way by the plaintiff or any other party from the condition in which it was manufactured and sold to the plaintiffs.
      “8. By virtue of the above and the provisions of C.G.S. Sec. 52-5721 et seq., the defendant is liable to the plaintiff for all or part of the damages alleged by the Shubbucks including personal injuries and property damage alleged in the third count of the Shubbucks’ complaint.
      “9. As a further result of said insulation’s defective condition as alleged by the Shubbucks, the plaintiff has incurred costs and expenses of defending herself in the action brought by the Shubbucks. The plaintiff, Barbara Beaudoin, claims that the defendant, Town Oil Company, Inc., is liable to her for said costs and expenses of defending herself.
      “10. The plaintiffs losses and damages were a direct result of the defendant’s reckless disregard for the safety of the plaintiff and others. “SECOND COUNT
      “Paragraphs 1, 2, 3, 4 and 9 of the first count are hereby made paragraphs 1 through 5 inclusively of the second count as if fully set forth herein.
      “6. The defendant is in the business of selling and installing insulation.
      “7. The insulation sold and installed by the defendant was expected to and did reach the plaintiff and the Shubbucks without substantial change.
      “8. Said insulation was in a defective and unreasonably dangerous condition.
      “9. Said insulation was dangerous to an appreciable number of people.

        “10. Said insulation allegedly caused physical harm to the Shubbucks.
      “11. By virtue of the foregoing the defendant is strictly liable to the plaintiff for any injuries, losses, damages sustained by the Shubbucks and by the plaintiff as a result of the Shubbucks’ law suit.
      “third count
      “Paragraphs 1, 2, 3, 4 and 9 of the first count are hereby made paragraphs 1 through 5 inclusively of the third count as if fully set forth herein.
      “6. The defendant expressly warranted that the insulation was non-toxic and harmless and that it was safe.
      “7. The plaintiff relied upon said warranty.
      “8. The defendant breached its expressed warranty and as a result the Shubbucks commenced the aforesaid action against the plaintiff.
      “9. The defendant was duly notified of said breach of warranty and said law suit within a reasonable time.
      “FOURTH COUNT
      “Paragraphs 1, 2, 3, 4 and 9 of the first count are hereby made paragraphs 1 through 5 inclusively of the fourth count as if fully set forth herein.
      “6. The defendant impliedly warranted that said insulation was fit for the ordinary purpose for which it was intended and it was of measurable quantity.
      “7. The plaintiff relied upon said warranties.
      “8. The defendant breached said implied warranties in that said insulation was not of merchantable quality nor was it reasonably fit for its intended purpose and as a result the Shubbucks sued the plaintiff to the plaintiff’s loss and damage.
      “9. The defendant was duly notified of said breaches and said loss suit within a reasonable time.
      “FIFTH COUNT
      “Paragraphs 1, 2, 3, 4 and 9 of the first count are hereby made paragraphs 1 through 5 inclusively of the fifth count as if fully set forth herein.
      “6. Said occurrences were due to the negligence of the defendant in one or more of the following respects:
      “(a) It failed'to exercise reasonable care to inform the plaintiff of said dangers.
      “(b) It failed to properly inspect and test said insulation.
      “(c) Although it knew or in the exercise of reasonable care should have known of the dangers inherent in said insulation, it failed to recall said insulation or to alert the plaintiff and her purchaser to the dangers of said insulation in accordance with its continuing duty.
      “(d) It represented to the plaintiff that said insulation was non-toxic and harmless and otherwise safe when it knew or in the exercise of reasonable care should have known of its dangers.

        “SIXTH count
      “Paragraphs 1, 2, 3, 4 and 9 of the first count are hereby made paragraphs 1 through 5 inclusively of the sixth count as if fully set forth herein.
      “6. The defendant represented to the plaintiff that said insulation was non-toxic and harmless and was safe.
      “7. Said representations were false.
      “8. The plaintiff relied upon said material representations.
      “9. The plaintiff’s losses and damages were a direct result of the defendant’s reckless disregard for the safety of the plaintiff and others.
      “WHEREFORE, the plaintiff claims:
      “1. Money damages;
      “2. Punitive damages;
      “3. Reasonable attorney’s fees”

       The trial court’s memorandum on the motion to strike provided: “The plaintiff, Barbara Beaudoin, brings a six count complaint sounding [in] indemnification against the defendant, Town Oil Company, Inc. The plaintiff alleges that on April 9, 1985, Mr. and Mrs. Shubbuck filed suit against her alleging an action sounding in misrepresentation. A copy of the April 9, 1985 complaint is annexed to plaintiffs complaint. In the April 9,1985 complaint, the Shubbucks allege that they bought a house from the plaintiff, and the plaintiff made false representations to the effect that the house did not contain urea formaldehyde foam insulation. In the present action the plaintiff brings an action for indemnification claiming that the defendant, Town Oil Company, Inc., installed the insulation and alleging a violation of the products liability act, strict liability, express and implied warranties and negligence.
      “On April 2,1987, the defendant moved to strike the complaint. The court, Kelly, J., granted the motion without a written opinion on May 5, 1987. The plaintiff has now filed a motion for articulation.
      “A motion to strike tests the legal sufficiency of a pleading. Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472 [427 A.2d 385] (1980). A motion to strike admits all well pleaded allegations. State v. Bashura, 37 Conn. Sup. 745 [436 A.2d 785] (1981). The court must construe the facts in the complaint most favorably to the plaintiff. Amodio v. Cunningham, 182 Conn. 80 [438 A.2d 6] (1980).
      “The defendant brings the motion to strike alleging that the plaintiff’s complaint is legally insufficient to support an action for indemnification. Indemnity involves a claim for reimbursement in full from one where primary liability is claimed to rest. Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412 [207 A.2d 732] (1965). Ordinarily there is no right of indemnity between joint tort-feasors. Id. An exception to the general rule is that one tort-feaser may seek indemnity from another if the latter was ‘primarily’ negligent and the former only ‘secondarily’ negligent. See Fidelity & Casualty Co. v. Jacob Ruppert, Inc., 135 Conn. 307 [63 A.2d 849] (1949). One seeking indemnity on the ground of ‘primary’ negligence must show: (1) the indemnitor was negligent; (2) the indemnitor’s negligence (rather than the indemnitee’s) was the direct, immediate cause of the injury; (3) the indemnitor was in control of the situation to the exclusion of the indemnitee; and (4) the indemnitee did not know of the indemnitor’s negligence, had no reason to anticipate it, and could reasonably rely on the indemnitor not to be negligent. Kaplan [v. Merberg Wrecking Corporation, supra, 416].
      “Accordingly, the court concludes that the allegations in the complaint are legally insufficient to indemnify the plaintiff for her misrepresentations. The motion to strike the complaint is granted.”

       While this appeal was pending, this court released Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 695, 535 A.2d 357 (1988), where we held that the active/passive distinction does not apply in the context of a statutory produet liability action. We concluded that the product liability act has abrogated common law principles in this area. Id., 702. The court, however, noted that its holding applied only to situations in which all potential defendants are parties to the suit. Id., 702 n.2. It also stated: “We noted in addition that this decision does not address the question of under what circumstances a party may seek indemnification for liability imposed upon him in a product liability suit through either a statutory or express contractual claim.” Id., 703. Whether Kyrtatas controls this case is an issue whose resolution can await another day.

       The third party complaint provided:
      “third party complaint
      “1. By writ, summons and complaint returnable April 9,1985, the plaintiffs commenced an action in the Superior Court for the Judicial District of New London, against Marilyn Kuhnly and Barbara Beaudoin. Said aetion was later transferred to the Judicial District of Tolland and an amended complaint was filed under date of March 29,1985. The third eount of that complaint is directed toward Barbara Beaudoin, the third party plaintiff herein. A copy of the amended complaint is attached as exhibit A.

        “2. At all times relevant, the third party defendant, Town Oil Company, Inc., has been a corporation organized and existing under the laws of the State of Connecticut, with a principal place of business at 786 Silas Deane Highway, Wethersfield, Connecticut.
      “3. The plaintiffs [Thomas and Karen Shubbuck] have alleged in paragraphs 6, 7, 8, 9 and 10 of the third count of the amended complaint that the house that they purchased from this third party plaintiff [Barbara Beaudoin] on September 23, 1983, was insulated with urea formaldehyde foam insulation which they claim is defective, unreasonably dangerous and unhealthy and that as a result thereof, they have sustained damages.
      “4. The insulation complained of by the plaintiffs was sold to the third party plaintiff herein, Barbara Beaudoin, and her then husband, Ronald Stavens, by the third party defendant, Town Oil Company, Inc., and installed by said third party defendant, Town Oil Company, Inc., all pursuant to a contract dated September 7, 1976.
      “5. The third party defendant, Town Oil Company, Inc., is a product seller within the meaning of Sec. 52-572m (a) of the C.G.S.
      “6. If said insulation is defective as has been alleged by the plaintiffs in the third count of their complaint, then said insulation was defective within the meaning of Sec. 52-572[m] et seq. in one or more of the following respects, in that:
      “(a) It contained dangerous or unhealthy ingredients as alleged by the plaintiffs which rendered it unreasonably dangerous to the plaintiffs, the third party plaintiff, and others coming into contact with it;
      “(b) It was not accompanied by adequate warnings or instructions within the meaning of Sec. 52-572[m] sufficient to prevent the harm alleged by the plaintiffs or otherwise alert users or consumers of the product of its dangerous and unhealthy propensities;
      “(c) As has been alleged by the plaintiffs, said insulation was in a defective and unreasonably dangerous condition and could not be used without unreasonable risk of injury to the third party plaintiff, the plaintifffs] and others coming into contact with it. Said insulation was expected to and did reach the third party plaintiff without substantial change in the condition from which it was manufactured and sold;
      “(d) The third party defendant failed to warn or instruct the third party plaintiff that said insulation was dangerous and unhealthy as has been alleged by the plaintiffs;
      “(e) The third party defendant, Town Oil Company, Inc., misrepresented to the third party plaintiff and the general public that the insulation in question was safe for use;
      “(f) The third party defendant, Town Oil Company, Inc., failed to disclose to the third parly plaintiff or the general public the dangerous propensities of said insulation as has been alleged by the plaintiffs];
      “(g) The third party defendant, Town Oil Company, Inc., was negligent in that it failed to properly and adequately test said insulation prior to marketing it; in that said insulation was installed in a defective manner; in that it knew or should have known of the dangerous characteristics of said insulation yet continued its sale and distribution; in that it used improper materials in the composition of said insulation;
      “(h) The third party defendant breached an implied warranty of merchantability in that said insulation was not of merchantable quality and fit for its intended purpose;
      “(i) The third party defendant breached its express warranties that said insulation was safe and effective for its intended use.
      “7. The insulation in question was not altered or modified in any way by the third party plaintiff or any other party from the condition in which it was manufactured and sold to the third party plaintiff.
      “8. By virtue of the above and the provisions of C.G.S. Sec. 52-5721 et seq., the third party defendant is liable to the third party plaintiff for all or part of the damages alleged by the plaintiffs including personal injuries and property damage alleged in the third count of the plaintiffs’ amended complaint.
      “9. Asa further result of said insulation’s defective condition as alleged by the plaintiffs, the third party plaintiff has incurred costs and expenses of defending herself in the action brought by the plaintiffs. The third party plaintiff, Barbara Beaudoin, claims that the third party defendant, Town Oil Company, Inc., is liable to her for said costs and expenses of defending herself.
      “statement re: claims for relief and amount in demand
      “The third party plaintiff claims of the third party defendant:
      “1. Indemnification from any judgment that may be rendered against her in favor of the plaintiffs;
      “2. Costs, expenses and attorneys’ fees incurred in defending the plaintiffs’ lawsuit and in processing this third party complaint;
      “3. Money damages;
      “4. Such other and further relief as the court may deem just and equitable.
      “The amount in demand is in excess of $2,500.00 and is in excess of $15,000.00, exclusive of interest and costs.”

       See footnote 2, supra.

       We express no view on whether the trial court was correct when it dismissed the third party complaint. That issue, having been properly preserved for appeal, would be more appropriately decided on appeal when and if the plaintiff Beaudoin suffers an adverse judgment in the trial court.