author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. RALPH BYRD
    (14966)
    Callahan, C. J., and Berdon, Norcott, Katz and Peters, Js.
    Officially released December 3, 1996

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom were Margaret Gaffney Radionovas, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, and Robert Ihunetti, assistant state’s attorney, for the appellee (state).
   PER CURIAM.

The defendant, Ralph Byrd, was convicted after a jury trial of manslaughter for the stabbing death of his brother. At the defendant’s trial, the court admitted into evidence, for impeachment purposes, a statement made to the police by the defendant shortly after the crime had taken place. In making its ruling, the trial court determined that the defendant’s statement was voluntary. The defendant appealed to the Appellate Court claiming, inter alia, that the statement was involuntary within the meaning of article first, § 8, of the state constitution and, therefore, that the trial court had improperly admitted it into evidence for impeachment purposes. State v. Byrd, 34 Conn. App. 368, 379, 641 A.2d 818 (1994). In connection with his claim, the defendant argued that the voluntariness determination under article first, § 8, should be governed by the totality of the circumstances test set forth in State v. Smith, 200 Conn. 465, 477, 512 A.2d 189 (1986), rather than by the test espoused in Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), which requires coercive police conduct as a predicate to finding that a confession is not voluntary under the federal constitution. State v. Byrd, supra, 380-81. The Appellate Court declined to reach the defendant’s state constitutional claim, concluding that the record was inadequate to review it. Id., 382.

We granted certification to consider, inter alia, whether the record was sufficient to review the defendant’s state constitutional claim and, if it was, whether the defendant should have prevailed on that claim. We concluded that it was unclear whether, in determining that the defendant’s statement was voluntary, the trial court had applied the test in Connelly, or the totality of the circumstances test in Smith. State v. Byrd, 233 Conn. 517, 522-23, 659 A.2d 1201 (1995). Accordingly, we remanded the case to the trial court for the “purpose of articulating whether it found the defendant’s statement to be voluntary because of the absence of police misconduct, or on the basis of the totality of the circumstances” and, if it employed the latter standard, to “articulate specifically what facts it relied upon in making that finding.” Id., 523.

On July 8,1996, the trial court responded to our order for articulation stating that it had determined that the defendant’s statement to the police was voluntary under the pre-Connelly totality of the circumstances test used in Smith. The court further stated that it had relied on the following facts in reaching its conclusion: “(a) [the] defendant [was] given time by police to calm himself; (b) police provided the defendant with food and coffee; (c) [the] defendant [was] allowed contact with family members who were present; (d) police did not restrain the defendant (handcuffs not applied); (e) [the] defendant was calm, spoke freely, and did not exhibit slurred or incoherent speech; (1) [the] defendant appeared to understand all questions, was responsive thereto, and, as to such, did not refuse to answer any; and (g) [the] defendant had no difficulty completing [the] Miranda waiver form by correctly initialing the form where required.”

Because the trial court in this case applied the pre-Connelly totality of the circumstances test that the defendant had urged it to adopt as the voluntariness standard under the state constitution, we need not decide whether, as a general matter, the standard for voluntariness under article first, § 8, is different from the federal standard enumerated in Connelly. The defendant’s sole remaining claim in the present appeal is that the record does not support the trial court’s finding of voluntariness. We disagree.

“The state bears the burden of proving the voluntariness of the defendant’s confession by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 484, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Madera, 210 Conn. 22, 39, 554 A.2d 263 (1989). The trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. . . . State v. Atkinson, [235 Conn. 748, 759, 670 A.2d 276 (1996)]. On the ultimate issue of voluntariness, however, we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . . State v. Chung, [202 Conn. 39, 54, 519 A.2d 1175 (1987)] . . . .” (Citations omitted; internal quotation marks omitted.) State v. Lapointe, 237 Conn. 694, 728, 678 A.2d 942 (1996). Our independent review of the record leads us to concur in the trial court’s finding that the defendant’s confession was voluntary under the totality of the circumstances.

The judgment is affirmed.

       The trial court did not specify whether it was deciding the voluntariness issue under the state or the federal constitution.

        State v. Smith, supra, 200 Conn. 465, was decided by this court prior to the publication of Colorado v. Connelly, supra, 479 U.S. 167. Smith was decided solely on federal constitutional grounds.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    ROSEMARIE SPATAFORE v. YALE UNIVERSITY
    (15496)
    Callahan, C. J., and Borden, Katz, and Palmer, Js.

      Argued October 30
    officially released December 3, 1996

      Gerald P. Dwyer, for the appellant (plaintiff).

      John M. Lelizia, with whom, on the brief, was Andrew A. Cohen, for the appellee (defendant).

       After oral argument in this case, Justice McDonald recused himself and the parties have agreed to have this appeal decided by a panel of this court consisting of the four remaining justices who heard the appeal.

   KATZ, J.

The dispositive issue in this appeal is whether an employee who, during her unpaid lunch break, sustained an injury while walking back to work from a union meeting, has a compensable injury under the Workers’ Compensation Act (act). We conclude that she does not.

The following facts are undisputed. The plaintiff, Rosemarie Spatafore, is a clerical employee of the defendant, Yale University, and a union representative for Local 34 of the Federation of University Employees, Hotel and Restaurant Employees International. On August 24, 1992, the plaintiff was returning to work after having attended a weekly union meeting during her unpaid lunch break when she fell on a sidewalk that was owned by Yale-New Haven Hospital, Inc., and injured her left arm. The plaintiff worked at the defendant’s office of professional services in the Famham building, which is located between Howard and Cedar Streets in the Yale University Hospital complex. The union meeting was held in the defendant’s Sterling cafeteria on Cedar Street. The meeting was a weekly meeting held for union representatives throughout the area and was not a special grievance meeting or negotiating session. The defendant, as an employer, was not permitted to attend the meeting, and the plaintiffs attendance at the meeting was voluntary.

Pursuant to General Statutes § 31-294c (a), the plaintiff submitted a claim for workers’ compensation benefits. Thereafter, on August 30,1993, pursuant to General Statutes § 31-297, workers’ compensation commissioner John A. Arcudi (commissioner) held a hearing during which the collective bargaining agreement (agreement) between the defendant employer and the union was introduced. On March 30, 1994, the commissioner issued a written finding and award in which he found that, according to the agreement, the plaintiff was not permitted to engage in union activities during work time and that the union was permitted to make reasonable use of the defendant’s facilities. The commissioner further found that the plaintiff had sustained an injury to her left upper extremity when she tripped on a crack in the sidewalk while returning to her office in the Yale-New Haven Hospital complex in New Haven, following a union meeting at Sterling Hall, a Yale University Medical School building. The commissioner further found that the route the plaintiff had taken from the meeting to her office was direct. Following the articulation of these facts, the commissioner determined that the plaintiffs attendance at the union meeting on August 24, 1992, had been for the mutual benefit of the plaintiff and the defendant, that the plaintiffs “going and coming from the meeting was therefore part of her employment or an activity incidental to it,” and that, consequently, her injury was compensable under the act and she was entitled to all indemnity and medical benefits thereunder.

Thereafter, on April 7,1994, pursuant to General Statutes § 31-301, the defendant filed a petition for review with the compensation review board (board) together with a motion for extension of time to file reasons for appeal. The board acknowledged the appeal, assigned it a case number, and thereby asserted its jurisdiction over the matter. The defendant also filed with the commissioner a motion to correct the finding, asking that the commissioner add certain facts to his decision. Neither the defendant nor the plaintiff requested an opportunity to submit additional evidence or to conduct further evidentiary hearings. The board allowed the defendant two weeks from the commissioner’s ruling on the motion to correct to file its reasons for the appeal.

On May 2,1994, the commissioner withdrew his finding and award and ordered further evidentiary hearings regarding the ownership of the facilities involved, the relationship of the defendant to the union, and the relationship of Yale University School of Medicine to Yale-New Haven Hospital, Inc. On August 18,1994, before the commissioner, the defendant objected to any further hearings or submission of further evidence, claiming that because the case was pending before the board, the commissioner lacked jurisdiction to withdraw his decision and to order further evidentiary hearings on factual issues that had been covered. The hearing, however, proceeded over the defendant’s objection.

Despite the events before the commissioner, the board, having asserted jurisdiction over the matter, denied a jointly filed motion for a continuance, determined that no further evidence was necessary and set a briefing schedule. On September 14, 1995, the board issued its opinion. It first concluded that the defendant’s motion to correct, not having been expressly ruled on by the commissioner, was deemed denied. According to the board, the failure to act on the motion to correct was insignificant because, taking the facts as originally found, the claimant had not suffered a compensable injury. The board found no evidence to support the commissioner’s determination that the plaintiffs injuries arose out of and had been suffered in the course of her employment. Specifically, the board found no evidence to support the commissioner’s conclusion that the plaintiffs attendance at the union meeting had been for the mutual benefit of the plaintiff and the defendant, particularly because the defendant had had no involvement with the union meeting and the plaintiff had been on an unpaid lunch break while at the meeting. The board concluded that “independent evidence of a benefit to the employer regarding union activity must be shown before a trial commissioner may conclude that such activity benefits an employer.” Moreover, the board concluded that because the plaintiffs injuries undisputedly did not occur on the defendant’s property, the plaintiff would be required to demonstrate that her injury resulted “from some peculiar danger involved in the course taken or means used by [her] in coming to or going from work [and] it must appear that such danger was a risk annexed to the employment by the employer’s contemplating and acquiescing in the use thereof by the employee.” (Internal quotation marks omitted.) The board concluded that because the plaintiff had not met that burden, her injuries were not compensable under the act. This appeal followed.

On appeal the plaintiff claims that the board: (1) exercised an improper standard of review; (2) improperly overturned the commissioner’s factual findings that the plaintiffs attendance at the union meeting was of mutual benefit to the plaintiff and the defendant and that the plaintiffs injury was compensable; and (3) improperly usurped the commissioner’s function. We are not persuaded.

It is well settled that, because the puipose of the act is to compensate employees for injuries without fault by imposing a form of strict liability on employers, to recover for an injury under the act a plaintiff must prove that the injury is causally connected to the employment. To establish a causal connection, a plaintiff must demonstrate that the claimed injury (1) “arose out of the employment,” and (2) “in the course of the employment.” Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984); McNamara v. Hamden, 176 Conn. 547, 556, 398 A.2d 1161 (1979). “Proof that the injury arose out of the employment relates to the time, place and circumstances of the injury. McNamara v. Hamden, supra, 550. Proof that the injury occurred in the course of the employment means that the injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. [Id.], 550-51; Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 745-46, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).” (Internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 349-50, 630 A.2d 1027 (1993).

The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). A party aggrieved by a commissioner’s decision to grant or deny an award may appeal to the board pursuant to § 31-301, which provides in pertinent part: “(a) At any time within ten days after entry of an award by the commissioner . . . either party may appeal therefrom to the Compensation Review Board . . . . (b) The appeal shall be heard by the Compensation Review Board .... The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the Compensation Review Board may hear additional evidence or testimony, (c) Upon the final determination of the appeal by the Compensation Review Board . . . [it] shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the Compensation Review Board shall include its findings, conclusions of law and award. . . .” “[T]he [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [The board] is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citations omitted; internal quotation marks omitted.) Fair v. People’s Savings Bank, supra, 538-39.

“To the extent that we have articulated a standard for reviewing a determination by a commissioner that an injury arose out of the employment, we have treated this issue as factual in nature and, therefore, have accorded the commissioner’s conclusion the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause. A finding of a fact of this character [whether the injury arose out of the employment] is the finding of a primary fact. . . . This ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function. . . . This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one of fact. . . . The [board] is, therefore, bound by the findings of fact made by the commissioner, unless additions, corrections or modifications of findings of fact are made pursuant to the narrow provision set forth in § 31-301 [b].” (Citations omitted; internal quotation marks omitted.) Crochiere v. Board of Education, supra, 227 Conn. 347-48.

The plaintiff argues that, although the board acknowledged its limited scope of review, it nevertheless disregarded the substantial body of evidence supporting the commissioner’s award. In response, the defendant argues that the board did not find new facts or disregard the evidence supporting the plaintiffs claim. The defendant claims, rather, that the board determined that the conclusions the commissioner had made, based upon the facts he properly had found, were not reasonably sound. We agree with the defendant.

It is undisputed that the injury to the plaintiff occurred on property that was owned by someone other than her employer while she was returning to work from a union meeting that she had attended during her unpaid lunch break. It is generally recognized that “[where] the employee has a definite place and time of work, and time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the work day, and should be governed by the same rules and exceptions. . . . [Thus], when the employee with fixed time and place of work has left the premises for lunch, he is outside of the course of his employment if he falls, is struck by an automobile crossing the street, or is otherwise injured.” 1 A. Larson & L. Larson, Workmen’s Compensation (1996) § 15.51, pp. 4-158 through 4-162; see also McKiernan v. New Haven, 151 Conn. 496, 498-99, 199 A.2d 695 (1964) (“[a] principal reason for this rule is that employment ordinarily does not commence until the claimant has reached the employer’s premises, and consequently an injury sustained prior to that time would ordinarily not occur in the course of the employment so as to be compensable”).

Because in these “going and coming” cases the injury has occurred to an employee acting outside the place and period of employment, in situations tangential to employment “the need arose to reach out for the additional element of employer benefit to make up for the fact that employees going to or coming from work do not satisfy both of the first two course-of-employment requirements, place and period of employment.” McNamara v. Hamden, supra, 176 Conn. 553. Consequently, when an employee has sustained an injury while traveling to and from work, but there also existed some work related recreational or social aspects, as in traveling to a union sponsored picnic, the benefit test has been applied and we have held that that employee could fall within the act’s coverage by demonstrating that the activity that took him outside the place and period of employment had been for the employer’s benefit. Williams v. State, 152 Conn. 692, 211 A.2d 700 (1965); see Smith v. Seamless Rubber Co., 111 Conn. 365, 368-69, 150 A. 110 (1930). This “independently convincing association with the employment” is needed in order to “overcome the initial presumption of disassociation with the employment established by the time and place factors.” 1A A. Larson & L. Larson, supra, § 22.11, p. 5-92.

Traditionally, attendance at a union meeting was viewed as a benefit solely for the employee with no concomitant benefit to the employer and therefore did not fall within the course of employment. Id., § 27.33 (a), p. 5-410. Even when the union meeting was held on the employer’s premises, the activity was deemed personal and, therefore, compensation to the employee injured while at the union meeting was denied. See, e.g., Pacific Indemnity Co. v. Industrial Accident Commission, 27 Cal. App. 2d 499, 81 P.2d 572 (1938). Courts denying such claims have reasoned that the purpose of the National Labor Relations Act, 29 U.S.C. § 151 et seq., was “to permit employees to deal at arm’s length with their employer and to obtain from the employer concessions which in many instances would have a tendency to increase the employer’s overhead and cost of operation. Such purposes, though perfectly justifiable in themselves, cannot be said to be for the benefit or in furtherance of the employer’s work.” Id., 504.

More recently, courts have held that an activity undertaken by an employee acting in his or her union capacity may simultaneously serve the interests of employee and employer. See Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 507 (Iowa 1981); Kennedy v. Thompson Lumber Co., 223 Minn. 277, 280-81, 26 N.W.2d 459 (1947); Mikkelsen v. N. L. Industries, 72 N.J. 209, 217, 370 A.2d 5 (1977); Repco Products Corp. v. Workmen’s Compensation Appeal Board, 32 Pa. Commw. 554, 379 A.2d 1089, 1092 (1977). Whether there exists a mutual employer-employee benefit in the employee’s union activities depends upon the nature of the particular activity that the employee was performing when injured. Caterpillar Tractor Co. v. Shook, supra, 507 (compensation awarded to union representative for injury sustained while traveling from activities as chairman of grievance committee to employer’s premises where employee was paid for time en route to negotiations); Mikkelsen v. N. L. Industries, supra, 213 (compensation denied where claimant, acting merely as rank and file member, voted on proposed collective bargaining agreement); Saliemo v. Micro Stamping Co., 136 N.J. Super. 172,177,345A.2d342 (1975) (compensation awarded where employee, acting as shop steward, suffered heart attack while negotiating labor contract), aff'd, 72 N.J. 205, 370 A.2d 3 (1977).

In New England Telephone Co. v. Ames, 124 N.H. 661, 474 A.2d 571 (1984), the New Hampshire Supreme Court found compensable a union representative’s injuries sustained while attending a negotiation session between the union and the employer. The court found that although the employee was not actually engaged in the work she had been hired to perform at the time of her injury, she was not precluded from receiving workers’ compensation benefits. Id., 663. Rather, the court determined that because the union activity had been of mutual benefit to the employee and employer, the injury had been sustained in the course of her employment and, therefore, was compensable. Id., 663-64. The employee had been negotiating on behalf of the union in an effort to obtain increased wages and benefits from the employer. Id., 664. Because bargaining is an attempt to obtain an advantage over an opponent at the opponent’s own expense, it therefore does not fit easily into the mutual benefit label. Nevertheless, the court noted that “the negotiation of and the agreement on a labor contract are activities of mutual benefit to the employer and employee. The existence of a labor contract plays a significant role in preventing industrial strife and unrest. It also promotes the uninterrupted operation of an enterprise. . . . Such consequences of negotiations are of benefit to the employer.” (Citations omitted.) Id. In a separate concurring opinion, Justice Souter, then of the New Hampshire Supreme Court, agreed that the union activity was not merely personal. “If the process of bargaining is ... a step toward reaching an agreement fostering industrial peace and stability, the mutuality of its benefit is apparent.” Id., 665. Justice Souter found additional concrete support for the finding of mutual benefit in the employer’s explicit agreement to pay employees when they bargained during normal work hours. Id.

In Williams v. State, supra, 152 Conn. 692, this court considered whether there was a benefit to the employer from a union sponsored picnic. In confirming the commissioner’s finding that the benefit was too remote, the court recognized that “[w]hile the employees of the [state department of labor] were privileged to attend the outing and were given time off from their work without loss of pay if they did attend, there was no compulsion that they do so, and those who exercised the privilege to attend did so voluntarily. The picnic was given by the union in the expectation that it would help them get new members. Attendance at the picnic was not restricted to the employees in the department who belonged to the union. The department extended to its employees a personal privilege to participate in the function, and the mere fact that good union relations might result therefrom is not sufficient to cast upon the state the obligation to compensate the plaintiff for her injury. Mulligan v. Oakes, 128 Conn. 488, 491, 23 A.2d 870 [1942], The plaintiffs accident did not arise out of or in the course of her employment. McKiernan v. New Haven, [supra, 151 Conn. 498].” Williams v. State, supra, 693-94.

This case presents the first opportunity for this court to review a claim that a union meeting is of mutual benefit to an employer and an employee. Although the commissioner properly imposed the burden upon the plaintiff to prove this mutual benefit requirement, the board determined that, despite the commissioner’s subsidiary findings, there was no support in the record for the ultimate finding that the plaintiffs attendance at the union meeting had been “for the mutual benefit of employer and employee.” We agree with the board that the commissioner’s inference was unreasonably drawn from the facts in the record and was therefore improper. Fair v. People’s Savings Bank, supra, 207 Conn. 539.

The plaintiff cites to the agreement itself to support the commissioner’s finding of mutual benefit. Her rebanee is misplaced. The agreement allows the union to make reasonable use of campus bulletin boards and campus mail; it provides for the ability to use “flex time” because it is “mutually advantageous”; it requires the defendant to give reasonable consideration to excusing certain employees from work to conduct union business without pay; and it allows the unions to make reasonable use of the defendant’s facilities for meetings. The agreement acknowledges that it is in the parties’ best interests to develop productivity and to enhance the quality of work, and provides that quarterly meetings will be held to ensure and to promote these goals. Finally, in recognition that it is desirable to resolve grievances, the agreement provides for grievance and arbitration procedures. While these provisions may be laudatory, they are insufficient to establish the requisite mutual benefit. The general desire to increase productivity and enhance employer-employee relations does not create a mutual benefit at every union meeting whenever and wherever held, regardless of the agenda and despite the prohibition of employer attendance. To rely on the goals set forth in the agreement as a basis upon which to find a mutual benefit would establish, in effect, that all injuries sustained by union members during union activities are work-related and, therefore, compensable. That would be a dramatic and unjustifiable expansion of our workers’ compensation law.

The plaintiff testified that she was returning from a weekly meeting, held every Monday with all the union representatives throughout the area, when she fell. No agenda for the Monday meeting was introduced into evidence. Grievances were sometimes handled at these meetings, but even if grievances had been discussed at the meeting in question, any such discussion could not have been for resolution, because only union representatives were in attendance. Moreover, although negotiation and agreement, in general, may indeed be activities of mutual benefit, depending upon the circumstances, there is nothing in the record from which the commissioner could have found that either had occurred at the meeting in issue. Consequently, there was no basis upon which to find that the union activity in issue, other than in the most theoretical sense, had inured to the defendant’s benefit. Indeed, had the board sustained the commissioner’s finding of mutual benefit, that concept would have been diluted radically.

The decision of the board is affirmed.

In this opinion the other justices concurred.

         General Statutes §§ 31-275 through 31-355a.

       General Statutes § 31-294c (a) provides: “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 within three years 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 the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. An employee of the state shall send a copy of the notice to the commissioner of administrative services. As used in this section, ‘manifestation of a symptom’ means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.”

       General Statutes § 31-297 provides: “Hearing of claims. If an employer and his irvjured employee, or his legal representative, as the case may be, fail to reach an agreement in regard to compensation under the provisions of this chapter, either party may notify the commissioner of the failure. Upon such notice, or upon the knowledge that an agreement has not been reached in a case in which a right to compensation may exist, the commissioner shall schedule an early hearing upon the matter, giving both parties notice of time and place not less than ten days prior to the scheduled date; provided the commissioner may, on finding an emergency to exist, give such notice as he finds reasonable under the circumstances. If no agreement has been reached within sixty days after the date notice of claim for compensation was received by the commissioner, as provided in section 31-294c, a formal hearing shall be scheduled on the claim and held within thirty days after the end of the sixty-day period, except that if an earlier hearing date has previously been scheduled, the earlier date shall prevail. Hearings shall be held, if practicable, in the town in which the injured employee resides; or, if it is not practicable to hold a hearing in the town, in any other convenient place that the commissioner may prescribe. Sufficient notice of the hearing may be given to the parties in interest by a brief written statement in ordinary terms of the date, place and nature of the injury upon which the claim for compensation is based.”

       The commissioner’s findings provided in relevant part:
      “1. Pursuant to proper notice to all parties, a hearing in the above-captioned matter was held before the undersigned at the New Haven office of the Workers’ Compensation Commission on August 30,1993, and continued to November 19, 1993, for the submission of written argument.
      “2. Claimant, on Monday, August 24, 1992, was an employee of the Office of Professional Services, Yale University.
      “3. She worked in its Farnham Building, No. 37, in the Yale-New Haven Hospital complex in New Haven.
      “4. Claimant was a Union Representative for Local 34, Federation of University Employees, AFL-CIO, the collective bargaining representative for clerical and technical employees of the University.

        “5. Union staff members who were Union Representatives could not engage in union activities during working time under the collective bargaining agreement between the University and the Union.
      “6. Under the same collective bargaining agreement the Union was permitted to make reasonable use of University facilities for meetings.
      “7. On Monday, August 24,1992, claimant, in her capacity as Union Representative, attended aUnion meeting with other Union Representatives during the noon luncheon break.
      “8. The meeting was held in Sterling Hall, a Yale University Medical School building.
      “9. On her way back from the Union meeting to the basement office in the Farnham Building claimant tripped over a crack in the sidewalk, injuring her left upper extremity.
      “10. The route which claimant took that day from Sterling Hall to the Farnham Building was a direct route from one Yale building to another.
      “11. She was treated for the injury by a Dr. VanRajin, M.D., at the Yale University Health Plan; by Dr. Allen Goodman, M.D., a New Haven orthopedist; Dr. Scott Wolfe, M.D., an orthopedist; and Dr. Richard A. Bernstein, M.D., an orthopedist. . . .”

       General Statutes § 31-301 provides: “Appeals to the Compensation Review Board. Payment of award during pendency of appeal, (a) At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.
      “(b) The appeal shall be heard by the Compensation Review Board as provided in section 31-280b. The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the Compensation Review Board may hear additional evidence or testimony.
      “(c) Upon the final determination of the appeal by the Compensation Review Board, but no later than one year after the date the appeal petition was filed, the Compensation Review Board shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the Compensation Review Board shall include its findings, conclusions of law and award.
      “(d) When any appeal is pending, and it appears to the Compensation Review Board that any part, of the award appealed from is not affected by the issues raised by the appeal, the Compensation Review Board may, on motion or of its own motion, render a judgment directing compliance with any portion of the award not affected by the appeal; or if the only issue raised by the appeal is the amount of the average weekly wage for the purpose of determining the amount of compensation, as provided in section 31-310, the commissioner shall, on motion of the claimant, direct the payment of the portion of the compensation payable under his award that is not in dispute, if any, pending final adjudication of the disputed portion thereof. In all appeals in which one of the parties is not represented by counsel, and in which the party taking the appeal does not prosecute the ease within a reasonable time from the date of appeal, the Compensation Review Board may, of ils own motion, affirm, reverse or modify the award.
      “(e) When an appeal is taken to the Compensation Review Board, the chief clerk thereof shall notify the commissioner from whose award the appeal was taken, in writing, of any action of the Compensation Review Board thereon and of the final disposition of the appeal, whether by judgment, withdrawal or otherwise, and shall upon the decision of the appeal, furnish the commissioner with a, copy of the decision. Whenever any appeal is pending, if it appears to the Compensation Review Board that justice so requires, the Compensation Review Board shall order a certified copy of the evidence for the use of the employer, the employee or both, and the certified copy shall be made a part of the record on the appeal. The procedure in appealing from an award of the commissioner shall be the same as the procedure employed in an appeal from the superior court, to the supreme court, where applicable. The chairman of the Workers’ Compensation Commission shall adopt regula! ions, in accordance with 1 he provisions of chapter 54, to establish rules, methods of procedure and forms as the chairman deems expedient for the purposes of this chapter.
      “(f) During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid from the Second Iqjury Fund pursuant to section 31-354.
      “(g) If, upon completion of the appeal process, the claimant is found to have a compensable injury, the employer or insurer shall be responsible for payment of the compensation and shall reimburse the Second Injury Fund for all sums previously expended, if any, on the claim pursuant to subsection (f) and this subsection, plus interest at the rate of ten per cent per annum. If the final adjudication results in the denial of compensation to the claimant, and he has previously received compensation on the claim pursuant to subsection (f) and this subsection, the claimant shall reimburse the Second Ipjury Fund for all sums previously expended, plus interest at the rate of ten per cent per annum. Upon any such denial of compensation, the commissioner who originally heard the case or his successor shall conduct a hearing to determine the repayment schedule for the claimant.”

       The defendant’s motion to correct provided in relevant part:
      “Correction Requested: Please add the following language to Paragraph 7: The Respondent permitted the employees to take their lunch break whenever the employees preferred. The meeting was during Claimant’s unpaid lunch break. The Claimant’s attendance at the union representative meeting was voluntary and not required by her employer. . . .
      “Correction Requested: [Paragraph 8] Please change the location of the meeting from ‘Sterling Hall’ to the ‘Harkness Dining Hall.’ . . .
      “Correction Requested: Please add the following language to Paragraph 9: Claimant’s injury occurred on a sidewalk outside the Hunter Building which is under the ownership and control of Yale-New Haven Hospital and not Yale University. . . .
      “Correction Requested: [Respondent] requests] that the following language be substituted for the present language in Paragraph 10: The Claimant chose to return from her unpaid lunch break after voluntarily attending a union representative meeting in Harkness Dining Hall and tripped and fell outside the Hunter Building which is under the ownership and control of Yale-New Haven Hospital and not Yale University. . . .
      “Correction Requested: The Respondent requests that the following language be substituted for the present language in Paragraph 12: The Claimant’s voluntary attendance at the union representative meeting and her agreement to be a union representative was her own choosing and for the sole benefit of the union and union employees. The Employer did not require nor was it part of Claimant’s job responsibilities or duties to be a union representative or attend union representative meetings. The meeting attended by the Claimant was for union representatives and not for all union employees. The union meeting did not include attendance by any representative of the Employer. The Claimant did not present evidence to demonstrate that [the] meeting was in any manner for the mutual benefit of the Employer or the Employer's non-union employees. . . .
      “Correction Requested: The Respondent requests that the following language be substituted for the present language in Paragraph 13: Claimant’s voluntary attendance at a union representative meeting on her unpaid lunch hour does not constitute an injury arising out of and in the course of her employment. The ir\jury occurred on a sidewalk area outside the Hunter Building which is under the ownership and control of Yale-New Haven Hospital and not Yale University. Attendance at the union meeting was not required by the employer and did not fulfill her duties of employment or anything incidental to her employment.”
      The plaintiff agreed that the commissioner could properly correct paragraphs eight and nine as requested by the defendant. She objected to the requested corrections to paragraphs seven, ten, twelve and thirteen. At oral argument, however, the plaintiff agreed that the locus of the injury was off the premises owned or leased by the defendant and that Yale-New Haven Hospital, Inc., an entity separate and distinct from the defendant, owned the sidewalk where the injury occurred, as well as the Farnham building where the plaintiff worked.

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

       At oral argument, the plaintiff raised the issue of whether it was proper for the board to review the findings of the commissioner when, after the appeal to the board had been timely filed, the commissioner had withdrawn the award to the plaintiff, pending new hearings, but had not yet responded to the defendant’s request f( >r corrections to the earlier decision. The plaint iff conceded, however, that the evidence before the board as t.o whether her injury was within the scope of her employment so as to be compensable would not have differed had there been a new hearing before the commissioner. That being the case, the end result of a remand by this court would be that the commissioner’s ruling would be on the same evidence as before and any review by the board would be on the same evidence as before. Therefore, because there was an appealable decision by the commissioner at the time the defendant’s appeal to the board was filed, we conclude that the board's review of that decision was not improper even though the later actions of the commissioner muddied the procedural waters. To hold otherwise would be to elevate form over substance, which we are loath to do. See Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 121, 676 A.2d 825 (1996); Newman v. Newman, 235 Conn. 82, 98-99, 663 A.2d 980 (1995); State v. Day, 233 Conn. 813, 832, 661 A.2d 539 (1995).

       Section 31-301-8 of the Regulations of Connecticut State Agencies describes the treatment of appeals from a compensation commissioner: “Function of Compensation Review Division. Ordinarily, appeals are heard by the compensation review division upon the certified copy of the record filed by the commissioner. In such cases the division will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. Its power in the corrections of the finding of the commissioner is analogous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court,.”
      Number 91-339 of the 1991 Public Acts changed “compensation review division” to “compensation review board,” effective July 1, 1991.

       This provision is not relevant to this case because the board did not receive additional testimony or evidence.

       The board properly accepted the commissioner’s subsidiary findings that the plaintiff was on her unpaid lunch break when she attended the regular weekly union meeting, that employer attendance at such meetings was forbidden during working time under the collective bargaining agreement, and that the agreement allowed the union to make reasonable use of the defendant’s facilities for meetings. Additionally, the parties agree that the plaintiff fell on property that was owned by an entity other than her employer.

       Although we have moved beyond a mere employer benefit test to one including employer approval or acquiescence when the employer sanctioned activity regularly occurs on the premises; McNamara v. Hamden, supra, 176 Conn. 554-55; we have not abandoned the employer benefit test in cases of injury to an employee who was off premises and not within the period of employment.

       It has long been the law that in cases falling within the penumbra of the “coming and going” cases, off-premises injuries are compensable only when they result “from some peculiar danger involved in the course taken or means used by [the injured worker] in coming to or going from work [and] it must appear that such danger was a risk annexed to the employment by the employer’s contemplating mid acquiescing in the use thereof by the employee.” Drouin v. Chelsea Silk Co., 122 Conn. 129, 133-34, 187 A. 904 (1936). Although the special hazard exception has been applied to a variety of obstacles, “it was never the intention behind this exception to mark out an off-premises area, merely because it is a normal access route, and then invest it with all the characteristics of the premises for course of employment, purposes.” 1 A. Larson & L. Larson, supra, § 15.13 (b), pp. 4-37 through 4-38.
      Because in the present case the plaintiffs choice of route to and from the meeting, although the most direct path, had been entirely within her discretion, the board concluded that she had not satisfied the special hazard exception. Because we agree with the board’s determination that the record did not support a finding of mutual benefit, we need not decide whether, had there been a benefit to the employer in the plaintiffs attendance at the union meeting, the board properly imposed on the plaintiff the additional need to satisfy the exception for special hazards and demonstrate that her travel to and from the meeting had involved a particular “risk annexed to the employment . . . .” Drouin v. Chelsea Silk Co., supra, 122 Conn. 134.


text:
    STATE OF CONNECTICUT v. BOONE SYNAKORN
    (15265)
    Callahan, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued November 7
    officially released December 10, 1996

      Robert G. Golger, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   KATZ, J.

The defendant, Boone Synakorn, was found guilty by a jury of the crimes of possession with intent to sell at least one-half gram of cocaine in free-base form in violation of General Statutes § 21a-278 (a), possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b) and possession of cocaine with intent to sell within 1000 feet of a public school in violation of General Statutes (Rev. to 1991) § 21a-278a (b). The defendant appeals from the judgment of conviction directly to this court in accordance with General Statutes § 51-199 (b) (3). The defendant claims that: (1) § 21a-278 (a) violates the equal protection provisions of the state and federal constitutions and, therefore, his conviction of that offense should have been set aside; and (2) there was insufficient evidence to support his conviction of possession of marijuana with intent to sell. We are not persuaded by either claim.

The jury reasonably could have found the following facts. Pursuant to a search warrant, on February 21, 1992, state and local law enforcement officials executed a search of an apartment in Bridgeport that the defendant shared with Mary Dudac and Sean Lay. During the course of that search, the police seized a black duffel bag and a paper bag from a living room closet. Inside these bags police found 6002 vials containing a substance that appeared to be crack cocaine. The contents of two of the vials were field-tested and showed a positive reaction for cocaine. The total weight of the contents of all the vials was 443.21 grams, or approximately 14.223 ounces. Subsequently, fifteen of the 6002 vials were tested at the Connecticut department of health and addiction services. The contents were found to weigh a total of 1.07 grams, 0.92 grams of which was pure cocaine. The evidence officer who participated in the search, Detective Esther Ramos of the Bridgeport police department, testified that the cocaine was packaged in the vials for street sale.

While searching the kitchen cabinets, a police officer found a metal tin that contained a plastic bag filled with a plant-like substance. Another, larger, plastic bag found with the tin contained twenty-five small “zip-lock” bags containing a plant-like substance that appeared to be marijuana. The total weight of the zip-lock bags was 658 grams. Ramos conducted two field tests on the plant-like substance found in the kitchen, one at the apartment and the other at the police station. Both tests evidenced a positive reaction for marijuana. Ramos further testified that the marijuana had been packaged for street sale. A search of Dudac’s clothing revealed additional marijuana. Although none of the marijuana itself was offered as evidence at trial, photographs of the tin container, the plastic bags and the plant-like material were presented as evidence by the state and testified to by Ramos.

The defendant’s two housemates provided the police with statements that the black duffel bag belonged to the defendant. Additionally, Dudac testified at trial that she had seen the defendant place the duffel bag in the closet where it was later found by the police.

Following his conviction of the three crimes with which he was charged, the defendant moved for a new trial pursuant to Practice Book § 902 claiming, inter alia, that § 21a-278 (a) violates the state and federal equal protection and due process clauses because there is no rational basis for providing the same penalty for possession of one-half gram of free-base, or crack, cocaine as for possession of one ounce of powder cocaine. The trial court initially concluded that it lacked authority to rule on the defendant’s motion but, at the defendant’s insistence, allowed him to make an offer of proof in order to establish a record for appeal. The defendant offered the testimony of John Paul Morgan, a professor of pharmacology at the City University of New York Medical School. Morgan testified as to the differences, both physical and chemical, between cocaine in powder form and free-base cocaine. He stated that the essential difference between free-base and powder cocaine is that free-base cocaine volatilizes at a much lower temperature than does powder and thus may be smoked. When asked about the different effects the various forms of cocaine might have on the human body, he replied that there was no essential difference but that any apparent difference in effect would be due to how the cocaine was “delivered.” According to Morgan, cocaine that is injected or smoked has a more immediate effect than that which is inhaled or ingested. Consequently, a smaller dose may be more effective if injected or smoked than a larger dose that is snorted. In other words, a cocaine user who smoked the drug rather than snorted it could achieve a more rapid “high” from a smaller, less expensive dose. Morgan suggested that this economic difference was a substantial factor in the popularity of cocaine in free-base form. He further stated that, in his opinion, there was no difference between the powder and free-base forms of cocaine in terms of their overall effect on the body and that the dangers associated with the use of either form were equivalent.

Following the defendant’s offer of proof, the trial court stated that the defendant did not appear to have met his burden of proving the unconstitutionality of the statute beyond a reasonable doubt. Because, however, the issue had not been properly preserved, the trial court declined to rule on the constitutionality of the statute. This appeal followed. Further facts will be provided as warranted.

I

The defendant’s first claim is that the trial court improperly failed to set aside the judgment of conviction under § 2 la-278 (a) because that statute violates his equal protection rights under the state and federal constitutions. Specifically, he claims that there is no rational basis for the disparate sentencing provisions of § 21a-278 (a), which provides the same penalty for possession with intent to sell one-half gram of cocaine in free-base form as it does for possession with intent to sell one ounce or more of powder cocaine. In response, the state argues that: (1) this court should decline to decide the constitutional issue because it was improperly raised posttrial by way of a motion for a new trial pursuant to Practice Book § 902; (2) this court should refrain from deciding the constitutional issue because the defendant possessed more than 400 grams of crack cocaine, well over one ounce; and (3) if it does reach the merits, this court should uphold the constitutionality of § 2 la-278 (a) by following the overwhelming number of federal courts that have found a rational basis for federal legislation that provides disparate sentencing similar to that provided by § 2 la-278 (a). We agree with the state that the defendant’s failure to raise this issue prior to trial deprived him of the opportunity to raise the claim in posttrial proceedings.

The disposition of the defendant’s constitutional claim is controlled by Practice Book §§ 810,815 and 902. Section 815 provides in pertinent part: “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information ... (8) Claim that the law defining the offense charged is unconstitutional . . . .” Section 810 provides that the “[fjailure by a party, at or within the time provided by these rules, to raise defenses or objections or to make requests that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver . . . .’’The defendant failed to attack the constitutionality of § 21a-278 (a) by way of a motion to dismiss as required by § 815 (8). Without a demonstration of good cause for such failure, § 810 dictates that his claim that the statute is unconstitutional is waived. State v. Vincent, 194 Conn. 198, 201-202, 479 A.2d 237 (1984).

The fact that the trial court allowed the defendant to call a witness does not constitute relief from the waiver. The trial court allowed the defendant to present Morgan’s testimony solely as an offer of proof in support of the defendant’s claim. Although the state cross-examined Morgan, and the defendant argued the merits of his position, the trial court concluded that “the issue under [§] 902 is not properly before the court. Therefore, the court does not have any need to rule on it. What I have allowed you to do is make an offer of proof that you can do with as you please. I did not want to deny that. After all, you brought this gentleman down from New York, and I saw no reason why this should not be done.” The trial court never found, and indeed was never asked to find, that the defendant had demonstrated good cause for his failure timely to raise his claim pursuant to a motion to dismiss under § 815 (8). Consequently, pursuant to § 810, the claim was waived.

Moreover, because the purpose of a hearing on a § 902 motion for a new trial is to determine whether the court, in the course of the trial, committed error and thereby deprived the defendant of a fair trial, the trial court could not properly decide the issue before it. “Section 902 contemplates court error of such magnitude as to deprive the defendant of a fair trial and in the use of the term ‘shall grant the motion’ mandates a new trial if such error exists. The trial court was never asked to rule on the [claim] asserted by the defendant in his postverdict motion for a new trial and therefore could not have committed an error based on the defendant’s postverdict § 902 motion.” (Emphasis added.) State v. Curley, 25 Conn. App. 318, 330, 595 A.2d 352, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991); see also State v. Jones, 205 Conn. 723, 729-30, 535 A.2d 808 (1988). Because the defendant’s claim did not allege an error made in the course of the trial, a motion for a new trial pursuant to § 902 was not the proper vehicle by which to pursue the claim. Accordingly, pursuant to §§ 810, 815 and 902, the defendant’s failure at the trial court level properly to raise and pursue the claim that § 21a-278 (a) is unconstitutional precludes further review of that claim.

II

The defendant’s second claim on appeal is that the evidence presented at trial as to his possession of marijuana was insufficient to support the jury’s finding of guilt under § 21a-277 (b). We disagree.

“In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 257-58, 681 A.2d 922 (1996).

In this case, Ramos, the police officer in charge of seizing evidence discovered during the search, testified that the investigating officers who searched the kitchen had found a plant-like substance that she identified as marijuana. Ramos further testified that this substance was packaged as if for sale. In addition to this testimony, the state offered into evidence photographs of the kitchen, the cabinets and containers in which the plastic bags were found and the bags themselves. The defendant claims that because the plant-like substance itself was not offered into evidence, the jury reasonably and legally could not have found that the defendant possessed and intended to sell marijuana. We disagree.

“We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986).” (Internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). Ramos testified that she had served for nine years in the Bridgeport police department’s drug unit. The jurors reasonably could have found that, on the basis of her experience and the results of the field tests, Ramos had correctly identified the plantlike substance found in the kitchen as marijuana packaged for sale.

Despite the fact that Ramos’ testimony about the field test directly followed her testimony as to the discovery of the marijuana in the kitchen, the defendant argues that there is nevertheless some question as to whether the material tested actually came from the kitchen or from Dudac’s clothing. We are not persuaded. “In viewing evidence that could yield contrary inferences, the fact finder is not required to draw only those inferences consistent with innocence, but may draw whatever inferences from the evidence it deems to be reasonable and logical.” State v. Bruno, 236 Conn. 514, 539, 673 A.2d 1117 (1996).

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 21a-278 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so unpaired as to constitute a defense to prosecution.”

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes (Rev. t,o 1991) § 21a-278a (b) provides: “Any person who violates section 21a.-277 or 21a-278, and who is not, at the time of such action, a drug-dependent person, by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment, imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school.”

       Both Dudac and Lay pleaded guilty to charges related to the search and testified against the defendant at his trial.

       According to Webster’s Third New International Dictionary, 28.349 grams are equal to one ounce.

       Fourteen of the tested vials had been recovered from the duffel bag and one from the paper bag.

       Apparently, the marijuana had been misplaced after it had been confiscated by the police and was not available at trial.

       Practice Book § 902 provides: “Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these mies or with other requirements of law bars his or her asserting the error, the judicial authority shall grant the motion:
      “(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
      “(2) For any other error which the defendant can establish was materially injurious to him or her.
      “If the trial was by the court and without a jury, the judicial authority, with the defendant’s consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.”

       Morgan testified that “crack” is an inferior form of free-base cocaine, probably referred to as such because of the crackling sound produced when it is smoked.

       The parties agree that the defendant has the burden of proving the unconstitutionality of § 21a-278 (a) beyond a reasonable doubt; State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987); and that a rational basis review is the appropriate standard. State v. Reed, 192 Conn. 520, 531, 473 A.2d 775 (1984).

       The trial court added that had it been in a position to decide the issue, it would have found that the defendant had failed to meet his burden of proof.

       On appeal, the defendant offered no explanation for the tardiness of Ms motion at trial. Indeed, he makes no excuse for the procedural default and briefs the issue as though the trial court had considered the claim on its merits. At oral argument, the defendant asked that we review the claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In tMs case, the trial court properly determined that Practice Book § 902 was confined to errors made in the course of the trial and that the motion for a new trial was not properly before the court. See our previous discussion of tMs matter. Although the defendant made an offer of proof, it was clear that the trial court did not invite the state to respond to the claim on the merits and offer its own expert evidence to support the sentencing distinction under attack. Consequently, the record is not adequate for review. Id., 240.

       See footnote 2.


author: KATZ, J. MCDONALD, J.,

text:
    CREST PONTIAC CADILLAC, INC., ET AL. v. NANCY HADLEY, COMMISSIONER OF MOTOR VEHICLES, ET AL.
    (15502)
    (15503)
    Borden, Katz, Palmer, McDonald and Peters, Js.

      Argued October 30
    officially released December 10, 1996

      Vincent F. Sabatini, with whom were Sandra Rachel Baker and David E. Kamins, for the appellants (plaintiffs).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (named defendant et al.).

      Job Taylor III, pro hac vice, with whom were Marcella Hourihane, Eric A. Richardson, pro hac vice, and, on the brief, Louise M. Zeitzew, pro hac vice, Michael K. Brown, Thomas L. Casagrande and Isabel E. Chenoweth, for the appellee (defendant Mazda Motor of America, Inc.).
   KATZ, J.

The dispositive issue in this appeal is whether the mailing provisions of General Statutes § 4-180 (c) are mandatory, such that an agency’s failure to abide by those provisions tolls the time period in which an appeal of that agency’s decision must be filed. We conclude that the mailing provisions of § 4-180 (c) are directory in nature, and that, where timely actual notice of an agency’s decision has been provided, the agency’s failure to follow those provisions to the letter does not prevent its decision from becoming effective for the purpose of calculating the time period in which an appeal of that decision must be brought.

The plaintiffs, Crest Pontiac Cadillac, Inc. (Crest), and Morande Brothers, Inc. (Morande), appeal separately from the trial court’s dismissal of their joint appeal of a ruling by the defendant department of motor vehicles (department) granting a license to the defendant Gorin’s Sports Car Center, Inc. (Gorin), to sell automobiles distributed by the defendant Mazda Motor of America, Inc. (Mazda), at Gorin’s business location at 170 Weston Street in Hartford. Because the plaintiffs filed their appeal forty-nine days after the department’s decision was mailed, four days beyond the time allotted for appeal of such decisions; see General Statutes § 4-183 (c); the trial court dismissed the appeal for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

The following facts are undisputed. On November 14, 1991, the department issued Gorin a license to sell Mazda automobiles. On November 21, 1991, Gorin and Mazda entered into a dealership agreement under which Gorin would sell Mazda automobiles at Gorin’s established Jaguar-Alfa Romeo dealership located at 170 Weston Street in Hartford. Pursuant to this agreement, Gorin purchased the assets of a Mazda dealer in East Windsor. Neither Mazda, Gorin, nor the department notified the plaintiffs, who were also Mazda dealers, of the dealership agreement or license application.

On November 22, 1991, the plaintiffs filed a formal protest with the department because Mazda had not notified them of the agreement and because there had been no hearing as allegedly required by General Statutes § 42-133dd (a). The department declined to grant a hearing because it considered the Mazda-Gorin agreement to be a relocation of an established dealership within that dealership’s area of responsibility under § 42-133dd (b) and, therefore, exempt from the hearing requirements of § 42-133dd (a). The plaintiffs appealed to the Superior Court in the judicial district of Hartford-New Britain at Hartford, and the trial court, Maloney, J., ordered the department to conduct a hearing to determine whether the Mazda-Gorin agreement established a new dealership and, if so, to hold a hearing pursuant to § 42-133dd (a) in order to determine whether there was good cause to deny Gorin a license to sell Mazdas. The department thereafter held the first hearing over two days, September 10,1992, and November 4, 1992, after which the department hearing officer ruled that the Mazda-Gorin agreement had established a new dealership.

Between May 12,1993, and August 4,1993, the second hearing pursuant to § 42-133dd (a) was conducted before hearing officer Brian C. Carey. On July 27, 1994, Carey rendered a decision concluding that there was no good cause to deny Gorin a license to sell Mazdas. Carey’s final decision was mailed to the parties and their attorneys via “bulk certified mail” on Wednesday, July 27, 1994. By Friday, July 29, 1994, all parties had received copies of the decision.

On September 6, 1994, within forty-five days of the mailing of the decision, the plaintiffs served notice of their appeal on all parties. On September 14,1994, forty-nine days after the decision had been mailed and forty-seven days after all parties had received it, the plaintiffs filed an appeal of the decision in the Superior Court.

Prior to oral argument on the plaintiffs’ appeal, the trial court, sua sponte, raised the issue of subject matter jurisdiction because the plaintiffs’ appeal appeared to have been filed beyond the statutory time limit. See General Statutes § 4-183 (c). All of the defendants except Gorin promptly filed motions to dismiss for lack of subject matter jurisdiction pursuant to § 4-183 (c). On November 30, 1995, the trial court, concluding that the mailing provisions of § 4-180 (c) were merely directory and, thus, that the plaintiffs’ appeal was untimely, dismissed the appeal for lack of subject matter jurisdiction. The plaintiffs appealed separately from the judgment of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The plaintiffs argue that the trial court improperly concluded that the mailing provisions of § 4-180 (c) (“United States mail, certified or registered, postage prepaid, return receipt requested”) were merely directory and that the department’s failure to comply with the mailing provisions did not free the plaintiffs from the statutory requirement that they file their appeal within forty-five days of the mailing of the department’s decision. Specifically, the plaintiffs assert that: (1) the subsection’s use of the word “shall” in setting forth the mailing provisions indicates their mandatory nature; (2) the mailing provisions are related to matters of substance and not merely an attempt to secure order, system and dispatch in proceedings; and (3) the legislative history of the statute indicates a legislative intent that the provisions be mandatory. In response, the defendants argue that the mailing provisions are merely directory in that they were established for the convenience of the parties, and not to affect any substantive rights, and that the legislative history supports this interpretation. In addition, the defendants argue that the plaintiffs cannot claim prejudice because they had timely notice of the decision and, therefore, could have filed then-appeal within the forty-five day period mandated by § 4-183 (c). We agree with the defendants.

The plaintiffs recognize that failure to comply with this time limitation normally would deprive the court of subject matter jurisdiction. See footnote 9. They assert, however, that the limitation period of § 4-183 (c) should not be applied to their appeal because the department did not mail the hearing officer’s final decision by “certified or registered [mail], postage prepaid, return receipt requested,” as required by § 4-180 (c). Section 4-180 (c) provides in pertinent part: “The [agency’s] final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency.” The plaintiffs argue that the legislature’s use of the word “shall” is indicative of the mandatory nature of the section. We disagree.

“Well established principles of statutory construction govern our determination of whether [a statute’s provisions are] mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent: intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991).” Stewart v. Tunxis Service Center, 237 Conn. 71, 76-77, 676 A.2d 819 (1996).

“While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous; Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); our past decisions have indicated that the use of the word ‘shall,’ though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984).” Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989). In order to determine whether a statute’s provisions are mandatory we have traditionally looked beyond the use of the word “shall” and examined the statute’s essential purpose. Id. “The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” (Internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). Furthermore, if there is no language that expressly invalidates any action taken after noncompliance with the statutory provisions, the statute should be construed as directory. Id.

The plaintiffs claim that the mailing provisions go to matters of substance because § 4-180 (c) must be read in conjunction with § 4-183 (c). We disagree. Section 4-183 (c) does not state that the mailing provisions of § 4-180 (c) must be followed strictly, nor does it contain any language that would indicate a tolling of the statutory time for appeal if those provisions are not followed. Rather, it simply makes clear that the provision in § 4-180 (c) stating that an administrative decision is effective upon mailing or personal delivery establishes the date upon which the judgment becomes final for purposes of appellate review. Aggrieved parties then have forty-five days in which to file an appeal. Practice Book § 4000. Neither § 4-180 (c) nor § 4-183 (c) contains language that would invalidate an action that failed to comply strictly with the mailing provisions of § 4-180 (c). This omission indicates a legislative intent that the provisions operate to secure order, system and dispatch in the proceedings. Katz v. Commissioner of Revenue Services, supra, 234 Conn. 617.

All of the parties assert that the legislative history of § 4-180 (c) supports their diametrically opposed interpretations of the statute. They each rely on the legislative history of the statute as amended during the 1988 February legislative session. The plaintiffs argue that the legislature would not have changed the language of § 4-180 (c) requiring the use of certified mail unless it had intended that change to have substantive effect. The defendants respond that the legislative change was simply a matter of making the process more convenient for the parties to an administrative appeal. It is understandable how these disparate arguments maybe drawn from the legislative history, because that history is sparse at best.

The mailing provisions at issue were added to § 4-180 (c) in 1988, as part of an overall restructuring of the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Public Acts 1988, No. 88-317, § 17. The sole evidence of any possible legislative intent behind the amendment of § 4-180 (c) is in a report presented to the joint committee on the judiciary by the law revision commission (commission). Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1988 Sess., pp. 377, 382-83. In 1985, the commission had begun a review of amendments to the UAPA that had been proposed by the Administrative Law Section of the Connecticut Bar Association. Id., p. 377. The commission report was the result of that review, and in the report the commission recommended a number of changes to the UAPA, some of which set new standards or procedures, others of which merely clarified previously established procedures. The amendments to the mailing provisions of § 4-180 (c) were of the latter type. The commission explained in its report that the change in mailing procedures was designed to “make it easier to establish the mailing date of a decision.” (Emphasis added.) Id., p. 383. We note that nowhere in the report or in any of the legislative discussion regarding the proposed changes to the UAPA, what little there was, did anyone mention that there should be a penalty for noncompliance with the proposed mailing provisions.

In the absence of any language or history of § 4-180 (c) to indicate a legislative intent that the mailing provisions be mandatory, we conclude that those provisions are designed to promote order, system and dispatch in the proceedings, and as such are purely directory. Failure to abide by those provisions does not, therefore, toll the period in which an aggrieved party must file an appeal of the administrative decision.

The judgment is affirmed.

In this opinion BORDEN, PALMER and PETERS, Js., concurred.

MCDONALD, J.,

concurring. I concur in the result reached by the majority for the following reason.

The plaintiffs concede that they had actual notice of the decision of the department of motor vehicles (department) more than forty-five days before filing their appeals. See General Statutes § 4-183 (c). This court has held on numerous occasions that actual notice is sufficient to overcome potential defects in statutorily prescribed manners and forms of notice. See Russell v. R. N. Russell Welding, Inc., 226 Conn. 508, 512, 627 A.2d 1344 (1993); Okee Industries, Inc. v. National Grange Mutual Ins. Co., 225 Conn. 367, 375-78, 623 A.2d 483 (1993); Jefferson Garden Associates v. Greene, 202 Conn. 128, 138, 148-49, 520 A.2d 173 (1987); Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 549, 489 A.2d 368 (1985).

General Statutes § 4-180 (c) provides that a decision shall be delivered “personally or by United States mail, certified or registered, postage prepaid, return receipt requested.” The entire thrust of the statute is to ensure that the parties receive actual notice of the effective date of the decision, and the prescribed statutoiy requirements act to create testimonial or documentary evidence of the time of delivery. Since the plaintiffs had actual notice of the department’s decision more than forty-five days before filing their appeals, they cannot complain that the agency failed to abide by the provisions of § 4-180 (c).

       General Statutes § 4-180 (c) provides: “A final decision in a contested case shall be in writing or orally stated on the record and, if adverse to a party, shall include the agency’s findings of fact and conclusions of law necessary to its decision. Findings of fact shall be based exclusively on the evidence in the record and on matters noticed. The agency shall state in the final decision the name of each party and the most recent mailing address, provided to the agency, of the party or his authorized representative. The final decision shall be delivered promptly to each party or his authorized representative, personally or by United States mail, certified or registered, postage prepaid, return receipt requested. The final decision shall be effective when personally delivered or mailed or on a later date specified by the agency.”

       The commissioner of motor vehicles was also named as a defendant in the trial court.

       Gorin is no longer in business at this location. At oral argument the question was raised, sua sponte, as to whether this fact made the appeal moot. “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires . . . that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, mid under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. . . . [WJhere the question presented is purely academic, we must refuse to entertain the appeal.” (Citations omitted; internal quotation marks omitted.) Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989). “A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Internal quotation marks omitted.) Id., 347-48.
      We may retain jurisdiction, however, where the matter being appealed creates collateral consequences prejudicial to the interests of the appellant, even though developments during the pendency of the appeal would otherwise render it moot. Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993). In this case, the plaintiffs have filed a separate action in the Superior Court in the judicial district of Hartford-New Britain at New Britain, in which they are claiming damages, including loss of profits, arising from the department’s granting of license to Gorin to sell Mazdas. Because, as the parties agree, the outcome of that action may be substantially affected by our ruling on the present appeal, we conclude that there are collateral consequences sufficient to allow this court to retain jurisdiction.

       General Statutes § 4-183 (c) provides: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the attorney general in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”

       The Weston Street location is approximately eight miles from Crest’s dealership in Newington and approximately seven miles from Morande’s dealership in Manchester. This location is thus within the plaintiffs’ “relevant market area” as defined by General Statutes § 42-133r (14) (relevant market area is area within fourteen mile radius of existing dealership or that area for which dealership has responsibility as defined in franchise agreement, whichever is great er). The hearing provisions of General Si atufes § 42-133dd (a) apply only to those dealerships that are established within the relevant market area of existing dealerships.

       General Statutes § 42-133dd (a) provides: “In the event that a manufacturer or distributor seeks to enter into a franchise establishing a new dealer or relocating an existing dealer within or into a relevant market area where the same line make is then represented, the manufacturer or distributor shall in writing, by certified mail, first notify the commissioner and each dealer in such line make in the relevant market area of its intention to establish a new dealer or to relocate an existing dealer within or into that market area. Within twenty days of receiving such notice or within twenty days alter the end of any appeal procedure provided by the manufacturer or distributor, any such dealer may file with the commissioner a protest concerning the establishing or relocating of such new or existing dealer. When such a protest is filed, the commissioner shall inform the manufacturer or distributor that a timely protest has been filed, and that the manufacturer or distributor shall not establish or relocate the proposed dealer until the commissioner has held a hearing, nor thereafter, if the commissioner determines that, there is good cause for denying the establishment or relocation of such dealer. This section shall not apply to the sale, lease or transfer of ownership of an active, exist ing dealer, nor shall any provision of this section prohibit a manufacturer from entering into a franchise arrangement with a successor dealer at the same location."

       General Statutes § 42-133dd (b) provides: “This section shall not apply to (1) t he relocation of an existing dealer within that dealer’s area of responsibility under its franchise, provided that the relocation shall not be at a site within six miles of a licensed dealer for the same line make of motor vehicle or (2) the appointment of a dealer in the same relevant market area, within one year, at either the same location or within a two-mile radius from a predecessor dealer who ceased operations.”

       “Bulk certified mail” is a method of mailing in which the post office provides the sender with an acknowledgment that on a given day a certain bulk mailing was processed. The individual pieces of mail are not marked with the certified date of mailing. Rather, a separate record of the mailing, itemizing the contents, is marked with a “round-robin” stamp indicating the date of mailing. Bulk certified mail is a less expensive method than regular certified mail.

       It is settled that an appeal of an administrative decision pursuant to § 4-183 (c) must be filed with the Superior Court within forty-five days after the mailing of the hearing officer’s final decision. Failure to appeal within forty-five days deprives the court of subject matter jurisdiction; Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 219-20, 676 A.2d 844 (1996); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 854, 633 A.2d 305 (1993); a principle not challenged by the plaintiffs.

       The plaintiffs’ arguments are offered by Crest in its brief to this court. Morande adopts Crest’s arguments and adds the argument that, even if the plaintiffs had actual notice of the decision, there was insufficient evidence to prove that they had actual notice of the date on which that decision had been mailed. We are not persuaded by Morande’s subsidiary claim, which is disingenuous at best. Even if we were to decide that the decision did not become effective until received by the plaintiffs, the record is replete with evidence that the plaintiffs had notice of the decision on Friday, July 29, 1994, forty-seven days before the appeal was filed. Indeed, the plaintiffs conceded at oral argument that they had actual notice as of July 29, 1994.
      In addition to its aforementioned claims, Crest argues that the department’s decision was never final because the department did not first render a proposed decision pursuant to General Statutes § 4-179 and did not render its decision within ninety days pursuant to § 4-180 (a). These are claims the trial court would have considered if it had had subject matter jurisdiction over the appeal. Because these claims were neither addressed nor decided by the court below, however, they are not properly before this court. See Connecticut Ins. Guaranty Assn. v. Union Carbide Corp., 217 Conn. 371, 385, 585 A.2d 1216 (1991); State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985).

       At oral argument, the plaintiffs asserted that, because the strictures of § 4^180 (c) had not been followed, the decision was never final or effective and, thus, the statutory period in which to file an appeal never began to run, even after all parties had actual notice of the decision. The defendants point out that such an interpretation could lead to absurd results, such as the filing of an appeal six months or one year after the decision was mailed, even though all parties had actual notice of the decision. Indeed, if it were the case that the decision was never final, there would be the further absurd result that the plaintiffs’ appeal of that decision to the Superior Court could never be timely or appropriate. See Practice Book § 4000; Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985) (lack of final judgment is jurisdictional defect; court must dismiss appeal).

       The plaintiffs rely heavily on our decision last year in Angelsea Productions, Inc. v. Commission on Human Rights & Opportunities, 236 Conn. 681, 674 A.2d 1300 (1996). Their reliance is misplaced. In that case, we determined that General Statutes (Rev. to 1993) §§ 46a-83 (b) and 46a-84 (b) should be read as mandatory, not only because of the presence of the word “shall” but also because those statutes contained penalties for noncompliance. Furthermore, the extensive legislative history of §§ 46a-83 and 46a-84 clearly indicated the intent of the legislature that the provisions be mandatory. Such is decidedly not the case with § 4-180 (c).