Borough of Newtown v. Department of Public Utility Control

• Decision Date: 26 March 1985
• Docket Number: No. 2091,2091
• Citation: 3 Conn.App. 416,488 A.2d 1286
• Court: Connecticut Court of Appeals
• Parties: BOROUGH OF NEWTOWN v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

Page 1286

488 A.2d 1286

3 Conn.App. 416

BOROUGH OF NEWTOWN v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

No. 2091.

Appellate Court of Connecticut.

Argued Jan. 9, 1985.

Decided March 26, 1985.

Raymond T. Connor, Newtown, for appellant (plaintiff).

Phyllis E. Lemell, Asst. Atty. Gen., with whom were Lisa H. Oliveri, Asst. Atty. Gen., and, on the brief, Joseph I. Lieberman, Atty. Gen., for appellee (named defendant).

Ted D. Backer, Brookfield, for appellee (defendant Newtown Water Co.).

Before BORDEN, SPALLONE and DALY, JJ.

SPALLONE, Judge.

The plaintiff has appealed ¹ from the trial court's dismissal of its administrative appeal from a decision of the defendant department of public utility control (DPUC) granting a rate increase to the defendant Newtown Water Company (company).

The DPUC issued its decision in this case on February 9, 1982, and a supplemental decision, approving a revised schedule of rates filed by the company, on May 19, 1982. In the decision of February 9, 1982, the DPUC named the plaintiff and the division of consumer counsel ² (DCC) as parties.

In appealing from the DPUC's final decision, the plaintiff served copies of its complaint upon the company and the DPUC within thirty days after the mailing of the notice of that decision, as required by General Statutes (Rev. to 1981) § 4-183(b). ³ The plaintiff did not cite in or serve a copy of its complaint upon the DCC. Both the company and the DPUC moved to dismiss the appeal because the DCC had not been served. The plaintiff thereafter amended its complaint to cite in the DCC and served a copy of the complaint on the DCC on August 17, 1983, ninety-one days after the supplemental DPUC decision was rendered.

The company renewed its motion to dismiss, alleging that the plaintiff failed to comply with § 4-183(b) because it did not serve the DCC within the thirty day period set forth in that statute. The trial court found that the appeal was fatally defective because it did not comply with the service provisions of § 4-183(b) and granted the motion to dismiss. We find no error.

The plaintiff argues that the DCC's status as a party was not clearly apparent on the face of the trial court record. It contends that in the absence of affidavits setting forth facts outside of the record, the court improperly dismissed the action. The "record" which was before the trial court when the motion to dismiss was argued consisted of each paper filed with the clerk of the Superior Court. Practice Book § 250. The DPUC's decision of February 9, 1982, which designated the DCC as a party, was annexed to the memoranda of law accompanying the original motions to dismiss filed by the company and the DPUC. The decision naming the DCC as a party was thus before the trial court and consequently a part of the record. See In re Application of Dodd, 131 Conn. 702, 703, 42 A.2d 36 (1945); Maltbie, Conn.App.Proc. § 314. No facts outside of the record needed to be set forth by affidavit.

The plaintiff also claims that because the DPUC's supplemental decision of May 19, 1982, made no reference to the DCC, the DCC did not have party status. As we have noted, the May 19, 1982 decision served the purpose of setting forth the DPUC's findings as to a revised schedule of rates submitted by the company. The supplemental decision did not upset the DPUC's original denomination of the DCC as a party.

The plaintiff additionally argues that because the DCC is neither an adverse nor a necessary party, it did not need to be cited as a party. Section 4-183(b) requires that "all parties of record" be served with a copy of the petition. Section 4-166(5) defines "party" as "each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." Nothing in that definition supports the argument that a "party" must be either necessary or have an interest which is adverse to others who could be parties to the appeal. Since the DCC was a party to the administrative proceedings, it was a party of record within the scope of § 4-183(b) and should have been cited as a party defendant.

The right to appeal from the decision of an administrative agency exists only under statutory authority. This right may be taken advantage of only by strict compliance with the statutory provisions by...