Chieppo v. Robert E. McMichael, Inc.

• Citation: 169 Conn. 646,363 A.2d 1085
• Court: Supreme Court of Connecticut
• Decision Date: 02 December 1975
• Parties: Edward J. CHIEPPO v. ROBERT E. McMICHAEL, INC., et al.

Page 1085

363 A.2d 1085

169 Conn. 646

Edward J. CHIEPPO v. ROBERT E. McMICHAEL, INC., et al.

Supreme Court of Connecticut.

Dec. 2, 1975.

Adrian W. Maher, Bridgeport, with whom, on the brief, was Kevin J. Maher, Bridgeport, for appellants (defendants).

Robert N. Schmalz, New Haven, with whom, on the brief, was Kevin Gaynor, New Haven, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

The plaintiff, Edward J. Chieppo, suffered personal injuries on September 25, 1969, while traveling from his place of employment to his home. On September 8, 1972, the compensation commissioner entered a finding and award in favor of the plaintiff. On September 14, 1972, the defendants appealed from the finding and award to the Superior Court. Although the record contains no indication that the plaintiff filed a general appearance in the Superior Court, the memorandum of decision of the Court of Common Pleas notes that the appearance was made. Section 31-301 of the General Statutes, as amended by Public Acts 1972, No. 108, § 6, enacted April 29, 1972, provided for appeals from the awards of the compensation commissioner to the Court of Common Pleas, effective September 1, 1972. Prior to that date, appeals were made to the Superior Court.

On October 3, 1972, the defendants moved to transfer their appeal to the Court of Common Pleas 'under the provisions of Section 776 of the Practice Act in view of Public Act 108-Section 6-Section 31-301 of the . . . General Statutes.' The Superior Court granted the motion on October 13, 1972. The Court of Common Pleas subsequently found that it was without jurisdiction to consider the appeal because the defendants failed to comply with the provisions of § 31-301. The defendants have appealed the judgment of dismissal.

The defendants assert that their appeal was properly taken to the Superior Court under the provisions of § 31-301 in effect on September 25, 1969. It is their claim that the contract of employment with the plaintiff incorporated the Workmen's Compensation Act, and that the act, on the day of the injury, provided for an appeal to the Superior Court. They further claim that since the Superior Court had jurisdiction of the appeal, it properly transferred the appeal to the Court of Common Pleas under § 164 ¹ of the Practice Book. Alternatively, the defendants assert that if the appeal were taken to the wrong court, then the provisions of General Statutes § 52-32 ² provided the necessary authority to transfer the appeal.

The contract of employment incorporates the Workmen's Compensation Act hereinafter referred to as the act, and provides the basis for an employee's recovery for an injury suffered in the course of employment. Vegliante v. New Haven Clock Co., 143 Conn. 571, 580, 124 A.2d 526; Stulginski v. Cizauskas, 125 Conn. 293, 299, 5 A.2d 10; Powers v. Hotel Bond Co., 89 Conn. 143, 145-46, 93 A. 245. The rights and obligations of both parties to the contract are fixed and determined by the contractual and statutory provisions in force at the time the employee is injured. Rossi v. Thomas F. Jackson Co., 120 Conn. 456, 460, 181 A. 539; Walsh v. A. Waldron & Sons, 112 Conn. 579, 582, 153 A. 298. The defendants maintain that, under this reasoning, the provisions establishing the appeal procedure became vested on the day of the plaintiff's injury.

The method of appeal from the compensation commissioner, however, is not controlled by the statute in effect on the day of the injury. The focus of § 31-301 is not upon the rights and obligations as between the parties, but upon the duties and powers of the compensation commissioner and the court to which the appeal is taken. The change in the appellate procedure affected neither the employee's right to compensation nor the employer's obligation to pay it. The legislature may regulate the remedy and the method of procedure under a past as well as a future contract so long as it does not impose new restrictions upon the enforcement of a past contract so as materially to lessen its value and benefit to either party. Everett v. Ingraham, 150 Conn. 153, 157, 186 A.2d 798; O'Connor v. Hartford Accident & Indemnity Co., 97 Conn. 8, 15, 115 A. 484. The court was not in error in the ruling that an appeal from an award of the compensation commissioner taken after September 1, 1972 should have been taken to the Court of Common Pleas and that the defendants' appeal to the Superior Court, on September 14, 1972, was to the wrong court.

The order of the Superior Court transferring the appeal to the Court of Common Pleas was without effect. Under § 164 of the Practice Book, the Superior Court may order the transfer of a pending cause to the Court of Common Pleas. As the appeal was taken to the wrong court, the Superior Court was without jurisdiction and was powerless to make any transfer. Carter v. Carter, 147 Conn. 238, 245, 159 A.2d 173; Wojculewicz v. Cummings, 143 Conn. 624, 628, 124 A.2d 886; Woodmont Assn. v. Milford, 85 Conn. 517, 523, 84 A. 307; see Fidelity Trust Co. v. Lamb, 164 Conn. 126, 133-34, 318 A.2d 109. That the plaintiff may have filed a general appearance in the Superior Court is of no moment. The defect is in the jurisdiction over the subject matter, not in the jurisdiction over either the person or the process, and, as such, it is a matter of law and can be neither waived nor conferred by consent. Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 509, 242 A.2d 705; Reed v. Reincke, 155 Conn. 591, 598, 236 A.2d 909.

In the alternative, the defendants claim that the order transferring the appeal from the Superior Court to the Court of Common Pleas was within the power granted to the Superior Court by § 52-32. This statute extends the jurisdiction of a court to which a civil action is mistakenly brought to the extent of giving the court power to order its removal to the proper court, and when the removal is accomplished, the civil action becomes valid from its inception. Felletter v. Thompson, 133 Conn. 277, 279, 50 A.2d 81; Wooley v. Williams, 105 Conn. 671, 674, 136 A. 583.

Section 52-32 provides, in part: 'Any civil action brought to the wrong court may, upon motion, be removed to a court having jurisdiction.' Whether an appeal from a compensation commissioner's award is a 'civil action' determines the applicability of § 52-32.

The first case interpreting the Workmen's Compensation Act of 1913 established the character of an appeal from a compensation commissioner's award. The court in Powers v. Hotel Bond Co., 89 Conn. 143, 93 A. 245, said (p. 149, 93 A. p. 248): 'We hold such 'appeal' to be an original application to the superior court to exercise its appropriate judicial power in respect to acts done by the administrative tribunal in excess of its power, or in the unlawful abuse of that power.' See also Moynihan's Appeal, 75 Conn. 358, 360, 53 A. 903, 1123.

In Slattery v. Woodin, 90 Conn. 48, 96 A. 178, in holding that appeals and controversies in the Court of Probate are not civil actions, this court stated (p. 50, 96 A. p. 179): 'The accepted meaning of the term 'civil action' in this State is very well illustrated by the provision of our Practice Act (General Statutes, § 607) (now § 52-91) that 'there shall be but one form of civil action, and the pleadings therein shall be as follows: The first pleading on the part of the plaintiff shall be known as the complaint, and shall contain a statement of the facts constituting the cause of action, and a demand for the relief to which he supposes himself to be entitled." Appeals made pursuant to § 31-301 are neither commenced by service of process nor controlled by rules of pleading. The procedure of the appeal is to be the same as the procedure in an appeal from the Court of Common Pleas to the Superior Court. ³ This procedure is distinct from the ordinary concept of a civil action.

In Bank Building & Equipment Corporation v. Architectural Examining Board, 153 Conn. 121, 214 A.2d 377, and Carbone v. Zoning Board of Appeals, 126 Conn. 602, 13 A.2d 462, it was held that an appeal, in the first case, from the state's architectural examining board and, in the second case, from a zoning board of appeals, were not 'actions' and 'civil actions' within the meaning of § 52-592 and § 52-593 respectively. In making those determinations this court looked to the appeal provisions and to the purpose of the statutes creating the appeals.

The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation. Taylor v. St. Paul's Universalist Church, 109 Conn. 737, 147 A. 671. To carry out that objective, the provisions of the act allow a period of ten days in which to appeal the compensation commissioner's award. General Statutes § 31-301. If no appeal is taken during that period, the award becomes final and enforcible 'in the same manner as a judgment of the superior court.' General Statutes § 31-300. The clerk of the Court of Common Pleas notifies the adverse party of the...