Hackett v. City of New Britain

• Decision Date: 26 June 1984
• Docket Number: No. 2367,2367
• Citation: Hackett v. City of New Britain, 477 A.2d 148, 2 Conn.App. 225 (Conn. App. 1984)
• Court: Connecticut Court of Appeals
• Parties: Robert J. HACKETT v. CITY OF NEW BRITAIN et al.

Page 148

477 A.2d 148

2 Conn.App. 225

Robert J. HACKETT v.CITY OF NEW BRITAIN et al.

No. 2367.

Appellate Court of Connecticut.

Argued April 11, 1984.

Decided June 26, 1984.

Harold J. Geragosian, New Britain, for appellant(plaintiff).

Joseph F. Skelley, Jr., Hartford, for appellees(defendants).

Before DANNEHY, C.P.J., and TESTO and HULL, JJ.

HULL, Judge.

The plaintiff appeals ¹ from the denial of his petition for an order of mandamus by which the plaintiff sought to compel the defendants to continue undiminished payment of his pension benefits.The defendants are the city of New Britain and the board of trustees of the New Britain firemen's pension fund.

The plaintiff, Robert J. Hackett, was appointed to the position of substitute fireman in the New Britain fire department.Approximately one year later, on November 20, 1950, he was made a full time fireman.He then became a lieutenant in the fire department on May 24, 1968.After obtaining the highest mark on the captain's examination, Hackett was promoted to captain on May 13, 1974.He thereafter obtained the highest score on the examination for promotion to deputy chief and was promoted to that rank on September 18, 1977.

The trial court found that Hackett had paid a certain sum of money to a third party to ensure that he attained the highest rank on the promotional examinations for the positions of captain and deputy chief.The court stated that "[t]his litigation became necessary solely as a result of the plaintiff's criminal acts in purchasing his last two promotions."In addition, the court found that Hackett had participated in the "fixing" and "attempted fixing" of twelve examinations for other members of the department from as early as 1972.

Pursuant to the charter and regulations of the city of New Britain relative to the firemen's pension fund, the plaintiff contributed 5 percent of his weekly salary to the retirement fund until 1968, when he became a lieutenant, after which the city began to match his 5 percent contribution to the retirement fund.On April 29, 1980, the defendant board of trustees granted the plaintiff a pension in the amount of $13,250.76 per year based upon his salary after achieving the position of deputy fire chief.The board stipulated, however, that the pension benefits were subject to review in the event that subsequent evidence established that the position of deputy chief had been illegally obtained.

The plaintiff was subsequently convicted of numerous felonies for his role in "fixing" the results of certain promotional examinations.After a hearing on April 15, 1981, the board found that Hackett had illegally obtained both the rank of captain and deputy chief.The board, therefore, reduced the plaintiff's pension by the amount of $5483.97 per year.

The plaintiff filed a petition for an order of mandamus to compelthe defendants to continue to pay to the plaintiff pension benefits in the original amount prior to the reduction.The court denied the relief and rendered judgment for the defendants.We agree.

The plaintiff, in essence, seeks to compel the defendant to grant him pension benefits based upon the salary level for the position of deputy chief, a position the plaintiff attained as a direct result of his own fraudulent conduct.

A writ of mandamus is an extraordinary remedy.McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792(1984).It may issue only when: (1) the law imposes upon the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2)the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.Bahramian v. Papandrea, 184 Conn. 1, 3, 440 A.2d 777(1981).

In this case, the plaintiff has not satisfied the second prong of the test, for he has not established a clear legal right to pension benefits in the original amount of the award.There is clear and convincing proof of the plaintiff's fraudulent conduct directly relating to his attainment of the positions of captain and deputy chief.SeeFattibene v. Fattibene, 183 Conn. 433, 438, 441 A.2d 3(1981).The original amount of the pension benefits was based upon the salary level for the position which the plaintiff attained as a direct result of his fraudulent conduct.A person who obtains his employment by fraud is not entitled to compensation at the contract rate, although he may be entitled to the reasonable value of his services, and, furthermore, if a person induces his employer through fraud to enter into a transaction, he is not entitled to any compensation for his services in connection with it.2 Restatement (Second), Agency§ 469, comment c;seeHeyman v. Kline, 344 F.Supp. 1110, 1113-14(D.Conn.1970), rev'd on other grounds456 F.2d 123(2d Cir.1972).Proof of fraud in the inducement to contract allows the defrauded party various remedies including rescission;Duksa v. Middletown, 173 Conn. 124, 129, 376 A.2d 1099(1977); restitution;see2 Restatement (Second), Agency§ 403; or damages.A. Sangivanni & Sons v. F.M. Floryan & Co., 158 Conn. 467, 472, 262 A.2d 159(1969).

Since mandamus neither gives nor defines a right which one does not already have, it cannot, and does not, act upon a doubtful or contested right.McAllister v. Nichols, 193 Conn. 168, 171-72, 474 A.2d 792(1984);Gerrity v. Bisciglia, 178 Conn. 235, 238-39, 423 A.2d 871(1979).There is a great deal of doubt as to whether the plaintiff has a clear and legal right to the original award in light of these circumstances.The defendant contests this claim of right and in effect, has rescinded its prior award due to the discovery of the fraud.We conclude that the plaintiff failed to establish a clear legal right to benefits in the amount of the original award.The plaintiff has failed to satisfy the second prong of the test for the issuance of a mandamus and, therefore, the court did not err in denying the plaintiff's request for a mandamus.

Mandamus, although it is a legal remedy, is not awarded as a matter of right, but is within the exercise of the sound discretion of the court;Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906(1967); and its allowance is controlled by equitable principles.Id.;United States v. Dern, 289 U.S. 352, 359, 53 S.Ct. 614, 617, 77 L.Ed. 1250(1933).While mandamus may...