Light Rigging Co. v. Department of Public Utility Control, 14200

• Decision Date: 11 June 1991
• Docket Number: No. 14200,14200
• Citation: 592 A.2d 386,219 Conn. 168
• Court: Connecticut Supreme Court
• Parties: LIGHT RIGGING COMPANY et al. v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

Page 386

592 A.2d 386

219 Conn. 168

LIGHT RIGGING COMPANY et al. v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

No. 14200.

Supreme Court of Connecticut.

Argued March 19, 1991.

Decided June 11, 1991.

Gerald A. Joseloff, Wethersfield, for appellants (plaintiffs).

Robert S. Golden, Jr., Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, then Atty. Gen., and Phyllis E. Lemell, Asst. Atty. Gen., for appellee (named defendant).

Frederick W. Odell, Wethersfield, for appellee (defendant John Balkun III).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Justice.

The sole issue in this consolidated appeal is whether the plaintiffs have standing to appeal two decisions of the defendant department of public utility control (DPUC) granting a certificate of public convenience and necessity (certificate) to the defendant John Balkun III doing business as Jack's Rigging and Machinery Sales (Balkun). ¹ The plaintiffs, Light Rigging Company, J.R. Christoni, Inc., Walker Crane and Rigging Corporation, Northeast Riggers, Inc., and Paul J. Buccheri Company ² (plaintiffs), who hold certificates similar to that granted to Balkun, appealed the DPUC's decisions to the Superior Court. The court, finding that the plaintiffs were not aggrieved, rendered judgment dismissing the appeal. From that judgment the plaintiffs appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse the trial court's judgment.

The relevant facts are as follows. On January 31, 1986, Balkun filed an application with the DPUC seeking motor carrier authorization, as required by General Statutes (Rev. to 1985) § 16-283, ³ to transport small machinery and accessories, new and used, over irregular routes between all points in Connecticut. On August 22, 1986, the DPUC granted the plaintiffs' petition for party status to protest Balkun's application.

On August 28, 1986, and September 5, 1986, the DPUC held public hearings on Balkun's application, as required by General Statutes (Rev. to 1985) § 16-284, ⁴ at which time Balkun and the plaintiffs were heard. On December 10, 1986, the DPUC mailed its proposed decision to Balkun and the plaintiffs. The plaintiffs filed written exceptions to the proposed decision with the DPUC on December 22, 1986. On January 6, 1987, the DPUC issued its final decision granting Balkun's application and issuing him a certificate.

Following the plaintiffs' appeal of the DPUC's January 6, 1987 decision to the Superior Court, but prior to a hearing on the appeal, the DPUC, on its own motion pursuant to General Statutes § 16-9, ⁵ reopened the docket on Balkun's application to allow the plaintiffs an opportunity to present written briefs and oral argument on the proposed decision of December, 1986. On October 13, 1987, the plaintiffs appeared before the DPUC, under protest, to present oral argument. On November 3, 1987, the DPUC again approved Balkun's application, and the plaintiffs filed a second appeal with the Superior Court. ⁶ The plaintiffs' two appeals were consolidated by order of the court, Allen, J., on May 16, 1988. The DPUC filed motions to dismiss the plaintiffs' appeals for lack of subject matter jurisdiction on the ground that the plaintiffs had failed to plead and prove sufficient facts to support a finding of aggrievement, in accordance with General Statutes (Rev. to 1987) § 4-183. ⁷

Although the plaintiffs have briefed eight issues, the sole issue that we need to consider is whether the trial court properly dismissed the plaintiffs' appeal for lack of jurisdiction. Issues two through eight ⁸ reach the merits of the DPUC's decision. The trial court, however, was bound to dismiss the case upon finding that it had no jurisdiction; Kinney v. State, 213 Conn. 54, 58, 566 A.2d 670 (1989); and therefore never addressed the merits of the plaintiffs' appeal. Thus issues two through eight are not properly before us. See Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 608-609, 436 A.2d 1259 (1980).

Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). "It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 729, 573 A.2d 736 (1990); Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). " 'Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973)....' " Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989).

Neither the DPUC nor the plaintiffs deny that aggrievement is a prerequisite for appeal, nor do they quarrel with the test for aggrievement as set out in our decision in State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987). In that case, we stated that " ' "[t]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, 'the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.' ..." ' " Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, [supra, 193 Conn. at 65, 475 A.2d 283]." State Medical Society v. Board of Examiners in Podiatry, supra, at 299-300, 524 A.2d 636. We also stated that " '[a]ggrievement is established if "there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).' Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980)." State Medical Society v. Board of Examiners in Podiatry, supra, at 300, 524 A.2d 636.

The trial court concluded, and we agree, that the plaintiffs satisfied the first prong of the aggrievement test. The plaintiffs demonstrated their specific personal and legal interest in the subject of the DPUC's decision by alleging and providing evidence that their DPUC certificates, for the intrastate operations that they own, authorize them to provide services similar to those that Balkun's contested certificate would authorize Balkun to provide. Neither the DPUC nor the plaintiffs challenge this conclusion.

The plaintiffs contend, however, and we agree, that the trial court incorrectly concluded that the plaintiffs had failed to satisfy the second prong of the test--to show that their specific personal and legal interests had been specially and injuriously affected.

The plaintiffs have alleged in both appeal petitions that they are aggrieved by the decision of the DPUC to grant Balkun's certificate without any showing of a public need for the service Balkun proposes to render beyond a small circumscribed need in the greater New Britain area. In affidavits attached to their memoranda of law in opposition to the DPUC's motions to dismiss, the plaintiffs have asserted that their motor carrier certificates are transferable, saleable and traded in commerce as assets of economic value, and that the existence of additional certificates causes a dilution and diminution in the value of each of their certificates.

In finding that the plaintiffs' legal interest in their certificates had not been specially and injuriously affected by the DPUC's grant of a certificate to Balkun, the trial court relied upon the principle that absent an allegation of unfair or illegal competition, "an allegation merely of competition likely to result in lost revenues is ordinarily insufficient to confer standing." State Medical Society v. Board of Examiners in Podiatry, supra, at 302, 524 A.2d 636. The court concluded that because the plaintiffs had not alleged or provided evidence that competition caused by the grant of authority to Balkun was unfair or illegal, they had done no more than to allege normal business competition. The court distinguished between the value of the license to operate and the value of the plaintiffs' business operations and concluded that the plaintiffs had failed to establish that the grant of a certificate to Balkun in any way adversely affected the value of their legally protected interests in their certificates.

In State Medical Society v. Board of Examiners in Podiatry, supra, the principle relied upon by the trial court was applied to determine whether a physician's allegations of lost revenues from competition satisfied the second prong of the aggrievement test. ⁹ The physician in that case was licensed in Connecticut on his satisfaction of state requirements that do not include consideration of either the effect of his licensing upon other physicians or the need for his services. ¹⁰

Unlike the statutory requirements for a physician's license, General Statutes (Rev. to 1985) § 16-286 ¹¹ requires the DPUC to consider "the existing motor transportation facilities and the effect upon them of granting such certificate, [and] the public need for the...