Second Injury Fund of the State Treasurer v. Lupachino

• Decision Date: 03 June 1997
• Docket Number: No. AC,AC
• Citation: 695 A.2d 1072,45 Conn.App. 324
• Court: Connecticut Court of Appeals
• Parties: SECOND INJURY FUND OF THE STATE TREASURER v. Vincent LUPACHINO. 15781.

Page 1072

695 A.2d 1072

45 Conn.App. 324

SECOND INJURY FUND OF THE STATE TREASURER v. Vincent LUPACHINO.

No. AC 15781.

Appellate Court of Connecticut.

Argued Jan. 28, 1997.

Decided June 3, 1997.

James P. Brennan, Waterbury, for appellant (defendant).

Michael J. Giammatteo, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and William J. McCullough, Assistant Attorney General, for appellee (plaintiff).

Before LANDAU, SPEAR and HEALEY, JJ.

HEALEY, Judge.

This is an appeal from an order granting a prejudgment remedy to the plaintiff second injury fund of the treasurer of the state of Connecticut (fund) against the defendant Vincent Lupachino, in a matter involving the Worker's Compensation Act (act), General Statutes § 31-275 et seq.

On October 10, 1988, the defendant sustained a work related injury to his back, which was found compensable pursuant to the act. Since that date, he has been receiving temporary total disability benefits pursuant to General Statutes § 31-307. The fund accepted liability for the defendant's workers' compensation benefits on May 8, 1992, pursuant to General Statutes § 31-349 and has paid benefits since that date. On or about May 25, 1995, the fund filed two forms pursuant to General Statutes § 31-296 ¹ giving notice that it intended to discontinue or reduce the defendant's benefits. The basis for this filing was that he (1) was no longer totally disabled and (2) had violated the provisions of General Statutes § 31-290c ² by perpetrating a fraud on the fund in receiving such benefits. The defendant contested the fund's position, and the issue of whether to discontinue or reduce his benefits is the subject matter of a pending formal hearing on the workers' compensation claim. ³

The fund has instituted a civil action against the defendant for money damages based on a violation of § 31-290c. In addition to criminal sanctions, that statute provides in part: "Such person shall also be liable for treble damages in a civil proceeding under section 52-564." ⁴

In connection with this civil action, the plaintiff applied for a prejudgment remedy under General Statutes § 52-278c. ⁵ The defendant filed a motion to dismiss the fund's application for a prejudgment remedy on the ground that the Superior Court lacked subject matter jurisdiction, claiming that "jurisdiction belongs in the Workers' Compensation Commission pursuant to Chapter 568 of the Connecticut General Statutes," the Workers' Compensation Act, and not in the Superior Court. The trial court denied the motion to dismiss and granted the fund a prejudgment remedy in the amount of $80,000. This appeal followed.

There are two issues in this appeal. The first is raised by the fund, which maintains that this court does not have subject matter jurisdiction because the appeal was not timely filed. ⁶ The second issue, which is raised by the defendant, is whether the Superior Court improperly ordered the prejudgment remedy.

I

We first take up the issue of subject matter jurisdiction of this court. "Lack of subject matter jurisdiction may be raised at any time. Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982)." Park City Hospital v. Commission on Hospitals & Health Care, 14 Conn.App. 413, 417, 542 A.2d 326 (1988), aff'd, 210 Conn. 697, 556 A.2d 602 (1989); Romanowski v. Foley, 10 Conn.App. 80, 83, 521 A.2d 601, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987). "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989), quoting State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); see Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corp., 166 Conn. 446, 448-49, 352 A.2d 301 (1974); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). The fund claims that this court lacks subject matter jurisdiction because the appeal was not timely filed.

The order granting the fund a prejudgment remedy in the amount of $80,000 on real property of the defendant was issued pursuant to General Statutes § 52-278l. That statute provides in relevant part: "(a) An order ... granting ... a prejudgment remedy following a hearing under section 52-278d ... shall be deemed a final judgment for purposes of appeal. (b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken."

The basic facts in the record relevant to the timeliness issue are as follows. The order for the prejudgment remedy from which the defendant appeals was signed and dated by the trial judge on February 28, 1996. Notice of that action was mailed by the clerk to counsel on Friday, March 8, 1996, ⁷ the ninth day after February 28, 1996. ⁸ The defendant filed the appeal on Monday, March 11, 1996, the twelfth day after February 28, 1996. On the record before us, we cannot discern whether the passage of nine days between the signing of the order by the trial judge and the mailing of notice to counsel by the clerk came about because the trial judge did not expeditiously give her order to the clerk or because the clerk did not expeditiously mail notice of that order to counsel.

The fund argues that the judgment was rendered on February 28, 1995, when the trial judge signed the order, that the appeal was taken on March 11, 1996, and, therefore, the appeal is untimely under § 52-278l and must be dismissed. Accordingly, it claims that there is no subject matter jurisdiction because § 52-572l is jurisdictional. See, e.g., Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762, 628 A.2d 1303 (1993). In arguing that the appeal is untimely, the fund claims that the language of § 52-278l (b) providing that "[n]o such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken," mandates that the seven day appeal period is to be reckoned from February 28, 1996. The case law, it maintains, is dispositive. It relies on Ambroise v. William Raveis Real Estate, Inc., supra, at 762, 628 A.2d 1303, HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 668 A.2d 1309 (1995), and Srager v. Koenig, 36 Conn.App. 469, 651 A.2d 752 (1994), claiming at oral argument that these cases indicate that the appeal period begins on the date the trial judge signed the order. It would appear that the fund claims that General Statutes § 51-53 ⁹ does not apply to § 52-278l because the latter statute provides its own appeal period rather than relying on the more general provision for appeal in § 51-53.

The defendant, on the other hand, claims that Ambroise, HUD/Barbour-Waverly and Srager, the same cases relied on by the fund, support his claim that the order was "rendered" under § 52-278l, not when the trial judge signed it, but, rather, when notice of that order was issued by the court clerk. He claims that the record demonstrates that such notice was issued on March 8, 1995, and that his appeal, filed on March 11, 1995, was, therefore, timely as filed within the seven day appeal period. We agree with the defendant that the order was "rendered" under § 52-278l on March 8, 1995, the date the court clerk mailed notice to counsel, and that the appeal was, therefore, timely filed.

We begin our analysis by examining Ambroise, in which the dispositive issue was whether an appeal from the denial of a prejudgment remedy could be taken after the expiration of the seven day period specified by § 52-278l. Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. at 757-58, 628 A.2d 1303. In that case, no reference was made at all to when the trial court's order was made or even mailed. Informatively, however, the Supreme Court said: "The procedural facts of the plaintiffs' appeal are undisputed. The parties received notice of the trial court's decision on January 26, 1993. The plaintiffs filed their appeal on February 16, 1993." Id., at 759-60, 628 A.2d 1303. A fair reading of the procedural history of Ambroise strongly suggests that the Supreme Court calculated the appeal period from the date that counsel received notice of the trial court's decision. It further said that "[b]ecause the jurisdiction of this court is defined by statute ... non-compliance with § 52-278l raises a challenge to [our Supreme Court's] subject matter jurisdiction"; id.; and it dismissed the appeal as untimely. Ambroise does not support the fund's position.

HUD/Barbour-Waverly, also does not avail the fund. The issue in that case was whether, in an appeal from a judgment of possession in a summary process eviction proceeding, the failure of the defendant to comply with the five day time limit to appeal as specified by General Statutes (Rev. to 1993) § 47a-35 ¹⁰ deprived this court of subject matter jurisdiction. After a trial, the trial court rendered a judgment of possession in favor of the plaintiff on August 5, 1993. There is no reference in the court's opinion in that case to whether the judgment was rendered in open court in the presence of counsel or whether notice was issued by the clerk to counsel on the same day the trial judge signed the order. Within the five day appeal period, the defendant filed a motion ¹¹ in the trial court for an extension of time to file an appeal pursuant to Practice Book § 4040. That motion was granted on August 16, 1993. Later, on August 30, 1993, nineteen days after the expiration of the appeal period set forth in § 47a-35, the defendant appealed to this court, which dismissed the defendant's appeal. The Supreme Court affirmed our dismissal. In doing so, that court, referring to Ambroise, held that the legislature intended that the five day appeal period prescribed by § 47a-35...