Standard Mattress Co. v. City of Hartford

• Decision Date: 26 March 1974
• Docket Number: No. 145034,145034
• Citation: 31 Conn.Supp. 279,329 A.2d 613
• Court: Connecticut Superior Court
• Parties: The STANDARD MATTRESS COMPANY v. CITY OF HARTFORD.

Page 613

329 A.2d 613

31 Conn.Supp. 279

The STANDARD MATTRESS COMPANY v. CITY OF HARTFORD.

No. 145034.

Superior Court of Connecticut, Hartford County.

March 26, 1974.

Ribicoff & Kotkin, Hartford, for plaintiff.

Thomas P. Heslin, Sp. Counsel, Hartford, and Walter J. Sidor, Jr., Asst. Sp. Counsel, Hartford, to the Hartford Redevelopment Agency, for defendant.

DAVID M. SHEA, Judge.

The plaintiff seeks to recover the disputed portion of its claim for moving expenses incurred as a result of the taking of property at 55 North Street, Hartford, occupied by the plaintiff, in an eminent domain proceeding instituted by the defendant on January 13, 1962. The total amount of the claim presented for moving expenses was $138,994.51, of which $111,441.61 was paid, leaving a balance of $27,552.90 in dispute. Interest is also claimed upon the disputed amount as well as upon amounts which was paid from the time when the The defendant has raised the question of jurisdiction over the subject matter of this suit upon two grounds: (1) that judicial review of relocation awards is precluded by an amendment to the Housing Act of 1949; 78 Stat. 789, § 114(d); 42 U.S.C. § 1465(e) (1970); and also by the absence of any statutory authorization for such review in this court, and (2) that the federal agency involved, the department of housing and urban development, is an indispensable party to the litigation.

claim was first presented. All of the expenses claimed were incurred during the period July 1, 1961, to February 1, 1962.

I POWER OF JUDICIAL REVIEW

The federal statute on which the defendant relies, 42 U.S.C. § 1465(e) (1970), provided: 'The Administrator is authorized to establish such rules and regulations as he may deem appropriate in carrying out the provisions of this section and may provide in any contract with a local public agency, or in regulations promulgated by the Administrator, that determinations of any duly designated officer or agency as to eligibility for and the amount of relocation assistance authorized by this section shall be final and conclusive for any purposes and not subject to redetermination by any court or any other officer. Such regulations shall include provisions . . ..' (Italics supplied.) This statute became effective on September 2, 1964. Pursuant to this enactment a regulation was promulgated on January 13, 1965; 30 Fed.Reg. 439, 441, § 3.104(c) (1965), as amended, 24 C.F.R. § 3.104(c) (1971); as follows: 'Action on claim-finality. The . . . (agency) is initially responsible for determining the eligibility of a claim for, and the amount of, a relocation payment and shall maintain in its files complete and proper documentation supporting the determination. The determination on each claim shall be made or approved either by the governing body of the . . . (agency) or by the principal executive officer of the . . . (agency) or his duly authorized designee. The determination, or any redetermination by any duly designated officer or agency, shall be final and conclusive for any purposes and not subject toredetermination by any court or any other officer. Subject to the requirements of this paragraph (c), the . . . (agency) may permit a third-party contractor responsible for relocation activities to examine and recommend action on a claim and to disburse funds in payment of a claim which has been approved by the . . . (agency).'

In Merge v. Troussi, 3rd Cir., 394 F.2d 79, 82, it was held that the effect of the statute and regulation was to remove jurisdiction of any suit for removal expenses which might be 'based on a 'right' created by federal statute,' even in a case already pending. The plaintiff argues that its case is based on breach of the contract between the Hartford redevelopment agency and the federal housing and home finance administrator, claiming that the plaintiff is a third party beneficiary of that contract. The opinion in Merge v. Troussi, supra, 83, expressly recognized that a claim based entirely upon such a contractual theory would not be governed by the holding in that case: '(I)t may be true that as third-party beneficiaries of a Title I contract they have a claim for damages or performance that arose in 1961. When the Pittsburgh Authority declined to award the additional moving expenses, it perhaps created a cause of action for breach of the Title I contract, as then drafted and including by reference the statutory standards then applicable. Under this theory of the case, it might be true that the amended statute and new regulation making local determinations final and conclusive for any purposes would not apply to this particular suit. But we do not need to decide or comment on this problem arising under a contract theory of this controversy because the appellants' suit against the Pittsburgh Authority lacks the requisite diversity jurisdiction.'

In an earlier decision involving the same litigation, it has been held that there was federal jurisdiction of a declaratory judgment suit involving a claim for removal expenses brought against the administrator of the federal agency as well as the local authority. Merge v. Sharott, 3rd Cir., 341 F.2d 989. The dissenting opinion in that case (p. 997) maintained that the suit could not be brought against the administrator but only against the local agency under the urban redevelopment law of Pennsylvania, which gave the right to enforce any provision in a contract between the federal and local agencies to any obligee intended to be benefited thereby. The contract involved required expressly (p. 990) that relocation payments be paid by the local agency to businesses and families displaced by the renewal project. It is this third party beneficiary action, created by the Pennsylvania statutes, to which reference is made in the dictum from Merge v. Troussi, supra, relied upon by the plaintiff.

It does not appear that there is any Connecticut counterpart to the Pennsylvania statute discussed in Merge v. Sharott, supra. See General Statutes, c. 130. Nevertheless, in a number of decisions it has been held that a third person may enforce a contract between other parties if it was intended to confer such a right upon him, 'or the promisor intended by such agreement to assume a legal obligation to the third person.' Byram Lumber & Supply Co. v. Page, 109 Conn. 256, 260, 146 A. 293, 294. 'The controlling test now is, Was there any intent to confer a right of action' upon the third party? Schneider v. Ferrigno, 110 Conn. 86, 89, 147 A. 303.

In a case decided prior to Merge v. Troussi, supra, it was declared that a plaintiff seeking an additional allowance for relocating its business as a result of an urban renewal project in Stamford, Connecticut, would have 'no standing to sue as a third party beneficiary on the contract between the federal agencies and the local commission.' United Publishing & Printing Corporation v. Horan, D.C.Conn., 268 F.Supp. 948, 950. A number of cases have held that third parties have no standing to enforce contractual conditions imposed upon local redevelopment agencies by the federal authority for the public benefit, although the persons bringing the action would be benefited by the provision. Johnson v. Redevelopment Agency, 9th Cir., 317 F.2d 872, 874; Gart v. Cole, 2nd Cir., 263 F.2d 244, 250.

It does not appear from the documents produced in evidence at the trial of this case that any express obligation was ever assumed by the Hartford redevelopment agency to make any payment of relocation expenses. In this respect the redevelopment plan provides that the 'Relocation Office' of the agency will assist in a general way the relocation of businesses; a relocation payment schedule for individuals and families is approved; and the executive director is designated to approve all claims for relocation payments.

This suit is not on any express promise made by the defendant to the plaintiff, such as the real estate purchase contract held to be enforceable against the agency as a signatory in a case relied upon by the plaintiff, Entin v. Bristol, 3rd Cir., 368 F.2d 695. An action against a local agency may be brought for removal expenses on an express agreement made by the agency to pay such costs in consideration of promises by the relocating business establishment to vacate the premises without the necessity of legal process, to relocate the business instead of liquidating, and to induce the owner of the premises to make certain concessions in respect to fixtures which would reduce the condemnation award for taking the real estate. Graphic Arts Finishers, Inc. v. Boston Redevelopment Authority, 357 Mass. 40, 255 N.E.2d 793. Where the promise alleged was to pay the plaintiff a specific sum to relocate, however, it was regarded as merely a general commitment to pay relocation expenses in accordance with the statutes and regulations only to the extent that the plaintiff qualified himself to receive them. Fountain v. United States, 192 Ct.Cl. 495, 427 F.2d 759, 760.

It we assume arguendo that the dictum in Merge v. Troussi, 3rd Cir., 394 F.2d 79, 83, would support the plaintiff in maintaining this action as a third party beneficiary of the contract between the federal and local authorities, the terms of such a contract can be found only in the statutes and regulations pertaining to the payment of such expenses. Such terms would have entitled the plaintiff to the determination of the claim by the local agency, the same result which has already been achieved in this case. 24 C.F.R. § 3.106 (1971). It is not entirely clear how a claimant would have proceeded in order to obtain judicial review of the determination by the local agency prior to the enactment of 42 U.S.C. § 1465(e) (1970) and the regulations which precluded any such review. In Merge v....