Opinion
No. HHB CV 05 5000137 S
November 3, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#108)
This matter appeared before the court on October 31, 2005, for an evidentiary hearing concerning the apportionment defendant Chris Proll d/b/a Chris's Year Round Maintenance (Proll) motion to dismiss the apportionment complaint (#105) filed by the defendant/apportionment plaintiff Sheriden Woods Health Care Center, Inc. (Sheriden). For the reasons stated below, the motion is denied.
I. BACKGROUND
In her complaint, which had a return date of February 22, 2005, the plaintiff. Dona Zagryn alleges that, on February 7, 2003, she was visiting a patient at premises located in Bristol, Connecticut, which Sheriden owned and controlled. She further alleges that, after exiting the facility, she was caused to slip and fall because of snow and ice which was not properly removed from the parking lot located on the premises. She claims that, as a result of Sheriden's negligence and carelessness, she suffered personal injuries.
On June 22, 2005, Sheriden purportedly served Proll with an apportionment complaint, alleging that Proll, with whom it had an agreement to perform snow and ice remediation services on the premises, which was in effect on February 7, 2003, was negligent, and seeking a determination of his proportionate responsibility for any of Zagryn's damages.
Additional references to the facts are set forth below.
II. DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kozlowski v. Commissioner of CT Page 14064-ci Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005).
"When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Citation omitted and internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736-37, 846 A.2d 831 (2004).
Practice Book Section 10-31 provides that lack of jurisdiction over the person and insufficiency of service of process are grounds on which a motion to dismiss may be based. "Although the Superior Court has general subject matter jurisdiction . . . it may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., Inc., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993).
The issue before the court concerning the service of the apportionment complaint relates to personal jurisdiction, not to the court's jurisdiction over the subject matter. "[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person . . . The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it." (Citation omitted; emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
"The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n. 9, 674 A.2d 426 (1996).
General Statute 52-57(a) states, "[e]xcept as otherwise provided, process in any civil action shall be served by leaving a true and attested CT Page 14064-cj copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." General Statute § 52-54 provides, concerning abode service: "[t]he service of a writ of summons shall be made by the officer . . . by leaving an attested copy thereof with [the defendant] or at his usual place of abode. When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left." "[T]he chief purpose of this requirement . . . is to ensure actual notice to the defendant that the action is pending." Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 479, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980). In this context, involving a premises liability claim, "[t]here is no substitute for in hand or abode service . . . where jurisdiction over the person of a resident individual is sought . . ." (Internal quotation marks omitted.) White-Bowman Plumbing Heating, Inc. v. Biafore, 182 Conn. 14, 16-17, 437 A.2d 833 (1980).
The return of service concerning the apportionment complaint, by Connecticut State Marshal Scott M. Kraimer (Kraimer), states that abode service was made on Proll on June 22, 2005 at two addresses, 35 Zack Lane, Bristol, Connecticut; and 14 Milford Street, Burlington, Connecticut. "In Clegg v. Bishop, 105 Conn. 564, 136 A. 102 (1927), our Supreme Court stated that [o]ne may have two or more places of residence within a State, or in two or more States, and each may be a `usual place of abode' . . . Service of process will be valid if made in either of the usual places of abode." (Internal quotation marks omitted.) Knutson Mortgage Corp. v. Bernier, 67 Conn.App. 768, 772, 789 A.2d 528 (2002).
With his motion, Proll presented his affidavit. Therein, he stated that he has not resided at 35 Zack Lane in Bristol since he moved to the Milford Street address in Burlington in November 2004. See Proll affidavit, ¶¶ 4-5. He also averred that he notified both the Department of Motor Vehicles and the office of the Secretary of the State of his change of address prior to December 31, 2004. See Proll affidavit, ¶ 6.
As to the alleged service at his Burlington residence, he stated that the writ, summons and apportionment complaint were left in his mailbox, which is 150 to 175 feet from his home and that no portion thereof was placed inside his home. See Proll affidavit, ¶¶ 8-9.
"While pinning, tying or otherwise attaching a complaint to an outside door, where the complaint is subject to a number of outside influences over which the party to be served has no control, is generally not sufficient to constitute effective service, yet where the complaint is left inside the confines of the dwelling by slipping it beneath the CT Page 14064-ck door, the service has been held permissible . . . In order for abode service to be effective, the papers must be placed at least partially within the abode itself or with a statutorily eligible occupant." (Citation omitted; emphasis in original; internal quotation marks omitted.) American Tax Funding, LLC v. LeBrun, Superior Court, judicial district of Tolland at Rockville, Docket No. CV04-4000951 (June 3, 2005, Fuger, J.) ( 39 Conn. L. Rptr. 446).
In response to the motion, Sheriden submitted Kraimer's affidavit, which stated that service of the papers was made by leaving them in the front door at each of the locations listed in his return. See Kraimer affidavit, ¶ 2. Sheriden argues that the marshal's alleged abode service is sufficient to establish that the court has personal jurisdiction over Proll.
"Although the [marshal's] return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." (Internal quotation marks omitted.) Tax Collector of New Haven v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). "In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).
At the evidentiary hearing, the court heard the testimony of Kraimer and Proll. The court has weighed the testimony and assessed the credibility of the witnesses. On balance, the court finds that Proll was properly served with process.
Kraimer's testimony credibly established that he made service on Proll by leaving the papers at Proll's abode in Burlington. He testified that he has been serving process in Connecticut for over fifteen years. He stated that he left the papers partially within the Burlington residence, by putting them through the front doorjamb.
Kraimer disputed Proll's affidavit (and subsequent testimony), stating that he (Kraimer) has never attempted to make abode service by leaving papers in a party's mailbox. He explained that he believed that to do so would constitute a felony offense. He testified also that, after reviewing Proll's affidavit, he returned to the Burlington location in order to refresh his memory concerning it. CT Page 14064-cl
Under 18 U.S.C. § 1725, the depositing of "any mailable matter" in a mailbox without affixing postage, and with the intent to avoid paying for postage, is a criminal offense, which is punishable by a fine. See Lawson v. Township of Ontwa, Case No. 4:05-cv-30 (U.S.D.C., W.D. Mich., April 14, 2005). "[A]ny mailable matter" applies to commercial and noncommercial materials, and, therefore, to civil process. See United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 127 n. 4, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981). The principal motivations for § 1725, which was originally enacted in 1934, were concerns about loss of revenue for the then-Post Office Department and the "the stuffing of letter boxes with extraneous matter." (Internal quotation marks omitted.) Id., 453 U.S. 125.
18 U.S.C. § 1725 provides, "[w]hoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined under this title."
This is consistent with the several Connecticut statutes which authorize the use of registered or certified mail to effect service of process. See, for example, General Statute §§ 52-57(d) (service on a partnership); 52-57(e) (service on a voluntary association); 52-59b(c) (service on a nonresident individual, foreign partnership or foreign voluntary association).
Section 1725's prohibition on the improper use of a mailbox was explained by the United States Supreme Court in United States Postal Service v. Council of Greenburgh Civic Associations, supra. "[I]t is because of the very fact that virtually every householder wishes to have a mailing address and a receptacle in which mail sent to that address will be deposited by the Postal Service that the letterbox or other mail receptacle is attractive to those who wish to convey messages within a locality but do not wish to purchase the stamp or pay such other fee as would permit them to be transmitted by the Postal Service." Id., 453 U.S. 123-24. "[T]he typical mail patron first looks for written communications from the `outside world' not under his doormat, or inside the screen of his front door, but in his letterbox. Notwithstanding the increasing frequency of complaints about the rising cost of using the Postal Service, and the uncertainty of the time which passes between mailing and delivery, written communication making use of the Postal Service is so much a fact of our daily lives that the mail patron watching for the mail-truck, or the jobholder returning from work looking in his letterbox before he enters his house, are commonplaces of our society." Id., 453 U.S. 124.
"Postal Service regulations, however, provide that letterboxes and other receptacles designated for the delivery of mail `shall be used exclusively for matter which bears postage.' . . . Section 1725 merely reinforces this regulation by prohibiting, under pain of criminal sanctions, the deposit into a letterbox of any mailable matter on which postage has not been paid." (Citation omitted and footnote omitted.) Id., 453 U.S. 124-25.
The potential of a criminal penalty for leaving civil process in a party's mailbox was well known to Kraimer. Its existence certainly was a disincentive for him to engage in such behavior. See Security Insurance Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 709, CT Page 14064-cm 826 A.2d 107 (2003). Under such circumstances, and in view of Kraimer's long experience at serving process, the court finds credible his assertion that he did not leave the papers in Proll's mailbox.
The fact that Proll found them there does not negate Kraimer's testimony about having made service in the proper manner. Proll testified that he lives alone and that his yard contains various pieces of equipment which he uses in his landscaping business. He noted that he has over fifty customers. He stated that he retrieves his mail when he returns home from work at 5:00 or 5:30 p.m. While he stated that there should have been no one at his house during the day while he was away at work, that does mean that, in fact, no one else was there. During the day, someone may have seen the papers in his doorjamb, taken them out, and placed them in his mailbox. While Proll stated that his front entrance had a screen door, with weather stripping, Kraimer credibly testified that proper abode service can be made even though weather stripping is present.
Neither party presented photographs of the Burlington premises.
Having reviewed the facts and circumstances, the court finds, by a preponderance of the evidence, that, on June 22, 2005, service was properly made on Proll at his usual place of abode, in Burlington.
Our Supreme Court recently has held, concerning the time in which to serve an apportionment complaint, that "on the basis of the mandatory language employed by the legislature and our conclusion that § 52-102b(a) is substantive, we further conclude that the 120 day time limitation contained therein is mandatory." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 26, 848 A.2d 418 (2004). Service on Proll occurred within 120 days of the return date, February 22, 2005.
In pertinent part, § 52-102b(a) provides, "Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint."
In view of this determination, the court need not discuss Sheriden's argument concerning actual notice.
CONCLUSION
For the foregoing reasons, the motion to dismiss the apportionment complaint is denied. It is so ordered.