Opinion
No. FST CV 04 0200832 S
October 21, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This is a personal injury action brought on behalf of a minor student at Stillmeadow Elementary School in Stamford, claiming that he was injured by the lid of a refrigerator at the school when he was in the process of attempting to get a milk carton from the refrigerator. The defendants are the City of Stamford, the Stamford Board of Education, the superintendent of schools, the school principal, a school employee, the operator of an after-school program at the school and the director and coordinator of the after-school program. The defendants, the Stamford Board of Education, School Superintendent, Anthony Mazzullo, and school Principal, Michael Sanders, have moved to dismiss the counts of the complaint directed to them (Counts Two, Three and Four thereof) due to alleged defective and insufficient services of process which failed to comport with the prescribed manner of service of process on said defendants as required by Connecticut General Statutes § 52-57(b)(5) and (7) respectively. The jurisdictional facts are not in dispute. The return of service of Constable Jon Gallup shows service upon the defendant, Stamford Board of Education, by personal service on Eileen A. Ferraro, Secretary of the Board and upon Roseann McManus, also described as Secretary of the Board. The defendant, Anthony L. Mazzullo was served by abode service at his home, and the defendant, Michael J. Sanders, was personally served. The Town Clerk of the City of Stamford has submitted an affidavit attesting that no service of process in this action was made upon her or her office. The plaintiff does not contest the facts set forth in that affidavit. CT Page 13940-eb
§ 52-57(b)(5) and (7) provide: "Processes and actions against the following described classes of defendants shall be served as follows: ". . . (5) against a board, commissioner, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the city shall return one copy and forward its served copy to the board, commission, department or agency, . . . (7) against an employee of a town, city or borough in a cause of action arising from the employee's duties or employment, upon the clerk of the town, city, or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the employer."
The motion to dismiss was filed within the thirty-day time limit of Practice Book § 10-30. Insufficiency of service of process is properly raised by a motion to dismiss, Practice Book § 10-31, and challenges the court's in personam jurisdiction over the objecting defendant. Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224 (2000).
Discussion
The claims of insufficient service of process must be reviewed separately as to the defendant the Stamford Board of Education and the two employee-defendants, Anthony Mazzullo and Michael Sanders.
A. Stamford Board of Education
The plaintiff does not claim that service upon the Board of Education was made as prescribed by § 57-52(b)(5). Pointing to the preamble to § 57-52 as set forth in § 57-52(a) which the plaintiff claims permits alternative methods of service of process upon a municipal board, the plaintiff claims that he has validly served the Board of Education as a "school district" under § 52-57(b)(4) which provides for service "against a school district, upon its clerk or one of its committee." With reference to Connecticut General Statutes § 10-240, the plaintiff claims that he has validly served the Board of Education "as a school district" by serving its secretary or a member. There are three fallacies to the plaintiff's position, any one of which would be sufficient to counter the claim that the defendant, Board of Education, has been validly served as a school district. First, although the preamble to § 52-57 set forth in subsection (a) does include the phase "Except as otherwise provided," subsection (b)(5), alone among seven permissible methods of serving various classes of defendants as set forth in the subsections of § 52-57, contains the qualifying phrase ". . . notwithstanding any provisions of law" which must be taken as limiting or modifying the quoted provision in the preceding preamble. The result is that service on a municipal board, commission, department or agency must be made exclusively by serving the Town Clerk pursuant to § 52-57(b)(5), which admittedly was CT Page 13940-ec not done here. "When the person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163 n. 8 (1989). Second, the plaintiff has made no showing that § 10-240, upon which he relies for the proposition that the defendant, City of Stamford, through its Board of Education, is a school district, is still applicable. It has been held that all of what is now Chapter 171 of the Connecticut General Statutes, including § 10-240 and its predecessors, only applies to towns which have not consolidated their historical separate school districts under Chapter 51 of the General Statutes of 1930 and its predecessors. Connor v. Spellacy, 122 Conn. 36, 47 (1936). There is no evidence before this court that Stamford has not consolidated its historical school districts as was required by 1909 Public Acts Chapter 146. See, State ex. rel. Huntington v. Huntington School Committee, 82 Conn. 563, 566 (1909). The web site material submitted by the plaintiff appears to refer to one Board of Education controlling all the public schools in the City of Stamford. In any event, the plaintiff, as the proponent of this court's in personam jurisdiction, has the burden of proof as to the non-consolidation issue and has failed to prove non consolidation. "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of this record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Citations omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54 (1983). And third, even if § 10-240 were applicable, which it is not for the purposes of this case, the party specified therein as being a school district is "[e]ach town." In this case the City of Stamford is a separate defendant which has not challenged service of process upon it. If § 10-240 applied at all it would stand for the proposition that the defendant, City of Stamford is a school district subject to service of process under § 52-57(b)(4). The Board of Education is not designated in § 10-240 as a school district, but rather as the agency "through" which a town functions as a school district. As the Appellate Court has noted "[t]hat there is indeed a difference between a municipal corporation and an agency CT Page 13940-ed (be it state, federal or municipal) merits but a brief discussion." White Oak Corporation v. Department of Consumer Protection, 12 Conn.App. 251, 254-55 n. 7 (1987). The separation and distinction between a town and its Board of Education has been clearly established. "Thus, although the Town of Stafford is a municipal corporation, its Board of Education, standing alone, is not." Bickerstaff v. Town of Stafford, 2004 Ct.Sup. 11927-cj, 37 CLR 604, Docket No. CV 03 0080409, Superior Court Judicial District of Tolland at Rockville (Scholl, J., August 3, 2004).
§ 57-52(a) provides: " Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant or at his usual place of abode, in this state." (Emphasis added).
§ 10-240 provides: "Each town shall, through, its board of education, maintain, the control of all public CT Page 13940-eg schools within its limits and for this purpose shall be a school district and shall have all the powers and duties of school districts." Under § 10-241 a school district has the power to be sued: "Each school district shall be a body corporate and shall have the power to sue and be sued."
"In the materials submitted by the plaintiff from the Stamford Board of Education web site, of which the court takes judicial notice without objection, Roseann McManus is listed as a member and vice president of the Board. If § 52-57(4) is applicable, the service upon her by Constable Gallup would be service upon "one of its Committee."
Under Conn. General Statutes § 7-148 a "municipality" includes "any town, city or borough."
Plaintiff further argues against the need to serve the Town Clerk under § 52-57(b)(5) by claiming that the defendant Board of Education is an agent of both the state and the municipality, citing Heigl v. Board of Education, 218 Conn. 1, 3-4 (1991) and Cahill v. Board of Education, 187 Conn. 94, 101 (1982). It is true that a board of education is acting as an agent of a state when it performs those duties delegated to it by the state, such as the provision of primary and secondary education. Board of Education v. City of New Haven, 237 Conn. 169, 181 (1996). Among the educational duties delegated to the local boards of education by the state is ". . . the care, maintenance and operation of buildings, lands, appearances and other property used for school purposes . . ." Conn. General Statutes § 10-220(a). Id. It is uncertain from the allegations of the complaint whether or not it is claimed that the refrigerator which the plaintiff claims to have injured his finger was being used for school purposes, or for the purposes of an after-school program operated by the defendant Roscco/Stillco. But even assuming that the refrigerator in question was being used for school purposes and the defendant Board of Education in owning and maintaining that refrigerator was acting "for school purposes" and was therefore an agent of the state, there is nothing which requires or authorizes a manner of service of process different from that required by Conn. General Statutes § 52-57(b)(5). Although it may be acting as an agent of the State of Connecticut, the Board of Education continues to be "board, commission, department, or agency" of the municipality. The State of Connecticut through the legislature could have specified a different manner of service of process on municipal CT Page 13940-ee boards, commissions or agencies when they are acting as agents of the state, but it has not done so. Service on the town clerk under § 52-57(b)(5) is required in either event "notwithstanding any provision of law."
Finally, the plaintiff claims that the moving defendants have consented to jurisdiction by filing a motion for nonsuit dated November 5, 2004 while the instant motion to dismiss dated June 29, 2004 was pending. The motion for nonsuit seeks to nonsuit the plaintiff for failure to comply with the defendants' requests for disclosure and production dated June 22, 2004. Under the holding of Kim v. Magneta, 249 Conn. 94, 101-02 (1999), the defendant in that case waived his right to challenge the court's personal jurisdiction over him by failing to file a motion to dismiss, by filing an answer and special defense on the merits, and by participating in a stipulated judgment upon which the civil action in question was premised. Here, the defendants did file a motion to dismiss and have not filed any pleading responsive to the complaint. The mere filing of discovery requests and a motion for nonsuit directed to those discovery requests would not amount to a waiver of the personal jurisdiction claims. Discovery requests are not listed in the Practice Book § 10-6 order of pleadings, and therefore the defendant's motion to dismiss was filed "in sequence" under Practice Book § 10-32, thereby awarding any waiver of the claim of lack of personal jurisdiction.
B. Defendants Anthony Mazzullo and Michael Sanders
There is no dispute that the defendant, Anthony Mazzullo, is the Superintendent of Schools of the City of Stamford and the defendant, Michael Sanders is the Principal of the Stillmeadow Elementary School where the alleged incident took place. Mr. Mazzullo was served by abode service at his home. Mr. Sanders was personally served. Neither of them was served in the manner specified in Conn. General Statutes § 52-57(b)(7) set forth in footnote 1, supra. But in this case the preamble to § 52-57 as set forth in subsection (a) thereof does provide for an alternative method of service by personal service or abode service and, unlike CT Page 13940-ef subsection (5) which limits that alternative by the words "notwithstanding any provision of law . . ." there is no such limitation in subsection (7). The result is that ". . . a plaintiff now has two available options by which to obtain personal jurisdiction over the defendant who is an employee of a town . . ." Meade v. City of Hartford, 2005 Ct.Sup. 5363, 39 CLR 51, Docket No. CV 04 0834669, Superior Court, judicial district of Hartford at Hartford (Wagner, J., March 24, 2005). Valid personal jurisdiction has therefore been established over the defendants Mazzullo and Sanders.
ORDER
For the reasons stated herein the motion to dismiss (No. 102) is: granted as to the defendant Stamford Board of Education, and the second count of the complaint is dismissed; and denied as to the defendants, Anthony Mazzullo and Michael Sanders.