Opinion
C. A. PC-2019-5392
01-24-2020
ALEC FROMBERG, Plaintiff, v. RHODE ISLAND OFFICE OF GENERAL TREASURER, Defendant.
Michael J. Furtado, Esq. For Plaintiff: Kara DiPaola, Esq. For Defendant:
Michael J. Furtado, Esq. For Plaintiff:
Kara DiPaola, Esq. For Defendant:
DECISION
NUGENT, J.
Before this Court is the appeal of Alec Fromberg (Fromberg or Appellant) from a decision by the Rhode Island Office of General Treasurer (the Office) denying his application for compensation under the Crime Victim Compensation Program (CVCP). In its May 27, 2014 decision (Decision), the CVCP denied the application, finding that the incident for which he sought compensation was not a compensable crime. Jurisdiction is pursuant to G.L. 1956 §§ 42-35-15 et seq.
I. Facts and Travel
Fromberg filed an application with the CVCP on July 10, 2013 as the victim of a violent crime. (R. at 001.) The CVCP provides eligible victims of violent crimes with compensation for expenses "reasonably incurred as a result" of the personal injury. G.L. 1956 § 12-25-21(a)(1). The CVCP is regarded as "a fund of last resort." Section 12-25-23(b).
In his application, Fromberg indicated that he was the victim of a "robbery" and "fraud/identity theft" committed by Ana Rodriguez (Rodriguez) on January 8, 2013. (R. at 001.) Included in Fromberg's application were an Identity Theft Victims' Complaint and Affidavit as well as an Incident Report from the Providence Police. See R. at 004-012 and 019-022. Specifically, the Incident Report states that Fromberg responded to Central Station to "report he was defrauded out of $2000 and a cell phone by Ana Rodriguez[.]" (R. at 012.) Fromberg states that he befriended Rodriguez on a website referred to as Boston back page. Id. at 021. During that time, Fromberg stated that Rodriguez convinced him to send her $2000, which caused an overdraft in his bank account. (R. at 012.) Thereafter, Fromberg reports that he and Rodriguez corresponded through email and she "somehow persuaded [him] to buy her a phone." Id. at 021. During a three-way telephone conversation with Fromberg, Rodriguez, and the phone carrier, Fromberg provided his credit card number, expiration date, and three-digit security code for purposes of activating the phone. Id. Fromberg alleged that Rodriguez stole that credit card information to provide to Western Union for purposes of obtaining money transfers through Sam's Food Mart/Western Union. Id. However, further police investigation revealed that Fromberg voluntarily sent the money to Rodriguez from his own computer and that he bought and activated the phone for her. Id. at 020-021. The Providence Police Department closed this case without criminal prosecution and advised Fromberg that this matter should be dealt with in civil court. Id. at 020.
The Administrative Record reflects that the Deputy Program Administrator denied Fromberg's CVCP application in a letter dated July 26, 2013, stating that "the incident for which [he seeks] compensation is not a compensable crime." Id. at 023. Specifically, the letter references the CVCP regulations which allows the Office to award compensation for personal injury or death that results from certain types of crimes, a list of which is found explicitly in the statute. Id.; see also § 12-25-20. Notably, fraud is not among those crimes, and Fromberg's claim was denied. Id. The Deputy Program Administrator informed Fromberg that he had the right to file a Request for Reconsideration, but that must be done within fifteen days from the date that he received the letter. Id.
Accordingly, Fromberg submitted a Request for Reconsideration on May 7, 2014, stating that his "claim warrants a payout because the crime is under the crime statue [sic] for a victim[.] Id. at 025. On May 27, 2014, the Designee of the General Treasurer upheld the Deputy Administrator's decision and denied compensation under the CVCP. Id. at 027-029. The Designee stated that the crime in question did not involve '"the application of force or violence or the threat of force or violence by the offender upon the victim, resulting in physical or psychological injury to the victim'" as required under CVCP Rules and Regulations § 2.4(F). Id. at 028-029. Further, the Designee noted that fraud is not a compensable crime pursuant to CVCP Rules and Regulations § 1:03(18). Id. at 029; see also § 12-25-20. Additionally, the Designee put forth that a Request for Reconsideration must be filed within 15 days of the receipt of notice of the denial; however, Fromberg filed this appeal nine months after the specified deadline. Id. The Designee provided notice to Fromberg that he had the right to petition the superior court for judicial review of the Decision within thirty days pursuant to §§ 42-35-15 and 12-25-18(h). Id. at 027. Nearly five years later, on May 6, 2019, Fromberg filed the instant action seeking judicial review of the Office's Decision to deny compensation.
The letter from the Office cites this definition under § 1.03(6), as it was properly listed on May 27, 2014. The regulation change indicated in this Court's Decision reflects the current citation as of the February 28, 2019 amendments.
The current citation for this assertion is § 2.4(S).
II. Standard of Review
Pursuant to the Administrative Procedures Act (APA), the Superior Court has appellate jurisdiction to review final orders of state administrative agencies. See §§ 42-35-15 et seq.; see also McAninch v. State of Rhode Island Department of Labor and Training, 64 A.3d 84, 87 (R.I. 2013). Specifically, § 42-35-15(g) provides:
"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
This Court's review of an agency's decision is limited in scope. See Nickerson v. Reitsma, 853 A.2d 1202, 1205 (R.I. 2004) (quoting Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992). "The trial justice must not 'substitute [his or her] judgment for that of the agency as to the weight of the evidence on questions of fact.' Instead, the Superior Court must uphold the agency's decision if it is supported by legally competent evidence." Endoscopy Associates, Inc. v. Rhode Island Department of Health, 183 A.3d 528, 532 (R.I. 2018) (citing Interstate Navigation Company v. Division of Public Utilities and Carriers of Rhode Island, 824 A.2d 1282, 1286 (R.I. 2003)). Our Supreme Court has defined "legally competent evidence" as "such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance." Rhode Island Temps, Inc. v. Department of Labor and Training, Board of Review, 749 A.2d 1121, 1125 (R.I. 2000). Thus, this Court will reverse an agency's decision only if it is "completely bereft of competent evidentiary support in the record." Sartor v. Coastal Resources Management Council, 542 A.2d 1077, 1083 (R.I. 1988).
III. Analysis
A. The Statute of Limitations
Fromberg alleges that he should be relieved of the statute of limitations requirement because it is not a mandatory limitation for the time of appealing an administrative decision. Fromberg further argues that this Court should use its equitable powers to relieve him of the limitation because (1) the agency has not been hindered or prejudiced by the delayed filing; (2) he did not understand the time limit to appeal the decision; and, (3) he has pursued civil remedies for compensation but has come to a "dead end" in that process.
According to the CVCP, "Appeals of the treasurer's or treasurer designee's decision may be brought to superior court pursuant to the Administrative Procedures Act[.]" Section 12-25-18(i). An aggrieved person who seeks judicial review of an agency decision must file a complaint with the superior court "within thirty (3) days after mailing notice of the final decision of the agency[.]" Section 42-35-15(b). The CVCP mirrors this requirement. See CVCP Rules and Regulations § 2.10(B)(1).
Significantly, the APA does not explicitly provide for exceptions to the statute of limitations provision, as the time period for filing for judicial review is a jurisdictional issue. See Rivera v. Employees' Retirement System of Rhode Island, 70 A.3d 905, 912 (R.I. 2013) (holding "that the Superior Court has the equitable authority to determine whether the statute providing for judicial review of an administrative decision . . . should be tolled in appropriate circumstances"). The APA does, however, provide for an exception to the service of process requirement under the same provision. See § 42-35-15(b) (allowing time for service of process to be extended "for good cause by order of the court"). Under general principles of statutory construction, courts recognize "every word, phrase, and clause in a legislative enactment [to intend and have] some meaning and that none w[ere] inserted accidentally. 2A Norman J. Singer & Shambie Singer, Sutherland on Statutes and Statutory Construction § 46:6 (7th revised ed. 2014). Importantly, "[w]here a legislature includes particular language in one section of a statute but omits it from another section of the same or a related act, it generally acts intentionally and purposely in the disparate inclusion or exclusion." Id. In reviewing issues of statutory interpretation, "[the court's] ultimate goal is to give effect to the purpose of the [statute] as intended by the Legislature." In re B.H., 194 A.3d 260, 264 (R.I. 2018). Therefore, when a provision is '"unambiguous, there is no room for statutory construction and [the court] must apply the statute as written.'" Retirement Board of Employees' Retirement System of State v. DiPrete, 845 A.2d 270, 297 (R.I. 2004) (quoting In re Denisewich, 643 A.2d 1194, 1197 (R.I. 1994)).
Here, Fromberg filed this action on May 6, 2019-nearly five years after the thirty-day deadline to seek judicial review from this Court. The APA clearly includes an exception to the service of process requirement while omitting such an exception for the statute of limitations in the same provision. See § 42-35-15(b). Consequently, this Court is tasked with applying the plain meaning of the provision. See State v. Santos, 870 A.2d 1029, 1032 (R.I. 2005) (holding that a court must interpret a statute literally and give the words of the statute their plain and ordinary meaning when the language is clear and unambiguous). Therefore, Fromberg filed this action well outside the scope of the statute of limitations period and is barred from bringing this claim.
B. Compensable Crime
Fromberg alleges that CVCP regulations go beyond their rule-making authority by limiting compensable crimes to those that "involve[] the application of force or violence or the threat of force or violence by the offender upon the victim, resulting in physical or psychological injury to the victim." CVCP Rules and Regulations § 2.4(F). Fromberg bases this argument on the grounds that CVCP statutory law defines "personal injury" to include "mental or nervous shock[.]" Section 12-25-17(7). Further, he points out that the statute includes "robbery or larceny" as a compensable crime. Section 12-25-20(8). Finally, Fromberg states that the facts as stated in his Complaint align with the crime of "obtaining property by false pretenses" as defined in G.L. 1956 § 11-41-4.
The CVCP is administered by the Office and may award compensation to victims for personal injury or death which resulted from particular, specific offenses. See § 12-25-20. A victim is defined by the act as "a person who is injured or killed by any act of a person or persons that is within the description of any of the offenses specified in § 12-25-20 and which act occurs in the state of Rhode Island." Section 12-25-17(13). These offenses specified in § 12-25-20 as compensable crimes are:
"(1) Assault with intent to commit murder, robbery, or rape;
"(2) Assault with a dangerous weapon;
"(3) Assault and battery;
"(4) Mayhem;
"(5) Indecent assault and battery on a child under thirteen (13) years of age;
"(6) Arson or statutory burning;
"(7) Kidnapping;
"(8) Robbery or larceny from that person;
"(9) Murder;
"(10) Manslaughter;
"(11) First or second degree sexual assault; "(12) Child molestation, first or second degree;
"(13) The abominable and detestable crime against nature or assault with intent to commit the abominable and detestable crime against nature;
"(14) Driving under the influence of alcohol or drugs;
"(15) Refusal by a driver to submit to a chemical test for alcohol or drugs in the immediate aftermath of a collision;
"(16) Driving so as to endanger, resulting in death, pursuant to § 31-27-1;
"(17) Driving so as to endanger, resulting in personal injury, pursuant to § 37-27-1.1;
"(18) Any other crime excluding motor vehicle offenses other than those enumerated in this section which results in personal injury or death; and
"(19) Failure to stop by a driver in circumstances which result in the death of any person, pursuant to § 31-26-1." Section 12-25-20.
Importantly, the Office may not award compensation unless it finds that "(1) [t]he act did occur; and (2) [t]he injury or death resulted from the act." Section 12-25-19(e).
The CVCP Rules and Regulations are promulgated by the General Treasurer of Rhode Island with the purpose of financially compensating "victims of violent crime pursuant to the authority under R.I. Gen. Laws § 12-25-18(b)." CVCP Rules and Regulations § 2.2. Further, these Rules and Regulations are "established for the purpose of effectuating the provisions and overall purpose" of the Criminal Injuries Compensation Act. Id. § 2.1(A). An individual is eligible for compensation under the Rules and Regulations if he or she is a "victim[] as defined in § 2.4(R) of this Part[.]" Id. § 2.6(A)(1). A "victim" under this section means, "a person who is an involuntary participant in a criminal act or totally unaware that he or she is a potential participant in a crime, who suffers personal physical or psychological injury or death by any act of a person or persons as a result of (a) any of the offenses specified in R.I. Gen. Laws § 12-25-20 . . . ." CVCP Rules and Regulations § 2.4(R)(1)(a). The definition of "personal injury" mirrors that of the CVCP. See id. § 2.4(L) (defining "personal injury" as "actual physical bodily harm, or mental or nervous shock, and a pregnancy resulting from a sexual attack"). Crimes in the context of these regulations include those offenses specified in § 12-25-20 and requires that the criminal act "involves the application of force or violence or the threat of force or violence by the offender upon the victim . . . ." Id. § 2.4(F).
Here, Fromberg argues that he is due compensation by the CVCP because he is a victim of fraud. (R. at 001; see also R. at 028.) Notably, fraud is not listed as a compensable crime under the CVCP. Section 12-25-20. In addition, the Administrative Record reflects that the Providence Police Department closed the criminal case without criminal prosecution regarding this incident. (R. at 020.) Further, the Providence Police advised Fromberg that this claim would be best pursued in civil court. Id. As Fromberg was not found by law enforcement to be the victim of a crime, he is not eligible for compensation under the CVCP.
Even if the Providence Police had deemed Fromberg to be the victim of a crime, his claim still does not amount to a crime of violence as required by the CVCP in order to be eligible for compensation. Fromberg was convinced by Rodriguez to send her $2000 and a cell phone (R. at 012). Although these transactions may have been procured under false pretenses, they do not constitute compensable crimes under the CVCP. The CVCP requires the crime in question to involve "the application of force or violence or the threat of force or violence by the offender upon the victim . . . ." CVCP Rules and Regulations § 2.4(L). The record does not substantiate any claim that Fromberg suffered from "mental or nervous shock" as a result of the incident. Further, there is no evidence in the record that Rodriguez acted violently or threatened to act violently toward Fromberg. Since Fromberg did not suffer a "personal injury" under CVCP statutes and regulations, he does not satisfy the requisite definition of "victim" to render him eligible for CVCP compensation.
IV. Conclusion
After reviewing the entire record, this Court finds that the Office's Decision to deny Fromberg compensation under the CVCP is not clearly erroneous or affected by error of law. Fromberg's claim was filed significantly after the statute of limitations had passed. Further, Fromberg does not meet the statutory definition of a "victim" under the CVCP, as fraud is not a compensable crime and he presents no evidence of personal injury as a result of the incident. Therefore, this Court upholds the Decision of the Office to deny Fromberg compensation under the CVCP.
Counsel shall submit the appropriate order for entry.