Opinion
No. 447023
October 15, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS (No. 114)
The motion now before the court presents a variation on the theme of Noble v. Corkin, 45 Conn. Sup. 330, 717 A.2d 301 (1998), in which I held that service of process on a dead person deprives the court of jurisdiction to hear the case. Although the plaintiff points to some procedural distinctions between this case and Noble, these distinctions do not ultimately lead to a different result.
The plaintiff, Brad Santello, alleges that he was injured in a two-car accident that occurred in Branford on December 14, 1998. Santello was driving one car, and the erstwhile defendant, William Paprocki, was driving the other. Paprocki died on March 25, 1999.
On December 8, 2000, Santello — who was unaware of Paprocki's death — attempted to commence this action by service of process on Paprocki. (Santello commenced his action against other defendants as well, but those defendants are not involved in the motion now before the court.) "Service" was made on that date by leaving process at Paprocki's former place of abode. On January 31, 2001, Attorney Karen Coatsworth filed an appearance for Paprocki. On March 20, 2001, Attorney Coatsworth filed a suggestion of death.
On February 21, 2002, Santello filed a motion to substitute the Estate of William Paprocki (the "Estate") and Bernice Paprocki, Executrix (the "Executrix") as party defendants for Paprocki. That motion was granted by the court (Licari, J.) on March 11, 2002, without opposition. The Executrix was served with the motion on April 5, 2002. On May 9, 2002, the law office of Larry Levine filed an appearance for the Executrix. On August 14, 2002, Attorney Levine's office filed the motion now before the court on behalf of the Estate and the Executrix. The Motion contends that since Paprocki "was dead at the time this case was commenced, the court lacks subject matter jurisdiction and should dismiss the case." The motion was argued on October 14, 2003.
For reasons explained in Noble v. Corkin, "[S]ervice on a dead man deprives the court of jurisdiction to pronounce any decision on the merits" in a case commenced by such service. 45 Conn. Sup. at 332. Such service occurred in this case. Paprocki died on March 25, 1999. When "service" was made on December 8, 2000, he had been dead for well over a year. The action against him was an action against nobody. The later substitution of the Estate and the Executrix does not alter this unalterable fact. The substitute defendants are merely standing in the original defendant's nonexistent shoes. Substitution of parties in a nonexistent lawsuit cannot create jurisdiction where no jurisdiction exists. The entire proceeding was void ab initio and did not invoke the jurisdiction of the court. Because of its jurisdictional nature, this was not a circumstantial defect that could be disregarded or corrected pursuant to Conn. Gen. Stat. § 52-123.
Because the defect here involves subject-matter jurisdiction; O'Leary v. Waterbury Title Co., 117 Conn. 39, 47, 166 A. 677 (1933); it can be raised at anytime. Practice Book § 10-33. The defendants' failure to file their motion to dismiss within thirty days of the filing of an appearance is thus not fatal to the motion. The motion to dismiss is granted.
Jon C. Blue Judge of the Superior Court