Opinion
No. TTD CV 11 6003379 S
August 3, 2011
MEMORANDUM OF DECISION
The plaintiff, George C. Schober, appeals the decision of an independent hearing board of the State Board of Education (the state board), upholding a ruling of the Somers Board of Education (the local board) that denied Schober's request to relocate his children's bus stop. Schober commenced this appeal by mailing copies of the appeal petition to the clerk of the town of Somers and to the state and local boards by certified mail, return receipt requested, on May 9, 2011. The documents served include copies of a civil writ and summons, form JD-CV-1, listing the local board as the sole defendant. Schober has filed an affidavit and attached postal return receipts indicating that the local and state boards, as well as the clerk of the town of Somers, have all received service.
On June 20, 2011, the local board moved to dismiss the present matter on the ground that the court lacks subject matter jurisdiction. Schober filed a request to amend the summons, appeal petition, and complaint on June 22, 2011. The local board objected to the request to amend on June 30, 2011, and, on July 13, 2011, Schober filed a memorandum responding to the local board's objection to the request to amend and objecting to its motion to dismiss. Oral argument was heard by the court on July 18, 2011.
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . There is no absolute right of appeal to the courts from a decision of an administrative agency . . . The UAPA grants the Superior Court jurisdiction over appeals of agency decisions only in certain limited and well delineated circumstances." (Citation omitted; internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. Of Public Works, 282 Conn. 711, 764 (2007).
The local board argues that the court lacks subject matter jurisdiction due to Schober's failure to name the state board in the citation. The local board contends that such omission creates a fatal jurisdictional defect. Schober counters that no citation is necessary and service is accomplished by certified or registered mail pursuant to General Statutes § 4-183(c). Schober contends that his failure to name the state board in the citation is irrelevant because the citation itself was not required to commence the appeal.
"In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day." Tolly v. Department of Human Resources, 225 Conn. 13, 18 (1993) quoting, 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. (1970) § 18. In Tolly v. Department of Human Resources, supra, our Supreme Court held that § 4-183(c)(1) does not require a citation. The court reasoned that because General Statutes § 4-183(c)(1) specifically provides for service by certified or registered mail without the use of a sheriff or other officer, a citation requirement would be meaningless. Klopp v. Commissioner of Income Maintenance, 32 Conn.App. 335, 338 (1993).
Schober's administrative appeal is governed by § 4-183. Because service via certified or registered mail pursuant to § 4-183(c) does not require a citation, Schober's failure to name the state board in the citation does not provide a ground for dismissing the action.
As noted above, Schober has provided an affidavit and copies of postal return receipts indicating that the state and local boards were served with copies of the appeal petition. The body of the appeal petition explicitly states that Schober is appealing "from a decision of the State of Connecticut State Board of Education," describes the conduct of the state board's hearing officer, and requests "reversal of the Decision of the Impartial Hearing Board." Nonetheless, the petition caption lists only the local board as a defendant and refers to that board, both in the caption and throughout the body of the complaint, as the "Appellee."
"If . . . there is an arguable defect in the process that was timely served on the agency . . . rather than failure to make service at all within the applicable time period, the court does not lack subject matter jurisdiction over the appeal . . . and the appeal is dismissable only upon a finding of prejudice to the agency." Tolly v. Department of Human Resources, supra, 225 Conn. 28-29. Neither the local board nor the nonappearing state board have demonstrated any prejudice caused by Schober's inclusion of an unnecessary, albeit erroneous, citation among the documents served by certified mail. Cf Chestnut Realty, Inc. v. CHRO, CT Page 16900 201 Conn. 350, 357 (1986) (absent showing of prejudice by defendant, improper use of JD-CV-1 summons form did not mandate dismissal of administrative appeal); see also Tirella v. Region 16 School District, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 0065305 (November 16, 1999, Arnold, J.) (questioning whether local board was appropriate party to raise issue of dismissal where state agency was not named defendant in heading of appeal).
The local board further argues that Schober should not be permitted to amend his appeal petition because the failure to name the state board is a jurisdictional defect, incurable by such amendment. The local board cites to Simko v. Zoning Board of Appeals, 205 Conn 413 (1987), aff'd en banc, 206 Conn. 374 (1988), superseded on other grounds, Public Acts 1988, No. 88-79, § 1, and Sarfraz v. Weston, Superior Court, judicial district of Fairfield, Docket No. CV 10 6009465 (October 15, 2010, Tobin, J.), in support of its position. Furthermore, the local board argues that even if the court were to allow the filing of the amended petition, the amended pleading would nonetheless be subject to a motion to dismiss because it was filed outside the forty-five-day appeal period provided by § 4-183(c).
The local board's reliance on Simko and Sarfraz is misplaced because those cases are distinguishable from the present matter. Simko involved a plaintiff's failure to name an administrative agency in an appeal citation where process was served by sheriff pursuant to General Statutes § 8-8, not certified or registered mail pursuant to § 4-183(c). Here, the method of service chosen by Schober does not require a citation. Sarfraz is likewise inapposite because the town agency in that matter was "neither named as a defendant nor served with process." (Emphasis added.) Sarfraz v. Weston, supra, Docket No. CV 10 6009465. Here, Schober has provided an affidavit and return receipt card indicating that the state board was timely served by certified mail and the local board has not contested Schober's offering on this issue.
Furthermore, although the appeal fails to name the state board in its caption, such error does not amount to a jurisdictional defect. See Tirella v. Region 16 School District, supra, Superior Court, Docket No. CV 99 0065305 (failure to name state department of education in appeal heading did not implicate subject matter jurisdiction); George v. A.D.P. Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 0051590 (January 19, 1996, Skolnick, J.) [ 15 Conn. L. Rptr. 658] (failure to name CHRO in caption of appeal not fatal). Although Schober has filed a request to amend outside of the forty-five-day limitation period for bringing an administrative appeal provided by § 4-183(c), he is not, as noted, attempting to cure a jurisdictional defect. Cf. Walnut Street Service, Inc. v. Commissioner of Motor Vehicles, Superior Court, Judicial District of Hartford, Docket No. CV 96 0562083 (November 6, 1996, Maloney, J.) (considering substitute complaint that cured jurisdictional defect where filed within forty-five-day period). Nor is he attempting to interpose a new claim. The state board was served within the time prescribed by § 4-183(c), and our procedures allow for the liberal amendment of pleadings to cure circumstantial defects and mistakes. See, e.g., General Statutes § 52-123.
"[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778-79 (2006). For the foregoing reasons the court denies the motion to dismiss and overrules the objection to the request to revise.