Opinion
No. CV 06-4017351 S
July 12, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In this administrative appeal the defendant Planning Zoning Commission has filed a motion to dismiss the complaint. It is argued that the plaintiff failed to commence and serve its appeal within 15 days of the published notice of the defendant's decision as required by section 8-8 of the General Statutes. The notice was published on November 19, 2005 so that the plaintiff had until December 5, 2005 to make service of the appeal but service was not made until December 8th.
The plaintiff maintains that although the appeal was served on the defendant more than 15 days after the defendant had the decision published in the newspaper, the appeal was delivered to the state marshal within the 15 days of the date of publication. Thus, it is said § 52-593a applies which says:
Sec. 52-593a. Right of action not lost where process served after statutory period. When. (a) Except in the case of an appeal from an administrative agency governed by section 4-183 a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery. (b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section.
There is no dispute that the process was delivered to the marshal within 15 days of publication and he did make service within 30 days of delivery to him. As indicated notice of the decision was published on November 19, 2005, the process was delivered to the sheriff on December 2nd within 15 days of November 19th and the sheriff made service according to his return December 8, 2008, certainly within 30 days of receiving process according to the return. These facts are not disputed.
However, the defendant argues § 52-593a cannot be relied upon by the plaintiff for two reasons: (1) the sheriff's return is not under oath as required by subsection (b) of the statute and (2) the testimony of the marshal who testified at a hearing on this matter indicates then when the papers were delivered to him he was not instructed to make service forthwith contrary to the intent of § 52-593(a). The fact that the appeal is served within 30 days is thus irrelevant. At the hearing the marshal testified as follows for the plaintiff on direct:
Q. And do you remember what date you came to my office to pick up that zoning appeal complaint?
A. It was December 2nd.
Q. Okay and did Attorney Healey request that you hold on to that complaint for several days before serving it?
A. Yes.
Q. And did you discuss with Attorney Healey whether it was legally permissible to do so?
A. Yes I did.
Q. And did you ask Attorney Healey to do some research to determine whether you could serve the appeal after the fifteen day period?
A. Yes, because it was not clear as to whether or not the law included zoning appeals.
Q. And did Attorney Healey do that work in your — do that research in your presence?
A. Yes he did.
On cross-examination, however, the following was brought out:
Q. And from you previous testimony what (attorney Healey) did was to direct you to hang on to that process for a few days?
A. That's correct.
Q. And then he would contact you further and tell you go ahead and do it?
A. That's correct.
Q. And what day of the week was December 2nd?
A. I believe it was a Friday.
Q. So it was a day that was within the normal fifteen days of appeal and it was a day when the Town of Wallingford Offices were open?
The parties do not dispute that the ameliorative provisions of § 52-593a applies to zoning appeals in general. Such a matter would appear to be "a cause or right of action" and the only matters excluded from § 52-593a application are administrative appeals under § 4-183 which implies all other types of administrative appeals, such as the one before the court fall within the ambit of § 52-593a.
At argument counsel for the plaintiff did not take issue with the foregoing characterization of the marshal's testimony but argued against the defendant's position to the effect that § 52-593a cannot be relied upon because the marshal was in effect told do not make service until the lawyer told him to do so. "The statute doesn't say anything about the intention of the sheriff or the attorney. It just says as long as you deliver he process to the marshal within fifteen days prior to the statute of limitations expiring, he then has fifteen days thereafter for whatever reason so I don't think that the statute calls for any state of mind exception." Opposing counsel then said:
It wasn't really delivered to him to make service. It was delivered to him to hang on to until further notice.
To this plaintiff's counsel made no response or expressed no disagreement. As noted he seemed to agree with that characterization but said relief under § 52-593a was still appropriate.
The court will now try to address each of the defendant's arguments.
(1)
The marshal's return is not under oath and does not indicate the date of delivery of the process as subsection (b) of § 52-593a requires.
However at the hearing on the motion to dismiss the marshal was put under oath and did testify the process was delivered to him on December 2, 2005 — within the 15-day period for appeal from the date of publication of the decision of the Board (§ 8-8 CGSA).
In Zarillo, et al. v. John Peck, et al., 33 Conn.Sup. 676, 677 (1976) (negligence action) the court noted that "the return did not conform with the statutory requirement (referring to § 52-593a) that the deputy sheriff who made service endorse thereon the date of delivery of the writ to him." The court held this defect is "curable by amendment." It cited Hammon v. Bromley, 65 Conn. 193, 199 (1874) which said that: "There are numerous cases which hold that in the amendment of officers' returns a distinction should be made between cases which affect the parties to the suit in which the amendment is granted, and those which would affect adversely the rights of third parties. In the former amendments are usually allowed," see also Hammon v. Larkin, et al., 70 S.W. 907, 908 (MO, Ct of App, 1902). This fact scenario involves the "former" situation. Also § 52-593a is an ameliorative statute and the marshal here testified under oath that he received the process on December 2, 2005. Indeed, counsel for the defendant made a point of asking the marshal if town offices were open on that day to receive process in support of his second argument or dismissal.
The court will not dismiss the appeal based on this argument but plaintiff should file the appropriate amendment to the return which the court will grant upon filing noting an exception by the defendant.
(2)
The second argument raised by the defendant is more difficult to decide, at least for the court. An article dealing at least tangentially with some of the issues raised appears in 27ALR 2d 236 "Tolling of statute of limitations where process is not served before expiration of limitation period, as affected by statutes defining commencement of action, or expressly relating to interruption of running of limitations," see especially at section 9 which cites cases from several jurisdictions under the heading:
In several jurisdictions statutes are to be found providing that an action should be deemed to commence upon delivery of the summons or process to the officer for service. A number of such statutes, or other statutes, also stipulate substantially that an attempt to commence an action is equivalent to commencement in the event that process is delivered promptly to the serving officer for the purpose of immediate service upon the defendant.
A New York case is interesting. In Cohes Bronze Co. v. Georgia Home Ins., Co., 276 NYS 619 (1935) the Appellate Division of the Supreme Court noted that under Section 17 of the then Civil Practice Act "an attempt to commence an action in a court of record is equivalent to the commencement thereof, for the purpose of avoiding a statute of limitations provided the summons is delivered to the sheriff `with the intent that it shall be actually served,'" id., page 620. Apparently the service had to be made within 60 days of delivery to the sheriff. The court goes on too indicate that the purpose of the statute was to "secure and enlarge" a litigant's rights and enable (the litigant) to preserve (the) cause of action for 60 days beyond the original time limitation. The statute does not require (the litigant) to stand or fall upon the diligence of the sheriff."
The headnote of the case refers to Civil Practice Act § 17 and says:
Civil Practice Act, § 17, provides that attempt to commence action in court of record is equivalent to commencement thereof, for purpose of avoiding statute of limitations, provided summons is delivered to sheriff with intent that it shall be actually served.
Michigan has or at least had a similar statute. Michigan State Accident Fund v. Catsman Co., Inc. 136 NW2d 21 (Mich, 1965), indicates its statute says:
The statutes of limitations are tolled when
* * *
"(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter." (Emphasis supplied.) Id., p. 22.
In Galehouse v. Minneapolis St. Paul and S.S.M. Ry Co., 135 NW 189 (ND, 1912) the court notes that under § 6795 of the Revised Codes "an attempt to commence an action is deemed equivalent to a commencement thereof within the meaning of the chapter when the summons is delivered with the intent that it be actually served, to the sheriff." The language of "immediate service" is not used in the statute but apparently the courts had read the requirement in. At page 191 the court said . . . "it is clear from the authorities and from our statute that an action is commenced, so far as the statute of limitations is concerned, when the writ is filled out and delivered to the proper officer, with the bona fide intent to have it served at once, and not at the time that the actual service is made."
Turning to our statute, Judge Bernstein in Mario v. Conservation Commission, 33 Conn.Sup. 172 (1976) referring to the legislative history of § 52-593a said that "In 1967, the legislature recognized the injustice that might result if a sheriff, through inattention, oversight or lack of time, failed to serve papers in tune. It gave the sheriff a grace period of fifteen additional days," id. page 173 (the statute has been amended to give the marshal a grace period of thirty days). This could support the notion that the requirement that the lawyer must deliver the process to the marshal with the intent he or she serve it at once should be read into our statute — after all it's only the marshal's failure to act that the statute is concerned with which might be said to assume the poor lawyer acted with due diligence.
The answer to this is to first pose the question why? Why should language be imported into our statute that is not there? No matter what the legislative history might allow one to surmise or speculate, the statue passed simply says the statute of limitations is tolled "if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery." There is no language saying the process must be delivered to the marshal with the intention that it be served at once or immediately. The statute does not even state the process must be delivered so it may be served, see Galihouse, supra, and Cohoes, supra, allowing a trial court wiggle room to don the mantle of a legislator in order to hold the legislature must have meant (or maybe should have meant) the delivery was made for service at once. The problem with the "delivery by the lawyer for service at once" statutes or judicial embroidery to read in such a requirement is that it can lead to scenarios difficult to resolve. What if the lawyer personally delivered the process to the marshal without any comment or specific instruction as to immediate service? — must we hold hearings to see what was really meant as to the time of service? What if the client came to the lawyer just a day or two before the statute was set to run and the lawyer, rushed for time but aware of the statutory grace period, wants more time to research the viability of the litigation — is that something that should not be encouraged, should the lawyer have to say "serve the process at once" for fear the grace period would be lost? In the real world lawyers live in, are they not subject to these kinds of pressures and why should their interests not be taken into account in a statute meant to be ameliorative.
Perhaps more to the point as noted, the statutory language itself says nothing about a delivery to the marshal with an immediate service order requirement. A court should not read the requirement into the statute, see § 1-1(a) of the General Statutes. The plain meaning of § 52-593a is obvious and it is to the effect that if the process is personally delivered to the marshal the cause of action shall not be lost if the marshal serves the process within thirty days. This does not lead to, as § 1-1(a) says, an "absurd or unworkable result" so there is no justification for turning to the legislative history referred to in Marrio v. Conservation Commission, supra, as a basis to interpret the statute as placing an extra burden on lawyers based on some reasoning to the effect that after all it was only aimed at the problems caused by marshals who do not diligently perform their duty.
Section 1-1(a) reads as follows:
Sec. 1-1 Words and phrases. (a) In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.
The simpler approach is to say the courts should not look into the intent or motive of the lawyer when he or she delivers the process and the action is saved simply when it is served within thirty days.
For the foregoing reasons the motion to dismiss is denied.