Andrew Cimmino v. Maria Marcoccia et al. (2012)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Andrew Cimmino, instituted this multiple-count complaint against the Bridgeport Board of Education, and several individual employees of the Board of Education.

An Eighth Amended Complaint has been filed, adding two additional parties who were employees of the State of Connecticut when the events described in the complaint occurred.   The Eighth Amended Complaint retains all claims raised in an earlier Sixth Amended Complaint directed against several employees.

In the sixth Amended Complaint, in addition to the Bridgeport Board of Education, three individuals, Maria Marcoccia, Sally Lyddy, and Ellen Tiedman, are named as defendants.   Count Two of the Sixth Amended Complaint is a claim for tortious interference with contract directed against the Defendants Marcoccia, Lyddy and Tiedman, while Count Three alleges intentional infliction of emotional distress against all three of the individual defendants.   Count One involves a claim of vexatious suit against the Defendant Maria Marcoccia only.

Andrew Cimmino was employed by the Bridgeport Board of Education as a principal, assigned to the Thomas Hooker Elementary School.   In April of 2008, according to his complaint, Cimmino was informed by a social worker that the State of Connecticut Department of Children and Families (DCF) was investigating him, concerning a claim that he had abused a Hooker School student.   The alleged incident occurred in 2002.

The renewed investigation in 2008, according to the complaint, occurred after Marcoccia supplied DCF with a series of photographs.

Cimmino claims that the photographs were given to DCF in retaliation for an investigation Cimmino had launched, concerning missing funds involving a school program.

The complaint maintains that the Defendants Lyddy and Tiedman assisted in bringing about the renewed investigation of Cimmino's conduct.   Cimmino maintains that the actions of all of the Defendants were wilful, malicious, and made for purposes of interfering with his contract with the Bridgeport Board of Education.

The Defendants Marcoccia and Lyddy filed an answer to the operative complaint dated April 25, 2011.   Included along with the answer was a cross claim against the Defendant Bridgeport Board of Education.

In their cross claim, Marcoccia and Lyddy claim that they were employees of the Bridgeport Board of Education, who were also named as Defendants in an earlier action instituted by Cimmino, Docket No. CV09 6004878 S. The earlier action was withdrawn, prior to any decision on the merits of the claims.

In their cross claim, Marcoccia and Lyddy seek a declaratory judgment, directing the Bridgeport Board of Education to indemnify them, and save them harmless, for fees, costs and expenses incurred in this action, and the action which was withdrawn prior to judgment.

They seek a declaratory judgment pursuant to § 52–29 of the General Statutes ¹ and § 17–54 of the Connecticut Practice Book.²

The Defendant, Bridgeport Board of Education, has moved to dismiss the cross claim.   It claims that the court has no jurisdiction, because the issues raised by the cross claim are not ripe for determination, and are not justiciable.

MOTION TO DISMISS—STANDARD OF REVIEW

A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court by saying that a plaintiff is unable, as a matter of law, to state a cause of action which can be heard.  Baskin's Appeal from Probate, 194 Conn. 635, 640 (1984);  Practice Book § 10–31.   The purpose of a motion to dismiss is to test whether, in the face of the record, the court lacks either personal jurisdiction over a party, or subject matter jurisdiction.  Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954);  Upson v. State, 190 Conn. 662, 624 (1983).

The grounds for the granting of a motion to dismiss are set forth in § 10–31 of the Connecticut Practice Book:  1) lack of jurisdiction over the subject matter, 2) lack of jurisdiction over the person, 3) improper venue, 4) insufficiency of process, and 5) insufficiency of service of process.

Subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceedings in question belong.   Gurliacci v. Mayer, 218 Conn. 531, 542 (1991);  LeConche v. Elligers, 215 Conn. 701, 709 (1990).   Whether a case or controversy presents a justiciable issue, that is, whether or not it is ripe for judicial determination, implicates subject matter jurisdiction.  Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 91 (1988).   If jurisdiction is lacking, the case must be dismissed.  State v. Anonymous, 240 Conn. 708, 718 (1997).   THE COURT HAS JURISDICTION OVER THE CROSS CLAIM FILED AGAINST THE DEFENDANT BRIDGEPORT BOARD OF EDUCATION BY MARCOCCIA AND LYDDY.

Declaratory judgments are not appropriate, in situations where a plaintiff's personal rights are not at stake.   However, the procedure may be employed where the interests of the parties are adverse, where there is an actual bona fide and substantial question or issue in dispute, and where all persons having an interest in the subject matter of the complaint are parties to the action.   Pamela B. v. Ment, 244 Conn. 296, 323–24 (1998).   The determination of the controversy must be capable of resulting in practical relief to the complainant.  Seymour v. Region One Board of Education, 261 Conn. 475, 481 (2002).

The Bridgeport Board of Education claims that the cross claim filed by the Defendants Marcoccia and Lyddy is not ripe for review, in light of the ongoing litigation.   This claim is not well taken.

The Defendant's claim that the issues presented are ripe for review, pursuant to § 10–235 of the General Statutes.  Section 10–235(a) deals with claims of negligence filed against board of education employees, while § 10–235(b) concerns situations in which intentional torts are alleged against the particular employees.   Since each of the claims presented in the Cimmino complaint concerns intentional torts, § 10–235(b) is the appropriate reference.   The statute reads:

(b) ․ each local and regional board of education ․ shall protect and save harmless ․ any teacher or other employee ․ from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such employee, while acting in the discharge of his duties.   In the event such ․ employee has a judgment entered against him for a malicious, wanton or wilful act in a court of law, such board of education ․ shall be reimbursed by such ․ employee for expenses it incurred in providing such defense, and shall not be held liable to such ․ employee for any financial loss or expense resulting from such act.

There are two distinct parts to the statute.

The first is a duty to indemnify the employee, in the event the employee is alleged to have committed malicious, wanton, wilful or ultra vires acts.

The second portion of the statute, involves a duty on the part of the employee to indemnify the local or regional board of education.   However, that duty only arises, in the event of a judgment against the employee.

Should the employee prevail, or should the cause of action not be reduced to judgment, the statute does not mandate reimbursement by the employee to the board of education.

Given the refusal of the Bridgeport Board of Education to indemnify the employees who are defendants in this action, and were defendants in a prior action which was withdrawn, the resolution of the issues will result in practical relief to the Defendants Marcoccia and Lyddy.

Their claim is ripe for adjudication, notwithstanding the possibility that the Bridgeport Board of Education may be in a position to recoup any monies paid, in the event of a judgment.

The motion to dismiss the cross claim filed by the Defendants Marcoccia and Lyddy is DENIED.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 52–39, C.G.S.—”(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is to be claimed ․”.  FN1. Section 52–39, C.G.S.—”(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is to be claimed ․”

FN2. Section 17–54, Connecticut Practice Book—The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity;  or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future..  FN2. Section 17–54, Connecticut Practice Book—The judicial authority will, in cases not herein excepted, render declaratory judgments as to the existence or nonexistence (1) of any right, power, privilege or immunity;  or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.

Radcliffe, Dale W., J.