Nicholas Vanghele et al. v. Town of Fairfield et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion # 107.00)

On January 5, 2011, the plaintiff, Nicholas Vanghele, commenced this action by service of process on the defendants, the Town of Fairfield (town) and the Fairfield Police and Firemen's Retirement Board (board).   In a one-count complaint, filed on January 28, 2011, the plaintiff alleges a breach of contract claim.   Specifically, the plaintiff claims:  “Under the provisions of [a] collective bargaining agreement entered into between the town of Fairfield and the union, in particular Article XXVI, the defendant, town of Fairfield, and the defendant board were contractually obligated to provide the plaintiff a pension payable on account of permanent disability sustained during the performance of his duties pertaining to employment by the town of Fairfield in an amount not less than 66 2/3% of the plaintiff's annual salary.”

On October 20, 2011, the defendants filed a motion to strike the complaint on the ground that the complaint has not met the necessary elements of a breach of contract claim.   On December 9, 2011, the plaintiff filed a memorandum in opposition to the motion.   On December 29, 2011, the defendants filed a reply memorandum.   The matter was heard at short calendar on January 3, 2012.

II

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   In other words, “[for the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).

“[A] motion to strike ․ consequently ․ requires no factual findings by the trial court.”  Bridgeport Harbor Place I v. Ganim, 303 Conn. 205, 212–13, 32 A.3d 296 (2011).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Id., 213.  “Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  Commissioner of Labor v. C.J.M. Service, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).

In the present case, the plaintiff referenced in his complaint, and attached as exhibits two documents, specifically, an unexecuted copy of the plaintiff's resignation under the separation agreement and general release between the plaintiff, the town and the union, and the plaintiff's written application for retirement benefits under the Fairfield police and firemen's retirement system.   In turn, the defendants attached to their memorandum in support of their motion to strike a copy of the complaint, a copy of the retirement plan including § 3.3 thereof, on which the plaintiff relied in his complaint, and a copy of the title and signature pages and section XXVI of the collective bargaining agreement from July 1, 2005 through June 30, 2010, sections 26.01 and 26.03 of which were referenced by the plaintiff in his complaint.   The court must first determine whether it can properly consider the defendants' exhibits.

“Speaking motions have long been forbidden by our practice ․” (Citations omitted.)  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Id. Because “[a] motion to strike ․ focuses solely on the pleadings ․ [i]t is ․ improper for the court to consider material outside of the pleading that is being challenged by the motion ․ Nonetheless, [a]ny plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length;  but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party ․ A complaint includes all exhibits attached thereto.”  (Citations omitted;  internal quotation marks omitted.)   Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).   As such, in the present case, the court may consider only those exhibits attached to the complaint as they constitute part of the challenged pleading.

Turning to the motion, the defendants argue that the complaint should be stricken because it fails to “[meet] the necessary elements of [a] breach of contract claim.”   First, they argue that the complaint fails to allege sufficiently the meeting of the minds and consideration necessary to form a contract.   Specifically, they contend:  (1) “the plaintiff cannot establish that the parties entered into a contract”;  (2) “[t]he retirement board is not a signatory to the collective bargaining agreement”;  (3) “the town and the retirement board are separate legal entities”;  (4) “it cannot be alleged that the retirement board intended to enter into a binding contract with [the] plaintiff to award [the] plaintiff a service-connected disability”;  (5) the complaint does not sufficiently allege bargained for consideration;  (6) “[t]he plaintiff has not showed consideration because he cannot allege that he suffered from any legal detriment.   As such, no enforceable contract existed”;  and (7) “[a]s to the retirement board, the plaintiff cannot demonstrate ․ bargained for consideration ․ [or] ․ any legal detriment.   As such, there is simply no contract.”

In response, the plaintiff counters that the complaint alleges facts sufficient to demonstrate “the existence of a contract between the town ․ and the Fairfield police union of which he was a beneficiary,” that the town acted through the board, and that both the town and the board were contractually obligated to provide him with a disability pension.   The plaintiff further contends that he need not allege his personal bargained for consideration in the formation of the contract because it was executed by his union and, as a beneficiary of the contract and a former member of the signatory union, he is thereunder entitled to file suit.

“[A] motion to strike can only be used to challenge the factual allegations regarding the existence of a contract ․ [and therefore] it is not a proper procedural vehicle through which to challenge the actual existence of a contract.”  (Emphasis added.)   United Demolition & Reclamation Statewide Restoration Co. v. Altchem Environmental Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV10 6010528 (December 6, 2011, Young, J.);   see also Bridgeport Harbor Place I v. Ganim, supra, 303 Conn. 212–13 (motion to strike requires no factual findings by court);  Coe v. Board of Education, supra, 301 Conn. 116–17 (all well pleaded facts and those necessarily implied are admitted);  RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 383 n.2 (moving party admits all facts well pleaded).   Thus, whether the plaintiff will actually be able to prove the existence of the alleged contract is irrelevant.   While entertaining the motion to strike, the court need only consider the legal sufficiency of the allegations in the complaint.

“[A] collective bargaining agreement is a contract.”  D'Agostino v. Housing Authority, 95 Conn.App. 834, 838, 898 A.2d 228, cert. denied, 280 Conn. 905, 907 A.2d 88 (2006).  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Hawley Avenue Associates, LLC v. Robert D. Russo, M.D. & Associates Radiology, P.C., 130 Conn.App. 823, 832, 25 A.3d 707 (2011).  “If a complaint contains the necessary elements of a cause of action, it will survive a motion to strike.”   Malizia v. Anderson, 42 Conn.Sup. 114, 116, 602 A.2d 1076 (1991) [5 Conn. L. Rptr. 55].

The issue is whether the plaintiff sufficiently pleaded the formation of an agreement.   In the complaint, the plaintiff alleges the following facts.   The plaintiff was employed by the town as a police officer.   The town and the union entered into a collective bargaining agreement.   The collective bargaining agreement governs retirement and survivor benefits, including pensions.   Article XXVI of the agreement incorporates provisions of the town's charter and adds the following additional requirement:  “The retirement and survivor benefits provided for in Article III.E3 of the charter of the town of Fairfield shall be continued, except that said benefits shall be and are improved as follows:  ․ no pension payable on account of permanent disability sustained during the performance of their duties pertaining to employment by the town shall be less than sixty-six and two-thirds percent (66 2/3%) of such annual salary, including longevity step.”   Finally, the complaint alleges that under the provisions of the agreement, the defendants were obligated to provide the plaintiff with a disability pension.

If proven, these facts are sufficient to establish that the town and the union entered into a collective bargaining agreement and, thus, a contract was formed between them.   It is not necessary for the plaintiff to expressly allege a “meeting of the minds” or “bargained for consideration” as these elements are necessarily implied by the allegation that a contract was formed;  Coe v. Board of Education, supra, 301 Conn. 116–17;  and the allegation is sufficient to survive the motion to strike.  Hawley Avenue Associates, LLC v. Robert D. Russo, M.D. & Associates Radiology, P.C., supra, 130 Conn.App. 832;  Malizia v. Anderson, supra, 42 Conn.Sup. 116.

Moreover, although the plaintiff does not allege that he was personally a party to the contract or that he personally participated in bargained for consideration, “[a] third party beneficiary may enforce a contractual obligation without being in privity with the actual parties to the contract ․ Therefore, a third party beneficiary who is not a named obligee in a given contract may sue the obligor for breach ․ [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary].”  (Citations omitted;  internal quotation marks omitted.)  Wilcox v. Webster Insurance, Inc., 294 Conn. 206, 217, 982 A.2d 1053 (2009).   To meet this test, “[a] third party seeking to enforce a contract must allege ․ that the contracting parties intended that the promisor should assume a direct obligation to the third party.”  (Emphasis in original.)  Grigerik v. Sharpe, 247 Conn. 293, 315, 721 A.2d 526 (1998).   In the complaint, the plaintiff alleges that “[u]nder the terms of the collective bargaining agreement entered into between the town of Fairfield and the union ․ the defendant, town of Fairfield, and the defendant board were contractually obligated to provide the plaintiff a pension ․” This allegation satisfies the Wilcox test.   Accordingly, the motion to strike on the ground that the complaint fails to meet the necessary elements of a breach of contract claim insofar as it fails to allege sufficiently such meeting of the minds or bargained for consideration necessary to form a contract is denied.

Next, the defendants argue that the complaint should be stricken because it fails to meet the necessary elements of a breach of contract claim insofar as the complaint fails to allege sufficiently any breach on the part of the defendants.   Specifically, they contend:  (1) “it cannot be alleged that the town ․ violated the collective bargaining agreement when the ․ board denied [the] plaintiff's disability pension application.   The town ․ had no role in that decision”;  (2) “the plaintiff has not alleged a breach of contract against the town because the language in the collective bargaining agreement only addresses the calculation of disability benefits once the ․ board makes the decision to grant a disability pension”;  (3) the plaintiff “has not alleged a breach, as the retirement plan vests with the ․ board sole discretion to determine whether the employee is entitled to a service-connected disability”;  (4) the plaintiff does not allege that the defendants breached the agreement other than alleging that the board did not request certain documentation or require a medical examination, neither of which are required under the agreement;  and (5) the “plaintiff has not alleged a breach based upon the failure of the ․ board to require the plaintiff to submit to an independent medical examination or require the plaintiff to provide additional medical information beyond that which the plaintiff already appended to his application for a disability pension.”

In response, the plaintiff counters that:  (1) his entitlement “is based on the explicit incorporation of the disability retirement provisions of the retirement and survivor benefits of the town of Fairfield charter into the provisions of the collective bargaining agreement.   As a member of the union when the ․ agreement was ratified, [he] is covered by its provisions”;  (2) “the defendants breached the terms of ․ pension provisions ․ which had been incorporated into the collective bargaining agreement”;  (3) “[t]he provisions of the Fairfield Police and Firemen's Retirement System establish two requirements for eligibility for a service-connected disability pension ․ The plaintiff has pleaded facts, which if proved, would demonstrate by a preponderance of the evidence that he fulfilled the essential requirements for being awarded a disability pension”;  (4) “Article XXVI, section 26.03 of the collective bargaining agreement provides that ‘no pension payable on account of permanent disability sustained during the performance of their duties pertaining to employment by the town shall be less than sixty-six and two-thirds percent (66 2/3%) of such annual salary ․;’ “ (5) “the defendants violated the provisions of the collective bargaining agreement ․ into which the town of Fairfield entered with the union when the ․ board denied the plaintiff's application for ․ disability retirement”;  and (6) the defendants, therefore, “breached [the plaintiff's] contractual rights to a disability pension.”

The issue is whether the plaintiff sufficiently pleaded breach of the agreement by either of the defendants.¹  In the complaint, the plaintiff alleges the following facts.   Article XXVI of the agreement incorporates provisions of the town's charter and adds the following additional requirement:  “The retirement and survivor benefits provided for in Article III.E3 of the charter of the town of Fairfield shall be continued, except that said benefits shall be and are improved as follows:  ․ no pension payable on account of permanent disability sustained during the performance of their duties pertaining to employment by the town shall be less than sixty-six and two-thirds percent (66 2/3%) of such annual salary, including longevity step.”   The complaint further alleges that the plaintiff satisfied the conditions for being awarded a disability retirement pension, and that under the provisions of the agreement, the defendants were obligated to provide the plaintiff with a pension.   The plaintiff submitted an application for a disability retirement.   The board refused to grant the plaintiff a service-connected disability pension.   Finally, the plaintiff alleges that the defendant board is an administrative agency of the town which acted on behalf of the town, and the town acted through the board.

If proven, these facts are sufficient to establish that the town and the board, acting as the town's agent, breached the collective bargaining agreement by failing to provide the plaintiff with a disability pension due to him under the agreement.   Accordingly the motion to strike on the ground that the complaint fails to meet the necessary elements of a breach of contract claim insofar as it fails to allege sufficiently any breach on the part of the defendants is denied.

For the foregoing reasons, the motion to strike is denied.

By the Court,

BELLIS, J.

FOOTNOTES

FN1. In the complaint, the plaintiff alleges a single count against both defendants.  “[A] plaintiff's complaint [may be] confusing [when] it combines, in a single-count, separate causes of action against ․ [two parties].   Since there [is] nothing to prevent those two causes of action from being joined in the same complaint, however, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint.”  Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988) (holding motion to strike count alleged against multiple defendants should be denied if facts alleged are sufficient to assert cause of action against at least one defendant).   This is consistent with the general rule that “[a] motion to strike an entire complaint must fail if any of the plaintiffs' claims are legally sufficient.  Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 (1991) (3 Conn. L. Rptr. 135);  Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989);  Doyle v. A & P Realty Corp., 36 Conn.Sup. 126, 127, 414 A.2d 204 (1980);  see also Water Commissioners v. Robbins & Potter, 82 Conn. 623, 633, 74 A. 938 (1910).”   McCarthy v. State Five, Superior Court, judicial district of Hartford, Docket No. 05 4015888 (March 15, 2006, Langenbach, J.) [40 Conn. L. Rptr. 850].   See also Orthopaedic Specialty Group P.C. v. Pentec, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 10 6008473 (September 13, 2011, Blawie, J.) [52 Conn. L. Rptr. 709] (conflated allegations against multiple defendants constitute basis for request to revise, not motion to strike);  Anderson v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 04 0092627 (June 18, 2004, Pickard, J.) (motion to strike entire pleading fails if any part of pleading is viable);  Biro v. Hirsch, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 98 0166759 (April 1, 1999, Tierney, J.) (“[i]f facts provable in the complaint support a cause of action, or any part of the complaint is valid, the motion to strike must be denied”), aff'd, 62 Conn.App. 11, 771 A.2d 129 (2001), cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).Here, although the complaint may have been susceptible to a request to revise, the defendants waived the right to do so by filing a motion to strike.  Practice Book § 10–7.   Thus, in ruling on the motion to strike, the court must determine whether the allegations, if proven, are sufficient to maintain a cause of action against at least one of the defendants.   If the allegations are sufficient as to at least one of the defendants, then the motion should be denied..  FN1. In the complaint, the plaintiff alleges a single count against both defendants.  “[A] plaintiff's complaint [may be] confusing [when] it combines, in a single-count, separate causes of action against ․ [two parties].   Since there [is] nothing to prevent those two causes of action from being joined in the same complaint, however, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint.”  Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988) (holding motion to strike count alleged against multiple defendants should be denied if facts alleged are sufficient to assert cause of action against at least one defendant).   This is consistent with the general rule that “[a] motion to strike an entire complaint must fail if any of the plaintiffs' claims are legally sufficient.  Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 (1991) (3 Conn. L. Rptr. 135);  Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989);  Doyle v. A & P Realty Corp., 36 Conn.Sup. 126, 127, 414 A.2d 204 (1980);  see also Water Commissioners v. Robbins & Potter, 82 Conn. 623, 633, 74 A. 938 (1910).”   McCarthy v. State Five, Superior Court, judicial district of Hartford, Docket No. 05 4015888 (March 15, 2006, Langenbach, J.) [40 Conn. L. Rptr. 850].   See also Orthopaedic Specialty Group P.C. v. Pentec, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 10 6008473 (September 13, 2011, Blawie, J.) [52 Conn. L. Rptr. 709] (conflated allegations against multiple defendants constitute basis for request to revise, not motion to strike);  Anderson v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 04 0092627 (June 18, 2004, Pickard, J.) (motion to strike entire pleading fails if any part of pleading is viable);  Biro v. Hirsch, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 98 0166759 (April 1, 1999, Tierney, J.) (“[i]f facts provable in the complaint support a cause of action, or any part of the complaint is valid, the motion to strike must be denied”), aff'd, 62 Conn.App. 11, 771 A.2d 129 (2001), cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).Here, although the complaint may have been susceptible to a request to revise, the defendants waived the right to do so by filing a motion to strike.  Practice Book § 10–7.   Thus, in ruling on the motion to strike, the court must determine whether the allegations, if proven, are sufficient to maintain a cause of action against at least one of the defendants.   If the allegations are sufficient as to at least one of the defendants, then the motion should be denied.

Bellis, Barbara N., J.