Matthew Crane v. City of New Haven et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS ROBERT SHEELEY, ANTHONY ALVORADO AND JOSEPH CAPUCCI'S MOTION TO DISMISS THE FIFTH, SIXTH AND SEVENTH COUNTS OF THE PLAINTIFF'S COMPLAINT (No. 102)

The Motion To Dismiss now before the Court presents an issue of statutory construction.  Conn. Gen.Stat. § 52–57(b)(7) provides that process “against an employee of a town, city or borough in a cause of action arising from the employee's duties or employment, [shall be served] upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the employee.”   Does the term “employee” in this statute include a person who was an employee of the municipality at the time of the alleged malfeasance but is no longer an employee at the time of service of process?   For the reasons stated below, the answer to this question is No.

The plaintiff, Matthew Crane, alleges that on April 10, 2011, he was a social invitee on the premises of a multi-family house in New Haven.   While he was standing on the fire escape of the house, the structure collapsed, and he suffered severe injuries.   The Fifth, Sixth, and Seventh Counts of his complaint (the only counts implicated here) are brought against Robert Sheeley, Anthony Alvorado, and Joseph Capucci.   Sheeley and Alvorado are former New Haven Housing Code Inspectors, and Capucci is a former New Haven Fire Marshall.   Count Five alleges that Sheeley inspected the premises on February 15, 2007.   Count Six alleges that Alvorado inspected the premises on April 24, 2009.   Count Six, involving Capucci, does not allege a date of inspection but alleges that his inspection, like those of Sheeley and Alvorado, was inadequate.

On January 28, 2013, Sheeley, Alvorado and Capucci were served pursuant to Conn. Gen.Stat. § 52–57(b)(7).

On April 11, the three defendants in question filed the consolidated Motion To Dismiss now before the Court.   The Motion alleges that none of the defendants in question were employed by the City of New Haven (“City”) at the time of service of process.   The Motion is accompanied by the Affidavit of Stephen Librandi, Manager of Human Resources and Benefits for the City. The Affidavit states that Sheeley resigned on July 20, 2007;  Alvorado resigned on April 16, 2010;  and Capucci retired on June 29, 2011.

The Motion was heard on May 28, 2013.   Crane does not contest the employment history of the defendants in question.   Both parties agree that the outcome of the Motion turns on the proper construction of § 52–57(b)(7).

The text of § 52–57(b)(7) does not explicitly address the question whether the term “employee” encompasses persons who were employees of a municipality at the time of the malfeasance in question but are no longer employees at the time of the service of process.   The statute is ambiguous on this point.   Neither side points to any legislative history that would guide the court in its analysis.   Under these circumstances, it is appropriate to turn to a pertinent canon of statutory construction—the canon of constitutional avoidance.

“It is to be presumed that the legislature in enacting a law intended it to be reasonable and just, and where a statute admits of a construction that will make it so, it is the duty of a court to uphold it by giving it such a construction.”  Hope v. Cavallo, 163 Conn. 576, 586, 316 A.2d 407 (1972).   “Under the avoidance canon, when a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.”   Gonzalez v. United States, 128 S.Ct. 1765, 1771 (2008).  (Internal quotation marks and citations omitted.)

The avoidance canon is pertinent here.   The purpose of service of process is to provide notice.   Notice is, of course, a requirement of the Constitution.   “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

If § 52–57(b)(7) were construed to encompass persons who were employees of a municipality at the time of the alleged malfeasance but were not employees at the time of service of process, service of process under that provision would not be “reasonably calculated,” under all the circumstances, to apprise such former employees of the pendency of the action.

The facts of this case provide a good example of this problem.   Sheeley allegedly inspected the premises in question on February 15, 2007.   He resigned on July 20, 2007.   Service of process was made pursuant to the statute on January 28, 2013.   By that time, Sheeley had not been a City employee for over six and a half years.   Under these circumstances, service on the City Clerk was hardly “reasonably calculated” to apprise him of the pendency of the action.

While Sheeley's case is an extreme one—most lawsuits are brought more closely to the time of the alleged malfeasance—the problem of notice he faces will inevitably be shared by many former municipal employees should the statutory construction advocated by Crane be adopted by the court.   Under § 52–57(b)(7), the clerk of the municipality is directed to “forward” a copy of the process to the “employee” in question.   This procedure is ordinarily unproblematic if the “employee” is employed by the municipality at the time of service of process.   But if the “employee” is not so currently employed, the responsibility of finding the person sued—a responsibility that should be placed on the plaintiff—is placed on the Clerk.   Depending on the circumstances, this process may be easy, difficult, or impossible.   Some persons leave former employers with forwarding addresses, while others do not.   Of course, in the extreme circumstances presented here, even a “forwarding address” may have long since ceased to be current.   In any event, municipal clerks will inevitably vary in their diligence, and many will not have the interests of former employees in mind.   The statutory construction advocated by Crane is not “reasonably calculated” to apprise former employees of the pendency of legal actions.

Under these circumstances, the court is “guided by the safe and wholesome rule that where an act of the legislature admits of two constructions, one valid and the other invalid, courts should adopt the former and uphold the statute, if it may be done by any reasonable interpretation, though it be not the most obvious.”  Town of Wilton v. Town of Weston, 48 Conn. 325, 338 (1880).   By use of this canon, the term “employee” in § 52–57(b)(7) does not include persons who were employees of a municipality at the time of the alleged malfeasance but are no longer employees of the municipality at the time of service of process.

The Motion To Dismiss is granted.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.