Holly Arpino v. Administrator, Unemployment Compensation Act, Employment Security Appeals Division (2014)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS # 104 AND # 106 TO DISMISS

The plaintiff brings this action against the Administrator of this state's Unemployment Compensation Act (“Administrator”) and the state's Employment Security Appeals Division's Board of Review (“Board of Review”).   The Administrator moved (# 104) to dismiss this action and the Board of Review followed with a substantially identical motion (# 106).   Although she was given thirty days of additional time to file an opposing brief, the plaintiff did not do so.  (This decision is not based on that failure.)   The plaintiff and, by counsel, the Administrator argued the motions on June 8, 2015.¹

FACTS

When the court's jurisdiction is challenged by a motion to dismiss, the court must take the facts to be those alleged in the challenged pleading and those necessarily implied by the explicit allegations.  Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).   The court must then construe those facts in a manner most favorable to the pleader.  Id. On the other hand, neither conclusions of law nor opinions are taken as true.   See Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009) (in motion to dismiss context, trial court considers facts alleged in complaint, facts implied from allegations in complaint, and undisputed facts established by affidavits, if provided).   Viewing the allegations in this light, the facts relevant to the present motions are as follows.

On October 18, 2012, the Administrator made a determination that denied an unemployment benefit to the plaintiff.²  On November 21, 2012, an appeals referee for the Connecticut Department of Labor conducted a hearing, at the plaintiff's request, to determine her unemployment compensation eligibility.   Two days later, the appeals referee upheld the Administrator's determination for unemployment compensation benefits.³  On December 18, 2012, the plaintiff appealed the decision to the Board of Review and on January 31, 2013, the Board of Review upheld the appeals referee's decision.   The plaintiff alleges that the Board of Review was negligent when making its decision because it failed to consider the true and relevant circumstances of the appeal.⁴

DISCUSSION

Practice Book § 10–30(a) provides as follows:  “A motion to dismiss shall be used to assert:  (1) lack of jurisdiction over the subject matter ․” “A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).   It is the burden of the party who seeks the court to exercise jurisdiction in his favor to clearly allege facts demonstrating that the court has jurisdiction.  Matthews v. SBA, Inc., 149 Conn.App. 513, 528–29, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).

Contrary to the plaintiff's claim, this case is not a fraud, fraudulent concealment, or other tort case.   Her complaint fails to allege facts constituting the elements of fraud:  (1) a false representation made as a statement of fact;  (2) the statement was untrue and known to be so by its maker;  (3) the statement was made with the intent of inducing reliance thereon;  and (4) the other party relied on the statement to her detriment.⁵  Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991).   Her complaint fails to allege facts constituting fraudulent concealment:  the failure to make a full and fair disclosure of known facts in connection with a matter about which a party has assumed to speak, when there is a duty to speak, and with an intent or expectation that the other party will make a mistake or continue in a mistake, in order to induce that other party to act to her detriment.  Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076 (2014).   That the appeals referee “purposefully and wilfully concealed material fact through ․ misrepresentation and distortion in this presentation” is not sufficient to constitute an allegation of a false statement of material fact.⁶  It is proper and customary for a tribunal to set forth the facts found from the evidence before the tribunal upon which the decision is based.   Omission by a tribunal of reference to evidence not found credible, or simply not found material, is no misrepresentation by the tribunal.   Were the law otherwise, adjudicative decision-writing would be unreasonably burdened.   Further, if a tribunal did fail to describe evidence accurately, even intentionally, that is not actionable, particularly when the tribunal is a state officer and there is no waiver of sovereign immunity.   See Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 351, 977 A.2d 636 (2009) (without statutory waiver of sovereign immunity or authorization from claims commissioner, plaintiff may not bring action against state for monetary damages).   Such claims are the proper subjects of appeal—such as the plaintiff's appeal Arpino v. Administrator, Superior Court, judicial district of New London, Docket No. CV–14–5014681–S.   Assuming the truth of the plaintiff's other allegations of fact and reasonable factual inferences from those allegations, the following facts, even taken together, are insufficient to show any, let alone all, of the elements of fraud or fraudulent concealment:

the Administrator failed to consider the material facts (¶ 2(a));

the Administrator denied the plaintiff's unemployment benefit (¶ 2(b)); 7

the appeals referee purposefully and wilfully cited a statute (¶ 5(b)); ⁸

the Board of Review purposefully and wilfully failed to consider all of the facts (¶ 9(a)).⁹

This case is, in essence, an appeal from the action of the defendant Board of Review's decision to uphold the appeals referee's decision on the plaintiff's appeal from administrative denial of her claim for unemployment compensation.   As such, it is barred by the plaintiff's failure to exhaust administrative remedies since Arpino v. Administrator, supra, Superior Court, Docket No. CV–14–5014681–S, is still pending.¹⁰  Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 208, 105 A.3d 210 (2014) (Superior Court will not obtain jurisdiction to act until all adequate administrative remedies are exhausted).   Even if the plaintiff had withdrawn her appeal in Arpino v. Administrator, supra, Superior Court, Docket No. CV–14–5014681–S, on the eve of argument of the present motion, she still would have failed to exhaust her administrative remedies.  Bloom v. Dept. of Labor, 93 Conn.App. 37, 40–41, 888 A.2d 115, cert. denied, 277 Conn. 912, 894 A.2d 992 (2006).   There is no exception to the doctrine of failure to exhaust administrative remedies based on the intensity or sincerity of the plaintiff's conviction that a wrong has been done and that there must be jurisdiction to hear her claims.

Because the court must dismiss this claim for such failure, and because this action is not a tort action, the court need not reach the defendants' second ground for dismissal, other than to note that, if this were a tort action, it would be barred by the doctrine of sovereign immunity, as claimed by the defendants.

Both motions are granted for the foregoing reasons:  the plaintiff's complaint is dismissed.

Cole–Chu, J.

FOOTNOTES

FN1. At a status conference in this case on June 1, 2015, the Board of Review, by counsel, authorized the Administrator to argue on its behalf..  FN1. At a status conference in this case on June 1, 2015, the Board of Review, by counsel, authorized the Administrator to argue on its behalf.

FN2. The plaintiff further alleges that the Administrator committed fraud and fraudulent concealment when making this determination by failing to properly consider the material facts in its determination, and by making an incorrect determination and subsequently denying the plaintiff's de jure unemployment benefit.   These allegations, however, arguably are conclusions of law and the plaintiff's opinions.   Nonetheless, the plaintiff alleges that as a result of the Administrator's fraud and fraudulent concealment, she has suffered financial damages, including an unavoidable eviction..  FN2. The plaintiff further alleges that the Administrator committed fraud and fraudulent concealment when making this determination by failing to properly consider the material facts in its determination, and by making an incorrect determination and subsequently denying the plaintiff's de jure unemployment benefit.   These allegations, however, arguably are conclusions of law and the plaintiff's opinions.   Nonetheless, the plaintiff alleges that as a result of the Administrator's fraud and fraudulent concealment, she has suffered financial damages, including an unavoidable eviction.

FN3. The plaintiff further alleges that the appeals referee committed fraudulent concealment by purposefully and wilfully concealing material fact through gross misrepresentation and distortion in his written disposition and by purposefully and wilfully citing a statute that was irrelevant and in no way applicable to the circumstances of the plaintiff's case.   Although these allegations are also, arguably, conclusions of law and opinions, the plaintiff alleges that she has suffered eviction and other damages as a result of the appeals referee's fraudulent concealment..  FN3. The plaintiff further alleges that the appeals referee committed fraudulent concealment by purposefully and wilfully concealing material fact through gross misrepresentation and distortion in his written disposition and by purposefully and wilfully citing a statute that was irrelevant and in no way applicable to the circumstances of the plaintiff's case.   Although these allegations are also, arguably, conclusions of law and opinions, the plaintiff alleges that she has suffered eviction and other damages as a result of the appeals referee's fraudulent concealment.

FN4. The plaintiff further alleges that the Board of Review committed fraudulent concealment because it purposefully and wilfully failed to consider all of the most relevant and true material facts.   These allegations, too, arguably are conclusions of law and opinions.   The plaintiff similarly alleges that she has suffered eviction and other damages as a result of the Board of Review's fraudulent concealment..  FN4. The plaintiff further alleges that the Board of Review committed fraudulent concealment because it purposefully and wilfully failed to consider all of the most relevant and true material facts.   These allegations, too, arguably are conclusions of law and opinions.   The plaintiff similarly alleges that she has suffered eviction and other damages as a result of the Board of Review's fraudulent concealment.

FN5. Fraud must be proven by clear and convincing evidence.   See Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).   Even if the plaintiff had alleged facts to support all the elements of fraud, however, that burden would be irrelevant to the present motions or decision..  FN5. Fraud must be proven by clear and convincing evidence.   See Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).   Even if the plaintiff had alleged facts to support all the elements of fraud, however, that burden would be irrelevant to the present motions or decision.

FN6. The court deems “in this presentation” to mean “in the appeals referee's decision.”   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005)..  FN6. The court deems “in this presentation” to mean “in the appeals referee's decision.”   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

FN7. That the Administrator “made an incorrect determination” and that the plaintiff's unemployment benefit was “de jure” are conclusions of law..  FN7. That the Administrator “made an incorrect determination” and that the plaintiff's unemployment benefit was “de jure” are conclusions of law.

FN8. That the alleged citation was irrelevant and in no way applicable to the circumstances” is a conclusion of law not admitted for present purposes..  FN8. That the alleged citation was irrelevant and in no way applicable to the circumstances” is a conclusion of law not admitted for present purposes.

FN9. That the facts not considered were “the most relevant, true, [and] material facts” is also a conclusion of law..  FN9. That the facts not considered were “the most relevant, true, [and] material facts” is also a conclusion of law.

FN10. Although the defendants did not base their motions on there being another, substantially identical case pending, this case appears subject to dismissal on that ground, as well as the two grounds claimed.  Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981) (pendency of prior, virtually identical suit is good cause for dismissal)..  FN10. Although the defendants did not base their motions on there being another, substantially identical case pending, this case appears subject to dismissal on that ground, as well as the two grounds claimed.  Henry F. Raab Connecticut, Inc. v. J.W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981) (pendency of prior, virtually identical suit is good cause for dismissal).

Cole–Chu, Leeland J., J.