Fabian v. Pitney Bowes, Inc.

CASE NO. 3104 CRB 7-95-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 26, 1996

ZOLTAN FABIAN

CLAIMANT-APPELLANT

v.

PITNEY BOWES, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Ernest L. Josem, Esq., 96 East Ave., Norwalk, CT 06851.

The employer was represented by Michael Kaelin, Esq., Kelley, Drye & Warren, 2 Stamford Plaza, 281 Tresser Blvd., Stamford, CT, 06901-3229.

The insurer was represented by Scott Wilson Williams, Esq. and James D. Moran, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the June 13, 1995 Finding and Order of the Commissioner acting for the Seventh District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

RULING ON MOTION TO DISMISS

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a timely petition for review from the Seventh District Commissioner’s June 13, 1995 Finding and Order. The respondents subsequently filed a motion to dismiss the claimant’s appeal based upon the late filing of the reasons of appeal. The motion to dismiss is the only issue presently before this board.

In the instant case, the claimant filed a timely petition for review on June 23, 1995. The claimant filed his reasons of appeal on July 12, 1995. The claimant was required to file his reasons of appeal on or before July 3, 1995, pursuant to Section 31-301-21 of the Connecticut Agency Regulations. The respondents filed the motion to dismiss on July 17, 1995.

The respondents’ motion to dismiss was not timely filed. Practice Book § 40562 requires that a motion to dismiss be filed within ten days after the defect has arisen. Where an appellee fails to file the motion to dismiss within ten days, “the motion to dismiss comes too late and the defect is deemed waived.” Sager v. GAB Business Services, Inc., 11 Conn. App. 693,697 (1987). Here, the claimant’s reasons of appeal were due on July 3, 1995, and thus the motion to dismiss for failure to file timely reasons of appeal was required to be filed by July 13, 1995. However, the respondents did not file the motion to dismiss until July 17, 1995. Accordingly, we will not grant the untimely motion to dismiss. Sager, supra; Lennon v. Genest Subaru Motors, 13 Conn. Workers’ Comp. Rev. Op. 63, 1589 CRB-5-92-12 (12-28-94); Hankey v. Hamden Steel & Aluminum, 6 Conn. Workers’ Comp. Rev. Op. 153, 644 CRD-5-87 (April 28, 1989).

The motion to dismiss the claimant’s appeal is denied.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

1 Section 31-301-2 provides in pertinent part: “Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal.” BACK TO TEXT

2 Practice Book 4056 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. The court may on its own motion order that an appeal be dismissed for lack of jurisdiction.” BACK TO TEXT