Gerte v. Logistec of CT., Inc.

CASE NO. 4820 CRB-3-04-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 24, 2005

RAYMOND GERTE

CLAIMANT-APPELLANT

v.

LOGISTEC OF CT., INC.

EMPLOYER

and

LAMORTE BURNS & CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The Claimant was represented by David Kelly, Esq., Montstream & May, L.L.P, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

The Respondents were represented by Peter Quay, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

This petition for review from the June 2, 2004 Finding and Dismissal for the Commissioner acting for the Third District was heard September 24, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Donald H. Doyle, Jr.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the June 2, 2004 Finding and Dismissal of the Commissioner Acting for the Third District.1 The facts in this matter as found by the trial commissioner are as follows:

The claimant was employed by Logistec of Connecticut, Inc. on October 22, 1998, when he was seriously injured when he was struck by a broken hoist chain, while working in the hold of a ship, docked in New Haven and floating on navigable waters of the United States of America. The claimant has an accepted claim for these injuries under the provisions of the Longshore Act for which he is receiving benefits. . . .

See Findings, ¶¶ 1-2. Thereafter the trial commissioner concluded: “The claim is hereby dismissed for lack of subject matter jurisdiction. (Cf. Leszcymski v. Andrew Radel Oyster Co., 102 Conn. 511 (1925).” See Findings, ¶ A.

As we noted below this matter was heard at the same time as Coppola v. Logistec of CT., Inc., 4781 CRB-3-04-2 (June 24, 2005). The instant matter differs from the Coppola matter in that our review of the record reflects this matter was the subject of an August 2, 2000 Finding and Award of former Commissioner Robin L. Wilson, (now Judge) acting for the Third District. One of the issues considered by the trial commissioner in the August 2, 2000 Finding and Award was whether subject matter jurisdiction in this matter existed pursuant to Chapter 568. See August 2, 2000 Finding and Award ¶ A. The commissioner concluded in the affirmative. It is our understanding that no appeal was taken of this matter.2 The record reflects that the trial commissioner took administrative notice of the August 2, 2000 Finding and Award. See December 30, 2002 Transcript, p. 3. Unlike the Coppola matter the preliminary issue we confront here is whether the trial commissioner erred in failing to conclude that the August 2, 2000 Finding and Award collaterally estopped the respondents from raising a defense on the basis of subject matter jurisdiction. We think that it does and therefore we reverse the June 2, 2004 Finding and Dismissal and remand for further proceedings. Our courts have repeatedly noted that:

“a challenge to subject matter jurisdiction can be raised at any time” and that “[o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Honan v. Dimyan, 85 Conn. App. 66, 69, (856 A.2d 463) (2004); see also ABC, LLC v. State Ethics Commission, 264 Conn. 812, 822-23, (826 A.2d 1077) (2003);

Urban Redev. Comm., Stamford v. Katsetos, 86 Conn. App. 236, 240-41 (2004) cert. denied, 272 Conn. 919 (2005). However, our courts have also been mindful that

“The law aims to invest judicial transactions with the utmost permanency consistent with justice. . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. . . . [T]he law has established appropriate proceedings to which a judgment party may always resort when he deems himself wronged by the court’s decision. . . . If he omits or neglects to test the soundness of the judgment by these or other direct methods available for that purpose, he is in no position to urge its defective or erroneous character when it is pleaded or produced in evidence against him in subsequent proceedings. Unless it is entirely invalid and that fact is disclosed by an inspection of the record itself the judgment is invulnerable to indirect assaults upon it.” (Internal quotation marks omitted.) Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297-98, (93 A.2d 143) (1952), quoting 1 A. Freeman, Judgments (5th Ed. 1925) § 305, pp. 602-603. (Emphasis ours.)

In Re Shamika F., 256 Conn. 383, 406-7 (2001).

Additionally, the court reviewed previous precedent and noted:

“Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs. . . . A collateral attack on a judgment is a procedurally impermissible substitute for an appeal.” (Citation omitted; internal quotation marks omitted.) Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., supra, 236 Conn. 876. “[A]t least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so.” (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 104, (616 A.2d 793) (1992).

In Re Shamika, supra, 407-408.

We conclude that the instant matter is such a case. Therefore, the June 2, 2004 Finding and Dismissal of the Commissioner acting for the Third District is reversed.

Commissioners A. Thomas White, Jr., and Donald H. Doyle, Jr., concur.

1 We note that extensions of time were granted during the pendency of this appeal. We also note that this matter was consolidated with Coppola v. Logistec of CT., Inc., 4781 CRB-3-04-2 (June 24, 2005) and the two cases were heard together at oral argument. However, in the course of reviewing these appeals we concluded that the factual circumstances are sufficiently distinct to require independent review and analysis. Thus, a separate opinion will be issued in each matter. BACK TO TEXT

2 Additionally we note that the parties have for all intents and purposes conceded that no appeal was taken. See October 20, 2003 Transcript, p. 26. We also note the Commissioner took administrative notice of the entire file. See December 30, 2002 Transcript, p. 26. BACK TO TEXT