Opinion
No. CV 03 0519924S
August 1, 2003
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This action is a tax appeal taken by the plaintiff Dennis M. Gavigan, from a determination by the Commissioner of Revenue Services (Commissioner) that the plaintiff failed to show that his wages and interest income were not subject to the Connecticut income tax. The plaintiff has filed a pro-se appearance. The Commissioner has filed a motion to dismiss this action for defective service.
The plaintiff represents at the hearing on the motion to dismiss that he brought the writ, summons and complaint to the clerk of the court to obtain a citation to commence the court action. The plaintiff paid a $250 cash bond to the clerk. The clerk logged in the $250, reviewed the writ, summons and complaint and returned these documents to the plaintiff. When the plaintiff questioned the clerk about the need for the clerk's signature, the plaintiff represents that the clerk told him that everything was in order. In fact, the clerk had not signed the citation. The plaintiff proceeded to deliver the writ, summons and complaint to a state marshal for Hartford County. The marshal made proper and timely service on the Commissioner.
Following the service of process, the Commissioner entered his appearance. A pretrial was thereafter scheduled which, by agreement of the parties, was postponed to another date. The plaintiff filed a motion for default for failure of the Commissioner to plead. The Commissioner filed an answer admitting and denying various portions of the complaint. The plaintiff subsequently filed a request to revise the answer and a request for admissions. A trial date was assigned to the parties. Thereafter, new counsel filed an appearance on behalf of the Commissioner in lieu of the prior counsel. The new counsel filed the present motion to dismiss on the basis that the citation to the marshal had not been signed by the clerk of the court.
The plaintiff argues that the Commissioner has waived the defect in the service of process. The Commissioner contends that this case involves a statutory right of appeal, and pursuant to Practice Book § 10-33, where the issue is jurisdiction, the defect cannot be waived.
We are guided in the resolution of this case by the decision of the Appellate Court in Kindl v. Dept. of Social Services, 69 Conn. App. 563, 795 A.2d 622 (2002). In Kindl, service was made by an employee of plaintiff's counsel instead of by an "indifferent person" or a "proper officer" as required by General Statutes § 4-183 (c). In all other respects, the service in Kindl, as in this case, met the requirements of the statute. The lower court in Kindl concluded that there can be no deviation from the statutory requirements for an administrative appeal and therefore the defect in service automatically deprived the court of jurisdiction to hear the appeal. Kindl v. Department of Social Services, supra, 69 Conn. App. 566. The court in Kindl concluded that although the statutory requirements for proper service in a statutory right of appeal were not met, in the absence of prejudice, the court had jurisdiction to hear the appeal.
In the present case, the plaintiff complied with all of the statutory requirements of posting a cash bond, presenting the writ, summons and complaint to the clerk of the court for authority to serve the Commissioner, placing the writ, summons and complaint in the hands of a state marshal for service upon the Commissioner with service actually being made. In addition, the Commissioner filed an answer to the plaintiff's complaint, attended a pre-trial hearing and was given a trial date before challenging the failure of the clerk to sign the citation to the state marshal. Under these circumstances, we find that there was no prejudice to the Commissioner for lack of the clerk's signature.
Accordingly, the Commissioner's motion to dismiss this action is denied.
Arnold W. Aronson Judge Trial Referee