Johnson v. Preleski ( 2020 )

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JOHNSON v. PRELESKI—DISSENT
McDONALD, J., with whom MULLINS and KAHN,
Js., join, dissenting. The majority’s conclusion that legal
process is ‘‘personally delivered’’ to a recipient when
a sender transmits a copy of that process from a remote
location via facsimile (fax) transmission to the recipi-
ent’s place of business cannot be squared with the well
established, and widely accepted, meaning of this
phrase. Whether legal process may be delivered through
such means, without evidence that it actually has been
received by the recipient, has profound ramifications
given the wide range of electronic forms of communica-
tion and delivery platforms that exist today. To be clear,
the rationale utilized by the majority will apply not only
to the transmittal of a petition for a new trial by fax
machine—an increasingly obsolete technology—but
would apply with equal force to the transmittal of (1)
a complaint by text message, (2) a subpoena by a
LinkedIn account, (3) a temporary restraining order
by Facebook instant messenger, (4) an injunction by
Twitter, (5) a protective order by WhatsApp, or (6) a
property execution by e-mail.
Whether to bridge the digital divide between the oper-
ations of our court system and modern technological
advancements in this area, and what limits might be
necessary to protect the parties’ interests, are undoubt-
edly matters for the legislature to address, not this
court. Indeed, when the legislature has chosen to
embrace alternative means for the delivery of legal pro-
cess, it has demonstrated its ability to craft legislation
that accomplishes that objective. Because I conclude
that legislatively mandated ‘‘personal delivery’’ requires
that the recipient be in actual possession of the legal
process and because the petitioner failed to establish
that the marshal was in actual possession of the process
before the lapse of the statute of limitations, I respect-
fully dissent.
The following undisputed facts are relevant to the
resolution of this appeal. The petitioner, Anthony John-
son, sought to file a petition for a new trial pursuant
to General Statutes § 52-270 on the basis of newly dis-
covered evidence. Donna Peat, the office manager for
the petitioner’s attorney, faxed the process for the peti-
tion for a new trial to Charles J. Lilley, a state marshal,
for service at 4:59 p.m. on August 5, 2014.1 The fax
transmission report indicates that the fax was electroni-
cally received by the fax machine in Lilley’s office on
August 5 at 5:01 p.m.2 The evidence also establishes that
Lilley did not answer Peat’s telephone call on August
5, and he had no recollection of whether he was in his
office that day. Moreover, there is no evidence that
Lilley responded on August 5 to Peat’s voice mail. Lilley
served the faxed copy of the process on August 6. In
sum, there is no evidence establishing that Lilley per-
sonally received the faxed process the day it was trans-
mitted, and the majority does not claim otherwise.
There is also no evidence of when Lilley received the
original process, which the fax transmittal cover page
indicated would be mailed.
I begin by noting my agreement with the applicable
standard of review as set forth in the majority opinion.
The text of General Statutes § 52-593a (a) provides that
a cause of action will not be barred by an expiring
statute of limitations ‘‘if the process to be served is
personally delivered to a state marshal, constable or
other proper officer within such time and the process
is served, as provided by law, within thirty days of the
delivery.’’ (Emphasis added.) I agree with the majority’s
conclusion that § 52-593a (a) is ambiguous and, in
accordance with General Statutes § 1-2z,3 that extratex-
tual sources may be considered in ascertaining the
meaning of ‘‘personal delivery.’’ See, e.g., State v. Panek,
328 Conn. 219, 238, 177 A.3d 1113 (2018). I disagree
with the majority’s conclusion, however, that the mere
successful transmission of a fax satisfies the ‘‘person-
ally delivered’’ requirement of § 52-593a.
I find the Appellate Court’s decision in Gianetti v.
Connecticut Newspapers Publishing Co., 136 Conn.
App. 67, 73, 44 A.3d 191, cert. denied, 307 Conn. 923,
55 A.3d 567 (2012), particularly helpful in ascertaining
the meaning of ‘‘ ‘personal delivery.’ ’’ In analyzing § 52-
593a, the Appellate Court explained that, ‘‘[a]lthough
the plaintiff is permitted to mail the process to the
marshal, the determinative standard is when the mar-
shal receives the process, not when it is mailed.’’
(Emphasis added.) Id. Specifically, the court explained
that something is not ‘‘personally delivered’’ until it has
been ‘‘received in person by’’ or has ‘‘come into the
possession of’’ the receiving officer. Id., 74; see also
Zarillo v. Peck, 33 Conn. Supp. 676, 679, 366 A.2d 1165
(‘‘The use of the word ‘personally’ in [§ 52-593a (a)]
makes it crystal clear that the process must be received
by the officer within the limitations period . . . . [P]ro-
cess which came into the hands of the deputy sheriff
by mail was ‘personally delivered’ to him within the
meaning of § 52-593a . . . .’’ (Emphasis added.)), cert.
denied, 171 Conn. 731, 357 A.2d 515 (1976). Accordingly,
in order to satisfy the ‘‘personal delivery’’ requirement
of § 52-593a, the petitioner must establish that the mar-
shal actually received the process in person prior to
the expiration of the statute of limitations.4
The Appellate Court’s reasoning is consistent with
other statutes addressing service, which distinguish
personal service from abode service.5 General Statutes
§ 52-57 governs the manner of service of process in
Connecticut and provides that ‘‘process in any civil
action shall be served by leaving a true and attested
copy of it . . . with the defendant, or at his usual place
of abode, in this state.’’ (Emphasis added.) General Stat-
utes § 52-57 (a); see also General Statutes § 52-54 (‘‘[t]he
service of a writ of summons shall be made by . . .
leaving an attested copy thereof with [the defendant]
or at his usual place of abode’’). Leaving a copy of
the original process with the defendant is commonly
referred to as personal service. See Jimenez v. DeRosa,
109 Conn. App. 332, 339, 951 A.2d 632 (2008) (‘‘[w]hen
jurisdiction is based on personal or abode service, the
matters stated in the return, if true, confer jurisdiction’’
(emphasis added; internal quotation marks omitted)).
It is significant that, in Connecticut, personal service
has been interpreted to mean hand delivery. See, e.g.,
Black v. London & Egazarian Associates, Inc., 30 Conn.
App. 295, 300, 620 A.2d 176, cert. denied, 225 Conn. 916,
623 A.2d 1024 (1993); see also Weiss v. Glemp, 127 Wash.
2d 726, 729–30, 903 P.2d 455 (1995) (en banc) (summons
left on windowsill of rectory, four feet from defendant,
did not comply with personal service requirements).
This is consistent with the dictionary definition of ‘‘per-
sonal service.’’ See Black’s Law Dictionary (11th Ed.
2019) p. 1381 (defining ‘‘personal service’’ as ‘‘[a]ctual
delivery of the notice or process to the person to whom
it is directed’’); see also American Heritage College Dic-
tionary (4th Ed. 2007) p. 1039 (defining ‘‘personal’’ as
‘‘[d]one, made, or performed in person’’ (emphasis
added)).
These service of process statutes also require that
the marshal leave a true and attested copy of the original
process with the defendant. See General Statutes §§ 52-
54 and 52-57. The theoretical underpinning of service
is that the marshal compares the original process to
the copy that he is serving, thus certifying that it is a
true and attested copy. See City Lumber Co. of Bridge-
port, Inc. v. Borsuk, 131 Conn. 640, 646, 41 A.2d 775
(1945) (‘‘To attest means ‘to bear witness to . . . to
affirm to be true or genuine.’ McGuire v. Church, 49
Conn. 248, 249 [1881].’’). Although it is not necessary
for a ‘‘true and attested copy’’ of an original court docu-
ment to be a ‘‘duplicate copy, i.e., a copy exact in every
respect to the original,’’ nonconformities of the copy
compared to the original may be deemed inadequate
service. Crossroads Development, Inc. v. Planning &
Zoning Commission, 210 Conn. 1, 5, 553 A.2d 609
(1989). As such, the marshal must be able to compare
the copy that he is serving to the original, which, in
this case, was not even being mailed to the marshal
until sometime after August 5. Permitting personal
delivery to a marshal to be accomplished via fax does
not afford the marshal the ability to certify that the
document he is serving is a true and attested copy of
the original because the document received via fax is
itself a copy. See, e.g., Cox v. Mid-Minnesota Mutual
Ins. Co., 909 N.W.2d 540, 544 (Minn. 2018) (A ‘‘fax is
‘[a] method of transmitting over telephone lines an
exact copy of a printing.’ Fax, Black’s Law Dictionary
[(10th Ed. 2014) p.726] . . . . The actual document
being faxed is not brought to a particular person or
place.’’ (Citation omitted; emphasis added.)).
The Appellate Court’s reasoning in Gianetti is also
consistent with case law from this court in which we
held that a fax did not satisfy the personal delivery
requirement of General Statutes § 31-321. See Hatt v.
Burlington Coat Factory, 263 Conn. 279, 291, 298, 819
A.2d 260 (2003). Specifically, we concluded that by fax-
ing its decision to a party’s attorney, the Workers’ Com-
pensation Commission did not comply with § 31-321,
which requires notice to be given by ‘‘written or printed
notice, service personally or by registered or certified
mail . . . .’’ (Emphasis added.) See Hatt v. Burlington
Coat Factory, supra, 291, 298. The majority’s attempt
to distinguish Hatt from the present case on the basis
that § 31-321 uses the phrase ‘‘service personally,’’
rather than ‘‘personally delivered’’ as in § 52-593a, is
unpersuasive and is undermined by the fact that we
used the terms ‘‘service personally’’ and ‘‘personal deliv-
ery’’ interchangeably and synonymously. See footnote
5 of this dissenting opinion. We explained in Hatt that
the ‘‘language of § 31-321 indicates that the legislature
considered only personal delivery and registered or
certified letters as acceptable methods of service.’’
(Emphasis added.) Hatt v. Burlington Coat Factory,
supra, 295.
The trial court and courts from other jurisdictions
have considered similar language and specifically
rejected the argument that a fax transmission consti-
tutes delivery. See, e.g., Seibold v. Commissioner of
Dept. of Motor Vehicles, Superior Court, judicial district
of New Britain, Docket No. CV-XX-XXXXXXX-S (January
9, 2014) (faxing copy of administrative appeal did not
satisfy either personal service or certified mail require-
ment of General Statutes § 4-183 (c) (1)); Cox v. Mid-
Minnesota Mutual Ins. Co., supra, 909 N.W.2d 546
(‘‘personal delivery’’ is not satisfied by delivery via fax);
National Bank of Northern New York v. Grasso, 79 Ohio App.
Div. 2d 871, 871, 434 N.Y.S.2d 553 (1980) (‘‘[p]ersonal
delivery means ‘in-hand delivery’ ’’); see also Firefight-
ers Institute for Racial Equality v. St. Louis, 220 F.3d
898, 903 (8th Cir. 2000) (transmitting subpoena by fax
is insufficient to satisfy rule 45 (b) (1) of Federal Rules
of Civil Procedure, which requires that service be made
by ‘‘delivering’’ subpoena to person, because method
of service needs to be one that ensures that subpoena
was ‘‘placed in the actual possession or control of the
person to be served’’), cert. denied, 532 U.S. 921, 121 S.
Ct. 1359, 149 L. Ed. 2d 288 (2001); Mehrer v. Diagnostic
Imaging Center, P.C., 157 S.W.3d 315, 321 (Mo. App.
2005) (transmitting subpoena via fax to nonparty was
insufficient to constitute ‘‘ ‘delivery’ ’’ under state’s
rules of civil procedure); 62B Am. Jur. 2d 760, Process
§ 187 (2005) (‘‘The term ‘personal service’ has been
defined as the actual or direct delivery of a summons
or a copy thereof to the person to whom it is directed
. . . . The term does not include service by leaving a
copy of the papers at the place of residence or abode
of the defendant, nor does it include service by mail.’’
(Emphasis added; footnotes omitted.)).
Moreover, courts recognize the significance of a legis-
lative body’s inclusion and exclusion of ‘‘personal deliv-
ery’’ language from a statute. For example, the Nevada
Supreme Court concluded that a fax was adequate ser-
vice in a case in which the relevant statute did not
require personal service and, also, service via fax was
statutorily permitted. See Davis v. District Court, 129
Nev. 116, 119–20, 294 P.3d 415 (2013). The court
explained that, ‘‘[i]n legal usage, ‘personal service’ has
a distinct meaning—‘[a]ctual delivery of the notice or
process to the person to whom it is directed.’ Black’s
Law Dictionary [(7th Ed. Abridged 2000) p. 933].’’ Davis
v. District Court, supra, 119. Significantly, the court
acknowledged that, ‘‘[h]ad the [l]egislature intended to
require personal service, it could have expressly done
so as it has in other statutes,’’ and, therefore, the court
declined to engraft a ‘‘personal delivery’’ requirement
onto the statute. Id.
In the absence of a definition for ‘‘personal delivery,’’
the legislature directs us to apply the ‘‘commonly
approved usage’’ of the words at issue, or, if they are
technical words that have ‘‘acquired a peculiar and
appropriate meaning in the law,’’ they should be con-
strued according to that technical meaning. General
Statutes § 1-1 (a). Irrespective of whether we view ‘‘per-
sonal delivery’’ as having a common or technical mean-
ing, the result is the same. It requires actual receipt
by the recipient, not delivery to the recipient’s place
of business.6
I agree with the majority that § 52-593a is a remedial
statute; see, e.g., Nine State Street, LLC v. Planning &
Zoning Commission, 270 Conn. 42, 55, 850 A.2d 1032
(2004); and that remedial statutes ‘‘must be afforded a
liberal construction in favor of those whom the legisla-
ture intended to benefit . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) Dorry v. Garden, 313
Conn. 516, 530, 98 A.3d 55 (2014). The legislative history
makes clear that § 52-593a was intended to help a plain-
tiff preserve a cause of action by affording the marshal
additional time to serve the process, not to afford the
plaintiff additional time to deliver the process to the
marshal. See 12 H.R. Proc., Pt. 7, 1967 Sess., p. 2798,
remarks of Representative John W. Boyd (‘‘[T]his bill
is for the purpose of, in a small way, extending the
statute of limitations of causes of action. It does so by
providing that, in the event that the complaint or other
process, is personally delivered to the officer who will
make service within the time limited by law, that the
period will be extended for [fifteen] days for the officer
to make such service.’’ (Emphasis added.)); see also
Tayco Corp. v. Planning & Zoning Commission, 294
Conn. 673, 682, 986 A.2d 290 (2010) (§ 52-593a ‘‘intended
to prevent a party from losing the right to a cause of
action because of untimely service on the part of the
marshal by giving the marshal additional time in which
to effect proper service on the party in question’’
(emphasis in original)). In the present case, because
the petitioner failed to timely deliver the process to
Lilley personally, he is not entitled to the protections
of § 52-593a, which was not intended to save the plaintiff
from his own tardy action.
Moreover, a statutory interpretation that frustrates
the evident intent of the legislature is not permitted
simply because we afford a liberal interpretation to
remedial legislation. Dorry v. Garden, supra, 313 Conn.
531–32. The evidence overwhelmingly indicates that the
legislature did not intend for electronic transmission
alone to constitute ‘‘personally delivered’’ process. Per-
mitting a petitioner to satisfy the ‘‘personal delivery’’
requirement of the statute, without establishing that the
marshal personally received it, would undermine the
legislative intent by rendering the word ‘‘personally’’
superfluous in violation of the ‘‘basic tenet of statutory
construction that the legislature [does] not intend to
enact meaningless provisions. . . . [I]n construing
statutes, we presume that there is a purpose behind
every sentence, clause, or phrase used in an act and
that no part of a statute is superfluous. . . . Because
[e]very word and phrase [of a statute] is presumed to
have meaning . . . [a statute] must be construed, if
possible, such that no clause, sentence or word shall be
superfluous, void or insignificant.’’ (Internal quotation
marks omitted.) Lopa v. Brinker International, Inc.,
296 Conn. 426, 433, 994 A.2d 1265 (2010).
Although evidence of timely delivery of process to a
marshal need not be by the statutorily directed endorse-
ment, the plaintiff must establish by some other evi-
dence that the marshal personally received the process.
This is precisely the point made by this court in Doe v.
West Hartford, 328 Conn. 172, 177 A.3d 1128 (2018). In
Doe, we explained that, ‘‘permitting a plaintiff to prove
timely delivery of process to a marshal by means other
than the statutorily directed endorsement would not
result in an unjust windfall but, rather, assuming that
timeliness could be shown by other evidence, simply
would enable the plaintiff to take advantage of a protec-
tion that the legislature sought to provide to him . . . .’’
(Emphasis added.) Id., 186. Here, Lilley’s return is silent
as to when it was received from the petitioner. Conse-
quently, it does not comply with the provisions of § 52-
593a (b).7 Moreover, the petitioner failed to demonstrate
by other evidence that Lilley had personally received
the original process prior to the lapse of the statute of
limitations.8 Unlike in Doe, in which deposition testi-
mony from the plaintiff’s attorney established that the
attorney spoke with the marshal the day that process
was retrieved from his office and that the marshal
retrieved the process the day the statute of limitations
expired, there is no such evidence in this case that
Lilley actually received the process on August 5, 2014.
See id., 189–91.9 As such, Lilley did not have the docu-
ments necessary to make proper service by August 5.
Permitting delivery via fax opens the door to all man-
ner of electronic delivery—including social media—
because there is no rational way to draw the line at
what electronic means are acceptable and which are
not. This concern finds support in case law from other
jurisdictions. When there is no statute or rule imposing
a similar ‘‘personal delivery’’ requirement, courts have
grappled with this issue in the context of e-mail and
social media, including Facebook and Twitter postings.
Typically, such methods of electronic delivery have
been permitted when traditional methods of process
have been exhausted without success, with special per-
mission, or for international delivery. See St. Francis
Assisi v. Kuwait Finance House, United States District
Court, Docket No. 3:16-CV-3240-LB (N.D. Cal. Septem-
ber 30, 2016) (allowing service of process on interna-
tional defendant via Twitter); F.T.C. v. PCCare247 Inc.,
United States District Court, Docket No. 12 Civ. 7189
(PAE) (S.D.N.Y. March 7, 2013) (for sake of thorough-
ness, court authorized service of process via Facebook
in addition to e-mail when all attempts to accomplish
traditional service of process failed); D.R.I., Inc. v. Den-
nis, United States District Court, Docket No. 03 Civ.
10026 (PKL) (S.D.N.Y. June 3, 2004) (permitting service
by e-mail on defendant whose whereabouts unknown);
Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 315–17, 5
N.Y.S.3d 709 (2015) (held that divorce summons can be
served solely by private Facebook message to spouse’s
account); see also D. Stewart & A. Conley, ‘‘E-mail Ser-
vice on Foreign Defendants: Time for an International
Approach?,’’ 38 Geo. J. Intl. L. 755, 764–72 (2007) (exam-
ining common threads in case law that permits e-mail
service on foreign defendants).
Other courts have rejected the use of e-mail and social
media for service of process. See, e.g., Fortunato v.
Chase Bank USA, N.A., United States District Court,
Docket No. 11 Civ. 6608 (S.D.N.Y. June 7, 2012)
(rejecting defendant’s request to effectuate service of
process via Facebook); Lim v. Nojiri, United States
District Court, Docket No. 10-CV-14080 (E.D. Mich. June
27, 2011) (‘‘neither service by fax or e-mail is sufficient
to effect service of process under [rule 4 of the Federal
Rules of Civil Procedure] or under Michigan state law’’).
It is important to note that several courts and scholars
have raised various concerns about electronic service,
including the problem of verifying whether and when
such communications were opened or viewed. See, e.g.,
Rio Properties, Inc. v. Rio International Interlink, 284
F.3d 1007, 1018 (9th Cir. 2002) (‘‘Despite our endorse-
ment of service of process by [e-mail] in this case, we
are cognizant of its limitations. In most instances, there
is no way to confirm receipt of an [e-mail] message.’’);
M. Schreck, ‘‘Preventing ‘You’ve Got Mail’‹ from Mean-
ing ‘You’ve Been Served’: How Service of Process by
E-mail Does Not Meet Constitutional Procedural Due
Process Requirements,’’ 38 J. Marshall L. Rev. 1121,
1140 (2005) (Footnote omitted.) (listing ‘‘a multitude of
other problems with permitting service of process by
e-mail that contribute to the problem of confirming
whether an e-mail was delivered or opened’’); A. Shultz,
comment, ‘‘Superpoked and Served: Service of Process
via Social Networking Sites,’’ 43 U. Rich. L. Rev. 1497,
1525–26 (2009) (‘‘the limitations [on service of process
via Facebook] are more severe than those associated
with e-mail,’’ including proving that ‘‘the person behind
the profile contacted is actually the defendant’’); C.
Specht, ‘‘Text Message Service of Process—No LOL
Matter: Does Text Message Service of Process Comport
with Due Process?,’’ 53 B.C. L. Rev. 1929, 1955–59 (2012)
(discussing problems with service of process via text
message).
The numerous concerns arising in this context and
the limitations to be imposed to protect both parties
are properly left to the legislature. See State v.
Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987) (‘‘[i]n
areas where the legislature has spoken . . . the pri-
mary responsibility for formulating public policy must
remain with the legislature’’). When the legislature has
chosen to adopt alternative means for the delivery of
legal process, it has demonstrated its ability to craft
legislation that accomplishes that objective. See, e.g.,
General Statutes § 52-52 (b) (publication of orders of
notice of legal or judicial proceedings may be left with
newspaper); General Statutes § 52-57 (e) (service of
process on voluntary association made by, inter alia,
mailing it by registered or certified mail, postage pre-
paid, to defendant’s last known address); General Stat-
utes § 52-59d (b) (service of process outside of the
United States may be made ‘‘upon such terms as the
court deems reasonably calculated to give the defen-
dant actual notice’’); General Statutes § 52-62 (c) (ser-
vice of process on a nonresident in action for negligent
operation of motor vehicle may be made by, inter alia,
mailing it registered or certified mail, postage prepaid,
to defendant’s last known address); General Statutes
§ 52-64 (service of process in action against state may
be made by sending process by certified mail, return
receipt requested, to attorney general).10 The decision
to permit electronic delivery is one that requires the
evaluation of various public policy considerations given
the seemingly infinite possible electronic means of
transmitting information such as e-mail, text, and social
media platforms or applications. Our legislature could
have, but chose not to, use open-ended language that
would have left the matter to the courts to interpret.
See Marchesi v. Board of Selectmen, 309 Conn. 608,
618, 72 A.3d 394 (2013) (‘‘it is a well settled principle
of statutory construction that the legislature knows how
to convey its intent expressly . . . or to use broader
or limiting terms when it chooses to do so’’ (citation
omitted; internal quotation marks omitted)); see also
Rio Properties, Inc. v. Rio International Interlink,
supra, 284 F.3d 1018 (explaining that e-mail service was
properly ordered by District Court using its discretion
under rule 4 (f) (3) of Federal Rules of Civil Procedure,
which allows for service by other means not prohibited
by international agreement).
In the present case, there is no evidence of when
Lilley or anyone in his office actually received the fax,
only that it had been received by the fax machine in
Lilley’s office at 5:01 p.m. on August 5, 2014.11 See Salley
v. Board of Governors, 136 F.R.D. 417, 419 (M.D.N.C.
1991) (Facsimile transmission is a ‘‘process of electroni-
cally sending an exact copy of an image, through tele-
communications, between copying machines. There is
no need for an operator to be continuously on duty at
the place of reception.’’). Specifically, Lilley’s return
does not indicate when he received the process, and he
does not recall whether he physically held the process
in his hand or even whether he was at work on August
5, 2014. Peat attempted to call Lilley on August 5, but
he did not answer. Indeed, there is no evidence that
Lilley ever received the original process prior to serving
the faxed copy of it on August 6. Given the transmittal
cover letter’s statement that the original would be
mailed, it is highly unlikely that Lilley would have
received it less than one day later. As a result, Lilley
was not able to compare the copy of the fax that he
was serving on the defendant to the original. Thus, the
evidence does not establish that personal delivery was
accomplished by August 5, 2014. Rather, the evidence
only established that Lilley had actual possession of
the faxed copy of the process on August 6, 2014, the
day he served the process on the respondent and the
day after the statute of limitations had expired. As we
have explained, § 52-593a was ‘‘intended to prevent a
party from losing the right to a cause of action because
of untimely service on the part of the marshal by giving
the marshal additional time in which to effect proper
service . . . .’’ (Emphasis altered.) Tayco Corp. v.
Planning & Zoning Commission, supra, 294 Conn. 682.
Section 52-593a was not intended to give the party addi-
tional time, beyond the statute of limitations, to deliver
the process to the marshal. See id., 686. Here, the peti-
tioner did not establish that personal delivery to Lilley
was accomplished before the expiration of the statute
of limitations.
The parties agree that the petition would be time
barred by General Statutes § 52-582 unless the process
was ‘‘personally delivered’’ to Lilley by August 5, 2014.
Thus, because I conclude that ‘‘personal delivery’’
requires that the recipient be in actual possession of
the original process and because the petitioner failed
to establish that Lilley was in possession of either the
faxed or original process before the lapse of the statute
of limitations, I would affirm the judgment of the Appel-
late Court dismissing the action. Accordingly, I respect-
fully dissent.
1
The transmittal cover page was addressed to ‘‘Debbie,’’ not Lilley, and
contained the following message: ‘‘Please make service of the attached
ASAP. Also, please confirm receipt. I will mail the originals. Thank you.
Donna.’’ (Emphasis altered.) There is no indication in the record that either
‘‘Debbie’’ or Lilley ever confirmed the receipt of the transmission, that the
original process was mailed, or that Lilley received the original process
before he served the faxed copy of the process the next day. I observe that
the fax cover page stated that the originals would be mailed and that the
fax was transmitted at 4:59 p.m. Under such circumstances, it is inconceiv-
able that Lilley received the original documents in time to serve them the
following day. As such, the petitioner’s attorney could not have provided
Lilley, on a timely basis, with all the materials he needed to certify
proper service.
2
Although I do not agree with the majority that receipt at the recipient’s
office constitutes constructive possession and, in turn, personal delivery,
such a theory would have to fail in the present case, in any event, in the
absence of evidence that the marshal’s ordinary business hours extended
past 5 p.m. Though it is not controlling in this context, it is nevertheless
informative that we regularly consider something delivered electronically
after 5 p.m. as not delivered on that day. Indeed, our rules of practice provide
that any filing sent electronically to the clerk’s office that is received after
5 p.m. ‘‘shall be deemed filed on the next business day upon which such
office is open.’’ Practice Book § 7-17; see also Real Estate Mortgage Network,
Inc. v. Squillante, 184 Conn. App. 356, 362, 194 A.3d 1262, cert. denied, 330
Conn. 950, 197 A.3d 390 (2018).
3
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
4
This reasoning is consistent with the legislative history of § 52-593a. See
12 S. Proc., Pt. 5, 1967 Sess., p. 2117, remarks of Senator John F. Pickett
(savings statute is intended to remedy issue of when ‘‘a statute of limitation[s]
is about to expire and the sheriff get[s] a copy of the writ from [counsel]’’
by allowing sheriff to serve it within extra time allotted (emphasis added)).
5
In ascertaining the meaning of ‘‘personally delivered,’’ I discern no princi-
pled distinction between the concepts of ‘‘personal delivery’’ and ‘‘personal
service,’’ or variations of those terms, such as ‘‘service personally.’’ Perhaps
more important, the majority does not offer a meaningful distinction, thereby
leaving our trial courts to conjure one for themselves. Though the majority
states that its holding is limited to the ‘‘discrete and unique issue’’ here, one
is left to speculate why the issue is either discrete or unique.
Service is merely the formal delivery of legal process or notice. See Black’s
Law Dictionary (11th Ed. 2019) p. 1643 (service is ‘‘[t]he formal delivery of
a writ, summons, or other legal process, pleading or notice to a litigant or
other party interested in litigation’’). The majority is correct that service of
process must comport with due process but properly served process requires
that the marshal certify that the document he or she is serving is a true and
attested copy of the original process. See General Statutes §§ 52-54 and 52-
57. This can only be accomplished if the marshal has the original process
in hand. The personal delivery requirement of § 52-593a ensures that the
marshal receives the original process. The majority does not address the
fact that the marshal did not have the original process but, rather, had a
replica of the original. The majority attempts to distinguish ‘‘service’’ from
‘‘delivery’’ on the due process principle of ‘‘actual notice,’’ but does not
explain how one who receives a fax, e-mail or text message containing a
copy of the original process has ‘‘actual notice’’ of its contents. Additionally,
the majority tries to divine some light between ‘‘personally served’’ and
‘‘personally delivered’’ by asserting that delivery to a marshal only serves
as a ‘‘mechanism to effectuate service . . . .’’ But how is that legally or
meaningfully different than the due process concern that one have ‘‘actual
notice’’ of the original process? The majority opinion is silent on the question.
I look to related statutes, such as service of process statutes, because
‘‘[s]tatutes are to be interpreted with regard to other relevant statutes
because the legislature is presumed to have created a consistent body of
law.’’ (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1,
77–78, 836 A.2d 224 (2003); see also Cox v. Mid-Minnesota Mutual Ins. Co.,
909 N.W.2d 540, 545–46 (Minn. 2018) (concluding that fax transmission did
not satisfy requirement of delivery to sheriff because, among other things,
state’s service of process rule of civil procedure did not allow for service
via fax). It is the meaning of the adverb ‘‘personally,’’ not the verbs ‘‘deliver’’
or ‘‘service,’’ that is at issue in the present case and, as discussed further
in this dissenting opinion, to satisfy a personal delivery requirement, the
recipient must be in actual possession of the original legal process.
6
Indeed, the legislature enacted § 52-593a as Public Acts 1967, No. 890,
and the public act allowed for personal delivery to ‘‘an officer authorized
to serve such process or . . . to the office of any sheriff . . . .’’ (Emphasis
added.) The emphasized phrase, ‘‘the office of,’’ was subsequently removed
from the statute by the legislature. See Public Acts 2000, No. 00-99, §§ 116
and 138. As a result, had the legislature intended for delivery to the marshal’s
place of business to constitute personal delivery, it certainly would not have
removed that language from the statute. See Marchesi v. Board of Selectmen,
309 Conn. 608, 618, 72 A.3d 394 (2013) (‘‘ ‘it is a well settled principle of
statutory construction that the legislature knows how to convey its intent
expressly’ ’’).
7
General Statutes § 52-593a (b) provides: ‘‘In any such case, the officer
making service shall endorse under oath on such officer’s return the date
of delivery of the process to such officer for service in accordance with
this section.’’
8
The majority asserts that delivery via fax is distinguishable from delivery
via mail because ‘‘the time, date, and success of a fax transmission are
confirmed near instantaneously . . . .’’ This distinction misses the mark.
Although it is true that the confirmation contained in the fax transmission
report indicates when the fax was received by the machine, it does not
indicate when the recipient personally received it. See Coldwell Banker
Commercial/Feist & Feist Realty Corp. v. Blancke P.W., L.L.C., 368 N.J.
Super. 382, 393, 846 A.2d 633 (App. Div. 2004) (‘‘Faxes do not afford the
same certainty of delivery as certified mail or personal service, and do not
provide a means to determine the actual recipient of the fax. . . . [T]he
recipient of a fax is always a machine, not an individual.’’).
9
I also note that the majority’s conclusion that constructive possession
of process by a serving officer is a sufficient substitute for actual possession,
for purposes of saving late service, frustrates the intent of the legislature.
The majority provides no support for this proposition and I can find none.
Had the legislature intended for constructive possession to be the standard,
it could have expressly done so as it has in other statutes. See, e.g., General
Statutes § 12-392 (b) (4) (statutory language providing for ‘‘actual or con-
structive possession’’ of property); General Statutes § 54-33a (e) (same). As
we have explained, ‘‘it is a well settled principle of statutory construction
that the legislature knows how to convey its intent expressly . . . or to
use broader or limiting terms when it chooses to do so.’’ (Citation omitted;
internal quotation marks omitted.) Marchesi v. Board of Selectmen, 309
Conn. 608, 618, 72 A.3d 394 (2013).
Moreover, even if constructive possession was an appropriate substitute
for actual possession, there is no evidence that the marshal was in construc-
tive possession of the process on August 5, 2014, because there is no evidence
that he was aware that process had been transmitted to his office. See
Connecticut National Bank v. Douglas, 221 Conn. 530, 538–39, 606 A.2d
684 (1992) (describing constructive possession as knowingly having power
and intention at given time to exercise dominion or control over something).
Indeed, without at least a requirement that the marshal be aware that the
process had been transmitted to his office, a petitioner could send the
petition to the marshal at 11:59 p.m. the day the statute of limitations expires.
10
We note that states that have permitted electronic delivery of process
have done so by explicit statutory provisions. See, e.g., S.C. Code Ann. § 26-
6-190 (C) (2007) (providing for e-mail service of process on corporations,
partnerships, and unincorporated associations); S.C. Code Ann. § 26-6-195
(Supp. 2019) (allowing government agency to effect service of process by
e-mail on any vendor, entity, or individual that governmental agency regu-
lates or with which government does business); N.Y. C.P.L.R. § 308 (5)
(McKinney 2010) (where traditional methods of service of process impracti-
cable, court may direct service in any manner it deems likely to notify
defendant).
11
I note that, unlike in Doe, in which deposition testimony from the plain-
tiff’s attorney established that the attorney actually spoke with the marshal
the day that process was retrieved from his office; Doe v. West Hartford,
supra, 328 Conn. 189–91; the only evidence in the present case regarding
the timing of receipt, rather than transmittal, of the process, was the fax
transmission report. The report does not establish that anyone in the office
actually received the process on August 5.