Lisa S. v. Granby Board of Education, No. Cv 90-0438014s (Aug. 30, 1990)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This is a motion to dismiss submitted by Commissioner Gerald N. Tirozzi, the Department of Education and Commissioner Toni Richardson. (Department of Mental Retardation) These persons and this department take the position that they are not defendants and they present this motion and a memorandum so as to clarify their positions and in response to indications by counsel for the plaintiff that he considers them to be defendants.

This court need only to respond to one of several claimed deficiencies cited to the court in support of the motion to dismiss. There is no citation contained in plaintiff's "appeal". Our Appellate Court recently in Susan Senie v. Leslie Carothers, Commission of Environmental Protection, et al,22 Conn. App. 253 said

The sole issue in this case is whether failure to annex a citation to a petition of appeal from the final decision of an administrative agency of this state deprives the Superior Court of jurisdiction to entertain this appeal. The trial court granted a motion to dismiss for lack of jurisdiction and we agree.

This case is controlled by DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 555 A.2d 1008 (1989). This court in DelVecchio said; "In addition to proper service, a valid appeal must contain a citation signed by a competent authority and contain a notice of the return date and notice of the requirement of filing an appearance. Chestnut Realty, Inc. v. CHRO, 201 Conn. 350, 356-57, 514 A.2d 749 (1986); Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 645-46, 501 A.2d 1223 (1985). Here, the plaintiff failed to annex a citation to her petition. She claims that the elimination of the requirement of service by a sheriff also abolished the necessity of a citation. That is not the law; nor is this a case of first impression.

"The necessity of a citation was first ruled upon by the Appellate Session of the Superior Court in Board of Education v. CT Page 1370 State Board of Education, 38 Conn. Sup. 712, 716, 461 A.2d 997 (1983), and subsequently by this court in Atkins v. Bridgeport Hydraulic Co., supra. "``The citation is a matter separate and distinct from the sheriff's return and is the important legal fact upon which the judgment rests. . . . A proper citation is essential to the validity of the appeal and the jurisdiction of the court." (Citation omitted.) Village Creek Homeowners Assn. v. Public Utilities Commission, [148 Conn. 336, 339, 170 A.2d 732 (1961)]. The purpose of General Statutes sec. 4-183 (b) is not to obviate the need for a citation, but rather to permit service upon the administrative agency in a manner different from ordinary civil actions, that is, by registered or certified mail.' Atkins v. Bridgeport supra.

"Either the lack of proper service upon the department of income maintenance or the lack of a citation would have been fatal to the plaintiff's appeal." DelVecchio v. Department of Income Maintenance, supra, 15-16.

Since the adoption of the Uniform Administrative Procedure Act; General Statutes sec. 4-166 et seq.; and through every amendment since its adoption, a citation is required for the trial court to acquire jurisdiction over an administrative appeal from a state agency.

The Motion to Dismiss is granted.

LEONARD W. DORSEY SENIOR JUDGE