author: JUSTICE LINDBERG JUSTICE INGLIS,

text:
    P. REGINALD FELLHAUER, Plaintiff-Appellant, v. THE CITY OF GENEVA et al., Defendants-Appellees.
    Second District
    No. 2—88—1196
    Opinion filed November 2, 1989.

      INGLIS, J., concurring in part and dissenting in part.
    Stephen M. Cooper, of Law Offices of Cooper, Storm & Petesch, of Geneva (Peter M. Storm, of counsel), for appellant.
    Arvey, Hodes, Costello & Burman, of Chicago, James R. Schirott, of Schirott & Associates, P.C., of Itasca, and George E. Krippner, of Clancy & Krippner, of St. Charles (Gary L. Starkman, of counsel), for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, P. Reginald Fellhauer, the former director of the electrical department of the City of Geneva, Illinois, appeals from a portion of an order entered in the circuit court of Kane County on November 10, 1988, dismissing with prejudice for failing to state a cause of action on four counts of plaintiff’s complaint directed at defendant, Richard Lewis (Lewis), the mayor of the City of Geneva. Plaintiff timely appeals from a judgment which is final as to all of plaintiff’s claims against Lewis and in which the trial court made the required finding of appealability pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). The issue on appeal is whether the trial court erred in granting Lewis’ motion pursuant to section 2 — 615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) to dismiss the four counts of plaintiff’s first amended complaint for failing to state a cause of action.

On February 18, 1986, plaintiff filed a two-count complaint for retaliatory discharge. Count I named the City of Geneva (the City) and Richard Lewis, individually, as defendants and sought compensatory damages. Count IPs allegations of fact were identical to count I and sought punitive damages against both defendants. Plaintiff’s complaint was based on allegations that he was discharged from his position as the director of the electrical department in retaliation for his refusal to perform various activities. Plaintiff’s first complaint alleged that he had been appointed to his position as director of the electrical department on April 29, 1974. Lewis, having been duly elected, was sworn in as mayor of the City on May 7, 1985. During 1984 and the spring of 1985, plaintiff was involved with extensive negotiations with the Wisconsin Electrical Power Company (WEPCO) which culminated in the signing of a written agreement on April 23, 1985, between WEPCO and the City for the provision of electrical power to the City at a substantial cost savings to the City as opposed to its previous agreement with Commonwealth Edison. During the second half of 1984 and the spring of 1985, Lewis was campaigning for the office of mayor of the City. In February 1985, Lewis allegedly approached plaintiff and asked plaintiff to “slow down” the negotiations between WEPCO and the City in order to prevent the then acting mayor, Edgar Crane, from receiving the political benefit that would result from the successful conclusion of the ongoing negotiations between WEPCO and the City. Plaintiff refused to alter the course of the negotiations between WEPCO and the City.

Following Lewis’ election to the office of mayor of the City in May 1985, Lewis allegedly solicited political contributions from city vendors in order to retire Lewis’ election campaign deficit. Some of the vendors solicited by the mayor asked plaintiff if it was necessary to make the contributions in order to continue to do business with the City. Plaintiff informed the vendors that such contributions were not necessary. Plaintiff also referred the matter to the city attorney for clarification of the propriety of such requests.

Plaintiff also alleged that shortly after Lewis became mayor, Lewis asked plaintiff to “sell out the contract with WEPCO” and negotiate a “better deal with Edison.” Plaintiff responded that he, plaintiff, believed that such a course of action would be a breach of the existing contractual commitment with WEPCO and asked Lewis whether such a course of conduct might subject the City to liability to WEPCO. Lewis proceeded to negotiate with Commonwealth Edison with the intention of obtaining a better deal for the City in the purchase of electrical power.

Plaintiff alleges that due to his concerns with Lewis’ actions he wrote a letter to the Wisconsin attorney representing the City in its dealings with WEPCO and asked for clarification of the situation. Thereafter, Lewis instructed the City’s Wisconsin attorney to have no further dealings with the plaintiff. Lewis also instructed plaintiff to cease his involvement in the electric-supply issue.

In January 1986, while Lewis was still negotiating with Commonwealth Edison, plaintiff attempted to inform the members of the electric committee and the utility committee of the city council of the City’s position on the power-supply issue. On January 20, 1986, after telling plaintiff that he intended to discuss the power-supply issue with the city council, Lewis instructed plaintiff “not to say anything.” Plaintiff then wrote a letter to Lewis in which plaintiff requested a clarification as to what information he should provide the aldermen of the City and for a clarification of his duty as director of the electrical department. Immediately following receipt of plaintiff’s letter, Lewis terminated plaintiff’s employment with the City, a decision later approved by the city council.

Plaintiff also alleged that as part of his duties as director of the electrical department, as contained in the relevant sections of the City’s Municipal Code, he had a duty to inform the aldermen of the City of all facts relevant to power-supply issues regarding Lewis’ negotiations with Commonwealth Edison.

Plaintiff further alleged that Lewis in bad faith and in violation of public policy discharged plaintiff in retaliation for: (1) refusing to interfere with the course of the negotiations which resulted in the WEPCO City power-supply agreement, where such interference was requested by Lewis for the sole purpose of obtaining a political advantage; (2) refusing to cooperate with Lewis’ attempts to solicit post-election campaign contributions from city vendors; and (3) refusing to withhold information regarding Lewis’ attempts to negotiate with Commonwealth Edison from the city council in violation of plaintiff’s duties as director of the electrical department pursuant to sections 2 — 70 and 12.17 of the Municipal Code of the City of Geneva (Municipal Code) (Geneva, Ill., Municipal Code ch. 2, par. 2 — 70; ch. 12, par. 12.17 (Supp. 1978 & Supp. 1985)).

Lewis, pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), moved to dismiss plaintiff’s complaint, arguing that: (1) as mayor, Lewis had discretion to remove an appointed officer such as plaintiff (see Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—1 (relied upon by Lewis)); (2) Lewis was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) for discretionary acts within the scope of his employment (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 201); and (3) plaintiff’s complaint failed to allege that Lewis’ retaliatory discharge of plaintiff violated a clearly mandated public policy.

In response, plaintiff filed a motion to strike Lewis’ section 2— 615 motion as improper because it asserted factual matter beyond the pleadings and raised other affirmative matter and defenses which are properly raised in a section 2 — 619 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) and not in a section 2 — 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Plaintiffs response also replied to the arguments of Lewis’ motion. Plaintiff’s response argued in relevant part that his discharge for refusal to take certain actions violated a clearly mandated public policy as evidenced by the crime of official misconduct (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3) in that had he interfered with the WEPCO negotiation for Lewis’ political advantage, plaintiff believed he would be committing a crime. Plaintiff also relied on the Municipal Code defining his duties, which he had alleged would be violated if he acquiesced in Lewis’ request not to discuss Lewis’ and Commonwealth Edison’s negotiations with the city council.

Lewis, in response, cited an Appellate Court, First District case, Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159, for the proposition of law that the tort of retaliatory discharge can only be brought against an employee’s employer, not a supervisor. The trial court refused to consider Lewis’ assertions of qualified immunity, finding those matters improper for consideration under a section 2— 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The trial court found that plaintiff's complaint for retaliatory discharge sufficiently alleged facts indicating that plaintiff’s discharge was a violation of a clearly mandated public policy. However, the trial court found that Morton did bar a retaliatory discharge claim against Lewis. The trial court’s order dismissed plaintiff’s claims against Lewis for retaliatory discharge with prejudice, however, with leave to otherwise file an amended complaint based on the trial court’s view that plaintiff might be able to state a cause of action for tortious interference with contractual relations.

On February 13, 1987, plaintiff filed his first amended complaint. Count I was simply a reallegation of the retaliatory discharge claim of count I of plaintiff’s first complaint against Lewis.

Count III of plaintiff’s first amended complaint was entitled “wrongful interference with employment relationships” and realleged the same facts contained in count I of plaintiff’s complaints. Count III further alleged that as a result of plaintiff’s refusal to accede to the improper demands of Lewis, as previously discussed relative to count I, Lewis embarked on a course of action intended to cause plaintiff’s employment with the City to be terminated. Plaintiff alleged that in furtherance of this course of conduct, Lewis caused a statement of charges against plaintiff to be filed with the city council, which charges were false and were filed with the intention of causing plain-

tiffs employment with the City to be terminated and/or inducing the City to terminate plaintiff’s employment. Plaintiff alleged that he was terminated and such termination was proximately caused by the actions of Lewis as just described. Plaintiff also alleged that Lewis performed these actions with malice and for the sole purpose of retaliating against plaintiff.

Count IV of plaintiff’s first amended complaint was entitled “42 U.S.C. 1983” and realleged the same facts as count I and alleged that such acts of Lewis violated plaintiff’s rights under section 1983 of the Civil Rights Act of 1871 (Civil Rights Act) (42 U.S.C. §1983 (1982)). Count IV named Lewis individually, as well as in his official capacity as mayor of the City.

Count VI realleged all prior allegations and alleged malice and sought punitive damages against Lewis in his individual capacity.

Lewis filed another motion pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) to dismiss counts I, III, IV and VI for failure to state a cause of action. On November 10, 1988, the trial court granted Lewis’ motion and dismissed with prejudice counts I, III, IV and VI of plaintiff’s first amended complaint without leave to replead and entered the required finding of “no just reason to delay enforcement or appeal” to allow plaintiff to appeal. 107 Ill. 2d R. 304(a).

On appeal, plaintiff argues that his first amended complaint pled sufficient facts to state a cause of action for retaliatory discharge, tortious interference with an employment relationship and a civil rights violation under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)).

“There are certain general rules of construction to be applied when a complaint is challenged for failure to state a cause of action. The essential test of the sufficiency of the complaint is whether it reasonably informs the defendant of a valid claim under a general class of cases of which the court has jurisdiction. [Citation.] In determining the sufficiency of the complaint, the court must accept as true all well pleaded facts and reasonable inferences drawn therefrom. [Citation.] No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. [Citation.] Finally, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under pleadings which would entitle plaintiff to relief.” Skinner v. Mahomet Seymour School District No. 3 (1980), 90 Ill. App. 3d 655, 656-57, 413 N.E.2d 507, 508.

The tort of retaliatory discharge in Illinois is recognized as an exception to the general rule that an at-will employment relationship may be terminated at anytime for any or no cause. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Recognition of this cause of action by our supreme court was based in part upon the common-law principle that parties to a contract may not incorporate into the contract rights and obligations injurious to the public. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) An employer commits the tort of retaliatory discharge when the employer discharges an employee in retaliation for the employee’s activities and the discharge of the employee by the employer contravenes a clearly mandated public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.) In order to survive a motion to dismiss for failing to state a cause of action in retaliatory discharge, plaintiff must plead facts that establish retaliation in the firing of an at-will employee in contravention of a clearly mandated public policy. Abrams v. Echlin Corp. (1988), 174 Ill. App. 3d 434, 528 N.E.2d 429.

The trial court dismissed with prejudice plaintiff’s count in retaliatory discharge against Lewis based on a holding of the Appellate Court for the First District in Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159, that an employee could only sue his employer and not his supervisor or anyone else for the tort of retaliatory discharge. Initially, plaintiff argues that the trial court erred in deciding a question of fact on the pleadings of the complaint, namely, whether the City or Lewis was the employer of plaintiff. This argument of plaintiff’s is without merit. Throughout the allegations of facts contained in plaintiff’s first amended complaint, plaintiff refers to his position as director of the electric department of the City of Geneva. Plaintiff does not allege, in the alternative, that he is an employee of the mayor. The facts alleged do not lead to a reasonable inference that plaintiff is an employee of the mayor as opposed to the City, and we do not find that the trial court erred in so reading plaintiff’s complaint.

Plaintiff next contends that Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159, was incorrectly decided and urges us not to follow its reasoning. Plaintiff urges us to follow the reasoning of the Federal court in Zurek v. Hasten (N.D. Ill. 1982), 553 F. Supp. 745, which rejected a defendant’s argument that a cause of action for retaliatory discharge in Illinois can be brought only against an employer and not the agents of the employer, individually. While the Federal court’s decision in Zurek was not binding on the court in Morton, the court’s opinion in Morton is not binding upon this court, and we respectively disagree with the conclusion in Morton. (Cf. Miller v. Illinois (N.D. Ill. 1988), 681 F. Supp 538 (Judge Shadur recognized that Federal district court applying Illinois law was bound to follow Morton’s rejection of Zurek outcome where Morton was only Illinois case to have interpreted Illinois law on relevant issue).) The court in Morton reached its conclusion in reliance on our supreme court’s admonition in Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525, 478 N.E.2d 1354, 1356, against the undue expansion of the tort of retaliatory discharge. (Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 421-22, 495 N.E.2d 1159, 1162.) However, in Kelso-Burnett our supreme court was not addressing the nature of the party defendants to a suit for retaliatory discharge but the nature and definition of what constituted a “clearly mandated public policy” for purposes of defining the scope of the limited tort of retaliatory discharge, as recognized in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and further explained in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525-26, 478 N.E.2d 1354, 1356-57.

Under normal tort doctrine and agency law in Illinois, where the acts of the agent render the principal liable, such acts also render the agent liable. (See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) Further, municipal officers may be held liable for intentional torts, although the municipal officer’s acts were ostensibly in performance of corporate duties, where such acts were, in fact, an intentional misuse of the powers of the municipal office holder. (Idle-hour Development Co. v. City of St. Charles (1980), 88 Ill. App. 3d 47, 409 N.E.2d 544.) We do not interpret the supreme court’s admonition in Kelso-Burnett against the undue expansion of the tort of retaliatory discharge to mean that other well-established principles of tort, agency and municipal law do not otherwise apply to the relatively new and developing tort of retaliatory discharge in Illinois. Nor are we aware of a public policy reason to so limit the tort of retaliatory discharge. (See, e.g., Boyles v. Greater Peoria Mass Transit District (1986), 113 Ill. 2d 545, 499 N.E.2d 435 (recognized availability of tort of retaliatory discharge against municipal employer but prohibited imposition of punitive damages against such employer in recognition of public policy against imposing punitive damages upon local taxpayers as reflected in section 2 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 102), which grants local governmental entities immunity from punitive damage claims).) To hold otherwise would unduly weaken the tort of retaliatory discharge and defeat one of its underlying purposes of preventing actions by employers in discharging their employees which are violative of public policy. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.

As Judge Shadur recognized in Zurek, deterrence is a goal of intentional-tort liability best served by holding the active wrongdoer liable in addition to the employer. (Zurek v. Hasten (N.D. Ill. 1982), 553 F. Supp. 745, 749; cf. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353 (holding punitive damages would be allowed for tort of retaliatory discharge due to the need to deter such actions).) Further, Judge Shadur also recognized that to the extent a governmental employer was insulated by sovereign immunity, a plaintiff terminated on grounds offensive and violative of public policy would have no remedy if he could not sue a responsible co-employee or supervisor. (Zurek v. Hasten (N.D. Ill. 1982), 553 F. Supp. 745; cf. Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 524 N.E.2d 966 (employer may not be liable for intentional acts of employee done solely for employee’s own interest and, therefore, outside scope of employment); Ill. Rev. Stat. 1987, ch. 85, par. 2 — 101 et seq.) Based on the foregoing, we decline to follow the holding of the first district in Morton and hold that a cause of action for retaliatory discharge can be brought, as in other tort actions, against not only the plaintiff’s employer but also against the plaintiff’s supervisor, co-employee or agent of the employer, who commits the act of retaliatory discharge.

Defendant contends that the trial court’s order of dismissal of the retaliatory discharge count may be affirmed on the ground that plaintiff’s alleged discharge in retaliation for the activities of plaintiff would not be in contravention of any clearly mandated public policy. The trial court in dismissing with prejudice plaintiff’s claim of retaliatory discharge against Lewis, individually, declined to base dismissal on a failure to allege facts sufficient to show a violation of a clearly mandated public policy. The trial court, relying on several cases involving retaliatory discharge, specifically found that plaintiff’s complaint was not insufficient for failing to allege facts indicating a violation of a clearly mandated public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876; Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372; Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588.) We agree in part with the trial court. The determination of what is a clearly mandated public policy has been called the Achilles heel of the principle underlying the tort of retaliatory discharge. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878.)

“There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions. [Citation.] *** [A] matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed. ***
* * *
The cause of action is allowed where the public policy is clear, but is denied where it is equally clear that only private interests are at stake.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130-31, 421 N.E.2d 876, 878-79.)

Public policy affecting the citizens of Illinois collectively for purposes of applying retaliatory discharge has been found in Federal law. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E.2d 372 (employee stated cause of action for retaliatory discharge where he alleged that he was fired in retaliation for refusing to work with radioactive material in violation of Nuclear Regulatory Commission’s safety guidelines).) Thus far, Illinois courts have found a clearly mandated public policy in only two types of situations: (1) where the employee’s discharge stems from asserting a worker’s compensation claim; or (2) where the discharge is for an employee’s reporting of, or refusal to engage in, the illegal activities of a fellow employee or the employer. Russ v. Pension Consultants Co. (1989), 182 Ill. App. 3d 769, 775, 538 N.E.2d 693, 694.

In the instant case, plaintiff alleged he was discharged in retaliation for: (1) refusing to slow down the WEPCO City electrical-power-supply negotiations in order to politically benefit Lewis in his campaign for mayor; (2) refusing to participate in Lewis’ attempts to solicit post-election campaign contributions from city vendors; and (3) refusing to withhold information from the city council in violation of his duties under the Municipal Code. Looking at plaintiff’s whole complaint and taking as true all well-pleaded facts and reasonable inferences therefrom (Skinner v. Mahomet Seymour School District No. 3 (1980), 90 Ill. App. 3d 655, 413 N.E.2d 507), plaintiff’s first two allegations of his retaliatory discharge count claim that plaintiff was discharged: (1) for refusing to agree solely for the political benefit of Lewis to not properly perform his official duties as director of electrical services in negotiating with WEPCO, and (2) for refusing to participate in Lewis’ attempts to require political contributions from city vendors in order that such vendors could continue to do work for the City. As to plaintiff’s first two allegations, we find that the criminal statutes of our State evidence a clearly mandated public policy which may be violated if Lewis were allowed to discharge plaintiff in retaliation for his refusal to slow down the awarding of the WEPCO contract for the benefit of Lewis or for his reporting of the alleged activities of Lewis. Article 33 of the Criminal Code of 1961, entitled “Official Misconduct,” proscribes the type of activities alleged by plaintiff to have been committed by Lewis or in which plaintiff alleges he refused to participate. (Ill. Rev. Stat. 1987, ch. 38, pars. 33 — 1 (bribery), 33 — 3 (official misconduct).) “There is no public policy more basic, nothing more implicit in the concept of ordered liberty [citation], than the enforcement of a State’s criminal code.” Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 132, 421 N.E.2d 876, 879.

However, plaintiff’s third allegation that he was discharged in retaliation for refusing to acquiesce in Lewis’ demand that he not discuss Lewis’ negotiations with Commonwealth Edison with the city council in derrogation of his official duties as contained in the Municipal Code does not state a cause of action. Section 2 — 70 of the Municipal Code relied upon by plaintiff provides in part:

“Director of Electrical Services: Duties Generally It shall be the duty of the director of electrical services to direct and coordinate the activities of the City’s Electric Department, and be responsible for electricity distribution in the City and to review and make recommendations on the electrical installation in all new proposed connections. He shall confer with officials responsible for supplying electrical service and the maintenance thereof. He shall coordinate the use of manpower and equipment and consolidate purchase requests of the Department.” (Geneva, Ill., Municipal Code ch. 2, par. 2 — 70 (1978).)

Plaintiff also cites section 12.17, which provides in part:

“Director of Electrical Services:
The duty of the director of electrical services shall be to supervise the maintenance, operation, construction and planned expansion of all electrical facilities *** and he shall be responsible for the determination of the general administration, operating and sales policies of the utility and, upon approval of the finance and public utility committee and the city council, shall see that policies are executed and adhered to, which policies shall supplement these provisions and shall be binding as if stated herein.” Geneva, Ill., Municipal Code ch. 12, par. 12.17 (Supp. 1985).

Plaintiff’s allegations of fact concerned Lewis’ negotiations with Commonwealth Edison and plaintiff’s attempts to discuss Lewis’ negotiations with the city council. The ordinances relied upon by plaintiff do not reasonably lead to a conclusion that plaintiff’s duties included discussing with the city council Lewis’ decision to negotiate with Commonwealth Edison. Therefore, these ordinances do not support the allegation that plaintiff was discharged for refusing to violate his duties.

In sum, we hold that the trial court erred in dismissing plaintiff’s count in retaliatory discharge against Lewis, individually, and decline to affirm the trial court’s order of dismissal on the ground that plaintiff’s complaint failed to allege facts sufficient to establish a firing in violation of a clearly mandated public policy.

Next, we address plaintiff’s argument that count III of his first amended complaint alleged sufficient facts to state a cause of action for tortious interference with an employment relationship. The tort of interference has long been recognized in Illinois. (City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 300 N.E.2d 331.) The court in City of Rock Falls stated:

“The theory of the tort of interference, it is said, is that the law draws a line beyond which no member of the community may go in intentionally intermeddling with the business affairs of others; that if acts of which complaint is made do not rest on some legitimate interest, or if there is sharp dealing or overreaching or other conduct below the behavior of fair men similarly situated, the ensuing loss should be redressed; and that the line of demarcation between permissible behavior and interference reflects the ethical standards of the community. [Citation.] The elements which establish a prima facie tortious interference are the existence of a valid business relationship (not necessarily evidenced by an enforceable-contract) or expectancy; knowledge of the relationship or expectancy on the part of the interferer; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted. The interest protected is the reasonable expectation of economic advantage.” (City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 362-63, 300 N.E.2d 331, 333.)

Two types of interference torts have developed in Illinois, tortious interference with contractual relations and tortious interference with prospective economic advantage. (Belden Corp. v. Internorth, Inc.

(1980), 90 Ill. App. 3d 547, 413 N.E.2d 98.) The court in Belden stated:

“The elements of the tort of interference with contractual relations *** include: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages. [Citation.] The elements of the tort of interference with prospective advantage are similar, but not identical. The plaintiff must have a reasonable expectancy of entering a valid business relationship, and defendant must purposely interfere and defeat this legitimate expectancy, thereby causing harm to the plaintiff.” (Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 551-52, 413 N.E.2d 98, 101.)

Some formulations of tortious interference include “malice” as a necessary element, but this term has been interpreted in connection with the tort of interference to mean intentional interference without sufficient justification. Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 552 n.1, 413 N.E.2d 98, 101 n.1; Restatement (Second) of Torts §766, comment s (1979).

The main distinction between the two torts lies in the greater protection afforded a certain and enforceable expectancy of benefits arising under a contract as opposed to an expectancy of future economic gain arising out of current or prospective business relationships not reduced to an enforceable contract. (Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 413 N.E.2d 98.) Where the expectancy of the plaintiff involves continued employment in a position in which he serves at the will of the employer, the courts have recognized the tort of interference but have not always agreed upon which of the two theories to base such a cause of action. (Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 552 n.2, 413 N.E.2d 98, 102 n.2; Cashman v. Shinn (1982), 109 Ill. App. 3d 1112, 441 N.E.2d 940 (prospective economic advantage); Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827 (interference with contractual relationships); consider also Levitt v. Gorris (1988), 167 Ill. App. 3d 88, 520 N.E.2d 1169 (after finding no enforceable contractual right against employer to continued employment of at-will probationary police officer, court affirmed dismissal of count against supervisor for intentional interference with contractual relations, without considering issue of possible interference with legitimate expectation of continued employment).) Since a plaintiff who served at the will of his employer has no enforceable contractual right to continued employment, his expectation of continued employment is an expectation of future economic advantage arising from a presumption that his employment will continue. (See Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827; Restatement (Second) of Torts §768, comment i (1979); Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 552 n.2, 413 N.E.2d 98, 102 n.2.) Accordingly, a claim that an employee at will was terminated by his employer as a result of the intentional and unjustified actions of another sounds in the tort of intentional interference with a prospective economic advantage. See Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 413 N.E.2d 98.

In the instant case, count III of plaintiff’s first amended complaint, when liberally construed to do substantial justice between the parties (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603(c)) and taking as true all properly pleaded facts and reasonable inferences therefrom, is sufficient to state a cause of action for tortious interference with a prospective economic advantage. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790 (complaint should not be dismissed for failure to state a cause of action unless it clearly appears no set of facts could be proved which would entitle plaintiff to recovery).) Plaintiff claimed that solely in retaliation for plaintiff’s refusal to accede to the allegedly improper demands of Lewis, as previously described, Lewis caused a set of false charges to be filed with the city council in support of his dismissal with the intention of inducing the city council to dismiss plaintiff from his employment, and plaintiff was dismissed and damaged as a proximate result of Lewis’ filing of false charges. Plaintiff would be entitled to recover if proof at trial established that plaintiff’s expectation of continued at-will employment with the City was reasonable; that Lewis, intentionally and without justification, interfered with plaintiff’s reasonable expectations of continued at-will employment; and that plaintiff was damaged by such interference. (See City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 300 N.E.2d 331; see also Idlehour Development Co. v. City of St. Charles (1980), 88 Ill. App. 3d 47, 409 N.E.2d 544 (municipal officers may be sued for tortious interference with contractual relations where officer intentionally and without justification misuses powers of office).) Accordingly, the trial court erred in granting, as to count III of plaintiff’s first amended complaint, Lewis’ motion for dismissal pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615) for failure to state a cause of action.

Last, we address whether count IV of plaintiff’s first amended complaint alleged sufficient facts to state a cause of action against Lewis as mayor of the City, and individually for a violation of plaintiff’s civil rights under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)). It is well established that the loss of a position of employment which is held at will, and, therefore, not held as a matter of right, does not deprive a person of liberty or property in violation of section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)). (Cashman v. Shinn (1982), 109 Ill. App. 3d 1112, 441 N.E.2d 940; Salkin v. Washington (N.D. Ill. 1986), 628 F. Supp 138.) However, where a governmental employee is discharged or disciplined for exercising his rights guaranteed under the first amendment, such actions by the governmental employer infringe upon constitutionally protected liberty interests and may be in violation of section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)). (See; e.g., Rankin v. McPherson (1987), 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891.) Additionally, a valid claim is stated under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)), where a governmental employee alleges he was discharged solely for his political affiliation or associations. (Salkin v. Washington (N.D. Ill. 1986), 628 F. Supp. 138.) In the instant case, plaintiff has pled sufficient facts, when taken as true along with all reasonable inferences therefrom, to state a cause of action under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)). While plaintiff’s loss of his at-will employment alone is insufficient under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)), plaintiff’s allegations that Lewis, as mayor, caused him to be dismissed in retaliation for refusing not to speak to the city council and for refusing to aid in collection of post-election campaign contributions are sufficient to state a cause of action under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)). (Rankin v. McPherson (1987), 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891; Salkin v. Washington (N.D. Ill. 1986), 628 F. Supp. 138.) Further, a municipal officer may be sued individually for violating a person’s rights under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)). (Salkin v. Washington (N.D. Ill. 1986), 628 F. Supp. 138.) The trial court erred in dismissing count IV of plaintiff’s first amended complaint. To the extent Lewis extensively argues his acts were authorized, or within the scope of his duties, these are affirmative matters not properly raised under section 2 — 615 of the Code (Ill. Rev. Stat. 1987, eh. 110, par. 2 — 615). (See Ill. Rev. Stat. 1987, ch. 110, par. 2— 619.) Additionally, Lewis’ arguments raise numerous questions of fact not properly before the trial court when it entered its order nor properly before this court at the current stage of these proceedings. By our opinion, we express no views as to the merit of plaintiff’s claims.

The decision of the circuit court dismissing with prejudice counts I, III, IV and VI of plaintiff’s first amended complaint is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DUNN, J., concurs.

JUSTICE INGLIS,

concurring in part and dissenting in part:

I concur in the majority’s opinion as to counts III, IV and VI. I respectfully dissent from that portion of the opinion which reversed the trial court’s dismissal with prejudice of count I. The well-reasoned decision of Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159, should be followed, and we should refuse to expand the tort of retaliatory discharge in the manner now adopted by the majority. Our supreme court’s recent admonition in Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354, against expanding the retaliatory discharge tort should not be ignored. In Barr, the court stated that “this court has not, by its Palmateer and Kelsay decisions, ‘rejected a narrow interpretation of the retaliatory discharge tort’ and does not ‘strongly support’ the expansion of the tort.” (Barr, 106 Ill. 2d at 525.) Furthermore, the court in Morton refused to expand the tort to include supervisors of an employee, holding that the only proper party defendant is the employee’s actual employer. Morton, 145 Ill. App. 3d at 421-22.

In the case at bar, the majority acts to expand the retaliatory discharge cause of action by allowing a new class of party defendants (supervisors, co-employees and agents of employers) to be added and endeavors to distinguish Barr by asserting that the supreme court was considering “clearly mandated public policy” in defining the scope of the limited tort of retaliatory discharge. The supreme court’s hesitation to expand the definition of “clearly mandated public policy” certainly was not an invitation to add a whole new class of party defendants. A disagreement over what is or is not a “clearly mandated public policy” is certainly not the major expansion of the tort that the majority has adopted. To hold with the majority is to promote the expansion of a cause of action for a tort unknown at common law. Such a broad expansion, for whatever salutary purpose, is more appropriate for the legislature. Giving every discharged person a potential cause of action against a supervisor, co-employee or agent of their employer should not be undertaken in the manner presented. I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE HOWERTON,

license: Public Domain

text:
    WILLIAM E. GRIBBLE, Plaintiff-Appellee and Cross-Appellant, v. W.F. “BILL” WILLEFORD, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5—88—0772
    Opinion filed October 3, 1989.
    Rehearing denied November 3, 1989.

      HOWERTON, J., dissenting.

      H. Cari Runge, Jr., of Runge & Gumbel, P.C., of Collinsville, for appellant.
    Douglas Marti, of Greenville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On November 4, 1986, in the election for sheriff of Bond County, the official canvass disclosed that William Gribble, the plaintiff, and Bill Willeford, the defendant, each received 2,912 votes from the voters of that county. In compliance with section 23 — 27 of the Election Code (the Code) (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 27), a coin toss was held on November 10, 1986, which was won by the incumbent candidate Willeford. On November 17, 1986, pursuant to section 23 — 20 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 20), Gribble filed a petition to contest the election, filed an amended petition on December 10, 1986, and filed a second amended petition on February 3, 1987. Gribble attached two affidavits to his second amended petition, one from two election judges asserting that an absentee ballot from Alvina Foehner — a registered voter residing at the Hillview Manor Nursing Home in Central Precinct Number 5 — was mistakenly rejected because at the time of the election the judges believed that Foehner was dead, and the other from Foehner asserting that she was in fact alive at the time of the election and had voted for Gribble for sheriff. On February 11, 1987, Willeford filed a motion to dismiss the second amended petition, which the court denied, and on February 20, 1987, he filed his answer and affirmative defenses. After hearing extensive testimony and examining the evidence, the trial court, on June 8, 1988, entered a judgment in favor of Gribble and filed an “explanation” of this judgment on June 30, 1988. On July 7, 1988, Willeford filed a post-trial motion, and the trial court denied this motion on November 15, 1988. Willeford appeals. We affirm.

Willeford contends on this appeal that: (1) the trial court erred in denying his motion to dismiss Gribble’s second amended petition because the trial court did not have jurisdiction to hear that petition; (2) the trial court erred in considering the ballots of voters who were not challenged by poll watchers or election judges at the polls on election day; and (3) the trial court erred in utilizing the voters’ party affiliations in prior elections in determining which candidate should gain or lose a vote.

Willeford initially contends that the trial court erred when it denied his motion to dismiss Gribble’s second amended petition. In his motion to dismiss, Willeford attacked Gribble’s second amended petition — in particular that petition’s reliance on the alleged erroneous failure to count Alvina Foehner’s vote — by asserting, inter alia, that the election judges properly rejected, albeit for the wrong reasons, Foehner’s absentee ballot. In support of this assertion, Willeford attached to his motion Foehner’s discovery deposition which allegedly revealed that Foehner did not comply with the requisite statutory procedural formalities when she cast her absentee ballot.

Willeford’s reliance on Foehner’s discovery deposition in his motion to dismiss was misplaced. In his motion, Willeford failed to specify under which statutory section he sought to dismiss Gribble’s petition, although in his brief he asserts that the motion was brought under sections 2 — 619(a)(1) and 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 619(a)(1), (a)(9)). A section 2 — 619(a)(1) motion to dismiss alleges that the court does not have jurisdiction over the subject matter of the action. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(a)(1).) Certainly the trial court in the instant case would have subject-matter jurisdiction so long as Gribble’s petition met the requisite statutory requirements. Section 2 — 619(a)(9) provides that the “[defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. *** That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(a)(9).) Other affirmative matter in the context of a section 2 — 619(a)(9) motion for dismissal “is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.” (Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 757, 502 N.E.2d 1096, 1098.) Well-pleaded facts are taken as true for purposes of a motion to dismiss under section 2 — 619(a)(9). Longust, 151 Ill. App. 3d at 757, 502 N.E.2d at 1098.

In this instance, as in Longust, the party moving to dismiss the complaint failed to assert affirmative matter which avoided the legal effect of or defeated the claim in the plaintiff’s petition. Willeford attempted to attack the basis of Gribble’s petition by asserting, essentially, that even if the election judges erroneously rejected Foehner’s absentee ballot, her ballot should have been rejected anyway since Foehner did not comply with all of the requisite formalities of casting an absentee ballot. Willeford thus offered evidence which tended to negate an ultimate factual allegation contained in Gribble’s petition; i.e., that Foehner’s vote was “erroneously rejected.” Such an assertion, which implies that no genuine issue of material fact exists, is appropriate in a motion for summary judgment (see Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c)), but has no place in an involuntary motion to dismiss under section 2 — 619(a)(9) of the Code of Civil Procedure. See People ex rel. Skinner v. FGM, Inc. (1988), 166 Ill. App. 3d 802, 807, 520 N.E.2d 1024, 1028 (“a motion to dismiss should not be employed as a substitute for [a motion for] summary judgment”).

Willeford’s motion also alleged that Cribble’s petition failed to state a cause of action, which would indicate an intention to move to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.) In Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 585-86, 325 N.E.2d 799, 808, the court noted that all well-pleaded facts in a section 45 (the predecessor of section 2 — 615) motion are taken as true, and that the motion must attack the legal sufficiency of the complaint, not the factual sufficiency. As previously noted, Willeford’s motion to dismiss attacked several factual allegations in Cribble’s petition, which is clearly inappropriate in a section 2 — 615 motion to dismiss. However, we still must determine whether Cribble’s second amended petition complied with the legal requirements of a petition to contest an election. Repeated decisions have firmly established that the purpose of an election contest is to ascertain how many votes were cast for or against a candidate, or for or against a measure, and thereby ascertain and effectuate the will of the people. (Wagler v. Stoecker (1946), 393 Ill. 560, 562, 66 N.E.2d 408.) In Wood v. Hartman (1942), 381 Ill. 474, 480, 45 N.E.2d 864, 867, the Illinois Supreme Court noted that “[t]he right to contest the election of an individual to office is not a common law right, but exists only by statute.” Section 23 — 20 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 20) prescribes the rules which govern a petition to contest an election to an office other than those statewide offices listed in section 23 — 19 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 19). Section 23 — 20 specifies that the petition to contest an election “shall allege that the petitioner voted at the election, and that he believes that a mistake or fraud has been committed in specified precincts in the counting or return of the votes for the office or proposition involved or that there was some other specified irregularity in the conduct of the election in such precincts.” Ill. Rev. Stat. 1985, ch. 46, par. 23 — 20.

In addition to those requirements, the petition must make further allegations. Prior to the enactment of section 23 — 23.2 of the Code (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 23.2), effective January 1, 1986, a petition to contest an election was required to show a positive and clear assertion, allegation or claim that such a recount would change the results of the election. {In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463, 478-79, 444 N.E.2d 170, 177 (hereinafter In re Contest).) In re Contest involved a challenge to the results of the November 2, 1982, election for Governor and Lieutenant Governor for the State of Illinois. Adlai Stevenson, plaintiff, challenged the canvass of the election and filed a petition with the clerk of the Illinois Supreme Court to contest the election pursuant to section 23 — 1.1 of the Code. (Ill. Rev. Stat. 1981, ch. 46, par. 23 — 1.1.) James Thompson and George Ryan, defendants, filed a motion to strike the petition, which the supreme court granted. The supreme court held that the allegations in Stevenson’s petition lacked a positive and clear assertion that the election contest would change the result of the election, failed to contain allegations of fact sufficient to support such a change, and were thus legally insufficient to support the election contest. In re Contest, 93 Ill. 2d at 491, 444 N.E.2d at 183.

The supreme court relied on its prior decision in Zahray v. Emricson (1962), 25 Ill. 2d 121, 182 N.E.2d 756, as authority for its holding in In re Contest. The Zahray court reasoned that in the absence of an allegation that the results of the election were changed by the alleged irregularities, or facts showing such a result, the petition assumes the proportions of an exploratory process to which neither the courts nor election officials should be subjected. (Zahray, 25 Ill. 2d at 125, 182 N.E.2d at 758.) The Zahray court warned that the election contest

“cannot be employed to allow a party, on mere suspicion, to have the ballots opened and subjected to scrutiny to find evidence upon which to make a tangible charge. [Citations.] And while the pleadings in contest proceedings are not required to comply with the strict technical rules applicable in civil actions, there should be such strictness as will prevent the setting aside of the acts of sworn officials without adequate and well defined cause. [Citations.] Stated otherwise, there should be no reason for a recount of the votes unless there is a positive and clear assertion, allegation or claim that such a recount will change the result of the election.” Zahray, 25 Ill. 2d at 124, 182 N.E.2d at 758.

Subsequent to In re Contest, decided by the supreme court in January of 1983, the legislature enacted section 23 — 23.2 of the Code, effective January 1, 1986. (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 23.2.) Section 23 — 23.2 of the Code now provides that “[a] court hearing an election contest pursuant to this Article or any other provision of the law shall grant a petition for a recount properly filed where, based on the facts alleged in such petition, there appears a reasonable likelihood, the recount will change the results of the election.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 46, par. 23 — 23.2.) Since section 23 — 23.2 became effective prior to this election contest, the legislature’s prescription in section 23 — 23.2 of the Code — “a reasonable likelihood the recount will change the results of the election” — is the standard against which we must compare Cribble's petition to determine whether that petition was legally sufficient to contest the Bond County election for sheriff.

We hold, for a number of reasons, that Cribble’s petition was sufficient to meet the requirements of section 23 — 23.2 of the Code. In an election which results in a tie, a change in a single vote will determine the winner of the election. In the instant case, Cribble’s second amended petition alleged that the ballot from Alvina Foehner was “erroneously rejected,” a conclusion of material fact which is supported by Cribble’s allegations of specific fact that “[a] mistake was made by the election authority and the election judges of Central Precinct Number 5, Bond County, Illinois, in that said judges received an absentee ballot from Alvina Foehner which was erroneously rejected, not deposited in the box and returned to the County Clerk as rejected and not counted because the election judges thought that Alvina Foehner was deceased when in fact she was alive.” Gribble also contended in his petition that three voters — Velma Ledbetter, Luther Ledbetter, and Lee Roy McCray, all three of whom cast ballots for Willeford’s party in earlier primary contests — had voted illegally in the November 4, 1986, election. As subsequently noted in this opinion, these three ballots, if indeed cast illegally, must be deducted from Willeford’s vote total. These allegations, taken as true for purposes of determining the legal sufficiency of the petition, would have given Gribble one additional vote and would have deducted three votes from Willeford’s total, and this was enough for Gribble to win the election. Since Gribble made positive assertions that a recount which included Foehner’s vote and excluded the illegal votes cast for Willeford would change the result of the election, and this likelihood was reasonable since the canvass of the election resulted in a tie, the allegations in the petition were legally sufficient under section 23 — 23.2 of the Code. Ill. Rev. Stat. 1985, ch. 46, par. 23 — 23.2.

Willeford’s next contention before this court is that the lower court erred in considering the ballots of voters who were not challenged by poll watchers or election judges at the polls on election day.

Section 17 — 23(2) of the Code provides that each candidate is entitled to appoint two poll watchers per precinct. (Ill. Rev. Stat. 1985, ch. 46, par. 17 — 23(2).) These poll watchers are permitted to observe all proceedings relating to the conduct of the election and may challenge for cause the voting qualifications of a person offering to vote and may call to the attention of the judges of election any incorrect procedure or apparent violations of the Code. Ill. Rev. Stat. 1985, ch. 46, par. 17-23.

Our recent decision in Jordan v. Officer (1988), 170 Ill. App. 3d 776, 783, 525 N.E.2d 1067, is dispositive on the issue of whether the party challenging the eligibility of voters waives the challenge if he fails to utilize the procedures provided by statute. In rejecting this contention, the Jordan court stated that

“[defendants have not persuaded us that waiver is applicable in this context. They cite no cases that so hold.
The Tuthill case [Tuthill v. Rendleman (1944), 387 Ill. 321, 56 N.E.2d 375], cited by plaintiffs, holds to the contrary. In Tuthill, the supreme court stated that voting without challenge raises a presumption of a legally cast ballot. That presumption can be overcome by competent evidence. The court in Tuthill applied the presumption in determining that a voter (Benjamin Morris) and his wife were eligible to vote in the election at issue. The court stated, ‘The proof did not overcome the presumption of the validity of their votes cast unchallenged.’ (Tuthill, 387 Ill. at 340, 56 N.E.2d at 385.) Obviously, the supreme court in Tuthill did not consider waiver an impediment to consideration of an unchallenged voter’s eligibility in an election contest.” Jordan, 170 Ill. App. 3d at 783, 525 N.E.2d at 1071.

We are unable to distinguish the factual situation in the instant case in any meaningful way from that which led to our holding in Jordan, and we decline Willeford’s attorney’s invitation in oral argument to reconsider the rule as announced in that case. We hence conclude that Gribble did not waive his right to challenge the eligibility of voters by not utilizing the procedures provided by statute.

Willeford finally contends that the trial court erred by examining the voters’ party affiliations in prior elections in determining which candidate should gain or lose illegally cast votes. Following this court’s holding in Leach v. Johnson (1974), 20 Ill. App. 3d 713, 313 N.E.2d 636, the trial court reapportioned those votes according to evidence of the voter’s party affiliation.

In Leach, this court examined various alternatives for determining from which candidate to deduct illegally cast votes. The Leach court considered the argument that the rule, previously established in many Illinois cases, that illegal votes must be deducted based upon party affiliation is outmoded due to changes in voter attitudes and the willingness of voters to cross over and vote split tickets. The court noted that while it may be demonstrated that there is less allegiance to party lines and more cross-over voting than in the past, in the absence of better evidence, party affiliation is still the best method for dividing the votes to be eliminated. Leach, 20 Ill. App. 3d at 719-20, 313 N.E.2d at 642.

The Leach court observed that “[a]sking illegal voters to disclose how they voted is hardly the answer — even if it could be done — since many of those who vote illegally would have no compunction about testifying that they voted for the opposite party.” (Leach, 20 Ill. App. 3d at 720, 313 N.E.2d at 642.) Subsequent to the decision in Leach, the legislature enacted section 8 — 910 of the Code of Civil Procedure, effective January 1, 1986, which provides that no person shall be compelled to disclose, in any proceeding conducted by a court, the name of any candidate for whose nomination, election or retention in office the person voted. (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 910.) Thus, compelling illegal voters to disclose how they voted is no longer possible under the law. The other alternative to eliminating the illegally cast votes, throwing out all the votes in a voting precinct, should be avoided if at all possible since it disfranchises legal voters and is thus not fair either to the legal voters or to the candidates themselves. Leach, 20 Ill. App. 3d at 720, 313 N.E.2d at 642.

“In election contests *** the ballots are before the court to be counted, and the sole question to arise and to be considered is as to whether or not the ballots are legal or illegal.” (Wood v. Hartman (1942), 381 Ill. 474, 481, 45 N.E.2d 864, 867.) The trial court deducted the votes of several voters who cast ballots in the wrong precinct from the candidates in the manner as directed by the holding of Leach. We decline Willeford’s counsel’s invitation to reverse the holding of Leach, and we hold that Leach, which is squarely on point, is dispositive to the final issue on this appeal.

For the foregoing reasons, we affirm the judgment of the circuit court of Bond County.

Affirmed.

LEWIS, J., concurs.

JUSTICE HOWERTON,

dissenting:

I dissent because I believe that the circuit court should have granted Willeford’s motion to*dismiss petitioner’s second amended petition.

That petition alleged: Alvina Foehner’s absentee vote was not counted; it was not counted because the election judges thought she was dead; she was alive; and she voted for petitioner, making petitioner the winner by one vote.

The motion to dismiss agreed with the factual allegations, but disagreed with the conclusion and said that Foehner’s vote should not have been counted in any event because she failed to comply "with the statutory requirements for her vote to count. To support that allegation, Willeford attached Foehner’s deposition.

Petitioner neither denied nor countered the motion and affidavit.

The Historical and Practice Notes to section 2 — 619 of the Code of Civil Procedure say that “[t]he purpose of this section is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact ***. This amounts to a summary judgment procedure ***.” Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical and Practice Notes, at 662 (Smith-Hurd 1983).

Here, the motion to dismiss did not contest the essential allegations of the complaint; rather, it admitted the petition, but in effect said, “So what? Her vote could not have been counted anyway because she voted improperly.”

The factual allegations of the motion to dismiss were never controverted. Therefore, the circuit court should have taken them to be true and dismissed the petition.

We should be reluctant to assert judicial power over elections. There must be some allegation justifying judicial assertion of power over the election process before courts should intervene and proceed to recount the ballots. Here, the uncontroverted allegations showed that the Foehner vote should not have been counted irrespective of petitioner’s allegations. That left no justification for continued judicial assertion of power over this election.

Recognizing that the majority is composed of judges who possess great skill and knowledge, nevertheless I dissent, perhaps with temerity, but most certainly with respect.


author: JUSTICE LEWIS

text:
    DORIS HOGGE, Plaintiff-Appellant, v. CHAMPION LABORATORIES, INC., Defendant-Appellee.
    Fifth District
    No. 5—88—0354
    Opinion filed October 13, 1989.
    Sharon A. Knapp, of Carr, Korein, Schlichter, Kunin & Montroy, of East St. Louis, for appellant.

      David K. Frankland, of Albion, and Thomas O. Magan and Jeffrey W. Ahlers, both of Kahn, Dees, Donovan & Kahn, of Evansville, Indiana, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Doris Hogge, appeals from a judgment of the trial court entered in favor of the defendant, Champion Laboratories, Inc. (hereafter referred to as Champion), following a bench trial. She presents for review the following four issues, which we quote:

“1. Whether an employee manual which imposes obligations on both the employer and employee binds the employer and its provisions?
2. Whether the employment application is incorporated into the contract between the employer and employee?
3. Whether a contract between the employer and employee may extend to and govern behavior affecting the employee and the State of Illinois?
4. Whether the employer, with timely notice of a breach, waives its right to enforce the contract by waiting more than three (3) years to exercise that right.”

Many of the facts of this cause are undisputed, among them the following. In December of 1982 or in January of 1983, while the plaintiff was employed by the defendant, she was laid off for a brief period for defendant’s taking of inventory. During that time she applied for and received unemployment benefits paid to her by the State of Illinois. When she returned to work for the defendant she continued to apply for and to receive unemployment compensation, while working for the defendant full time, until August of 1983, when the payments were discontinued by the State of Illinois. Thereafter, action was taken by the State of Illinois against her to recover the amount of unemployment compensation paid her while she was working for the defendant. On January 13, 1986, the State filed a complaint against her in the circuit court of Wayne County seeking payment of $4,754, the amount of the overpayment she had received. The defendant herein was not a party to that cause of action. A local newspaper carried an account of this action by the State against plaintiff, which appeared early in June of 1986. One or more clippings of the news story appeared on one or more bulletin boards at the defendant’s plant where plaintiff worked. Thereafter the plaintiff was called to the office of defendant’s director of personnel concerning the information contained in the newspaper article, was advised that she would be suspended for five days, and was terminated from employment on June 13, 1986.

In her complaint she alleged, inter alia, that on May 16, 1983, August 15, 1983, and November 15, 1983, the defendant had received notices indicating times during which she was paid unemployment benefits while she was not unemployed. She alleged further that on June 13, 1986, she was discharged from the defendant’s employ and that the reason given was that defendant had recently learned that the plaintiff had collected unemployment benefits from the State of Illinois chargeable to the defendant from January 15, 1983, through August 27, 1983. The defendant admitted in its response to the plaintiff’s request for admission that on those three dates in 1983 it had received a notice “indicating periods in which plaintiff was paid benefits.”

At trial the plaintiff called as a witness Dudley Willis, the defendant’s director of human resources, who described the plaintiff as a “factory employee” assembling filters and stated that the purpose of the defendant’s Employee’s Manual (hereafter referred to as the Manual), which was admitted into evidence, was to provide to employees an “overview” of those matters presented to them during orientation. On page 23 of the Manual the following statements appear:

“The following enumerated reasons for disciplinary action up to and including discharge is [sic] by way of illustration and is [sic] not to be deemed to exclude management’s right to discharge employees for any other reason.
MAJOR OFFENSES which due to their severe nature result in immediate suspension with possible discharge:
* * *
7. Willful falsification or misrepresentation of employment, pay, production or other Company records.”

Nine other items are listed under “MAJOR OFFENSES,” including theft of property of the company or fellow employees; the use or possession of intoxicants or narcotics on company property; defacing or destroying company property or equipment; immoral or indecent behavior, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature; fighting or engaging in physical violence on company property, intimidating or coercing other employees or creating discord; leaving the plant without permission except at authorized times; gross negligence in performing assigned duties; insubordination; and causing an unsafe condition or endangering the safety of another employee. Asked the purpose of the list of 10 items under “MAJOR OFFENSES,” the witness answered, “To illustrate situations to employees where suspension and possible discharge can occur for various misconducts.” Asked why item seven was included in the Manual, the witness responded, “[L]ike the other paragraphs in — in the manual, and under the offenses, they were written as one illustrations [sic] and purposely made broad because it would have been difficult then as it would be now to delineate, you know, a long laundry list of all the things that would come to mind. So, it was — it was intended to be broad to give employee, you know, some notion as to, you know, the — the type of offense that we’re talking about.” The Manual concludes with the following statements:

“This handbook serves only to outline Champion’s major employment policies. It is not intended, and shall not be considered all inclusive or construed as an employment contract. This handbook reflects the company policy at the time of publication. The Company, of course, may improve or change these policies and reserves the right to do so at any time.”

The witness read from a letter, admitted into evidence, sent to the plaintiff by certified mail on June 10, 1986, which states in part as follows:

“As a result of information recently brought to our attention, we met with you on June 6, 1986, for the purpose of allowing you to explain, justify or refute out data indicating that you collected State Unemployment Benefits chargeable to Champion during the period of January 15, 1983[,] through August 27, 1983. This was despite the fact that during this same period you were actively employed and collecting wages from Champion. Your failure and/or inability to explain, refute or otherwise justify this matter resulted in the action we have taken.
As you were told, to again afford you the opportunity to appeal our decision for subsequent termination to Mr. C. Casaleggi, Senior Vice President of Operations, you were placed on a five working day suspension, which covers the work week of June 9 through June 13. Pending your appeal and reversal by Mr. Casaleggi, your employment and all benefits will terminate effective June 13, 1986. As you were told, this action is a consequence of your direct violation of Item No. 7 under the Major Offenses on page 23 of the Employee Handbook, which states:
‘MAJOR OFFENSES which due to their severe nature result in immediate suspension with possible discharge:
7. Wilful falsification or misrepresentation of employment, pay, production or other Company records.’ ”

The letter was signed by Mahlon E. Hallam as defendant’s personnel manager.

The witness testified concerning a form submitted by defendant to the Division of Unemployment Insurance of the Bureau of Employment Security of the Illinois Department of Labor, dated August 26, 1983, and admitted into evidence as plaintiff’s exhibit D. The form, which is labeled “Employer Notice of Possible Ineligibility,” states the name of the worker as “Doris E. Hogge.” It was submitted in response to a notice received by the defendant from the State of Illinois indicating that Doris Hogge had applied for unemployment compensation. The defendant’s personnel manager, Mahlon Hallam, had signed the form on August 26, 1983, in Albion, Illinois, and had returned it to the State of Illinois with the following notation: “Doris E. Hogge is a full time employee. Her employment has been uninterupted [sic]. Therefore, we are puzzled as to why she is filing.” The witness stated that defendant has two offices in Illinois, the one in Albion and one in West Salem. Defendant’s accounting department and main payroll department are located at the corporate office in West Salem, which receives, in the words of the witness, “the record of who is receiving the [unemployment] benefits.” He testified that the office in Albion receives “the individual initial claims” for “those people employed out of Albion,” as was the plaintiff. However, information as to whether the employee receives benefits “does not come back to Albion” but goes to the West Salem office. With regard to this matter the following questions were asked on cross-examination and these answers were given:

“Q. But the Albion office would not have received any information about whether Doris Hogge was receiving benefits at that time or not, is that correct?
A. That is correct. What the Albion office received is their — I’m looking for the number, I think it’s a [Form] BIS 31, and that — that went to the employing, if you will, division, the Albion plant. Most other state forms coming in would go to our corporate offices in West Salem.
Q. So, the notices of those people receiving benefits goes to your corporate office at West Salem?
A. That’s correct.”

He testified that “the Albion personnel department would receive certain documents, such as, I think one that indicated [s-ic] here earlier^] the BIS 31, or whatever it is.” Asked, “Now, when was the first time the company [defendant] put together the fact that Doris Hogge had received benefits at the same — in 1983 at the same time she was receiving — or working full time for them?” the witness responded:

“First time it all came together was when we seen [sic] the newspaper article that was posted on the bulletin boards, and then we did some checking and confirmed what was happening. Prior to that, we had no knowledge in the Albion plant. The only thing that they had received was the — the one notice in which Mr. Hallam subsequently responded to, and received— and indicated earlier, we didn’t receive anything after that from the State.”

He testified that the article appeared in the newspaper on about June 2, 1986, and appeared “on the walls of the company” on about June 6, 1986. The plaintiff made no appeal to Mr. Casaleggi, as described in the letter, and was terminated from employment with the defendant on June 13, 1986.

The plaintiff testified that she had been given a manual essentially like the one in evidence when she began to work for the defendant in 1974. Asked, “What was important to you about coming to work for Champion?” she answered, “Well, the fact that they hand out a handbook is more than some companies do, and I felt like it was the same thing as a contract.” Asked further, “And was that the reason you took the job, because of the benefits and the employee manual that was given to you on that day?” she answered, “Yes.” She testified that on June 6, 1986, “[T]hey confronted me over the newspaper,” referring, to Mahlon Hallam, Dudley Willis, and Steve Storkman, the plant supervisor. Asked, “Did you contest the fact that you had received unemployment benefits in 1983?” she responded, “No, not really.” She testified that she had not appealed to Mr. Casaleggi “ ‘[c]ause I didn’t feel like I had to *** [b]ecause they knew it all along.” Asked, “How do you know that?” she answered, “Because it was in my papers.”

She testified on cross-examination that she thought when she came to work for the company that she was hired for “as long as I done [sic] my job.” An application for employment admitted into evidence, signed by the plaintiff and dated January 28, 1974, stated immediately above her signature,

“I authorize investigation of all statements contained in this application. I understand that misrepresentation or omission of facts called for is cause for dismissal. Further, I understand and agree that my employment is for no definite period and may, regardless of the date of payment of my wages and salary, be terminated at any time without any previous notice.”

The plaintiff was employed briefly by the defendant for about three months in 1974 and left voluntarily to take another job. Thereafter, on February 23, 1976, she applied for employment with defendant, which application is signed by her and admitted into evidence. The same statement as that quoted above from the application of January 28, 1974, appears immediately above her signature. She began employment again with the defendant in August of 1976 and remained in the defendant’s employ until termination on June 13, 1986. She received a copy of the Manual both times she began employment with the defendant. The newspaper article was, she said, the first public notice made of her having received unemployment benefits while employed by the defendant.

The defendant called as a witness Mahlon Hallam, who testified that when he received notice from the District Division of Unemployment concerning the plaintiff’s application for unemployment benefits he was surprised because “Doris was an active, fully employed employee at the time.” He said that “we responded over the phone to the Mt. Vernon — Mt. Vernon office [of the Division of Unemployment Insurance] and then followed up with [plaintiff’s exhibit D].” He heard nothing further concerning the matter from the State of Illinois and was never notified of any hearing concerning the matter. It would have been his responsibility, he said, to handle such matters. He had received no notices prior to August 26, 1983, and it was his job at that time to respond to all such notices. He testified that he first learned the plaintiff had been receiving unemployment benefits through the newspaper article that appeared early in June of 1986, was placed on the bulletin boards of the plant, and was then provided to the personnel office. As a consequence of receiving this information, the witness immediately requested that the defendant’s accounting office check the statements from the State of Illinois to see whether unemployment benefits had been paid to plaintiff and check her wages during that time to verify that she had, in fact, been receiving wages at the same time. He received a report indicating that she had collected unemployment and wages during the same period and thereupon took action concerning the matter. He testified that “[a]ll employees were employed for no definite period of time and were considered to be at will employees” and that to his knowledge there was never any specific written employment agreement for any employee.

In a six-page memorandum of decision, the trial court entered judgment against the plaintiff. The court found that the plaintiff was an employee at will, stating further:

“This would give the defendant the right to terminate the plaintiff’s employment without cause. The plaintiff urges, however, that the employer’s right to terminate is qualified by the provisions of the employee’s manual. Assuming for the purposes of this case that plaintiff’s argument is correct, nevertheless the court finds that the defendant has not violated the provisions of the employee’s manual.”

With regard to the plaintiff’s contention that she did not falsify any company records and that her conduct does not, therefore, fall within the. conduct described in paragraph seven under “MAJOR OFFENSES,” the court concluded that, even if the statement is literally correct, it nevertheless constitutes a misreading of paragraph seven and that the plaintiff’s admitted conduct is “either proscribed by the manual or[,] at the very least, is the same type of conduct which the manual cites as grounds for termination.” The court noted that the Manual “clearly indicates that the causes of termination are only illustrations.” Concerning the plaintiff’s contention that if there was cause given for termination in 1983, the defendant’s failure to take action for approximately three years constitutes laches or a waiver of the cause and the right to terminate, the court stated that the plaintiff had not shown a preponderance of evidence to indicate that the defendant did, in fact, know that unemployment benefits were being paid to the plaintiff. The court expressly found that the plaintiff was terminated for cause and that, if the defendant was obligated to comply with the terms and conditions of the Manual, it had not failed to do so and had not violated those provisions.

Upon plaintiff’s motion for reconsideration, the trial court noted that no new or different information had been furnished and that the plaintiff stressed the erroneous interpretation of the facts developed at trial. The court confirmed its prior memorandum of decision and denied the plaintiff’s motion to reconsider. The plaintiff’s appeal followed.

With respect to the first three issues plaintiff presents for review, the essential question to be determined is whether the Manual constitutes a contract of employment between plaintiff and defendant. Although plaintiff does not contend that her “original agreement” to work for defendant specified any duration, she maintains that the Manual distributed when she began to work for defendant governs the employment relationship between the parties. She argues that, in spite of defendant’s denouncing of the provisions of the Manual as not binding upon it, defendant cited a provision in the Manual to support its termination of her; she urges that defendant’s “selective application of the Manual provisions and its convenient interpretation of the binding nature of the manual should not be condoned.” She seems, in sum, to take the position that she was not an employee at will, that the Manual should be interpreted as a contract, and that she could be terminated for any of the reasons enumerated therein but for no other.

The defendant takes the position that the plaintiff was employed for an indefinite term and was, therefore, an employee at will, dis-chargeable at any time with or without cause. Defendant contends that the Manual was not a contract of employment and that, assuming arguendo that it was, the trial court ruled properly that defendant did not violate its provisions.

Under Illinois law a written or oral employment contract that does not specify the term of employment creates an employment relationship that endures at the will of the parties and is terminable by either the employer or the employee at any time without cause, subject only to independent contractual or statutory provisions. (De Fosse v. Cherry Electrical Products Corp. (1987), 156 Ill. App. 3d 1030, 510 N.E.2d 141.) The rule in Illinois is that an employment relationship at will can be terminated for “ ‘a good reason, a bad reason, or no reason at all.’ ” (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 669-70, 384 N.E.2d 91, 95, quoting Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, 747.) Where an employee is hired for an unspecified period of time, a presumption arises that the employee’s status is that of an employee at will; that presumption, however, can be rebutted by a showing that the parties contracted otherwise. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314; see Land v. Michael Reese Hospital & Medical Center (1987), 153 Ill. App. 3d 465, 505 N.E.2d 1261.) In Duldulao our supreme court held that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contractual formation are present.

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.)

All three conditions set forth in Duldulao must be present to create enforceable contract rights. (Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281.) In the instant case the first condition, or requirement, is not satisfied because the Manual does not contain a promise clear enough that an employee would reasonably believe that an offer has been made.

In Duldulao the court noted that the handbook there contained no disclaimers to negate the promises made and that, in fact, the introduction to the handbook stated just the opposite, that is, that the policies in the handbook “ ‘are designed to clarify your rights and duties as employees.’ ” (Emphasis added.) (Duldulao, 115 Ill. 2d at 491, 505 N.E.2d at 319.) By comparison, the Manual here concludes with an express disclaimer that it “is not intended, and shall not be considered all inclusive or construed as an employment contract.” In Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519, the court referred to the observation of the court in Duldulao that the handbook in question contained no disclaimers to negate the promises made. The court in Moore concluded that the employee could not reasonably have believed an offer had been made because the incentive plan in question stated, “ ‘The Plan is a statement of management’s intent and is not a contract or assurance of compensation’ ” (155 Ill. App. 3d at 784, 508 N.E.2d at 521), thereby making it clear that the defendant was promising nothing in the incentive plan. As a result, the plan created no enforceable contractual rights. Similarly, the express disclaimer in the Manual stating that it is not to be construed as an employment contract could not reasonably give rise to the' belief that an offer had, in fact, been made.

Further, the Manual states not only that it is not to be considered “all inclusive” but also that the 10 reasons listed under “MAJOR OFFENSES” “for disciplinary action up to and including discharge [are] by way of illustration and [are] not to be deemed to exclude management’s right to discharge employees for any other reason.” Again, such a statement could not reasonably suggest that an employee could be discharged only for engaging in conduct described and proscribed by one of the 10 items enumerated therein. In Martin v. Capital Cities Media, Inc. (1986), 354 Pa. Super. 199, 511 A.2d 830, the handbook in question contained a section entitled “Standards of Conduct,” which set forth a list of actions that, if engaged in by an employee, would lead to disciplinary action. Like the Manual here, the handbook there stated that the list was illustrative and did not include other just causes for disciplinary action. The court’s observations in Martin apply equally to the case at bar:

“The handbook in the instant case does not evidence an intent to convert the employees who received it into employees who could only be discharged for an objective ‘just cause.’ The list of actions that call for disciplinary action set forth in the handbook, supra, are nothing more than common sense enumerations of actions that any reasonable at-will employee would understand to generally call for disciplinary action. The handbook is an aspirational statement by the employer listing actions that generally will not be tolerated; it serves an information function. Moreover, the handbook states very specifically that the reasons set forth are illustrative only and that the employer has the unilateral right to alter the handbook when he sees fit.” 354 Pa. Super, at 214, 511 A.2d at 838.

For these reasons we conclude that the Manual created no enforceable contractual rights. Because all three conditions, or requirements, set forth in Duldulao must be present to create enforceable contract rights and the first of them is absent here, we need not consider the other two. The plaintiff here failed to rebut the presumption that her status was that of an employee at will by showing that she and the defendant had contracted otherwise. Thus, the trial court properly found her to be an employee at will. As such she was subject to discharge at any time with or without cause, at the option of the employer.

We turn to the final issue plaintiff raises, whether the defendant waived its right “to enforce the contract” by waiting to do so more than three years after receiving notice of a breach. She argues that the “right to retaliate” was waived because the defendant received notice of the acts complained of in May, August, and November of 1983 but took no action with regard to them until June of 1986. This issue, as stated, assumes the existence of a contract requiring cause for the dismissal of an employee. We have already determined that the Manual constituted no such contract and that the plaintiff was, as the trial court found, an employee at will discharge-able without cause at .any time. Hence, we need not consider this issue. We do note, however, the fundamental rule that a court of review will not disturb the findings of a trial court unless they are contrary to the manifest weight of the evidence (Marth v. Illinois Weather-Seal, Inc. (1977), 50 Ill. App. 3d 577, 365 N.E.2d 588); our examination of the entire record, including the admissions of the defendant and the evidence adduced at trial, reveals that the finding of the trial court concerning the plaintiff’s failure to show by a preponderance of evidence that the defendant knew in 1983 unemployment benefits were being paid to her was in accord with the evidence.

Affirmed.

HARRISON and HOWERTON, JJ., concur.